Posts Tagged: "Court of Appeals"

The recent Federal Circuit decision in Elbit Systems of America, LLC v. Thales Visionix, Inc. affirmed a final written decision issued by the Patent Trial and Appeal Board (PTAB), which upheld some claims in an inter partes review (IPR) proceeding challenging the validity of Thales’ U.S. Patent No. 6474159, titled Motion-Tracking and issued in November 2002. The patent claims a system for tracking the motion of an object relative to a moving reference frame using a first inertial sensor mounted on the tracked object, a second inertial sensor mounted on the moving reference frame and an element that receives signals from both inertial sensors to determine an orientation of the object relative to the moving reference frame. The resulting invention enables the use of inertial head-tracking systems for platforms including flight simulators and other vehicular applications.

Given the PTAB’s ability to make decisions precedential, Ruschke’s argument about how important and meaningful it is to have expanded panels to ensure uniformity misses the mark. The PTAB does not designate many cases as precedential (another problem for a different day), but it is possible for a three-judge panel decision to be made precedential. In fact, there have been a number of cases that have been pronounced as precedential by the PTAB where the decision was made by a three-judge panel. That being the case, why is it necessary for any expanded panels unless PTAB leadership is trying to influence Administrative Patent Judges despite the lack of a precedential designation? And doesn’t such an attempt to influence call into question the decisional independence of APJs?

Today, Judge Newman is the Federal Circuit’s most prolific dissenter, and her dissents are important. Former Chief Judge Paul Michel noted that “Judge Newman may hold the record for the most dissents. But her dissents have great force and often persuade other colleagues over time.” Judge Kimberly Moore concurred, saying “[w]hat people may not realize is that many of her dissents have later gone on to become the law—either the en banc law from our court or spoken on high from the Supremes.” She noted that “Merck v. Integra comes to mind. It’s a case where she wrote a very strong dissent. The Supreme Court took it and not only changed the state of the law to reflect what she had written, but they cited her outright in the opinion.”