878 F.2d 1443
MAG INSTRUMENT, INC., Appellant,
v.
The UNITED STATES INTERNATIONAL TRADE COMMISSION, Appellee,
Kassnar Imports, Inc.; Brinkmann Corporation; Brinkmann
International (Hong Kong), Ltd.; and J. Baxter
Brinkmann International Corporation, Intervenors.
No. 88-1313.
United States Court of Appeals, Federal Circuit.
March 21, 1989.
Unpublished Disposition
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Before MARKEY, Chief Judge, and RICH and EDWARD S. SMITH, Circuit Judges.
ORDER
This court, in an unpublished opinion, dated February 15, 1989, declined to consider the patent invalidity arguments of intervenor Kassnar Imports, Inc. (Kassnar), on the ground that Kassnar failed to raise this issue in its petition for review of the United States International Trade Commission's (ITC) initial determination. Kassnar petitions this court for rehearing to consider its invalidity arguments, specifically on the issue of public use, 35 U.S.C. Sec. 102(b) (1982).
Under 19 C.F.R. Sec. 210.54(a)(2) (1988), a party who prevails on an issue before the administrative law judge need not raise that issue in its petition for review to preserve it for appeal. Here, Kassnar prevailed on the public use issue and, accordingly, that issue is preserved for appeal to this court.
Accordingly, it is ORDERED that:
(1) Kassnar's petition for rehearing is granted to enable consideration of its patent invalidity arguments, specifically on the issue of public use.
(2) Note 2 of this court's February 15, 1989, opinion is deleted, and recipients of that opinion will be so notified.
(3) The following paragraph is added to this court's opinion preceding the provision for costs:
Kassnar also argues that the ITC erred in finding that the '263 patent is not invalid under 35 U.S.C. Sec. 102(b) (1982). After a careful review of the record and all of the submissions, we conclude that Kassnar has failed to persuade us that the ITC's decision on this issue is not supported by substantial evidence.