Mark Your Calendar: Supreme Court Oral Argument Date Set for Oil States

October 14th, 2017

The Supreme Court has set the date for oral argument in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC.  The argument will take place on November 27, 2017.  The question presented in Oil States is:

Issue: Whether inter partes review, an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents, violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.

Link to ScotusBlog: [Link].

The oral argument in SAS Institute Inc. v. Matal will also take place on November 27, 2017.  The question presented in that case is:

Issue: Whether 35 U.S.C. § 318(a), which provides that the Patent Trial and Appeal Board in an inter partes review “shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner,” requires that Board to issue a final written decision as to every claim challenged by the petitioner, or whether it allows that Board to issue a final written decision with respect to the patentability of only some of the patent claims challenged by the petitioner, as the U.S. Court of Appeals for the Federal Circuit held.

Link to ScotusBlog:  [Link].

Have you ever noticed how many amicus briefs the Houston Intellectual Property Law Association (HIPLA) files.  They really put to shame other bar organizations around the country, as far as engagement in the amicus process is concerned.

Oral argument of the week: RADWARE, LTD. v. F5 Networks, Inc.

October 13th, 2017

The oral argument of the week comes from RADWARE, LTD. v. F5 NETWORKS, INC., No. 2017-1212 (Fed. Cir. Sept. 18, 2017).

Those of you who follow the Finjan line of cases and whether inaccessible modules of software code can be considered capable of infringing will find this case interesting — particularly with respect to damages issues.

I have noted before that I am not particularly fond of the decision in Finjan because I think it requires a claim to be construed to cover inoperable features — and similarly converts the claim to a mere aggregation of elements.  You can see my previous post [here].

The oral argument from RADWARE is available here:

 

The court’s Rule 36 treatment of the appeal and cross-appeal in RADWARE is available [here].

For more background, one of Judge Whyte’s rulings from the district court is available [here].

Oral Argument of the Day: Intellectual Ventures I, LLC v. Motorola Mobility LLC

October 12th, 2017

The oral argument of the day is from INTELLECTUAL VENTURES I LLC v. MOTOROLA MOBILITY LLC, No. 2016-1795 (Fed. Cir. Sept. 13, 2017).

The oral argument will be of interest to those who follow Centillion v. Qwest issues.

The court’s opinion is available [here].

The oral argument recording is accessible below:

Not your typical analogy

October 5th, 2017

There are analogies — and then there are analogies that make you sit up and take notice.

Judge O’Malley was discussing contingent threats with an advocate during the oral argument of FIRST DATA CORPORATION v. INSELBERG, No. 2016-2677 (Fed. Cir. Sept. 15, 2017) when she used this real-life example of having received a death threat from a litigant — presumably during her district court judge days — and the US Marshall’s office having classified it as merely a contingent threat:

Oral argument of the day: Enzo v. Applera

September 25th, 2017

The oral argument of the day is from ENZO BIOCHEM INC. et al. v. APPLERA CORP. et al., Appeal No. 2016-1881 (Fed. Cir. Aug. 2, 2017).  The oral argument is interesting for its discussion of doctrine of equivalents issues — particularly the specific exclusion principle.

You can listen to the oral argument here:

 

You can read Judge O’Malley’s opinion for the court [here].

Hot Bench: Ultratec v. CaptionCall

September 20th, 2017

The oral argument in Ultratec, Inc. v. CaptionCall, LLC is a good example of a hot bench, Federal Circuit style.

The oral argument is available here:

 

Judge Moore’s opinion for the court is available here:  [Link].

If you note the 1:08:20 mark, the attorney for the Solicitor’s Office references examples of proceedings of the Board that she has listened in on.  I thought that was curious.  One normally does not think of the Solicitor’s Office as listening in on PTAB proceedings.

