Oral Argument of the day: Windy City v. Facebook

If you have sixty-seven minutes to spare, you might want to check out yesterday’s oral argument in Facebook v. Windy City Innovations (CJ Prost, O’Malley, Plager). It is an interesting and well-argued one. The case concerned statutory interpretation of the AIA’s joinder statute.

A few of the issues that cropped up in the oral argument were:

  1. Why didn’t the PTO intervene in the case to address whether its precedential opinion should be given Chevron deference?
  2. Should the PTO’s precedential opinion panel (POP) decisions be given Chevron deference?
  3. Did Congress error by referring to infringement of a patent vs. infringement of a patent claim(s) in the AIA?
  4. Is the statute ambiguous?
  5. Is there a clerical error in the statute?
  6. Should the court ask the PTO for its thoughts — even though the PTO chose not to weigh-in in the first instance?

Judge Plager expressed the view that the USPTO’s precedential opinion panel decisions were not entitled to Chevron deference:

During the oral argument, the panel was receptive of counsel’s individual experiences during patent infringement litigation (or maybe now we need to say patent claim infringement litigation) and IPR proceedings. Interesting. Some might think that that type of information is not of-record and mere unchallenged attorney testimony.

Judge Prost used an expression that I had not heard before. The way it rolled off her lips, perhaps it is a mantra used in appellate judge chambers around the country: “Too bad, so sad. Go to Congress and get them to make an amendment.

This oral argument is a good example of how seriously the judges of the Federal Circuit view their role in trying to make the system work for all of those impacted by a statute — including those not represented in the proceeding. The extensive questioning makes this abundantly clear.

You can listen to the entire oral argument here:

The briefing in an earlier iteration of this case is available at this prior post: [ https://www.717madisonplace.com/?p=9474 ].

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