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Guest Post By Andrew J. Dhuey
Welcome to the first installment of Making a Federal Circuit Case of That? – an occasional peek at some unusually entertaining cases before the U.S. Court of Appeals for the Federal Circuit.
Our first case is Cornish v. Doll, argued on August 3, 2009. If you clicked the preceding link, you already know the unhappy ending for Mr. Cornish: a Rule 36 affirmance without opinion. Still, Mr. Cornish had his morning in court, and what a 25-minute session it was (audio file).
Mr. Cornish is an attorney who lost his right to practice patent prosecution before the PTO in 1995. Before he took the podium, Judge Rader quietly – but not quietly enough – prepared his fellow jurists for a bumpy ride:
0:19 JUDGE RADER (whispering to another judge): Fasten your seltbelt.
0:20 CHIEF JUDGE MICHEL: Yeah. Heh.
Safely buckled up, the judges heard Mr. Cornish explain what his case was about: free speech, religious freedom, Tafas v. Doll, continuing legal education, the patent bar exam, a name change in gratitude to God, and Olympic swimming. Mr. Cornish is an ardent opponent of the limits on continuation applications and claims at issue in Tafas. His 39-claim amended complaint suggests that Mr. Cornish dislikes numerical limits, generally.
The opening minutes of oral argument revealed much confusion about what Mr. Cornish was appealing and what he sought in relief. He seemed at least as interested in discussing Tafas as he was his own loss of eligibility to prosecute patent applications:
4:43 JUDGE LOURIE: How have you been damaged? This has nothing to do with Tafas.
4:50 MR. CORNISH: Well, if you would allow me to just mention the final rules, which is my concern.
4:57 JUDGE RADER: Well they’re not the concern of the court in this case. We have that case before us in another sense. We’re interested in you, and what reason you think you have for damages, and you have no stake whatsoever in the Tafas case, so please tell us about something that’s relevant to this matter.
5:18 MR. CORNISH: Alright, the reason why I was interested in Tafas is because it…
5:25 JUDGE RADER: I just said you have no interest in Tafas, tell us about this case.
With the focus back on Mr. Cornish’s personal grievance with the PTO, he explained that he changed his name around the time that the PTO removed him from its list of active patent attorneys:
6:52 MR. CORNISH: My name was Cornell D. Cornish. I went to the court…
6:58 JUDGE RADER: Yes, I know, you’re now Judge Cornish.
Some of the confusion in Mr. Cornish’s case concerned how he took and failed the patent bar exam three times after the PTO had declared him ineligible to prosecute patent applications. If, as Mr. Cornish contends, he was never properly removed from the PTO’s list of patent practitioners, then why did he sit for the patent bar exam three times?
7:35 JUDGE RADER: Well now we come to 2005, they tell you if you’re to be readmitted, you must take the [patent] bar, and you agree with that because you take it three times.
7:44 MR. CORNISH: No, sir, I don’t.
7:46 JUDGE RADER: Well why did you take the test three times?
7:47 MR. CORNISH: Simply because of CLE. I’m required in < ?xml:namespace prefix ="" st1 ns ="" "urn:schemas-microsoft-com:office:smarttags" />
7:58 JUDGE RADER: You’re educated by taking the tests, is that it?
8:01 MR. CORNISH: Yes, indeed, absolutely. So, I’m like Mark Phelps, who lost a race after winning five gold medals. Just because I simply didn’t get a passing grade on the exam doesn’t mean that I’m not qualified or competent.
Okay, it’s really Michael Phelps and he won gold medals in all of his eight events in
As time ran scarce, there was really only one question left to resolve: why did Cornell D. Cornish become Cornell D.M. Judge Cornish?
23:49 JUDGE LOURIE: Question – why did you change your name?
23:53 MR. CORNISH: Well, it’s actually a First Amendment religious case because I changed my name after heart surgery and my heart stopped for one hour. And the only explanation I can find for my survival for quite a few years since is divine intervention. So I took my new names out of the Bible in thanks to God for whatever mercy He had given me. It’s much, much more than I deserve. And my name was told – I told the Patent Office I’ve changed it and it was for religious reasons. It wasn’t as they point out that I was resigning to avoid the embarrassment of disbarment.
