Archive for the ‘Uncategorized’ Category

Friendly questions at oral argument

Thursday, December 27th, 2018

If you are heading out to Colorado for the CLE and SKI! in Snowmass next week, you might find yourself dining at Gwyn’s High Alpine Restaurant while hitting the slopes. The Gwyn’s High Alpine Restaurant trademark application was the subject of a recent Federal Circuit oral argument. The oral argument is a good example of how the Federal Circuit will sometimes ask friendly questions.

You can listen to the oral argument here:

You can read the court’s Rule 36 judgment [here].

More about Gwyn’s restaurant: [ Link ].

A big bolus of works entering the public domain

Sunday, December 23rd, 2018

An interesting article from the Smithsonian on copyrighted works finally entering the public domain: For the First Time in More Than 20 Years, Copyrighted Works Will Enter the Public Domain.

“The heightened importance of the Federal Circuit”

Tuesday, December 18th, 2018

The SCOTUS blog ran an interesting article last week titled:  “Empirical SCOTUS: The heightened importance of the Federal Circuit.”  

You can read the article [here].

Apparently, Judge Newman is the author of the most dissents from Federal Circuit opinions that were later reversed by the Supreme Court.  

Should there be a pro-inventor canon of construction?

Thursday, December 13th, 2018

The Federal Circuit sat en banc last Friday in Procopio v. Wilkie.  Like others before it, this en banc oral argument was interesting — even though it was not a patent case. The case dealt with statutory interpretation — particularly whether the statute in dispute conferred benefits on “blue water” navy veterans who possibly suffered from exposure to herbicides like Agent Orange during their service in the Republic of Vietnam. [Link]. For more background on the case with links to the briefs, see this [link].

Some of the issues discussed were: what is the difference between off-shore waters, waters adjacent, waters off-shore, and territorial seas; what is the definition of the Republic of Vietnam; what weight should the court give to dictionaries and atlases when interpreting terms in a statute; sovereignty; how should definitions from the international court of justice be used in interpreting a statute; the Supreme Court’s decision in SAS; Chevron deference; the sovereign boundary of Purpleland; and others.

What really caught my ear was the discussion of the “pro-veteran canon of construction.”  There are certain “pro” canons that have developed through jurisprudence, such as pro-veteran, pro-elderly, pro-Indian, etc. Given the venerable position that inventors/entrepreneurs occupy in American society, I was trying to think if there is anything akin to the pro-veteran canon of construction in patent law.  I suppose to some extent the doctrine of equivalents benefits inventors.  But, I think of that as an equitable doctrine rather than a canon of statutory construction.  Is there any place for a pro-inventor canon of construction when applying exceptions to 35 U.S.C. §101? To the AIA? To the AIPA, i.e., the American Inventors Protection Act?

Judge Hughes did not take part in the decision to grant en banc review and I did not hear him during the oral argument; so, it appears that he has recused himself from this case.  You might recall that Judge Hughes has an extensive background in prior Agent Orange cases, arguing for the DOJ and the Veteran’s Administration.  In his Senate questionnaire he listed Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) as his most significant case during his DOJ career prior to joining the court.  He was awarded a commendation for his handling of that case which “resulted in several billions of dollars in monetary savings.” [Link].  It would seem this case puts that decision in its cross-hairs.

You might get a chuckle over Judge Newman’s phrase:  “take your judicial hands off this statute and leave it to the agency” — around the 56:00+ mark.  I’m not sure if she was using a Charlton Heston accent or not.

There were lots of questions about past and pending attempts at legislation and epidemiological studies — it was unclear if those questions were directed at record evidence.

Update 12/18/17:

I thought it might be of interest to include below the link to the oral argument from Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).  There are at least two benefits to this.  First, it is interesting to hear then-attorney, now-Judge, Hughes argue the case.  Second, it is always a treat to listen to Chief Judge Michel (retired) at an oral argument.


Wednesday, December 12th, 2018

When a party cobbles together multiple purported abstract ideas in an attempt to characterize a claim as an abstract idea, should that be called a Frankenstraction?  I think Mary Shelley would have said yes.

Audio of Helsinn v. Teva oral argument at the Supreme Court

Saturday, December 8th, 2018

The Supreme Court has released the audio recording of the oral argument in Helsinn v. Teva.  That recording is available below:

How many new judgeships would it take?

Thursday, December 6th, 2018

I was looking at all the Rule 36 decisions issued today and wondering how many new federal judgeships it would take to cure the Federal Circuit’s Rule 36 predicament.  I suppose that if quite a few judgeships need to be created to keep up with the current load that Congress might start taking a hard look at the size of a new court.  If Congress takes a hard look at the size of a new court, Congress might start to think let’s split the new court into two — a pure patent court and a generalist court.  If Congress created a pure patent court and a generalist court, some of the current judges of the Federal Circuit would probably be assigned to the generalist court and others with a technical background to the patent court.  Perhaps that’s why we never hear the Federal Circuit judges speak about their Rule 36 predicament or needing new judges assigned to the court.  Or, perhaps not.  I can’t recall ever hearing about one of the Federal Circuit judges speaking at a conference and lamenting about how many Rule 36 judgments they are forced to issue.  Surely it must bother their judicial consciences.

Transcript of Helsinn v. Teva Oral Argument at Supreme Court

Tuesday, December 4th, 2018

The Court heard oral argument today in HELSINN HEALTHCARE S.A. v. TEVA PHARMACEUTICAL USA, INC., ET AL.  The transcript of the oral argument is available [here].

Director Iancu and Patent Eligibility Examination Reform

Friday, November 30th, 2018

Director Iancu has shown bold leadership in addressing the patent eligibility quagmire currently plaguing the US patent system.  His latest speech is available [here]. So, what grade would you give him on these efforts, so far?

What grade would you give Director Iancu on patent eligibility examination reform?

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Quote of the day

Wednesday, November 28th, 2018

The district court concluded that the claims were directed to the abstract idea of “storing, organizing, and retrieving memory in a logical table” or, more simply, “the concept of organizing information using tabular formats.” J.A. 321 (emphasis omitted). Likewise, Microsoft urges the court to view the claims as being directed to “the concepts of organizing data into a logical table with identified columns and rows where one or more rows are used to store an index or information defining columns.” Appellee’s Br. 17. However, describing the claims at such a high level of abstraction and untethered from the language of the claims all but ensures that the exceptions to § 101 swallow the rule. See Alice, 134 S.Ct. at 2354 (noting that “we tread carefully in construing this exclusionary principle [of laws of nature, natural phenomena, and abstract ideas] lest it swallow all of patent law”); cf. Diamond v. Diehr, 450 U.S. 175, 189 n. 12, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981) (cautioning that overgeneralizing claims, “if carried to its extreme, make[s] all inventions unpatentable because all inventions can be reduced to underlying principles of nature which, once known, make their implementation obvious”).

ENFISH, LLC v. Microsoft Corp., 822 F.3d 1327, 1337 (Fed. Cir. 2016)(emphasis added).