This post contains oral argument summaries from the Federal Circuit's May 2009 sitting. I listen to the arguments on planes or in my car, and I do not write the summaries until later, so please use these summaries only for issue spotting, and check the actual MP3's if you want complete accuracy.
2008-1415 ITC NORGREN INC v ITC (Schall Gajarsa Moore)
05-04-09 (1 of 5 stars)
This is a claim construction case involving a clamp that receives a flange. The main question is whether the flange has to be wholly within te clamp. A second questin is whether a "generally rectangular ported flange" requires four separate tabs to extend outward from a central rectangular hub or whether only two are sufficient. In other words the question seems to be whether the rectangular flange is the entire structure or only the parts of the structure that stick outward.
2008-1456 DCT HEALTHPORT CORP v TANITA CORP (Schall
Gajarsa Moore) 05-04-09 (1 of 5 stars)
The district court had granted summary judgment of noninfringement and the patentee argues (1) the court had imported a limitation into the claims and (2) misidentified corresponding structure for a « means » limitation. On the former the patent indicates that it is important that a patient not move when being measured by the invention so the district court read such a limitation into the claim. The patentee emphasizes that the claim is an apparatus claim so reading such a limitation into the claim is particularly wrong. On the latter the patentee argues that the structure for a « mounting means for removably attaching» should include a computer in the patent. The defendant cross-appeals to get its fees for a frivolous case. This appeal suffered a Rule 36 affirmance.
2008-1468 DCT UNIV OF PITTSBURGH v HEDRICK (Mayer Rader Bryson) ) 05-04-09 (2 of 5
This case asks the court to draw the line between a hypothesis and a real conception. The invention relates to stem cells and the appellant asserts that the conception did not occur until the inventors actually found a particular cell in their test sample. The appellee asserts that any lack of certainty in the inventors’ records simply shows pragmatic scientific caution. One problem for the appellee is that the patent lists a co-inventor who was not even around on the alleged date of conception.
2008-1498 DCT SOFPOOL v INTEX RECREATION (Mayer Friedman
Rader) 05-05-09 (1 of 5 stars)
This is a design patent case that was tried before Egyptian Goddess and the panel thus seems inclined to send the case back for a new trial. It seems there might be a question of whether the appellant waived the issue but that issue is not pushed very much. The appellee argues that the instructions were substantially correct when read as a whole. This case was quickly vacated in a non-precedential opinion.
2008-1500 DCT ANASCAPE v MICROSOFT (Newman Gajarsa Dyk)
05-05-09 (2 of 5 stars)
This case might ask what happens when incorporated material is inconsistent with the specification of the patent-in-suit. The invention here is a multi-axis motion-controlled game controller and the question is whether the incoporated material includes a disclaimer and thus acts to limit the invention to a controller that uses a single input mechanism. Much of the argument centered on what was disclosed by particular figures in the patent-in-suit. Separately there is an issue of whether the damages award makes any sense or is simply a compromise verdict. Bill Lee from Hale & Dorr represents appellant Nintendo (Microsoft must have settled out or deferred in the argument).
2008-1509 DCT BD TRUSTEE LELAND v ROCHE (Linn Prost
Moore) 05-05-09 (1 of 5 stars)
The district court granted summary judgment of obviousness. The appellant argues that the court made serious fact findings on issues such as predictability and the level of skill in the art. There is also a major question here about whether the assignment from the inventors violated Bayh-Dole and the practical result if it did.
2008-1554 DCT FARRAGO v RAWLINGS SPORTING (Mayer Lourie
Gajarsa) 05-06-09 (1 of 5 stars)
This is a claim construction case relating to a athletic leg support. The patent requires a shape having four surfaces as opposed to a prior art less comfortable triangular shape. The question appears to be whether a continuoius curve can define two distinct surfaces or must be a single surface (which I presume drives the question of whether the defendant has 3 or 4 surfaces). This appeal suffered a Rule 36 affirmance.
