Bumper Boy bumped at CAFC
Bumper Boy had difficulties at the CAFC in the case Radio Systems v Bumper Boy except for one matter of equitable estoppel and one matter of a dismissal:
Quite simply, the ’082 patent claims could not have been asserted against Innotek or Radio Systems until those claims issued. See 35 U.S.C. § 281 (“A patentee shall have remedy by civil action for infringement of his patent.”); GAF Building Materials Corp. v. Elk Corp. of Dallas, 90 F.3d 479, 482 (Fed. Cir. 1996) (holding that no case or controversy exists unless patent has issued prior to filing suit). As a result, the elements of equitable estoppel are not present with respect to the ’082 patent. There is simply no misleading conduct or silence by Bumper Boy to indicate that it did not intend to enforce the ’082 patent against Radio Systems. Not surprisingly, there is also no evidence that Radio Systems actually relied on such misleading conduct or silence. As to the ’082 patent, we conclude that the district court abused its discretion by granting summary judgment of nonin- fringement for the UltraSmart collar on the basis of equitable estoppel. We therefore reverse the district court’s judgment in this respect and remand for proceedings consistent with this opinion.
We have held that a judgment of invalidity is broader than a judgment of noninfringement. “[A] determination of infringement applies only to a specific accused product or process, whereas invalidity operates as a complete defense to infringement for any product, forever.” Typeright Keyboard Corp. v. Microsoft Corp., 374 F.3d 1151, 1157 (Fed. Cir. 2004) (internal quotation marks and citation omitted). Thus, invalidity cannot be an alternative ground for affirming a judgment of nonin- fringment absent a cross-appeal. See id. at 1157 n.4 (“In that situation [where the appellee urges invalidity as a ground on which to support a judgment of noninfringe- ment] a cross appeal is necessary since a judgment of invalidity is broader than a judgment of noninfringe- ment.” (citation omitted)).
While we acknowledge the inefficiency that may re- sult from requiring cross-appeals in situations where the scope of a judgment would be enlarged, we are cabined by our jurisdiction and may not reach issues that are not properly before us. On remand, Radio Systems may pursue its invalidity defense in further proceedings, and, should there be additional rulings on invalidity by the district court, Radio Systems may pursue a proper appeal at that time. Because Radio Systems did not properly file a cross-appeal on the invalidity issue in this appeal, Bumper Boy’s motion to strike Radio System’ alternative grounds for affirmance is granted.