Archive for the ‘Uncategorized’ Category

Heads up

Wednesday, November 14th, 2018

Quote of the day

Wednesday, November 14th, 2018

We recognize that the Board has subject matter expertise, but the Board cannot accept general conclusions about what is “basic knowledge” or “common sense” as a replacement for documentary evidence for core factual findings in a determination of patentability. Zurko, 258 F.3d at 1385-86. To hold otherwise would be to embark down a slippery slope which would permit the examining process to deviate from the well-established and time-honored requirement that rejections be supported by evidence. It would also ultimately “render the process of appellate review for substantial evidence on the record a meaningless exercise.” Id. at 1386 (citing Baltimore & Ohio R.R. Co. v. Aberdeen & Rockfish R.R. Co., 393 U.S. 87, 91-92, 89 S.Ct. 280, 21 L.Ed.2d 219 (1968)).

K/S HIMPP v. Hear-Wear Technologies, LLC, 751 F.3d 1362, 1366 (Fed. Cir. 2014) (Judge Lourie writing for the court; Judge Wallach forming the second member of the panel majority; Judge Dyk dissented).

Rule 36 Judgments for the Court of Federal Claims a rarity

Tuesday, November 13th, 2018

Updated 11/15/18

It is interesting how rarely the Federal Circuit has issued Rule 36 judgments in appeals from the Court of Federal Claims in the last two months — only two.  The CAFC issued opinions in appeals from the CFC in the ratio of 8 opinions to 1 Rule 36 judgment over the last two months.

 

In contrast, the court issued ten Rule 36 judgments in appeals from district courts over roughly the same period.  The CAFC issued opinions in appeals from district courts in the ratio of 7 opinions to 10 Rule 36 judgment over the last two months.

 

And, in the last two months, the court has issued sixteen Rule 36 judgments in appeals from the PTO. The CAFC issued opinions in appeals from the Patent Office in the ratio of 19 opinions to 16 Rule 36 judgments over the last two months.

That breaks down to:

CFC:  8:1

District court:  7:10

PTO:  19:16.

Don’t give up!

Monday, November 5th, 2018

The determination of this little bear cub kind of reminds me of the determination of the patent bar to accomplish patent eligibility reform.

There have been many ups and downs in the past  . . . but, I think we will finally get to the top of the mountain.

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Sunday, October 28th, 2018

The oral argument of the week is from ZEROCLICK, LLC v. APPLE INC., No. 2017-1267 (Fed. Cir. June 1, 2018).  This oral argument was interesting in that the panel seemed a bit suspicious about Apple’s motives for asserting that the words “program” and “code” were nonce words.  While the claims were not written in Beauregard format, some questioning from the panel — namely, Judge Taranto — suggested that it was suspicious that Apple was seeking a holding that would convert Beauregard claims into means plus function claims.  Namely, if the court were to declare that “program” and “code” are nonce words, it would open up many Beauregard claims to 112¶6/112¶(f) attacks.  The panel sounded leery of making such a significant change to the law.

Beauregard claims take many forms these days; but, as one example, one might take the form such as that recited in INTERVAL LICENSING LLC v. AOL, INC., No. 2016-2502 (Fed. Cir. July 20, 2018):

18. A computer readable medium, for use by a content display system, encoded with one or more computer programs for enabling acquisition of a set of content data and display of an image or images generated from the set of content data on a display device during operation of an attention manager, comprising:

[1] acquisition instructions for enabling acquisition of a set of content data from a specified information source;

[2] user interface installation instructions for enabling provision of a user interface that allows a person to request the set of content data from the specified information source;

[3] content data scheduling instructions for providing temporal constraints on the display of the image or images generated from the set of content data;

[4] display instructions for enabling display of the image or images generated from the set of content data;

[5] content data update instructions for enabling acquisition of an updated set of content data from an information source that corresponds to a previously acquired set of content data;

[6] operating instructions for beginning, managing and terminating the display on the display device of an image generated from a set of content data;

[7] content display system scheduling instructions for scheduling the display of the image or images on the display device;

[8] installation instructions for installing the operating instructions and content display system scheduling instructions on the content display system; and

[9] audit instructions for monitoring usage of the content display system to selectively display an image or images generated from a set of content data.

