`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`BROAD OCEAN TECHNOLOGIES, LLC,
`Appellant
`
`v.
`
`NIDEC MOTOR CORPORATION,
`Appellee
`______________________
`
`2017-1933
`______________________
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2015-
`01617.
`
`______________________
`
`ON PETITION FOR PANEL REHEARING
`______________________
`
`Before DYK, WALLACH, and CHEN, Circuit Judges.
`PER CURIAM.
`
`O R D E R
`Broad Ocean Technologies, LLC (“Broad Ocean”)
`
`petitioned for inter partes review of claims 1–13 of the
`7,990,092 patent (“’092 patent”), owned by Nidec Motor
`Corporation (“Nidec”). The Patent Trial and Appeal Board
`(“the Board”) instituted inter partes review with respect
`
`
`
`
`
` 2
`
` BROAD OCEAN TECH., LLC v. NIDEC MOTOR CORP.
`
`to claims 7–13, but not claims 1–6. Ultimately, the Board
`issued a Final Written Decision finding that Broad Ocean
`did not demonstrate by a preponderance of the evidence
`that claims 7–13 were unpatentable.
`
`Broad Ocean appealed to this court, arguing that
`claims 7–13 were unpatentable. In its opening and reply
`briefs, Broad Ocean noted that “the Board erred by not
`addressing claims 1–6 in its Final Written Decision.”
`Appellant Br. at 1, n.1; Appellant Reply Br. at 31–32. On
`April 5, 2018, we affirmed the Board’s Final Written
`Decision in a Rule 36 Judgment.
` On May 8, 2018, Broad Ocean filed a Combined
`Petition for Panel and En Banc Rehearing. With respect
`to claims 7–13, Broad Ocean argued that the court should
`grant rehearing and hold that the Board erred in finding
`that those claims were not shown to be unpatentable. We
`deny that request.
`With respect to non-instituted claims 1–6, Broad
`Ocean argued that, pursuant to the Supreme Court’s
`recent decision in SAS Institute, Inc. v. Iancu, 138 S. Ct.
`1348 (2018), the court should grant rehearing and then
`remand for the Board to assess the patentability of claims
`1–6 in a Final Written Decision. Contrary to Nidec’s
`argument, we see no waiver of this argument. According-
`ly, we grant that request. See Polaris Indus., Inc. v. Arctic
`Cat, Inc., Nos. 2017-1870, -1871, 2018 WL 2435544 (Fed.
`Cir. May 30, 2018).
`
`IT IS ORDERED THAT:
`
`Broad Ocean’s Petition for Panel Rehearing is grant-
`ed-in-part and denied-in-part. The Rule 36 Judgment is
`vacated. We affirm the Board’s determination that claims
`7–13 were not shown to be unpatentable. The case is
`remanded to the Board for institution of inter partes
`review with respect to claims 1–6 and issuance of a Final
`
`
`
`BROAD OCEAN TECH., LLC v. NIDEC MOTOR CORP.
`
` 3
`
`Written Decision addressing those claims. The petition is
`otherwise denied.
`
`
`
`
`
`
` June 14, 2018
`
` Date
`
`
`
`
`
`
`
`
`
` FOR THE COURT
`
`/s/ Peter R. Marksteiner
`Peter R. Marksteiner
`Clerk of Court
`
`
`
`
`
`
`
`
`
`
`
`
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