Archive for October, 2018

Learned Hand’s family nickname “Jowly Pips”

Tuesday, October 9th, 2018

I ran across a C-span video of Professor Constance Jordan discussing her grandfather, Judge Billings Learned Hand.  She remarks at one point in the video that Judge Hand’s family nickname was “Jowly Pips,” which was shortened to “J.”

My grandfather, whom we called J — by the way, it was not because he was Judge that we called him J.  We called him J because everyone in the family had nicknames, and his nickname was Jowly Pips and it was shortened to J.  Don’t ask me why.  That is what it was.

Professor Constance Jordan, granddaughter of Judge Learned Hand.

Link to video: Link.

 

Oral argument of the day: PGS Geophysical v. Iancu

Friday, October 5th, 2018

The oral argument of the day is from PGS GEOPHYSICAL AS v. IANCU, No. 2016-2470 (Fed. Cir. June 7, 2018).  I thought this was a particularly well-argued case.  The oral argument focuses on whether the PTAB made a proper obviousness ruling in view of a combination of references.

You can listen to the oral argument here:

 

Downturn in visiting judges at the Federal Circuit

Friday, October 5th, 2018

It is interesting to note that there has been a significant downturn in the number of visiting judges at the Federal Circuit since Chief Judge Michel retired.  My sense is that even more so than the “Rader” court, the “Prost” court has had fewer visiting judges than the “Michel” court.  During the visit to Chicago this week, no Seventh Circuit or N.D. of Illinois judges sat with the Federal Circuit to hear oral arguments.

That being said, I don’t think it is necessarily a bad thing. On more than one occasion I have looked up questionable precedent of the Federal Circuit or CCPA and chalked up the odd ruling to the fact that it was a split decision with a visiting judge making up part of the majority.

Information Age Patent Eligibility

Thursday, October 4th, 2018

Justice Scalia did not sign on to the portion of Bilski v. Kappos cited below. With Justice Scalia having been replaced by Justice Gorsuch, it will be interesting to see if the subject matter of the below quote gets more traction or even categorical approval once Justice Kennedy’s replacement is installed.

The machine-or-transformation test may well provide a sufficient basis for evaluating processes similar to those in the Industrial Age—for example, inventions grounded in a physical or other tangible form. But there are reasons to doubt whether the test should be the sole criterion for determining the patentability of inventions in the Information Age. As numerous amicus briefs argue, the machine-or-transformation test would create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals. See, e.g., Brief for Business Software Alliance 24-25; Brief for Biotechnology Industry Organization et al. 14-27; Brief for Boston Patent Law Association 8-15; Brief for Houston Intellectual Property Law Association 17-22; Brief for Dolby Labs., Inc., et al. 9-10.

In the course of applying the machine-or-transformation test to emerging technologies, courts may pose questions of such intricacy and refinement that they risk obscuring the larger object of securing patents for valuable inventions without transgressing the public domain. The dissent by Judge Rader refers to some of these difficulties. 545 F.3d, at 1015. As a result, in deciding whether previously unforeseen inventions qualify as patentable 3228*3228 “process[es],” it may not make sense to require courts to confine themselves to asking the questions posed by the machine-or-transformation test. Section 101’s terms suggest that new technologies may call for new inquiries. See Benson, supra, at 71, 93 S.Ct. 253 (to “freeze process patents to old technologies, leaving no room for the revelations of the new, onrushing technology[,] . . . is not our purpose”).

Bilski v. Kappos, 130 S. Ct. 3218, 3227-28 (2010)(Justice Kennedy writing for himself, Chief Justice Roberts, and Justices Thomas and Alito).