It Is Time for Federal Circuit Judges of Good Conscience to Call Out Their Colleagues

Recently, IPWatchdog published an excellent article by Wen Xie outlining the legal inconsistencies of the Chamberlain v. Techtronic Industries opinion, penned by Judge Chen. Unfortunately, describing the latest inconsistencies in the garbage pile of contradictions that is the Federal Circuit’s Alice/Mayo doctrine provides no surprise to anyone. The Alice/Mayo decisions issued by the CAFC are self-contradictory and cannot be reconciled with the Constitution, 35 U.S.C. §§ 102, 103, and 112, and at least a dozen Supreme Court cases. Indeed, the only surprises from the Federal Circuit these days come in the form of the odd holding for patent eligibility.

The Big Lie

However, Wen Xie’s article did cause me to realize that I’d overlooked Judge Chen’s distortions of fact. “Distortions,” however, is too mild a term for the outrageous misrepresentations made in Chamberlain. While these misrepresentations of fact are not totally apparent on the face of the decision, the first clue comes in the very first page of the step one analysis, where Judge Chen falsely asserts:

“The only described difference [according to Chamberlain’s patent specification] between the prior art movable barrier operator systems and the claimed movable barrier operator system is that the status information about the system is communicated wirelessly, in order to overcome certain undesirable disadvantages of systems using physical signal paths—additional cost, exposed wiring, and in-creased installation time” (emphasis added).

Really? As if the only difference between Chamberlain’s garage door opener and the entire prior art universe of garage door openers is that Chamberlain used *gasp* a wireless means of communication, and this is admitted by the patentee? What incompetent patent attorney drafted such an admission? The answer is no one drafted such nonsense, which Judge Chen falsely asserts can be found in col. 1, l. 49 – col. 2, l. 16, col. 3, ll. 16–26, of U.S. Patent 7,224,275. The ‘275 patent was, by all appearances, competently drafted, and no such silly admissions were made. The casual reader can trust Judge Chen or the actual language in the ‘275 Patent, but trust one or the other they should.

It’s as if Judge Chen wants us to believe that the idea of using a wireless transmitter with a garage door opener was never considered prior to the 2003 filing date of the ‘275 Patent, or that substituting a wireless for a wired transmission path for garage door openers would not be obvious. Further, the Menard Patent Application, which was cited against the ‘275 Patent in an obviousness-based invalidity challenge by the Defendant, makes over one-hundred mentions of “wireless” communications.

The obviousness challenge to the ‘275 Patent failed for lack of substantial evidence regarding assertions that the prior art references taught the claimed signal format limitations, and because there was substantial evidence of secondary indicia of nonobviousness. See, e.g., Case: 1:16-cv-06097 Document #:740 (filed 05/23/18), pp. 17-21 and 36-37. “Because, according to Dr. Rhyne’s testimony, this combination does not teach the limitations of the ‘275 patent claims, the jury heard substantial evidence supporting a finding of nonobviousness.” Id. at p. 20. “Dr. Rhyne testified regarding secondary considerations of nonobviousness which the jury may, and apparently did, choose to credit.” Id. at p. 36.

The particular limitations missing from the prior art had nothing to do with the use of wireless technology. Indeed, the record is clear that the claimed data format is the distinguishing hallmark of the ‘275 Patent. Id. at p. 20. The defendant did not challenge this fact upon appeal, but merely declared that the particular claimed data format is somehow “irrelevant.” See, blue brief, p. 36; reply brief at p. 1.

With no avenue to pursue anticipation or obviousness because the factual record forbids such challenges, what is left to a defendant? Easy answer: claim patent ineligibility under Section 101 and rely on the Federal Circuit’s ability to deny the time of day using the meaningless standards of “abstract” and “inventive concept.” However, it’s hard to declare that something is “routine” and “conventional” when the factual record says the complete opposite. Hence, the big lie that the only described difference between the prior art and the claimed system is wireless communication.

The Big Question

The bigger question upon en banc rehearing, if it is granted, will be: will the whole Federal Circuit give a pass to Judge Chen’s outrageous misrepresentations, or will the Federal Circuit cowboy up, get tough on their fellow judges, and hope to regain some measure of integrity after the last five years of bleak nonsense?

My best guess is “no” given my first-hand experience in In re Villena. I was highly disappointed that not a single fellow judge called out the dishonesty of Judges Stoll, Hughes, and Prost. Indeed, as I previously penned regarding the Federal Circuit’s lack of veracity: “The Federal Circuit is shamelessly willing to misrepresent the evidentiary record when addressing Alice/Mayo.” The Chamberlain decision validates my position.

On the other hand, one prominent judicial figure, Judge Kimberly Moore, did recently call out her fellow judges for the disregard of an actual factual record in favor of a manufactured factual record. “I am deeply troubled by the majority’s disregard for the second part of the Alice/Mayo test, its fact finding on appeal and its repeated misrepresentation of the record, in each instance to the patentee’s detriment; all when we are to be applying the summary judgment standard no less” (emphasis added). American Axle v. Neapco, Appeal No. 2018-1763, diss.op. @ p. 5 (Fed. Cir. Oct. 3, 2019).  Judge Moore further opined: “The majority finds that U.S. Patent No. 3,075,406, never introduced as evidence in this case or cited by either party, which discloses a rigid cylindrical metal bar with two circular ends resembling a metal dumbbell—is a liner. . . . This is a fact question, nobody argued it, and reasonable minds could disagree over whether a dumbbell is a liner.” Id. @ p. 8.

Granted Judges Dyk and Taranto proved themselves as completely unfamiliar with the concepts of relying on the actual evidentiary record during appeal and Constitutional due process without your help, but thank you Judge Moore for standing up to your fellow judges in this one instance. Now, could you and a handful of other judges stand up to Judge Chen’s misrepresentations upon rehearing in the Chamberlain case?

A Call for Amici

File an amicus curiae on behalf of any party you wish in the Chamberlain case, so long as you demand the Federal Circuit stop with the misrepresentations of fact. Write a letter to the Senate Judiciary Committee on the issue. Enough is enough.

The author takes the accusations made in this article seriously, and submits this article in full knowledge of Rule 8.2 of the Model Rules for Professional Attorney Conduct.

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