Archive for October, 2017

Mark Your Calendar: Supreme Court Oral Argument Date Set for Oil States

Saturday, October 14th, 2017

The Supreme Court has set the date for oral argument in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC.  The argument will take place on November 27, 2017.  The question presented in Oil States is:

Issue: Whether inter partes review, an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents, violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.

Link to ScotusBlog: [Link].

The oral argument in SAS Institute Inc. v. Matal will also take place on November 27, 2017.  The question presented in that case is:

Issue: Whether 35 U.S.C. § 318(a), which provides that the Patent Trial and Appeal Board in an inter partes review “shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner,” requires that Board to issue a final written decision as to every claim challenged by the petitioner, or whether it allows that Board to issue a final written decision with respect to the patentability of only some of the patent claims challenged by the petitioner, as the U.S. Court of Appeals for the Federal Circuit held.

Link to ScotusBlog:  [Link].

Have you ever noticed how many amicus briefs the Houston Intellectual Property Law Association (HIPLA) files.  They really put to shame other bar organizations around the country, as far as engagement in the amicus process is concerned.

Oral argument of the week: RADWARE, LTD. v. F5 Networks, Inc.

Friday, October 13th, 2017

The oral argument of the week comes from RADWARE, LTD. v. F5 NETWORKS, INC., No. 2017-1212 (Fed. Cir. Sept. 18, 2017).

Those of you who follow the Finjan line of cases and whether inaccessible modules of software code can be considered capable of infringing will find this case interesting — particularly with respect to damages issues.

I have noted before that I am not particularly fond of the decision in Finjan because I think it requires a claim to be construed to cover inoperable features — and similarly converts the claim to a mere aggregation of elements.  You can see my previous post [here].

The oral argument from RADWARE is available here:


The court’s Rule 36 treatment of the appeal and cross-appeal in RADWARE is available [here].

For more background, one of Judge Whyte’s rulings from the district court is available [here].

Oral Argument of the Day: Intellectual Ventures I, LLC v. Motorola Mobility LLC

Thursday, October 12th, 2017

The oral argument of the day is from INTELLECTUAL VENTURES I LLC v. MOTOROLA MOBILITY LLC, No. 2016-1795 (Fed. Cir. Sept. 13, 2017).

The oral argument will be of interest to those who follow Centillion v. Qwest issues.

The court’s opinion is available [here].

The oral argument recording is accessible below:

Not your typical analogy

Thursday, October 5th, 2017

There are analogies — and then there are analogies that make you sit up and take notice.

Judge O’Malley was discussing contingent threats with an advocate during the oral argument of FIRST DATA CORPORATION v. INSELBERG, No. 2016-2677 (Fed. Cir. Sept. 15, 2017) when she used this real-life example of having received a death threat from a litigant — presumably during her district court judge days — and the US Marshall’s office having classified it as merely a contingent threat: