Enzo – Based upon incorrect claim construction, a divided panel reverses a judgment of infringement and validity, causing plaintiffs Enzo and Yale University to forfeit a $61 million judgment based upon infringement of a patent directed to labeling and detecting DNA.

MobileMedia – This appeal involves four MobileMedia patents directed to features allegedly included in some of Apple’s iPhone and laptop products. The ‘078 and ‘068 patents were found to be infringed and not invalid. The Circuit reverses the judgment as to infringement but affirms the judgment as to validity. The ‘075 and ‘231 patents were determined not to be infringed and were invalid. On appeal the panel vacates the decision of non-infringement due to faulty claim construction but affirms the judgment as to invalidity.

Two-Way – AT&T failed to file a timely notice of appeal following the denial of its post-trial motions. The district court denied AT&T’s motion to extend the appeal period under Fed. R. App. P. (a) (5), despite AT&T’s argument of excusable neglect or good cause because the headings of the electronic notices were not complete. AT&T also argued under Rule 4(a)(6) that it did not receive notice of the judgment, but that motion was also denied. Applying an abuse of discretion standard, a divided panel affirms the denial of the motions, noting that counsel could have easily read the substance of the notices and seen that judgment had been entered.

Enzo Biochem Inc. v. Applera Corp., Fed. Cir. Case 2014-1321 (March 16, 2015)

The patent in suit is directed to the use of probes that allow a scientist to detect, monitor, localize, or isolate nucleic acids when present in extremely small quantities, as is necessary for the sequencing of DNA. Because the claim was construed in such a manner that no additional steps are required to detect the pertinent compound other than those claimed, the compound can be directly detected. This is in contrast to a claim construction that would limit the claim to indirect detection by requiring that another compound be added to “A” in order for it to be detectable. Thus, the district court’s construction allowed for both direct and indirect detection of the claimed compound.

The case proceeded to a jury trial, where the jury found that the asserted claims were infringed and that the ‘767 patent was not invalid for lack of written description and enablement. The district court then denied Applera’s post-trial motions.

Standard of Review

While the ultimate construction of a claim term is a legal question reviewed de novo, underlying factual determinations made by the district court are reviewed for clear error. Teva Pharm. USA, Inc. v. Sandoz, Inc., 2015 WL 232131, at *11 (U.S. Jan. 20, 2015). Specifically, “when the district court reviews only evidence intrinsic to the patent …, the judge’s determination will amount solely to a determination of law, and the Court of Appeals will review that construction de novo.” However, when the district court looks beyond the intrinsic evidence and consults extrinsic evidence, for example to understand the relevant science, these subsidiary fact findings are reviewed for clear error. Id.

Claim Construction

To the extent possible, “the words of a claim are generally given their ordinary and customary meaning.” Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc). “Because the meaning of a claim term as understood by persons of skill in the art is often not immediately apparent, and because patentees frequently use terms idiosyncratically,” the court also looks to “the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art.” Id. However, when doing so the court must stay ever vigilant to avoid reading limitations from the specification into the claim. Id.

Claim 1 of the ‘767 patent states that “A” “comprises at least three carbon atoms and represents at least one component of a signaling moiety capable of producing a detectable signal” and is attached to “B” so that it “does not substantially interfere with formation of the signalling moiety.”. First, the phrase “at least one component of a signalling moiety” indicates that the signalling moiety is composed of multiple parts as the term “component” in and of itself indicates a multipart system. Thus, construing the phrase to allow for a single-component system, as the district court did here, would read out the phrase “component of a signalling moiety” and would thus impermissibly broaden the claim.

Second, the claim language requires that “A” be attached either directly or through a linkage group that “does not substantially interfere with formation of the signalling moiety.” The plain reading of this phrase is that “A” cannot be the whole signalling moiety, as the claimed compound does not include a formed signalling moiety. In other words, if “A” alone could be the signalling moiety, as the district court found, the requirement that “A” not interfere with the formation of the signalling moiety would be read out of the claim, as the signalling moiety would be formed by the sole presence of “A.”

Enzo urges that the panel should hold that the inventors’ inclusion of the term “at least one of” allows for both direct and indirect detection. Specifically, Enzo argues that patentees use open-ended language, such as “at least one,” to encompass multiple embodiments. But here, according to the majority, the dispute is whether “A” can comprise the entirety of “a signalling moiety” despite the claim language that “A” is a “component of a signalling moiety.”

