Posts Tagged: "Chief Judge Rader"

Judge Kathleen O’Malley was confirmed by the United States Senate earlier today. O’Malley’s confirmation, along with the confirmation of 18 others in recent days, is the result of a deal between Senate Democrats and Republicans that ensured passage of 19 nominations in exchange for an agreement not to move forward with other controversial nominations, including the hotly challenged nomination of Goodwin Lui, who is Associate Dean and Professor of Law at University of California Berkeley School of Law.

United States Court of Appeals for the Federal Circuit issued a decision in one of the patentable subject matter cases that was returned to the Court by the Supreme Court in the wake of the Supreme Court’s decision in Bilski v. Kappos. On remand, once again, the Federal Circuit held (per Judge Lourie with Judge Rader and Judge Bryson) that Prometheus’s asserted method claims are drawn to statutory subject matter, reversing for the second time the district court’s grant of summary judgment of invalidity under § 101.

I am pleased to announce that the Editors of the ABA Journal yesterday announced they have selected IPWatchdog.com as one of the top 100 best law blogs by lawyers, for lawyers. Now readers are being asked to vote on their favorites in each of the 4th Annual Blawg 100’s 12 categories. IPWatchdog.com is in the “IP Law” category. To vote, please visit The 2010 ABA Journal Blawg 100.

The Executive Director of the AIPLA, Q. Todd Dickinson, then took the stage to introduce a video that was dedicated to this year’s AIPLA Board of Directors’ Excellence Award. This year the award was given to the Honorable Chief Justice Paul R. Michel, who retired earlier this year. Dickinson explained the award was being given to him “in recognition of his extraordinary leadership and service to the United States Government and in particular his leadership of the Court of Appeals for the Federal Circuit as Chief Judge while having a distinguished career marked by intellect, integrity, and an unwavering commitment to the administration of justice.”

I am in beautiful San Diego, California today, enjoying the beach and near perfect weather. Last night I spoke at the San Diego Intellectual Property Lawyers Association monthly meeting. The topic was “The Perils and Profits of Patent Blogging: How to stay out of trouble while still being read and still generating clients and connections.” Look for more on that next week when I get back to the office and into full swing. In the meantime, in the latest edition of News, Notes & Announcements, IBM enters the blogosphere with an IP blog, Myriad Genetics files it appeal brief and Patent Docs have some excellent early analysis, UCLA Professor Doug Lichtman interviews Chief Judge Randall Rader and the USPTO will host the 15th Annual Independent Inventors Conference at the end of next week. Two more days out of the Office for me attending, speaking at and reporting live from the USPTO Conference. A busy week no doubt.

Friday afternoon I attended the second day of the AIPLA annual meeting. I got to the Marriott Wardman Park hotel at 9:00 am and was there until after 11:00 pm, for a full day of activities. I met so many interesting people while there, including the current Chief Judge Randall Rader for the Court of Appeals for the Federal Circuit,…

Several weeks ago TiVo filed its brief in the matter of Tivo, Inc. v. EchoStar Corp., which will be heard en banc by the United States Court of Appeals for the Federal Circuit on Tuesday, November 9, 2010. The dispute between TiVo and EchoStar dates back to 2004 when TiVo sued EchoStar in the United States District Court for the…

In this edition of News, Notes & Announcements, the mother of all patent trolls, Acacia Research Corporation, scores two more licensing agreements, one with IBM the other with US Cellular. Samsung Electronics and Stanford Law School are combining forced to co-sponsor a patent prize for excellent writing about patent law, with real money awarded to the winner and runners-up; $10,000 and $5,000 respectively. AIPLA announced that David Kappos will give the keynote speech at the annual meeting on Thursday, October 21, and Judge Gajarsa will speak on Friday and Chief Judge Rader will participate in a panel on the amicus process. The Wall Street Journal is reporting about new challenges to cookies tracking our every move online, and BIO is the charter sponsor of a new weekly public affairs television program called BioCentury This Week, which premiered yesterday and is available on the web.

