Archive for the ‘Uncategorized’ Category

Audio of Supreme Court Oral Argument in Lee v. Tam

Friday, January 20th, 2017

The audio recording from the Supreme Court oral argument in Lee v. Tam is available below. I have divided the argument into the petitioner’s opening argument, the respondent’s argument, and the petitioner’s rebuttal argument.

Petitioner’s Opening Argument:  [Listen]

Respondent’s Argument:  [Listen]

Petitioner’s Rebuttal Argument:  [Listen].

The transcript is available [here].

Madonna at the Ninth Circuit

Friday, January 20th, 2017

Here is another video of a Ninth Circuit oral argument.  The case is VMG SALSOUL, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016). One of the issues in the case was whether Madonna Ciccone’s (aka Madonna) use of a 0.23 second horn recording from another artist’s song in Madonna’s song Vogue constituted “de minimis” use under copyright law.  In a split from the Sixth Circuit, the Ninth Circuit said that Madonna’s use was “de minimis” use. This is believed to be the first time that the Ninth Circuit has applied the “de minimis” use exception to sound recordings.  You can read the Ninth Circuit opinion [here].

Clear and Convincing Evidence Requirement for Patent Ineligibility

Thursday, January 19th, 2017

In Trading Technologies v. CQG [link], the Federal Circuit panel punted on the issue of what burden of proof is required to hold a patent claim to be ineligible subject matter.  Notably, in footnote 2, the panel said:

2.  The parties dispute whether the district court erred in requiring proof of ineligibility under § 101 by clear and convincing evidence. Because our review is de novo, and because under either standard the legal requirements for patentability are satisfied, we need not address this dispute.

The district court was not shy to say what the law is.  In her district court opinion, Judge Coleman stated:

Legal Standard

At the outset, this Court acknowledges that the section 101 jurisprudence is a recently evolving and unsettled area of law as it applies particularly to software patents. There is some dispute over the level of proof required in a section 101 patent-eligibility inquiry. CQG asserts that “[a]s a matter of law, patent-eligibility is not subject to the `clear and convincing’ burden of proof.” (Dkt. 898 at 3) (quoting Microsoft Corp. v. i4i Ltd. P’ship, 131 S. Ct. 2238, 2253 (2011) (Breyer, Scalia, Alito, JJ, concurring)). TT submits that rather than a preponderance of the evidence burden of proof the appropriate standard should be “clear and convincing.” (Dkt. 962 at 11) (quoting Card Verification Solutions, LLC v. Citigroup Inc., 2014 WL 4922524, at *5 (N.D. Ill. Sept. 29, 2014)).

This Court recognizes the persuasiveness of Justice Breyer’s reasoning that because the section 101 eligibility inquiry is purely a question of law and there is no statutory presumption of eligibility, it should not be subject to the clear and convincing burden of proof. However, 35 U.S.C. § 282 provides that patents are presumed valid and it is well established that a party seeking to overcome that presumption must do so by clear and convincing evidence. See Nystrom v. Trex Co., 424 F.3d 1136, 1149 (Fed. Cir. 2005). This Court is “duty-bound to apply the law as enacted by Congress and signed by the President, and in light of the Federal Circuit’s interpretation thereof. Defendants have not presented any authority indicating that the presumption of validity no longer applies to challenges to a patent’s validity under section 101.” CertusView Techs., LLC v. S&N Locating Servs., LLC, 2015 U.S. Dist. LEXIS 7126, *42 n.6, Slip Copy, 2015 WL 269427 (E.D. Va. Jan. 21, 2015). Accordingly, this Court concludes that, until the Federal Circuit or the United Supreme Court mandates otherwise, CQG must show by clear and convincing evidence that the patents-in-suit claim patent-ineligible subject matter.

Ten Law Professors’ Brief in Trading Technologies v. CQG

Thursday, January 19th, 2017

The Federal Circuit issued another decision affirming patent eligibility yesterday in Trading Technologies v. CQG.  I was curious what the amicus brief (Ten Law Professors’ Brief) said; so, I downloaded it from PACER.  It is available [here].

Business method examples added to USPTO Patent Eligibility Page

Wednesday, January 18th, 2017

The USPTO added some business method examples to its patent eligibility page in mid-December.  The new examples are available at this [link].

Cameras in the courtroom

Monday, January 16th, 2017

Here is a link to the SCOTUSblog discussing a bill that would compel the Supreme Court to televise its court proceedings: [Link].

I believe the Ninth Circuit is the only circuit court to provide video recordings of some of its proceedings, as well as live streams. It has been doing so for several years now.  In contrast, the Second Circuit just started adding audio recordings of its oral arguments to its website this past August.

Oral Argument This Week in Lee v. Tam

Sunday, January 15th, 2017

The Supreme Court will hear oral argument in Lee* v. Tam on January 18, 2017.  The question presented is:

Whether the disparagement provision of the Lanham Act, 15 U.S.C. 1052(a), which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment.

If Director Lee decides to leave the USPTO before the decision issues, I suspect the decision will issue under a different caption.

Upcoming En Banc Argument

Friday, January 13th, 2017

The Federal Circuit will be sitting en banc in a non-patent case on February 7, 2017.  In Parkinson v. DOJ, the Federal Circuit will consider the following issue:

Whether a preference eligible employee of the Federal Bureau of Investigation challenging an adverse employment action before the Merit Systems Protection Board under 5 U.S.C. § 7513(d) may raise whistleblower reprisal in violation of 5 U.S.C. § 2303 as an affirmative defense under 5 U.S.C. § 7701(c)(2)(C).

The date for oral argument in WI-FI ONE, LLC v. BROADCOM CORPORATION has not yet been set.  The Federal Circuit has phrased the issue in that en banc case as:

Should this court overrule Achates Reference Publishing, Inc. v. Apple Inc., 803 F.3d 652 (Fed. Cir. 2015) and hold that judicial review is available for a patent owner to challenge the PTO’s determination that the petitioner satisfied the timeliness requirement of 35 U.S.C. § 315(b) governing the filing of petitions for inter partes review?

Ninth Circuit Oral Argument in App Store Antitrust Litigation

Thursday, January 12th, 2017

There was a decision from the Ninth Circuit today that deals with an antitrust suit brought against Apple with respect to the Apple App Store.  You can review the decision here: [Link].  You can review the oral argument below:

Patent Models

Wednesday, January 11th, 2017

I wonder if the patent models that currently adorn the Oval Office will remain after the transition.