… and See What Sticks: Claim Construction Appeals

Rattler Tools v. Bilco Tools (Fed. Cir. 2008) (nonprecedential)

Rattler sued Bilco in the Eastern District of Louisiana — alleging that Bilco’s magnetic scrapper (used to clean out oil wells) infringed several patents. After a bench trial, the district court found the patents completely non-infringed. In particular,the district court held that the “accused products and methods did not meet any of the thirteen limitations ofthe ten asserted claims.”

Rattler appealed — asking for a new claim construction for each of those thirteen limitations.  Without any detail analysis, the CAFC politely showed Rattler the door.  “We have considered all of Rattler’s arguments. Having done so, we see no reason to disturb the careful and thorough post-trial decision of the district court.”

This case is unremarkable in its short analysis, but does serve as a reminder of the current state of patent appeals.  The conventional wisdom that the CAFC re-writes a large percentage of claim construction decisions leads most losing parties to appeal on claim construction.  At the same time, appellants are also including more claim construction arguments in each appeal. 

106 thoughts on “… and See What Sticks: Claim Construction Appeals

  1. 106

    Dear Anonymous,

    Personally, I respect a man who stands up to defend his peer.

    Even though our disagreements involved different circumstances, I’m reminded of one of my favorite movie lines, a valuable principle to live by. Just as Marine Lance Corporal Dawson recognized after his dishonorably-discharge trial in the movie, A FEW GOOD MEN – he said to his buddy Private Downey:

    “Yea we did [something wrong]. We were supposed to fight for people who couldn’t fight for themselves. We were supposed to fight for Willy.”

  2. 105

    Hello,

    I’d like to think I’m not the only one who learned from the lively discussion. I cannot and do not apologize for the way I feel, and anyone is free to judge me in any way s/he sees fit, and I would defend the right to do so.

    Like a patent’s file history, this thread stands testimony to the words we each wrote. I’ve made several mistakes and I have tried to fess up to each; if I missed any, ooops, it was not intentional. A wise mentor once told me that some people are unable to apologize under any circumstance – I am not so inclined, and that makes me feel good, but I accept others who are so inclined.

    Together, We the People comprise power greater than one. Historically, our democracy has thrived on strength, honor and principled Biblical behavior, and by helping one another. I like saying that because it also makes me feel good to say so.

    Notwithstanding remaining differences, I’m happy to bury the hatchet and start fresh with anyone who would care to do so next week. I wish all Patently-O people happiness, good health, long life and prosperity.

    Till we do it again, I suggest we all give thanks for the blessing, the miracle, of living in America yet another day, but giving thanks, my friends, is a personal choice. I give thanks because makes me feel good to do so.

  3. 104

    I think my pet bunny, JAOWR, said it all above when he posted this:

    Hey Guys, Why can’t we all Just get a long? Why can’t we channel our extra energy against Piracy Director Dufas and his main minions, the “Coalition for Patent Piracy” and its miserable members, e.g., (¢¿©isco), and any other Patent Reformers who have been screwin’ with us patent professionals by, e.g., rejections, returns, rejections, returns ad infinitum and would foist many other frustrations and levies on patent attorneys and their inventors alike, and threaten our very livelihoods.
    Posted by: Just an ordinary white rabbit(TM) | May 29, 2008 at 02:57 PM

  4. 103

    Hi again anonymous,

    I’ll bet you and I can agree on this:
    “Just when I thought I was out … they pulled me back in …”

    My rationale for attacking anyone is this:
    I don’t attack those what don’t deserve it.
    For example, as memory serves, I never attacked you, did I?
    My absolute defense v. those whom I have attacked is, well, the demonstrable truth.

    Do you think this remark by Mr. Dhuey was meant as a compliment? It is to me at a minimum a “slight,” and in context a hurtful insult:
    “– even though appellant was doing horribly on the merits, he takes time out of his oral argument to mention that his client has a total of 10 issued patents (only one of which has anything to do with the case at hand), and that the inventor’s daughter is also an inventor. The daughter will soon being going into space (indeed, to the Moon!).

    (Incidentally, there were 5 patents in suit, not one.)

    Do you think this derogatory remark was even worth mentioning?
    “– appellant’s counsel addresses a female visiting judge as ‘sir, I mean ma’am’.”

    I’m confident you never would have thought so, except to defend Mr. Dhuey. And you have every right to do so.

    Well, I believe I deserve the right to defend whoever I believe has been hurt for no comprehensible reason whatsoever.

    But Hey, our dialogue sure does break up the monotony of the day.
    I wonder how many IP people we are entertaining, else why would they be reading our repartee.

  5. 102

    “JAOI’s just upset that a fellow inventor wasn’t treated like a war hero[.] … I cannot, for even one second, believe that any _impartial_ and _reasonable_ person reading this thread could side with JAOI on this one.”

    That quote could easily be used in dozens of threads.

  6. 101

    Is this law, or the Carebears’ Care-a-lot Jamboree? For Christ’s sake, people. There’s no reason to go out of your way to be rude, but crying for sympathy and soothing people’s egos aren’t part of the program. We’re adults, not children; truth hurts – you deal and move on.

    I suppose you people think critics should always say nice things about the things they’re downrating. “This movie is terrible, but I’m sure the director is a great person!”

    Seriously? Come on now.

  7. 100

    Hi omg,

    ¿There you go, insulting hyenas. Now why would you want to do that (o¿õ)?

  8. 99

    Perhaps it hurts to be told that your attorney didn’t do a good job representing your interests on appeal, but that’s not a “personal attack” and doesn’t deserve an apology.

    Compare that comment to your comments–just on this thread–which include personal attacks on one of the CAFC judges and on the other commenters. Throwing stones from a house of glass is rarely a good idea.

    I think we do have irreconcilable differences. Your legal arguments have given way to rants and insults. “wrtsdfg” has it about right.

  9. 98

    It is disheartening to see the extent of insensitivity as has been displayed on this thread. Some of you are on par with hyenas.

  10. 97

    Dear anonymous,

    Perhaps you think when/if the inventor, his daughter and their attorney read Mr. Dhuey’s comment, the first on this thread, it did not hurt.

    If that is the case, we have irreconcilable differences.

    Indeed, and I thought we were getting along so well.

  11. 96

    There’s a difference between “sympathy” and “civility”.

    JAOI’s just upset that a fellow inventor wasn’t treated like a war hero in the courtroom. I cannot, for even one second, believe that any _impartial_ and _reasonable_ person reading this thread could side with JAOI on this one.

    As stated on Patent Hawk: “cool rationality sits in the back seat while self-interest drives and emotion rides shotgun.”

  12. 95

    Morbid curiosity and bordeom lure me back.

    JAOI, please point out the basis for this:

    “you then went on to make personal attacks on his clients, two inventors, a father and daughter”

    The only thing remotely approaching a personal comment I saw was the statement that “I hope they had more enjoyable things to do in their trip to Washington,” which is definitely not a “personal attack.”

    Perhaps you should take Old Hickory’s advice yourself.

  13. 94

    Dear Mr. Dhuey,

    Re:
    “How an individual inventor like you could harbor such hostility toward me is mind-boggling. After several attempts that never seem to work, I give up trying to help you better understand the appellate process. Best regards.”

    It is not the “appellate process,” which you and others have graciously and repeatedly explained that I have trouble understanding – I already knew about the appellate process from my various experiences; however, I find our differing views thereof of no present moment.

    I am duly impressed with you credentials, and I have been since I read your first postings months ago, and it is with great regret and some pain that I find myself constrained to press my concern on this thread. I will take the responsibility and blame for not representing my concern with sufficient clarity and conciseness heretofore.

    When I read your first comment above, the very first on this thread, I could find no excuse for you to have taken the time to single out that particular attorney and his oral argument for your scorn and ridicule.

    And, it is not bad enough to you to attack a fellow patent practitioner for no good reason I can conceive of, you then went on to make personal attacks on his clients, two inventors, a father and daughter.

    How an attorney of your high caliber could harbor and levy such loathsome hostility toward a fellow attorney and his father and daughter inventor clients IS WHAT IS MIND-BOGGLING.

    I demand an apology from you, but not to me. With all due respect, you did not have the right, or the rhyme or any honorable reason to hurt the Rattler attorney and his clients. Please pray tell, what you were thinking?

    Please remember what Old Hickory, Andrew Jackson said:
    “Any man worth his salt will stick up for what he believes right, but it takes a slightly better man to acknowledge instantly and without reservation that he is in error.”

  14. 93

    Great, somebody used the “t” word (“terrorist” not “tit for tat”). Now Dennis is on the No-Fly list and Homeland Security is monitoring this blog…

  15. 92

    Actually, I quite like the intemperate exchanges. Switching off the Spam Filter would make them even more pungent. It makes a change from the formal papers on my files, and all the boilerplate “respectfullies” they contain. The threads regularly give my eyebrow muscles some beneficial exercise. Further, they help me grasp what sort of thinking might be occurring, when a United States registered patent attorney is writing instructions to me. M Mooney, you’re the one who scratches the scabs most effectively (maybe that’s why you attract such abusive reactions). Dennis, I love the blog.

