717 Madison Place

by Bill Vobach

The Federal Circuit recently took a case en banc in Taylor v. McDonough, which was argued earlier this month. The court’s sua sponte order of en banc review asked the parties to discuss a decades-old Supreme Court opinion that has never been cited by the Federal Circuit (as far as I can tell) — namely Christopher v. Harbury. The Christopher v. Harbury case concerns a cause of action termed “denial of access to the courts.” The Supreme Court characterized “denial of access to the courts” claims as follows:

This Court’s prior cases on denial of access to courts have not extended over the entire range of claims that have been brought under that general rubric elsewhere, but if we consider 413*413 examples in the Courts of Appeals^[7] as well as our own, two categories emerge. In the first are claims that systemic official action frustrates a plaintiff or plaintiff class in preparing and filing suits at the present time. Thus, in the prisonlitigation cases, the relief sought may be a law library for a prisoner’s use in preparing a case, Bounds v. Smith, 430 U. S. 817, 828 (1977); Lewis v. Casey,518 U. S. 343, 346-348 (1996), or a reader for an illiterate prisoner, id., at 347-348, or simply a lawyer, ibid. In denial-of-access cases challenging filing fees that poor plaintiffs cannot afford to pay, the object is an order requiring waiver of a fee to open the courthouse door for desired litigation, such as direct appeals or federal habeas petitions in criminal cases,^[8] or civil suits asserting family-law rights, e. g., Boddie v. Connecticut, 401 U. S. 371, 372 (1971) (divorce filing fee); M. L. B. v. S. L. J., 519 U. S. 102, 106-107 (1996) (record fee in parental-rights termination action). In cases of this sort, the essence of the access claim is that official action is presently denying an opportunity to litigate for a class of potential plaintiffs. The opportunity has not been lost for all time, however, but only in the short term; the object of the denial-of-access suit, and the justification for recognizing that claim, is to place the plaintiff in a position to pursue a separate claim for relief once the frustrating condition has been removed.

The second category covers claims not in aid of a class of suits yet to be litigated, but of specific cases that cannot now 414*414 be tried (or tried with all material evidence), no matter what official action may be in the future.^[9] The official acts claimed to have denied access may allegedly have caused the loss or inadequate settlement of a meritorious case, e. g., Foster v. Lake Jackson, 28 F. 3d 425, 429 (CA5 1994); Bell v. Milwaukee, 746 F. 2d 1205, 1261 (CA7 1984) (“[T]he cover-up and resistance of the investigating police officers rendered hollow [the plaintiff’s] right to seek redress”), the loss of an opportunity to sue, e. g., Swekel v. River Rouge, 119 F. 3d 1259, 1261 (CA6 1997) (police coverup extended throughout “time to file suit . . . under . . . statute of limitations”), or the loss of an opportunity to seek some particular order of relief, as Harbury alleges here. These cases do not look forward to a class of future litigation, but backward to a time when specific litigation ended poorly,^[10] or could not have commenced, or could have produced a remedy subsequently unobtainable.^[11] The ultimate object of these sorts of access claims, then, is not the judgment in a further lawsuit, but simply the judgment in the access claim itself, in providing relief obtainable in no other suit in the future.

Christopher v. Harbury, 536 U.S. 403, 412 (2002).

So, a potentially interesting article might address any PTO policies that cause sufficient delay to prevent a patentee from seeking redress for infringement in a timely manner, i.e., loss of opportunity to sue. The SAWS program is something that comes to mind. Perhaps there are other programs or practices, as well. How this cause of action interplays with an administrative takings claim might also be of interest. Would a takings claim provide the same, better, or worse remedy?

You can listen to the Supreme Court oral argument of Christopher v. Harbury [here].

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).