 

Judge Taranto had these exchanges during the oral argument of ZEROCLICK, for example:

And, Judge Hughes had these comments, for example:

You can listen to the entire oral argument below:

 

In an apparent adjustment to distributed processing, some practitioners now begin their Beauregard claims by reciting: “One or more computer-readable storage media . . .” or the like.

Oral argument of the week: EQUISTAR CHEMICALS, LP v. WESTLAKE CHEMICAL CORPORATION

Sunday, October 21st, 2018

The oral argument of the week is from EQUISTAR CHEMICALS, LP v. WESTLAKE CHEMICAL CORPORATION, No. 2017-1548 (Fed. Cir. July 3, 2018).  The panel spent most of the hour long oral argument inquiring into the on-sale bar issue.  Questioning got fast and furious at one point with the judges stepping on one another’s questions. Cases discussed included Medicines (en banc), Helsinn, and Plumtree.

The panel remanded the on-sale bar issue back to the district court with instructions to address the following issues:

  1. What were the offers for sale of the product, and when were they made?
  2. Did the offers require the product to be made by the patented method?
  3. If the offers were accepted, was Equistar obligated to supply product made by the patented method?
  4. Before the critical date, did Equistar decide to fill orders with the patented method?
  5. Before the critical date, could orders be filled with products produced by the conventional process or was only product produced by the patented method available?
  6. Was the product produced before the critical date by the patented method made to enable the patentee to make offers before the critical date?

You can listen to the oral argument below:

The opinion is available [here].

Another poll test

Thursday, October 18th, 2018

I’m experimenting with a different poll plugin.  Please take the poll below.

Can you see this poll question?

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Sunday, October 14th, 2018

The oral argument of the day is from AMERICAN VEHICULAR SCIENCES LLC v. UNIFIED PATENTS INC., No. 2017-2307 (Fed. Cir. June 19, 2018).  The CAFC issued a Rule 36 Judgment in this case.  From what I could glean, an important issue concerned whether the Board panel in an IPR properly applied K/S HIMPP v. Hear-Wear Technologies, LLC, 751 F.3d 1362, 1366 (Fed. Cir. 2014) in  an obviousness “rejection.”

In K/S HIMPP v. Hear-Wear Technologies, LLC, Judge Lourie, writing for the court, stated:

We recognize that the Board has subject matter expertise, but the Board cannot accept general conclusions about what is “basic knowledge” or “common sense” as a replacement for documentary evidence for core factual findings in a determination of patentability. Zurko, 258 F.3d at 1385-86. To hold otherwise would be to embark down a slippery slope which would permit the examining process to deviate from the well-established and time-honored requirement that rejections be supported by evidence. It would also ultimately “render the process of appellate review for substantial evidence on the record a meaningless exercise.” Id. at 1386 (citing Baltimore & Ohio R.R. Co. v. Aberdeen & Rockfish R.R. Co., 393 U.S. 87, 91-92, 89 S.Ct. 280, 21 L.Ed.2d 219 (1968)).

K/S HIMPP v. Hear-Wear Technologies, LLC, 751 F.3d 1362, 1366 (Fed. Cir. 2014).

You can listen to the oral argument here:

 

Mark your calendars: Helsinn Oral Argument Date Set

Saturday, October 13th, 2018

The Supreme Court has set the date for oral argument in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc. as December 4, 2018.

Last week the Court also granted leave for the Solicitor General to participate in the oral argument as amicus curiae.  And, Teva Pharmaceuticals filed its brief, available [here].  Also, an interesting admixture of intellectual property professors have signed on to what appears to be the single an amicus brief in support of Teva.

You can see the briefs at the SCOTUS blog: [Link].

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Thursday, October 11th, 2018

The oral argument of the day is from SIRONA DENTAL SYS. v. Institut Straumann AG, 892 F.3d 1349 (Fed. Cir. 2018).   I thought this oral argument was interesting for the comments by Judge Moore about the property rights conveyed by a patent and the potential due process rights of the patentee.  It is also interesting for her comments about the rights of a patent challenger in an IPR to be heard with respect to a Board’s proposed combination of references applied to an amended claim (perhaps about 7/9ths through the oral argument).  Note that the oral argument took place in February of 2018 — before the Oil States decision by the Supreme Court.

Sorry, I don’t have time to splice out the particular sound bites on this one.

You can listen to the oral argument here: