Archive for the ‘Uncategorized’ Category

Oral Arguments and Stock Prices

Tuesday, October 6th, 2015

Rovi Corp. is another great example of how important patents are to companies in the computer age.  When five of Rovi’s patents were initially declared patent ineligible by a district court this past July, Rovi’s stock dropped dramatically relative to the NASDAQ:


Hypothetically, assuming this decision is reversed by the Federal Circuit and the patents are later challenged under 35 U.S.C. §103, it would be interesting to see if the change in stock price could be used as evidence of commercial success.  It would be hard to say that there is no nexus.

It will also be interesting to watch Rovi’s stock price on the day of the oral argument at the Federal Circuit.  For example, will the price fluctuate significantly not only during the oral argument but also when the panel for the case is announced on the morning of the oral argument.  Given how panel dependent patent eligibility outcomes can be, a Mayer, Dyk, Lourie panel might produce an entirely different swing than a Newman, Moore, Linn panel.

Obviously, this post and all other posts on this blog are not investment advice.

Updated Audio Key to the Voices of the Federal Circuit Judges

Sunday, October 4th, 2015

If you have been listening to oral argument recordings and have been wondering to whom a particular voice belongs, you should use the link to the audio key page, located on the upper right-hand portion of the home page.  The audio key has been updated to include the voices of the recently appointed Federal Circuit judges.

If you are curious which judge is speaking during an oral argument recording, my suggestion is to:

(1) pull up the opinion;*

(2) note from the opinion who the judges on the panel are; and

(3) use the sound bites on the audio key page to identify the speaker.

*Alternatively, if no opinion has issued and the case was recently argued, you can likely determine the panel from the “Upcoming Oral Arguments” link on the Federal Circuit web site.

En banc oral arguments

Saturday, October 3rd, 2015

The Federal Circuit convened to hear oral arguments in two en banc cases on Friday October 2, 2015.

The oral arguments are available here:

In re Tam:  [Listen]

Lexmark International, Inc. v. Impression Products, Inc.:  [Listen].

Denver PTAB Firing on All Cylinders

Wednesday, September 30th, 2015

The Denver PTAB appears to be firing on all cylinders these days.  This past month the PTAB conducted its first hearing in which the entire panel of judges was located in Denver.  As luck would have it, I happened to be arguing one of the two cases heard that day.  So, I got to be a little part of Denver PTAB history.

Oral Argument of the Week: Retirement Capital Access v. US Bancorp

Thursday, September 24th, 2015

The oral argument of the week was argued about seven weeks ago and received a Rule 36 decision.  It covers several interesting issues, such as whether the presence of a means plus function limitation should make a claim patent eligible.  The one issue that I thought got lost in the discussion of means plus function claims, however, is the the issue of preemption.  Namely, if a claim includes a means plus function claim and the means is limited to the structure disclosed in the specification, how could such a claim possibly preempt all the other means of performing that function?  Therefore, how could the claim as a whole preempt the purported abstract idea?

The oral argument also addressed whether evidence should be required to prove that something was an abstract idea.

And, Judge Lourie endeared himself to patent prosecutors everywhere by inquiring whether all business methods should be deemed patent ineligible:  [Listen].

You can listen to the entire oral argument [here].

You can read the Rule 36 decision [here].

Pope Closes Federal Circuit

Wednesday, September 23rd, 2015

From the Federal Circuit web site:

Due to the anticipated disruption of access to the Court by its facilities falling inside the security perimeter during the Papal visit, by order of the Court, the Clerk’s Office of United States Court of Appeals for the Federal Circuit will close on Tuesday, September 22, 2015, at 3:30 p.m., ET. The Court will remain closed Wednesday, September 23, 2015, and will reopen on Thursday, September 24, 2015, at 8:30 a.m. For purposes of computing time, and for motions to enlarge time under Fed. R. App. Proc. 26 and Fed. Cir. R. 26, Wednesday, September 23, 2015, will be considered a “legal holiday.”

Streamlined, Expedited Ex Parte Appeals for Small Entities

Friday, September 18th, 2015

If you did not see the recent notice about expedited ex parte appeals at the USPTO, the Federal Register notice is available [here].

Judge Kara Stoll Welcomed to the Federal Circuit

Saturday, September 12th, 2015

Judge Kara Stoll sat with her first panel of the Federal Circuit this past week. Chief Judge Prost welcomed her to the court:  [Listen].

It is somewhat uncanny how over the years new judges and visiting judges often sit with the Chief Judge on their first panel at the court.

New Evidence on Appeal

Tuesday, August 25th, 2015

Followers of the USPTO’s updated patent eligibility guidance issued this past July will note that the PTO rebuffs the calls for examiners to provide evidence proving up any assertion of an abstract idea.  The Office places great weight on the fact that in the Bilski case no evidence of an abstract idea was provided to the US district court.  The Office reasons therefore that the appellate courts — which are charged with merely reviewing the record below — could not have based their Bilski decisions on any evidence of an abstract idea.

Here is a link to an interesting article that describes the ways that new evidence can be considered on appeal:  [Link].

Judge Giles Sutherland Rich’s Confirmation Proceedings

Friday, August 21st, 2015

I was poking around on Westlaw the other day and ran across materials related to Judge Giles Sutherland Rich’s confirmation proceedings when he was appointed to the Court of Customs and Patent Appeals by President Eisenhower in 1956.  These materials are from witnesses, rather than testimony from Giles Rich himself.  I’m not sure if he was not required to testify or if my search method was flawed; but, I did not locate any actual testimony by Judge Rich in regard to his nomination.  The witnesses’ testimony is available here: [Link].

To this day, the Federal Circuit still discusses opinions that Judge Rich wrote for the court, as this sound bite from the oral argument of Alps South, LLC v. Ohio Willow Wood Co. illustrates: [Listen].