Judge Kara Stoll Confirmed by Senate

The Federal Circuit will very soon return to its full-strength of 12 circuit court judges.  The Senate has confirmed Kara Stoll’s nomination as the next Circuit Judge for the Court of Appeals for the Federal Circuit with a 95-0 vote.  Ms. Stoll will likely be sworn-in within the next few days. Congratulations!

Stoll has a serious patent-law resume, holding a BSEE from Michigan State and a JD from Georgetown earned while working as a patent examiner.  After law school she clerked at the Federal Circuit and then joined the Finnegan Henderson firm where she has worked since 1998. Of late, her practice has primarily focused on patent litigation.

Counting Ms. Stoll, the Court boasts seven Judges appointed by President Obama (a majority).   It will be interesting to watch Stoll’s jurisprudence develop. Her background has many parallels to Judge Chen, although her PTO experience was at the very beginning of her career while he joined the PTO as a fairly senior leader.

72 thoughts on “Judge Kara Stoll Confirmed by Senate

  1. I think we all know by now that Obama has stacked the Fed. Cir. with big corp nominees to weaken the patent system. Stoll is a token to replace Rader. We can expect many years of Google driven decisions that are not logically consistent and have a seeming purpose to weaken the patent system at each step. We can also expect that the science exhibited by these non-science judges would make Newton’s and Einstein’s head twist right off.

    1. Agreed. I have asked many times how is purified DNA in a test tube any more “information” than any drug in a tablet (eg Insulin, Vitamins, Pencillin). Like DNA any chemical can be represented on a piece of paper. Anyone with basic organic chemistry would know that. Does it make all drugs “information”?

      link to patentlyo.com

      “….because its claim is concerned primarily with the information contained in the genetic sequence, not with the specific chemical composition of a particular molecule.”

      But neither is Insulin, Vitamins, Antibiotics…the list can go on. Many of the cases, they start out with a wrong premise such as earth is flat, and then the results are very confusing and you cann’t really apply in real world because earth is infact not flat.

      1. The answer of course is painfully simple: what does the words of Congress actually say?

        101 breaks down into two very simple things:
        1) utility (the right kind, i.e., Useful Arts)
        2) loosely fit into broad categories (see Chakrabarty)

        That’s it.

        It is only when you introduce Nose of Wax mashing (judicial activism) that the gamesmanship begins.

        1. I think the Royal 9’s judicial exceptions are fabricated nonsense. They have taken on a life of their own and become essentially a way for the Royal 9 to dictate public policy.

          Let’s be clear: the Royal 9 are not doing statutory construction but are telling us that the judicial exceptions are unconstitutional. Think about that. Really? Unconstitutional? So, all you information processing patent h@ters should think about that. Unconstitutional? That makes no sense. That can’t be right.

          1. Let’s be clear: the Royal 9 are not doing statutory construction but are telling us that the judicial exceptions are unconstitutional.

            When did the “Royal 9” do this, Night?

              1. Hey, I just asked a question. You said that the Supreme Court has told us that the judicial exceptions are unconstitutional. If you can’t back that up, then just say so. Or perhaps explain what you meant.

        2. “New” or “Improved” is there too. New is absolute as we found out in Myriad.

          Improved must actually mean something as well. The courts actually looked for functional improvement until a man named Rich threw a monkey wrench into the system and gave us the “objective test” of the opinions of one of ordinary skill in the art, whoever that is.

      2. Is thia rhetorical, or do you truly not understand how DNA is more “information like” than polypeptides, much less nonlinear molecules?

        1. Maybe it is more information like, but really? I would like to see a much more in depth analysis that looks at the mental models the justices are building of various interactions.

          The Royal 9 seem to believe that things to do with the human body are “laws of nature,” but say this isn’t true with a car.

          1. Is there anyone who doesn’t want further explanation of subject matter eligibility?

            I was simply interested in “scientist”‘s criticism of SCOTUS’s understanding of science. The last similar comment I saw was Gene Quinn’s ravings about how a segment of DNA couldn’t be both naturally occuring and man made.

      3. Scientist,
        Assuming you were pretending to be dense about the difference in complexity between specifying insulin vs a strand of DNA…

        DNA is “concerned with information” because it is a coding medium for other molecules. Insulin’s composition and stereochemistry gives it a biological function other than just making another molecule.

