Archive for December, 2018

Should there be a pro-inventor canon of construction?

Thursday, December 13th, 2018

The Federal Circuit sat en banc last Friday in Procopio v. Wilkie.  Like others before it, this en banc oral argument was interesting — even though it was not a patent case. The case dealt with statutory interpretation — particularly whether the statute in dispute conferred benefits on “blue water” navy veterans who possibly suffered from exposure to herbicides like Agent Orange during their service in the Republic of Vietnam. [Link] For more background on the case with links to the briefs, see this [link].

Some of the issues discussed were: what is the difference between off-shore waters, waters adjacent, waters off-shore, and territorial seas; what is the definition of the Republic of Vietnam; what weight should the court give to dictionaries and atlases when interpreting terms in a statute; sovereignty; how should definitions from the international court of justice be used in interpreting a statute; the Supreme Court’s decision in SAS; Chevron deference; the sovereign boundary of Purpleland; and others.

What really caught my ear was the discussion of the “pro-veteran canon of construction.”  There are certain “pro” canons that have developed through jurisprudence, such as pro-veteran, pro-elderly, pro-Indian, etc. Given the venerable position that inventors/entrepreneurs occupy in American society, I was trying to think if there is anything akin to the pro-veteran canon of construction in patent law.  I suppose to some extent the doctrine of equivalents benefits inventors.  But, I think of that as an equitable doctrine rather than a canon of statutory construction.  Is there any place for a pro-inventor canon of construction when applying exceptions to 35 U.S.C. §101? To the AIA?

Judge Hughes did not take part in the decision to grant en banc review and I did not hear him during the oral argument; so, it appears that he has recused himself from this case.  You might recall that Judge Hughes has an extensive background in prior Agent Orange cases, arguing for the DOJ and the Veteran’s Administration.  In his Senate questionnaire he listed Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) as his most significant case during his DOJ career prior to joining the court.  He was awarded a commendation for his handling of that case which “resulted in several billions of dollars in monetary savings.” [Link].  It would seem this case puts that decision in its cross-hairs.

You might get a chuckle over Judge Newman’s phrase:  “take your judicial hands off this statute and leave it to the agency” — around the 56:00+ mark.  I’m not sure if she was using a Charlton Heston accent or not.

There were lots of questions about past and pending attempts at legislation and epidemiological studies — it was unclear if those questions were directed at record evidence.

 

Frankenstraction?

Wednesday, December 12th, 2018

When a party cobbles together multiple purported abstract ideas in an attempt to characterize a claim as an abstract idea, should that be called a Frankenstraction?  I think Mary Shelley would have said yes.

Audio of Helsinn v. Teva oral argument at the Supreme Court

Saturday, December 8th, 2018

The Supreme Court has released the audio recording of the oral argument in Helsinn v. Teva.  That recording is available below:

How many new judgeships would it take?

Thursday, December 6th, 2018

I was looking at all the Rule 36 decisions issued today and wondering how many new federal judgeships it would take to cure the Federal Circuit’s Rule 36 predicament.  I suppose that if quite a few judgeships need to be created to keep up with the current load that Congress might start taking a hard look at the size of a new court.  If Congress takes a hard look at the size of a new court, Congress might start to think let’s split the new court into two — a pure patent court and a generalist court.  If Congress created a pure patent court and a generalist court, some of the current judges of the Federal Circuit would probably be assigned to the generalist court and others with a technical background to the patent court.  Perhaps that’s why we never hear the Federal Circuit judges speak about their Rule 36 predicament or needing new judges assigned to the court.  Or, perhaps not.  I can’t recall ever hearing about one of the Federal Circuit judges speaking at a conference and lamenting about how many Rule 36 judgments they are forced to issue.  Surely it must bother their judicial consciences.

Transcript of Helsinn v. Teva Oral Argument at Supreme Court

Tuesday, December 4th, 2018

The Court heard oral argument today in HELSINN HEALTHCARE S.A. v. TEVA PHARMACEUTICAL USA, INC., ET AL.  The transcript of the oral argument is available [here].