{"id":10292,"date":"2018-12-13T11:25:02","date_gmt":"2018-12-13T17:25:02","guid":{"rendered":"http:\/\/www.717madisonplace.com\/?p=10292"},"modified":"2018-12-18T23:52:51","modified_gmt":"2018-12-19T05:52:51","slug":"should-there-be-a-pro-inventor-canon-of-construction","status":"publish","type":"post","link":"https:\/\/www.717madisonplace.com\/?p=10292","title":{"rendered":"Should there be a pro-inventor canon of construction?"},"content":{"rendered":"

The Federal Circuit sat en banc last Friday in Procopio v. Wilkie<\/em>. \u00a0Like others before it, this en banc oral argument was interesting — even though it was not a patent case. The case dealt with statutory interpretation — particularly whether the statute in dispute conferred benefits on “blue water” navy veterans who possibly suffered from exposure to herbicides like Agent Orange during their service in the Republic of Vietnam. [Link<\/a>]. For more background on the case with links to the briefs, see this [link<\/a>].<\/p>\n

Some of the issues discussed were: what is the difference between off-shore waters, waters adjacent, waters off-shore, and territorial seas; what is the definition of the Republic of Vietnam; what weight should the court give to dictionaries and atlases when interpreting terms in a statute; sovereignty; how should definitions from the international court of justice be used in interpreting a statute; the Supreme Court’s decision in SAS; Chevron deference; the sovereign boundary of Purpleland;\u00a0and others.<\/p>\n

What really caught my ear was the discussion of the “pro-veteran canon of construction.” \u00a0There are certain “pro” canons that have developed through jurisprudence, such as pro-veteran, pro-elderly, pro-Indian, etc. Given the venerable position that inventors\/entrepreneurs occupy in American society, I was trying to think if there is anything akin to the pro-veteran canon of construction in patent law. \u00a0I suppose to some extent the doctrine of equivalents benefits inventors. \u00a0But, I think of that as an equitable doctrine rather than a canon of statutory construction. \u00a0Is there any place for a pro-inventor canon of construction when applying exceptions to 35 U.S.C. \u00a7101? To the AIA? To the AIPA, i.e., the American Inventors Protection<\/span> Act?<\/p>\n

Judge Hughes did not take part in the decision to grant en banc review and I did not hear him during the oral argument; so, it appears that he has recused himself from this case. \u00a0You might recall that Judge Hughes has an extensive background in prior Agent Orange cases, arguing for the DOJ and the Veteran’s Administration. \u00a0In his Senate questionnaire he listed Haas v. Peake<\/em>, 525 F.3d 1168 (Fed. Cir. 2008) as his most significant case during his DOJ career prior to joining the court. \u00a0He was awarded a commendation for his handling of that case which “resulted in several billions of dollars in monetary savings.”\u00a0[Link].<\/a>\u00a0 It would seem this case puts that decision in its cross-hairs.<\/p>\n

You might get a chuckle over Judge Newman’s phrase: \u00a0“take your judicial hands off this statute and leave it to the agency” — around the 56:00+ mark. \u00a0I’m not sure if she was using a Charlton Heston accent or not.<\/p>\n

There were lots of questions about past and pending attempts at legislation and epidemiological studies \u2014 it was unclear if those questions were directed at record evidence.<\/p>\n\nhttp:\/\/www.717madisonplace.com\/wp-content\/uploads\/2018\/12\/2017-1821-2_1272018.mp3<\/a><\/audio>\n

Update 12\/18\/17:<\/span><\/p>\n

I thought it might be of interest to include below the link to the oral argument from Haas v. Peake<\/em>, 525 F.3d 1168 (Fed. Cir. 2008). \u00a0There are at least two benefits to this. \u00a0First, it is interesting to hear then-attorney, now-Judge, Hughes argue the case. \u00a0Second, it is always a treat to listen to Chief Judge Michel (retired) at an oral argument.<\/p>\nhttp:\/\/www.717madisonplace.com\/wp-content\/uploads\/2018\/12\/2007-7037-16000.mp3<\/a><\/audio>\n","protected":false},"excerpt":{"rendered":"

The Federal Circuit sat en banc last Friday in Procopio v. Wilkie. \u00a0Like others before it, this en banc oral argument was interesting — even though it was not a patent case. The case dealt with statutory interpretation — particularly whether the statute in dispute conferred benefits on “blue water” navy veterans who possibly suffered […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/10292"}],"collection":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=10292"}],"version-history":[{"count":22,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/10292\/revisions"}],"predecessor-version":[{"id":10333,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/10292\/revisions\/10333"}],"wp:attachment":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=10292"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=10292"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=10292"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}