Nothing Unusual With Recusal Refusal

Written by: Jacob R. Rosenbaum and Henry P. FitzGerald

Centripetal Networks, LLC, v. Palo Alto Networks, Inc.

Before Moore, Hughes, and Cunningham. Appeal from the Patent Trial and Appeal Board.

Summary: Despite affirming the denial of Centripetal’s recusal motion as untimely and frivolous and rejecting other arguments, the Federal Circuit vacated and remanded the Board’s final written decision for failing to properly consider evidence of copying.

Palo Alto Networks petitioned for IPR of Centripetal’s patent. A three-judge panel including APJ McNamara instituted inter partes review. Centripetal requested rehearing of the institution, and Cisco later filed its own petition for IPR and sought joinder. Due to Cisco’s request for Joinder, Centripetal became aware that McNamara owned Cisco stock. After the Precedential Opinion Panel declined to take up Centripetal’s rehearing request, Centripetal filed a motion for recusal of the entire panel and vacatur of the institution decision. The panel granted Cisco’s IPR and joinder. Although the panel concluded that the recusal motion was frivolous and untimely, McNamara and one other APJ withdrew from the panel. After two new APJs were assigned, the new panel denied the motion for vacatur and issued a final written decision holding specific claims of the patent obvious without McNamara’s input. Centripetal appealed.

On appeal, the Federal Circuit held that the Board did not abuse its discretion in holding that the recusal motion was untimely because Centripetal knew of the alleged conflict of interest for over three months before raising it close to a deadline. The Federal Circuit also held that Centripetal’s other arguments failed on the merits. In particular, McNamara’s stock fell below the threshold for recusal at the time of empaneling, the Board’s denial of Centripetal’s arguments as frivolous did not deny Centripetal its due process rights, and recusal would not have mandated vacatur.

However, the Federal Circuit held that the Board erred because it did not properly consider evidence of copying in the final written decision. Accordingly, the Federal Circuit vacated and remanded the board’s decision to conduct a proper analysis of copying.

Editor: Sean Murray