The Supreme Court has released the audio recording of the oral argument in Iancu v. Brunetti — the case that addresses whether the USPTO must register scandalous marks.
The recording of the oral argument is available here:
The transcript of the oral argument is available here: [Transcript].
Kingston filed its brief this week in the Polaris v. Kingston case pending at the Federal Circuit. The brief had some sort of informality and has not been accepted yet by the court; but, I thought it was worth posting anyway. You can review the brief here:
As I mentioned before, it will be interesting to follow this case. Kingston’s brief not surprisingly agrees with the DOJ’s brief that PTAB judges are inferior officers under the control of the Director. Therefore, the argument goes that they do not need to be appointed by the President and confirmed by the Senate, in contrast to Polaris’ position.
I thought it was interesting that the brief mentions that the Director currently sits on some IPR panels:
Indeed, the Director currently sits on a number of active IPR panels. See, e.g., Valve Corp. v. Elec. Scripting Prods., Inc., IPR2019-00062, -00063, -00064, -00065, -00074, -00084; HTC Corp. et al v. Elec. Scripting Prods., Inc., IPR2018-01031; -01032; Lite-On Tech. Corp. v. Darfon Elecs. Corp., IPR2018-01062.
There is an interesting case wending its way through the briefing process at the Federal Circuit, Polaris v. Kingston. In its opening brief Polaris asserts that APJ’s cannot extinguish patent rights via an IPR because they have not been appointed by the President and confirmed by the Senate.
The USPTO has intervened in the case. In its brief filed last week, the USPTO asserts that APJ’s are “Inferior Officers whose appointment Congress permissibly vested in the Secretary of Commerce.”
It sounds as if this will be an interesting case to follow.
The oral argument of the day comes from BLACKBIRD TECH LLC v. LULULEMON ATHLETICA, INC., No. 2017-2350 (Fed. Cir. Sept. 6, 2018). One of the issues on appeal was how the following statement in the specification should be interpreted:
“Typically the sports bra will be constructed of two or more plies of material sewn or otherwise laminated together to provide sufficient tensile strength”
Should it be interpreted as the patent drafter being a lexicographer and redefining “laminated” to include “sewn”? The oral argument suggests that Judges Dyk, Wallach, and Hughes did not agree that such a statement was enough to make “sewn” a species of the genus “laminated.” However, the Rule 36 Judgment is rather brief on that topic.
There is an interesting similarity in the Blackbird language to the language that was in dispute in the Helsinn v. Teva case:
“invention [that] was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention”
and whether the use of “otherwise” put a gloss on the “on sale” language.
If you enjoy listening to the point-counterpoint exchange during oral arguments, you might also enjoy watching the debates that take place on the floor of Britain’s Parliament each week. Each Wednesday, the Prime Minister fields questions from Parliament. The sessions tend to be rather raucous. Here’s the most recent one: