Cisco Sys., Inc. v. K.Mizra LLC

Authored by: Jeremy J. Gustrowsky

In a recent decision, the Federal Circuit clarified what happens when parties try to dismiss an appeal after the court has already issued its opinion. The case involved Cisco Systems, Inc. and Hewlett Packard Enterprise Co., who were challenging a patent held by K.Mizra LLC at the Patent Trial and Appeal Board (PTAB). After the Federal Circuit vacated and remanded the PTAB’s decision for further consideration of patentability, Cisco and Hewlett Packard reached a settlement with K.Mizra and asked the court to dismiss the appeal.

However, the court denied their request. The Federal Circuit explained that once it has issued an opinion and judgment, and especially after denying any rehearing, it is not appropriate to dismiss the appeal just before the mandate (the court’s official order) is issued. The court cited its own precedent, noting that dismissing at this late stage could disrupt the judicial process and is generally not permitted.

Additionally, the court highlighted a unique aspect of appeals from the PTAB: the Director of the U.S. Patent and Trademark Office (USPTO) has an unconditional right to intervene in these cases. This means that even if the original parties want to end the dispute, the government may still have an interest in the outcome, making late-stage dismissals even more problematic.

Ultimately, the Federal Circuit’s order means that the case will proceed as planned, with the mandate issuing in due course. The parties are still free to seek dismissal when the case returns to the PTAB, but not at this late stage in the appellate process.