Applied Biokinetics v. CVS & Mueller: Federal Circuit Appeal Dismissed After 654 Days
Applied Biokinetics LLC pursued CVS Pharmacy and Mueller Sports Medicine over 10 patents covering disposable orthotic foot support systems and plantar fasciitis treatment. The Federal Circuit dismissed the appeal under Fed. R. App. P. 42(b) with each party bearing its own costs — a procedural exit that leaves the underlying merits unresolved after nearly two years.
Ten orthotic patents, two major defendants, zero merits ruling
Applied Biokinetics LLC — holder of a broad portfolio spanning 10 US patents covering disposable two-part orthotic foot support strap systems and plantar fasciitis treatment technology — filed an infringement appeal (Case No. 22-2038) against CVS Pharmacy, Inc. and Mueller Sports Medicine, Inc. at the Court of Appeals for the Federal Circuit. The appeal was docketed on 19 July 2022 and concerned products marketed in the consumer orthopedic and sports medicine space.
The Federal Circuit dismissed the appeal on 3 May 2024 pursuant to Fed. R. App. P. 42(b), the rule governing voluntary dismissal of appeals by agreement or on motion of the parties. The court ordered each side to bear its own costs, which is the standard arrangement under Rule 42(b) absent a contrary stipulation. No merits opinion was issued, meaning the appellate court made no determination on infringement, validity, or claim construction.
The 654-day duration before dismissal is notably longer than typical Rule 42(b) exits, suggesting the parties engaged in extended post-filing negotiations or awaited the outcome of parallel proceedings before agreeing to withdraw. The mutual cost-bearing arrangement is consistent with a negotiated resolution, though the public record does not confirm whether a settlement, licence, or other commercial arrangement was reached. What drove the parties to dismiss rather than proceed to a merits ruling remains unconfirmed from publicly available documents.
Filing to Appeal Dismissed in 654 days
654 days — longer than the median Federal Circuit appeal disposition time of ~400 days
Appeal dismissed under Rule 42(b): what the exit means for both sides
Rule 42(b) dismissal: a procedural exit with no merits ruling
Fed. R. App. P. 42(b) allows an appeal to be dismissed on the motion of the appellant or by stipulation of all parties. The Federal Circuit’s dismissal here produced no opinion on infringement or validity. The lower court’s record stands undisturbed at the appellate level, but no precedential finding was made. This mechanism is commonly used when parties reach a resolution after briefing has begun but before oral argument or decision.
No merits adjudicationApplied Biokinetics exits without appellate vindication — or defeat
For Applied Biokinetics, dismissal under Rule 42(b) means the Federal Circuit did not rule on the merits of its infringement claims. The patents remain in force and can theoretically be asserted in future proceedings. However, no appellate precedent was established in their favour. The mutual cost-bearing order suggests neither party extracted a clear concession, leaving the commercial outcome of the dispute ambiguous from the public record.
Patents remain enforceableCVS and Mueller avoid a Federal Circuit merits ruling
CVS Pharmacy and Mueller Sports Medicine secured dismissal without any appellate finding of infringement against them. No injunction or damages ruling was affirmed or reversed. The each-side-bears-own-costs arrangement means defendants did not recover legal fees. Whether any product design changes, licence, or commercial settlement accompanied the dismissal is not disclosed in the public docket. Future assertion of the same patents against these parties would likely face res judicata analysis depending on the lower court’s final disposition.
No infringement findingOrthotic IP landscape: portfolio strength untested at appellate level
With 10 patents covering foot support and plantar fasciitis treatment left without Federal Circuit scrutiny, the Applied Biokinetics portfolio remains a credible enforcement risk for competitors and retailers in the consumer orthopedic space. Third parties — including sports medicine brands and pharmacy chains — cannot rely on this dismissal as a validity or non-infringement shield. Companies commercialising plantar fasciitis or orthotic strap products should treat the portfolio as active and conduct independent FTO analysis.
Portfolio risk persistsFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | APPLIED BIOKINETICS LLC | Company | Orthotic technology IP licensor — holder of US10299953 and 9 further foot support patentsSearch in Eureka ↗ |
| Defendant | CVS Pharmacy, Inc. | Company | CVS Pharmacy, Inc. (retail pharmacy chain) 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 dismissing the appeals under Fed. R. App. P. 42(b) is a procedural disposition, not a merits ruling. The court made no finding on infringement, patent validity, or claim construction. The mutual cost-bearing arrangement — standard under Rule 42(b) — is neutral and does not imply either party conceded liability. Both parties are left in materially the same position as before the appeal, with the lower court record unaffected by any appellate pronouncement.
