Appellate Practice: Working Models for the Court

Farrago v. Rawlings Sporting Goodspic-36.jpg (Fed. Cir. 2009)

Farrago’s patent covers a pad for relieving knee stress. The argument focused on whether Rawlings’ product has four surfaces (as claimed) or only three surfaces (as Rawlings argues). On appeal, the Federal Circuit quickly affirmed summary judgment of noninfringement without opinion. (A narrowing amendment during prosecution precluded application of the doctrine of equivalents.)

I’ll only focus here briefly on the appellate practice. Farrago submitted a sample of the accused product to the appellate court so that the judges and clerks could examine the product prior to oral arguments. During oral arguments, the court thanked Farrago’s attorney – noting that the sample “was very helpful.” Of course, the court needed only 24 hours to release its opinion against Farrago.

5 thoughts on “Appellate Practice: Working Models for the Court

  1. Has anyone ever heard the story about an old case concerning infringement or patent validity of a chicken defeathering machine?

    The story goes that during trial one of the parties brought the machine into the court, not sure whether it was admitted into evidence or what, then put on a demonstration using a real chicken. Sure enough the machine malfunctioned sending chicken parts and blood in all directions.

  2. In the Supreme Court Adams Battery patent oral argument, the attorney for the inventor stuck a small example of the battery, connected to a light bulb, into a ordinary glass of water provided at the Court. It lit, and impressed the Court.

  3. Thanks for the info, anonymous. We follow a similar rule in our state, but typically it just means counsel can use posters and charts; i.e., visual aids.

    I wouldn’t object to the procedure in this case so long as the opposing party has reasonable notice and opportunity to object.

  4. FRAP 34(g) provides for the use of physical exhibits at argument, and CAFC Rule 34(c)(2) provides for the use of visual aids not used below (it requires notice to opposing counsel no later than 21 days before oral argument).

    Admittedly, the samples in this case were apparently sent to the court as a sort of physical supplement to the appendix rather than as a visual aid at argument, but I don’t see anything wrong with that, so long as the other side is given notice and an opportunity to object. Embodiments of accused devices and prior art may well meet the standard for judicial notice.

    In patent cases at the Federal Circuit, this is occasionally useful if there’s some important aspect of the prior art or the accused devices that doesn’t quite come through clearly enough in words and pictures. Also, I’m sure that the sports equipment was fun to play with.

  5. This seems like a strange procedure. In the appellate court where I clerk (and I’m pretty sure this is true generally), parties must introduce evidence (or, if excluded by the trial judge, must proffer) at the trial level (or the administrative hearing level). If a party fails to do so, they cannot then submit evidence to us, even on motion.

    The only procedure we have that allows the record to be supplemented is when the trial court inadvertently omitted something, or in special cases where an existing record of a different, related proceeding is deemed necessary for the appellate court. And even in those cases the party has to file a motion, and the appellate court has discretion whether to grant the motion.

    Of course, I can’t tell here if the accused device was in evidence below. Presumably it was, so maybe this isn’t really out of line. The oddity here is probably just that demonstrative evidence (instead of photgraphs) was submitted to the appellate court. It still strikes me a little strange that the district court wasn’t the one who submitted the sample.

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