Applied Biokinetics v. CVS & Mueller: Federal Circuit Appeal Dismissed After 654 Days
Applied Biokinetics LLC brought an infringement action against CVS Pharmacy and Mueller Sports Medicine over nine patents covering disposable orthotic foot support strap systems and plantar fasciitis treatment. The Federal Circuit appeal was dismissed by mutual agreement under Fed. R. App. P. 42(b), with each side bearing its own costs — a resolution that spans 654 days from filing to close.
Nine orthotic patents, two retail defendants, one consensual exit
Applied Biokinetics LLC, a holder of an extensive portfolio covering foot orthotic and plantar fasciitis treatment technology, filed this appeal at the Federal Circuit on 19 July 2022 against CVS Pharmacy, Inc. and Mueller Sports Medicine, Inc. The underlying infringement action centred on nine US patents, including US10299953, US8814818, US8414511, US7902420, US10212987, US8968229, US8834398, US5861348, and US8216162, collectively covering disposable two-part orthotic foot support strap systems and methods for treatment of plantar fasciitis.
The Federal Circuit appeal was terminated on 3 May 2024 when the parties jointly agreed to dismiss the proceedings under Federal Rule of Appellate Procedure 42(b), with each side bearing its own costs. This procedural mechanism requires a signed agreement of the parties and results in no merits adjudication at the appellate level — the court issues no ruling on claim construction, validity, or infringement. The cost-neutral structure suggests the parties reached a negotiated resolution, though the specific terms remain undisclosed in the public record.
A 654-day duration at the Federal Circuit, concluding in a Rule 42(b) consensual dismissal, is broadly consistent with cases that settle during appellate briefing or shortly before oral argument. The absence of any fee-shifting order and the symmetrical cost allocation provides no signal of which party held the stronger litigation position at the time of resolution. What drove the parties to resolve rather than pursue a Federal Circuit merits ruling — whether claim scope uncertainty, commercial considerations, or licensing terms — is not apparent from the public docket.
Filing to Appeal Dismissed in 654 days
654 days from Federal Circuit filing to dismissal — consistent with negotiated resolution timeline
Appeal dismissed by agreement: what Rule 42(b) means for both parties
Rule 42(b) dismissal ends the appeal without a merits ruling
Federal Rule of Appellate Procedure 42(b) permits parties to jointly dismiss a pending appeal by filing a signed agreement. The Federal Circuit issues no opinion on claim construction, validity, or infringement — the appellate record is closed procedurally, not substantively. Any district court rulings that formed the basis of the appeal therefore remain the operative legal baseline, though their precedential weight is unaffected by this dismissal.
No merits adjudicationApplied Biokinetics exits without an adverse Federal Circuit ruling
For Applied Biokinetics, a Rule 42(b) dismissal avoids the risk of an unfavourable Federal Circuit opinion that could narrow claim scope or affirm an invalidity finding. The nine asserted patents remain on the register in whatever state they stood at the close of district court proceedings. Whether Applied Biokinetics secured licensing revenue or other commercial consideration as part of the agreed resolution is not disclosed in the public record, but the cost-neutral order is consistent with a negotiated outcome.
Patents remain on registerCVS and Mueller avoid a Federal Circuit infringement or validity ruling
CVS Pharmacy and Mueller Sports Medicine similarly benefit from no binding appellate ruling on infringement or claim scope. However, without an invalidity determination on the record, the nine Applied Biokinetics patents cannot be treated as judicially invalidated. Future product launches in the orthotic foot support and plantar fasciitis treatment space from either defendant — or third parties — remain exposed to these patents unless separate IPR or district court proceedings have addressed validity.
No invalidity ruling securedOrthotic IP landscape left unresolved for the broader market
A nine-patent portfolio covering foot orthotic strap systems and plantar fasciitis treatment, asserted against a major retail pharmacy chain and a leading sports medicine brand, signals the commercial significance of this technology space. The absence of a Federal Circuit merits ruling means competitors in the orthotic and foot-care product categories cannot rely on this case to design around or validate product freedom. Applied Biokinetics’ portfolio continues to present enforcement risk to manufacturers and retailers in this segment.
Enforcement risk persistsFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | APPLIED BIOKINETICS LLC | Company | Orthotic foot support technology IP holder — holder of US10299953 and 8 related patentsSearch in Eureka ↗ |
| Defendant | CVS Pharmacy, Inc. | Company | CVS Pharmacy, Inc. (retail) and Mueller Sports Medicine, Inc. (sports medicine 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 dismissal order is entered by consent under Fed. R. App. P. 42(b), a purely procedural mechanism that requires only the parties’ signed agreement — the Federal Circuit exercises no review of the merits. The phrase ‘with each side to bear their own costs’ is standard for agreed dismissals and carries no inference about the relative strength of the parties’ positions. No claim construction, validity, or infringement findings are established by this order. The underlying district court record remains the final substantive disposition of those issues.