  16. 90

    Unfortunately, “tit for tat” is the only game terrorists, even blog terrorists, understand – I’m actually serious. You can look it up in any game theory handbook.

    Incidentally, the Game Theory handbook should be right next to “High School Debate Tactics and Other Parlor Tricks,” which, as you might guess, is woefully overdue and was last checked out by an M.Mooney.

  17. 89

    Hi Andy, it is Jaowr again,

    You glibly ridiculed three (not a “couple”) Rattler “goodies” in the very top comment yet it doesn’t seem you knew dick about what you wrote. In case you forgot, here is what you wrote:

    “For a painfully weak appellate argument, listen to the oral argument. Appellant’s counsel should be grateful the court was vague in its rejection of his arguments.

    “A couple of goodies:
    — even though appellant was doing horribly on the merits, he takes time out of his oral argument to mention that his client has a total of 10 issued patents (ONLY ONE OF WHICH HAS ANYTHING TO DO WITH THE CASE AT HAND), and that the inventor’s daughter is also an inventor. The daughter will soon being going into space (indeed, to the Moon!). (emphasis added)

    “Apparently both dad and daughter were in the CAFC courtroom for this. I hope they had more enjoyable things to do in their trip to Washington.

    “– appellant’s counsel addresses a female visiting judge as ‘sir, I mean ma’am’.”
    ————————————————

    Perhaps you read about a different Rattler case than the one I read because the case I read involves five (5) patents, as described in the 1st sentence of the discussion of the opinion as follows:

    “Rattler brought suit against Appellees in the Eastern District of Louisiana for infringement of claim 1 of U.S. Patent No. 6,216,787; claim 1 of U.S. Patent No. 6,308,781; claims 1 and 10 of U.S. Patent No. 6,354,386; claims 1 and 4 of U.S. Patent No. 6,357,539; and claims 1, 8, 12, and 14 of U.S. Patent No. 6,491,117.”

    It seems you cannot count, or you cannot read. To be candid, if I may, your belittling “goodies” couldn’t be more trite, tired or trivial if you tried. I wonder if you didn’t drink a coffee that got peed in.

    Please explain your reason for your offensive, insulting and mistaken remarks.

  18. 88

    Having listened to the audio track, it appears this claim construction appeal came down to an assertion that “the district court got the claim construction wrong because this claim construction contradicts Appellant’s theory of infringement”. Not identifying any errors of law or fact by the DC (other than the incorrect conclusion) was also unhelpful.

    This appeal was DOA, and there didn’t seem to be anything unreasonable or impolite about the questions from the bench.

    After all, wouldn’t it be worse for a judge to “politely” let an advocate ramble on about irrelevancies and then call time, than to interrupt in an attempt to figure out what error(s) the DC is supposed to have made?

  19. 87

    Dear Andy (may I be so familiar?),

    I’m impressed with your further credentials and I’m sure Jaoi will be when he reads them tomorrow. I’m sure neither Jaoi nor you want to go tit for tatter (like Malcolm and CaveMan).

    I think Jaoi would like you to consider his comment in full at:

    link to patentlyo.com

    Perhaps you could point out the sentiment in Jaoi’s last paragraph to the Federal Circuit Panelist. I’m sure that would rival the brave, gallant character in “A Tale of Two Titties” who uttered:

    “It is a far, far better thing that I do, than I have ever done…”

    If you did that, you will reap rewards beyond compare here and hereafter…

  20. 86

    JAOI, I think others have adequately explained why it was inappropriate for the appellant’s counsel to break away from the merits of the case and spend the court’s time mentioning irrelevant things about his client and his client’s daughter. Oral argument is not governed by the etiquette rules of ordinary conversation.

    It is generally not rude for judges to interrupt counsel; it is rather entirely appropriate where a judge thinks that counsel is i) not responding to a question, ii) saying things irrelevant iii) belaboring a point, or iv) running short on time and not addressing an important point.

    As for this comment of yours:

    “What kind of an American patent professional could possibly think there is something better to do, something more enjoyable, than to attend the oral hearing in the awesome Courtroom of the Court of Appeals for the Federal Circuit of America to hear argument about some of your patents. Incredible, beyond my understanding, way beyond the civilized pale in my humble opinion.”

    Well, since you’re indirectly attacking me, let me tell you the kind of professional I am. I have represented individual inventors exclusively for 13 years. I have very high regard for the Federal Circuit judges, and I’m honored that the CAFC requested my pro bono representation of a disabled veteran in a pending appeal from the Merit Systems Protection Board.

    As you know, I’m working on a case that could make it possible for scores of other inventors to seek redress from infringing state entities. Relatively few litigators have spent the time I have advocating for individual inventors. How an individual inventor like you could harbor such hostility toward me is mind-boggling. After several attempts that never seem to work, I give up trying to help you better understand the appellate process. Best regards.

  21. 85

    And on top of all that, “The batteries in my mouse are low.” Night, night.

  22. 84

    Hey, I have to pee, and it is way way past my super time, and I don’t have enough strength to mix another Manhattan or give thanks for the blessing, nay, the miracle, of living in America yet another day.

  23. 82

    Dear CaveMan,

    Re:
    “Rudeness does cut both ways.”

    I agree. But would you not hold a Federal Circuit Judge to an even higher standard that an attorney?

    Re:
    “I’ve got a job to do.”

    But today, we have an Inventor and his family who deserve our help.

  24. 81

    Dear anonymous,

    Re:
    “Actually, if you listen to the audio, the question came between sentences.”

    I’ve Just listened to the audio track yet again, and I more than ever disagree — the attorney had not finished his sentence (starting at 6:58 min:sec), and there is no way I think an objective person would believe otherwise.

    Re:
    “I think we just disagree on what civility required in this situation.”

    I agree 100% — there can be no doubt about that.

  25. 80

    Sorry JAOI, I’ve got a job to do. And coming from you, who have proven yourself many times over as a notorious grinder of axes, I would say its a little out of line.

  26. 79

    Dear Mr. CaveMan,

    With all due respect, please bury the hatchet at least to seize the moment.

  27. 78

    I’ve read your comments. A little while into the digression, (1) attorney finishes one sentence, (2) Judge starts to ask question, (3) Attorney starts another sentence, (4) Interruptions ensue, etc. As I see it, the attorney started going on what he admitted (right at around the 6:58 mark) was a needless digression. The question wasn’t rude, it wasn’t asked in a raised voice, and it wasn’t in any sense disdainful of the attorney’s client or the attorney’s client’s daughter. As I saw it, it was a gentle nudge to get the argument back on track.

    I’m all in favor of civility. I think we just disagree on what civility required in this situation.

  28. 77

    “The competitive world of IP Lawyering”

    Drama queen, party of one, your table is ready…

  29. 76

    By the way, is there anyone out there in Patently-O Land that would be happy if the Supreme Court affirmed the death penalty for Alan Shore’s (Boston Legal) client?

    Anyone?, anyone?, Jim H?

    Let Freedom, and Civility in our country, and especially from, our government, reign.

  30. 74

    Jim H. does have a point. Rudeness does cut both ways. But of course, rudeness met with rudeness leads to bad things – like road rage…

  31. 73

    Dear anonymous,

    Re:
    “Actually, if you listen to the audio, the question came between sentences.”

    I’ve Just listened to the audio track again, and I disagree— the attorney had not finished his sentence (starting at 6:58 min:sec), and I cannot imagine why you would believe otherwise.

    And it has nothing to do with “the last case of the day” since everything like that is governed by the green, yellow and red light, sort of like a chess clock with limits.

    With all due respect, anonymous, please read the preamble of my comment. My thoughts are primarily of civility, not the law. If you don’t think civility should rule, especially under these extraordinary circumstances, I would have to respectfully respect your opinion.

  32. 72

    “So what fricken reason did any one of the three Judges have to cut off Rattler’s attorney mid-sentence when the attorney began to talk about the inventor and his daughter’s significant and dramatic accomplishment?”

    Irrelevance. Waste of time.

    Actually, if you listen to the audio, the question came between sentences. The panel let the attorney ramble for a little while, then the question came. There’s nothing rude about it. Anyone who’s ever given an appellate argument or even done a moot court in law school will tell you to expect–and to welcome–interruptions.

    For an advocate, the point of oral argument is to resolve any remaining doubts in the judges’ minds about your position. It’s not about making a speech, and oral argument is not an entitlement to waste everyone’s time and impress your client.

    The judges have jobs to do, and unless Rattler was the last case of the day, there were other litigants waiting to have their cases heard. The fact that the named inventor’s daughter is going to the moon is irrelevant to the question of whether the district court properly construed the patent claims or properly applied state law on the other claims.

    It’s one thing to say that judges and advocates should be courteous to each other and that the panel should show some respect for the parties and their right to pursue their grievances. It’s quite another to say that emotional validation is an important or necessary part of an appeal. I agree with the first proposition but not the second.

    As I think I said much earlier in the post, it sounds like Rattler’s attorney was trying to make some kind of policy argument about the patent law protecting inventors, and he went a little overboard. Policy arguments aren’t bad per se, but when an advocate’s argument gets horribly sidetracked, there’s nothing wrong with the judges reining him in. They weren’t rude about it.

    Nobody peed in the judges’ coffee, but one thing that might have a similar effect is filing a borderline frivolous appeal, writing a confusing brief, and standing up at argument and rambling on about things that have nothing to do with the case.

  33. 71

    Dear Jim H.,

    You made some interesting and reasonable observations above, but please remember what Old Hickory, Andrew Jackson said:

    “Any man worth his salt will stick up for what he believes right, but it takes a slightly better man to acknowledge instantly and without reservation that he is in error.”

    Perhaps my fricken mistake is t’inking that Rattler’s attorney may never have argued in the Federal Circuit courtroom before, while the jaded justices had.

    With all due respect, Jimmy (if I may be so formal), please read my comment’s preamble. And then tell me what you really think. I can take it, but it remains to be seen if you can.

    By the way, Jimmy, please help me—why do I think you may have a dog in this fight?

  34. 70

    JAOI,

    I know of no law that an inventor and his daughter must be given their “due” recognition. The judge was correct in cutting him off in mid-sentence because recognition of people in the gallery is not element of infringement and claims construction. You mention rude and discourtesy — rudeness and discourteousness cuts both ways. To me, he was rude and discourteous to both the judges and opposing counsel to divert their attention from the matters before the court in which the judges were more than prepared to address.

    Moreover, he did this in mid-argument which magnifies his rudeness and discourtesy. If he wanted to point out the inventor and his daughter, he should have started his time with pleasantries by saying something like “I’m so and so, representing the appellant inventor, so and so, who is here today sitting in the gallery with his daughter, who, by the way, has the tremendous fortune, privilege, and honor of being selected an astronaut for our country.” Instead, by making it a point to acknowledge them in mid-argument, he was desperate and grasping for straws.

    If any apologies are due, it is Rattler’s attorney for giving such a poor performance. I would say that Rattler’s attorney should apologize to the Panel and opposing councel, but due process affords him the opportunity to be heard. Unfortunately for Rattler, when afforded the opportunity to rise to the occasion, its attorney failed to seize the moment.

  35. 69

    Perhaps some of the posters here missed a telling point or two from the Rattler audio transcript.

    Arguendo (I actually insist passionately and compassionately that this is not the case, but some may think differently), suppose Rattler’s patent is not as hot as all get out and his attorney had lost on his briefs even before the oral argument, and suppose the inventor paid hundred$ of thousands or lots more for the unavailing patents and even less availing litigation.

    If this were the case, as some commenters have suggested, of course, each member of the Federal Circuit Panel would certainly be aware of these circumstances.

    So what fricken reason did any one of the three Judges have to cut off Rattler’s attorney mid-sentence when the attorney began to talk about the inventor and his daughter’s significant and dramatic accomplishment?

    Anybody?, anybody?, Bueller?

    Why didn’t the jaded judge sitting on the bench let the inventor and his daughter enjoy of their once-in-a-life-time day in court, which could have been a supremely proud shining patriotic highlight in their father-daughter lives and an American family’s dream, as opposed to deliberately embarrassing them? And if it wasn’t deliberate embarrassment, then the Judge ought to be ashamed for being so ignorant and for lacking even the barest semblance of civility.

    A 6:58 min:sec into the audio, Just when Rattler’s attorney began giving the inventor and his daughter their due, the apathetic Panelist on the bench cut him off mid-sentence. How fricken rude is that?

    ———————————————————* * * * *———————————————————

    Moreover, whoever made that remarks atop this thread ought to re-THINK where he is coming from as well. For example, he wrote:

    “Apparently both dad and daughter were in the CAFC courtroom for this. I hope they had more enjoyable things to do in their trip to Washington.”

    What kind of an American patent professional could possibly think there is something better to do, something more enjoyable, than to attend the oral hearing in the awesome Courtroom of the Court of Appeals for the Federal Circuit of America to hear argument about some of your patents. Incredible, beyond my understanding, way beyond the civilized pale in my humble opinion.

    My sympathies and admiration remain for Inventor David Ruttley, his accomplished daughter, the rest of his family, his friends, and lastly but certainly not least, for Mr. Ruttley’s attorney, who stood tall and steadfast for his client under onerous and incredibly discourteous circumstances. Had I been his client, I’d have been proud of his advocacy.

    It kind of seems to me the Panel’s three judges owe Mr. Ruttley and his family an expense paid trip to Washington for an apology, and to be credited with his family’s great accomplishments. It certainly wasn’t his fault if someone happened to pee in the Panelists coffee the day of your oral argument.

  36. 68

    Hey Guys, Why can’t we all Just get a long? Why can’t we channel our extra energy against Piracy Director Dufas and his main minions, the “Coalition for Patent Piracy” and its miserable members, e.g., (¢¿©isco), and any other Patent Reformers who have been screwin’ with us patent professionals by, e.g., rejections, returns, rejections, returns ad infinitum and would foist many other frustrations and levies on patent attorneys and their inventors alike, and threaten our very livelihoods.

  37. 67

    Jim H.

    “I listened to the argument, and if the judges seemed ticked off, it was because they couldn’t get a straight answer from Rattler’s attorney.”

    Go figure! How odd that behavior like that would tick a judge off. In addition to good writing skills and knowledge of what does and doesn’t tick a judge off, another good skill for attorneys (and judges) is to manage one’s anger. If you can’t manage your emotions, the next you know you’ll be off on some blog somewhere posting consecutive comments that consisting essentially of pure vitriol directed at a person who is merely expressing his reasonable opinion about the competitive world of IP lawyering.

  38. 66

    Could be Cave, but that won’t change having the urge to strangle the attorney when he sends me back a reply that plainly makes 0 sense. Sometimes (many times?) I wonder if they just had to shoot something out the door rather than bother to understand what either I or the reference says. Trust me when I say that even if that is the case I don’t respect them one bit. Someone who’s obviously been practicing in my area for a long time pretending that some blatant feature of the reference doesn’t exist because I didn’t take time out to show him exactly how the wording fits the reference. I mean sure, mistakes can happen, but the frequency that they do is sometimes just completely overwhelming. Final after final after final. You know it takes nearly a year to finally get full pay back on those things usually? Such horse sht. No, such shinanigans don’t make me respect them.

    Probably the one thing I ha te the most about working here. You often don’t even get credit for your work for 6 mo.

  39. 65

    Dear anonymous,

    I believe you were right – it was Judge Rader’s voice to which I referred, not Judge Schall’s. My mistake, please excuse. I’m getting old; I use to have over 500 customers and I could identify most on the phone when they only said “Hello.”

    However, I still have my serious personal gripe with Judge Schall (no personal gripe with Judge Rader).

  40. 64

    JAOI,

    I listened to the argument, and if the judges seemed ticked off, it was because they couldn’t get a straight answer from Rattler’s attorney. The judges queried him many times about his statements in the brief and his apparent lack of substantive argument (i.e., more than conclusory) of why the district court erred. If I were a judge, I would get frustrated, too, if an attorney such as Rattler’s was doing the two-step avoidance and deflect routine.

    Rattler would have been better served in oral argument by a moot court law student than “the distinguished gentleman from the South.”

  41. 63

    I guess Mooney must consider herself “fit” somehow or she wouldn’t be casting stones. It would be fun to see Mooney in an embarrassing situation where she was completely humiliated and treated like, well, dog poop. If Mooney was so fit, then why does she spend so much darned time posting useless nonsense on a perfectly good patent blog?

  42. 62

    Mooney has just demonstrated why he is and will always be a small time troll on a patent blog. Rudeness has no place anywhere, especially for the unskilled. They will have a hard enough time. It doesn’t make them any more or less skilled to be treated without a basic modicum of respect. It is precisely this type of Narcissism that is responsible for most of the worlds ills including having to constantly deal with annoying horse’s a$$es like Mooney.

  43. 61

    add to the end of the second sentence “from observing a bunch of courts of appeals, most judges are actually very polite and respectful of the attorneys, almost to a fault.”

  44. 60

    “For the most part,” judges are not rude. There are a few who are rude (or in the words of their admirers, “don’t suffer fools gladly”), and those people can be better known than their colleagues, but from observing a bunch of courts of appeals. At the 4th Circuit, there’s a tradition of the 3 judges coming out from behind the bench to shake the hands of the advocates after argument. On the 3rd, there are a couple of judges who are always exceedingly courteous and often say that a case was “well argued” when it was not.

    A good analogy might be contact sports. If you’re a professional running back, it is the job of 11 people on the other side of the field to knock you down. Off the field, that sort of thing might be discourteous, but so long as your opponents are knocking you down within the rules, you have nothing to complain about. Judges are more like referees than opponents, but their job is to peel back the layers of rhetoric and misstatement, get to the heart of what your case is about, and decide the case fairly according to the law. Sometimes that process can appear rude or discourteous, but more often than not, it isn’t.

