Archive for December, 2015

Oral Argument of the Month: Morsa v. FACEBOOK

Thursday, December 24th, 2015

If you’re a patent prosecutor trying to refresh your memory on how to do an Express Mail filing this day before Christmas, you might be looking for some background noise.  The Morsa v. FACEBOOK oral argument would be a great choice as it contains an interesting discussion of 101 issues.  I’ll post some more comments about the oral argument later; but, here is the link for today: [Link].  The outcome of the case was a Rule 36 Judgment.

Has the Federal Circuit Requested an Additional Judgeship?

Monday, December 14th, 2015

Given the perceived increase in Rule 36 judgments issued by the Federal Circuit, the large number of pending appeals at the PTAB, and the increasing importance of intellectual property to the US economy, I wonder if the Federal Circuit has taken any steps to request an additional judgeship?

January 7, 2016 Update:

The following list from the site shows how the various circuits have expanded over the years:

District of Columbia

  • 1893 : Three judgeships created. – 52 Cong. Ch. 74, February 9, 1893.
  • 1930 : Two additional judgeships created. – 71 Cong. Ch. 538, June 19, 1930.
  • 1938 : One additional judgeship created. – 75 Cong. Ch. 290, May 31, 1938.
  • 1949 : Three additional judgeships created. – 81 Cong. Ch. 387, August 3, 1949.
  • 1978 : Two additional judgeships created. – Pub. L. No. 95-486, October 20, 1978.
  • 1984 : One additional judgeship created. – Pub. L. No. 98-353, July 10, 1984.
  • 2008 : One judgeship was transferred to the Ninth Circuit – Pub. L. No. 110-177, January 7, 2008.

Total Judgeships – 11

First Circuit

  • 1801 : Three circuit judgeships created. – 6 Cong. Ch. 4, February 13, 1801.
  • 1802 : Act of February 13, 1801 repealed. Circuit judgeships abolished. – 7 Cong. Ch. 31, April 29, 1802.
  • 1869 : One circuit judgeship created. – 41 Cong. Ch. 22, April 10, 1869.
  • 1891 : Circuit Court of Appeals established. One additional judgeship created. – 51 Cong. Ch. 517, March 3, 1891.
  • 1905 : One additional judgeship created. – 58 Cong. Ch. 51, January 21, 1905.
  • 1978 : One additional judgeship created. – Pub. L. No. 95-486, October 20, 1978.
  • 1984 : Two additional judgeships created. – Pub. L. No. 98-353, July 10, 1984.

Total Judgeships – 6


Oral argument in Yissum v. Sony — IPR Joinder

Monday, December 7th, 2015

I know there is a lot of interest among the patent bar with respect to the  joinder issue in IPR’s.

The Federal Circuit heard oral argument today in Yissum Research Development Co. v. Sony Corporation.  You can listen to the oral argument: [here].

During the oral argument, Judge Taranto asked about what he labeled as “panel stacking.” [Listen]  I assume he is referring to matters such as Target Corp. v. Destination Maternity Corp. [Read] and Zhongshan et al. v. Nidec [Read], where the PTAB reheard and reversed three judge panels with an expanded seven judge panel and a five judge panel, respectively, despite vigorous dissents.

“You’re better than that”

Wednesday, December 2nd, 2015

Judge Moore had harsh words for an advocate recently during an oral argument.  It probably serves as a lesson to all advocates, even Supreme Court advocates, not to adopt too dismissive of a tone with respect to an opposing side’s position during oral argument.

The exchange between Judge Moore and the advocate went as follows:

Judge Moore:  I don’t understand your point.  You’re going too fast and you need to . . .

Advocate:  I . . . I apologize your Honor.

Judge Moore:  Stop.  Don’t interrupt me.  You’re going too fast and you need to divorce from this argument any more characterizations which are not welcome about like his new favorite figure, his new this.  Don’t do that, Mr. **********.  You’re better than that.  Don’t do it.  Go ahead, keep going.

If I were to rank the top three judges of the Federal Circuit least likely to endure arguments that they perceive to be rude, it would be:
1)  Judge Plager

2)  Judge Wallach

3)  Judge Moore.