On January 6, 2022, Chief Judge Gilstrap of the United States District Court for the Eastern District of Texas denied a motion to stay pending ex parte reexamination (“EPR”) of the patent asserted in the litigation, and found that defendant was relying on the EPR as part of a strategy of “examiner shopping.”  Longhorn HD LLC v. NetScout Systems, Inc., 2-20-cv-00349.

On January 3, 2022, the Court of Appeals for the Federal Circuit (CAFC) affirmed the district court’s finding that a patent claim does not fail the written description requirement merely because the specification fails to explicitly state a negative claim limitation.  Novartis Pharmaceuticals v. Accord Healthcare Inc., No. 2021-1070 (Fed. Cir. Jan. 3, 2022).

On December 8, 2021, Judge Albright of the U.S. District Court for the Western District of Texas issued a sealed opinion granting the defendants’ motion to transfer venue to the Northern District of Georgia.  Lynk Labs, Inc v. Home Depot USA, Inc., No. 6:21-cv-00097-ADA (W.D. Tex. Dec. 8, 2021).  A public, redacted version has since published, in which the court addresses the public and private interest convenience factors, finding that the Northern District of Georgia was a clearly more convenient forum.

​On December 8, 2021, the Court of Appeals for the Federal Circuit (“CAFC”) affirmed the decision of the Patent Trial and Appeal Board  (“Board”), finding that petitioner Lenovo Holding Company, Inc. (“Lenovo”) had failed to show by a preponderance of the evidence that the claims it challenged in an inter partes review (“IPR”) were unpatentable.  Lenovo Holding Company, Inc. v. DoDots Licensing Solutions LLC, __ F.4th __ (Fed. Cir. Dec. 8, 2021).

On December 1, 2021, the United States Court of Appeals for the Federal Circuit (CAFC) issued two opinions related to the same inter partes review (IPR) petitioner’s standing to appeal two decisions of the Patent Trial and Appeal Board (PTAB).  ModernaTx, Inc. v. Arbutus Biopharma Corp, — F.4th — (Fed. Cir. Dec. 1, 2021); ModernaTx, Inc. v. Arbutus Biopharma Corp f/k/a Protiva Biotherapeutics, Inc., — F.4th — (Fed. Cir. Dec. 1, 2021).  In the first opinion, the CAFC found that petitioner had established standing by demonstrating a sufficient risk of an infringement suit based on the patent owner’s statements and actions.  In the second opinion, the CAFC found that petitioner lacked standing at the time the appeal was filed because petitioner’s evidence of financial burden from the validity of the patent at issue was too speculative.

On November 15, 2021, the United States District Court for the Eastern District of Texas found that the asserted claims directed at data collection, storage, management, and access were abstract, but refused to dismiss the claims under the second step in the Alice analysis. Gravel Rating Systems, LLC v. McAfee, LLC, Case No. 4:21-CV-259-ALM.

On November 5, 2021, the Court of Appeals for the Federal Circuit (CAFC) issued an order affirming a decision by the United States District Court for the District of New Jersey, No. 2:19-cv-05802-ES-MAH, Judge Esther Salas, dismissing a patent infringement suit for improper venue and failure to state a claim.  Celgene Corp. v. Mylan Pharmaceuticals Inc., __ F.3d __ (Fed. Cir. Nov. 5, 2021).  In its order, the CAFC affirmed that plaintiff had not established that the domestic defendants committed acts of infringement in New Jersey or had regular and established places of business there and had not sufficiently pleaded a claim against the foreign parent defendant.

On November 04, 2021, the Court of Appeals for the Federal Circuit (CAFC) reversed the Patent Trial and Appeal Board’s (PTAB’s) holding that a patent claim was obvious, rejecting both the PTAB’s finding that the prior art disclosed all claim limitations and the PTAB’s finding that the combination of references would result in a reasonable expectation of success. University of Strathclyde v. Clear-Vu Lighting LLC, No. 2020-2243 (Fed. Cir. Nov. 04, 2021).

On October 19, 2021, the United States Court of Appeals for the Federal Circuit (“CAFC”) granted a petition for writ of mandamus ordering the United States District Court for the Western District of Texas to transfer the underlying action to the United States District Court for the District of Colorado.  In re DISH Network, L.L.C., No. 2021-182 (Fed. Cir. Oct. 19, 2021).  The CAFC held that Judge Albright abused his discretion when denying DISH’s motion to transfer on convenience grounds pursuant to 28 U.S.C. § 1404(a).

