New Vision Wins Another Chance To Defend Gaming Patents Following Arthrex Remand
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In New Vision Gaming & Dev., Inc. v. SG
Gaming, Inc., No. 2020-1399 (Fed. Cir. May 13, 2021), the
Federal Circuit vacated two covered-business method review final
written decisions finding that all of the claims were patent
ineligible under 35 U.S.C. § 101 and remanded for further
The Court granted New Vision’s request to vacate and
remand the Board’s decision in light of the Court’s
decision in Arthrex, Inc. v. Smith & Nephew, Inc., 941
F.3d 1320 (Fed. Cir. 2019) finding that New Vision did not waive
the challenge because the Arthrex decision issued after
the Board’s final written decision.
Judge Newman filed an opinion concurring in part and dissenting
in part. Judge Newman agreed that the Board’s decision
must be vacated under Arthrex. However, Judge Newman
argued that the Court should first determine whether the forum
selection clause in the parties’ license agreement barred SG
Gaming from pursuing CBM review before deciding whether remand is
appropriate. Judge Newman argued that this is a threshold
issue that should be determined because if the parties are
committed to resolving any disputes in Nevada, there is no basis
for new PTAB proceedings on remand.
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