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With hundreds of thousands without power in Northern California and power grid vulnerabilities in question, a patent attorney’s mind naturally turns to the Electric Power Group case. Electric Power Group was discussed at some length in this year’s oral argument in POWER ANALYTICS CORPORATION v. OPERATION TECHNOLOGY INC., No. 2018-1428 (Fed. Cir. Jan. 15, 2019). [Link].

You can listen to that oral argument here:

What I thought was particularly interesting was Judge Dyk chiming in to Judge Chen’s hypothetical question about the patent eligibility of a model for predicting the path of a hurricane. One is always interested to hear of things that Judge Dyk might believe are patentable. You can listen to that questioning here:

I also thought that this was an interesting comment by Judge Chen: “there are big data solutions out there that seem to be very valuable and so therefore you would think, instinctively, ought to be part of the patent system.”

In case you want to look at one of the Electric Power Group claims, it is shown below:

12. A method of detecting events on an interconnected electric power grid in real time over a wide area and automatically analyzing the events on the interconnected electric power grid, the method comprising:

receiving a plurality of data streams, each of the data streams comprising sub-second, time stamped synchronized phasor measurements wherein the measurements in each stream are collected in real time at geographically distinct points over the wide area of the interconnected electric power grid, the wide area comprising at least two elements from among control areas, transmission companies, utilities, regional reliability coordinators, and reliability jurisdictions;

receiving data from other power system data sources, the other power system data sources comprising at least one of transmission maps, power plant locations, EMS/SCADA systems;

receiving data from a plurality of non-grid data sources;

1352*1352 detecting and analyzing events in realtime from the plurality of data streams from the wide area based on at least one of limits, sensitivities and rates of change for one or more measurements from the data streams and dynamic stability metrics derived from analysis of the measurements from the data streams including at least one of frequency instability, voltages, power flows, phase angles, damping, and oscillation modes, derived from the phasor measurements and the other power system data sources in which the metrics are indicative of events, grid stress, and/or grid instability, over the wide area;

displaying the event analysis results and diagnoses of events and associated ones of the metrics from different categories of data and the derived metrics in visuals, tables, charts, or combinations thereof, the data comprising at least one of monitoring data, tracking data, historical data, prediction data, and summary data;

displaying concurrent visualization of measurements from the data streams and the dynamic stability metrics directed to the wide area of the interconnected electric power grid;

accumulating and updating the measurements from the data streams and the dynamic stability metrics, grid data, and non-grid data in real time as to wide area and local area portions of the interconnected electric power grid; and

deriving a composite indicator of reliability that is an indicator of power grid vulnerability and is derived from a combination of one or more real time measurements or computations of measurements from the data streams and the dynamic stability metrics covering the wide area as well as non-power grid data received from the non-grid data source.

I suppose one way of encouraging panels not to issue so many Rule 36 judgments is to appeal to their vanity. According to a recent report, grandmaster chess players burn around 6,000 calories a day during a chess tournament. One player, Fabiano Caruana, has dropped from 135 pounds before a tournament to 120 pounds at the end of the tournament. During a match, a player’s breathing rate can triple and blood pressure can elevate.

There is obviously a significant difference in mental effort involved in writing an opinion as compared to issuing a Rule 36 judgment. So, if judges were to forsake the “Rule 36 Diet” and embrace the “Opinion Writing Workout,” they might find themselves in need of brand new robes.

You often hear patent law described as “the thinking person’s profession.” Usually, it is patent attorneys describing it this way! (I suspect attorneys in all areas of the law describe their specialty as “the thinking person’s profession.”) It would be an interesting survey to see if patent attorneys do indeed benefit from a higher neuro-calorie-burn.

The oral argument prior to the Federal Circuit’s decision in IN RE WHITE, No. 2018-1242 (Fed. Cir. Jan. 16, 2019) had an interesting sound bite. The case is a trademark case in which the Appellant asked the Federal Circuit to take judicial notice of the teaching of American history in public schools. Judge Wallach asked the Appellant if there was some source upon which the court could base such a taking of judicial notice.

It is interesting to note the care of the court when judicial notice is requested explicitly. Compare that situation to the court’s frequent pronouncements of abstract ideas (without evidentiary support) in step 1 of the Alice analysis under 35 U.S.C. §101. Some would argue that a court’s pronouncement of something being an abstract idea is a taking of judicial notice.

