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February « 2013 « 717 Madison Place

Archive for February, 2013

Oral Argument of the Month

Sunday, February 24th, 2013

The oral argument of the month is from Biax Corp. v. Nvidia Corp., 2012-1387 (Fed. Cir. Feb. 8, 2013)(Rule 36 Judgment): [Listen].

I thought that this oral argument was interesting because it touched on several issues that are of interest to practitioners.  For example, each side seemed to argue that the use of the phrase “the present invention” helped their case.  The term “the present invention” appeared in the specification and in arguments in the prosecution history.  While the term “the present invention” was used in the specification, the specification was also asserted to disclose multiple embodiments.  Strong statements in the prosecution history were asserted to effect a clear and unmistakable disavowal — yet, the appellant cited authority for why those statements did not necessarily apply to the claims in dispute.

After listening to the oral argument, you might find yourself wondering if a written opinion rather than a Rule 36 Judgment would have been helpful to understand the court’s thought process.

Audio from Oral Argument in Bowman v. Monsanto Co.

Friday, February 22nd, 2013

The Supreme Court has posted the audio of the oral argument in Bowman v. Monsanto.  You can download or listen to the oral argument here.

Vitiating the Doctrine of Claim Vitiation

Thursday, February 21st, 2013

I do a fair amount of opinion work as part of my law practice; so, I’m always interested in cases where the doctrine of claim vitiation is a topic during oral argument. The doctrine of claim vitiation has yielded some interesting comments from the bench in past cases.  See these posts for past comments by Chief Judge Rader. [Link], [Link], and  [Link].

Judge Moore had some frank words about the doctrine of claim vitiation during the oral argument of Source Vagabond Systems Ltd. v. Hydrapak, Inc., 2012-1408 (Fed. Cir. 2013)(Rule 36 Judgment):  [Listen] and [Listen].  In the second sound bite, she notes that she would be happy to “scratch it out of existence.”

You can listen to the entire oral argument from Source Vagabond here: [Listen].

Personally, I find the doctrine of claim vitiation to be a useful tool when there clearly  is no equivalent.  However, I understand the court’s frustration with how to apply the doctrine.

Here is one more post on the related issue of the specific exclusion principle: [Link].

Two recently decided Federal Circuit cases that deal with claim vitiation are:

Deere and Co. v. Bush Hog, LLC et al.,  __ F.3d __ , Nos. 2011-1629, -1630, -1631 (Fed. Cir. 2012)(Chief Judge Rader writing for the court) [Link]; and

Brilliant Instruments, Inc. v. Guidetech, LLC, __ F.3d __, No. 2012-1013 (Fed. Cir. 2013)(Judge Moore writing for the court; Judge Dyk in dissent) [Link].

Bowman v. Monsanto Oral Argument

Wednesday, February 20th, 2013

The transcript from the Supreme Court oral argument in Bowman v. Monsanto is now available [here].

Judge Leonard Davis at the Federal Circuit

Thursday, February 14th, 2013

Judge Leonard Davis of the Eastern District of Texas sat by designation with the Federal Circuit last week.  Since Chief Judge Rader took over the Chief Judge position from Paul Michel, relatively few district court judges have sat by designation with the Federal Circuit.

So far, Sandra Day O’Connor has yet to sit by designation with the Federal Circuit.  She has sat by designation with every other circuit court of appeals except the D.C. Circuit Court.

Recordings of Recent En Banc Arguments

Tuesday, February 12th, 2013

The Federal Circuit sat en banc for two oral arguments last Friday.

The audio for the oral argument in Robert Bosch v. Pylon Mfg. Corp. is available [here].

The audio for the oral argument in CLS Bank v. Alice Corp. is available [here].