        1. “DNA is “concerned with information”…”

          When did the congress amend USC 101 and said anything “concerned with information” is not patent eligible. You are not even saying it is information, but “concerned with information”. To be honest I do not know what it means. A hard drive is “concerned with information”. A communications satelite is “concerned with information”. Are they patent ineligible too?

          Coming back to actual statute:

          composition: They are both compositions
          useful: They are useful. If not there would not have been infringment and court case. DNA test is covered by health insurance. Surely that evidences medical utility.

          You don’t even contend the facts that both are chains of molecules extracted from body for medical utility and come up with this “concerned with information”!

          1. “Concerned with information” can easily be seen as a form of utility.

            Seeing as utility is actually a requirement under 101, those seeking an improper ban can easily be seen as anti-patent.

            Note that pure information is NOT the issue – no matter how much certain people will try to obscure things and kick up that dust cloud.

            The Claim-As-A-Whole already takes care of what merely amounts to a “mere aggregation” concern.

        2. Alexander,

          The point here is that “information-like” and “concerned with information” is nothing but a strawman, as that simply is not the pertinent question when it comes to the words of Congress in 101.

          1) – utility, and
          2) – broadly fitting at least one of the categories.

          What you see is the misalignment and malformation of Nose of Wax mashing in order to turn the wide open gate of 101 into an improper “we don’t like that type of innovation.

          We have turned actual words into (the ad hominem like) “hyper-textual” at the same time allowing a different and unauthorized branch to “implicitly” – and in Alice, explicitly – add words not even there.

          If the actual words of Congress are “hyper,” what then of these additions? What is “beyond hyper”…?

    2. Night, Ms. Stoll has a BS EE from Michigan State. She has been and examiner, a clerk on the Federal Circuit and a patent litigator. From your many posts on the ideal Federal Circuit judge, Ms. Stoll fits your profile.

      So why are you attacking her?

      1. Ned, she is the best one so far by Obama the destroyer, but —let’s be candid–she is an average intellect and does not have a good personality.

        So, what Obama did was at the very end throw us Stoll as a bone knowing that she isn’t smart enough to combat the SCOTUS or the Google majority on the Fed. Cir.

        So, Obama wipes the Fed. Cir. clean of science and patent law. (And I voted for the bum twice.)

  2. Here is one public bio:
    ““Kara Farnandez Stoll is a partner at Finnegan, Henderson, Farabow, Garrett and Dunner, LLP in Washington, D.C. She has extensive experience in patent litigation, having represented clients at both the district and appellate levels, and has served as lead counsel on a number of cases before the United States Court of Appeals for the Federal Circuit.
    “Stoll received her B.S. in electrical engineering in 1991 from Michigan State University and her J.D. in 1997 from Georgetown University Law School. After graduating from college, Stoll worked as a patent examiner at the United States Patent and Trademark Office from 1991 to 1997. From 1997 to 1998, Stoll clerked for Judge Alvin Schall of the United States Court of Appeals for the Federal Circuit. . . . her practice focuses on patent litigation, primarily in the consumer electronics, computers, software, and medical devices industries. . ”

    BTW, if you remember Bob Stoll from his important PTO positions before he retired from the PTO, Judge Kara Stoll is his sister-in-law.

  3. MM is so giddy that he is posting the news about the BRI on a number of article’s comments section.

    We all know you are very happy today MM. Do you get a bonus today from your Google ?

    I also think it is bad news for Ned’s constitutional challenge at the federal circuit.

    It seems 6 of the judges have been bought by Google and they will not go against their su gar d add y / Google. (No matter how many other industries file amici curiae criticizing the rules

    With language like :

    “Interference proceedings are adjudicatory”

    AND

    “apply a –variant– of the broadest reasonable interpretation standard”

    The best Ned can hope for is 6/5 against him. And then we are on to Supreme Court…

    We will see how many of the same judges go against Ned.

    Ned what are your thoughts ?

      1. MM : then tell us who do you work for and get a pay check from ?

        Did you mo ther smo ke crack when she had you ?