On October 14, 2021, the Court of Appeals for the Federal Circuit (CAFC) affirmed the decision of the United States District Court for the District of North Dakota awarding attorneys’ fees on remand after it had previously found a patent unenforceable due to inequitable conduct.  Energy Heating, LLC v. Heat On-The-Fly, LLC, __ F.4th __ (Fed. Cir. Oct. 14, 2021).

On October 13, 2021, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued an opinion rejecting a patentee’s arguments challenging the constitutionality of the U.S. Patent and Trademark Office’s (USPTO’s) structure based on its purported financial interest in instituting inter partes reviews (IPRs).  Mobility Workx, LLC v. Unified Patents, LLC, --- F.3d --- (Fed. Cir. Oct. 13, 2021).  The CAFC found that the financial interests of the Patent Trial and Appeal Board (PTAB) leadership and of individual administrative patent judges (APJs) were too remote to violate due process under the U.S. Supreme Court’s decision in Tumey v. Ohio.

On September 10, 2021, the Court of Appeals for the Federal Circuit (CAFC) issued an order denying a petition for a writ of mandamus to the United States District Court for the Western District of Texas, Nos. 6:20-cv-00952-ADA, 6:20-cv-00953-ADA, 6:20-cv-00956-ADA, 6:20-cv-00957-ADA, and 6:20-cv-00958-ADA, Judge Alan D. Albright, directing dismissal of five patent infringement actions for insufficient service of process and lack of personal jurisdiction.  In re:  ONEPLUS TECHNOLOGY (SHENZEN) CO., __ F.3d __ (Fed. Cir. Sept. 10, 2021).  In its order, the CAFC let stand Judge Albrights’s decision finding that the mandamus petitioner’s right to service only under the Hague Convention is not clear and indisputable.

On September 10, 2021, Judge Richard G. Andrews of the U.S. District Court for the District of Delaware issued a Memorandum Opinion on claim construction.  Peloton Interactive, Inc. v. ICON Health & Fitness, Inc., No. 20-662-RGA, slip. op. (D. Del. Sept. 10, 2021).  Judge Andrews held that certain claims of the asserted patent containing “translator device…” limitations were invalid as indefinite under 35 U.S.C. § 112 ¶ 6 because they failed to disclose corresponding structure for the claimed function.

On September 9, 2021, the Court of Appeals for the Federal Circuit (CAFC) affirmed the decision of the Patent Trial and Appeal Board in a post-grant review proceeding construing the claim term “pressure control assembly” as a means-plus-function limitation and finding the challenged claims indefinite for lack of corresponding structure.  Team Worldwide Corp. v. Intex Recreation Corp., __ F.3d __ (Fed. Cir. Sept. 9, 2021)

On September 1, 2021, the United States Court of Appeals for the Federal Circuit (CAFC) found that the District Court for the Central District of California erred in awarding damages for sales of infringing products prior to the date that the infringer received actual notice of infringement for failure to prove its compliance with the patent marking statute.  Lubby Holdings LLC v. Henry Chung, __ F.3d __ (Fed. Cir. Sep. 1, 2021).

On August 26, 2021, the United States Court of Appeals for the Federal Circuit (“CAFC”) issued an order affirming orders from the United States District Court for the Northern District of California excluding certain opinions of plaintiff’s damages expert.  MLC Intellectual Property LLC v. Micron Technology Inc., __ F.3d __ (Fed. Cir. August 26, 2021).  In its decision, the CAFC let stand the district court judge’s orders precluding plaintiff’s damages expert from characterizing certain license agreements as supporting his reasonable royalty rate determination.

On August 12, 2021, the United States District Court for the District of Delaware issued an opinion granting plaintiff Microsoft Corporation’s (“Microsoft”) motion for judgment on the pleadings related to infringement counterclaims brought by SynKloud Technologies, LLC (“SynKloud”).  SynKloud Techs. LLC v. HP, Inc., et al., No. 19-1360-RGA (D. Del. Aug. 12, 2021).  The Court ruled that the patents at issue related to the patent-ineligible abstract idea of “requesting an institution to obtain data from remote locations and to store that data in storage space assigned to a specific user.”

