Have you noticed how often the US Supreme Court disagrees with the Federal Circuit on patent cases? Some years they never agree! For example, Bleich et al. The Federal Circuit Under Fire notes the Supreme Court disagreed with the Federal Circuit on all six cases in 2013. The disagreements have continued. Despite this unsettling fact patent attorneys primarily turn to the Federal Circuit for guidance, because it has had exclusive jurisdiction over all patent appeals in the US since 1982 so has published the vast majority of the US patent law decisions that matter today.
Gene Quinn's article Rule 36 Judgment: The growing problem of one word affirmance by the Federal Circuit highlights the Federal Circuit is increasingly giving no explanation to support affirmances in 43% of the trial court decisions and nearly 50% of the USPTO decisions. Perhaps the Federal Circuit should at least cite the court decision(s) and give a pithy analysis of the law to the key facts it considered in affirming the decision below. Otherwise, this high rate of Rule 36 affirmance is reducing the primary source of case law for many practitioners.
Copyright © 2016 Robert Moll. All rights reserved.
Showing posts with label Federal Circuit Rules. Show all posts
Showing posts with label Federal Circuit Rules. Show all posts
Monday, August 22, 2016
Saturday, May 26, 2012
Plasmart v. Kappos & Wang - Federal Circuit Reverses Validity in Inter Partes Reexamination - Non-Precedential Opinion
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.
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.
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