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That’s So Metal: Ninth Circuit Confirms Standard of Review for Finding Unclean Hands on Summary Judgment

by Sarah Bro | Mar 4, 2021 | Trademarks

In a trademark infringement dispute over the brand name “METAL,” the US Court of Appeals for the Ninth Circuit resolved an issue of first impression in holding that when reviewing a grant of summary judgment on an unclean hands defense in a trademark infringement case, the correct standard of review is abuse of discretion. Metal Jeans, Inc. v. Metal Sport, Inc., et al., Case No. 19-55923 (9th Cir. Feb. 16, 2021) (VanDyke, J.) (Wardlaw, J., concurring).

Metal Jeans, an apparel brand claiming ownership of the trademark METAL, brought an infringement claim against Metal Sport, a powerlifting brand with a similar stylized mark that was also used on certain apparel items. In the district court, both parties sought summary judgment on the issue of likelihood of consumer confusion with respect to Metal Sport’s use of the METAL trademark in view of Metal Jeans’ rights in the brand name. The district court determined that material facts on the issue of infringement remained in dispute, and denied both parties’ motions on the merits. However, the district court granted a separate motion for summary judgment filed by Metal Sport claiming that Metal Jeans was barred from pursuing its infringement claim on grounds of unclean hands, while rejecting Metal Jeans’ counter-defense that Metal Sport also acted with unclean hands.

Metal Jeans appealed the unclean hands judgment, which presented an issue of first impression to the Ninth Circuit, namely the standard of review when a district court concludes that a party has acted with unclean hands. The Ninth Circuit noted that its two trademark decisions addressing unclean hands never specified the standard of review applied, and so turned to other cases in which it reviewed district courts’ application of similar equitable doctrines. With this background, the Court found abuse of discretion to be the correct standard of review.

In a separate decision memorandum, the Ninth Circuit explained that to successfully allege unclean hands, a defendant must show that the plaintiff’s conduct (1) is inequitable and (2) relates directly to the subject matter of its claims. The court also noted that factual questions related to the defense of unclean hands may only be resolved on summary judgment if evidence presented by both sides would permit the trier of fact to come to only one conclusion.

The Ninth Circuit assessed the six alleged instances of misconduct on the part of Metal Jeans, which included facts alleging that Metal Jeans provided varying accounts of how it acquired the METAL trademark and provided inaccurate or false information to the US Patent & Trademark Office, along with allegations that Metal Jeans sourced certain products from China despite its use of an “American Made” slogan. The Court determined that many of the factual allegations of unclean hands did not relate directly to Metal Jeans’ trademark infringement claims, nor did such allegations appear to have caused any harm or demonstrate malintent on the part of Metal Jeans.

Applying the abuse of discretion review standard, the Ninth Circuit determined that the district court’s findings [...]

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Attempts to Appeal Institution Decision Is SIPCOed

by McDermott Will & Emery | Feb 18, 2021 | America Invents Act, Patents

Reinforcing the impact of the Supreme Court of the United States’ 2019 decision in Thryv v. Click-to-Call, the US Court of Appeals for the Federal Circuit reiterated that the Patent Trial and Appeal Board’s threshold determination as to whether it will institute a proceeding under the America Invents Act (AIA), in this instance a Covered Business Method (CBM) review, is not appealable because it is closely tied to the institution decision. cxLoyalty, Inc. v. Maritz Holdings Inc., Case Nos. 20-1307, -1309 (Fed. Cir. Feb. 8, 2021) (Prost, C.J.)

cxLoyalty petitioned for CBM review of a patent owned by Maritz. The patent relates to a system and method for permitting a loyalty program customer to redeem loyalty points for rewards offered by vendors without human intervention. A participant (i.e., a customer) uses a graphical user interface (GUI) to communicate with a web-based vendor system (e.g., an airline reservation system). An application programming interface (API) facilitates information transfer between the GUI and the vendor system.

The Board instituted CBM review and concluded that the original claims in the patent were ineligible for patenting under 35 USC § 101, but that the proposed substitute claims were patent eligible. The Board found the original and substitute claims amounted “to a fundamental economic practice long prevalent in commerce” and therefore were directed to abstract ideas. However, the Board found that, unlike the original claims, the substitute claims contained an inventive concept. cxLoyalty appealed the Board’s ruling as to the substitute claims. Maritz cross-appealed the Board’s determination that the patent was eligible for CBM review and the Board’s ruling as to the original claims.

