Chief Judge Rader was questioning appellant’s counsel about the issue of deceptive intent to deceive the public during the oral argument of Pequignot v. Solo Cup Co., 2009-1547 (Fed. Cir. June 10, 2010) when he tried to use a baseball analogy to make his point: [Listen].
He later followed up with appellee’s counsel: [Listen].
If you are flying in to Denver for the AIPLA roadshow on the 24th of June (Judge Linn will be speaking at the event), you’ll be interested to know that a statue of Anubis — Egyptian god of the dead — will be at the airport to welcome you. The statue is at the airport temporarily to promote the opening of the King Tut exhibit in Denver on July 1st. Anubis can be found outside the south end of the main “terminal” building.
There is no truth to the rumor that the jackal headed Anubis will be appearing at the roadshow to discuss developments in the claiming of transgenic animals.
The judges of the Federal Circuit from time to time will swear-in to the Federal Circuit bar their judicial law clerks. One of the nice aspects of this is that you can tell the genuine appreciation that the judges have for the work by their law clerks. It just so happened that one such swearing-in ceremony was one of Chief Judge Rader’s official acts as the new Chief Judge. [Listen].
Judge Lourie almost always adds some comic relief to the oral arguments at the Federal Circuit. He certainly didn’t miss this opportunity: [Listen].
I thought this was a humorous comment by Judge Plager during the oral argument of Orion IP, LLC v. Hyundai Motor America, 2009-1130 (Fed. Cir. May 17, 2010), : “We’re a court of errors. We don’t make ’em –we correct ’em.” [Listen].
In the oral argument in WNS Holdings, LLC, v. United Parcel Service, Inc., 2009-1498 (Fed. Cir. March 8, 2010), the attorney for UPS used an analogy to Shakespeare’s “The Tragedy of Macbeth” for purposes of arguing his claim construction case: [Listen].
Perhaps Shakespearean analogies are the key to winning at the Federal Circuit. UPS prevailed on the appeal.
Judge Prost made an amusing fashion observation during the oral argument of the Crocs v. International Trade Commission appeal: [Listen].
Interestingly, Crocs’ experts must be Tolkien fans. They apparently argued that the Crocs design includes prominent design features that they describe as the “Ring of Fire” and the “Eye of Sauron” a la The Lord of the Rings: [Listen].
You can read the court’s opinion here:[Read].
You can listen to the entire oral argument here: [Listen].
When filing a brief with the Federal Circuit the parties are allowed to denote material appearing in their briefs as confidential. Similarly, material presented in the Joint Appendix can be marked confidential. At oral argument, the judges of the Federal Circuit will often ask the parties if these confidential markings are still applicable for two reasons: (1) so that the judges are free to ask questions about the material in open court and have it recorded; and (2) so that the judges know what can be published in any written opinion.
In one case from several years ago, counsel for an intervenor in the case was present at oral argument but was not taking part in the oral argument itself. He was called up to address the confidentiality issue and Judge Bryson remarked that this was like the attorney nightmare where one is called out of the audience to argue a case: [Listen].
One of the nice personality traits of the judges of the Federal Circuit is that they have healthy senses of humor. Judge Plager’s rather wry sense of humor demonstrated itself in two recent oral arguments.
In the oral argument for IN RE ELECTRO-MECHANICAL INDUSTRIES, 2008-1530, (Fed. Cir. Dec. 22, 2009), the court was trying to determine why the district court judge had increased the award of attorneys’ fees in a bankruptcy estimation proceeding. Judges Moore and Plager were intently discussing with plaintiff’s counsel the Lodestar analysis for contingency cases and inquiring about his reaction at the time that the district court judge significantly enhanced the attorneys’ fee award. As you’ll hear, Judge Plager then asked “I bet you had a party, didn’t you?” [Listen]. For the record, I’m pretty sure that whether one had a party is not the current standard of review of a Lodestar analysis.
In the oral argument of another recent case, In re Medicis Pharmaceutical Corporation, 2009-1291, (Fed. Cir. Dec. 14, 2009), the Associate Solictor for the PTO made a conscientious effort during oral argument to correct a statement that was in his brief. Judge Plager’s tongue-in-cheek remark was “Which raises the question ‘Were you lying then, or are you lying now?’ ” [Listen].
It has been more than a quarter of a century since the Supreme Court issued a substantive opinion concerning 35 USC section 101 — Diamond v. Diehr. On the same day that the Court heard the oral argument in Diamond v. Diehr, it also heard a companion case in Diamond v. Bradley. Diamond v. Bradley concerned 35 USC section 101 in the context of an apparatus claim for a computer. Chief Justice Burger took no part in the decision which resulted in a 4-4 split decision by the remaining eight justices. As a result, the CCPA’s judgment was affirmed.
Obviously, computing has advanced significantly in the last quarter of a century. However, the following sound bite truly puts that advancement in perspective. [Listen] (“[W]ord processors — you know, those machines that are replacing typewriters in offices.”)
In the recent case of Martek Biosciences v. Nutrinova an expanded panel of five judges heard the appeal. The audience at oral argument that day included visiting dignitaries from other countries and is the likely reason that an expanded panel was used.
An important issue in this case was whether the claim term “animal” included humans. The expanded panel produced a more “animated” oral argument than usual. At one point Judge Rader remarked that his tennis playing would clearly categorize him as an animal while at another point Judge Gajarsa surmised that Judge Rader’s tennis playing was encompassed under the explicitly recited category of “swine.” And, Judge Moore offered that Judge Rader was not a mammal because he lacked the ability to produce milk. [Listen]
Judges Lourie and Rader dissented from the majority opinion and asserted that the claim term “animal” did not include humans for the patent at issue.
You can listen to the entire oral argument [Here].
You can read the court’s opinion [Here].
It’s well known that when a judge asks a question at oral argument that counsel should give a direct answer. I think it is probably apropos to just chuckle and move on with the argument, as counsel did here, when the judge is “just tweaking you a little bit.” [Listen]
There was a light-hearted moment at the oral argument of Abbott Labs v. Sandoz when counsel for Sandoz thanked the court with a slight mis-step causing Judge Rader to conclude he had just been given a pay raise: [Listen]
This case was unusual in that after this oral argument the CAFC sua sponte undertook en banc review of product by process claims. Yet, the CAFC did not conduct an en banc oral argument. One would think that an issue important enough to cause the CAFC to undertake en banc review would similarly be important enough for en banc oral argument and an opportunity for amicus briefs.
The en banc opinion can be found here: [Read]
Judges on the Court of Appeals for the Federal Circuit are obviously a talented group of individuals. Recently, Judge Randall Rader had an opportunity to show off some of his linguistic skills in a trademark appeal concerning Russian-made Vodka. Apparently, Judge Rader is not only fluent in Russian but also Finnish. Judge Rader noted that he spoke Russian early in the proceedings [Listen] and later closed the oral argument with these remarks in Russian[Listen].
Oral arguments at the Court of Appeals for the Federal Circuit not only may provide some insight into the viewpoints of the various judges; but, these arguments sometimes provide opportunities for humor, as this recent exchange in Crater Corp. v. Lucent Technologies demonstrated: [Listen]