Archive for December, 2012

Judge Bryson’s Confirmation Hearing

Sunday, December 30th, 2012

With Judge Bryson apparently taking senior status next week, I thought it might be of interest to take a look back at his confirmation hearing before the Senate Judiciary Committee in 1994:

We will now turn to the introduction of William C. Bryson, of Be-

thesda, MD.

Senator Sarbanes, if you would come forward.



Senator Sarbanes. Senator DeConcini and Senator Simon, I am

very pleased to be here this afternoon to introduce William C.

Bryson, a distinguished resident of Maryland who has been nomi-

nated by the President to serve as a U.S. circuit judge for the Fed-

eral Circuit. Bill is sitting right here behind me.

I must say he brings an extraordinary record before this commit-

tee, a graduate of Harvard College, magna cum laude, in 1969, and

from the University of Texas Law School in 1973, where he was

editor-in-chief of the Texas Law Review.

After he graduated from the University of Texas Law School, he

clerked first for Judge Henry Friendly, one of our Nation’s most

distinguished jurists, in the second circuit, and then was law clerk

for Justice Thurgood Marshall on the Supreme Court.

Bill Bryson then went into practice here in Washington for 3

years where he did civil and criminal litigation, mainly Federal, at

the trial and appellate levels. Since 1978 — in other words, for the

last 15, 16 years — he has been in the Department of Justice in in-

creasingly more senior and responsible positions.

He started as assistant to the Solicitor General. He then became

chief of the Appellate Section in the Criminal Division. He then

was Special Counsel to the Organized Crime and Racketeering Sec-

tion of the Criminal Division; that was from 1982 to 1986.

From 1986 to the present, he has been in the Solicitor General’s

office. He was a Deputy Solicitor General, one of four deputies to

the Solicitor General responsible for supervising and briefing and

the argument of cases before the Supreme Court. He twice has

been the Acting Solicitor General. In between the resignation of

one Solicitor General and the appointment of another, he served as

the Acting Solicitor General. Until just a few weeks ago, he was

Acting Associate Attorney General following the resignation of

Webster Hubbell.

So he has, in effect, given a career of dedicated public service in

the Justice Department, and he has been recognized at every step

along the way and I just want to mention two or three of these rec-


In 1984, the Federal Bar Association gave him the Tom C. Clark

Award. It is awarded annually to a Federal agency lawyer for out-

standing service as a government lawyer. In 1985, he received the

Department of Justice Exceptional Service Award, the highest

award in the Department of Justice. It is given annually to the

Justice Department attorney who has rendered the most excep-

tional service. In 1990, he was the first recipient of the Beatrice

Rosenberg Award, which is awarded annually by the District of Co-

lumbia bar for outstanding service as a government attorney.

He has had an extraordinary record. It is one of very distin-

guished public service. I think this appointment is very well mer-

ited. He will be an outstanding member of the Federal circuit, and

I commend him to the committee most strongly and urge your fa-

vorable recommendation. I look forward to his early confirmation

by the Senate.

Senator DeConcini. Thank you, Senator Sarbanes. We appre-

ciate your taking the time to introduce Mr. Bryson and your strong,

strong recommendation.


Temporary Denver Patent Office to Open January 2nd

Tuesday, December 25th, 2012

The Denver Business Journal is reporting that the USPTO will open a temporary satellite office at the Federal Center in Lakewood, CO (a western suburb of Denver) on January 2, 2013.  This will allow the Denver Patent Office to get up and running with its hiring efforts while the renovation of the permanent office space in downtown Denver is completed.  The link to the article is available here:  [Link].

The Collegial Circuit Court

Sunday, December 23rd, 2012

When the Federal Circuit visited Denver this past October, I attended one of the seminars where Judges Rader, Linn, and Wallach spoke.  They noted that the Federal Circuit, relative to some other circuit courts, is considered to be a very collegial court.

The proceedings prior to some relatively recent oral arguments highlighted this point:

Swearing-in ceremony for Judge Prost’s clerks and remarks by Judge Moore: [Listen];

Judge O’Malley’s first panel as presiding member and remarks by Judge Plager: [Listen]; and

Swearing-in ceremony for Judge Plager’s clerk: [Listen].

Lollipops Need Not Apply

Wednesday, December 19th, 2012

I’m beginning to think that the Federal Circuit really likes lollipops.  Today in In re Fox, the court denied trademark protection for lollipops in the shape of a rooster, under the scandalous matter doctrine.  Less titillating but more infamous is the court’s decision in In re Gorman, where the court in an opinion authored by Judge Newman (!) affirmed a Board decision that relied on a combination of thirteen (13) references to deny patent protection for a lollipop shaped like a thumb.  The Gorman claim read as follows:

16. A composite food product, comprising:

a candy core, said candy core being in a generally liquified form when formulated, heated, blended and poured into a mold and in a substantially thumb-shaped hardened form when cooled and removed from said mold;

said thumb-shaped hardened form comprising said candy core positioned along a vertical axis and comprising a rigid joint-shaped portion, a rigid upper portion extending upwardly from said rigid joint-shaped portion along said vertical axis, and a rigid lower portion extending downwardly from said rigid joint-shaped portion along said vertical axis, said upper portion having a rigid finger nail-shaped portion with an upper rigid tip providing a rigid top end of said thumb-shaped hardened form and a rigid convex back extending rearwardly and downwardly from said rigid tip, and said rigid lower portion having a rigid bottom end and defining a recessed opening comprising a handle-receiving socket about said vertical axis;

a removable resilient shell comprising a substantially thumb-shaped, elastomeric material selected from the group consisting of rubber and flexible plastic, said shell providing

a mold for receiving and molding said liquified candy form,a removable outer protective cover positioned about and covering said hardened form comprising said candy core, and

a toy and novelty item for placement upon the thumb of the user when removed from said hardened form comprising said candy core;

said thumb-shaped elastomeric material comprising said removable resilient shell comprising a flexible joint-shaped portion, a flexible upper portion extending upwardly from said flexible joint-shaped portion along said vertical axis, and a flexible lower portion extending downwardly from said flexible joint-shaped portion along said vertical axis, said upper portion having a flexible finger nail-shaped portion with an upper flexible tip providing a flexible top end of said shell and a flexible convex back extending rearwardly and downwardly from said flexible tip, and said flexible lower portion having an enlarged open ended diverging base, said base having a larger circumference and transverse cross-sectional area than other portions of said shell and providing the bottom of said shell, said open ended based defining a plug-receiving chamber and an access opening for entrance of said liquified form and discharge of said hardened candy form, and a set of substantially symmetrical arcuate lobes extending radially outwardly from said base, said lobes being circumferentially spaced from each other and providing manually grippable flange portions to facilitate manual removal of said shell from said core;

a plug positioned in said plug-receiving chamber adjacent said bottom of said shell, said plug abutting against the bottom of said core and providing a cap for substantially plugging and sealing the open end of said mold and cover to help enclose said candy core, and said plug comprising a food grade material selected from the group consisting of bubble gum, chewing gum, chocolate, and food grade wax;

a handle having a connecting portion connected to said plug and said candy core and positioned in said plug-receiving opening and having a manually grippable handle portion extending downward from said connecting portion along said vertical axis; and

a substantially planar annular disk for abuttingly engaging and removably seating against said base and said lobes adjacent said plug, said disk defining a central axial hole for slidable receiving said handle portion and having an outer edge with a maximum span larger than said access opening but less than the maximum diameter of said symmetrical set of lobes to substantially minimize the interference with manually gripping of said manual grippable flange portions of said lobes, said disk being of a material selected from the group consisting of paper, paperboard, and plastic, and providing a removable closure member and seal for substantially closing said access opening and sealing said plug and said candy core within said shell.

You can read the In re Gorman opinion here: [Link].

Clerk Swearing-In Ceremony

Saturday, December 15th, 2012

At the end of their term serving as clerks at the Federal Circuit, clerks for Federal Circuit judges are typically sworn-in to the Federal Circuit bar by their judge.  Judge Dyk recently swore-in his clerks.  [Listen].

I recognized the name of one of Judge Dyk’s clerks.  Lisa L. Ouellette is the author of the Written Description blog.

35 U.S.C. § Charlie Foxtrot

Sunday, December 9th, 2012

I often find myself telling clients that the law surrounding 35 U.S.C. §101 is in a state of flux.  Others might argue that clusterflux would be a more apt description.

Judge Bryson made a fitting observation about 35 U.S.C. §101 during the oral argument of PerkinElmer, Inc. et al. v. Intema Ltd., 2011-1577 (Fed. Cir. Nov. 20, 2012).  He noted that when it comes to questions, §101 is a gift that never stops giving.  [Listen].

Audio and Video of Oral Arguments from State Courts

Sunday, December 9th, 2012

Looking for oral arguments from state courts? Audio and video of oral arguments from selected state courts may be accessed here: Link. (Scroll down)

Judge O’Malley at Patent Institutions Summit

Monday, December 3rd, 2012

Judge O’Malley spoke at the Stanford patent law program in May, which is available on You Tube.  You can view her comments here: