Latest 2 Cases: Egenera, Inc. v. Cisco Systems, Inc. (Intellectual Property), OMG, Inc. v. United States (International Trade)

Drafted and Shafted: Who Should Complain About Male-Only Registration?

SHERRY F. COLB

Cornell law professor comments on a recent opinion by the U.S. Court of Appeals for the Fifth Circuit holding that requiring men but not women to register for the draft is constitutional under mandatory U.S. Supreme Court precedents. Specifically, Colb considers what the U.S. Supreme Court should do if it agrees to hear the case and more narrowly, whether the motives of the plaintiffs in that case bear on how the case should come out.

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Egenera, Inc. v. Cisco Systems, Inc.

Docket: 19-2015

Opinion Date: August 28, 2020

Judge: Sharon Prost

Areas of Law: Intellectual Property, Patents

Egenera sued, alleging that Cisco’s enterprise server systems infringed the 430 patent. Before claim construction, and with Cisco’s inter partes review (IPR) petition pending, Egenera separately petitioned the Patent and Trademark Office to remove one of the 11 listed inventors from the patent. Egenera realized that all claim limitations had been conceived before one listed inventor, Schulter, had started working there. The Patent Board declined to institute IPR; Schulter was removed as an inventor. Following the district court’s claim construction of a “logic to modify” limitation and a trial on inventorship, Egenera asked the district court to add Schulter back to the patent. The court determined that judicial estoppel prevented Egenera from relisting Schulter and found the patent invalid for failing to name all inventors. The Federal Circuit affirmed the claim construction but vacated the invalidity judgment based on judicial estoppel. Egenera advanced no “clearly inconsistent” positions. Inventorship can depend on claim construction. Egenera’s inventorship petition was consistent with the underlying presumption was that Egenera’s claim terms, lacking “means,” were not means-plus-function. Schulter likely would not be an inventor under Egenera’s preferred construction but inventorship under that construction was not decided. Once claim construction issues were decided, it was entirely consistent for Egenera to request an accompanying formal correction of inventorship. In addition, Egenera did not succeed in persuading a court or court-like tribunal to accept its first position.

OMG, Inc. v. United States

Docket: 19-2131

Opinion Date: August 28, 2020

Judge: Stoll

Areas of Law: International Trade

The Department of Commerce imposed anti-dumping and countervailing duties, 19 U.S.C. 1671, 1673, on imports of certain steel nails from India, the Republic of Korea, Malaysia, Oman, Taiwan, Turkey, and the Socialist Republic of Vietnam, covering certain steel nails. OMG, imports zinc masonry anchors from Vietnam that consist of a zinc alloy body and a zinc-plated steel pin. The anchors are designed to attach termination bars to concrete or masonry walls. The anchor is inserted into q predrilled hole and “tap[ped] lightly” with a hammer “until [the] head of [the] anchor body is set gently against the termination bar.” To complete installation, the hammer is used to drive the head of the steel pin flush with the head of the anchor body, thereby expanding the anchor body in the predrilled hole to fix the anchor in place. Commerce determined that OMG’s anchors were within the scope of the Orders. The Trade Court reasoned that OMG’s anchors are unambiguously outside the scope of the Orders because they are not nails within the plain meaning of the word. On remand, Commerce found that OMG’s zinc anchors fall outside the scope of the Orders, but issued its redetermination under protest The Federal Circuit affirmed, finding OMG’s anchors are unambiguously outside the scope of the Orders