US10299953 — Disposable orthotic foot support strap system and related portfolio
The asserted portfolio spans nine US patents with application dates ranging from the mid-1990s through approximately 2016, covering both apparatus and method claims in the field of orthotic foot support. The earliest patent, US5861348, reflects foundational work in plantar fascia treatment devices, while later patents including US10299953 and US10212987 represent continuation-generation refinements addressing disposable, two-part strap configurations. The portfolio’s breadth — covering system architecture, treatment methods, and specific product formats — is characteristic of a long-term prosecution strategy designed to layer protection around a core technology.
For competitors in the orthotic, sports medicine, and consumer foot-care sectors, this portfolio presents multi-layer risk. The combination of method and apparatus claims across nine patents means that designing around one patent does not necessarily clear the others. The involvement of CVS Pharmacy as a retail defendant underscores that distribution — not just manufacturing — can trigger infringement exposure. Companies developing plantar fasciitis supports, arch supports, or adhesive foot strap systems should treat this portfolio as an active enforcement risk regardless of the Federal Circuit appeal’s dismissal.
Should you run an FTO against Applied Biokinetics’ orthotic patent portfolio?
Any R&D team, product manager, or procurement officer working on disposable foot orthotics, plantar fasciitis supports, adhesive foot strap systems, or related consumer foot-care products should treat this nine-patent portfolio as a live FTO priority. The Federal Circuit dismissal does not extinguish any patent rights. Retailers sourcing private-label or branded plantar fasciitis products face the same distribution-level exposure that drew CVS into this litigation.
PatSnap Eureka’s FTO Search Agent can map your product’s technical features against each of the nine Applied Biokinetics patents, flagging independent claims most likely to read on disposable strap configurations and treatment method steps. Eureka’s claim-chart generation and prosecution history analysis tools help identify file-wrapper estoppel arguments and prior art gaps that may support design-around or invalidity strategies — reducing the time required for structured FTO from weeks to hours.
Run a freedom-to-operate analysis on US10299953 to assess your product’s exposure
Run FTO in Eureka →Similar Federal Circuit orthotic and medtech patent infringement appeals
Cases involving multi-patent orthotic and plantar fasciitis treatment portfolios appealed to the Federal Circuit, with retail and sports medicine defendants.
What this case signals for the orthotic foot support IP landscape
A nine-patent portfolio withdrawn from Federal Circuit review leaves the orthotic and plantar fasciitis treatment market without appellate clarity on claim scope or validity.
Rule 42(b) exits preserve optionality — and uncertainty — for all sides
When a Federal Circuit appeal ends by mutual dismissal, no claim construction or validity ruling is placed on the record. For the orthotic foot-care sector, this means the applied Biokinetics portfolio remains a live enforcement tool. Competitors and retailers should not treat this dismissal as legal clearance for products in the plantar fasciitis treatment or foot support strap categories.
Nine-patent portfolios in niche medtech attract retail defendants
The inclusion of CVS Pharmacy alongside Mueller Sports Medicine reflects a common enforcement strategy: asserting broad portfolios against retail distributors as well as product manufacturers. This dual-defendant approach increases settlement leverage and widens the commercial pressure on the accused supply chain. IP teams at retail pharmacy or consumer health product companies should monitor concentrated orthotic patent portfolios proactively.
APPLIED v CVS — key questions answered
The Rule 42(b) dismissal is purely procedural — it ends the Federal Circuit appeal by mutual agreement without any merits ruling. The nine Applied Biokinetics patents (US10299953, US8814818, US8414511, US7902420, US10212987, US8968229, US8834398, US5861348, US8216162) remain on the register and enforceable in their post-district court state. No claim construction or invalidity finding is established by the Federal Circuit order.
Naming both a product manufacturer (Mueller Sports Medicine) and a retail distributor (CVS Pharmacy) is a common enforcement strategy that maximises commercial leverage. Under US patent law, selling or offering for sale an infringing product can constitute direct infringement, meaning retailers face liability independently of manufacturers. This dual-defendant approach typically accelerates settlement discussions by creating pressure across the supply chain.
The order that each side bear its own costs under Rule 42(b) is standard for agreed dismissals and does not signal which party was in a stronger position. Had the Federal Circuit found the case exceptional under 35 U.S.C. § 285, fee-shifting could have been ordered. The symmetric cost allocation is consistent with a negotiated resolution where neither party conceded a dominant legal position, though the specific terms of any settlement remain undisclosed.
The nine asserted patents cover disposable two-part orthotic foot support strap systems and methods for treatment of plantar fasciitis. The portfolio spans both apparatus and method claims, with application dates from the mid-1990s through approximately 2016, suggesting layered protection around a core foot orthotic technology platform rather than a single product design.
No. A Rule 42(b) consensual dismissal produces no written opinion and establishes no precedent. The Federal Circuit does not reach the merits of any claim construction, infringement, or validity question. Third parties cannot rely on this dismissal as legal authority when assessing their own exposure to the Applied Biokinetics portfolio or designing around the asserted claims.
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