Federal Circuit peeling out for the Big Apple

September 18th, 2017

 

Next month, the Federal Circuit will be sitting in New York for part of its oral argument calendar.    Here is a list of the oral argument proceedings as published on the Federal Circuit website on September 15, 2017:

Panel A:  Tuesday, October 03, 2017, 10:00 A.M. — U.S. Court of International Trade, 1 Federal Plaza, New York, NY 10278, Ceremonial Courtroom
16-2300 MSPB O’Lague v. DVA [argued]
17-1120 DCT Janssen Biotech, Inc. v. Celltrion Healthcare Co., Ltd. [argued]
17-1257 PATO In Re Janssen Biotech, Inc. [argued]
17-1147 DCT Intellectual Ventures I LLC v. Erie Indemnity Company [argued]
Panel B:  Tuesday, October 03, 2017, 2:00 P.M. — Benjamin N. Cardozo School of Law, 55 5th Ave., New York, NY, 10003, Jacob Burns Moot Courtroom
16-2209 PATO PAVO Solutions LLC v. Kingston Technology Company [argued]
17-1010 DCT Amgen Inc. v. Apotex Inc. [argued]
17-1067 PATO In Re Levenstein [argued]
17-1218 CFC H.L. v. HHS [argued]
Panel C:  Wednesday, October 04, 2017, 10:00 A.M. — U.S. Court of Appeals for the Second Circuit, 40 Foley Square, New York, NY 10007, Courtroom 1505
16-2362 DCT InterDigital Communications v. ZTE Corporation [argued]
17-1033 DCT Classen Immunotherapies, Inc. v. Elan Pharmaceuticals, Inc. [argued]
17-1126 PATO In Re Docter Optics, SE [argued]
17-1405 CFC Simmons v. HHS [argued]
Panel D:  Wednesday, October 04, 2017, 2:00 P.M. — New York University Law School, 40 Washington Square South, New York, NY 10012, Greenberg Lounge
16-2307 PATO In Re Openings [argued]
16-2589 CFC Securiforce International v. US [argued]
16-2688 DCT R+L Carriers, Inc. v. Microdea, Inc. [argued]
17-1172 DCT Industrial Models, Inc. v. SNF, Inc. [argued]
Panel E:  Thursday, October 05, 2017, 10:00 A.M. — Fordham University School of Law, 150 West 62nd St., New York, NY 10023, Moot Courtroom 1-01
16-1770 DCT BASF Corporation v. Johnson Matthey Inc. [argued]
16-2386 DCT Travel Sentry, Inc. v. David Tropp [argued]
16-2745 PATO University of Maryland Biotech v. Presens Precision Sensing GMBH [argued]
17-1016 DCT ART+COM Innovationpool GmbH v. Google Inc. [argued]
17-1884 CFC Baker v. US [on the briefs]
Panel F:  Thursday, October 05, 2017, 10:00 A.M. — Columbia Law School, 435 W. 116th St., New York, NY 10027, Proskauer Auditorium Room 104
16-2140 PATO Droplets, Inc. v. Matal [argued]
16-2672 DCT Whitepages, Inc. v. Isaacs [argued]
17-1032 PATO Monsanto Technology LLC v. E.I. DuPont de Nemours [argued]
17-1041 DCT Nice Systems Ltd. v. ClickFox  Inc. [argued]
17-1597 MSPB Anderson v. OPM [on the briefs]

Updated Interim Eligibility Guidance Quick Reference Sheet

September 11th, 2017

The USPTO has updated its subject matter eligibility page with a new quick reference sheet entitled: “Interim Eligibility Guidance Quick Reference Sheet.”  It is reproduced below and [here].  The April 2017 version is available [here].  The end of July 2017 version is available [here].

_________________________________________________________________________________

A Legal Eagle’s Legal Eagle

September 5th, 2017

Back in 1984, the New York Times ran an article on William Bryson, now a senior judge of the Federal Circuit.  At the time, Judge Bryson was special counsel to the chief of the Organized Crime and Racketeering Section in the Department of Justice.

I thought his comments about eating at  Burger King prior to oral argument in New York were interesting [Link]:

For the oral argument, Mr. Bryson flies in the night before and studies in his hotel room ”either till I’m prepared, or I think it’s hopeless.”