The Federal Circuit quickly disposed of Maritz’s challenge to the CBM-eligibility of the patent, citing to its 2020 SIPCO v. Emerson decision. In SIPCO, the Court held that Thryv made clear that the Board’s threshold determination as to whether a patent qualifies for CBM review is a non-appealable decision. Whether CBM review is an available mechanism is conditioned on whether the patent qualifies, since patents that are directed to “technological inventions” are excluded from CBM review. Because the determination of whether a patent qualifies for CBM review is inextricably tied to the decision to institute, it is not appealable. SIPCO was decided after briefing but before oral argument of this case. Indeed, Maritz’s counsel acknowledged during oral argument that SIPCO foreclosed Maritz’s CBM eligibility challenge.

As to the merits, the Federal Circuit agreed with the Board that both the original and substitute claims were directed to patent-ineligible subject matter under § 101. Maritz argued that the claim features of permitting a participant to redeem points for rewards “without knowing that the actual transaction is a currency transaction at less than the perceived price” saved the claims from being merely abstract ideas. The Court disagreed. After applying the Alice/Mayo two-step analysis, the Court found that 1) the claims were directed to abstract ideas, and 2) the claims merely recited generic and conventional computer components or functionality for carrying out the abstract [...]

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Stick to the Fax: Conflicting Statements Made During Prosecution Lead to Indefiniteness

by Thomas DaMario | Feb 18, 2021 | Patents

In deciding whether use of the term “passive link” to define a connection between a computer terminal and a fax machine rendered a patent claim indefinite, the US Court of Appeals for the Federal Circuit affirmed the district court’s finding of invalidity based on conflicting statements made by the patent owner during prosecution. Infinity Computer Products, Inc. v. Oki Data Americas, Inc., Case No. 20-1189 (Fed. Cir. Feb. 10, 2021) (Prost, C.J.)

Infinity owns a patent directed to providing a circuit for interfacing a personal computer with a facsimile machine to enable the facsimile to be used as a scanner or a printer for a personal computer. The patent seeks to accomplish all of the objectives of a scanner or a printer in a simple, straightforward manner through the use of a circuit of highly simplified design and low cost. The patent claims recite that this functionality is accomplished “through a bi-directional direct connection via a passive link between the facsimile machine and the computer.” Infinity asserted the patent against Oki in district court.

The term “passive link” does not appear in the patent specification. Infinity introduced this term during prosecution to overcome rejections based on a prior art patent to Perkins. During prosecution, Infinity unsuccessfully argued that unlike Perkins, the claimed invention permits uninterrupted transfer of signals between the facsimile and the computer without the use of intervening circuitry. Infinity engaged in multiple rounds of amendment and response with the examiner before finally overcoming the rejections based on Perkins by arguing that the invention “creates a passive link between the facsimile machine and the computer [and] therefore does not require any intervening apparatus as does Perkins.” Perkins used a modem, characterized by Infinity as the “intervening apparatus,” internal to the computer. Infinity argued that the modem “should be regarded as a peripheral device to the computer which processes data before it is transmitted to the I/O bus of the computer,” effectively drawing the boundary of the “passive link” at the I/O bus of the computer.

After allowance, the patent was the subject of three ex parte re-examination proceedings. The patent was a continuation-in-part of a parent application, and in order to overcome a prior art reference asserted in the re-examination proceeding, Infinity argued that the claimed “passive link” element was entitled to the priority date of an earlier parent application. Infinity specifically noted that the patent’s description of “the RJ11 telephone cable and use thereof in communicating data between the fax machine 30 and the PC computer 40 meets the definition of ‘passive link.'” In doing so, Infinity pointed to certain figures in the parent application specification that disclosed fax modem circuitry internal to the computer, effectively drawing the boundary of the “passive link” at the computer’s external port—before the I/O bus.

The district court found that there was a discrepancy on the boundary of the “passive link” because during prosecution it was defined as at the I/O bus of the computer, but during the ex parte re-examination it [...]

