I always enjoy listening to oral arguments that feature Judge Clevenger. He is very smart, direct, and knows how to turn a phrase. He often interjects a few idiomatic expressions into the oral arguments. For example, I don’t know that he has ever said this one but it would be apropos: Mr. Solicitor, the combination of the two references that the PTO proposed is like putting socks on a rooster.
Judge Clevenger’s exchanges with the PTO can be interesting; so, over the weekend I was trying to generate a playlist of past oral arguments. This is where the weird fact of the day comes in. To my surprise, there was a period between 2006 and 2008 where Judge Clevenger did not sit on any appeals arising out of the USPTO. This is quite curious, as he did hear appeals from other cases. At first, I suspected that he simply chose not to hear appeals from the USPTO once he took senior status in February of 2006. However, then I noticed that two other senior judges, Judges Archer and Plager, only heard one appeal each (directly from the USPTO) during that same three year interval. A third senior judge, Judge Friedman, similarly heard only one patent appeal arising out of the USPTO, as well as one trademark appeal. It is too bad, as it deprived the patent bar of some of the most experienced judges hearing appeals from the USPTO during that time period.
If you want to double-check my work, I used Google Scholar, the judge’s last name in combination with “solicitor” and filtered by year. Then, it was an easy process of eliminating inapplicable hits.