# United States **Court of Appeals**  **for the Federal Circuit**

______________________

MICHAEL J. VAILLANCO URT, Appellant,

v.

BECTON DICKINSON & C OMPANY, Appellee.

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2013

- 1408

______________________ Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in Reexamination No. 95/000,565.

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Decided: April 24, 2014

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D ENNIS F. G LEASON , Jardim, Meisner & Susser, P.C., of Florham Park, New Jersey, argued for appellant. With him on the brief was F RANCIS J. H AND , Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P.C., of Rose land, New Jersey.

A MY K. W IGMORE , Wilmer Cutler Pickering Hale and Dorr, LLP, of Washington, DC, argued for appellee. With her on the brief were W ILLIAM M C E LWAIN , D AVID C AVANAUGH , and H EATHER P ETRUZZI

.

______________________VAILLANCOURT v. BECTON DICKINSON & COMPANY 2

Before R ADER , Chief Judge

, L INN and T ARANTO , Circuit Judges.

R ADER , Chief Judge

. The Patent Trial and Appeal Board affirmed the rejection of all thirty

- seven claims of U.S. Patent No. 6,699,221 on appeal from an inter partes reexamination. Appellant Michael J. Vai llancourt previously owned the ’221 patent, but while the reexamination pro ceedings were still pending, he assigned all right, title, and interest in the patent to VLV Associates, Inc. Vaillancourt, and not VLV, now appeals th e Board decision to this court. The only cause of action (right to sue) in this court that Vaillancourt invokes is 35 U.S.C. § 141, but the unambi guous language of that provision limits it to the patent

owner. Though the parties in this case have argued about “standing,” the Supreme Court recently clarified that some issues often discussed in “standing” te rms are better viewed as interpretations of a statutory cause of action. See Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377

, 1386

- 88 (2014). Because the issue here focuses on § 141, this opinion directly addresses the scope of that cause of action. As Vaillancourt is not the owner of the ’ 221 patent, he cannot bring this appeal before the court, for lack of a cause of action. Accordingly, this court dismisses the appeal.

I.
Vaillancourt obtained ownership of the ’ 221 patent from his mother through an assignment recorded with the U.S. Patent and Trademark Office on April 15, 2011. J.A. 1026. Vaillancourt represents that the assignment took effect November 1, 2005. Id

. For the purposes of this appeal, the court assumes the assignment was proper but does not make any finding about the timing of the tran sfer

.VAILLANCOURT v. BECTON DICKINSON & COMPANY 3

On August 12, 2010, Appellee Becton Dickinson & Company (BD ) requested an inter par tes reexamination of the ’ 221 patent

. Id. at 2 , 357. During the reexamination proceedings, Vaillancourt added claims 21 through 37 to the patent’s original twenty claims. Id. at 443.

T he patent examiner rejected all thirty

- seven claims of the ’ 221 patent. Id. at 510

– 55. Vaillancourt appealed these rejections to the Board on April 25, 2011. Id. at 680.
However, o n April 24, 2012, while the reexamination appeal was still pending, Vaillancourt assigned to VLV “the entire right

, title and intere st in and to” the ’ 221 patent, “including full and exclusive rights to sue upon and otherwise enforce” the patent. Id. at 1029.

Then on April 27, 2012, VLV initiated suit against BD for infringement of the ’ 221 patent in the U.S. District Court for the District of New Jersey. VLV Assocs. v. Becton Dickinson & Co. , No. 12

- 2476 (D. N.J. 2012 ). VLV sued in its own name and did not join Vaillancourt to the suit.
On June 29, 2012 , t he Board affirmed all of the exa miner’s rejections . J.A. 766. Despite no longer being the owner of the ’221 patent , Vail lancourt requested a rehea ring with the Board in his own name

. Id. at 837. T he Board denied Vaillancourt’s request to alter the prior affirmance of the examiner’s rejections

. Id. at 869.
Vaillancourt appealed to this court, identifying hi mself in the notice of appeal as both the patent owner and appellant

. Id. at 871. Shortly thereafter, BD moved to dismiss the appeal for lack of jurisdiction. Id. at 971. On October 30, 2013, t his court denied BD’s motio n without prejudice, noting that BD should make its jurisdictional arguments in its brief before the merits panel

. Id. at 1044.VAILLANCOURT v. BECTON DICKINSON & COMPANY 4

BD renewed its jurisdictional argument in its respo nsive brief. After consideration of the parties’ arguments, this court de termines that Vaillancourt may not bring this case under § 141 because he is no longer the patent

owner.

II.
Statutory interpretation focuses on the language of the statute itself. See Wyeth v. Kappos , 591 F.3d 1364, 1369 (Fed. Cir. 2010) (quoting United States v. Hohri , 482 U.S. 64, 68 (1987))

. A statute’s unambiguous language “must ordinarily be regarded as conclusive

. ” Id. (quoting Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc.

, 447 U.S. 102, 108 (1980) ) (internal quotation marks omitted).
The applicable version of § 141 states , in pertinent part: “[a] patent owner

. . . in an inter partes reexamin ation proceeding

. . . dissatisfied with the final decision in an appeal to the Board. . .may appeal the decision only to the United States Court of Appeals for the Federal Ci rcuit.”
The unambiguous language of § 141 provides that a patent owner alone can appeal a final decision in an inter partes reexamination to this court

. Thus, the statute itself sets the requirements for bri nging an appeal here. The statute requires the patent owner to initiate any appeal.

III.
Vaillancourt concedes, as he must, that he is not the owner of the ’ 221 patent and that VLV, the actual owner, does not appear before this court in the appeal

. Ap pellant Reply Br. 4 ; Oral Arg. at 2:52

– 3:40, available at http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20 13

- 1408.mp3

. He therefore cannot bring this case under § 141.VAILLANCOURT v. BECTON DICKINSON & COMPANY 5

Nevertheless

, Vaillancourt claims in an affidavit that despite his assignment of the entire right, title, and interest in the ’ 221 patent to VLV

, he was “authorized to continue with all related proceedings including further appeals” in connection with the reexamination. J.A. 1027. With this purported retention of rights, and because he is apparently the sole owner of VLV, Vaillancourt asserts that he is authorized to proceed with this appeal on behalf of VLV . Appellant Reply Br. 8.
In essence, Vaillancourt suggests that § 141 allows a patent owner to delega te to a third party its authority to bring an appeal to this court. Appellant Reply Br. 4. Beyond the assertion of this concept, Vaillancourt offers no further support for his interpretation of the statute

. Id. Instead, he states that while the unambi guous la nguage of § 141 does not explicitly provide for such deleg ation, the section does not explicitly bar it either. Id. This assertion carries no weight in the face of a statutory requirement. The statute also does not forbid a patent owner’s travel agent from filing an appeal, but that hardly justifies interpreting the statute to extend to such unme ntioned categories. Section 141 grants a procedural right
to the patent owner to appeal decisions from the PTAB. This court sees no reason

— and Vaillanc ourt provides

none

— to extend that procedural right beyond what is clearly set forth in § 141.
VLV is indisputably the owner of the ’221 patent, and held all right, title, and interest to the patent when Vai llancourt filed the notice of appeal with this court. Even if all of Vaillancourt’ s assertions are taken as true

, it neve rtheless remains that VLV did not bring this appeal and has made no appearance before the court.

Under the unambiguous languag e of § 141, Vailla ncourt, the sole appellant here

, has no cause of action to bring this appeal

. Therefore, this court dismisses the appeal.VAILLANCOURT v. BECTON DICKINSON & COMPANY 6

DISMISSED