Cardpool, Inc. v. Plastic Jungle, Inc.

Full title: CARDPOOL, INC., Plaintiff-Appellant, v. PLASTIC JUNGLE, INC.…

Court: United States Court of Appeals for the Federal Circuit

Date published: Apr 29, 2014

564 F. App'x 582 (Fed. Cir. 2014)

Opinion

2013-1227

04-29-2014

CARDPOOL, INC., Plaintiff-Appellant, v. PLASTIC JUNGLE, INC., Defendant-Appellee.

RADER

NOTE: This order is nonprecedential.

Appeal from the United States District Court for the Northern District of California in No. 12-CV-4182, Judge William H. Alsup.

ON PETITION FOR PANEL REHEARING

Before RADER, Chief Judge, REYNA and WALLACH, Circuit

Judges.

RADER, Chief Judge.

ORDER

Cardpool, Inc. petitions the court for panel rehearing, and has advised the court that as a result of a reexamination of U.S. Patent No. 7,494,048, the United States Patent and Trademark Office deemed patentable, inter alia, an amended Claim 1, the sole independent claim deemed ineligible below under 35 U.S.C. § 101. On the court's invitation, Plastic Jungle, Inc. n/k/a Cardflo, Inc. (Plastic Jungle) responded to the petition. Cardpool moved for leave to file a reply, and replied after the court granted its motion. The parties both request that this court vacate its decision, and the district court's dismissal pursuant to FED. R. CIV. P. 12(b)(6), as moot in light of the reexamined claims.

Because vacatur of the affirmance under FED. R. APP. P. 36 would not offend the public interest in this case, and because both parties agree with such action, the court vacates its prior decision and dismisses the appeal. U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 26 (1994).

However, the court finds that it would not be appropriate in this context to vacate the district court's judgment because Cardpool, the losing party below, caused the change in circumstances. See Arizonans for Official English v. Arizona, 520 U.S. 43, 71-72 (1997) (citing Bancorp, 515 U.S. at 23). Thus, this court remands to the district court to determine what actions, if any, are appropriate in light of the reexamined claims.

Accordingly,

IT IS ORDERED THAT:

1) The petition for panel rehearing filed by Cardpool is granted-in-part.
2) The court's decision affirming the district court's judgment is vacated and the appeal is dismissed. The matter is remanded to the district court for further proceedings.

FOR THE COURT

_________________

Daniel E. O'Toole

Clerk of Court