I’m not sure Chief Judge Rader will be invited back to Texas after this recent swearing-in ceremony. Judge Newman stood up for Texas, though, or at least for her law clerk: [Listen].
If you would like to be admitted to the United States Court of Appeals for the Federal Circuit bar, here is the link for the admission form: [Link]. The application fee is listed as $200.
Chief Judge Rader was questioning appellant’s counsel about the issue of deceptive intent to deceive the public during the oral argument of Pequignot v. Solo Cup Co., 2009-1547 (Fed. Cir. June 10, 2010) when he tried to use a baseball analogy to make his point: [Listen].
He later followed up with appellee’s counsel: [Listen].
If you are flying in to Denver for the AIPLA roadshow on the 24th of June (Judge Linn will be speaking at the event), you’ll be interested to know that a statue of Anubis — Egyptian god of the dead — will be at the airport to welcome you. The statue is at the airport temporarily to promote the opening of the King Tut exhibit in Denver on July 1st. Anubis can be found outside the south end of the main “terminal” building.
There is no truth to the rumor that the jackal headed Anubis will be appearing at the roadshow to discuss developments in the claiming of transgenic animals.
The judges of the Federal Circuit from time to time will swear-in to the Federal Circuit bar their judicial law clerks. One of the nice aspects of this is that you can tell the genuine appreciation that the judges have for the work by their law clerks. It just so happened that one such swearing-in ceremony was one of Chief Judge Rader’s official acts as the new Chief Judge. [Listen].
Judge Lourie almost always adds some comic relief to the oral arguments at the Federal Circuit. He certainly didn’t miss this opportunity: [Listen].
I thought this was a humorous comment by Judge Plager during the oral argument of Orion IP, LLC v. Hyundai Motor America, 2009-1130 (Fed. Cir. May 17, 2010), : “We’re a court of errors. We don’t make ‘em –we correct ‘em.” [Listen].
In the oral argument in WNS Holdings, LLC, v. United Parcel Service, Inc., 2009-1498 (Fed. Cir. March 8, 2010), the attorney for UPS used an analogy to Shakespeare’s “The Tragedy of Macbeth” for purposes of arguing his claim construction case: [Listen].
Perhaps Shakespearean analogies are the key to winning at the Federal Circuit. UPS prevailed on the appeal.
Judge Prost made an amusing fashion observation during the oral argument of the Crocs v. International Trade Commission appeal: [Listen].
Interestingly, Crocs’ experts must be Tolkien fans. They apparently argued that the Crocs design includes prominent design features that they describe as the “Ring of Fire” and the ”Eye of Sauron” a la The Lord of the Rings: [Listen].
You can read the court’s opinion here:[Read].
You can listen to the entire oral argument here: [Listen].
When filing a brief with the Federal Circuit the parties are allowed to denote material appearing in their briefs as confidential. Similarly, material presented in the Joint Appendix can be marked confidential. At oral argument, the judges of the Federal Circuit will often ask the parties if these confidential markings are still applicable for two reasons: (1) so that the judges are free to ask questions about the material in open court and have it recorded; and (2) so that the judges know what can be published in any written opinion.
In one case from several years ago, counsel for an intervenor in the case was present at oral argument but was not taking part in the oral argument itself. He was called up to address the confidentiality issue and Judge Bryson remarked that this was like the attorney nightmare where one is called out of the audience to argue a case: [Listen].
One of the nice personality traits of the judges of the Federal Circuit is that they have healthy senses of humor. Judge Plager’s rather wry sense of humor demonstrated itself in two recent oral arguments.
In the oral argument for IN RE ELECTRO-MECHANICAL INDUSTRIES, 2008-1530, (Fed. Cir. Dec. 22, 2009), the court was trying to determine why the district court judge had increased the award of attorneys’ fees in a bankruptcy estimation proceeding. Judges Moore and Plager were intently discussing with plaintiff’s counsel the Lodestar analysis for contingency cases and inquiring about his reaction at the time that the district court judge significantly enhanced the attorneys’ fee award. As you’ll hear, Judge Plager then asked “I bet you had a party, didn’t you?” [Listen]. For the record, I’m pretty sure that whether one had a party is not the current standard of review of a Lodestar analysis.
In the oral argument of another recent case, In re Medicis Pharmaceutical Corporation, 2009-1291, (Fed. Cir. Dec. 14, 2009), the Associate Solictor for the PTO made a conscientious effort during oral argument to correct a statement that was in his brief. Judge Plager’s tongue-in-cheek remark was “Which raises the question ‘Were you lying then, or are you lying now?’ ” [Listen].