And with that miraculous finish, the ride came to a complete stop. So did Mr. Cornish’s appeal, which, as mentioned, the court summarily rejected the following day.
Bypass machine folks. Commonly used in open heart surgery.
Man you should pass the patent bar….otherwise you can face the same as CORNISH. Click on this link link to inventiontopatents.com to know patent laws properly.
He took the podium probably as part of an on going ruse used to create the idea that he wanted to be a patent attorney when he actually wanted to purchase dirt cheap real estate in the Alexandria area in the “down market” with his girlfriend’s massive salary. Silly folks bought it. Cornish rocks.
” If it is true as he said that his heart stopped for an hour, there’s no way there wasn’t brain damage.”
That’s what I was wondering about, what did they do? Put him on an artificial heart of some sort? You can’t just not have your blood flowing for an hour.
OT
Ray Niro tells this guy:
link to cosmos.bcst.yahoo.com
“I know how you feel brother, I struggled. Next thing you know, I’m looking at several 112 rejections, 102’s, you name it! Brutality!”
After listening to the arguments, I’m of the opinion that something went horribly wrong during the heart surgery he had. If it is true as he said that his heart stopped for an hour, there’s no way there wasn’t brain damage. Poor guy. If it was me, I think I’d rather just die at the operating table.
lowregnumber, there is no destruction here. While Mr. Cornish feels aggrieved by the PTO (both in his case and in the final rules at issue in Tafas), he has a sense of humor about the situation — just listen to the audio.
Clearly, the gentleman lacks capacity to practice. Just as clearly, those who think that the destruction of a fellow lawyer is funny lack the capacity to exist as decent human beings. There, but for the grace of God, goes each of us.
Maybe he forgot to include a $200 petition fee for the name change and rather than tell him that he needed to include the fee, the PTO just figured it would be easier to disbar him, since the failure to include the petition fee was irrefutable, prima facie evidence of his gross incompetence…
I agree with Matt and Leopold.
Sorry to appropriate the moral high ground, but only the childish could find humor in this. After listening to the oral argument, I’m of the opinion that Mr. Cornish is of diminished capacity, the manifestation of which is not funny, but sad. He should be respected and assisted, not disparaged and mocked.
I tried to find the original pleadings in PACER, but could not. Nowhere in the oral arguments is the issue of the grant or denial of an injunction argued meaningfully–I wonder if it even appeared in the pleadings. Does anyone have access thereto, and if so, can you post a link?
I’m with Matt – I don’t think it’s very funny, once you consider what’s going on.
It’s pretty clear that no one anywhere close to this case believes that Mr. Cornish should still have a registration # or a license to practice law. I’m not sure that even he believes it. But why not go out with a bang, arguing against those evil overlords who (used to) work at the PTO?
It appears that this ends what I assume was mostly a distinguished career of well over 40 years. I just hope that someone is kind enough to make me stop before I get to the point where my pleadings are almost as incoherent as 6’s posts.
The reference to “Mark Phelps” may likely represent a conjunction of “Mark Spitz” and “Michael Phelps”, rather than simply forgetting Mr. Phelps first name.
> It’s hard for me to understand how they could interpret a name change notice this way,
If that letter was written the way this case was argued, I honestly have to wonder how they could interpret it at all…
Indeed, an odd case. But it does seem to me like there would have been a better way to conduct the hearing and the case at the Fed. Circ. They asked him over and over what his issue was and what relief he wanted, but all they needed to do was establish, quickly, a timeline of relevant events and then have him point specifically the to parts presenting issues.
In any event, it seems to me like it was hardly a way for the court to handle someone who was so obviously having a rough time. All they needed to do was see a copy of his “name change” letter from either the PO or the guy to dispose of the case properly, instead it seems like they took an unjustifiably harsh position on the matter.