    On the other hand, there’s definitely more than a handful of bad apples who are gratuituously rude and abuse their position of power. A few of Sam Kent’s opinions come to mind. But those are the exception, in my limited experience.

  45. 59

    “I have always measured a person by the respect they show to those to whom they do “not have to” show respect.”

    So how do you measure an appellant who files a pointles and terribly written appeal?

    I do not expect judges to “respect” unskilled, inarticulate attorneys. I do not expect Examiners to “respect” unskilled, inarticulate attorneys. On the contrary, I want those attorneys to be treated like dog poop by Judges and Examiners.

    Survival of the fittest, baby.

  46. 58

    I disagree with the above condonation. For the most part, judges are rude. Simply because they can be. Would they talk that way to their mother or father? What about if a justice from the Supreme Court was discussing the case with them – would they interupt him the same way? If the President was there, or the head of the UN, or they were at a cocktail party, would they talk that way to any of them? No.

    Talking down to someone because you can, whether it is a husband talking that way to a wife, a parent talking that way to a child, a boss talking that way to an employee, or a law firm partner talking that way to an associate – well, that just makes you a jerk. I have always measured a person by the respect they show to those to whom they do “not have to” show respect.

    I have been in “challening tests” that were no less challenging because 100% civility was the rule. In the court room (as a pro se certainly), and especially in appellate courtrooms, it is the exception. All hail the judge – we appoint him king over us, and he is more than willing to treat us as peasants.

  47. 57

    “The audio was for me something I’d never heard before”

    Dude, you need to get out of the garage more often.

  48. 56

    JOIA, Mr. Rattler’s attorney created his own “onerous circumstances” and if you think Judges Rader, Schall and Zobel were “discourteous” to him, you would be aghast at the treatment most appellate judges would have given him.

    Judges Rader, Gajarsa and O’Malley were far rougher on me last year, and I don’t take the slightest offense. These aren’t discourteous personal attacks — this is intellectual sparring. Anyone who can’t handle that has no business taking the podium.

    (Side note: my 7-year-old daughter cried when she listened to the oral argument in my case. My wife had to reassure her that these judges were not being mean to Daddy, but were just giving him a challenging test, just like in school.)

    Finally, if anyone wants to see and hear some * really * rough treatment by appellate judges:

    link to law.com
    link to ca7.uscourts.gov
    link to ca7.uscourts.gov

  49. 55

    Dear Lionel,

    Thank you for your comment, I do understand that – I certainly agree.

    What I don’t understand is why, as was put crudely but concisely up thread by none other than the infamous e6K,

    “It kind of seemed like the judges were pissed at Rat before they even got started, who peed in their coffee?”

    The audio was for me something I’d never heard before – of the more than I care to remember courtroom hearings I’ve been involved in, I have only heard courtesy and respect from the bench directed to the attorneys, even when the attorney was embarrassingly ignorant, and vice versa. In the Rattler case, however, it sounded to me like only the vice versa was extant.

    Of course, it is possible and maybe even likely that Rattler’s attorney wrote an unavailing brief, but that alone would not account for the judicial attitude of which I complain.

    And, of course, Rattler’s attorney could have pulled an Alan Shore (Boston Legal) type of Supreme Court lambasting on the Federal Circuit, but I discount that – despite the Panel’s oral argument attitude, Rattler’s attorney was most dignified and courteous.

  50. 54

    JAOI,

    Someone else already pointed this out, but appellate cases are usually decided on the briefs. Certainly, a judge may be persuaded during oral argument, but if the briefs are sufficiently well-written, the case will be decided on the briefs.

    Oral argument is a chance to reiterate your main arguments, clarify areas that are complex or that may not have been given the attention you would have liked in the brief, and most importantly bto answer any questions the judges may have regarding your argument.

  51. 53

    Dear anonymous and pds,

    Gentlemen, you have the patience of a saint. I very much appreciate your bedside manners, and your teaching skills are superb – Thank you. These qualities make for extraordinary patent attorneys, especially for ordinary inventors.

    From mainland USA, I agree with Max – I too learned a lot from yesterday’s dialogue.

    Regarding pds’ comment:
    “I’ve read enough claim construction cases to know that whatever result you want, you can get based upon the case law out there. As such, where the case law is little assistance in choosing between affirm/overturn, then the case is going to come down on some other issue. As is said, it is what it is.”

    I agree with pds, and I would like to add that, even when case law does not exist to tank patent, new standards are sometimes made out of whole cloth by a District Court Judge that may be upheld by some Federal Circuit Panels. And “creative” judges can, for example, take a paragraph from a file history, delete a phrase here and there, insert a phrase here and there, and, voila, create a severe disavowal of claim scope from what was a clear harmless contrast to a prior art.

    I put “occurrences” like this in the category of “stuff happens” when judges want a certain result that cannot be supported by the truthful merits of the case at hand. And I believe any Judge writing or joining an opinion with such “occurrences” is judicially dishonest and in violation of his/her Oath of Office, but enough crying over spilt milk.

    My sympathies remain for Inventor David Ruttley, his accomplished daughter, the rest of his family, his friends, and lastly but certainly not least, to Mr. Ruttley’s attorney, who stood tall and steadfast for his client under onerous and discourteous circumstances. Had I been your client, I’d have been proud of your advocacy.

    Coincidentally, as we all had at it yesterday, Kevin E. Noonan, Esq. Internet-published an article titled, “Evolution of Inequitable Conduct” Here is his opening paragraph (emphasis added to the part that applies to claim construction, file history estoppels and other fundamental patent issues):

    “Among the many things ‘wrong’ with U.S. patent law, few outside the profession (meaning few among the cadre of gadflies, pundits, careerists, and those grinding their different shades of political and rhetorical axes against current patent law) focus on one of the real problems: the varying and inconsistent standards governing inequitable conduct. THESE VARIATIONS, AND INCONSISTENT APPLICATION OF WHAT STANDARDS EXIST BY THE FEDERAL CIRCUIT, create more problems and drive more inefficient behavior in the patent system (both in procuring patents before the U.S. Patent and Trademark Office and in litigation) than any of the other several foci of common complaint.”

    Anonymous,
    I believe my mistake in our discussion of boiler-plate validity issues being part of an appeal was based on my thinking of a post-Markman but pre-trial appeal. Of course, the Rattler case was post trial. Please forgive my mistake.

    Back to work for me — yesterday was enough learning for me for the whole week.

  52. 52

    MaxDrei, that’s right — it’s almost completely about the briefs. Oral argument can help clarify things and once in a blue moon, the judges can change their minds about how they will decide the case.

    You could be the best appellate brief writer in the nation and a lousy orator, and you’d still be an outstanding appellate advocate. Conversely, exemplary oral advocacy can do nothing to offset poor writing skills.

  53. 51

    For a reader from mainland Europe, this thread is very educational. Thanks all. Seems like an appeal Hearing in the USA is in many ways just like what passes for a trial everywhere in the world where the writ of English law doesn’t run, including first instance “oral proceedings” in oppositions at the EPO. Even at first instance, if you haven’t won already, on the written briefs,….you’ve lost.

  54. 50

    Thank you for that explanation, anon. Again, I was referring to the end of appellant’s opening at oral argument. By that point, the judges had read the briefs and had given the appellant one last chance to explain how there was error in the court below. The appellant failed to do that, to put it mildly. That left 15 minutes for respondent’s counsel, who could have spent that whole time dancing an Irish Jig and still won the affirmance.

    You might not realize how rare it is for judges to change their minds at oral argument, JAOI. At the recent CAFC Judicial Conference, several judges admitted this, as did Justice Scalia in his recent interviews.

  55. 49

    Mooney, I knew Susie, and you’re no Susie… but you must feel good about getting a chance to use the word “hyperbole” on this thread. You can cross out one of the big words on your “words to try to impress” list. I think someone beat you to “ostensibly.”

    I bet we could reclaim a lot of energy from your solid and gasseous emanations. Incidentally, Kobe called, they’d like to chat with you about your carbon footprint.

  56. 48

    Those of you who fault Mr. Dhuey might want to remind themselves that, in addition to argument, the parties to an appeal submit briefs, which is where the case is usually won or lost, and which the judges read and study ahead of time. Appellate argument is a chance to resolve any remaining doubts in the judges’ minds about your position, not an extra opportunity to summarize the briefs, and certainly not a redo of the trial with a 3-person jury.

    As I’m sure Mr. Dhuey is aware, if the Supreme Court takes his case, the Justices would most likely go into argument having read the parties’ briefs and the amicus briefs, having had their clerks research the underlying legal issues, and most likely having formed tentative views of how the case should be decided.

    I’m sure that the Rattler panel went into oral argument with open minds, each open to the possibility that s/he’d missed something in reviewing the briefs, but probably not expecting that possibility to materialize.

