It is always interesting to listen to the judges at the Federal Circuit express some reticence to taking judicial notice of something at the appellate level. In the oral argument of PEERLESS INDUSTRIES, INC. v. CRIMSON AV, LLC, No. 2018-2021 (Fed. Cir. June 2, 2020), Judge Moore was making a point to the parties about the court’s inability to entertain certain arguments when the topic of judicial notice with respect to Amazon.com being one of the largest retailers in the country came up:
In an oral argument from a few years ago in HIMPP v. HEAR-WEAR TECHNOLOGIES, LLC, No. 2013-1549 (Fed. Cir. May 27, 2014), Judge Lourie commented about judicial notice, as well:
Compare those comments to the court’s practice in performing a de novo review, under Alice Step 1, of whether a claim recites an abstract idea. You can decide for yourself whether you think the court is performing that pivotal Alice Step 1 analysis with the same safeguards it applies to taking judicial notice.