Circuit Judge Richard Taranto sat for his first oral argument at the Federal Circuit yesterday. Chief Judge Rader offered these welcoming remarks: [Listen].
The Federal Circuit also has a visiting judge this month. Judge Dee Benson of the District of Utah heard oral arguments today at the Federal Circuit. Judge Benson and Judge Rader served together on Senator Orrin Hatch’s staff in the 1980’s.
The Senate Judiciary Committee quietly conducted the confirmation hearing for Raymond Chen last Wednesday. While only three senators on the committee were present for the hearing, the questioning was refreshingly more patent-centric than in recent hearings for Federal Circuit nominees.
The video of the April 24th hearing is available at this page: [Link].
You can view the introduction of Mr. Chen at the 23:20 minute mark.
Mr. Chen makes his own introductions at the 29:25 minute mark. There was an impressive turnout of supporters.
The questioning by the senators can be viewed at approximately the 38:00-41:16 (Hirono), 41:16-49:48 (Grassley), and 58:40-1:01:59 (Lee) minute segments.
One might wonder if Senator Hirono has drunk the Kool-Aid of the anti-software-patent lobby, based on some of her questioning. She strikes me, however, as much more astute than that.
The Federal Circuit recently affirmed the PTO in the appeal of In re Karl Urquhart by way of a Rule 36 Judgment. The oral argument is of interest in that it addresses broadest reasonable interpretation (BRI) of claim language as well as functional language.
Claim 13 of the application was one of the claims at issue. Claim 13 recited:
Claim 13 (REJECTED) A semiconductor processing system comprising: a semiconductor process tool including a tank, wherein the semiconductor tool is configured to process a semiconductor component; and a blender system comprising: a blender unit configured to receive and blend at least two chemical compounds and deliver a solution comprising a mixture of compounds at selected concentrations to the tank, wherein the tank retains a selected volume of a chemical solution bath; and a controller configured to maintain at least one compound within a selected concentration range in the chemical solution bath, wherein the controller controls at least one of: operation of the blender unit to maintain the concentration of the at least one compond within a selected concetration range within the solution delivered to the tank; and a change in flow rate of solution into and out of the tank when a
concentration of the at least one compound within the chemical solution bath falls outside
of a target range.
The claim was deemed anticipated by a patent directed at a bathtub that mixed hot and cold water, US Patent 1522120.
The Appellant argued that the PTO had failed to properly apply the language “a semiconductor process tool.” For example, in its appeal at the Board level the Applicant/Appellant cited In re Suitco Surface:
Claim 13 requires the claimed system to have “a semiconductor process tool including a tank, wherein the semiconductor tool is configured to process a semiconductor component.” Even if you disregard the “configured to” portion, the claim still requires “a semiconductor process tool including a tank.” The Examiners insist that a bathtub is a semiconductor process tool. A bathtub is not even remotely related to a semiconductor process tool. The absurdity of this claim construction argument is matched only by the Examiner’s stubborn refusal to acknowledge that it is absurd. Unfortunately, this sort of thing has become all too commonplace within the USPTO. MPEP §2111; In re Suitco Surface, Inc. (Fed. Cir. Case No. 2009-1418, decided April 14, 2010)(“The PTO’s construction here, though certainly broad, is unreasonably broad. The broadest-construction rubric coupled with the term ‘comprising’ does not give the PTO unfettered license to interpret claims to embrace anything remotely related to the claimed invention.”).
You can listen to the oral argument [here].
You can view the Rule 36 Judgment [here] that affirmed the rejection of the claims.
The Supreme Court has released the audio of the oral argument in Association for Molecular Pathology v. Myriad Genetics, Inc.
You can listen to the oral argument here: [Listen].
The Federal Circuit illustrated its flexibility last month by conducting an oral argument with one of the parties participating by telephone. It appeared to be a rare circumstance. The oral argument was scheduled for March 7th and a snowstorm along the East Coast caused many flights to be canceled. So, in this particular circumstance the appellant was allowed to argue by telephone. The USPTO appeared in court as the appellee.
You can listen to the oral argument here: [Listen].
You can review the Rule 36 Judgment here: [Link].