  57. 47

    JAOI, after oral arguments, it is common for practitioners to exchange views about what the judges’/justices’ questions and comments indicate about the likely decision in the case. In some cases it’s hard to tell what the judges are thinking. In others (Rattler v. Bilco, for instance) it is very easy.

    If you think the judges were still undecided after the appellant’s opening, then please double-check that you were listening to the correct mp3 file.

  58. 46

    “They knew they were going to affirm before respondent’s counsel took the podium.”

    No doubt Hit-ler himself would have approved of this mindset!!!

    /reactionary off

  59. 45

    Dear Mr. Dhuey,

    Re:
    “They knew they were going to affirm before respondent’s counsel took the podium.”

    With all due respect, that kind of sick comment is pure horseshit, and a purely subjective speculative remark, way beneath any professional patent practitioner’s public non-anonymous comment, especially a person representing himself as part a legal team preparing to argue in front of our esteemed Supreme Court.

    Your kind of remark is not worthy of a response, and I’ll offer none, except to say, perhaps that it is past happy hour for you my friend. NO JOKE, go sleep it off and come back tomorrow with an apology, something more dignified (imagine me, Jaoi, justified in saying that to a Supreme Court practitioner).

  60. 44

    Before anyone reads anything into any question the judges asked respondent’s counsel, keep in mind that they were probably bored out of their skulls. They knew they were going to affirm before respondent’s counsel took the podium.

    Inside the judicial mind during this oral argument:

    ___Ugh, this is the most pathetic appeal all week. So, how to fill the time? Hey — they didn’t challenge validity! You hardly ever see that. I think I’ll ask counsel about that. Maybe I can ask the appellant’s counsel about that Moon invention when he comes back up. Was the daughter going to the Moon, or her invention? I forget. Oh, note to myself, pick up dry cleaning on the way home.___

  61. 43

    Hi yet again my Friend anonymous,

    I’m done in too, and I won’t comment again about other stuff, but I agree with you about the implications of this, and I too would really, really like to know:

    “I’m happy to be corrected by someone who has a significant amount of experience litigating patents, but I doubt such a correction will be forthcoming.”

    Please bear in mind that, validity, as I understand it, is a factual “clear error” standard, while claim construction, on the other hand, is a horseshit “de novo” standard.

    Why would any smart District Court Judge, and my Judge was considered the smartest in his district circuit venue*, go through a trial on validity only to be reversed on claim construction, and then have to labor his docket yet again with the same friggin’ patent case.

    Why, oh Patently-O why didn’t the en banc Phillips Court fix the de novo standard?

    ————— * * * * * —————

    * And why would any smart Judge waste time to understand the patent in suit the first time around?

  62. 42

    I know I said I was done, but this sort of asks for a response.

    I wrote:
    “I can’t read [Judge Rader’s] mind, but my guess is that the reason he asked the question [about validity issues] is that in the vast majority of patent cases, the defendant makes the claim (either as a counterclaim or an affirmative defense) that the asserted patent is invalid.”

    and JAOI responded:
    “I can tell you that from my personal experience, admittedly quite limited, that that is Just not so. Please consider this: District Court Judges resent de novo, and why shouldn’t they?; it is a lousy standard. But it is the LAW nonetheless.”

    Either JAOI doesn’t understand my comment, or his/her/its experience is very different from mine. In *my* (also admittedly limited) experience, patent infringement defendants almost *always* assert that the accused patents are invalid. I’m happy to be corrected by someone who has a significant amount of experience litigating patents, but I doubt such a correction will be forthcoming.

    1. You’ve got the wrong judge
    2. Your basis for suggesting impropriety is misplaced.

    Back to work…

  63. 40

    JAOI,

    I listened to the audio. When Judge Schall asked about validity/invalidity, he wasn’t expressing an opinion that the patents were invalid. There was nothing in the tenor of his voice to suggest such a thing. Rather, he was astonished by the fact that the other side didn’t raise the issue down below. In a patent case, tt is pro forma that the alledged infringer will litigate the validity of the patents either as an affirmative defense or a DJ claim (a lawyer who doesn’t would be setting himself up for a malpractice suit). Here, the accused infringer took the weird and unorthodox position of not attacking the validity; this was an oddity not experience very much by the judges at the CAFC. Judge Schall wanted to know why the surprise non-issue (making his life more easier). The fact that the accused infringer made a deliberate choice not to attack the validity speaks volumes about the confidence in their case along with a minimalization of expenses.

    In my opinion, Judge Schall was pleasantly surprised by counsel’s bold statement that they chose not to litigate validity. A amazingly short, simple, and to the point response.

  64. 39

    Thank you all for the lively and candid commentary, but now it is time for more bourbon and some grilled knockwurst.

    I’ll back, on Wednesday.

  65. 37

    “It kind of seemed like the judges were pissed at Rat before they even got started, who peed in their coffee?”

    Exactly.

  66. 35

    Well this may be a first. I seem agree with JAOI in this situation in that rattler seemingly got fed on at least a few points (though there seems to have been many he had to win in order to win overall). But, the arguments were horrendously poorly made in the oral hearing and were apparently even worse in the appeal brief (i.e. not even made at all) and I doubt rattler is “ruined” because of this trial. In any event, AD said it pretty well, this lawyer didn’t seem to know that you have to show the error of the previous courts decision not remake your case.

    What point can I find that they probably should have won out on? From what the lawyer says overall I think I can tell what he is arguing because I’ve been arguing about something very similar in a case of mine. I however won the argument in my case and got the limitation tightened up. It seems that there is substantial disagreement amongst people about what parts are “extending from” what portions and if portions extending must be extending right from certain portions or not. This especially rears its ugly head when people use “above”, “below”, “near” etc. etc. when describing where the extending part is. I’m not sure about the estoppel stuff because they didn’t get into it, so it is possible that that may estop? his ability to argue. In which case of course the courts were right.

    Oh, and also JAOI, people don’t “steal” IP. They infringe it. The patentee still has the patent after all. Also, the judges abide by their oaths, but they’re only human, prone to mistake.

    It kind of seemed like the judges were pissed at Rat before they even got started, who peed in their coffee?

    Most of this post was from today but I forgot to hit post.

  67. 33

    Dear anonymous,

    “Just when I thought I was out… they pull me back in. …” “The Godfather” movie (o¿õ)

    Re:
    “First, I’m nearly positive that it’s Judge Rader’s voice asking about validity at 23:40.”

    I compared the Judge’s voice to an audio transcript I know was Judge Schall’s voice. I still could be wrong, and if I am mistaken, I owe Judge Schall an apology – Judge Schall, please accept my inadvertent mistake insofar as I may be mistaken.

    Re:
    “I can’t read his mind, but my guess is that the reason he asked the question is that in the vast majority of patent cases, the defendant makes the claim (either as a counterclaim or an affirmative defense) that the asserted patent is invalid.”

    I can tell you that from my personal experience, admittedly quite limited, that that is Just not so. Please consider this: District Court Judges resent de novo, and why shouldn’t they?; it is a lousy standard. But it is the LAW nonetheless.

    Why would a District Court Judge want to resolve the tacky issue of validity when claim construction gets reversed most of the time?

  68. 32

    “It is obvious to me that you do not know Judge Schall as I do; you have not been personally screwed as I have been.”

    It was more than thirty years ago, JAOI!! Judge Schall didn’t know that you and Susie were dating when he asked her to the prom. And beside, do you think Judge Schall slashed his own tires during the dance? It’s time to bury the hatchet.

  69. 31

    Last post of mine. It seems we’re indeed cross-posting.

    JAOI thinks that a question in the audio suggests that Judge Schall affirmed the noninfringement ruling because he thought the patents were invalid. He/she/it writes:
    —–
    As I wrote up thread,
    ‘And, at 23:40 on the audio track, Judge Schall let the cat out of the bag when he asked Defendant Bilco’s attorney,
    ‘Hey what happened to the validity issues?’ ’ ”
    ——

    My response is this:
    ———–

    First, I’m nearly positive that it’s Judge Rader’s voice asking about validity at 23:40. I can’t read his mind, but my guess is that the reason he asked the question is that in the vast majority of patent cases, the defendant makes the claim (either as a counterclaim or an affirmative defense) that the asserted patent is invalid.

    When an appeal shows up at the CAFC with no mention of validity, it’s an oddity, and it’s a fair question for the judge to ask. It’s rare that a defendant chooses not to challenge the validity of an asserted patent. It doesn’t affect the disposition of the case, but when a case appears at a court of appeals in an unusual posture, judges will often ask why.

    Your insinuation that the judges affirmed because they thought the patent was invalid is ridiculous, or at least unsupportable based on the audio.
    ——-

    And it’s back to work for me.

  70. 30

    JAOI, I wouldn’t hesitate to criticize (respectfully, of course) a CAFC judge, a Supreme Court justice, or anyone wearing a robe for that matter. I have done so on this very blog with respect to justices whose support I badly need in my case. The fact is that this appellant’s counsel did a very poor job on appeal.