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2020 IP Law Year in Review: Trademarks

by Sarah Bro and Eleanor B. Atkins | Jan 21, 2021 | Trademarks

Executive Summary

2020 was a year like no other, so you’d be forgiven if the year’s biggest headlines in trademark law didn’t quite catch your attention. In 2020, the US Supreme Court shaped trademark jurisprudence through a trio of notable decisions. A pandemic and shelter-in-place orders pushed more consumers to virtual marketplaces, forcing brand owners, and the courts, to take a renewed look at counterfeiting and online enforcement. The United States Patent and Trademark Office (USPTO) has continued its strict registrability and failure-to-function assessments, and new legislation, rules and fees were directed at cracking down on fraudulent trademark applications and clearing dead weight from the USPTO register to make room for new and growing brands. A COVID-19 stimulus package just so happened to establish the standard for obtaining injunctive relief in litigation under the Lanham Act. And the year saw industry-specific developments with the potential for broader application in the field. This report provides a summary of 2020’s notable moments in trademark law with insights and outlooks for brand owners and practitioners moving into the year ahead.

Trademarks

2021 Outlook

Looking ahead, 2020’s legislation, rules and fees impacting the USPTO and the courts may add some clarity to trademark disputes in 2021, any may also inspire brand owners to examine their approaches to trademark portfolio management, watching and enforcement to maximize budgets, clear the way for brand expansion and more efficiently handle trademark disputes. In 2021, we also expect to see further developments in the fighting of counterfeits, the interplay of trademarks and expressive works and the application of failure to function refusals, especially as we continue to see trademark filings, disputes and market trends associated with an ongoing pandemic, political unrest and overdue social justice movements. Finally, in 2021, we expect to see brands remain at the forefront of representing positivity, innovation, unity and wellness, as we all work together to accelerate out of a challenging year.

Read the full report.

Revenge of the Grammar Nerds: Grammatical Canons Overturn $8.6 Million Jury Infringement Verdict

by Christopher M. Bruno | Jan 14, 2021 | Patents

Addressing whether the phrase “a plurality of” should apply to each element in a series, the US Court of Appeals for the Federal Circuit entered judgment of non-infringement, finding that the district court’s claim construction that did not require a plurality of each recited component was at odds with the claim language based on the application of grammatical rules. SIMO Holdings, Inc. v. Hong Kong uCloudlink Network Technology Limited, Case No. 19-2411 (Fed. Cir. Jan. 5, 2021) (Taranto, J.)

SIMO sued uCloudlink for patent infringement based on sales of certain GlocalMe WiFi hotspot devices and a wireless phone model. Generally, these hotspots and patented technology seek to reduce costs for calls and internet access for people traveling internationally.

The sole patent claim at issue covered an apparatus that performed certain communications protocol data transfer and authentication functions that enabled an international traveler to take advantage of a non-subscribed carrier without incurring roaming charges. At issue was the interpretation of that claim language, specifically whether the preamble, which recited a series of technological components (e.g., memory, processors, programs and, importantly here, “non-local calls database”), was a limiting part of the claim, and, if so, whether the language that recited “a plurality of” these components meant that the claimed invention must have a plurality of each of these components, or just more than one of all of them taken together. This was a determining factor for infringement, as it was essentially undisputed that the uCloudlink devices did not have one (let alone multiple) non-local calls databases. The district court concluded that the preamble language was limiting but, parsing the grammar involved and noting that specification “states that the non-local calls database is optional,” concluded that a non-local calls database was not a necessary component, and that summary judgment of infringement was warranted. UCloudlink appealed.

The Federal Circuit agreed that the preamble was limiting, but disagreed that a structure not having a recited element could infringe. The claim in issue recited “[A] wireless communication client or extension unit comprising . . .” followed by a list of components including the non-local call database. Notwithstanding that the database was found in the preamble, the Court concluded that it was limiting because it followed the term “comprising” and provided the necessary structure for the invention, which otherwise would have had no limiting description of the physical components of the apparatus. Moreover, the Court noted that subsequent claim language, which recited “the wireless communication client” and “the extension unit,” referred to those items identified in the preamble after “comprising.”

The Federal Circuit relied on many grammatical canons, its own precedent, various Scalia & Garner textualist interpretation books and the law-school writing-class favorite, Strunk & White. Applying these sources together, the Court reiterated that nouns in series are generally each treated as modified by a phrase that precedes the series (here, “a plurality of”), and that such a rule is particularly forceful when the series ends in an “and” rather than an “or.” And, with no article [...]