On August 5, 2021, Judge Gilstrap of the U.S. District Court for the Eastern District of Texas issued a Memorandum Opinion and Order Supported by Findings of Fact and Conclusions of Law regarding defendant Apple’s counterclaim for prosecution laches.  Personalized Media Communications, LLC v. Apple, Inc., No. 2:15-cv-01366-JRG, slip op. (E.D. Tex. Aug. 5, 2021).  Judge Gilstrap found and declared the asserted patent unenforceable under the doctrine of prosecution laches.  In doing so, Judge Gilstrap overturned a $308.5 million jury verdict.

On August 2, 2021, the United States Court of Appeals for the Federal Circuit (“CAFC”) granted a petition for a writ of mandamus ordering the United States District Court for the Western District of Texas to transfer the underlying action to the Central District of California.  In re Hulu, LLC, __ F.3d __ (Fed. Cir. Aug. 2, 2021).

On July 21, 2021, the United States District Court for the Eastern District of Texas, Marshall Division, denied plaintiff’s motion for summary judgement that its patent was not invalid due to inter partes review (“IPR”) estoppel pursuant to 35 U.S.C. § 315(e)(2).  General Access Solutions, Ltd. v. Sprint Spectrum LLC, 2-20-cv-00007 (Robert W. Schroeder, III).

On July 13, 2021, the Court of Appeals for the Federal Circuit (CAFC) issued an order denying a petition for a writ of mandamus to the United States District Court for the Western District of Texas, No. 6:20-cv-00622-ADA, Judge Alan D. Albright, directing transfer.  In re: TCO AS, __ F.3d __ (Fed. Cir. July 13, 2021).  In its order, the CAFC let stand Judge Albright’s decision denying Petitioner’s motion to transfer.

On July 13, 2021, the United States Court of Appeals for the Federal Circuit (“CAFC”) affirmed in part, reversed in part, and remanded appellant Bot M8 LLC’s (“Bot M8”) appeal of several underlying orders related to the dismissal of its patent infringement action against Sony Corporation of America (“Sony”).  Bot M8 LLC v. Sony Corporation of America, ___ F.3d ___ (Fed. Cir. July 13, 2021).  The CAFC clarified that while a plaintiff need not plead infringement on an element-by-element basis, reciting claim elements and merely concluding that the accused products have those elements is insufficient.

On July 6, 2021, Judge Noreika of the United States District Court for the District of Delaware issued an Order denying defendant’s motion in limine to preclude plaintiff from asserting claims of a patent that were found unpatentable by the Patent Trial and Appeal Board (PTAB) of the United States Patent and Trademark Office in an inter partes review.  TrustID, Inc. v. Next Caller Inc., Slip. Op. (D. Del. July 6, 2021).  The Court determined that plaintiff was not collaterally estopped.

On June 30, 2021, the Court of Appeals for the Federal Circuit (CAFC) granted petitions for writs of mandamus ordering the United States District Court for the Western District of Texas to transfer the underlying actions to the Northern District of California.  In re Samsung Elecs. Co., LTD, __ F.3d __ (Fed. Cir. June 30, 2021).

On June 21, 2021, the United States District Court for the Southern District of California awarded defendants’ fees and costs pursuant to 35 U.S. Code § 285 for work performed in defending against claims of patent infringement in district court, and more significantly, also awarded defendants’ fees and costs for a related appeal, the related Covered Business Method (“CBM”) proceedings, and an appeal of the CBM proceedings.  Ameranth, Inc. v. Domino's Pizza, LLC et. al., 3-12-cv-00733.

On June 7, 2021, Judge Christina A. Snyder of the United States District Court for the Central District of California granted defendant’s motion to dismiss plaintiff’s complaint for lack of personal jurisdiction.  Trustee of the Summers Family Trust TA Neak Products Buff WA Pty, Ltd v. National Distribution Warehouse, Inc. d/b/a Teacher's Choice, case no. 2:20-cv-10741-CAS-Ex.  Judge Snyder specifically found that plaintiff had not carried its burden to establish purposeful direction targeted at California or a nexus to a forum-related activity.

