NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
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COMMIL USA, LLC,
Plaintiff-Appellee,
v.
CISCO SYSTEMS, INC.,
Defendant-Appellant.
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2012-1042
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Appeal from the United States District Court for the
Eastern District of Texas in case no. 07-CV-0341,
Magistrate Judge Charles Everingham.
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ON PETITION FOR PANEL REHEARING AND
REHEARING EN BANC
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WILLIAM F. LEE, Wilmer Cutler Pickering Hale and
Dorr LLP, of Boston, Massachusetts, filed a petition for
defendant-appellant. With him on the petition were
MARK C. FLEMING, JONATHAN W. ANDRON and FELICIA H.
ELLSWORTH; and WILLIAM G. MCELWAIN, of Washington,
DC. Of counsel on the petition were HENRY B. GUTMAN,
Simpson Thacher & Bartlett LLP, of New York, New
York; and JEFFREY E. OSTROW, HARRISON J. FRAHN, IV,
PATRICK E. KING, and JONATHAN SANDERS, of Palo Alto,
California.
MARK S. WERBNER, Sayles Werbner, P.C., of Dallas,
Texas, filed a response to the petition for plaintiff-
appellee. With him on the response were RICHARD A.
SAYLES and MARK D. STRACHAN. Of counsel on the
response were LESLIE V. PAYNE, NATHAN J. DAVIS and
MIRANDA Y. JONES, Heim, Payne & Chorush, of Houston,
Texas.
ROBERT L. KINDER JR., Dickstein Shapiro LLP, of
Washington, DC, for amici curiae SAP America, Inc. and
SAS Institute Inc. in support of the petition for rehearing
en banc. With him on the brief were JEFFREY K.
SHERWOOD; and DAWN L. RUDENKO, of New York, New
York.
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Before RADER, Chief Judge, NEWMAN, LOURIE, DYK,
PROST, MOORE, O’MALLEY, REYNA, WALLACH, TARANTO,
and CHEN, Circuit Judges.1
O’MALLEY, Circuit Judge, dissenting without opinion from
the denial of the petition for rehearing en banc.
PER CURIAM.
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ORDER
A combined petition for panel rehearing and
rehearing en banc was filed by defendant-appellant, and a
response thereto was invited by the court and filed by
plaintiff-appellee. The petition for rehearing was referred
to the panel that heard the appeal, and thereafter the
1 Circuit Judge Hughes did not participate.
petition for rehearing en banc and response were referred
to the circuit judges who are authorized to request a poll
of whether to rehear the appeal en banc. A poll was
requested, taken, and failed.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petition of defendant-appellant for panel rehearing is
denied.
(2) The petition of defendant-appellant for rehearing en banc
is denied.
(3) The mandate of the court will issue on November 1, 2013.
FOR THE COURT
October 25, 2013 /s/ Daniel E. O’Toole
Date Daniel E. O’Toole
Clerk