The majority found that the specification provides additional support that claim 1 covers only indirect detection. At oral argument, Enzo was asked to point the court to a location in the specification that supports its proposed claim construction, but was not able to do so. Instead, Enzo argued that extrinsic expert testimony supported its position. However, the majority disagrees, concluding that the specification does not support the inclusion of direct detection, even when extrinsic expert testimony is considered.

The majority notes that the Circuit has long recognized the “distinction between using the specification to interpret the meaning of a claim and importing limitations from the specification into the claim can be a difficult one to apply in practice.” Phillips, 415 F.3d at 1323. Here, we are using the specification to more fully understand what the patentee claimed. Throughout the ‘767 patent, the inventors repeatedly emphasized that “A” in combination with other chemicals, forms a signalling moiety not that “A” itself can be a signalling moiety. Therefore, the majority is persuaded that the inventors were claiming only indirect detection.

The district court concluded, based on expert testimony, that example 9 in the specification was an example of direct detection; however, this argument was not raised by Enzo either in its briefing on appeal or during oral argument. Nevertheless, even if we were to consider the district court’s finding, which would be subject to review for clear error under Teva, this sole factual finding does not override our analysis of the totality of the specification, which clearly indicates that the purpose of this invention was directed towards indirect detection, not direct detection.

The district court additionally relied upon claim differentiation to support its finding that the claims at issue cover both direct and indirect detection. However, dependent claims cannot broaden an independent claim from which they depend. Thus, as claim 1 is limited to indirect detection by its own plain meaning, it would be inappropriate to use the doctrine of claim differentiation to broaden claim 1 to include a limitation imported from a dependent claim, such as direct detection.

Judge Newman’s Dissent

My colleagues hold that the clause “at least one component of a signaling moiety” requires, as a matter of linguistics, “that the signalling moiety is composed of multiple parts as the term ‘component’ in and of itself indicates a multipart system.” Thus the panel majority concludes that A can never “include, in some instances, the whole signaling moiety,” contrary to the district court’s holding.

My colleagues err. The rules of grammar and linguistics, even in legal documents, do not establish that “at least one” means two or more. Also, precedent has spoken on this point and is directly contrary. See Howmedica Osteonics Corp. v. Wright Med. Tech., Inc., 540 F.3d 1337 (Fed. Cir. 2008) (stating that “at least one” means “one or more”).

The district court construed “at least one” in accordance with not only grammatical logic, but also with the intrinsic record and the extrinsic evidence. The district court found that the specification includes a specific example of direct detection, citing the expert evidence.

In Teva, the Court established that, when construing claims, appropriate deference must be given to the findings of the district court. The district court received some conflicting testimony, along with concessions on cross examination, from which the court concluded that “at least one component” may include “the whole signaling moiety.” My colleagues show error of neither fact nor law in the court’s findings and conclusions. From the panel majority’s contrary ruling, I respectfully dissent.

Comments : It seems that the majority properly followed Teva’s requirement that extrinsic evidence be reviewed for clear error. The majority deferred to the district court’s evaluation of the extrinsic evidence but found that sole factual finding does not override the analysis of the specification which, of course, under Phillips, is supposed to control. This treatment can be contrasted with Judge Newman’s citation of Teva for the proposition that “appropriate deference is to be given to the findings of the district court.” Of course, Teva tells us that deference is to be accorded the district court only as to extrinsic and not intrinsic evidence.

MobileMedia Ideas LLC v. Apple Inc., Fed. Cir. Case 2014-1060, 1091 (March 17, 2015)


A. The ‘078 patent (camera phone)

The ‘078 patent is directed to a “small-sized, portable and hand-held work station,” such as a notebook computer, that includes a camera unit, a data processing unit, a display, a user interface, and at least one memory unit. Although the invention is described throughout the specification as a “notebook computer,” the specification also contemplates that the device “may also be a radiotelephone.”

1. Invalidity

Apple contends that the district court erred by denying its JMOL motion that the ‘078 patent is invalid as obvious over two references: Japanese patent application publication no. H6-133081 (Kyocera) and U.S. Patent No. 5,550,646 (Lucent). On appeal, Apple argues that the combination of the Kyocera and Lucent references is merely the predictable use of prior art elements according to their established functions, and therefore would have been obvious. The existence of a motivation to combine the Kyocera and Lucent references was contested by the parties at trial. Thus, while Apple may have presented some evidence to support its position that a skilled artisan would have been motivated to combine Kyocera with Lucent, this alone does not demonstrate that the jury’s verdict was unsupported by substantial evidence.