You can listen to Judge Wallach’s comment from In re White here:

Judge Lourie warned about the slippery slope of divorcing patent examination from the citation of references back in the oral argument of HIMPP v. HEAR-WEAR TECHNOLOGIES, LLC, No. 2013-1549 (Fed. Cir. May 27, 2014). His comments were focused on obviousness; but, they ring true for patent eligibility, as well:

We have an examination system based on citation of references.  I may have used the word ‘slippery slope’ already.  But, I worry about that — where an examiner who is of some skill and training in a particular art could simply say ‘Aha, I think, I think, and it is my common knowledge . . . .’ And, they start rejecting claims based on what they ‘think.’  Isn’t that a serious departure from our system of citation of references to reject claims?  [Listen]

It doesn’t seem to me to be the function of the appellate court to take judicial notice of the ordinariness of certain decided claim limitations.  We can take judicial notice that ‘today is Wednesday’ and ‘we had snow earlier in the week’ — I’m glad you made it through the snow — but, we don’t make rejections based on judicial notice of . . . finding a claim limitation to be common sense. [Listen]

It would be interesting to know if the Federal Circuit will play any future role in the fallout from the impeachment inquiry taking place at this time. Application of the Whistleblower Protection Act often comes up during Senate confirmation hearings of Federal Circuit nominees, especially when Senator Grassley questions nominees about the Act he co-authored. You can see one example of this in the confirmation hearing for Judge Taranto between the 46:44 and 52:14 minute marks of this video:

https://www.judiciary.senate.gov/meetings/nominations-2012-02-29

According to Senator Grassley’s comment, the Federal Circuit had exclusive jurisdiction for appeals concerning the Whistleblower Protection Act at the time of Judge Taranto’s hearing; however, it appears that subsequent legislation may have extended jurisdiction to all circuits.

Judge Taranto deftly handled the question about “irrefragable proof” during the hearing.

The oral argument of INTELLECTUAL VENTURES I LLC v. T-MOBILE USA, INC., No. 2017-2601 (Fed. Cir. Jan. 14, 2019) was an interesting §101 case with some good sound bites. I’ll add some of them to this post in the coming days.

The recording of the oral argument is available here:

The Rule 36 Judgment is available here: [Link].

Director Iancu will be at the Denver Patent Office on August 30th to celebrate the 5th year anniversary of the Denver Patent Office.

You can learn more about the event at this [link].

Director Iancu will be holding one of his Fireside Chats here in Denver at the end of the month. Todd Dickinson will be interviewing him. I don’t know, yet, if there will be a corresponding event at the Denver Patent Office.

You can see one of Director Iancu’s previous Fireside Chats, with Judge O’Malley of the Federal Circuit, below:

If you have sixty-seven minutes to spare, you might want to check out yesterday’s oral argument in Facebook v. Windy City Innovations (CJ Prost, O’Malley, Plager). It is an interesting and well-argued one. The case concerned statutory interpretation of the AIA’s joinder statute.

A few of the issues that cropped up in the oral argument were:

1. Why didn’t the PTO intervene in the case to address whether its precedential opinion should be given Chevron deference?
2. Should the PTO’s precedential opinion panel (POP) decisions be given Chevron deference?
3. Did Congress error by referring to infringement of a patent vs. infringement of a patent claim(s) in the AIA?
4. Is the statute ambiguous?
5. Is there a clerical error in the statute?
6. Should the court ask the PTO for its thoughts — even though the PTO chose not to weigh-in in the first instance?

Judge Plager expressed the view that the USPTO’s precedential opinion panel decisions were not entitled to Chevron deference:

During the oral argument, the panel was receptive of counsel’s individual experiences during patent infringement litigation (or maybe now we need to say patent claim infringement litigation) and IPR proceedings. Interesting. Some might think that that type of information is not of-record and mere unchallenged attorney testimony.

Judge Prost used an expression that I had not heard before. The way it rolled off her lips, perhaps it is a mantra used in appellate judge chambers around the country: “Too bad, so sad. Go to Congress and get them to make an amendment.“

This oral argument is a good example of how seriously the judges of the Federal Circuit view their role in trying to make the system work for all of those impacted by a statute — including those not represented in the proceeding. The extensive questioning makes this abundantly clear.

You can listen to the entire oral argument here:

The briefing in an earlier iteration of this case is available at this prior post: [ https://www.717madisonplace.com/?p=9474 ].

The Federal Circuit will sit in Dallas this October for part of its oral argument session.

The schedule announced on the Federal Circuit website is below [link]:

The court also sat for oral arguments in Minnesota in April 2019.

A couple of the Federal Circuit judges have expressed some frustration with certain recent PTAB opinions. During oral arguments, Judges Clevenger and Moore suggested to the PTO’s Solicitor’s Office that the PTAB could write clearer opinions.

In the oral argument of Smart Modular v. Iancu, Judge Clevenger had this to say about the “skinny” presentation in the PTAB opinion at issue:

In the oral argument of In re Lilleness, Judge Moore had this to say:

It is interesting to note that Judge Moore appears to be of the opinion that the Solicitor’s Office has some sort of supervisory power over the Board (“go back; send a memo to everybody in the Solicitor’s Office to never allow the Board to write opinions like this”). I think it is still an undecided issue as to whether the Director, let alone the Solicitor’s Office, can dictate to the PTAB how to decide cases.

Both cases were decided by Rule 36 Judgments, skinny in their own right.

I was grabbing a piece of chocolate today and an image of the late Judge Daniel Friedman popped into my mind. Apparently, he was very fond of chocolate. Given the passage of time, I thought it might be nice to relate, again, Judge Newman’s eulogy of Judge Friedman:

Judge Friedman, our colleague and friend, has moved to the banks of memory. We treasure his memory. And we extend our condolences to Judge Friedman’s family, and his friends.

