Case: 12-1274    Document: 54    Page: 1   Filed: 05/03/2013




          NOTE: This order is nonprecedential.

   United States Court of Appeals
       for the Federal Circuit
                __________________________

        PUBLIC PATENT FOUNDATION, INC.,
                Plaintiff-Appellant,
                            v.
                  MCNEIL-PPC, INC.,
                   Defendant-Appellee,
                            v.
                   UNITED STATES,
                   Intervenor-Appellee.
                __________________________

                        2012-1274
                __________________________

    Appeal from the United States District Court for the
 Southern District of New York in No. 09-CV-5471, Judge
 Katherine B. Forrest.
               __________________________

                      ON MOTION
                __________________________

    Before LOURIE, BRYSON, and MOORE, Circuit Judges.

 LOURIE, Circuit Judge.
                          ORDER
Case: 12-1274     Document: 54     Page: 2    Filed: 05/03/2013




 PUBLIC PATENT FOUNDATION, INC. v. MCNEIL-PPC, INC.         2


    Public Patent Foundation, Inc. (PubPat) moves for
 summary affirmance. McNeil-PPC, Inc. (McNeil) re-
 sponds.
     PubPat brought suit in June 2009 against McNeil for
 falsely marking and advertising certain products. In
 September 2011, Congress enacted the Leahy-Smith
 America Invents Act (AIA), which, among other changes,
 eliminated standing in false marking cases for third
 parties that have not suffered a competitive injury as a
 result of the false marking. The change was applied
 retroactively to pending false marking cases. As a result
 of the changes enacted by the AIA, the district court held
 that PubPat no longer had standing to pursue this case
 and dismissed the action.
      PubPat argues that this court’s decision in Brooks v.
 Dunlop Manufacturing Inc., 702 F.3d 624 (Fed. Cir. 2012),
 requires summary affirmance of the district court’s judg-
 ment. McNeil agrees that Brooks requires affirmance of
 the district court’s judgment, but raises concerns about
 PubPat’s previous arguments that this case is distin-
 guishable from cases such as Brooks because of the timing
 of filing.
      Summary affirmance of a case “is appropriate, inter
 alia, when the position of one party is so clearly correct as
 a matter of law that no substantial question regarding the
 outcome of the appeal exists.” Joshua v. United States, 17
 F.3d 378, 380 (Fed. Cir. 1994). We find that summary
 affirmance is appropriate here.
     In Brooks, this court held that Congress’s retroactive
 application of the false marking provision of the AIA does
 not violate the Due Process Clause or the Intellectual
 Property Clause of the Constitution. Brooks, 702 F.3d at
 625-26. This court has also held that the AIA’s change to
 the false marking provision “appl[ies] to all cases, without
Case: 12-1274         Document: 54   Page: 3     Filed: 05/03/2013




 3          PUBLIC PATENT FOUNDATION, INC. v. MCNEIL-PPC, INC.



 exception, that are pending on, or commenced on or after,
 the date of the enactment” of the AIA. Hall v. Bed Bath &
 Beyond, Inc., 705 F.3d 1357, 1373 (Fed. Cir. 2013) (quot-
 ing AIA, Pub. L. No. 112-29, §16(b)(4), 125 Stat. 284, 329
 (2011)).
       Accordingly,
       IT IS ORDERED THAT:
     (1) The district court’s judgment is summarily af-
 firmed.
       (2) Each side shall bear its own costs.
       (3) All other pending motions are moot.

                                      FOR THE COURT


                                        /s/ Jan Horbaly
                                       Jan Horbaly
                                       Clerk


 s24
