Apple v. RFCyber (Fed. Cir. 23-2396): Appeal Dismissed in NFC Payment Patent Dispute
Apple, Inc. sought dismissal of its Federal Circuit appeal against RFCyber Corp. over two NFC-based e-commerce and m-commerce patents. The court granted deconsolidation and dismissed Apple’s appeal in 156 days, with each side bearing its own costs — leaving a parallel appeal (No. 2023-2418) to continue without Apple.
Swift Federal Circuit exit for Apple in NFC payment patent appeal
Case No. 23-2396 is a Federal Circuit appeal filed on 18 September 2023 in which Apple, Inc. — represented by Ropes & Gray LLP — challenged the patentability of two RFCyber Corp. patents: US9240009 and US9189787, both directed at methods and apparatus for conducting e-commerce and m-commerce transactions using NFC technology. RFCyber, represented by Fabricant LLP, held the asserted patents and opposed Apple’s invalidity challenge. The appeal arose from underlying patentability proceedings, consistent with an inter partes review or similar USPTO trial before escalation to the Federal Circuit.
The case closed on 21 February 2024 when the Federal Circuit granted Apple’s motion in a multi-part order. The court deconsolidated Appeal No. 23-2396 from the related Appeal No. 2023-2418, dismissed Apple’s appeal, and directed that each side bear its own costs. Apple was simultaneously withdrawn as a party from Appeal No. 2023-2418, with that appeal’s caption revised accordingly. The public record records the termination basis as voluntary dismissal, without specifying whether dismissal was with or without prejudice.
At 156 days from filing to closure, the resolution is notably swift for a Federal Circuit appeal, suggesting Apple elected not to pursue the validity challenge further rather than litigate to a merits ruling. What likely drove this outcome — whether a commercial settlement, a strategic IP portfolio reassessment, or a litigation cost-benefit decision — is not disclosed in the public record. Crucially, Appeal No. 2023-2418 remains active and proceeds without Apple, meaning the underlying RFCyber patent validity question is not fully resolved from the public record available here.
Filing to resolution in 156 days
156 days — faster than most Federal Circuit patent validity appeals
What the voluntary dismissal of Appeal No. 23-2396 means for both parties
Deconsolidation before dismissal: why it matters
The court first deconsolidated Appeal No. 23-2396 from the related Appeal No. 2023-2418 before dismissing Apple’s appeal. Deconsolidation ensures that Apple’s exit does not terminate or prejudice the second appeal, which continues on its own procedural track. This is a standard but significant step — it preserves the integrity of the remaining proceedings and signals that the two appeals had sufficiently distinct parties or issues to warrant separation.
Procedural severanceWith or without prejudice? The public record is silent
A voluntary dismissal can be entered with prejudice (barring refiling of the same claims) or without prejudice (leaving the door open). The court order and the basis of termination recorded here state only ‘voluntary dismissal’ without specifying which applies. This distinction materially affects Apple’s future litigation options against these two RFCyber patents. Practitioners should review the full order text and any stipulation filed by the parties to determine whether preclusion applies.
Prejudice status unclearEach side bears own costs — no fee-shifting here
The order explicitly states each side shall bear its own costs for Appeal No. 23-2396. Under the American Rule, this is the default position, but Federal Circuit cost-shifting is possible when a party’s position is found unreasonable. The absence of any cost award to RFCyber is consistent with a mutually agreed or uncontested exit rather than a ruling against Apple on the merits. Neither party secured a financial advantage from the costs ruling.
No cost awardAppeal No. 2023-2418 continues — USPTO may intervene
Apple’s departure does not end the patent validity dispute. Appeal No. 2023-2418 proceeds before the same Federal Circuit merits panel, and the USPTO was directed to notify the court within 30 days whether it intends to intervene. If the USPTO intervenes, it signals the agency has an interest in the outcome of the patent validity question — a development that could materially affect claim scope or validity findings relevant to the entire NFC payments sector.
USPTO intervention pendingFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | Apple, Inc. | Company | Technology company — appellant challenging validity of US9240009 and US9189787Search in Eureka ↗ |
| Defendant | RFCyber, Corp. | Company | NFC payment technology patent holder asserting e-commerce and m-commerce method patentsSearch in Eureka ↗ |
| Plaintiff counsel | Brian Lebow | Attorney | Counsel for Apple, Inc.Search in Eureka ↗ |
| Plaintiff counsel | Christopher M. Bonny | Attorney | Counsel for Apple, Inc.Search in Eureka ↗ |
| Plaintiff counsel | Douglas HallwardDriemeier | Attorney | Counsel for Apple, Inc.Search in Eureka ↗ |
| Plaintiff counsel | James Lawrence Davis | Attorney | Counsel for Apple, Inc.Search in Eureka ↗ |
| Plaintiff counsel | James Richard Batchelder | Attorney | Counsel for Apple, Inc.Search in Eureka ↗ |
| Defendant counsel | Alfred Ross Fabricant | Attorney | Counsel for RFCyber, Corp.Search in Eureka ↗ |
| Defendant counsel | Peter Lambrianakos | Attorney | Counsel for RFCyber, Corp.Search in Eureka ↗ |
| Defendant counsel | Richard Matthew Cowell | Attorney | Counsel for RFCyber, Corp.Search in Eureka ↗ |
| Defendant counsel | Vincent J. Rubino , III | Attorney | Counsel for RFCyber, Corp.Search in Eureka ↗ |
| Presiding judge | Judge / | Chief Judge | Court of Appeals for the Federal Circuit — Chief JudgeSearch in Eureka ↗ |
Stipulation of dismissal — official text
The court’s order is procedural rather than substantive: it grants deconsolidation, dismisses Apple’s appeal voluntarily, and sets a schedule for the continuing Appeal No. 2023-2418. Critically, the order makes no finding on the validity or invalidity of US9240009 or US9189787. For Apple, the dismissal closes its appellate exposure in this docket without a merits loss. For RFCyber, the patents survive this appeal intact, though the separate validity challenge in 2023-2418 remains unresolved.