Having It His Way

On every visit to each city where he handles cases, he has developed a ritual of having dinner and breakfast in the same undistinguished places. ”In New York, I go for dinner to a particular Burger King on Third Avenue,” he said. ”Burger King is perfect for my anxiety level. Otherwise, I’d be wasting good food on a churning stomach.”

He is ”crushed” if his regular place in any given city is closed when he arrives. ”I fear for the argument if that happens,” he said.

The typical oral argument may last 20 to 30 minutes. ”That’s not a lot of time for the anxiety I’ve described,” he conceded, ”but you can make a lot of mistakes in 10 minutes, which I’ve proved to be true.”

If Judge Bryson makes the trip with the Federal Circuit for oral arguments in New York in October, I wonder if he’ll keep up the Burger King tradition.

Texas’ Patent Agent Privilege case

September 1st, 2017

The oral argument for the Texas-patent-agent-privilege case is set for November 9, 2017 in front of the Texas Supreme Court.  Some of the briefs are available below.  See David Hricik’s post and brief below for more info. [Link]

APPELLATE BRIEFS
Date
Event Type Description Remarks Document
08/10/2017 Amicus Curiae Letter Received Received (instead of filed) Amicus Letter of American Intellectual Property Law Association. Submitted by Peter E. Mims of Vinson & Elkins LLP of Houston; and authored by Mark L. Whitaker, President of AIPLA.
03/13/2017 Amicus Curiae Brief received Received (instead of filed) Amicus Brief of Lawrence J. Fox.
03/01/2017 Amicus Curiae Letter Received Received (instead of filed) Amicus Letter of Intellectual Property Owners Association (IPO). Submitted by Sparkle T. Ellison of Boulware & Valoir of Houston, Texas.
02/28/2017 Reply Brief Relator Reply Brief on the Merits filed on behalf of Andrew Silver.
02/28/2017 Amicus Curiae Brief received Received (instead of filed) Amicus Brief of National Association of Patent Practitioners, Inc. Submitted by Louis J. Hoffman of Hoffman Patent Firm of Scottsdale, AZ; Shawn D. Blackburn of Susman Godfrey LLP of Houston, TX; and Ian B. Crosby of Susman Godfrey LLP of Seattle, WA.
02/27/2017 Amicus Curiae Letter Received Received (instead of filed) Amicus Letter of U.S. Section of Fédération Internationale Des Conseils En Propriété Intellectuelle (FICPI). Submitted by Christopher T. Blackford with Finnegan, Henderson, Farabow, Garrett & Dunner LLP of Washington, DC.
02/21/2017 Amicus Curiae Brief received Received (instead of filed) Amicus Brief of Austin Intellectual Property Law Association submitted by Stephen Dartt of DECHERT LLP of Austin, TX.
02/20/2017 Amicus Curiae Letter Received Received (instead of filed) Amicus Letter received and submitted on behalf of David Hricik.
02/08/2017 Amicus Curiae Brief received Received (instead of filed) Amicus Brief received from Houston Intellectual Property Law Association. Submitted by Daniel J. Krueger with Iselin Law PLLC of Cypress, Texas.
02/06/2017 Brief on the Merits Real Parties in Interest Real Party in Interest’s Brief on the Merits filed on behalf of Tabletop Media, LLC.
01/17/2017 Brief on the Merits Relator Relator’s Brief on the Merits filed on behalf of Andrew Silver.
10/24/2016 Reply to Petition for Writ of Mandamus Relator Reply in support of petition for writ of mandamus filed on behalf of Andrew Silver.
10/14/2016 Response to Petition for Writ of Mandamus Filed Real Parties in Interest Response to Petition filed on behalf of Tabletop Media, LLC
