United States Court of Appeals 

for the Federal Circuit ______________________

CUSTOMEDIA TECHNOLOGIES, LLC,

Appellant

v.

DISH NETWORK CORPORATION, DISH NETWORK 

LLC,

Appellees

______________________

2018-2239

______________________

Appeal from the United States Patent and Trademark 

Office, Patent Trial and Appeal Board in No. CBM2017-

00023.

---------------------------------------------------------------------------------

CUSTOMEDIA TECHNOLOGIES, LLC,

Appellant

v.

DISH NETWORK CORPORATION, DISH NETWORK 

LLC,

Cross-Appellants

______________________

2018-2240, -2310

______________________
CUSTOMEDIA TECHNOLOGIES, LLC v. DISH NETWORK 

CORPORATION

2

Appeals from the United States Patent and Trademark 

Office, Patent Trial and Appeal Board in No. IPR2017-

00454.

---------------------------------------------------------------------------------

CUSTOMEDIA TECHNOLOGIES, LLC,

Appellant

v.

DISH NETWORK CORPORATION, DISH NETWORK 

LLC,

Appellees

______________________

2019-1000

______________________

Appeal from the United States Patent and Trademark 

Office, Patent Trial and Appeal Board in No. CBM2017-

00032.

---------------------------------------------------------------------------------

CUSTOMEDIA TECHNOLOGIES, LLC,

Appellant

v.

DISH NETWORK CORPORATION, DISH NETWORK 

LLC,

Cross-Appellants

______________________

2019-1002, -1003, -1027, -1029

______________________
CUSTOMEDIA TECHNOLOGIES, LLC v. DISH NETWORK 

CORPORATION

3

Appeals from the United States Patent and Trademark 

Office, Patent Trial and Appeal Board in Nos. IPR2017-

00717 and IPR2017-00724.

______________________

ON MOTION

______________________

RAYMOND WILLIAM MORT, III, The Mort Law Firm, 

PLLC, Austin, TX, for appellant.

ELIOT DAMON WILLIAMS, Baker Botts LLP, Palo Alto, 

CA, for appellees. Also represented by GEORGE HOPKINS 

GUY, III; ALI DHANANI, MICHAEL HAWES Houston, TX.

______________________

PER CURIAM.

O R D E R

In each of the above-captioned appeals, Customedia 

Technologies, LLC submits a notice of supplemental authority identifying this court’s recent decision in Arthrex, 

Inc. v. Smith & Nephew, Inc., No. 2018-2140 (Fed. Cir. Oct. 

31, 2019). That decision vacated and remanded for the 

matter to be decided by a new panel of Administrative Patent Judges (“APJs”) at the Patent Trial and Appeal Board 

after this court concluded that the APJs’ appointments violated the Appointments Clause. Customedia’s letters

seek to assert the same challenge here, which the court 

construes as a motion to vacate the Board decisions here

and remand in accordance with Arthrex. 

We conclude that Customedia has forfeited its Appointments Clause challenges. “Our law is well established that 

arguments not raised in the opening brief are waived.” 

SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 

1319 (Fed. Cir. 2006) (citing Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1320–21 n.3 

(Fed. Cir. 2005)). That rule applies with equal force to 
CUSTOMEDIA TECHNOLOGIES, LLC v. DISH NETWORK 

CORPORATION

4

Appointments Clause challenges. See, e.g., Island Creek 

Coal Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018);

Turner Bros., Inc. v. Conley, 757 F. App’x 697, 699–700 

(10th Cir. 2018); see also Arthrex, slip op. at 29 (emphasizing that Appointments Clause challenges are not jurisdictional and that the court was granting relief only when the 

party had properly raised the challenge on appeal). Customedia did not raise any semblance of an Appointments 

Clause challenge in its opening briefs or raise this challenge in a motion filed prior to its opening briefs. Consequently, we must treat that argument as forfeited in these 

appeals. 

Accordingly, 

IT IS ORDERED THAT:

The motions to vacate and remand are denied. 

FOR THE COURT

 November 1, 2019 /s/ Peter R. Marksteiner

 Date Peter R. Marksteiner

 Clerk of Court