Should there be a pro-inventor canon of construction?

December 13th, 2018

The Federal Circuit sat en banc last Friday in Procopio v. Wilkie.  Like others before it, this en banc oral argument was interesting — even though it was not a patent case. The case dealt with statutory interpretation — particularly whether the statute in dispute conferred benefits on “blue water” navy veterans who possibly suffered from exposure to herbicides like Agent Orange during their service in the Republic of Vietnam. [Link] For more background on the case with links to the briefs, see this [link].

Some of the issues discussed were: what is the difference between off-shore waters, waters adjacent, waters off-shore, and territorial seas; what is the definition of the Republic of Vietnam; what weight should the court give to dictionaries and atlases when interpreting terms in a statute; sovereignty; how should definitions from the international court of justice be used in interpreting a statute; the Supreme Court’s decision in SAS; Chevron deference; the sovereign boundary of Purpleland; and others.

What really caught my ear was the discussion of the “pro-veteran canon of construction.”  There are certain “pro” canons that have developed through jurisprudence, such as pro-veteran, pro-elderly, pro-Indian, etc. Given the venerable position that inventors/entrepreneurs occupy in American society, I was trying to think if there is anything akin to the pro-veteran canon of construction in patent law.  I suppose to some extent the doctrine of equivalents benefits inventors.  But, I think of that as an equitable doctrine rather than a canon of statutory construction.  Is there any place for a pro-inventor canon of construction when applying exceptions to 35 U.S.C. §101? To the AIA?

Judge Hughes did not take part in the decision to grant en banc review and I did not hear him during the oral argument; so, it appears that he has recused himself from this case.  You might recall that Judge Hughes has an extensive background in prior Agent Orange cases, arguing for the DOJ and the Veteran’s Administration.  In his Senate questionnaire he listed Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) as his most significant case during his DOJ career prior to joining the court.  He was awarded a commendation for his handling of that case which “resulted in several billions of dollars in monetary savings.” [Link].  It would seem this case puts that decision in its cross-hairs.

You might get a chuckle over Judge Newman’s phrase:  “take your judicial hands off this statute and leave it to the agency” — around the 56:00+ mark.  I’m not sure if she was using a Charlton Heston accent or not.

There were lots of questions about past and pending attempts at legislation and epidemiological studies — it was unclear if those questions were directed at record evidence.



December 12th, 2018

When a party cobbles together multiple purported abstract ideas in an attempt to characterize a claim as an abstract idea, should that be called a Frankenstraction?  I think Mary Shelley would have said yes.

Audio of Helsinn v. Teva oral argument at the Supreme Court

December 8th, 2018

The Supreme Court has released the audio recording of the oral argument in Helsinn v. Teva.  That recording is available below:

How many new judgeships would it take?

December 6th, 2018

I was looking at all the Rule 36 decisions issued today and wondering how many new federal judgeships it would take to cure the Federal Circuit’s Rule 36 predicament.  I suppose that if quite a few judgeships need to be created to keep up with the current load that Congress might start taking a hard look at the size of a new court.  If Congress takes a hard look at the size of a new court, Congress might start to think let’s split the new court into two — a pure patent court and a generalist court.  If Congress created a pure patent court and a generalist court, some of the current judges of the Federal Circuit would probably be assigned to the generalist court and others with a technical background to the patent court.  Perhaps that’s why we never hear the Federal Circuit judges speak about their Rule 36 predicament or needing new judges assigned to the court.  Or, perhaps not.  I can’t recall ever hearing about one of the Federal Circuit judges speaking at a conference and lamenting about how many Rule 36 judgments they are forced to issue.  Surely it must bother their judicial consciences.

Transcript of Helsinn v. Teva Oral Argument at Supreme Court

December 4th, 2018

The Court heard oral argument today in HELSINN HEALTHCARE S.A. v. TEVA PHARMACEUTICAL USA, INC., ET AL.  The transcript of the oral argument is available [here].

Director Iancu and Patent Eligibility Examination Reform

November 30th, 2018

Director Iancu has shown bold leadership in addressing the patent eligibility quagmire currently plaguing the US patent system.  His latest speech is available [here]. So, what grade would you give him on these efforts, so far?

What grade would you give Director Iancu on patent eligibility examination reform?

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Quote of the day

November 28th, 2018

The district court concluded that the claims were directed to the abstract idea of “storing, organizing, and retrieving memory in a logical table” or, more simply, “the concept of organizing information using tabular formats.” J.A. 321 (emphasis omitted). Likewise, Microsoft urges the court to view the claims as being directed to “the concepts of organizing data into a logical table with identified columns and rows where one or more rows are used to store an index or information defining columns.” Appellee’s Br. 17. However, describing the claims at such a high level of abstraction and untethered from the language of the claims all but ensures that the exceptions to § 101 swallow the rule. See Alice, 134 S.Ct. at 2354 (noting that “we tread carefully in construing this exclusionary principle [of laws of nature, natural phenomena, and abstract ideas] lest it swallow all of patent law”); cf. Diamond v. Diehr, 450 U.S. 175, 189 n. 12, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981) (cautioning that overgeneralizing claims, “if carried to its extreme, make[s] all inventions unpatentable because all inventions can be reduced to underlying principles of nature which, once known, make their implementation obvious”).

ENFISH, LLC v. Microsoft Corp., 822 F.3d 1327, 1337 (Fed. Cir. 2016)(emphasis added).

“Alligator arms”

November 26th, 2018


I have been trying to think of an expression that captures the situation when the Federal Circuit fails to give full meaning or exposition to a claim limitation.  For example, this might occur in patent eligibility determinations when a method claim is distilled down to just a recitation of unrestricted verbs.

I think “alligator arms” would be a useful descriptor.  Football fans will recognize that phrase as describing a pass receiver running a passing route across mid-field who in the interest of self-preservation pulls back his extended arms to protect his ribcage just before being hit hard by a defender — and thus misses the catch. “He really alligator armed that catch,” the announcer might say.  This is sometimes referred to as short-arming the catch or having T-rex arms, as well.

Some might say that a classic example of alligator arms was the Federal Circuit decision in Electric Power Group, LLC v. ALSTOM SA, 830 F.3d 1350 (Fed. Cir. 2016), where the court distilled claim 12 from this:

12. A method of detecting events on an interconnected electric power grid in real time over a wide area and automatically analyzing the events on the interconnected electric power grid, the method comprising:

receiving a plurality of data streams, each of the data streams comprising sub-second, time stamped synchronized phasor measurements wherein the measurements in each stream are collected in real time at geographically distinct points over the wide area of the interconnected electric power grid, the wide area comprising at least two elements from among control areas, transmission companies, utilities, regional reliability coordinators, and reliability jurisdictions;

receiving data from other power system data sources, the other power system data sources comprising at least one of transmission maps, power plant locations, EMS/SCADA systems;

receiving data from a plurality of non-grid data sources;

1352*1352 detecting and analyzing events in realtime from the plurality of data streams from the wide area based on at least one of limits, sensitivities and rates of change for one or more measurements from the data streams and dynamic stability metrics derived from analysis of the measurements from the data streams including at least one of frequency instability, voltages, power flows, phase angles, damping, and oscillation modes, derived from the phasor measurements and the other power system data sources in which the metrics are indicative of events, grid stress, and/or grid instability, over the wide area;

displaying the event analysis results and diagnoses of events and associated ones of the metrics from different categories of data and the derived metrics in visuals, tables, charts, or combinations thereof, the data comprising at least one of monitoring data, tracking data, historical data, prediction data, and summary data;

displaying concurrent visualization of measurements from the data streams and the dynamic stability metrics directed to the wide area of the interconnected electric power grid;

accumulating and updating the measurements from the data streams and the dynamic stability metrics, grid data, and non-grid data in real time as to wide area and local area portions of the interconnected electric power grid; and

deriving a composite indicator of reliability that is an indicator of power grid vulnerability and is derived from a combination of one or more real time measurements or computations of measurements from the data streams and the dynamic stability metrics covering the wide area as well as non-power grid data received from the non-grid data source

into this:

The focus of the asserted claims, as illustrated by claim 12 quoted above, is on collecting information, analyzing it, and displaying certain results of the collection and analysis.

Electric Power Group, LLC v. ALSTOM SA, 830 F.3d at 1353.


Do you think the Federal Circuit "alligator armed" the patent eligibility analysis in Electric Power Group?

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Which body of law do you find less clear — patent law or trademark law?

November 21st, 2018

During the oral argument for the recent Converse/Chuck Taylor case, Judge Dyk was asking appellant’s counsel about a nuance of the test for secondary meaning under trademark law.  It caused Judge Dyk to note that he thought patent law sometimes seems pretty clear when compared to some of the spongy concepts in trademark law.  That prompted laughter from the courtroom, as did Judge O’Malley’s follow-on comment that it was a scary thought.  You can listen to those comments here:



Excluding patent eligibility from patent law, which body of law do you think is less clear -- patent law or trademark law?

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Happy Thanksgiving!

Quote of the day: Ancora v. HTC

November 16th, 2018

Computers are improved not only through changes in hardware; “[s]oftware can make non-abstract improvements to computer technology . . . .” Enfish, 822 F.3d at 1335; see Finjan, 879 F.3d at 1304. We have several times held claims to pass muster under Alice step one when sufficiently focused on such improvements.

Ancora Technologies, Inc. v. HTC America, Inc. et al., Appeal No. 2018-1404 (Fed. Cir. Nov. 16, 2018).