Happy 20th Birthday Patently-O

April 6th, 2024

Congratulations to Patently-O on turning twenty years old today!

Time flies.

Two years between oral argument and opinion in the Fourth Circuit

February 23rd, 2024

One thing I like about some of the circuits other than the Federal Circuit is that they print the date of oral argument on the published opinion. The Fourth Circuit is one such circuit. In Sony Music Entertainment v. COX COMMUNICATIONS, INCORPORATED, No. 21-1168 (4th Cir. Feb. 20, 2024), the Fourth Circuit heard oral argument on March 9, 2022 and decided the appeal on February 20, 2024 — roughly two years between oral argument and decision. At the Federal Circuit, you might be the target of a formal complaint if you took that long to complete your opinion.

IPWatchdog highlighted this case earlier today. I thought the oral argument might be of interest given that a billion dollar damages award for copyright infringement was reversed for a new damages trial.

[It is interesting to note how the Fourth Circuit records its oral arguments. I’m not sure what the technical term is for the audio technique, perhaps “stereo”; but, the attorneys are recorded on one channel while the judges are recorded on a second channel. Thus, during playback, it is much easier to hear the conversational flow between the attorneys and the judges. At least on my computer, the attorneys’ voices are coming out of the left speaker and the judges’ voices are coming out of the right speaker. The Federal Circuit and perhaps the Supreme Court seem to record their oral arguments in mono.]

Chevron deference

January 17th, 2024

The Supreme Court of the United States heard oral argument today in two cases challenging the doctrine of Chevron deference.

I queried back in May of 2023 what would be the impact on patent law if Chevron deference is removed by the Court — and, in December of 2018 whether there should be a pro-inventor/pro-entrepreneur canon of construction when a patent statute is ambiguous.

You can listen to today’s oral arguments here:

Relentless, Inc. v. Dept. of Commerce

Loper Bright Enterprises, Inc. v. Raimondo, Sec. of Comm.

Season’s Greetings

December 27th, 2023

Anderson et al. v. Griswold oral argument

December 19th, 2023

The Supreme Court of the State of Colorado (my home state) decided Anderson et al. v. Griswold today. I thought the oral argument might be of interest.

Supreme Court Oral Argument of SEC v. Jarkesy

November 29th, 2023

The Supreme Court held oral argument today in SEC v. Jarkesy. The importance of the case and the potential impact on administrative law is perhaps reflected by the fact that the Court devoted an unusually long 2 hours and 17 minutes to oral argument.

You can listen to the oral argument here: [Link].

The transcript is available here: [Link].

Briefing continues in Securities and Exchange Commission v. Jarkesy

September 15th, 2023

The Supreme Court is midway through its briefing in Securities and Exchange Commission v. Jarkesy. Readers might find some of the briefing interesting for the references to the Supreme Court decision in United States v. Arthrex. [Link to briefs].

Oral argument date to be determined.

Trespass to Chattels

September 14th, 2023

The Ninth Circuit heard oral argument in Best Carpet Values, Inc. v. Google, LLC, yesterday. The plaintiffs below asserted trespass to chattels (among other things) based on alteration of a website display.

The district court framed trespass to chattels as follows:

Trespass to chattels lies where an intentional interference with the possession of personal property has caused injury. Intel Corp. v. Hamidi, 30 Cal. 4th 1342, 1350-51 (2003)see also Brodsky v. Apple Inc., 2019 U.S. Dist. LEXIS 148808, at *8 (N.D. Cal. Aug. 30, 2019). “Dubbed by Prosser the `little brother of conversion,’ the tort of trespass to chattels allows recovery for interferences with possession of personal property `not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered.'” Hamidi, 30 Cal. 4th at 1350(quoting Prosser & Keeton, Torts (5th ed. 1984) § 14, pp. 85-86). Under California law, “[i]n cases of interference with possession of personal property not amounting to conversion, `the owner has a cause of action for trespass or case [sic], and may recover only the actual damages suffered by reason of the impairment of the property or the loss of its use.'” In re iPhone Application Litig., 844 F. Supp. 2d 1040, 1069 (N.D. Cal. 2012)(quoting Hamidi, 30 Cal. 4th at 1351).

BEST CARPET VALUES, INC. v. GOOGLE LLC, No. 5: 20-cv-04700-EJD (N.D. Cal. Sept. 24, 2021) [Link].

