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If you’re like me, you’ve probably been pondering the integrity of the electric power grid today. The Federal Circuit had an opportunity to encourage innovation in protecting the integrity of the nation’s infrastructure in Electric Power Group, LLC v. ALSTOM SA, 830 F.3d 1350 (Fed. Cir. 2016) — and passed. I wonder if the invention in Electric Power Group feels less like an abstract idea to the panelists today.

The representative claim at issue read:

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.

Electric Power Group, LLC v. ALSTOM SA, 830 F.3d 1350 (Fed. Cir. 2016).

You can listen to the oral argument of Electric Power Group here:

I think there is an impression among patent attorneys that the Supreme Court is keeping watch over them, their wily ways, and any linguistic attempts to evade Supreme Court precedent. (In actuality, I think the Supreme Court has historically had its eye on clever draftsmanship in multiple areas of the law.)

Well, If the above is true, nobody appears to have told the American Heritage Dictionary Usage Panel. The American Heritage Dictonary Usage Panel is a 200 member body that is tasked with holding court on the American-English language:

The Usage Panel is a group of nearly 200 prominent scholars, creative writers, journalists, diplomats, and others in occupations requiring mastery of language. Annual surveys have gauged the acceptability of particular usages and grammatical constructions.

https://www.ahdictionary.com/word/usagepanel.html (emphasis added).

The list of panelists is accessible here: [Link].

Can you believe it — there are no patent attorneys on this list! One of the few professions tasked with being a neologist and we didn’t make the cut.

I did see a cartoonist on the list, though.

Calvin: “What’s a pronoun?”

Hobbes: “A noun that has lost its amateur status.”

https://www.gocomics.com/calvinandhobbes/1986/02/24

Since patent attorneys are wordsmiths, I thought some of you might like this quote that I saw today.

Language makes infinite use of finite media.

Wilhelm von Humboldt

by Bill Vobach

I was checking the on-line list to see if any more Federal Circuit judges were taking retirement and noticed that Magistrate Judge Nina Wang for the U.S. District of Colorado has been nominated for a seat on the U.S. District Court in Colorado.

When Judge Wang was in private practice here in Denver, I always thought of her as a patent litigator. [Link to Federal Circuit opinions]. So, for those of you out there that want to see more patent/IP people on the federal bench, take note.

by Bill Vobach

The Federal Circuit sat en banc last week via telephone in Taylor v. McDonough. This case is an appeal from the U.S. Court of Appeals for Veterans Claims. The factual background is quite fascinating and in a nutshell concerns a denial of benefits to a veteran who signed a secrecy oath during his active service when he volunteered to be a guinea pig for the testing of chemical warfare agents, back in the 1960’s. The secrecy oath later hindered his ability to make a claim for benefits as a veteran.

Judge Wallach authored an opinion for the court in the earlier panel decision prior to en banc review. For further background of the case, you can read that opinion here: [Link]. You will hear Judge Wallach during the oral argument. Because he served on the original panel, Federal Circuit rules allow him to take part in the en banc appeal even though he has assumed senior status.

You can listen to the Taylor v. McDonough oral argument here:

Some further background articles:

Operation Delirium: [Link]

‘Operation Delirium:’ Psychochemicals And Cold War [Link]

Edgewood Arsenal human experiments. [Link]

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One aspect of this case is that Mr. Taylor signed a secrecy oath. On a wholly unrelated note, my impression is that Administrative Patent Judges are required to take an oath or make a declaration that they will apply the law. So, in view of that judicial oath, what is an APJ to do in the future if the Director’s orders or interpretation of precedent contradict the APJ’s personal interpretation of the law? If the en banc Federal Circuit in deciding Taylor v. McDonough hangs its hat on the inviolability of a secrecy oath, what will the implications be for the PTAB judges and the operations of the USPTO with respect to a judicial oath?

But “[t]he inventor’s own path itself never leads to a conclusion of obviousness; that is hindsight. What matters is the path that the person of ordinary skill in the art would have followed, as evidenced by the pertinent prior art.” Otsuka Pharm. Co., v. Sandoz, Inc., 678 F.3d 1280, 1296 (Fed. Cir. 2012). Given the record on appeal, as with OSI, we are left to conclude that “[i]t is only with the benefit of hindsight that a person of skill in the art would have had a reasonable expectation of success in view of the asserted references.” OSI Pharms., 939 F.3d at 1385.

UNIVERSITY OF STRATHCLYDE v. CLEAR-VU LIGHTING LLC, No. 2020-2243 (Fed. Cir. Nov. 4, 2021)(slip op. at 18).

The field of art here, computer-aided design, is unusually complex, involving methods of using computer systems to build geometric objects.

Nature Simulation Systems, Inc., v. Autodesk, Inc., 2020-2257 (Fed. Cir. January 27, 2022)(Judge Timothy B. Dyk in dissent).

by Bill Vobach

The FedCircuitBlog has an interesting post, including some briefs, on next week’s oral argument in  SAS Institute Inc. v. World Programming Ltd. The appeal has attracted ten amicus briefs. Check out the article [here].