On June 1, 2021, the United States Court of Appeals for the Federal Circuit (“CAFC”) vacated-in-part and remanded a ruling from the U.S. District Court for the District of Columbia related to prosecution laches.  Hyatt v. Hirshfeld, --- F.3d --- (Fed. Cir. June 1, 2021).  The CAFC determined that the appellant, U.S. Patent and Trademark Office (“PTO”), met its burden to prove prosecution laches, and remanded to the district court to determine whether appellee Gilbert Hyatt had a legitimate reason to excuse his prosecution delay.

On May 21, 2021, Judge Alan D. Albright of the United States District Court for the Western District of Texas granted a motion to transfer venue under 28 U.S.C. § 1404.  10Tales, Inc. v. TikTok Inc., Case No. 6:20-cv-00810-ADA (W.D. Tex. May 21, 2021).  The Court found that, under Fifth Circuit precedent, the Northern District of California was a “clearly more convenient” forum.

On May 12, 2021, the Court of Appeals for the Federal Circuit (CAFC) issued an opinion reversing the decision of the U.S. District Court for the Northern District of California dismissing, for lack of personal jurisdiction, a declaratory judgment noninfringement action. Trimble Inc. v. PerDiemCo LLC, __ F.3d __ (Fed. Cir. May 12, 2021).

On May 11, 2021, the United States Court of Appeals for the Federal Circuit (“CAFC”) issued an opinion affirming a judgement of the United States District Court for the District of Delaware finding all asserted claims of appellant’s patents on DNA-sequencing technology invalid and denying appellant’s motion for a new trial.  Pac. Biosciences of Cal., Inc. v. Oxford Nanopore Techs., Inc., __ F.3d __ (Fed. Cir. May 11, 2021).  In its decision, the CAFC upheld a jury verdict finding the asserted claims invalid under 35 U.S.C. § 112 for lack of enablement, and affirmed the district court’s decision that appellee’s opening statement respecting the impact of the trial on the fight against Covid-19 did not warrant a new trial.

On May 5, 2021, the Court of Appeals for the Federal Circuit (CAFC) upheld a decision of the United States District Court for the Central District of California setting aside a judgment and injunction pursuant to Federal Rule of Civil Procedure 60(b)(3).  Cap Export, LLC v. Zinus, Inc., ___ F.3d ___, (Fed. Cir. May 5, 2021).  The CAFC found that the district court did not abuse its discretion in granting a motion to vacate the judgment under Rule 60(b)(3) where the patentee’s president and expert witness misrepresented his knowledge of highly material prior art in his deposition.

On April 22, 2021, the United States District Court for the Eastern District of Texas granted defendants’ motion opposing enhanced damages under 35 U.S.C. § 284.  Wapp Tech Ltd. Partnership v. Seattle Spinco, Inc., No. 4:18-cv-469 (E.D. Tex. Apr. 22, 2021).  The Court found plaintiffs’ argument that defendants did not present a good faith defense unpersuasive, and instead ruled that the case “was a ‘garden-variety’ patent case, rather than an egregious case of misconduct.”

On April 20, 2021, the United States Court of Appeals for the Federal Circuit (“CAFC”) issued an order granting a petition for a writ of mandamus directing Judge Alan D. Albright of the U.S. District Court for the Western District of Texas (“WDTX”) to transfer a case to the U.S. District Court for the Southern District of Florida (“SDFL”), pursuant to 28 U.S.C. § 1404(a).  In re TracFone Wireless, Inc., __ F. App’x __ (Fed. Cir. April 20, 2021).  The CAFC found that Judge Albright clearly abused his discretion when, in denying TracFone’s motion to transfer, he found that SDFL was not a clearly more convenient forum to litigate the case between the parties. 

On April 13, 2021, the Court of Appeals for the Federal Circuit (CAFC) issued an opinion affirming the decision of the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB), finding that the claims of the challenged patent had not been proved obvious because the petition for inter partes review (IPR) failed to show that there would have been a motivation to combine the two allegedly invalidating prior art references.  Apple Inc. v. INVT SPE LLC, —F.3d — (Fed. Cir. Apr. 13, 2021).