Oh and lol, I loved the part about “fasten your seatbelt”.
GenericIPguy, that seems to be how the judges and the government understood what happened in 1995, but the written record is very strange. According to the government’s attorney, the PTO responded to Mr. Cornish’s notice of name change with a statement to the effect that they are interpreting his letter as a resignation.
It’s hard for me to understand how they could interpret a name change notice this way, and it’s equally hard for me to understand why Mr. Cornish didn’t voice his objection immediately upon receiving the PTO’s letter.
Odd case.
Note to “anonymous” above: New York does not have a unified bar system. The New York State Bar Association is a voluntary membership organization that does not license lawyers or conduct bar exams; the NY state court system does that.
I was at the Hearing – as a part of an educational trip to Fed Ct.
The Man was not only incoherent – in terms of logical argument – but to me – an outsider to the US system, seemed to not make any sense.
As we understood the case [due to help from some Court clerks’ before the hearing], Cornish had resigned from the PTO, just before a client was to initiate discplinary/ ethical violations against him. A few years later, he asks the PTO to re-instate him.
The PTO said – if you want re-instatement, you gotta take the exams. The fellow took it 3 times, but failed and then filed the present case.
I was surprised that none of the above came in the hearing and this was kind of wierd.
Regards,
GenericIPguy
PS: The Federal Court building is great.
hackwriterwriterhack, I never suggested that the condom ring patent was emblematic of Mr. Cornish’s work as a patent prosecutor. It was a playful response to his Mark, er…Michael Phelps self-comparison.
Paul, why discriminate against old guys? Either have MCLE for all patent practitioners, or let the threat of malpractice run its course.
This is not a comment on this case, but with the population demographics of an increasing number of lawyers living longer, those insisting on practicing long past normal retirement ages are going to have to have some kind of system of MCLE testing and mandatory retirement for Alzheimers or other serious imparments in legal judgment highly detrimental to client interests and state bar client reimbursment funds.
The man’s a lawyer. If he wants relief from a court and doesn’t want to hire someone else, he should be able to present his claim with a modicum of coherence instead of burying it a mountain of irrelevant garbage.
If he was *actually* improperly removed from the PTO rolls, he might have been able to prove that by focusing on that. Based on his complaint, the fact that he’s a member of the New York bar would seem to put the lie to any pretension that the bar exam serves any legitimate purpose or that state bar admission boards stand for anything other than paperwork and revenue generation.
Robert KS – seems like you’re right. At least, based on what I heard in the audio. I’m not sure what paper trail evidence the man had for his allegations (that he was never officially suspended).
He really could have used some help so as to avoid clouding his presentation so much, as he did appear to be confused as to which relief he was seeking with this particular appeal (confusion as to what motions were being appealed at the time).
But I also sympathize with the viewpoint above that if you can’t pass the exam, you shouldn’t be practicing. I do wonder how many of us would pass an exam ~30 years after being admitted to practice?
The snickering tone of the original post is a bit overdone, especially that shot about pointing out a particular design patent relating to a condom ring as if that’s representative (here’re other examples of his work).
United States Patent 4,269,728
Schweitzer , et al. May 26, 1981
———————————————
Method for storing spent nuclear fuel in repositories
Assignee: The United States of America as represented by the United States (Washington, DC)
United States Patent 4,149,931
Christensen April 17, 1979
————————————————–
Divertor for use in fusion reactors
————————————————–
Assignee: The United States of America as represented by the United States (Washington, DC)
Cornish indulged himself in making a number of irrelevant arguments and statements, but, notably, the government never rebutted Cornish’s points of substance. I was disappointed that Cornish’s central allegation–that he was never actually removed from the rolls, or was removed wrongfully–was never addressed.
I don’t get any enjoyment or entertainment from reading this…
OMG!!! That is funny!
Oh goody. I’m looking forward to this. I was going to change my name to Judge, but after seeing this case I just changed my mind.
If you can’t pass the patent bar, you do not deserve a reg no. C’mon now. It’s petty easy.
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