I’m honored to speak for the court, for at this moment Chief Judge Rader is performing a wedding in California – a schedule he couldn’t change. He wrote, from the wedding site: “Please carry my respect and love for Dan in your hearts at his service”. We do indeed.

Respect and love are the markers of our memories of our friend and colleague. We shall not forget Judge Friedman’s dignity, his warmth, his humor. We remember his lifetime of scholarship, his brilliance and his wisdom, all generously shared.

His seventy years of public service started long before he came to the judiciary. In the office of solicitor general, his legal advice to the nation, and his representation as its advocate, had already ensconced him in the annals of good government. So it was fitting that in 1978 President Carter called him to be Chief Judge of the United States Court of Claims — the eleventh chief judge since 1858.

The Court of Claims was at the foundation of nation’s rule of law – that the people can sue their government, and receive even-handed justice. Judge Friedman told me that he expected to finish his career in that role – and then, about a year later, the idea popped up of this curious new judicial structure, supposed to move the court system into the era of science and technology, and somehow incorporating the reputation of the historic Court of Claims.

Judge Friedman knew that I’d been involved in those early efforts, and he told me that he still wondered what the Court of Claims had to do with the progress of science. But I knew that as Chief Judge he had supported the change. He knew – we all knew — that if he did not, it would not have happened.

I thought then, and now — that Judge Friedman had an unusually clear vision of the role of the courts in service to a great nation – and if that service was somehow thought to be slipping, we should do whatever’s in our power to fix it. And he did. I also saw that Judge Friedman’s intellectual curiosity embraced the culture of science. He was fascinated by the movement of electrons, and the advances of chemistry and biology.

Still, with the transition from the Court of Claims, he assured that the precedents of history were preserved, not only by the formality of adopting them, as the Federal Circuit did as its first judicial act — but by reinforcing their truths.

I was the first judge appointed to the new court, and my chambers were next-door to Judge Friedman’s, on the ninth floor. He made sure I felt welcome, as the first intruder into the domain of the Court of Claims. I soon came upon a case involving a claim against the United States, and I mentioned my uneasiness with deciding against the government. He twinkled – we all remember his twinkle – and he said “that’s our job”, and he quoted Abraham Lincoln — about the duty of government to render justice against itself.

I haven’t wavered since.

Yesterday I talked to Judge Gajarsa in New Hampshire. Before I could ask him, he said “Dan was the epitome of what a judge will be.”

Dan’s opinions are a treat to read, not just because they advance the law in some very difficult areas, but because of their elegance of style and the purity of their reasoning.

It would be easy to assume that the scholarly tradition from which Judge Friedman came would be remote from the world of applied science, at least in the arcane new areas of intellectual property law. Instead, he was intensely practical, wise and savvy in the law and the world — with a powerful a sense of justice.

Judge Friedman had, as one would expect, a deep understanding of the judicial process. As a judge, he showed the most profound respect for our inherited law, without diverging from the statutory law. His standards were never compromised. He was a model of judicial elegance. He never showed off, never embarrassed counsel or his colleagues.

Maybe the word is “urbane”. I never saw him badger a lawyer. He never took advantage of his position, looking down at counsel, who can’t answer back.

In bearing and temperament he was made to be a judge. He always listened, and I never saw him show impatience or inattention. He would draw out his colleagues, even as he had the knowledge and confidence of vast experience.

In every way, he will be missed. Dan Friedman’s life was a life of service. He served the law and the nation with a wisdom that’s rare, even among judges. It was a joy to be in his company. We remember his kindness and his smile – and his scholarship, his balance, his sensitivity.

We mourn the loss of our dear colleague, and the nation’s loss of a powerful intellect. He moves to the memory of history.

You can listen to then Assistant Solicitor General Daniel Friedman argue before the Supreme Court in 1959 here:

I thought this was a fun story about a local student inventor here in Colorado, Gitanjali Rao. My understanding is that she is a student at the STEM School Highlands Ranch where there was a school shooting earlier this year. One embodiment of her invention relates to testing for early signs of opioid addiction in the human body:

Chief Judge Prost and Judges Newman, Lourie, O’Malley, Wallach, Chen, Reyna, and Hughes.

Senior Judges Schall, Bryson, Linn, and Clevenger.

Judges Dyk, Moore, Taranto, and Stoll did not have oral arguments at the Federal Circuit this month.

The Fifth Circuit heard oral argument today in State of Texas v. USA concerning the Affordable Care Act. I thought it might be of interest to some of you:

The oral argument of the day is from Performance Pricing Holdings v. Google. The arguments against the Federal Circuit’s application of Alice are getting more and more articulate. I thought this oral argument was a great example. The rebuttal argument by the appellant/patent owner’s attorney is presented below. I was particularly fond of the comparison of the Alice test to “a finger to the wind.”

You can listen to the entire oral argument here:

You can study the court’s Rule 36 Judgment here: [link].