Let's talk about the Federal Circuit's recent decision Plasmart, Inc. v. Kappos & Wang that reversed the Board of Patent Appeal's decision that all claims were patentable during an inter partes reexamination.
Unlike many of the tech inventions, you may have seen this one ... at least it's in my driveway -- it's the ever present twistcar. It's not recommended for adults, but you simply twist the handlebars to make it go. See U.S. Patent No 6,722,674 (the '674 patent). Briefly, the invention relates to a safety wheel 24 added to prevent a scooter from flipping over. The wheel 24 is connected to the free end of a supporting arm (23) that extends frontwardly from a twister member (2) to which a pair of driving wheels (21 and 22) are also attached. See col.3, lines 30-45 and Figures 4 and 5.
Even though Plasmart is "low tech" some real money is at stake, the case was worth reading and 55 comments on Patently-O's article suggested others felt the same way. I was surprised that the case was so analyzed and discussed and yet only one comment noted it is a non-precedential opinion.
As a non-precedential opinion Plasmart has limited utility, because it is not the law and cannot be cited in legal briefs. Despite its depth of analysis, what it would add to the body of the law and how prospective defendants might like to cite it, Federal Circuit Rule 47.6(b) says it cannot be be cited as precedent. One commentator recently noted 80% of federal court opinions are designated non-precedential. Yet, the Federal Circuit warns any attorney using a non-precedential opinion in a brief (See In re violation of Rule 28(c)) would violate the Federal Rules of Appellate Procedure or the CAFC Local Rules of Practice and likely be sanctioned.
Copyright © 2012 Robert Moll. All rights reserved.