09/02/2016 Petition for Writ of Mandamus Relator Petition for Writ of Mandamus filed on behalf of Andrew Silver.
CASE EVENTS
Date Event Type Disposition Remarks Document
08/10/2017 Amicus Curiae Letter Received Amicus Letter of American Intellectual Property Law Association. Submitted by Peter E. Mims of Vinson & Elkins LLP of Houston; and authored by Mark L. Whitaker, President of AIPLA.
06/30/2017 Case set for oral argument Case set for oral argument This cause has been set for oral argument at 9:00 a.m., November 9, 2017.  Time allotted to argue:  20/20 minutes  (Justice Guzman not sitting)
06/16/2017 Mandamus Set to Argue
06/16/2017 Petition for Writ of Mandamus disposed Case set for oral argument The date and time for oral argument are yet to be determined.
03/13/2017 Amicus Curiae Brief received Amicus Brief of Lawrence J. Fox.
03/13/2017 Pro hac vice motion disposed Filing granted Motion in Support of Fox’s Motion Pro Hac Vice granted
03/13/2017 Pro hac vice motion disposed Filing granted Unopposed Motion for Admission Pro Hac Vice to appear as Amicus Curie granted
03/13/2017 Pro hac vice motion filed Motion in Support of Fox’s Motion Pro Hac Vice submitted by resident attorney Mr. Robert Blackwell.
03/13/2017 Pro hac vice motion filed Unopposed Motion for Admission Pro Hac Vice to appear as Amicus Curie filed on behalf of non resident attorney, Lawrence J. Fox.
03/01/2017 Amicus Curiae Letter Received Amicus Letter of Intellectual Property Owners Association (IPO). Submitted by Sparkle T. Ellison of Boulware & Valoir of Houston, Texas.
02/28/2017 Reply Brief Reply Brief on the Merits filed on behalf of Andrew Silver.
02/28/2017 Amicus Curiae Brief received Amicus Brief of National Association of Patent Practitioners, Inc. Submitted by Louis J. Hoffman of Hoffman Patent Firm of Scottsdale, AZ; Shawn D. Blackburn of Susman Godfrey LLP of Houston, TX; and Ian B. Crosby of Susman Godfrey LLP of Seattle, WA.
02/27/2017 Amicus Curiae Letter Received Amicus Letter of U.S. Section of Fédération Internationale Des Conseils En Propriété Intellectuelle (FICPI). Submitted by Christopher T. Blackford with Finnegan, Henderson, Farabow, Garrett & Dunner LLP of Washington, DC.
02/27/2017 Pro hac vice motion disposed Filing granted Shawn Blackburn’s Motion in Support of Louis J. Hoffman’s Motion for Admission Pro Hac Vice is granted.
02/27/2017 Pro hac vice motion disposed Filing granted Louis J. Hoffman’s Motion for Admission Pro Hac Vice is granted.
02/27/2017 Pro hac vice motion disposed Filing granted Shawn Blackburn’s Motion in Support of Ian. B. Crosby’s Motion for Admission Pro Hac Vice is granted.
02/27/2017 Pro hac vice motion disposed Filing granted Ian B. Crosby’s Motion for Admission Pro Hac Vice is granted.
02/24/2017 Pro hac vice motion filed Shawn Blackburn’s Motion in Support of Louis J. Hoffman’s Motion for Admission Pro Hac Vice.
02/24/2017 Pro hac vice motion filed Shawn Blackburn’s Motion in Support of Ian. B. Crosby’s Motion for Admission Pro Hac Vice.
02/24/2017 Pro hac vice motion filed Louis J. Hoffman’s Motion for Admission Pro Hac Vice filed on behalf of amicus curiae National Association of Patent Practitioners, Inc.
02/24/2017 Pro hac vice motion filed Ian B. Crosby’s Motion for Admission Pro Hac Vice filed on behalf of amicus curiae National Association of Patent Practitioners, Inc.
02/21/2017 Amicus Curiae Brief received Amicus Brief of Austin Intellectual Property Law Association submitted by Stephen Dartt of DECHERT LLP of Austin, TX.
02/20/2017 Amicus Curiae Letter Received Amicus Letter received and submitted on behalf of David Hricik.