The oral argument of the day is from the Federal Circuit’s decision in In re Tropp, decided this past December. The Federal Circuit panel was critical of the PTAB for not writing a clear opinion — so unclear that remand was necessary.
Interestingly, Judge Moore’s remarks during the oral argument seem much more critical of the Board than any comment that made its way into the decision that she authored for the court.
With hundreds of thousands without power in Northern California and power grid vulnerabilities in question, a patent attorney’s mind naturally turns to the Electric Power Group case. Electric Power Group was discussed at some length in this year’s oral argument in POWER ANALYTICS CORPORATION v. OPERATION TECHNOLOGY INC., No. 2018-1428 (Fed. Cir. Jan. 15, 2019). [Link].
You can listen to that oral argument here:
What I thought was particularly interesting was Judge Dyk chiming in to Judge Chen’s hypothetical question about the patent eligibility of a model for predicting the path of a hurricane. One is always interested to hear of things that Judge Dyk might believe are patentable. You can listen to that questioning here:
I also thought that this was an interesting comment by Judge Chen: “there are big data solutions out there that seem to be very valuable and so therefore you would think, instinctively, ought to be part of the patent system.”
In case you want to look at one of the Electric Power Group claims, it is shown below:
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.
I suppose one way of encouraging panels not to issue so many Rule 36 judgments is to appeal to their vanity. According to a recent report, grandmaster chess players burn around 6,000 calories a day during a chess tournament. One player, Fabiano Caruana, has dropped from 135 pounds before a tournament to 120 pounds at the end of the tournament. During a match, a player’s breathing rate can triple and blood pressure can elevate.
There is obviously a significant difference in mental effort involved in writing an opinion as compared to issuing a Rule 36 judgment. So, if judges were to forsake the “Rule 36 Diet” and embrace the “Opinion Writing Workout,” they might find themselves in need of brand new robes.
You often hear patent law described as “the thinking person’s profession.” Usually, it is patent attorneys describing it this way! (I suspect attorneys in all areas of the law describe their specialty as “the thinking person’s profession.”) It would be an interesting survey to see if patent attorneys do indeed benefit from a higher neuro-calorie-burn.
The oral argument prior to the Federal Circuit’s decision in IN RE WHITE, No. 2018-1242 (Fed. Cir. Jan. 16, 2019) had an interesting sound bite. The case is a trademark case in which the Appellant asked the Federal Circuit to take judicial notice of the teaching of American history in public schools. Judge Wallach asked the Appellant if there was some source upon which the court could base such a taking of judicial notice.
It is interesting to note the care of the court when judicial notice is requested explicitly. Compare that situation to the court’s frequent pronouncements of abstract ideas (without evidentiary support) in step 1 of the Alice analysis under 35 U.S.C. §101. Some would argue that a court’s pronouncement of something being an abstract idea is a taking of judicial notice.
You can listen to Judge Wallach’s comment from In re White here:
Judge Lourie warned about the slippery slope of divorcing patent examination from the citation of references back in the oral argument of HIMPP v. HEAR-WEAR TECHNOLOGIES, LLC, No. 2013-1549 (Fed. Cir. May 27, 2014). His comments were focused on obviousness; but, they ring true for patent eligibility, as well:
We have an examination system based on citation of references. I may have used the word ‘slippery slope’ already. But, I worry about that — where an examiner who is of some skill and training in a particular art could simply say ‘Aha, I think, I think, and it is my common knowledge . . . .’ And, they start rejecting claims based on what they ‘think.’ Isn’t that a serious departure from our system of citation of references to reject claims? [Listen]
It doesn’t seem to me to be the function of the appellate court to take judicial notice of the ordinariness of certain decided claim limitations. We can take judicial notice that ‘today is Wednesday’ and ‘we had snow earlier in the week’ — I’m glad you made it through the snow — but, we don’t make rejections based on judicial notice of . . . finding a claim limitation to be common sense. [Listen]
It would be interesting to know if the Federal Circuit will play any future role in the fallout from the impeachment inquiry taking place at this time. Application of the Whistleblower Protection Act often comes up during Senate confirmation hearings of Federal Circuit nominees, especially when Senator Grassley questions nominees about the Act he co-authored. You can see one example of this in the confirmation hearing for Judge Taranto between the 46:44 and 52:14 minute marks of this video:
According to Senator Grassley’s comment, the Federal Circuit had exclusive jurisdiction for appeals concerning the Whistleblower Protection Act at the time of Judge Taranto’s hearing; however, it appears that subsequent legislation may have extended jurisdiction to all circuits.
Judge Taranto deftly handled the question about “irrefragable proof” during the hearing.
The oral argument of INTELLECTUAL VENTURES I LLC v. T-MOBILE USA, INC., No. 2017-2601 (Fed. Cir. Jan. 14, 2019) was an interesting §101 case with some good sound bites. I’ll add some of them to this post in the coming days.
The recording of the oral argument is available here:
Director Iancu will be holding one of his Fireside Chats here in Denver at the end of the month. Todd Dickinson will be interviewing him. I don’t know, yet, if there will be a corresponding event at the Denver Patent Office.
You can see one of Director Iancu’s previous Fireside Chats, with Judge O’Malley of the Federal Circuit, below:
If you have sixty-seven minutes to spare, you might want to check out yesterday’s oral argument in Facebook v. Windy City Innovations (CJ Prost, O’Malley, Plager). It is an interesting and well-argued one. The case concerned statutory interpretation of the AIA’s joinder statute.
A few of the issues that cropped up in the oral argument were:
Why didn’t the PTO intervene in the case to address whether its precedential opinion should be given Chevron deference?
Should the PTO’s precedential opinion panel (POP) decisions be given Chevron deference?
Did Congress error by referring to infringement of a patent vs. infringement of a patent claim(s) in the AIA?
Is the statute ambiguous?
Is there a clerical error in the statute?
Should the court ask the PTO for its thoughts — even though the PTO chose not to weigh-in in the first instance?
Judge Plager expressed the view that the USPTO’s precedential opinion panel decisions were not entitled to Chevron deference:
During the oral argument, the panel was receptive of counsel’s individual experiences during patent infringement litigation (or maybe now we need to say patent claim infringement litigation) and IPR proceedings. Interesting. Some might think that that type of information is not of-record and mere unchallenged attorney testimony.
Judge Prost used an expression that I had not heard before. The way it rolled off her lips, perhaps it is a mantra used in appellate judge chambers around the country: “Too bad, so sad. Go to Congress and get them to make an amendment.“
This oral argument is a good example of how seriously the judges of the Federal Circuit view their role in trying to make the system work for all of those impacted by a statute — including those not represented in the proceeding. The extensive questioning makes this abundantly clear.