Monday, April 29, 2013

Shimano loses at CAFC

The CAFC sustained the Board in the case Shimano v. Rea , related to re-exam 95/001,051.

As to the importance of presenting all arguments in the opening brief, note footnote 1 of the opinion:

In post-argument submissions, the parties have debated whether particular arguments were made to the examiner and the Board during the reexamination pro- ceedings. Rather that address those issues, we address the arguments made in the parties’ opening briefs on appeal and cross-appeal. Arguments not made in the parties opening briefs are ordinarily deemed waived, see Aventis Pharma, S.A. v. Hospira, Inc., 675 F.3d 1324, 1332-33 (Fed. Cir. 2012), and in a case such as this one, in which the record is very large and in which the parties have made a variety of different arguments at various stages of the proceedings, it is entirely appropriate to hold the parties to the specific arguments they have elected to present to this court in their opening briefs.


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