As the Supreme Court noted in KSR, even when a technique has been used to improve a device, and a skilled artisan would recognize that it could improve other devices in the same way, using that technique may not be obvious if its actual application is beyond his or her level of skill. Here, MobileMedia’s expert testified that integrating the Lucent microprocessor to control the camera of the Kyocera mobile phone in the manner required by the asserted claims would be beyond the technical ability of a skilled artisan. This provided the jury with a reasonable basis for finding that the claimed invention would not have been obvious to one of ordinary skill in the art at the relevant timeframe. Although Apple’s expert offered a differing opinion, when there is conflicting testimony at trial, and the evidence overall does not make only one finding on the point reasonable, the jury is permitted to make credibility determinations and believe the witness it considers more trustworthy. Consequently, the district court did not err by denying Apple’s motion for JMOL of invalidity.

2. Non-infringement

Apple contends that the court erred in construing two means-plus-function limitations in claim 73. Apple contends that the jury’s finding of infringement was based on these erroneous constructions, and that when construed correctly, no reasonable jury could find that Apple’s accused iPhones infringe claim 73 of the ‘078 patent.

Both parties agree that claim 73 includes two limitations that invoke 35 U.S.C. § 112 ¶ 6: a “means . . . for transmitting image information” and a “means for processing and for storing” this image information. Both parties also agree that the “image information” processed and transmitted by the two “means” must be obtained from the camera unit.

We review the district court’s claim construction here de novo because it relied only on evidence intrinsic to the ‘078 patent. See Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015). Under 35 U.S.C. § 112 ¶ 6, a means-plus-function claim “shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.” A disclosed structure is a “corresponding structure” only if the specification or prosecution history clearly links or associates that structure to the function recited in the claim.

The specification clearly links two structures to the claimed means for performing the function of processing and storing image information obtained by the camera for later recall: “microprocessor 23” and “memory unit 24,” the processor and memory units within the camera unit. Nowhere in the specification is the claimed function of processing and storing an image captured by the camera unit performed by the device’s separate “processor 4” or system-level “memory unit 13.” In addition, the specification does not suggest that the camera unit’s processor and memory perform functions beyond the processing and storing of image information for later recall. Indeed, the specification indicates that software for controlling the notebook computer’s other functionality—telephone and facsimile services, e-mail, SMS, and calendar programs resides in the system-level “memory unit 13,” not the camera unit’s “memory unit 24.”

MobileMedia’s contention that the specification does not expressly limit the function of the camera unit’s microprocessor and memory to processing and storing image information for later recall does not justify the district court’s construction, which erroneously expands the scope of the “means for processing and storing” to include any image processing unit or memory unit. Therefore, we reverse the district court’s judgment that Apple infringes claim 73 of the ‘078 patent. We need not reach Apple’s alternative non-infringement argument that the district court erred in its construction of the “means . . . for transmitting” limitation in claim 73.

B. The ‘068 patent (call handling)

The ‘068 patent is directed to the display of call handling options in a menu on a mobile phone’s display screen. Examples of call handling options include “hold” and “disconnect.” Claim 23 recites a method requiring (i) a mobile phone to display call handling options on a menu screen, (ii) the user to select one of these options, and (iii) the mobile phone to execute the call handling option selected by the user. Claim 24 of the ‘068 patent is identical to claim 23 for most of its limitations, except that it requires the “processing items” to be displayed in response to “a predetermined selection operation” instead of “ only a single predetermined selection operation.”

We turn first to Apple’s JMOL motion of invalidity. Although the district court granted Apple’s motion in part, finding that no reasonable jury could conclude that claim 24 of the ‘068 patent was not invalid as anticipated by U.S. Patent No. 5,754,636 (Bayless), the district court denied Apple’s motion as to claim 23, rejecting Apple’s argument that claim 23 is anticipated by or rendered obvious over the same reference. Apple contends that the district court erred as to claim 23.