    A lot of trial lawyers really don’t understand the appellate process. They think of an appeal as just another shot to persuade some decision-makers. It is not that at all. No matter what the standard of review (a concept this lawyer seemed not to understand with respect to the state law claims), it is the burden of the appellant to show exactly how the court below erred on the law.

    The judges were trying to understand just what the appellant was arguing; the appellant’s brief apparently left them with more questions than answers on that. Like someone stated above, it is not the appellate judges’ task to go find error — the appellant must show that. Here, the appellant’s counsel woefully failed to do that on both claim construction and the state law claims.

    Frankly, I’m surprised this wasn’t a Rule 36 affirmance.

  71. 29

    Dear anonymous,

    It seems we are cross posting. I’ll keep it short, I’m shot for now, and I have a heavy schedule tomorrow.

    Re:
    “2. The fact that the patents is presumed valid is irrelevant.”

    I think it was not irrelevant to Judge Schall. Perhaps therein lays our only disagreement. As I wrote above, I think

    “Rattler never got to ague or brief what was on Judge Schall’s mind; Rattler never got to argue the basis on which Judge Schall, in my humble opinion, tanked Rattler’s patents. As I wrote up thread,
    ‘And, at 23:40 on the audio track, Judge Schall let the cat out of the bag when he asked Defendant Bilco’s attorney,
    ‘Hey what happened to the validity issues?’ ’ ”

    Of course, I could be wrong now, but I don’t think so. Stay well my friend – thanks for the enlightened dialogue, yet again.

  72. 28

    JAOI writes:==========
    The courtroom, as I sure you will agree, is a place to practice and abide by prevailing LAW. And if a Judge cannot leave his/her personal opinions outside, they should step down.

    Phillips laid down solid LAW, an objective basis for claim construction. In Rattler, as far as the admittedly limited record to which I have availed myself shows, Phillips never entered the fray
    =================

    Phillips set out the general principles of claim construction. If the opinion in Rattler had been long and detailed, it almost certainly would have cited Phillips. Instead, the panel chose to write a short opinion, more in the nature of a Rule 36 affirmance than a detailed exposition and application of the law.

    If you think that (a) the panel was wrong on the merits, and (b) the reason it was wrong is clearly set out in Phillips, please explain. Otherwise, you’re just complaining about the length of the opinion. If all this is about is whether a losing party is entitled to a citation to Phillips and a mention of the inventor’s daughter, then this entire discussion is a waste of time.

  73. 27

    First, I’m nearly positive that it’s Judge Rader’s voice asking about validity at 23:40. I can’t read his mind, but my guess is that the reason he asked the question is that in the vast majority of patent cases, the defendant makes the claim (either as a counterclaim or an affirmative defense) that the asserted patent is invalid.

    When an appeal shows up at the CAFC with no mention of validity, it’s an oddity, and it’s a fair question for the judge to ask. It’s rare that a defendant chooses not to challenge the validity of an asserted patent. It doesn’t affect the disposition of the case, but when a case appears at a court of appeals in an unusual posture, judges will often ask why.

    Your insinuation that the judges affirmed because they thought the patent was invalid is ridiculous, or at least unsupportable based on the audio.

  74. 26

    Dear anonymous,

    Re:
    “3. All judges have personal beliefs–it’s hard to think about something in any depth without forming opinions.”

    Please, those kind of personal opinions, to which I think you are referring, have no place whatsoever in the courtroom. The courtroom, as I sure you will agree, is a place to practice and abide by prevailing LAW. And if a Judge cannot leave his/her personal opinions outside, they should step down.

    Phillips laid down solid LAW, an objective basis for claim construction. In Rattler, as far as the admittedly limited record to which I have availed myself shows, Phillips never entered the fray. Shame, shame on that Federal Circuit Panel. My heart goes out to Rattler, his daughter and the rest of his family, his friends, and lastly but certainly not least, to Rattler’s attorney. Don’t let the bastards get any of you down; you all did a most admirable job under the most onerous of circumstances.

  75. 25

    1. I typed “brief” when I meant “opinion.” My mistake. However, the briefs are available on Westlaw. I’m sorry if you can’t view that way.

    Corrected Opening Brief at 2008 WL 890927
    Red Brief at 2007 WL 4739062
    Corrected Reply Brief at 2007 WL 1771287

    2. The fact that the patents is presumed valid is irrelevant. As I read the opinion, the district court didn’t rule on validity; rather it ruled on infringement and held that the defendants didn’t infringe.

    3. In many other courts of appeals, weak cases don’t even get oral argument. As far as I can tell from the audio, the judges were courteous to the attorney. The judges have better things to do than coddle an attorney’s ego by writing an opinion that includes irrelevant facts about his client’s daughter.

    4. Looking at the briefs, though, I wonder how fair it is to fault the attorney here. The arguments were badly presented. BUT, I wonder if it might have been necessary for the attorney to raise this many issues. Remember (a) that he represents the patentee, and (b) that the district court found non-infringement.

    For example, if a claim has 3 elements, and the district court (based on its claim construction) found that the accused device had none of those elements, then the patentee necessarily has to raise 3 claim construction issues on appeal, unless there’s a common thread. It looks like Claim 1 of the ‘787 patent in this case had at least 6 claim elements on which the patentee lost…

    Though, maybe the patentee should have let that patent go in this case and gone with one of the other patents that was shot down a bit less thoroughly in the district court.

    On the other hand, if you need to prove 6 or 10 independent things to win a case, and you lose all of them at trial for independent reasons, maybe the appeal is a waste of everyone’s time.

  76. 24

    Dear anonymous,

    Re:
    “3. All judges have personal beliefs–it’s hard to think about something in any depth without forming opinions.”

    Please, those kind of personal opinions, to which I think you are referring, have no place whatsoever in the courtroom. The courtroom, as I sure you will agree, is a place to practice and abide by prevailing LAW. And if a Judge cannot leave his/her personal opinions outside, they should step down.

    Phillips laid down a solid LAW, an objective basis for claim construction. In Rattler, as far as the record to which I have availed myself shows, Phillips never entered the fray. Shame, shame on that Federal Circuit Panel. My heart goes out to Rattler, his daughter and the rest of his family, his friends, and lastly but certainly not least, to Rattler’s attorney. Don’t let the bastards get any of you down; you all did a most admirable job under the most onerous of circumstances.

  77. 23

    Dear anonymous,

    Re:
    “I’m sympathetic from good arguments from anyone, but not to unexplained personal attacks on judges made on a public website. If you’ve lost a case at Federal Circuit and feel wronged by it, I suppose that’s a partial explanation.”

    Thank you for your partially understanding. Perhaps you could carry your thought one step further. Perhaps it is possible that Rattler was not the only patentee to get judicially screwed. Perhaps Rattler was not the only inventor/litigant to spend most of his adult life inventing (as I have done) only to be judicially screwed. As I mentioned up thread,

    “The reason I believe Rattler got judicially screwed is that he did not get a fair judicial shake – he did not get his day in an honest courtroom, certainly not in the Federal Circuit courtroom.”

    Rattler never got to ague or brief what was on Judge Schall’s mind; Rattler never got to argue the basis on which Judge Schall, in my humble opinion, tanked Rattler’s patents. As I wrote up thread,

    “And, at 23:40 on the audio track, Judge Schall let the cat out of the bag when he asked Defendant Bilco’s attorney,

    Hey what happened to the validity issues?”

    Please, listen to it again, and see if you aren’t constrained to agree, or at least say it is likely, or even remotely possible, that Rattler got judicially screwed by Judge Schall – in this case, he wrote the opinion about which I am complaining. And, with that in mind, then listen to the whole oral transcript and see if you don’t agree with my original premise:

    “The reason I believe Rattler got judicially screwed is that he did not get a fair judicial shake – he did not get his day in an honest courtroom, certainly not in the Federal Circuit courtroom.”

  78. 22

    Dear anonymous,

    Re:
    “On whether the appeal was DOA, I don’t know, but if the arguments were only cursorily made (which is the impression I get from the brief), then that’s a good reason for supposing that the appeal was DOA.”

    Which brief? If you would share it, I’d like to consider my position further.

    Be that as it may, “it takes two to Tango.” To me, it sounded like not one of the Panel members was interested anything but tanking the patentee’s PRESUMABLY VALID patents from the onset of the oral argument. If there was a valid reason for the Panel’s “tanking attitude,” please tell my what that reason may have been.

    If the attorney for Rattler was doing so poorly, as some here think, how could these three Justices not have acted humanly, and, for example, commented about his the inventor’s daughter being chosen as an astronaut, or in some other way have show some semblance of courtesy. I have heard attorneys make complete asses of themselves at various hearings, and yet they were ALWAYS treated courteously by the court. Not here, however; this particular Panel, for some reason unknown to me, perhaps some inexplicable reason, this particular Panel was rude and seemed to bend over backwards to display not one semblance of courtesy or consideration.

  79. 21

    I’m sympathetic from good arguments from anyone, but not to unexplained personal attacks on judges made on a public website. If you’ve lost a case at Federal Circuit and feel wronged by it, I suppose that’s a partial explanation.