On April 5, 2021, the Supreme Court of the United States issued an opinion reversing a decision by the Court of Appeals for the Federal Circuit (CAFC) that had found Google liable for copying elements of Oracle’s Java computer code.  Google LLC v. Oracle Inc., No. 18-956, 593 U.S. ____ (2021).  According to the Court, Google’s copying, which was limited to only those lines of code needed to enable Java programmers to create new and transformative programs, was a fair use as a matter of law.

On March 25, 2021, the U.S. Court of Appeals for the Federal Circuit (“CAFC”) issued an opinion affirming a ruling of the Patent Trial and Appeal Board (“PTAB”) finding patent claims directed to methods of interpreting genetic data to be patent ineligible.  In re Bd. of Trs. of the Leland Stanford Junior Univ., --- F.3d --- (Fed. Cir. Mar. 25, 2021).  The CAFC found that the rejected claims are drawn to patent-ineligible abstract mathematical calculations and statistical modeling, and that the claim limitations do not establish an inventive concept sufficient to transform such subject matter into patentable subject matter.

On March 11, 2021, Judge Alan D. Albright of the United States District Court for the Western District of Texas denied defendant’s motion to dismiss for improper venue or to transfer pursuant to 28 U.S.C. § 1404.  Precis Group, LLC, v. Tracfone Wireless, Inc., 6-20-CV-00303 (W.D. Tex. Mar. 11, 2021).  The Court found that a retail store operating in the district under an assumed name was defendant’s established place of business, and therefore sufficient to establish venue.
 

On March 9, 2021, the United States Court of Appeals for the Federal Circuit (“CAFC”) issued an opinion affirming estoppel and obviousness rulings by the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (“PTAB”).  Uniloc 2017 LLC v. Facebook Inc., ___ F.3d ___ (Fed. Cir. March 9, 2021).  The CAFC ruled that it had jurisdiction to review the PTAB’s decision as to estoppel related to the inter partes review (“IPR”) estoppel provision of Section 315(e)(1).  The CAFC further ruled that a joined party to a first IPR was not barred from maintaining review of claims that the primary challenger became estopped from challenging based on a decision in a second IPR to which the challenger was joined.
 

On March 2, 2021, the Court of Appeals for the Federal Circuit (CAFC) issued an opinion reversing the district court’s conclusion that a claim was not invalid as indefinite.  Rain Computing, Inc. v. Samsung Elecs., Am., Inc., __ F.3d __ (Fed. Cir. Mar. 2, 2021).  The CAFC held that the claim term, “user identification module,” was a means-plus-function limitation under 35 U.S.C. § 112 ¶ 6, and invalid as indefinite for failure to disclose corresponding structure (here, an algorithm).
 

On February 24, 2021, the Court of Appeals for the Federal Circuit (CAFC) issued an opinion affirming the obviousness decision of the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB). Daikin Indus., LTD v. The Chemours Co. FC, LLC, __ F.3d __ (Fed. Cir. Feb. 24, 2021).  The CAFC found that the petition for inter partes review (IPR) properly set forth a substitution-based theory of obviousness and that the PTAB’s substitution analysis was supported by substantial evidence.
 

On February 10, 2021, the Court of Appeals for the Federal Circuit (“CAFC”) issued an opinion affirming a decision by the United States District Court for the District of Delaware, invalidating all asserted claims of appellant’s four related patents under 35 U.S.C. § 112.  Infinity Computer Products v. Oki Data Americas Inc., __ F.3d __ (Fed. Cir. Feb. 10, 2021).  In its decision, the CAFC ruled that the asserted claims were rendered indefinite by conflicting statements made by appellant during prosecution of the asserted patents.
 

On January 28, 2021, the U.S. District Court for the Northern District of California (NDCA) issued an order granting summary judgment of noninfringement under the doctrine of equivalents.  Fluidigm Corp. v. IONpath, Inc., Case No. 3:19-cv-05639-WHA, Dkt. No. 210 (N.D. Cal. Jan. 28, 2021).  The NDCA found that the patentee “abdicated” its burden under the doctrine of equivalents by refusing to engage in the hypothetical claim analysis required under defendant’s ensnarement defense.
 

On January 21, 2021, the United States District Court for the Western District of Pennsylvania adopted the report and recommendation of the special master recommending the court grant defendant’s motion to exclude options set forth in an expert report prepared on behalf of patentee-plaintiff, because those opinions were contradicted by patentee-plaintiff’s statements to the patent office made during reexamination of the at-issue patent.
 