Bayless discloses a telecommunications system that allows users to make and receive phone calls from a computer. Apple contends that the unrebutted testimony at trial demonstrated that using one key instead of two keys to activate a window was well within the common knowledge of those with skill in the art. For example, Apple’s expert explained that in the industry, an “operation” would have been understood to include “one or more physical keys that result in a single action,” such as to bring up and display Bayless’ “Make & Answer Calls” window. Apple’s expert further explained that a skilled artisan “would know that [the “Hotkey” operation of Bayless] does not have to be two keys,” and that the “Hotkey” could easily be programmed as a single key.

While Apple’s expert provided specific reasons why a skilled artisan would have found claim 23 to be obvious in view of Bayless and common knowledge possessed by those of skill in the art, MobileMedia’s expert provided only testimony unrelated to the actual limitations of claim 23. In short, there is no substantial evidence to support a conclusion that a skilled artisan would not have found it obvious to take the straightforward and commonsensical step to configure the Bayless “Hotkey” to display the “Make & Answer Calls” window after the press of one key instead of two keys. Thus, the district court erred by denying Apple’s motion for JMOL of invalidity and we therefore reverse the district court’s judgment that claim 23 of the ‘068 patent is not invalid. We need not reach Apple’s argument that its accused iPhones do not infringe the “listing said processing items” limitation of claim 23.


A. The ‘075 patent (call rejection)

The ‘075 patent describes a method for allowing a user to reject an incoming call when the user is already active on another call. In particular, the ‘075 patent describes a cell phone that allows a user, by pressing a key, to reject the incoming call. According to the ‘075 patent, pressing this key sends a “rejection message” to the applicable cell tower, indicating that the mobile telecommunications network should immediately release (i.e., drop) the second incoming call because the receiving phone is “unavailab[le].”

The district court granted Apple’s motion for summary judgment of non-infringement in part. It found that in the normal case, there was no genuine dispute that Apple’s iPhones did not meet the “immediately release” limitation of the asserted claims. The district court determined, however, that there was still a question of fact as to whether the accused iPhones infringed under the GSM 24.008 protocol’s “abnormal case.”

Apple also filed a motion for summary judgment of invalidity based on obviousness, relying on disclosures in two different sections of prior versions of the same protocols in the GSM standard that MobileMedia relied on for evidence of infringement. The district court agreed that MobileMedia had not raised any genuine dispute that GSM 04.83 and GSM 04.08 disclose all limitations of the ‘075 patent’s asserted claims. The district court, however, denied Apple’s summary judgment motion of invalidity because it found that a genuine dispute of material fact existed as to whether a person having ordinary skill in the art would have been motivated to combine the two protocols in the GSM standard to arrive at the asserted claims. At trial, the jury found that Apple’s accused iPhones infringed the asserted claims of the ‘075 patent under the “abnormal” case described in GSM 24.008, § The jury also found that the asserted claims of the ‘075 patent were not invalid. The district court, however, granted Apple’s renewed motion for JMOL as to non-infringement and invalidity for obviousness. In its cross-appeal, MobileMedia contends that the district court erred in granting Apple’s JMOL motions because substantial evidence supports the jury’s verdict of both infringement and non-obviousness.

We turn first to the district court’s grant of Apple’s JMOL motion of invalidity, which we review de novo. The district court found that Apple’s expert provided several reasons that a skilled artisan would have combined the two relevant protocols of the GSM standard. In contrast, MobileMedia’s expert testified that a person having ordinary skill in the art would have been discouraged from using GSM 04.08 to implement the rejection of an incoming call in a call waiting context because GSM 04.08 only describes how to handle a single call, not multiple calls. The district court found, however, that this testimony could only support a jury verdict that the GSM 04.08 protocol in isolation did not render the asserted claims anticipated or obvious. As to whether a skilled artisan, in view of both the GSM 04.08 and GSM 04.83 protocols in the GSM standard, would have been motivated to combine them, the district court noted that MobileMedia’s expert offered only conclusory testimony that “[GSM 04.83] is small, [GSM 04.08] is big.” But as the district court found, the fact that one protocol is “big” and one protocol is “small” in terms of its number of pages provides no counter to the testimony of Apple’s expert that it would have been obvious to a person of ordinary skill in the art to consult both GSM protocols to implement the claimed call waiting functionality by following the express references to GSM 04.08 within GSM 04.83 and using the detailed table of contents in GSM 04.08 to locate the relevant “Call indication” and “Call confirmation” sections within that document.