2008-1589 DCT BIOLUMIX v CENTRUS INTL (Rader Linn Prost)
05-06-09 (1 of 5 stars)
The issue in this case is whether a patent assignment is subject to an arbitration clause. The issues sound pretty case-specific. There was an alter ego finding by the district court without discovery. This appeal suffered a Rule 36 affirmance.
2008-1448 PTO IN RE BOSE CORP (Michel Dyk Moore)
05-06-09 (3 of 5 stars)
This is an interesting appeal. A trademark applicant in an apparent misunderstanding of the law signed a declaration that a mark was being used in interstate commerce when no products had been sold with the mark in several years but the applicant was making repairs to the goods. The Board said the person knew or should have known his reading of the law was wrong so it found the registration unenforceable. There is extensive discussion about whether the Fed Cir’s mention of « knew or sould have known » in its prior Torres decision required the panel to affirm (or go en banc). Judge Moore pointed to a decision by then-Judge Alito in which he explained the « should have known » language does not excuse a court or Board from finding actual deceptive intent but instead was used by the court as a signal that it did not believe the witness on its way to finding that the witness had deceptive intent.
Chuck Heiken of Fish & Richardson represented Bose.
2009-1023 DCT AMGEN v ARIAD PHARMACEUTICALS (Michel Dyk Moore) 05-06-09 (3 of 5 stars)
This is a claim construction case where the claim says « in the cell » and the question is where that is and what must occur there. A lot of the discussion was case-specific biotechie stuff.
Evan Chesler of Cravath represented the appellant and he’s pretty good.
2009-1029 PTO IN RE BAGGETT (Gajarsa Plager Linn)
05-07-09 (1 of 5 stars)
This was an appeal from the rejection of claims that are directed to making determinations for the pricing of airfares in a manner that is computationally efficient. There was discussion about what the prior art actually disclosed. Notes: Baggett was represented by Dennis Maloney of Fish & Richardson. The argument started with the admission of two of Judge Gajarsa’s law clerks.
2009-1019 DCT NETCURRENTS INFO v DOW JONES (Gajarsa Plager Linn) 05-07-09 (1 of 5 stars)
This is a claim construction case in which the claims require updating of certain information in real-time and the question is whether daily updates can be considered to be real-time. The district court had granted summary judgment of noninfringement. Netcurrents asserts that was infringement (or at least a fact issue) even under the district court’s construction and that the district court erred in accepting allegedly inconsistent and conclusory testimony from Dow Jones’ witnesses. This appeal suffered a Rule 36 affirmance.
2008-1544 PTO IN RE REIFFIN (Mayer Bryson Prost) 05-07-09 (1 of 5 stars)
The appellant in this reexamination argues that the Board acted ultra vires by considering questions of patentability that were not new—i.e. the effective filing date which he says was implicitly considered by the prior examiner apparently. He also makes a claim construction argument regarding whether two components had to be part of a single unit (an issue he accuses the solicitor of running away from). The argument sounded very fact-specific—though interestingly the patent application was filed 27 years ago (and I presume this related to the Reiffen v. Microsoft litigation though I do not know that).
2009-1045 DCT WEDGETAIL v HUDDLESTON DELUXE (Schall
Gajarsa Dyk) 05-08-09 (1 of 5 stars)
Appellant argues that it was denied procedural due processvia an opportunity to move for attorney fees and costs. Apparently the judge simply made a statement in court that led the appellant to believe it could not move on the issues. This case may have ben affected by the Supreme Court’s recent Shinsecky ruling that requires a party to show harmful error from being denied such an opportunity.
2009-1047 DCT GARBER v CHICAGO MERCANTILE EXCH (Michel
Lourie Prost) 05-08-09 (1 of 5 stars)
This is a case concerning the interpretation of a Rule 41 stipulation. The actual facts were not too clear to me though the appellant argues that the district court erred in discerning the parties’ intent. The case may turn on whether Ruloe 41(a)(1) for stipulated dismissals is self-executing (the appellant’s position) or instead requires some sort of intervening judicial action. The appellee instead argues that the agreement falls under Rule 41(a)(2) -- even though it was called a « stpiulation « -- because it contained a condition.