Applied Biokinetics v. CVS & Mueller Sports Medicine: Federal Circuit Dismisses Appeal
Applied Biokinetics LLC brought a nine-patent infringement action targeting disposable orthotic foot support strap systems and plantar fasciitis treatment products sold by CVS Pharmacy and Mueller Sports Medicine. After 654 days, the Federal Circuit dismissed the appeals without reaching the merits — closing the appellate chapter on one of the more patent-intensive orthopedic bracing disputes of recent years.
Nine-patent orthotic foot support dispute ends at Federal Circuit without merits ruling
Applied Biokinetics LLC, a holder of an extensive orthopedic soft-goods patent portfolio, filed an infringement action asserting nine US patents covering disposable two-part orthotic foot support strap systems and plantar fasciitis treatment methods. The defendants — CVS Pharmacy, Inc., the retail pharmacy giant, and Mueller Sports Medicine, Inc., a specialist in sports bracing and support products — were accused of infringing across a portfolio spanning application filings from the early 2000s through to 2016, suggesting a multi-generational IP strategy by the plaintiff.
The case reached the Court of Appeals for the Federal Circuit under Case No. 22-2040, filed in July 2022. On 3 May 2024, the Federal Circuit dismissed the above-captioned appeals. A dismissal at the appellate level without a merits adjudication typically signals a procedural resolution — such as a settlement between the parties, a jurisdictional defect, or voluntary withdrawal — rather than a substantive ruling on validity or infringement of the nine asserted patents.
The 654-day duration from filing to closure is consistent with cases that proceeded through briefing before resolving pre-decision, suggesting the parties may have engaged in settlement negotiations during the appellate process. The public record does not disclose whether any licensing agreement or financial settlement was reached, nor does it clarify which specific patents remained live at the time of dismissal. The absence of a merits ruling leaves the nine patents technically unchallenged by this proceeding, a commercially significant outcome for Applied Biokinetics.
Filing to Appeal Dismissed in 654 days
654 days — above the median for Federal Circuit patent appeals, which typically resolve within 12–18 months
Federal Circuit dismisses appeals: what a procedural end means for both parties
Appeal dismissed — no merits ruling on infringement or validity
When the Federal Circuit dismisses appeals without reaching the merits, it issues no finding on patent validity or infringement. The dismissal order — ‘the above-captioned appeals are dismissed’ — is procedural in nature. This outcome typically arises from voluntary withdrawal by the appellant, a settlement mooting the appeal, or a jurisdictional deficiency. None of the nine asserted patents were adjudicated invalid or non-infringed by this ruling.
Procedural dismissalApplied Biokinetics’ nine patents survive appellate scrutiny unchallenged
Because the Federal Circuit did not rule on the merits, Applied Biokinetics retains its nine issued patents in their pre-appeal state. No adverse validity or infringement finding was entered against the portfolio. If the dismissal reflects a settlement, Applied Biokinetics may have secured licensing revenue or a covenant not to sue. The patents remain enforceable tools against other orthotic foot support manufacturers and retailers.
Portfolio intactCVS and Mueller exit the appeal with no precedential protection
CVS Pharmacy and Mueller Sports Medicine obtained no invalidity or non-infringement ruling from this proceeding. A merits win would have created a binding precedent shielding them from future assertion of the same patents. Instead, any protection they secured is likely contractual — through a settlement or license — rather than judicial. This leaves their product lines potentially exposed if any licensing arrangement lapses or if other parties assert the same portfolio.
No merits shield obtainedOrthotic and sports bracing sector faces an unresolved nine-patent portfolio
The dismissal without merits adjudication leaves the Applied Biokinetics portfolio as an active commercial risk for the orthotic footwear, plantar fasciitis treatment, and sports bracing sectors. Competitors, private-label manufacturers, and retailers stocking comparable foot support products should note that none of the nine patents were invalidated. Freedom-to-operate analyses against this portfolio remain essential for any product team active in this space.
Portfolio remains enforceableFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | APPLIED BIOKINETICS LLC | Company | Orthopedic soft-goods IP licensing entity — holder of US10299953 and 8 further foot support patentsSearch in Eureka ↗ |
| Defendant | CVS Pharmacy, Inc. | Company | CVS Pharmacy, Inc. (retail pharmacy) and Mueller Sports Medicine, Inc. (sports bracing products)Search in Eureka ↗ |
| Co-Defendant | Mueller Sports Medicine, Inc. | Company | Search in Eureka ↗ |
| Plaintiff counsel | Karl Rupp | Attorney | Counsel for APPLIED BIOKINETICS LLCSearch in Eureka ↗ |
| Plaintiff counsel | Robert Katz | Attorney | Counsel for APPLIED BIOKINETICS LLCSearch in Eureka ↗ |
| Plaintiff law firm | Katz PLLC | Law Firm | Representing APPLIED BIOKINETICS LLCSearch in Eureka ↗ |
| Plaintiff law firm | Sorey & Hoover LLP | Law Firm | Representing APPLIED BIOKINETICS LLCSearch in Eureka ↗ |
| Defendant counsel | Jeanne Marie Gills | Attorney | Counsel for CVS Pharmacy, Inc.Search in Eureka ↗ |
| Defendant counsel | Justin Sobaje AT | Attorney | Counsel for CVS Pharmacy, Inc.Search in Eureka ↗ |
| Defendant counsel | Richard Spencer Montei | Attorney | Counsel for CVS Pharmacy, Inc.Search in Eureka ↗ |
| Defendant counsel | Tiffany Sung | Attorney | Counsel for CVS Pharmacy, Inc.Search in Eureka ↗ |
| Defendant law firm | Foley & Lardner, LLP | Law Firm | Representing CVS Pharmacy, Inc.Search in Eureka ↗ |
| Presiding judge | Judge N/A | Judge | Court of Appeals for the Federal CircuitSearch in Eureka ↗ |
Official order — verbatim text
The Federal Circuit’s order that ‘the above-captioned appeals are dismissed’ is a procedural terminus, not a substantive ruling. No standard of review — whether substantial evidence, de novo, or clear error — was applied to the underlying district court findings because the court did not reach the merits. The phrasing ‘are dismissed’ in the plural is consistent with consolidated appeals from multiple defendants. Neither validity nor infringement of any of the nine asserted patents was adjudicated, meaning the dismissal creates no precedent binding future courts or litigants on the substantive IP questions raised.
