Patent Models

January 11th, 2017

I wonder if the patent models that currently adorn the Oval Office will remain after the transition.

Oral argument of the week: Voxathon v. FCA

January 7th, 2017

The oral argument of the week is Voxathon v. FCA, argued on December 5, 2016.  The oral argument focuses on §101 issues.  There was a brief portion of the oral argument where Judge Clevenger took the discussion in the direction of analogizing the abstract idea assessment to an infringement assessment.  That is something that seems to have gotten lost in the §101 mess — claim scope is treated entirely differently for purposes of §101 than it is for §§271 (infringement), 102, or 103.  To the extent possible, it would be beneficial if the judges of the Federal Circuit would invoke §271 principles as part of their analyses when evaluating §101.

You can listen to the oral argument [here].

You can review the court’s Rule 36 Judgment [here].

Chief Justice Roberts has recused himself from the LIFE TECHNOLOGIES case

January 6th, 2017

Chief Justice Roberts has recused himself from the Life Technologies Corp. v. Promega Corp. case that was argued December 6th, due to his stock ownership in Thermo Fisher Scientific.  [Source].

Judge Wallach’s book “Jake and Me”

January 5th, 2017

I was not aware that Judge Wallach published a book in 2015.  It is entitled “Jake and Me” and set in Arizona in the 1920’s.  You can read more about it on Amazon at this [Link].

The book has quite an attention-grabbing opening line.

TC Heartland

January 4th, 2017

With certiorari having been granted in the TC Heartland case, I was interested to learn that spreading the Eastern District of Texas’ workload across more inexperienced judges in other districts might actually result in more infringement verdicts for patent owners: [Link]

Oral argument of the week: MACROPOINT v. FOURKITES

January 3rd, 2017

The oral argument of the week is MACROPOINT, LLC v. FOURKITES, INC., No. 2016-1286 (Fed. Cir. Dec. 8, 2016) decided by a Rule 36 judgment.  The case focuses primarily on §101 issues.

You can listen to the oral argument here [Listen].

You can review the Rule 36 judgment [here].

Thought for the day:

[T]his Court has emphasized that “in a system of laws discretion is rarely without limits.” Flight Attendants v. Zipes, 491 U.S. 754, 758, 109 S.Ct. 2732, 105 L.Ed.2d 639 (1989); see Halo Electronics, Inc. v. Pulse Electronics, Inc., ___ U.S. ___, ___, 136 S.Ct. 1923, 1931, ___ L.Ed.2d 1986*1986 ___, 2016 WL 3221515 (2016) ante, at 8. Without governing standards or principles, such provisions threaten to condone judicial “whim” or predilection. Martin, 546 U.S., at 139, 126 S.Ct. 704; see also ibid. (”[A] motion to [a court's] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles” (quoting United States v. Burr, 25 F.Cas. 30, 35 (No. 14,692d) (C.C.Va.1807) (Marshall, C. J.))). At the least, utterly freewheeling inquiries often deprive litigants of “the basic principle of justice that like cases should be decided alike,” Martin, 546 U.S., at 139, 126 S.Ct. 704 . . . .

Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979, 1985-86  (2016).

Beware the lynx

January 2nd, 2017

For those of you headed out here to Colorado for the Ski-CLE, watch out for the lynx!

Here’s the snow report [Link].

White v. Dunbar Sesquicentennial

December 30th, 2016

An advocate noted in a recent oral argument at the Federal Circuit that we are celebrating the 150th anniversary of White v. Dunbar.  White v. Dunbar is known for its “nose of wax” statement.  The case was decided by the Supreme Court on November 15, 1886:

Some persons seem to suppose that a claim in a patent is like a nose of wax, which may be turned and twisted in any direction, by merely referring to the specification, so as to make it include something more than, or something different from, what its words express. The context may, undoubtedly, be resorted to, and often is resorted to, for the purpose of better understanding the meaning of the claim; but not for the purpose of changing it, and making it different from what it is. The claim is a statutory requirement, prescribed for the very purpose of making the patentee define precisely what his invention is; and it is unjust to the public, as well as an evasion of the law, to construe it in a manner different from the plain import of its terms. This has been so often expressed in the opinions of this court that it is unnecessary to pursue the subject further. See Keystone Bridge Co. v. Phoenix Iron Co., 95 U. S. 274, 278; James v. Campbell, 104 U. S. 356, 370.

White v. Dunbar, 119 U.S. 47, 7 S. Ct. 72, 30 L. Ed. 303 (1886).


December 22nd, 2016

I created a “Hot Bench” category to identify oral arguments that I post that had a particularly “hot bench.”  The en banc oral argument in the In Re Aqua Products case was a particularly hot bench for the PTO.  The questioning showed little love for the PTO’s arguments.

That got me to thinking about all the valuable patents that have been invalidated by the PTO due to the PTO’s refusal to accept some amendments during IPR’s.  I know very little about “takings” law; but, I wonder if there is a cause of action for administrative taking of a patent right by the federal government due to improper application or improper promulgation of a rule that results in loss of a patent right?

En banc oral argument of In re Aqua Products

December 19th, 2016

The Federal Circuit sat en banc on December 9th to hear the en banc oral argument in In re Aqua Products, Inc.   Aqua challenges the Patent Trial and Appeal Board’s amendment procedures, which require the patentee to demonstrate that amended claims would be patentable over art of record.

You can listen to the en banc oral argument [here].

You can review the vacated panel opinion [here].

Aqua Products’ supplemental brief is available [here].