by Dennis Crouch

This is the second post about the DTSA case Insulet Corp. v. EOFlow, Co., No. 2025-1807 (Fed. Cir. May 28, 2026). The last post covered the merits. This one is about appellate jurisdiction, and about a jurisdictional holding whose reach may run well beyond its modest-looking facts. Although Insulet's original complaint included a patent infringement claim, Insulet voluntarily dismissed that claim without prejudice and amended the complaint to remove it, a step that ordinarily moves the appeal to the regional circuit. The Federal Circuit kept the case anyway. It held that the dismissal was effectively with prejudice because the patent statute's six-year recovery period, 35 U.S.C. § 286, had run on one of the infringing acts Insulet had pleaded.

The Federal Circuit hears appeals in patent cases, not in trade secret cases. The jurisdictional statute, though, is overinclusive. When a single action mixes patent and non-patent claims, the patent claims pull the entire appeal into the Federal Circuit, even if only the non-patent issues are contested on appeal. The route the court used to keep Insulet matters beyond this case, because it can apply to a broad class of voluntary dismissals.

Although I have not run the numbers on this, my experience is that most patent litigation involve claims to the full six years of back damages. That means that any dismissal of the patent claims - even on the day following the complaint filing - would be captured by this exception and direct any eventual appeal (of the non-patent issues) to the Federal Circuit.

This is a situation where, I believe, the court should have done more work in a modified Gunn v. Minton analysis to determine whether the case should have remained with the regional circuit.