Putting aside my disdain for the Supreme Court stepping into patent matters of any kind, what does seem clear is that the Supreme Court wants to pretend that patents are the same as any other area of law and the same processes and procedures pertaining to other areas of law apply equally to the patent world. See eBay v. MercExchange and Zurko v. Dickinson for but two examples. The Supreme Court also loves case by case approaches without hard and fast rules that can actually be objectively and even-handedly applied. See KSR v. Teleflex and Bilski v. Kappos for but two examples. So strictly adhering to this clear trend it would suggest that the Supreme Court would be quite open to giving district court judges broad latitude to enforce their own Orders when appropriate. This would allow the district courts discretion to handle different cases differently, so that would cover the case by case approach, and it would seem to be in keeping with theories of judicial economy, which are typically left to the district court to handle, particularly when procedure, process and management of the docket are at issue.

Allvoice sought a remand of the Holt application to the examiner for further prosecution or to issue an order requiring AVRS to show cause why judgment should not be entered against the Holt application. Without requiring AVRS to even file a response, the Federal Circuit, per Chief Judge Rader, explained that there was simply no justification for the issuance of a writ of mandamus because there was no showing that an ordinary appeal wouldn’t suffice after the PTO finally disposed of the interference proceeding. Of course, that doesn’t take into consideration the need for Allvoice to quite title to proceed with its infringement action against Microsoft. The plot thickens!

Where this decision takes on a surreal quality is how the various Justices viewed the impact of 35 U.S.C. § 273 in determining whether “business methods” are patent-eligible. Justice Stevens and 3 other Justices (Ginsburg, Breyer and Sotamayor) are completely WRONG in treating 35 U.S.C. § 273 as if this statute doesn’t exist. Even Scalia, who obviously doesn’t like patents on “business methods” (by his refusal to join Part II B-2 of Kennedy’s opinion) couldn’t stomach rendering the language of 35 U.S.C. § 273 a nullity.

Yet another day has come and gone without the United States Supreme Court issuing a decision in Bilski v. Kappos. According to the SCOTUS blog, Chief Justice Roberts announced that the Court will have its final opinions on Monday, June 28, 2010, and that the Court’s term will close with the exception of remaining Orders in pending cases. This is widely being interpreted as confirmation that Bilski will be issued on Monday, June 28, 2010, which admittedly seems extraordinarily likely, but call me crazy, I have a strange feeling something odd may be boiling behind the scenes.

In Perquignot v. Solo Cup Co., the stakes were truly mind-boggling: about $10.8 trillion in total. Approximately $5.4 trillion of that bounty would be the federal government’s share which the Federal Circuit characterized as “sufficient to pay back 42% of the country’s total national debt.” High stakes indeed! But unfortunately for the bounty hunter (Pequignot) in Perquignot, the Federal Circuit affirmed a district court grant of summary judgment that there was no “deceptive intent” on the part of the patentee (Solo Cup), thus no approximately $5.4 trillion bounty was owed.

After first “threatening,” then being “silent” for over three years, the patentee in Aspex Eyewear was barred by the defense of equitable estoppel from getting any relief for patent infringement. What’s even worse, after the initial “threat” of infringement the patentee in Aspex Eyewear created this ticking estoppel time bomb by failing to mention (in follow up exchanges) the two patents for which suit was filed, while mentioning three other patents which were not involved in the suit that was filed.

Wednesday was my day to walk through the BIO Exhibit Hall. I had already decided to blow off the Al Gore “media availability.” I am not sure exactly what that is, but as near as I can tell it meant I would get to listen to the first 5 minutes of Al Gore’s keynote address. I’m not a big Gore fan, and there were so many cool innovations to learn about. I love to talk shop and nothing quite captures me like innovation, innovators and those who speak the language of business. So… sorry Mr. Vice President, this nerd decided to join the other nerds in the Exhibit Hall. The decision to skip the Gore media availability was sealed when I learned of an tech transfer iPhone app that needed some investigation. Hey, I can’t help it, I’m an electrical and computer engineer at a BIO Convention?!?! I needed some computer angle somewhere!