On January 6, 2021, Judge James V. Selna of the United States District Court for the Central District of California granted, in part, defendant Feit Electric Co., Inc.’s (“Feit”) motion for partial summary judgment related to plaintiff Zadro Prods, Inc.’s (“Zadro”) alleged failure to properly mark certain products.  Zadro Prods, Inc. v. Feit Electric Co., Inc., Case No. SACV-20-101-JVS (C.D. Cal. Jan. 6, 2021).  Judge Selna found that:  (1) Zadro’s alleged failure to disclose that it marked its products in a discovery response was not grounds for summary judgment; (2) an issue of material fact remained as to whether Zadro’s products practiced one of the patents in suit; and (3) Zadro’s marking of the packaging of its products which practiced one of the patents in suit (rather than the products themselves) was insufficient under 35 U.S.C § 287.
 

On January 9, 2021, Judge Alsup of the U.S. District Court for the Northern District of California granted, in part, a request for attorneys’ fees to the prevailing defendant.  Finjan, Inc. v. Juniper Network, Inc., case no. C 17-05659 (N.D. Cal. Jan. 9, 2021).  Judge Alsup found that plaintiff’s case stood out as exceptional in certain respects and, accordingly, issued a limited award for attorneys’ fees under 35 U.S.C. § 285.
 

On December 14, 2020, the Court of Appeals for the Federal Circuit (CAFC) affirmed a decision by the United States District Court for the Central District of California holding all asserted claims of appellant’s ’305 patent ineligible under 35 U.S.C. § 101.  Adaptive Streaming Inc. v. Netflix, Inc., __ F.3d __ (Fed. Cir. December 14, 2020).  The CAFC concluded that the district court correctly found that the claims were directed to an abstract idea and lacked any inventive concept, and that dismissal of appellant’s complaint under Rule 12(b)(6) was proper.
 

On December 8, 2020, the U.S. District Court for the Eastern District of Texas (EDTX) unsealed its November 30, 2020, order granting dismissal without prejudice for lack of personal jurisdiction.  TriOptima AB v. Quantile Techs. Ltd., Case No. 2:19-cv-00390-JRG, Dkt. No. 154 (E.D. Tex. Dec. 8, 2020); TriOptima AB v. Quantile Techs. Ltd., Case No. 2:19-cv-00390-JRG, Dkt. No. 149 (E.D. Tex. Nov. 30, 2020).  The EDTX found that the United Kingdom-based defendant was not subjected to specific personal jurisdiction in Texas by providing financial services that can affect Texas interests through a secure customer portal website.
 

On December 1, 2020, the United States District Court for the Northern District of Illinois issued an opinion denying plaintiff Abbott Laboratories’ motion to dismiss infringement counterclaims brought by defendants Grifols Diagnostic Solutions Inc., Grifols Worldwide Operations Ltd., and Novartis Vaccines and Diagnostics, Inc.  Abbott brought a declaratory judgment action against defendants asserting that U.S. Patent No. 7,205,101 (“the ’101 patent”) is invalid.  Defendants filed a counterclaim asserting that Abbott infringes claim 7 of the ’101 patent.  Abbott moved to dismiss the counterclaim on the basis that claim 7 is invalid as a matter of law under 35 U.S.C. § 101 because it is directed to a patent-ineligible natural phenomenon.
 

On November 18, 2020, the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB) denied institution of a petition for inter partes review (IPR).  Google LLC v. EcoFactor Inc., case no. IPR2020-00946 (PTAB Nov. 18, 2020).  In its decision, the PTAB exercised its discretion under 35 U.S.C. § 314(a) to deny institution because of a co-pending investigation before the International Trade Commission (ITC) involving the challenged patent.
 

On November 10, 2020, the United States Court of Appeals for the Federal Circuit (“CAFC”) issued an opinion reversing-in-part the invalidity judgment of the United States District Court for the District of Delaware, as it pertained to patent eligibility, and vacating its remaining infringement, willfulness, and prior art invalidity findings.  C.R. Bard Inc. et al. v. Angiodynamics, Inc., __ F.3d __ (Fed. Cir. Nov. 10, 2020).