717 Madison Place

by Bill Vobach

The US Solicitor General’s office has filed its brief in American Axle v. Neapco. The SG recommends that the Supreme Court grant certiorari in the case and asserts that the Federal Circuit was wrong in this decision.

You can listen to the oral argument at the Federal Circuit here:

You can review the Federal Circuit’s original opinion here: [Link].

You can review the Federal Circuit’s modified opinion here: [Link].

You can review then-district-court-judge Stark’s opinion here: [Link].

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Update 5/30/22:

Some interesting quotes from Judge Moore’s dissents in the original opinion and the updated opinion:

The majority’s validity goulash is troubling and inconsistent with the patent statute and precedent. The majority worries about result-oriented claiming; I am worried about result-oriented judicial action. I dissent.

AMERICAN AXLE & MANUFACTURING v. NeapCo Holdings, 939 F.3d 1355 (Fed. Cir. 2019)(Judge Moore in dissent at 1375).

The majority concludes, though no party argued it at any point in this litigation or appeal, that the claim terms “positioning” and “inserting” have different meanings. And only because of its newly proffered, completely sua sponte construction, claim 22 is deemed ineligible. There is simply no justification for the majority’s application of its new Nothing More test other than result-oriented judicial activism. This is fundamentally unfair. I dissent from this unprecedented expansion of § 101.

AMERICAN AXLE & MANUFACTURING v. Neapco Holdings, 967 F.3d 1285 (Fed. Cir. 2020)(Judge Moore in dissent at 1305).

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Update 5/31/22:

Having recently attended a CLE about Alice and Electric Power Group, these bears try to scratch off the accompanying funk:

The oral argument of the day is an old one from the Ninth Circuit, Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004). The case concerns whether Congress has the authority to grant animals standing to sue.

You can listen to the oral argument here:

One of the questions asked was how do animals give their consent for attorneys to represent them in court?

The Federal Circuit defers to the law of the regional circuits on matters of procedural law that do not implicate issues of patent law. Midwest Indus., Inc. v. Karavan Trailers, Inc., 175 F.3d 1356, 1359, 50 USPQ2d 1672, 1675 (Fed.Cir. 1999) (en banc in relevant part).

The quote for the day comes from Judge Newman’s dissent in In re Schreiber:

 I feel for those who tread the arcane path of patent soliciting, for this court’s insistence on the importance of the limitations in the claims seems to have lost its way.

In re Schreiber, 128 F.3d 1473, 1480 (Fed. Cir. 1997).