The district court, however, correctly found that this testimony again failed to consider that the skilled artisan would be aware of both the GSM 04.08 and GSM 04.83 protocols. The trial record shows that MobileMedia sought testimony from its expert only on “the ability of [GSM] 04.08 to be used to reject [a] second call.” Thus, MobileMedia’s expert testified merely that a skilled artisan looking at this “cause value” would have “been discouraged from using this document [GSM 04.08]” and would have been “discouraged [after] looking at the document [GSM 04.08] and finding no help” for implementing the claimed invention. As the district court found, “MobileMedia’s validity theories did not address the fact that one of ordinary skill also knew the contents of GSM 04.83 and could start there.”

On the basis of these findings, the district court concluded that even when resolving all disputed facts in MobileMedia’s favor, no reasonable jury could conclude that the asserted claims of the ‘075 patent are not invalid as obvious over the GSM 04.08 and GSM 04.83 protocols in the GSM standard. After careful examination of the record, we agree with the district court’s finding that no substantial evidence supports a determination that one of ordinary skill in the art would not have been motivated to combine §§ 1.1 and 1.3 of GSM 04.83 and § 5.2.2 of GSM 04.08. Similarly, we find no error in the district court’s ultimate conclusion that no reasonable jury could conclude that claims 5, 6, and 10 of the ‘075 patent are not invalid as obvious in view of those two protocols in the GSM standard.

B. The ‘231 patent (call alerts)

The ‘231 patent discloses a communication device, such as a mobile phone, that permits a user to stop a ringtone alert for an incoming call without notifying the caller. According to the ‘231 patent, when a user received an unwanted call, the prior art provided several options for silencing the ringtone triggered by receipt of that call: (i) answering but then quickly “hanging up,” thus “forcibly disconnecting” the call, or (ii) turning off the phone. Forcibly disconnecting the call, however, left the caller with “an unpleasant feeling” because the caller “could notice that the circuit was broken off intentionally.” Turning off the phone was not preferable because the user could forget to turn the phone on again, “possibly missing the next incoming call.” The ‘231 patent provides several alternatives to silence a ringtone without these drawbacks.

Relevant to MobileMedia’s cross-appeal, the district court construed the term “ to change a volume of the generated alert sound” in claim 12 as “to alter the degree of loudness of the alert sound that is being generated without cutting off the telephone circuit.” Further, the district court interpreted the “ stopping the sound” limitation in dependent claim 2 as not encompassed by the “changing a volume” limitation in independent claim 12. Thus, rather than narrowing the scope of claim 12’s “change a volume” limitation, the district court appears to have interpreted dependent claim 2’s “stop the sound” limitation as providing an additional, separate function to the claimed communication terminal recited in independent claim 12. In support of its construction, the district court reasoned that “changing a volume” and “stopping the sound” were described in the specification as “alternatives, not interchangeable terms.”

Because the district court’s construction relies only on intrinsic evidence, we review its construction de novo. Teva, 135 S. Ct. at 841. Neither party disputes that the “control means” invokes 35 U.S.C. § 112 ¶ 6. Thus, this means-plus-function limitation covers the corresponding structure described in the specification for performing the claimed function, and equivalents thereof. The language of the claims indicates that the function performed by the “control means” is “controlling the alert sound generator to change a volume of the generated alert sound.” The only structure disclosed in the specification for performing this claimed function is the phone’s CPU and alert sound generator on/off controller. In response to depression of the phone’s power key, the specification indicates that the CPU and on/off controller can “stop the generation of the alert sound.” As an alternative, the specification indicates that depression of the power key can instead result in the “volume of an alert sound [being] reduced.” Neither party has identified anything in the prosecution history or extrinsic evidence that would suggest otherwise.

Apple contends that dependent claim 2 does not explicitly tie the “stop the sound” limitation to the “change a volume” limitation in claim 12. In essence, Apple defends the district court’s construction on the ground that it is possible to construe claim 12 and claim 2 in a manner such that “stopping the sound” and “changing a volume” are mutually exclusive. Apple speculates that a device could practice both by “dialing down the audio level to alter the degree of loudness . . . and then stopping the generation of the sound.” Apple, however, provides no support in the specification or prosecution history for its example. Regardless, Apple’s construction ignores that claim 2 ties “stop[ping] the sound” to the control means—the CPU and alert sound on/off controller. And as discussed supra, the specification describes this control means structure as stopping or reducing the volume of the alert sound.