  80. 20

    JAOI writes: “Judge Schall believed the patent was invalid, an ill effect of KSR (I think e6K, to his credit, picked up on that), and because of years of pejorative Patent Troll propaganda spread by the Patent Pirate Coalition for Patent Fairness and, yours truly, Cisco Systems and its Cisco’s unscrupulous IP Director et al.”

    I doubt it. Please leave individual judges out of your general rants about the Supreme Court’s recent patent cases.

    PDS writes:

    “[1] whatever result you want, you can get based upon the case law out there. [2] As such, where the case law is little assistance in choosing between affirm/overturn, then the case is going to come down on some other issue” (numbers added).

    (2) doesn’t necessarily follow from (1), and (1) is at least in part a product of lawyers’ tendency to string together sound bites when they write briefs.

  81. 19

    Dear anonymous,

    Re:
    “That said, I wish you wouldn’t slander Judge Schall. In my limited experience, he’s an excellent judge and a person of integrity. Please either explain yourself or take it back.”

    It is obvious to me that you do not know Judge Schall as I do; you have not been personally screwed as I have been. If you did and had been so screwed, I am confident you would feel differently. I will never take it back until Judge Schall does right by me first, and that’s not going to happen. I know how that must sound, a bit edgy to say the least, but please understand where I’m coming from.

    Are you sure under these circumstances I can actually “slander” a public figure like Judge Schall? If so, Just wait till you see what I’m preparing for later this week, God willing.

    “anonymous,” I sense that you are sympathetic to us independent inventors’ plight; you are our friend, and I hope that never changes.

  82. 18

    “In this case, I see no reason why anyone would care for one result rather than another. It sounds like Rattler just didn’t present very good arguments. If you, or JAOI, or anyone else has a good argument to the effect that Rattler should have won, and that that should have been obvious to anyone no matter how badly the argument was presented, please put it out there for us.”

    Judges are human. Maybe the judge didn’t like the way some party looked or smelled; maybe the judge was insulted by a particular argument; maybe the judge just thought that one party had acted unfairly … whatever … I’ve read enough claim construction cases to know that whatever result you want, you can get based upon the case law out there. As such, where the case law is little assistance in choosing between affirm/overturn, then the case is going to come down on some other issue. As is said, it is what it is.

    I don’t care about this case, the arguments, or who should have won (the case could have been properly decided for all I know). I didn’t read it or need to read it. I was just responding to JAOI.

  83. 17

    Dear anonymous,

    Re:
    “In this case, I see no reason why anyone would care for one result rather than another. It sounds like Rattler just didn’t present very good arguments.”

    Judge Schall believed the patent was invalid, an ill effect of KSR (I think e6K, to his credit, picked up on that), and because of years of pejorative Patent Troll propaganda spread by the Patent Pirate Coalition for Patent Fairness and, yours truly, Cisco Systems and its Cisco’s unscrupulous IP Director et al.

  84. 15

    1. We agree. No comment.

    2. On whether the appeal was DOA, I don’t know, but if the arguments were only cursorily made (which is the impression I get from the brief), then that’s a good reason for supposing that the appeal was DOA.

    As for whether different panels might decide the same claim construction question differently, I agree that they might, but that–in my view–is explained by difficulty of claim construction and the vagueness of some of the law in that area (see my comment at 4:11pm), not on the relative willingness of judges to follow the law. I think they all try to follow Cybor faithfully as it’s still good law.

    3. All judges have personal beliefs–it’s hard to think about something in any depth without forming opinions.

    That said, I wish you wouldn’t slander Judge Schall. In my limited experience, he’s an excellent judge and a person of integrity. Please either explain yourself or take it back.

    4. You don’t seem to disagree with what I’ve said, so no comment.

  85. 14

    Dear anonymous,

    Re:
    “If you, or JAOI, or anyone else has a good argument to the effect that Rattler should have won, and that that should have been obvious to anyone no matter how badly the argument was presented, please put it out there for us.”

    No, I don’t have an opinion as to whether or not Rattler’s patents were infringed. I mentioned earlier that:

    “It is possible Rattler’s patents were not infringed, but no one will ever know the truth one way or the other – Justice was not served.”

    The reason I believe Rattler got judicially screwed is that he did not get a fair judicial shake – he did not get his day in an honest courtroom, certainly not in the Federal Circuit courtroom.

  86. 13

    Dear anonymous,

    Thanks for your comment and the correction.

    1. Cybor. Yes, I see my mistake. I should have read further in the link I provided.

    2. I for the most part do not disagree.
    Notwithstanding, I maintain that different Federal Circuit Panels would render radically different opinions. Do you disagree with this part of my comment:

    “…some Federal Circuit Panels would uphold a given patent while some other Panels, operating with the same IDENTICAL (as in “My Cousin Vinny”) record, would not, i.e., some Panel’s do do de novo and some do not. Some Panels obey the law, and some are not so inclined.”

    I can’t agree about Rattler’s case being DOA – there is not enough record for me to come to that conclusion. I think the Panel’s members were “not as hot as all get out”; it sounded to me like they had no knowledge or understanding of most of the claim construction issues, and worse, nor did they care to learn.

    3. I have reason to distrust Judge Schall’s opinions, but I’ll save that for another day. Judge Schall is unabashed about revealing his personal beliefs, the ones he bases his opinions on notwithstanding what’s actually being litigated. When he asked, “Hey what happened to the validity issues?” I believe that was “all he wrote” for Rattler.

    I agree with your comment in most respects, and I am thankful to have my mistakes corrected, but, with all due respect, I still believe that any unjust patent jurisprudence, as in this Rattler case, is akin to aiding and abetting a patent pirate’s theft of a citizen’s valuable property — it parallel’s in meaningful ways prosecuting and imprisoning innocent citizens with poverty, citizens whose only “crime” is To promote the Progress of Science by inventing, publishing and patenting their Discoveries.

    I must tell you in all fairness, Just in case you think I am objective about these matters — I am biased because I have/had a dog in these kinds of fights.

    4. With all due respect to Mr. Dhuey, I believe he speaks as if he has a dog in these fights too, as well he should. I believe in all likelihood his client’s Supreme Court case will be decided favorably, and Mr. Dhuey’s client’s case will be back in front of the Federal Circuit. He’d be remiss to pss off any of the Federal Circuit Justices. Mr. Dhuey is Just playing it safe. That’s his call, and he has every right to do so, and I respect him for it. Frankly, I don’t think he trust’s these Judges to abide by their Oaths any more than I do.

  87. 12

    pds, I disagree.

    Claim construction is often difficult, the precedents surrounding it are more in the nature of standards than rules (i.e. when are you “reading a claim in the context of the specification” rather than “reading a limitation from the specification into the claims”), and it can be difficult to explain the analysis in a way that can’t be aptly criticized as result-oriented. Much of the disagreement in claim construction cases–as in other types of cases interpreting legal documents–is just how much ambiguity a term needs before one needs to limit it through “context.”

    In this case, I see no reason why anyone would care for one result rather than another. It sounds like Rattler just didn’t present very good arguments. If you, or JAOI, or anyone else has a good argument to the effect that Rattler should have won, and that that should have been obvious to anyone no matter how badly the argument was presented, please put it out there for us.

  88. 11

    JAOI:

    I made this point a long time ago when it comes to claim construction at the Federal Circuit … they (the FC) do whatever they want when it comes to claim construction so as to get the result they want. The case law is all over the place, so all one need to do is pick and choose the relevant case law that fits his/her particular argument.

    It is what it is ….

  89. 10

    “his client has a total of 10 issued patents (only one of which has anything to do with the case at hand), and that the inventor’s daughter is also an inventor.”

    Maybe he was trying to impress Judge Rader.

  90. 9

    “These kinds of horrendous District Court and Federal Circuit Opinions, which can destroy an inventor’s life’s work and render him penniless deep in debt, are becoming more and more frequent, like a fast growing malignant cancer blight on the American patent system.”

    If only that hyperbole could be converted into engine fuel, all our problems would go away.

  91. 8

    1. JAOI, you’re thinking of Cybor, not Markman. Markman held that claim construction doesn’t have to go to a jury.

    2. The CAFC has to consider every argument made on appeal, but doesn’t have to address each argument at length in a written opinion. Otherwise, Rule 36 affirmances wouldn’t be allowed. Also, the appellant has some responsibility to develop its arguments, or they’re constructively waived. You can’t just file a brief saying “the district court’s claim construction was wrong; please examine the evidence and arguments presented at the Markman hearing and revise as you see fit.” In principle, the quality of one’s lawyer shouldn’t make a huge difference in outcomes for a litigant, but in practice it certainly does. I don’t know if a better attorney could have gotten a reversal out of the CAFC, but this one sounds like it was DOA, and it’s not the court’s responsibility to do the appellant’s work for him.

    3. A judge’s statement that the law should be changed is clearly not the same thing as a statement that the judge will refuse to apply the law as it currently stands.