I will try to update my post with the recording of the oral argument next week.

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Update January 13, 2022:

The oral argument is available here:

I haven’t written the wrong date on any checks this year — yet. But it is comforting to know that even the Federal courts have the same problem that most of us do this time of year.

by Bill Vobach

It appears that the USPTO currently designates about 101 opinions of the Board as precedential. There are also a good number of informative opinions. It occurs to me that an interesting seminar topic (e.g., for a Strafford program) might be summarizing the more interesting of these opinions, particularly the ones that apply to every day prosecution issues. There’s an amazing number of precedential opinions directed to interferences — so, one could drop those out of the mix. Similarly, there are so many directed to AIA proceedings that they could form their own seminar. But, it would be interesting to see a seminar that touches on the remaining important cases relating to prosecution.

One example might be Ex parte Smith, et al.

by Bill Vobach

Do you find it a little bit annoying that the Federal Circuit does not provide hyperlink(s) to the PTO website for the patent(s) at issue in a case? How often do you begin reading a Federal Circuit opinion (from the Federal Circuit website) with a limited reproduction of the claims and feel the need to review the patent for yourself? Pretty often, I would guess. Yet, the Federal Circuit does not take the simple step of hyperlinking the patent number in an opinion to the USPTO database. I’m not entirely sure why this is. If the hyperlink “rots” at some point down the road, it is not a big deal as the patent number is still in the opinion.

In the past, I have wondered if the reason for not doing so was that the Federal Circuit did not want to endorse the PTO website version as being an authentic version of the patent right. Preferring, instead, to rely on the “ribbon copy” version. With the USPTO announcing that it is contemplating electronic patent issuance [Link to Federal Register Notice], let’s hope that the Federal Circuit might begin adding hyperlinks for patents in its opinions. Maybe in a footnote they could even add a hyperlink to the patent file history in Public PAIR, as well!

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Update 1/1/2022:

Consider using the Perma CC service from the Harvard Library system to establish a permanent link for your sources or articles: [Link].

by Bill Vobach

I was tickled to see that the SMU Dedman School of Law’s Tsai Center for Law, Science, and Innovation has posted to its YOUTUBE channel some of the panels from its Fall 2021 Symposium on patent law. Below is the panel discussion of the Supreme Court’s opinion in Arthrex:

I was interested to hear Professor Sheppard’s comments about the low morale of some of the PTAB judges and the shenanigans that take place if a PTAB judge does not “play ball.” You can find that discussion around the 35:20-37:36 mark of the video.

I believe the article mentioned near the end of the video about patent examiner cohorts is available at this [Link].

As an aside, have you ever noticed that if you get three IP professors together for a round table discussion, it seems to be a race to see which one can use the phrase “ex ante” the first or the most. And usually the more “ex ante’s” there are, the more boring the discussion. Well, good news. No “ex ante’s” in this one, as far as I could tell.

by Bill Vobach

The quote for the day comes from the recent Moore/Lourie/Dyk opinion in Mentone Solutions LLC v. DIGI International, Inc. The panel reversed Judge Stark of the District of Delaware with respect to his ruling of patent ineligibility.

Judge Moore writing for the court noted:

The district court held that claim 5 was directed to the abstract idea of “receiving a USF and transmitting data during the appropriate timeslots.” J.A. 7 We do not agree. The district court’s formulation of the abstract idea appears to be a high-level description of how USFs operate in mobile stations using extended bandwidth allocation generally. See ‘413 patent at 1:67-2:8. However, the claimed invention departs from this conventional use through a shifted USF, which breaks the fixed relationship between USFs in a downlink slot and the availability for transmission in the corresponding uplink slot. The district court’s abstract idea fails to mention a shifted USF, nor does it capture the receipt of two PDCH assignments that permit monitoring and detecting the PDCHs for a shifted USF and transmission based thereon. Accordingly, it is untethered to the invention as claimed.

MENTONE SOLUTIONS LLC v. DIGI INTERNATIONAL INC., No. 2021-1202 (Fed. Cir. Nov. 15, 2021)(slip op. at 13)(emphasis added).

This analysis strikes me as an important reminder to be wary of overzealous generalizations of claim language as purportedly being abstract ideas. And, it reinforces the court’s analyses in Visual Memory LLC v. Nvidia Corp., 867 F.3d 1253 (Fed. Cir. 2017) and ENFISH, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016):

At the same time, we must not express the basic concept of the claim in a way that is “untethered from the language of the claims.” Enfish, 822 F.3d at 1337. When we assess what the claims are directed to, we must do so at the same level of generality or abstraction expressed in the claims themselves. Id.

Visual Memory LLC v. Nvidia Corp., 867 F.3d 1253, 1263 (Fed. Cir. 2017).

However, describing the claims at such a high level of abstraction and untethered from the language of the claims all but ensures that the exceptions to § 101 swallow the rule. See Alice, 134 S.Ct. at 2354 (noting that “we tread carefully in construing this exclusionary principle [of laws of nature, natural phenomena, and abstract ideas] lest it swallow all of patent law”);

ENFISH, LLC v. Microsoft Corp., 822 F.3d 1327, 1337 (Fed. Cir. 2016).

