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The Federal Circuit sat en banc today to hear the tariff case V.O.S. Selections, Inc. v. Trump.

A Federal Circuit panel heard oral argument today in the case of Google v. Sonos. You can listen to the oral argument here:

Joshua Rosenkranz, arguing for the patent owner, opened his argument with the statement:

“Your honors, the district court took a doctrine that this court has cautioned must be sparingly applied and stretched it to endanger standard continuation practice. If this court sustains this approach, it will fundamentally alter the norms of both patent prosecution and patent litigation.”

The Fed Circuit blog has copies of briefs for this appeal: [Link].

Update 10/8/25:

Google cannot be prejudiced by incorporating into its products a feature that was publicly disclosed in a patent application prior to its investment. Cf. Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 909 (Fed. Cir. 2004) (“[I]t is not improper for an applicant to broaden his claims during prosecution in order to encompass a competitor’s products, as long as the disclosure supports the broadened claims.”); Eli Lilly & Co. v. Hospira, Inc., 933 F.3d 1320, 1334 (Fed. Cir. 2019) (explaining that, although subject matter disclosed but not claimed is generally dedicated to the public, there is an exception for subject matter “claimed in a continuation or other application”).

Google LLC v. Sonos, Inc., 2024-1097 (Fed. Cir. Aug. 28, 2025)(slip op. at 16-17).

I was experimenting with some AI-generated song software this evening. Would Federal Circuit bio pages be more interesting if they had links to AI-generated songs? For example, Judge Newman. What about judicial decisions, e.g., Chakrabarty?

It can be frustrating to run into a paywall when you are trying to access an article in a scientific journal. I was pleased to hear that at least for NIH funded research, publications of that research will soon be available for free. In this interview with the head of the NIH, this new policy was explained:

The new policy applies to manuscripts accepted for publication on or after July 1, 2025.

Yesterday, the Court of International Trade blocked the White House from using the emergency powers act to impose tariffs on foreign countries. The decision has already been appealed. Appeals from the Court of International Trade go to the US Court of Appeals for the Federal Circuit.

This begs a few questions:

1. Will the CAFC take this case en banc sua sponte? Will any judges recuse themselves?
2. While rarely used, will the CAFC expand the panel to five judges from the normal three?
3. Will the CAFC stick to its unique procedure of announcing the panel shortly before oral argument?
4. How dynamically will the stock market respond during the oral argument?
5. How many patents will be deemed non-infringed or subject matter ineligible in the decision?
6. . . . . . will the Federal Circuit issue a Rule 36 decision?

I am reading the biography of Benjamin Franklin by Walter Isaacson. Benjamin Franklin is known for many impressive discoveries and inventions — for none of which he ever pursued a patent. Interestingly, in his correspondence with the philosopher David Hume in 1759, Franklin lamented that Hume discouraged the coining of new words.

Isaacson writes:

Franklin and Hume also shared an interest in language. When Hume berated him for coining new words, Franklin agreed to quit using the terms “colonize” and “unshakeable.” But he lamented that “I cannot but wish the usage of our tongue permitted making new words when we want them.” For example, Franklin argued, the word “inaccessible” was not nearly as good as coining a new word such as “uncomeatable.” Hume’s response to this suggestion is unknown, but it did nothing to diminish his ardent admiration for his new friend.

Benjamin Franklin — An American Life, by Walter Isaacson at page 197.

Franklin probably would have approved of the fact that a future US Patent system would actually permit one to be their own neologist. (Some might say “lexicographer” — but, I think neologist is a more apt word.) And, he might be interested in the new words coined by future US Presidents, e.g., Thomas Jefferson: “authentication,” Abraham Lincoln: “relocate,” Donald Trump: “bigly.”

Assuming Chief Judge Moore serves out the remaining three years of her seven year term as Chief Judge of the Federal Circuit, can you answer who will be the next Chief Judge of the Federal Circuit?

[More below the break]

I ran across this quote this evening and thought it might have a place in somebody’s brief to the Supreme Court about the Federal Circuit’s Rule 36 problem:

When you want to hurry something, that means you no longer care about it and want to get on to other things.

Robert M. Pirsig (2009). “Zen and the Art of Motorcycle Maintenance: An Inquiry Into Values”, p.34, Harper Collins.

Benjamin Graham was a famous investor and polymath as well as author of the book “The Intelligent Investor.” That book was recently updated with commentary by Jason Zweig. Warren Buffet, who studied under Graham, writes of the book: “I read the first edition of this book early in 1950, when I was nineteen. I thought then that it was by far the best book about investing ever written. I still think it is.”

Graham was also an inventor. He received two US patents: 3122314 and 2892586.

I was listening to a CLE webinar over the weekend on the subject of design patents. The presenters used an apt phrase that I had not heard before: “The Mr. Potato Head rejection.” I’ve heard of a Frankenstein (or Frankenstein’s monster) rejection/argument; but, Mr. Potato Head might capture the idea even better. See these earlier posts on the Frankenstein’s monster rejection: [Link 1] [Link 2].

Interestingly, Hasbro, Inc. actually obtained a patent on a talking Mr. Potato Head. I suppose any rejection they received in the prosecution of that application was by definition a Mr. Potato Head rejection.

In honor of the Mr. Potato Head rejection, the quote for the day comes from the 1950 case of In Re Jennings where the wise judges of the CCPA mashed a five-reference combination of references:

In the instant case individual features seem to have been selected from different of the reference patents and compared with features shown in appellant’s drawings. In other words, it seems to have been held that by selecting features taken from five different patents, that is, one feature from one patent, another from another, etc., a device might be considered which would so closely resemble the drawings of appellant that his design would not be patentable over such possible construction.

We feel constrained to disagree with the concurring conclusions reached by the tribunals of the Patent Office.

In considering patentability of a proposed design the appearance of the design must be viewed as a whole, as shown by the drawing, or drawings, and compared with something in existence — not with something that might be brought into existence by selecting individual features from prior art and combining them, particularly where combining them would require modification of every individual feature, as would be required here.

In re Jennings, 182 F.2d 207, 208, 86 (CCPA 1950).