The Supreme Court heard oral argument today in the pay-for-delay case of FTC v. Actavis, Inc. et al.
The transcript of the oral argument is available here.
On some of the other blogs, commenters have been wondering aloud if the Federal Circuit’s newest judge, Richard Taranto, will be allowed to participate in the CLS v. Alice case. CLS v. Alice was argued prior to Judge Taranto joining the Federal Circuit. Assuming there is no recusal, history suggests that Mr. Taranto will participate.
Judge O’Malley was sworn-in on December 28, 2010 and participated in three en banc cases that were argued before she was sworn-in (Therasense, Tivo, and Slattery). Judge Reyna was sworn-in on April 7, 2011 and participated in two en banc cases argued before that date (Therasense and Tivo). Indeed, Tivo was decided less than two weeks after Judge Reyna was sworn-in. So, the door is still open for Todd M. Hughes to participate if/when he is confirmed. Ray Chen participated in an amicus brief in the CLS v. Alice case — so, one would assume that he would recuse himself if sworn-in before the decision issues.
Richard Taranto was sworn-in on Friday March 15th as the newest judge on the Federal Circuit.
Todd M. Hughes was nominated for the Federal Circuit on February 7, 2013. The Senate Judiciary Committee recently posted his committee questionnaire. The questionnaire is available here: [Link].
Mr. Hughes listed his most significant litigation matter as Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) which concerned the interpretation of a statute governing disability compensation for Agent Orange exposure.
You can listen to Mr. Hughes in the oral argument of the Haas case here: [Listen].
You can read the Haas opinion here: [Link].
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.
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.
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].
The transcript from the Supreme Court oral argument in Bowman v. Monsanto is now available [here].
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.