Archive for March, 2022


Monday, March 28th, 2022

I thought it was interesting that the Supreme Court is entertaining a statutory construction case for a statute that centers around the construction of “use.” The case is LeDure v. Union Pacific Railroad Company. The Court heard oral argument this morning and the audio recording is available here:

As you may recall, 35 U.S.C. §271(a) has a “use” provision:

(a)Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.

35 U.S.C. §271(a)

Some of the Federal Circuit’s recent “use” cases are:

Georgetown Rail Equipment Co. v. HOLLAND LP, 867 F.3d 1229 (Fed. Cir. 2017).

Intellectual Ventures I v. Motorola Mobility, 870 F.3d 1320 (Fed. Cir. 2017).

Centillion Data Systems, LLC v. Qwest Communications Int’l, Inc., 631 F.3d 1279 (Fed. Cir. 2011).

GRECIA v. McDONALD’S CORPORATION, No. 2017-1672 (Fed. Cir. Mar. 6, 2018).

SYNCHRONOSS TECHNOLOGIES, INC v. DROPBOX, INC., No. 2019-2196 (Fed. Cir. Feb. 12, 2021).

From a cursory review of the briefs in LeDure, however, it does not appear that any citations/references were made to patent law.

Judge O’Malley’s Last Week

Sunday, March 6th, 2022

I believe this is Judge O’Malley’s last week on the Federal Circuit. It is truly sad to see her retire. I hope some of the bigger blogs will reflect on her service on the court. Some comments from her former clerks would be particularly interesting to read. I’m sure they could salute her service better than most. At her Senate confirmation hearing, you might recall that her former district court clerks showed up in droves to support her Federal Circuit nomination.

Here’s one sound bite that I have always liked from Judge O’Malley (“BRI still has an ‘R’ in it”):