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IP Implications of the Consolidated Appropriations Act, 2021

by Jodi Benassi | Jan 14, 2021 | Copyrights, Patents, Trademarks

On December 27, 2020, Congress signed the Consolidated Appropriations Act, 2021, into law. The omnibus act includes new legislation affecting patent, copyright and trademark law. A brief summary of key provisions is provided below.

Patents – Section 325 Biological Product Patent Transparency

42 USC § 262(k) was amended to require that the US Food and Drug Administration (FDA) provide the public with more information about patented biological products. Within six months, the FDA must make the following information available to the public on its Database of Licensed Biological Products or “Purple Book,” and it must update the list every 30 days:

A list of each biological product, by nonproprietary name, for which a biologics license is in effect
The license date and application number
The license and marketing status (as available)
Exclusivity periods

The amendment requires that the holders of a license to market a biologic drug now disclose all patents believed to be covering that drug. The new law is designed to prevent errors that could delay biosimilars from coming to the market.

Copyrights – The CASE Act of 2020

The Consolidated Appropriations Act incorporates the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020, as well as legislation designed to increase criminal penalties for the unauthorized digital streaming of copyright-protected content. The CASE Act includes revisions to the Copyright Act, 17 USC §§ 101 et seq., with the goal of creating a new venue for copyright owners to enforce their rights instead of having to file an action in federal court.

The Copyright Claims Board

The CASE Act established the Copyright Claims Board (a small claims court), which is designed to serve as an alternative forum where parties may voluntarily seek to resolve certain copyright claims regarding any category of copyrighted work. A party may opt out upon being served with a claim, choosing instead to resolve the dispute in federal court. A party to a proceeding before the Board may, but is not required to, be represented by a lawyer. A party may also be represented by a law student who is qualified under applicable law, and who provides such representation on a pro bono basis. The Board consists of three copyright claims officers who may conduct individualized proceedings to resolve disputes and must issue written decisions setting forth their factual findings and legal conclusions.

Procedural Matters

The Board must follow the law in the federal jurisdiction in which the action could have been brought if filed in federal court. Because jurisdictional conflicts may arise where a dispute may have been brought in multiple jurisdictions, the CASE Act provides that the Board may apply the law of the jurisdiction that the Board determines has the most significant ties to the parties and the conduct at issue.

Although formal motion practice is not permitted, discovery is allowed on a limited basis, including requests for documents, written interrogatories and written requests for admission. The Board may consider evidence, documentary and (non-expert) testimony, without the application of formal [...]

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An Early Holiday Present for Generics? Legislation Requiring Greater Disclosure by Brands Passes the Senate

by Christopher M. Bruno | Dec 21, 2020 | Patents

Earlier this month, two bills intended to promote generic competitiveness by presenting a clearer idea of the patent landscape covering reference products passed the full Senate, albeit with amendments. These laws, if enacted, will require brand pharmaceutical companies to submit more information about their innovator products.

Potential Changes to Orange Book Listing Requirements for Non-Biologics Drugs

As part of its current obligations, an innovator product manufacturer must submit to the FDA the patent number and expiration date of any patents that claim the drug or a method of using the drug. The FDA then performs the ministerial function of listing the information in the Approved Drug Products with Therapeutic Equivalence Evaluations, known as the Orange Book. The Hatch-Waxman Act permits generic manufacturers to file a counterclaim to delist a patent that they believe is improperly listed. Over the years, FDA has issued technical regulations expanding on the requirements, which under statute, are relatively sparse. However, there has been some uncertainty regarding what patents must be listed—especially in the case of drug products with innovative delivery systems.

The Orange Book Transparency Act of 2020, H.R. 1503, seeks to codify certain existing regulations and bring some certainty to the process. First, the Orange Book Act provides greater clarity on the types of patents a brand company must list. Currently, the relevant statutes require submission of patent information for “any patent which claims the drug for which the applicant submitted the application or which claims a method of using such drug” that could be asserted based on the manufacture, use, or sale of the drug. The Orange Book Act would alter that language to require submission of patent information for patents that claim the drug substance (active ingredient), the drug product (formulation or composition), or a method of use that is included in the application (i.e., a method of use that corresponds with an approved indication/use code). All other patents—e.g., patents that cover off-label use—must not be listed.

Second, the FDA would be responsible for “specify[ing] any exclusivity period that is applicable,” including the 180-day exclusivity period for first-to-file applicants.

Finally, the Orange Book Act codifies certain existing agency requirements. Under current FDA regulations, brand manufacturers are required to promptly request delisting if they determine that a patent no longer qualifies or its relevant claims are invalidated, and within 14 days if court-ordered. The Orange Book Act would codify the duty on brand manufacturers to remove listed patents within 14 days—rather than “promptly”—when any claim of a listed patent “has been cancelled or invalidated pursuant to a final decision” by the Patent Trial & Appeal Board or a court once it is unappealable. This quick turnaround time of communicating to the public which patents have been found invalid will be key to giving generics an advantage in developing generic products and patents covering branded drug products invalid. The Orange Book Act includes a 30-day period for a brand manufacturer to list a patent after issuance; this requirement mirrors already existing FDA regulations.

While [...]

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PTAB Designates Three Opinions as Precedential

by Paul Devinsky | Dec 17, 2020 | America Invents Act, Patents

In RPX Corp. v. Applications in Internet Time, LLC, Case Nos. IPR2015-01750, -01751, -01752 (Oct. 2, 2020) (Boalick, CAPJ) (designated precedential on Dec. 4, 2020), the Patent Trial and Appeal Board (Board) terminated institution of RPX’s petitions for inter partes review (IPR) because Salesforce—served with a complaint more than one year before—should have been named as a real party-in-interest (RPI) to the proceedings. As a result, RPX’s petition was time-barred under § 315(b).

The Board’s determination came after remand from the Federal Circuit, which vacated the Board’s prior finding that Salesforce was not an RPI. (IP Update, Vol. 21, No. 8). The Federal Circuit instructed the Board to use the common law understanding of “real party-in-interest” and a “flexible approach that takes into account both equitable and practical considerations, with an eye toward determining whether the non-party is a clear beneficiary that has a pre-existing, established relationship with the petitioner.” On remand, the Board took additional discovery to examine the relationship between RPX and Salesforce, including RPX’s business model, Salesforce’s relationship with RPX, whether RPX represents Salesforce’s interests in invalidating the patents, and the significance of the fact that Salesforce and RPX had overlapping Board members. After considering the relationship, the Board found the evidence pointed clearly toward a common interest—between RPX and its members—in invalidating the patents in IPR proceedings. It found RPX could not avoid the time bar under § 315(b), or estoppel under § 315(e) for its members, by creating the appearance that RPX acts independently of its members’ interests when filing IPR petitions.

In SharkNinja Operating LLC v. iRobot Corp., Case No. IPR2020-00734 (Oct. 6, 2020) (Melvin, APJ) (designated precedential on Dec. 4, 2020), the Board declined to address—for purposes of institution—the patent owner’s claim that the IPR petition failed to name an alleged RPI under § 312(a)(2)’s requirement that a petition “identif[y] all real parties-in-interest.” iRobot alleged that JS Global was an unnamed RPI because it was intertwined with SharkNinja’s business and was in a position to fund and exercise control over the IPR petition. The Board declined to reach a determination on the issue because it would have no impact on the proceeding, absent evidence that (1) JS Global was a time-barred or an otherwise estopped entity whose addition to the petition would result in its dismissal under § 315 or (2) SharkNinja’s omission of JS Global was done in bad faith. Even if SharkNinja was mistaken in its decision not to name JS Global as an RPI, the Board’s precedent would allow SharkNinja to correct the mistake during the proceeding.

In Apple Inc. v. Uniloc 2017 LLC, Case No. IPR2020-00854 (Oct. 28, 2020) (Quinn, APJ) (designated precedential on Dec. 4, 2020), the Board exercised its discretion to deny Apple’s motion for joinder because it would have resulted in a “serial attack” on Uniloc’s patent. Apple had previously filed an IPR petition on the same patent, alleging various grounds of invalidity. The Board denied institution because it failed to show a reasonable likelihood [...]

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“You’ve Changed!”—New Trademark and TTAB Fees Incoming

by Sarah Bro | Dec 10, 2020 | Trademarks

Effective January 2, 2021, the United States Patent and Trademark Office (“USPTO”) is increasing and adding certain trademark and Trademark Trial and Appeal Board (“TTAB”) fees. The changes come after a nearly three-year fee status quo.