On a different point, the panel once again treated speed as an important factor in the §101 analysis. The court wrote:

Through this shifted USF, the invention purports to “reduce restrictions affecting extended dynamic allocation with minimal effect on the existing prescript.” Id. at 2:44-46. It allows the mobile station to “transmit up to its physical slot limit.” Id. at 5:17-18. The present invention increases the capacity of networks to communicate data by allowing the network to use timeslots for transmission which, according to the patent, were not available in the prior art. The result is a system capable of a higher rate of data transmission. 

MENTONE SOLUTIONS LLC v. DIGI INTERNATIONAL INC., No. 2021-1202 (Fed. Cir. Nov. 15, 2021)(slip op. at 5-6)(emphasis added).

Like the claim in Packet Intelligence, claim 5 purports to solve a challenge unique to computer networks, or, more specifically, certain mobile stations using extended bandwidth allocation in a network: reducing restrictions to enable additional multislot configurations. It increases the rate of data transmission by enabling the use of timeslots for transmission that were not previously available. 

MENTONE SOLUTIONS LLC v. DIGI INTERNATIONAL INC., No. 2021-1202 (Fed. Cir. Nov. 15, 2021)(slip op. at 12)(emphasis added).

I will add this case to my earlier post about the disparate treatment of speed for purposes of §103 and §101.

by Bill Vobach

I struggle to understand how the Federal Vacancies Reform Act (FVRA) can authorize a temporary head of the USPTO, who is acting without Senate confirmation, to oversee PTAB decisions. If decisions of the PTAB must be overseen by a principal officer in view of the Appointments Clause of the Constitution, it seems that an unconfirmed temporary head cannot satisfy that role, even on an interim basis. Stated differently, Congress does not have the authority to waive the Appointments Clause of the Constitution on an interim basis.

So, it was interesting to read Justice Thomas’s concurrence in NLRB v. SW General, Inc.:

That the Senate voluntarily relinquished its advice-and-consent power in the FVRA does not make this end-run around the Appointments Clause constitutional. The Clause, like all of the Constitution’s structural provisions, “is designed first and foremost not to look after the interests of the respective branches, but to protect individual liberty.” NLRB v. Noel Canning, 573 U. S. ___, ___ (2014) (Scalia, J., concurring in judgment) (slip op., at 3) (internal quotation marks and bracket omitted). It is therefore irrelevant that “the encroached-upon branch approves the encroachment.” Free Enterprise Fund, supra, at 497 (internal quotation marks omitted). “Neither Congress nor the Executive can agree to waive” the structural provisions of the Constitution any more than they could agree to disregard an enumerated right. Freytag v. Commissioner, 501 U. S. 868, 880 (1991). The Judicial Branch must be most vigilant in guarding the separation between the political powers precisely when those powers collude to avoid the structural constraints of our Constitution.

***

Courts inevitably will be called upon to determine whether the Constitution permits the appointment of principal officers pursuant to the FVRA without Senate confirmation.

NLRB v. SW General, Inc., 137 S. Ct. 929, 949 (2017).

It will be interesting to see if anybody challenges a post-Iancu/pre-Vidal decision by the PTAB as being unconstitutional for failing to be overseen by a principal officer whose appointment satisfied the Appointments Clause of the Constitution.

Have you noticed that in recent opinions the Federal Circuit seems to have adopted the “(cleaned up)” citation when citing “busy” sources. The “(cleaned up)” citation allows a writer to make an argument more forcefully by eliminating some of the distracting citation details that have traditionally been involved in legal writing. For more details, here are some articles discussing “(cleaned up)” [LINK] and [LINK].

Below are some of the recent cases where the Federal Circuit has used “(cleaned up)” in an opinion or order. It appears that Judge Prost and Judge Taranto are far and away the biggest users of “(cleaned up).” Judges Bryson, Chen, Stoll, Dyk, O’Malley, Moore, and Hughes have only used it once or twice. Not surprisingly, Judge Wallach does not appear to have used it yet. During oral argument he is a stickler for accurate quotation from references. It will be interesting to see if “(cleaned up)” is abused and becomes frowned upon.

Rodriguez v. Dept. of Veterans Affairs

8 F. 4th 1290 – Court of Appeals, Federal Circuit, 2021 – Google Scholar

7 days ago –  … Cir. 2020) (“To take adverse action against an employee, an agency must …
demonstrate that the penalty imposed was reasonable in light of the relevant factors set forth
in Douglas v. Veterans Administration.” (cleaned up)); Smith v. Gen. Servs … 

GLAXOSMITHKLINE LLC v. TEVA PHARMACEUTICALS USA

7 F. 4th 1320 – Court of Appeals, Federal Circuit, 2021 – Google Scholar

8 days ago –  … Ct. 1670; Takeda, 785 F.3d at 630 (“Congress intended that a single drug
could have more than one indication and yet that an ANDA applicant could seek approval
for less than all of those indications.” (cleaned up)). The result …