US10299953 and eight further patents — orthotic foot support and plantar fasciitis treatment
The nine patents in suit span a multi-generational prosecution history, with application filings ranging from the mid-1990s (US5861348, filed via application US08/716572) through to 2016 (US10299953, filed via US15/240783). This breadth suggests a deliberate continuation and continuation-in-part prosecution strategy, with Applied Biokinetics layering successive claim sets over evolving product designs. The core technical domain covers disposable two-part orthotic foot support strap systems and methods for treating plantar fasciitis — a high-prevalence musculoskeletal condition driving significant consumer spending on over-the-counter orthopedic products.
Strategically, a nine-patent portfolio of this scope creates overlapping claim coverage that is difficult for competitors to design around entirely. Retailers such as CVS that stock private-label or third-party orthotic foot supports, and OEM manufacturers such as Mueller that develop and supply such products, represent the primary enforcement targets. The portfolio’s commercial significance is amplified by the consumer mass-market nature of plantar fasciitis products, where margin-sensitive retailers are typically motivated to resolve disputes commercially rather than litigate to final judgment. The survival of all nine patents without adverse adjudication reinforces their value as licensing assets.
Should your team run an FTO against US10299953 and the Applied Biokinetics portfolio?
Any company designing, manufacturing, importing, or retailing disposable orthotic foot support products — including plantar fasciitis straps, arch support systems, or related soft-goods devices — should conduct a freedom-to-operate analysis against this nine-patent portfolio. The Federal Circuit dismissal did not invalidate any claims, meaning enforcement risk remains live. Private-label programme managers at pharmacy and sporting goods retailers are particularly exposed given the defendants in this case.
PatSnap Eureka’s FTO Search Agent can map each of the nine asserted patents against your product’s technical features, identify the earliest priority dates governing each claim family, and flag claim language most likely to capture competing product architectures. Given the continuation-heavy prosecution history here, Eureka’s claim chain visualisation can help your team determine which claims are structurally distinct and which share a common priority date — critical inputs for any design-around or licensing negotiation strategy.
Run a freedom-to-operate analysis on US10299953 to assess your product’s exposure
Run FTO in Eureka →Similar Federal Circuit appeals: orthopedic device and foot support patent disputes
Explore Federal Circuit appeal dismissals and merits decisions in orthopedic bracing, foot support, and plantar fasciitis patent infringement cases with comparable portfolio structures.
What this case signals for the orthopedic bracing and foot support IP landscape
A nine-patent Federal Circuit appeal dismissed without merits leaves enforcement risk live — and raises strategic questions for every competitor in orthotic foot support.
Dismissal without merits keeps all nine patents fully enforceable
No invalidity or non-infringement ruling was issued by the Federal Circuit. Applied Biokinetics’ portfolio covering foot support strap systems and plantar fasciitis treatment methods remains legally intact. Any company selling comparable products — particularly disposable orthotic strap systems — should treat these patents as active litigation risk and conduct FTO analysis before commercialisation.
Multi-defendant retail + OEM structure is an increasingly common enforcement template
Naming both a major retailer (CVS) and a specialist OEM (Mueller) in the same action maximises leverage: the retailer faces reputational and supply-chain pressure, while the OEM faces direct product invalidation risk. This dual-defendant approach is consistent with a licensing-focused enforcement strategy and suggests Applied Biokinetics was optimising for settlement revenue rather than injunctive relief.
APPLIED v CVS — key questions answered
The Federal Circuit dismissed the appeals in Case No. 22-2040 on 3 May 2024 without reaching the merits. Applied Biokinetics had asserted nine patents covering orthotic foot support strap systems and plantar fasciitis treatment against CVS Pharmacy and Mueller Sports Medicine. No infringement or validity ruling was issued.
Applied Biokinetics asserted nine US patents: US10299953, US8814818, US8414511, US7902420, US10212987, US8968229, US8834398, US5861348, and US8216162. The patents cover disposable two-part orthotic foot support strap systems and methods for treating plantar fasciitis, spanning application filings from the 1990s to 2016.
No. A procedural dismissal by the Federal Circuit does not adjudicate patent validity. The court issued no finding on whether any of the nine patents are invalid or not infringed. All nine patents remain issued and enforceable. Companies selling comparable orthotic foot support products should treat them as active IP risk.
A dismissal without merits creates no precedent on validity or infringement. Applied Biokinetics remains free to assert the same patents against other defendants. Any protection CVS or Mueller obtained is likely contractual, not judicial. The absence of an invalidity ruling means no inter partes review estoppel or collateral estoppel arises from this proceeding.
Common causes include a settlement mooting the appeal, voluntary withdrawal by the appellant, or a jurisdictional defect identified post-filing. The 654-day duration — consistent with cases that progressed through briefing — suggests a substantive resolution may have been reached before oral argument, potentially including a licensing agreement or covenant not to sue, though the public record does not confirm this.
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