    4. Generally, I agree with Mr. Dhuey about the argument. I’ve heard much worse, but the attorney sounds like he’s a bit out of his element arguing an appeal in a patent case. On the reference to the inventor and his daughter, the guy seems to have been making an argument that his position was consistent with policies underlying the patent law (“protecting inventorship”)–which isn’t bad form in an argument, but doesn’t sound like it was executed very well.

  92. 7

    Gentlemen, with all due respect, I disagree. I believe

    RATTLER GOT JUDICIALLY SCREWED – his patents were tanked for reason extrinsic to the litigation! It is possible Rattler’s patents were not infringed, but no one will ever know the truth one way or the other – Justice was not served. RATTLER GOT JUDICIALLY SCREWED down below and in front of this particular Federal Circuit Panel. (I’d like to know if the Rattler patents were invented by an independent inventor, and if his daughter, who invented a weight lifting exercise machine that will be used on the moon, has really been selected as an astronaut to go the moon.)

    I listened to the oral argument and read the Panel’s lousy 4 page opinion and took a quick look at some of the Rattler patents-in-suit. Rattler’s attorney never had a chance at patent Justice – this Panel’s opinion was a result-oriented judicially dishonest opinion.

    From a claim construction view, for example, under the CAFC’s 1996 en banc Markman I ruling, which was UNANIMOUSLY affirmed by the Supreme Court in Markman II, the law REQUIRES that EVERY Federal Circuit Panel give claim construction de novo review.
    link to library.findlaw.com

    Today, many District Court Judges and Federal Circuit Judges, and many practicing patent professionals, don’t agree with Markman I & II. Notwithstanding, Markman I & II MUST BE OBEYED BECAUSE IT IS THE LAW. I will get to the Rattler “rubs” (as in, here’s the rub) shortly.

    De novo claim construction review was the 7th question in the en banc Phillips v AWH case:
    “7. Is it appropriate for this court to accord any deference to any aspect of trial court claim construction rulings? If so, on what aspects, in what circumstances, and to what extent?”

    The en banc Federal Circuit Phillips Court did not answer the 7th question about de novo review – it did nothing to change Markman I & II. Clearly, the Phillips Court could have, and many thought it should have, but it did not. I’d guess the Federal Circuit is afraid of being chided, reprimanded or worst (e.g., disbanded), by the Supreme Court (or Congress) — it is common knowledge that there is no love lost between these two courts.

    Remarkably, despite these circumstances, the en banc gutless Phillips opinion compounded this messy de novo matter. Here is the Phillips “rub”: Justices Lourie and Mayer wrote separate opinions, and Justice Newman joined both.

    Justice Lourie wrote:
    “Finally, even though claim construction is a question of law, reviewable by this court without formal deference, I do believe that we ought to lean toward affirmance of a claim construction in the absence of a strong conviction of error.”

    That, of course, to any casual observer, is an in your face declaration that Justices Lourie and Newman will, when they so chose to, IGNORE the Federal Circuit’s and the Supreme Court’s Markman I & II de novo LAW and go by their own standard, i.e., the “clear error” standard. Something stinks on Lafayette Square, and I don’t mean the White House. Either a Judge abides by the LAW and honors their oath of office, or steps down on principle.

    Justice Meyer wrote:
    “Instead, all patent cases could be filed in this court; we would determine whether claim construction is necessary, and, if so, the meaning of the claims. Those few cases in which claim construction is not dispositive can be remanded to the District Court for trial. In this way, we would at least eliminate the time and expense of the charade currently played out before the District Court.
    Eloquent words can mask much mischief. The court’s opinion today is akin to rearranging the deck chairs on the Titanic—the orchestra is playing as if nothing is amiss, but the ship is still heading for Davey Jones’ locker.”

    Today we have a clear legal incongruity that makes Justice in a patent case willy nilly, meaning that some Federal Circuit Panels would uphold a given patent while some other Panels, operating with the same IDENTICAL (as in “My Cousin Vinny”) record, would not, i.e., some Panel’s do do de novo and some do not. Some Panels obey the law, and some are not so inclined. It is clear to me that this Rattler Panel did not.

    Rattler’s attorney assumed, and rightly so, that the Panel would give the many claim construction issues he raised de novo review. This Panel did not—Rattler did not have a chance at patent Justice. Rattler and his attorney got screwed. Here is the last paragraph of the Rattler opinion; you be the Judge:

    “On appeal, Rattler contends that the District Court erred in its construction of twelve of the thirteen limitations of the ten claims at issue. It requests a different claim construction for each of these limitations. Rattler urges us to remand the case to the District Court for it to conduct an infringement analysis of each asserted claim based upon what it argues is the correct claim construction. Rattler also contends that we should reverse the District Court’s dismissal of its state law claims. WE HAVE CONSIDERED ALL OF RATTLER’S ARGUMENTS. HAVING DONE SO, WE SEE NO REASON TO DISTURB THE CAREFUL AND THOROUGH POST-TRIAL DECISION OF THE DISTRICT COURT. WE THEREFORE AFFIRM THE JUDGMENT OF THE COURT IN FAVOR OF APPELLEES DISMISSING RATTLER’S CLAIMS.” (emphasis added)

    Here the thing:

    —————THE RATTLER RUBS —————

    Listening to the audio track,
    link to cafc.uscourts.gov
    it became apparent to me that at least two of the Judges were confused on various fundamental patent issues underlying Rattler’s argument.

    Moreover, at 22:40 min. on the audio track there is some kind of anomaly regarding a second non-patent component of the case, i.e., trade secret misappropriation and unfair competition under Louisiana state law. One of Defendant Bilco’s attorneys dances around the District Court’s upholding in his favor that no testimony was required from a witness because that witness’ testimony would be an “admission against interest” of the Defendant. Now, here’s where I’m speculating – that Just doesn’t seem fair and equitable in a case intricately involving patents. If a witness’ testimony would or might make the patentee’s case, the District Court should have subpoenaed that witness and commanded such testimony.

    And, at 23:40 on the audio track, Judge Schall let the cat out of the bag when he asked Defendant Bilco’s attorney,

    “Hey what happened to the validity issues?”

    It is clear to me from listening to this and other Federal Circuit audio tracks that Judge Schall’s opinion tanked Rattler’s patents because Judge Schall believed Rattler’s patents were invalid for some unspoken reason(s) THAT WERE NEVER LITIGATED, NEVER BRIEFED and WERE NOT IN FRONT OF THE PANEL.

    Claim construction was not reviewed de novo, and issues extrinsic to the litigation prejudiced the Panel’s opinion. Rattler’s attorney did the best he could in front of a result-oriented judicially dishonest Federal Circuit Panel.

    RATTLER GOT JUDICIALLY SCREWED.
    These kinds of horrendous District Court and Federal Circuit Opinions, which can destroy an inventor’s life’s work and render him penniless deep in debt, are becoming more and more frequent, like a fast growing malignant cancer blight on the American patent system.

    I could be wrong now, but I don’t think so (another “Monk-ism”):
    In terrible ways, this kind of unjust patent jurisprudence is akin aiding and abetting a patent pirate’s theft of a citizen’s valuable property, and even worse — it parallel’s in meaningful ways prosecuting and imprisoning innocent citizens with poverty, citizens whose only “crime” is To promote the Progress of Science by inventing, publishing and patenting their Discoveries.

    ————— * * * * * —————

    Our Founding Fathers’ would vomit if they knew how frequently today’s government Officials betray their Oaths of Office and Our Constitution.

  93. 6

    I didn’t listen to the arguments, but as everyone does (or should) know sometimes you just have a weak case, and you have to do the best that you can. I remember one Patent Office interview (the only one) where I was laughed at by the Examiner, because she thought the argued point of novelty was trivial. But it was in tens of millions of dollars worth of printers and/or copy machines (cannot recall which one), and it was my job to try to obtain patent protection for the improvement.

  94. 4

    Nah, G, the appellant’s counsel seemed like a fine Southern Gentleman, and I don’t think he’d even think something like that. I’ll bet he’s a good trial lawyer. Appellate work just isn’t his strong suit, though.

  95. 3

    Somebody wrote that appellant had screwed up by saying:”sir, I mean ma’am”

    On the bright side, it’s better than, “you friggin b–ch”.

  96. 2

    I hope you’ve got the nine’s genders down AD.

    When you’re there if you could say thanks for KSR I’d be much obliged.

  97. 1

    For a painfully weak appellate argument, listen to the oral argument. Appellant’s counsel should be grateful the court was vague in its rejection of his arguments.

    A couple of goodies:

    — even though appellant was doing horribly on the merits, he takes time out of his oral argument to mention that his client has a total of 10 issued patents (only one of which has anything to do with the case at hand), and that the inventor’s daughter is also an inventor. The daughter will soon being going into space (indeed, to the Moon!).

    Apparently both dad and daughter were in the CAFC courtroom for this. I hope they had more enjoyable things to do in their trip to Washington.

    — appellant’s counsel addresses a female visiting judge as “sir, I mean ma’am”.

Comments are closed.