US10299953 and 9 further patents — orthotic foot support and plantar fasciitis treatment
The Applied Biokinetics portfolio spans 10 US patents covering two principal product categories: disposable two-part orthotic foot support strap systems and systems for the treatment of plantar fasciitis. The portfolio spans a wide filing range — from application US08/716572 (suggesting priority potentially in the mid-1990s) through to US15/240783 — indicating layered claim coverage built over decades. The earliest issued patent in the set, US5861348, likely covers foundational strap architecture, while later patents such as US10299953 and US10212987 reflect iterative refinements and potentially broader method claims.
From a competitive intelligence perspective, a 10-patent portfolio covering both the physical strap system and the treatment method creates interlocking claim coverage that is difficult to design around without potentially implicating multiple patents. The involvement of both a major pharmacy retailer (CVS) and a specialist sports medicine brand (Mueller) suggests the patents read on commercially distributed consumer orthopedic products. For any company active in foot orthotics, plantar fasciitis bracing, or related therapeutic strap products, this portfolio represents a material enforcement risk that warrants systematic FTO analysis.
Should you run an FTO against US10299953 and the Applied Biokinetics portfolio?
Any company designing, manufacturing, importing, or retailing orthotic foot support straps or plantar fasciitis treatment devices should treat the Applied Biokinetics portfolio as an active enforcement risk. The Federal Circuit dismissal did not invalidate or limit any of the 10 patents. Retailers in particular — as illustrated by CVS’s position as a named defendant — are not insulated from infringement claims by virtue of being distributors rather than manufacturers. R&D and procurement teams should assess their product lines before launch or new supplier agreements.
PatSnap Eureka’s FTO Search Agent can map each of the 10 Applied Biokinetics patent numbers against your specific product configurations, identify claim elements that may read on your orthotic strap or plantar fasciitis product designs, and flag prosecution history estoppel or prior art that may limit claim scope. Eureka’s portfolio visualisation tools allow IP teams to track expiry dates across the full 10-patent set and prioritise which patents require the deepest design-around analysis.
Run a freedom-to-operate analysis on US10299953 to assess your product’s exposure
Run FTO in Eureka →Similar Federal Circuit appeals in orthotic and sports medicine patent litigation
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What this case signals for the orthotic and sports medicine IP landscape
A 10-patent Federal Circuit appeal dismissed after 654 days sends a clear signal: portfolio breadth and litigation persistence matter in consumer orthopedic IP.
Rule 42(b) exits preserve future enforcement options for patent holders
Unlike a merits loss, a Rule 42(b) dismissal does not extinguish the patents or create adverse appellate precedent. Applied Biokinetics retains the ability to assert its orthotic portfolio against other infringers or in new proceedings. IP teams monitoring this space should not treat this dismissal as a signal that the patents are weak or abandoned.
Retail pharmacy defendants face growing orthopedic patent exposure
CVS Pharmacy’s presence as a named defendant illustrates that retailers — not just manufacturers — are targeted in orthotic and sports medicine patent actions. Procurement and legal teams at pharmacy chains and sporting goods retailers should audit their private-label and third-party orthotic product lines against active patent portfolios in this space.
APPLIED v CVS — key questions answered
The dismissal under Fed. R. App. P. 42(b) is a procedural exit with no merits ruling. All 10 Applied Biokinetics patents remain in force and enforceable. The Federal Circuit made no finding on infringement or validity. The patents can still be asserted against CVS, Mueller, or third parties in future proceedings, subject to any private settlement terms not disclosed in the public record.
Applied Biokinetics asserted 10 US patents, including US10299953, US8814818, US8414511, US7902420, US10212987, US8968229, US8834398, US5861348, USD3759, and US8216162. The patents cover disposable two-part orthotic foot support strap systems and systems for the treatment of plantar fasciitis.
The 654-day duration before a Rule 42(b) dismissal is notably longer than typical voluntary dismissals, which are often filed early in the appellate process. This timeline suggests the parties may have engaged in extended negotiations, awaited parallel proceedings, or completed substantial briefing before agreeing to withdraw the appeal. The public record does not disclose the specific reasons for the delay.
A Rule 42(b) appellate dismissal does not itself bar future infringement actions. However, the res judicata and claim preclusion effect depends on the final disposition at the district court level and whether any settlement agreement includes a release. Third parties not party to this case are entirely unaffected and face no preclusion from this dismissal.
Applied Biokinetics LLC was represented by Karl Rupp and Robert Katz of Katz PLLC and Sorey & Hoover LLP. CVS Pharmacy and Mueller Sports Medicine were represented by Jeanne Marie Gills, Justin Sobaje, Richard Spencer Montei, and Tiffany Sung of Foley & Lardner, LLP.
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