You can watch yesterday’s oral argument at the Ninth Circuit here:

Quiz: Farrago of Fumblings

August 11th, 2023

Today’s quiz asks what area of legal precedents was this quote describing:

a farrago of fumblings which have suffered too long from a surfeit of deficient theories.

A: Takings law

B: Patent eligibility law

C: Patent eligibility law

D: Patent eligibility law

Read the rest of this entry »

The Black Hole of Patent Eligibility

August 2nd, 2023

by Bill Vobach

I ran this cartoon back in 2020; but, I thought today might be a good day to run it again [Link].

Audio bites of the day

July 14th, 2023

There were some fun audio bites in the oral argument of CR BARD, INC. v. Medical Components, Inc., No. 2022-1136 (Fed. Cir. Feb. 17, 2023).

Judge Hughes had some frank comments about the court injecting printed matter into patent eligibility determinations:

You can listen to the entire oral argument here:

Oral argument of the day: Ill-gotten gains and the Fifth Circuit

July 11th, 2023

I saw a blurb yesterday in IPLaw360 that highlighted an appeal from a Fifth Circuit case that will be heard by the Supreme Court next term. The case is Jarkesy v. SEC, 34 F.4th 446 (5th Cir. 2022).

Some of the issues raised in the oral argument at the Fifth Circuit are somewhat related to those that were raised in the Arthrex and Oil States decisions. The Oil States decision is also discussed in the briefing to the Supreme Court, as well as in the dissenting opinion at the Fifth Circuit.

You can listen to the Fifth Circuit oral argument here:

The issues presented in the appeal to the Supreme Court are:


  1. Whether statutory provisions that empower the
    Securities and Exchange Commission (SEC) to initiate
    and adjudicate administrative enforcement proceedings
    seeking civil penalties violate the Seventh Amendment.
  2. Whether statutory provisions that authorize the
    SEC to choose to enforce the securities laws through an
    agency adjudication instead of filing a district court ac-
    tion violate the nondelegation doctrine.
  3. Whether Congress violated Article II by granting
    for-cause removal protection to administrative law
    judges in agencies whose heads enjoy for-cause removal

Oral argument of the day: LKQ Corp. v. GM Global Tech. Operations, LLC

July 9th, 2023

The oral argument of the day is from LKQ CORPORATION v. GM GLOBAL TECHNOLOGY OPERATIONS LLC, No. 2021-2348 (Fed. Cir. Jan. 20, 2023). The Federal Circuit recently granted en banc review in this case.

I am listing a second oral argument, as well, as there was a companion case argued immediately following the 2021-2348 oral argument. I thought some people might find it interesting.

When argued, the en banc argument should feature Judge Clevenger. While he is a senior judge, he was part of the original panel. So, he is entitled to participate in the en banc decision with the full-time members of the court — although, I believe the Federal Circuit changed its procedures in recent years so that senior judges on the original panel are no longer allowed to vote in determining whether to take a case en banc. Judge Clevenger authored the “Durling” decision in 1996. In the original 2021-2348 panel decision, the “Rosen” and “Durling” tests are discussed.

2021-2348 Oral argument
2022-1253 Oral Argument

Chaotic bricolage

June 20th, 2023

We all have probably encountered an obviousness argument that cobbled together references in an unconvincing manner. In this earlier post, such a combination was aptly described as a Frankenstein combination.

I was trying to think of some other phrases that the Federal Circuit could use in future opinions to describe such combinations of features/elements/limitations/references. Here are a few suggestions:

a chaotic bricolage

an omnium gatherum

a wishful patchwork

a cacophonous medley

an unpalatable goulash

a conglomeration abomination

an unfettered quilt

a motley melange

a concocted Chimera

a chimeric concoction

a synthetic snarl

an incongruous union

a monster mishmash

Quote for the day

May 20th, 2023

That society should protect, and thereby stimulate, investment in innovation—not just invention—has been held by many; but few were as consistent in their conclusions as Joseph A. Schumpeter, who on these grounds favored permitting monopolistic practices of various sorts. He argued that temporary security from competition, through cartels, patents, or other restraints, would encourage firms to put more venture capital into innovating investment. Schumpeter, Capitalism, Socialism, and Democracy (New York: Harper, 1942), pp. 81-106.

“An Economic Review of the Patent System,” Fritz Machlup, United States Government Printing Office 1958, page 9, footnote 44.