Finally, Apple contends that MobileMedia seeks to improperly use the doctrine of claim differentiation in order to broaden the scope of independent claim 12 beyond what is supported by the specification. While we agree with Apple that “the dependent claim tail cannot wag the independent claim dog,” no such concern is present here. Rather, it is Apple that urges us to affirm a claim construction that would exclude a preferred embodiment of the invention disclosed in the specification. Such a construction is rarely correct without any persuasive evidentiary support. Consistent with the specification, “controlling the alert sound generator to change a volume of the generated alert sound” by the “control means” encompasses both stopping and reducing the volume of the alert sound as recited in dependent claims 2 and 3, respectively. Because the district court’s grant of Apple’s motion for summary judgment of non-infringement of claims 2-4 and 12 of the ‘231 patent was based on an erroneous construction, we vacate the district court’s grant of this motion and remand to the district court for further proceedings.

Two-Way Media LLC v. AT&T Inc. , Fed. Cir. Case 2014-1302 (March 19, 2015)


Two-Way Media obtained a judgment of patent infringement in the W.D. of Texas. Final judgment reflecting the jury’s verdict was entered on October 7, 2013. Three days prior to such entry, AT&T timely filed four motions for renewed JMOL or a new trial. These filings stayed the running of the time within which AT&T was required to file any notice of appeal from the final judgment. Because three of the four JMOL motions were confidential, AT&T moved to file those under seal. On November 22 the court denied the motions and granted TWM’s request for costs, entering judgment against AT&T on all pending claims. When the court docketed those denials, it labeled the three orders addressing the confidential motions as orders granting the motions to seal, not indicating that the same orders denied the relief sought in the underlying motions. Counsel received notice of electronic filings (“NEFs”) for each of those orders labeled “ORDER GRANTING Motion For Leave to File Sealed Document.” The underlying orders, which could be accessed by clicking on the hyperlink in the NEFs, denied the merits of AT&T’s JMOL motions. At the same time, the court docketed its order denying the fourth, nonconfidential JMOL. And, the court docketed its order on TWM’s Bill of Costs. Both of these were included and properly identified in the November 22 NEFs to the parties. On November 25, the court updated the description of the orders on the docket, but did not send new NEFs to the parties.

On January 15, 2014, after the appeal period had expired, AT&T apparently discovered that the November orders actually denied all of its motions. The next day, AT&T filed a motion to extend or reopen the appeal period pursuant to rules 4(a)(5) and (6), which the district court denied.


To qualify for an extension of the appeal period, the moving party must show “excusable neglect or good cause.” Fed. R. App. P. 4(a)(5). A court may reopen the appeal period, on the other hand, if “the court finds that the moving party did not receive notice” of the entry of the judgment or order at issue. Fed. R. App. P. 4(a)(6) (emphasis added). Under Fifth Circuit law, a district court’s ruling on a motion for relief under Rule 4(a)(5) and (6) is reviewed ‎for abuse of discretion. ‎

a. Extension of the Appeal Period Pursuant to Rule 4(a)(5)

Although the NEFs communicated an arguably incomplete description of the orders, the district court concluded that it is the responsibility of every attorney to read the substance of each order received from the court and that it is not sufficient to rely on the email notifications received from the electronic filing system. The district court noted, moreover, that the orders and NEFs had been sent to 18 different counsel and ‎legal assistants representing AT&T and that at least some of those recipients downloaded the full text of ‎the orders. ‎The district court also pointed to the fact that, on that same day, the court also issued orders denying the unsealed JMOL motion and entering a bill of costs—both of which produced accurately labeled NEFs. The district court therefore refused to extend the appeal period under Rule 4(a)(5).

AT&T argues that its delay should be excused because it received incomplete NEFs and the district court did not reissue new NEFs when it corrected the docket entries. In other words, AT&T argues that, because the initial NEF did not fully describe what the order entailed, the court should have found that the “excusable neglect or good cause” required under Rule 4(a)(5)(A)(ii) had been established.

