Ciena Corp. v. Oyster Optics, LLC, Appeal No. 2019-2117 (Fed. Cir., May 5, 2020).

On January 28, 2020, the Federal Circuit issued a non-precedential order that denied IPR petitioner Ciena’s motion to have a judgment vacated and remanded under Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019). The order was made precedential on May 5, 2020.

Ciena was unsuccessful in its challenge to Oyster’s U.S. Patent No. 8,913,898, which is related to a transceiver card for a telecommunication box. Ciena filed an appeal, and moved for a vacatur and remand.

The Federal Circuit denied Ciena’s motion on the grounds that Ciena waived or forfeited an Arthrex Appointments Clause challenge because Ciena consented to the jurisdiction of the PTAB. Slip op. at 6-7. The Federal Circuit stated that although it had the ability to “forgive waiver or forfeiture,” such forgiveness is discretionary and should only rarely be done. Id. at 6.   The Federal Circuit chose not to forgive and denied the motion.