The following TTAB fees will increase anywhere from $25 to $200:

Petition to cancel filed through the Electronic System for Trademark Trials and Appeals (“ESTTA”) (now $600 per class);
Notice of opposition filed through ESTTA (now $600 per class);
Initial 90-day extension request for filing a notice of opposition, filed through ESTTA (now $200 per application);
Second 60-day extension request for filing a notice of opposition, filed through ESTTA (now $200 per application);
Final 60-day extension request for filing a notice of opposition, filed through ESTTA (now $400 per application); and
Ex parte appeal filed through ESTTA (now $225 per class).

New TTAB fees are also taking effect. A $100 fee per application will apply for a second request for an extension of time to file an appeal brief in an ex parte appeal filed through ESTTA (and for any subsequent extension requests). A $200 per class fee will apply for appeal briefs in an ex parte appeal filed through ESTTA. A $500 per proceeding fee will apply to requests for oral hearings.

As before, there will be no fee for a first 30-day extension request for filing a notice of opposition filed through ESTTA. The USPTO will also begin issuing partial refunds for petitions to cancel in default judgments. These refunds, however, will be available only if the cancellation involves solely an abandonment or nonuse claim, if the defendant did not appear, and if there were no filings in the proceeding other than the petition to cancel.

Additionally, USPTO trademark and TTAB filings which can be and are submitted on paper will cost more than filing their electronic counterparts.

Other key USPTO trademark fee changes include the following: TEAS standard application, now $350 per class; TEAS Plus application, now $250 per class; the processing fee for failing to meet TEAS Plus requirements, now $100 per class; Section 8 or 71 declaration filed through TEAS, now $225 per class; petition to the Director filed through TEAS, now $250; and a petition to revive an abandoned application filed through TEAS, now $150. No fee will apply for an electronically filed Section 7 request to amend a registration before submitting a Section 8 or 71 declaration, as long as the filing serves only to delete goods, services, and/or classes in the request. There will, however, now be a fee assessed for deleting goods, services, and/or classes from a registration after submitting a Section 71 or 8 declaration, but before that declaration is accepted ($250 per class if filed through TEAS). Lastly, a letter of protest will now cost $50 per application.

While the changes outlined above are key, practitioners should be mindful of potential changes to all fees applicable to their specific situation and consult the USPTO’s Final Rule, available here, to ensure [...]

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Wave Goodbye to Lost Arguments: Waiver Versus Forfeiture Law

by Christopher M. Bruno | Nov 24, 2020 | America Invents Act, Patents

The US Court of Appeals for the Federal Circuit concluded that a patent owner forfeited claim construction arguments on appeal by not presenting them first to the Patent Trial and Appeal Board for consideration. In re: Google Tech. Holdings LLC, Case No. 19-1828 (Fed. Cir. Nov. 13, 2020) (Chen, J.)

Google submitted an application to the US Patent and Trademark Office (PTO) seeking patent claims covering certain means and methods for transferring content to video-on-demand systems. During examination, the examiner rejected Google’s proposed claims based on obviousness in light of certain references. After receiving a final rejection, Google appealed to the Board, relying heavily on block quotes from the references and proposed claims to argue that the examiner improperly found obviousness.

The Board affirmed the examiner’s rejection. Applying the broadest reasonable interpretation standard, the Board construed two claim terms: “costs” and “network impact.” In defining those terms, the Board noted that Google had not, in the course of appealing the examiner’s decision, “cited to a definition of ‘costs’ or ‘network impact’ in the [s]pecification that would preclude the [e]xaminer’s broader reading.” Google appealed.

Google argued that the Board erred in its constructions. The Federal Circuit never reached the merits, however, instead concluding that Google had not properly presented its arguments first to the PTO. The Court described the oft-forgotten difference between waiver (the voluntary and knowing relinquishment of a right) and forfeiture (the failure to make a timely assertion of a particular right). This case, the Court reasoned, was an example of forfeiture, because Google had failed to urge the claim constructions to the PTO in the first instance.

Google contended that the Federal Circuit should nonetheless review the Board’s determination, because the Board actually ruled on the claim constructions and those issues were ripe for decision before the Court. The Court rejected these arguments, largely because Google identified no excuse for failing to raise the issue earlier, and because the Board’s final decision was not unexpected in the course of the proceedings.

Practice Note: Ultimately, the Court’s opinion presents one approach (perhaps not one consistently followed) regarding what an appellant must do in order to maintain its right to review. Appellees seeking to foreclose appellate review should consider whether, regardless of the Board’s ultimate decision, the appellant appropriately pressed the arguments on the error for which it later seeks appellate review.

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