A Federal Circuit panel heard oral argument today in the case of Google v. Sonos. You can listen to the oral argument here:
Joshua Rosenkranz, arguing for the patent owner, opened his argument with the statement:
“Your honors, the district court took a doctrine that this court has cautioned must be sparingly applied and stretched it to endanger standard continuation practice. If this court sustains this approach, it will fundamentally alter the norms of both patent prosecution and patent litigation.”
The Fed Circuit blog has copies of briefs for this appeal: [Link].
I was experimenting with some AI-generated song software this evening. Would Federal Circuit bio pages be more interesting if they had links to AI-generated songs? For example, Judge Newman. What about judicial decisions, e.g., Chakrabarty?
It can be frustrating to run into a paywall when you are trying to access an article in a scientific journal. I was pleased to hear that at least for NIH funded research, publications of that research will soon be available for free. In this interview with the head of the NIH, this new policy was explained:
The new policy applies to manuscripts accepted for publication on or after July 1, 2025.
Yesterday, the Court of International Trade blocked the White House from using the emergency powers act to impose tariffs on foreign countries. The decision has already been appealed. Appeals from the Court of International Trade go to the US Court of Appeals for the Federal Circuit.
This begs a few questions:
Will the CAFC take this case en banc sua sponte? Will any judges recuse themselves?
While rarely used, will the CAFC expand the panel to five judges from the normal three?
Will the CAFC stick to its unique procedure of announcing the panel shortly before oral argument?
How dynamically will the stock market respond during the oral argument?
How many patents will be deemed non-infringed or subject matter ineligible in the decision?
. . . . . will the Federal Circuit issue a Rule 36 decision?
I am reading the biography of Benjamin Franklin by Walter Isaacson. Benjamin Franklin is known for many impressive discoveries and inventions — for none of which he ever pursued a patent. Interestingly, in his correspondence with the philosopher David Hume in 1759, Franklin lamented that Hume discouraged the coining of new words.
Isaacson writes:
Franklin and Hume also shared an interest in language. When Hume berated him for coining new words, Franklin agreed to quit using the terms “colonize” and “unshakeable.” But he lamented that “I cannot but wish the usage of our tongue permitted making new words when we want them.” For example, Franklin argued, the word “inaccessible” was not nearly as good as coining a new word such as “uncomeatable.” Hume’s response to this suggestion is unknown, but it did nothing to diminish his ardent admiration for his new friend.
Benjamin Franklin — An American Life, by Walter Isaacson at page 197.
Franklin probably would have approved of the fact that a future US Patent system would actually permit one to be their own neologist. (Some might say “lexicographer” — but, I think neologist is a more apt word.) And, he might be interested in the new words coined by future US Presidents, e.g., Thomas Jefferson: “authentication,” Abraham Lincoln: “relocate,” Donald Trump: “bigly.”
Assuming Chief Judge Moore serves out the remaining three years of her seven year term as Chief Judge of the Federal Circuit, can you answer who will be the next Chief Judge of the Federal Circuit?
I ran across this quote this evening and thought it might have a place in somebody’s brief to the Supreme Court about the Federal Circuit’s Rule 36 problem:
When you want to hurry something, that means you no longer care about it and want to get on to other things.
Robert M. Pirsig (2009). “Zen and the Art of Motorcycle Maintenance: An Inquiry Into Values”, p.34, Harper Collins.
Benjamin Graham was a famous investor and polymath as well as author of the book “The Intelligent Investor.” That book was recently updated with commentary by Jason Zweig. Warren Buffet, who studied under Graham, writes of the book: “I read the first edition of this book early in 1950, when I was nineteen. I thought then that it was by far the best book about investing ever written. I still think it is.”
Graham was also an inventor. He received two US patents: 3122314 and 2892586.
I was listening to a CLE webinar over the weekend on the subject of design patents. The presenters used an apt phrase that I had not heard before: “The Mr. Potato Head rejection.” I’ve heard of a Frankenstein (or Frankenstein’s monster) rejection/argument; but, Mr. Potato Head might capture the idea even better. See these earlier posts on the Frankenstein’s monster rejection: [Link 1] [Link 2].
Interestingly, Hasbro, Inc. actually obtained a patent on a talking Mr. Potato Head. I suppose any rejection they received in the prosecution of that application was by definition a Mr. Potato Head rejection.
In honor of the Mr. Potato Head rejection, the quote for the day comes from the 1950 case of In Re Jennings where the wise judges of the CCPA mashed a five-reference combination of references:
In the instant case individual features seem to have been selected from different of the reference patents and compared with features shown in appellant’s drawings. In other words, it seems to have been held that by selecting features taken from five different patents, that is, one feature from one patent, another from another, etc., a device might be considered which would so closely resemble the drawings of appellant that his design would not be patentable over such possible construction.
We feel constrained to disagree with the concurring conclusions reached by the tribunals of the Patent Office.
In considering patentability of a proposed design the appearance of the design must be viewed as a whole, as shown by the drawing, or drawings, and compared with something in existence — not with something that might be brought into existence by selecting individual features from prior art and combining them, particularly where combining them would require modification of every individual feature, as would be required here.
I saw that former US Solicitor General Ted Olson passed away. In 2007, he appeared at the Supreme Court to argue the case of Microsoft v. ATT opposite former Solicitor General Seth Waxman. I thought that might be a good oral argument of the day. Listen:
With hurricanes on our minds this week, I thought it would be a good time to re-publish this post from October 10, 2019:
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.
The Tenth Circuit recently reviewed a summary judgment by a district court on the scope of the term “intellectual property” in a contract governed by Colorado law. [LINK]. Particularly, the dispute dealt with whether password information was “intellectual property” that had to be returned. Interestingly, the Tenth Circuit reversed the district court and held, based on the arguments presented by the parties in this instance, that the contract’s use of the term “intellectual property” was ambiguous as to whether it included password information.
Both sides present plausible interpretations. On the one hand, login information does involve a mental creation, which could trigger the district court’s broad definition of intellectual property. In addition, the login information is needed for the Commission to access account records, which could constitute intellectual property. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 360 (1991)(stating that compilations of facts or preexisting data can be copyrighted to the extent that the work features an original selection, coordination, or arrangement).
On the other hand, the Commission relies on the login information itself rather than the account records. The login information serves as identifying information, like a birthdate or Social Security number, and few people would regard a birthdate or Social Security number as intellectual property. So the contract is ambiguous on whether the login information constituted intellectual property.
INTERSTATE MEDICAL LICENSURE COMPACT COMMISSION v. Bowling, No. 23-1291 at 17-18 (10th Cir. Aug. 30, 2024).
The oral argument was notable in that it was argued on one side by students from the University of Colorado Law School Appellate Advocacy Practicum. I thought they did an excellent job.
How comfortable are you that a court would know the scope of “intellectual property” under your state’s law?
You can listen to the oral argument here: [Listen].