US9240009 & US9189787 — NFC e-commerce and m-commerce method patents
US9240009 and US9189787, both assigned to RFCyber Corp., are directed at methods and apparatus for conducting e-commerce and m-commerce transactions — a technology domain encompassing NFC-enabled payment initiation, authentication, and transaction processing on mobile devices. Application No. US13/350835 underlies US9240009 and US13/903420 underlies US9189787. The patents sit within the broader NFC payments stack, potentially covering interactions between mobile devices, point-of-sale systems, and backend transaction infrastructure.
Patents in this space carry significant commercial weight given the global expansion of contactless and mobile payment adoption. RFCyber has demonstrated willingness to assert these patents against major technology defendants including Apple, which suggests a licensing or litigation-first monetisation strategy. For NFC ecosystem participants — handset manufacturers, mobile OS developers, payment app publishers, and fintech platforms — these patents represent a non-trivial enforcement risk that warrants active monitoring, particularly while Appeal No. 2023-2418 remains pending and could affect claim validity.
Should your product team run an FTO against US9240009 and US9189787?
Any organisation developing or deploying NFC-based payment, e-commerce, or m-commerce functionality should consider these patents in their freedom-to-operate analysis. The fact that Apple — with substantial in-house IP resources — engaged in multi-year validity proceedings rather than immediately designing around or licensing these patents suggests the claims are not trivially avoided. R&D teams building tap-to-pay, in-app NFC transactions, or mobile wallet features are the most directly exposed product categories.
PatSnap Eureka’s FTO Search Agent allows IP and product teams to map US9240009 and US9189787 claim elements against their specific technology implementation, identify prior art relevant to validity, and set automated claim monitoring alerts if these patents are asserted in new proceedings. With Appeal No. 2023-2418 still active, the validity landscape for these patents may shift — Eureka’s litigation monitoring keeps you informed in real time.
Run a freedom-to-operate analysis on US9240009 to assess your product’s exposure
Run FTO in Eureka →Similar NFC payment patent appeals and invalidity proceedings
PatSnap Eureka tracks related litigation across truck body equipment, vehicle accessories, and comparable infringement actions in the Georgia district system.
What this case signals for the NFC payments IP landscape
Apple’s swift exit from Federal Circuit appeal leaves RFCyber’s NFC patents partially intact and a related validity challenge still live.
RFCyber’s NFC patents remain active litigation assets
Despite Apple’s withdrawal from Appeal No. 23-2396, the underlying RFCyber patents US9240009 and US9189787 have not been invalidated on the public record. Any company operating NFC-based payment, e-commerce, or m-commerce systems should treat these patents as potentially enforceable and monitor developments in Appeal No. 2023-2418 for any validity ruling.
Voluntary dismissal without a merits ruling creates ongoing uncertainty
Apple’s decision to exit without a Federal Circuit ruling on patentability means there is no binding precedent invalidating the RFCyber claims. Competitors in the NFC payments space cannot rely on this case as clearance. Freedom-to-operate assessments against US9240009 and US9189787 remain necessary for any product team deploying NFC transaction technology.
Apple v RFCyber — key questions answered
The Federal Circuit dismissed Appeal No. 23-2396 voluntarily on 21 February 2024, 156 days after filing. Apple’s motion was granted, the appeal was deconsolidated from related Appeal No. 2023-2418, and each side was ordered to bear its own costs. No merits ruling on patent validity was issued.
Two RFCyber Corp. patents were at issue: US9240009 (application US13/350835) and US9189787 (application US13/903420). Both cover methods and apparatus for conducting e-commerce and m-commerce transactions, encompassing NFC-based mobile payment technology.
The public record records the basis of termination as ‘voluntary dismissal’ without specifying whether dismissal was with or without prejudice. Practitioners should consult the full court order and any underlying stipulation filed by the parties to determine whether claim preclusion applies to Apple’s ability to refile.
Appeal No. 2023-2418 continues before the Federal Circuit without Apple’s participation. The court directed the USPTO to notify it within 30 days whether it intends to intervene. An opening brief schedule was set at 60 days from the order. The validity of the RFCyber patents remains unresolved in that proceeding.
Apple’s exit without a merits ruling means US9240009 and US9189787 were not invalidated in this appeal. The patents remain potentially enforceable. Other NFC payment technology companies cannot rely on this case as clearance and should conduct independent FTO analysis. Monitoring Appeal No. 2023-2418 for any USPTO intervention or validity ruling is advisable.
PatSnap Eureka searches patents and litigation data to answer instantly.