As the district court correctly noted, even a complete lack of notice would not qualify as excusable neglect under Rule 4(a)(5), without some additional showing. AT&T argues that this is not just a lack of notice case; it is a case involving an affirmatively misleading notice. And, it argues that, because the district court’s NEFs violated Federal Rule of Civil Procedure 79, the notice it received violated the legal requirements governing the same. Turning to AT&T’s second argument first, AT&T is wrong when it contends that the court or its clerk violated Rule 79. Rule 79 applies to the civil docket, not to electronic email notices. See Fed. R. Civ. P. 79(a)(1)–(3). Rule 79 provides that each docket entry is to briefly state “the substance and date of entry of each order and judgment.” Although the court did not send updated NEFs, the district court promptly corrected the docket entries to state that the orders denied the underlying JMOL motions. The civil docket, therefore, had a complete description of those orders had AT&T bothered to check the docket, as it should have done.

AT&T’s claim that its failure to read the court’s order was excusable because it was misled into doing so by the court itself does not fare much better on these facts. While the incomplete NEFs are relevant to the inquiry, they are not determinative of it.

The district court should, consider “all relevant circumstances” in determining whether a party’s failure to file a timely appeal was excusable. At bottom, Rule 4(a)(5) assumes some neglect on behalf of the non-filer and directs the district court to exercise its equitable discretion to determine whether that neglect should be excused. The trial court examined the circumstances surrounding the admitted neglect by AT&T’s counsel and concluded it should not be forgiven. The majority sees no abuse of discretion.

b. Reopening the Appeal Period Pursuant Rule 4(a)(6)

Rule 4(a)(6) requires findings by the trial court that: (1) the movant did not receive notice of the entry of judgment; (2) the movant filed the motion in a timely fashion; and (3) no party would be prejudiced by a reopening of the time to appeal. Even when all of these predicates are satisfied, the court retains the discretion to either grant or deny the motion.

Here, the district court found that AT&T did receive notice of the entry of judgment when it received and downloaded those judgments from the electronic docket and that TWM would be prejudiced by the reopening of the appeal period, rendering Rule 4(a)(6) inapplicable. After making these factual findings, moreover, the court rejected AT&T’s claim that, even if it admittedly received the actual text of the judgments and of the other orders entered at the same time, the court should reopen the appeal because AT&T never received email notifications that the docket was corrected shortly after the initial entries to more accurately reflect the substance of the orders entered. On this point, the trial court expressly declined “to give ‘an interpretation of Rule 4(a)(6) that allows parties to ignore entirely the electronic information at their fingertips,’ as it would ‘severely undermine the benefits for both courts and litigants fostered by the CM/ECF system, including the ease and speed of access to all the filings in a case.”

The majority sees no clear error in the trial court’s finding that AT&T failed to establish that it did not receive the notice contemplated in Rule 4(a)(6)(A) and no abuse of discretion in the trial court’s refusal to grant AT&T’s motion solely because AT&T did not receive an NEF of the corrected docket entry.

AT&T’s argument that it never received the type of notice contemplated by Rule 4(a)(6)(A) because it never received an NEF that described the type of docket entry required by Rule 79 (i.e., one setting forth a short description of the order or judgment) is unpersuasive. While the NEF was admittedly inaccurate, AT&T was notified both that the orders had been entered on the docket and that the order contained final judgments. The majority declines to hold, as a matter of law, that those circumstances always constitute an absence of notice for purposes of Rule 4(a)(6)(A).

While AT&T neither cites nor relies upon them, the dissent contends that a series of cases decided in the 1950s requires us to find an absence of notice under Rule 4(a)(6)(A). In those cases, the question presented was whether a docket entry which failed to unambiguously set forth a final judgment within the meaning of Fed. R. Civ. P. 58 was sufficient to trigger the running of the time for appeal or whether a later docket entry was the triggering entry. Pointedly, neither Rule 4(a)(6) nor the meaning of notice thereunder were at issue in the cases to which the dissent points us. AT&T does not dispute that the underlying order it received evinced an unequivocal intention to enter final judgment and award costs consistent therewith. Nor is there any debate over which docket entry the initial one or the corrected one—triggered AT&T’s time for appeal. The only question here is whether AT&T was entitled to an NEF of the corrected docket entry before it can be said to have received notice of the entry of the admittedly complete and unequivocal judgments. While we respect the dissent’s contrary view, we find no legal error in the trial court’s conclusion that it was not.

Dissent by Judge Dyk

The majority notes that Judge Dyk’s dissent relies on cases decided long prior to the availability of electronic docketing data. Judge Dyk nonetheless concludes that the substantive orders were not entered on the docket at the time that AT&T arguably received notice of the orders, and the required notice of the entry was not provided. Therefore, he concludes that FRAP 4(a)(6) applies.

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