717 Madison Place

I noticed that the BNA published a copy of the May 23rd speech where Chief Judge Rader announced that he was stepping down as Chief Judge.  You can read his speech [here].

The Prost era at the Federal Circuit began today with Judge Dyk congratulating the new Chief Judge on behalf of the other members of the Federal Circuit: [Listen].

From the Federal Circuit Announcements page:

CIRCUIT JUDGE SHARON PROST ASSUMED THE POSITION OF CHIEF JUDGE OF THE FEDERAL CIRCUIT ON MAY 31, 2014

On Saturday, May 31, 2014, Circuit Judge Sharon Prost succeeded Chief Judge Randall R. Rader as the seventh Chief Judge of the Federal Circuit Court of Appeals. Chief Judge Prost was appointed to the Federal Circuit in 2001 by President George W. Bush.
Chief Judge Prost has 40 years of government service working in all three branches of the federal government. In the Executive Branch, she served as an attorney at the Federal Labor Relations Authority and the Internal Revenue Service, and as both Associate Solicitor and Acting Solicitor at the National Labor Relations Board.
In the Legislative Branch, Judge Prost was Chief Labor Counsel for the Minority of the Senate Committee on Labor and Human Relations, and Minority Chief Counsel, Deputy Chief Counsel and Chief Counsel of the Senate Judiciary Committee. Judge Prost received a B.S. from Cornell University in 1973, an M.B.A. from The George Washington University in 1975, a J.D. from the Washington College of Law, American University in 1979, and an LL.M. from The George Washington University School of Law in 1984.

With Chief Judge Rader stepping down as Chief Judge later this month, it would appear that the line of succession for Chief Judge will be 1) Judge Prost; 2) Judge Moore; and 3) Judge Chen.  This assumes that Judge Prost serves until her 70th birthday and that Judge Moore serves as Chief Judge for a full seven year term.  Incidentally, it appears from Judge Prost’s Wikipedia entry that she had a birthday this past Saturday.  So, she will turn 70 a week shy of a full seven year term.  Chief Judges may serve a seven year term or until they reach the age of 70.

The IPBiz.blogspot.com site noted that David Kappos has an article in today’s Detroit Free Press.  I thought Mr. Kappos’ article might interest readers; so, here is the link: [Link].

President Barack Obama points out several patent models while meeting with the 2013 American Nobel Laureates and their spouses in the Oval Office, Nov. 19, 2013.

Hard to believe that the Whitehouse.gov site celebrated this photo as the “Photo of the Day” back on November 19, 2013. That date was roughly a year after David Kappos announced he would be stepping down from being the Director of the USPTO and no nominee to replace him had been tendered by the Obama administration. Fast forward to today and still no nominee. Perhaps the USPTO should request that the Whitehouse return those patent models.

Over the past few years, I have been writing the intellectual property chapter for the Colorado Bar Association’s book Annual Survey of Colorado Law.  While the book focuses on Colorado law, the intellectual property chapter tends to be dominated by federal developments.  This year’s publication is now available for download (for a nominal fee) in its entirety or by individual chapter from the CBA-CLE website: [Link].

For extra credit, how many birds can you find in the picture?

Limelight has filed its Reply Brief in the Supreme Court case of Limelight v. Akamai.  This case deals with the issue of divided infringement.  The oral argument is slated for next Wednesday.

You can read Limelight’s Reply Brief [here].

The US Patent and Trademark Office released the ninth edition of the MPEP in March.  A summary by the PTO of the changes is available here: [Summary].  The searchable version of the MPEP is available here: [Searchable MPEP].

I was on vacation last week doing some scuba diving in the Caribbean.  But, I took some time off to try and better understand the phenomenon of “submarine patents.”  This little mini-submersible takes people down to a depth of 1,000 feet.

The Supreme Court heard oral argument in the case of Alice v. CLS Bank on March 31st.

You can download/listen to the entire oral argument here: [Listen].

The transcript of the oral argument is available here:  [Transcript].

The briefs are available here: [Briefs].

You can listen to the various portions of the oral argument here:

• ORAL ARGUMENT OF CARTER G. PHILLIPS, ESQ. on behalf of the Petitioners:  [Listen]
• ORAL ARGUMENT OF MARK A. PERRY, ESQ. on behalf of the    Respondents:  [Listen]
• ORAL ARGUMENT OF DONALD B. VERRILLI, JR., ESQ. on behalf of the United States, as amicus curiae, supporting Respondents:  [Listen]
• REBUTTAL ARGUMENT OF CARTER G. PHILLIPS, ESQ. on behalf of the Petitioners:  [Listen].

For reference, one of the claims at issue is claim 26 from US Patent 7,725,375:

26. A data processing system to enable the exchange of an obligation between parties, the system comprising:

a communications controller,

a first party device, coupled to said communications controller,

a data storage unit having stored therein

(a) information about a first account for a first party, independent from a second account maintained by a first exchange institution, and

(b) information about a third account for a second party, independent from a fourth account maintained by a second exchange institution; and

a computer, coupled to said data storage unit and said communications controller, that is configured to

(a) receive a transaction from said first party device via said communications controller;

(b) electronically adjust said first account and said third account in order to effect an exchange obligation arising from said transaction between said first party and said second party after ensuring that said first party and/or said second party have adequate value in said first account and/or said third account, respectively; and

(c) generate an instruction to said first exchange institution and/or said second exchange institution to adjust said second account and/or said fourth account in accordance with the adjustment of said first account and/or said third account, wherein said instruction being an irrevocable, time invariant obligation placed on said first exchange institution and/or said second exchange institution.

The briefing continues in the Supreme Court case of Limelight v. Akamai with respect to the issue of divided infringement.  Akamai filed its brief last week.  The ABA site has all the briefs, including amicus briefs.

Limelight’s opening brief is available [here].

Akamai’s brief is available [here].

Limelight’s reply brief is due in a few weeks.

I have been trying to think about how the definition ultimately given to an “abstract idea” might affect other areas of the law.  For example, if software is deemed an abstract idea, it seems inevitable that someone will argue that you shouldn’t be able to tax software as an abstract idea.  Similarly, if software is deemed an abstract idea, it seems inevitable that someone will argue that “market power” under the antitrust laws can’t exist in something that is abstract.  Moreover, if software is deemed an abstract idea, it seems likely that someone will argue that the UCC does not apply to transactions of something that is abstract.

I kind of like the taxability issue as a tool for assessing patent eligibility.  Namely, if you can tax the full extent of the goods or services embodied in a patent claim, then it should not be deemed abstract.

In case there was any doubt that history repeats itself, a new case was filed last week captioned Gramm v. Deere and Co. Alright, not quite Graham v. John Deere and Co.; but, close enough.

The case illustrates that in 21st century patent litigation even patents on farm machinery recite controllers and sensors.  They probably even rely on . . . software . . . oh, the horror!