The Supreme Court has now posted the audio of the oral argument that took place on Monday in FTC v. Actavis. The recording of the oral argument is available here.
The Supreme Court heard oral argument today in the pay-for-delay case of FTC v. Actavis, Inc. et al.
The transcript of the oral argument is available here.
On some of the other blogs, commenters have been wondering aloud if the Federal Circuit’s newest judge, Richard Taranto, will be allowed to participate in the CLS v. Alice case. CLS v. Alice was argued prior to Judge Taranto joining the Federal Circuit. Assuming there is no recusal, history suggests that Mr. Taranto will participate.
Judge O’Malley was sworn-in on December 28, 2010 and participated in three en banc cases that were argued before she was sworn-in (Therasense, Tivo, and Slattery). Judge Reyna was sworn-in on April 7, 2011 and participated in two en banc cases argued before that date (Therasense and Tivo). Indeed, Tivo was decided less than two weeks after Judge Reyna was sworn-in. So, the door is still open for Todd M. Hughes to participate if/when he is confirmed. Ray Chen participated in an amicus brief in the CLS v. Alice case — so, one would assume that he would recuse himself if sworn-in before the decision issues.
Richard Taranto was sworn-in on Friday March 15th as the newest judge on the Federal Circuit.
Todd M. Hughes was nominated for the Federal Circuit on February 7, 2013. The Senate Judiciary Committee recently posted his committee questionnaire. The questionnaire is available here: [Link].
Mr. Hughes listed his most significant litigation matter as Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) which concerned the interpretation of a statute governing disability compensation for Agent Orange exposure.
You can listen to Mr. Hughes in the oral argument of the Haas case here: [Listen].
You can read the Haas opinion here: [Link].
The oral argument of the month is from Biax Corp. v. Nvidia Corp., 2012-1387 (Fed. Cir. Feb. 8, 2013)(Rule 36 Judgment): [Listen].
I thought that this oral argument was interesting because it touched on several issues that are of interest to practitioners. For example, each side seemed to argue that the use of the phrase “the present invention” helped their case. The term “the present invention” appeared in the specification and in arguments in the prosecution history. While the term “the present invention” was used in the specification, the specification was also asserted to disclose multiple embodiments. Strong statements in the prosecution history were asserted to effect a clear and unmistakable disavowal — yet, the appellant cited authority for why those statements did not necessarily apply to the claims in dispute.
After listening to the oral argument, you might find yourself wondering if a written opinion rather than a Rule 36 Judgment would have been helpful to understand the court’s thought process.
The Supreme Court has posted the audio of the oral argument in Bowman v. Monsanto. You can download or listen to the oral argument here.
I do a fair amount of opinion work as part of my law practice; so, I’m always interested in cases where the doctrine of claim vitiation is a topic during oral argument. The doctrine of claim vitiation has yielded some interesting comments from the bench in past cases. See these posts for past comments by Chief Judge Rader. [Link], [Link], and [Link].
Judge Moore had some frank words about the doctrine of claim vitiation during the oral argument of Source Vagabond Systems Ltd. v. Hydrapak, Inc., 2012-1408 (Fed. Cir. 2013)(Rule 36 Judgment): [Listen] and [Listen]. In the second sound bite, she notes that she would be happy to “scratch it out of existence.”
You can listen to the entire oral argument from Source Vagabond here: [Listen].
Personally, I find the doctrine of claim vitiation to be a useful tool when there clearly is no equivalent. However, I understand the court’s frustration with how to apply the doctrine.
Here is one more post on the related issue of the specific exclusion principle: [Link].
Two recently decided Federal Circuit cases that deal with claim vitiation are:
Deere and Co. v. Bush Hog, LLC et al., __ F.3d __ , Nos. 2011-1629, -1630, -1631 (Fed. Cir. 2012)(Chief Judge Rader writing for the court) [Link]; and
Brilliant Instruments, Inc. v. Guidetech, LLC, __ F.3d __, No. 2012-1013 (Fed. Cir. 2013)(Judge Moore writing for the court; Judge Dyk in dissent) [Link].
The transcript from the Supreme Court oral argument in Bowman v. Monsanto is now available [here].