        1. then tell us who do you work for and get a pay check from

          I work for the Liberal Liberation Army, one of the oldest underground political groups on the planet. The ultimate goal is to focus all governmental and private resources on the promotion of human-turtle marriages. Patent systems, obviously, interfere with that goal. Hence, the work I do here.

          1. So you mean Google .. wink wink ..

            I understand you can’t say it because then you will loose your paycheck ..

            right Got it ..

    1. 6 of the judges have been bought by Google

      LOLOLOLOLOLOLOL

      Yes, that must be what’s going on.

      Just fyi: this sort of completely off-the-charts conspiracy-theory kookiness is one of the key reasons (but surely not the only one) that the patent maximalists have steadily lost traction over the years. Blame your losses on the Kenyan usurper! He’s an anti-patent Amish communist!

      LOLOLOLOL

      1. Did I say anything about Kenya or Communist ?

        NO

        writing LOL number of times does not make you intelligent ….

        It has nothing to do with Obama .. and everything to do with Google

        Google will fund the next administration whoever he/she is … to get the desired corporate results ..

        It is not Personal .. it is Business ..

        But in your distorted mind mainly because of your mo th er

        1. Google will fund the next administration whoever he/she is … to get the desired corporate results ..

          Fascinating. Was Google responsible for Justice Roberts and Alito and the Citizens United decision? Or is Google’s awesome superpowers limited to changing the patent laws?

          Another serious question for you: did you poll test this ridiculous “blame Google for everything” strategery, or did you just latch onto some patent maximalist blog comment like a pitbull because it was easy to remember?

          1. Did I say “Google responsible for Citizens United decision”

            NO !

            Did I “Blame Google for everything”

            again NO !

            Google is against Patent and they have worked to influence the Senate and the House to push thru the Patent Reform Bill that is not liked by a lot of the companies , except few silicone valley companies.

            Google has installed Michell Lee at the USPTO for a reason and that reason is to weaken our Patent system.

            I am NOT some patent maximalist BUT I am for a fair and Strong Patent system for both parties.

            Again calling me “pitbull” tells me one more thing about your mo th er … that is she was a crack smok ing bi tch

            1. Google is against Patent

              That’s odd. They’ve never said anything of the sort. And they sure file a lot of junky patents for a company that is “against patents.”

              Google has installed Michell Lee at the USPTO for a reason and that reason is to weaken our Patent system.

              ROTFLMAO. And your evidence for this is what exactly?

              I am for a fair and Strong Patent system for both parties.

              That’s nice. I am for the rational use of capitalization.

              [shrugs]

              1. MM : “They’ve never said anything of the sort”

                Keep us with what your Boss is saying or you might get fired .

                link to talkandroid.com

                “Google’s Sergey Brin discussed several changes to U.S. patent law during a recent onstage presentation. Some of the sweeping changes he would like to see include the elimination of business process patents, a requirement that a patent holder actively use the patented technology, and significantly reducing the time allowed for patent protection to exist.”

                Google wants to change our Patent System and want to work with the administration to make that change.

                link to googlepublicpolicy.blogspot.co.uk

                “And the meetings we did have were not to discuss the antitrust investigation.
                In fact, we seem to have discussed everything but, including patent reform”

                More on Google Lobbying effort for Patent reform. And money spent by Google Lobbying

                link to washingtonpost.com

                This does not include the PR funding for the Patent reform effort.

                again I understand you don’t want to admit to anything ..because you are paid by Google .. but for the rest of us .. we can see it clearly ..

                I can show you all the information i want but you will never see it .. as they say …

                You can lead a horse to water, but you can’t make it drink

                [shrugs]

                1. MM knows all this. I’ve linked to numerous articles about Google including one from FT about Google topping Goldman Sachs for lobbying. Google admitting that they are one innovation away from losing 90% of their revenue.

                  Etc. No one can believe that Obama has appointed this group of federal circuit judges as anything but a group meant to burn it down.

                  Seriously, look at them: 1 out of 7 with real world patent experience. 2 out of 7 with a science background. Obama has stacked the Federal Circuit and we see it in their opinions that are riff with ignorance and antipathy towards patents.

                2. I’m reluctant to feed the trolls, but how do you make the leap from (1) Google is lobbying for changes in the patent system and its former counsel now leads the PTO, to (2) “It seems 6 of the judges have been bought by Google”?

                  I have no love for this president, and one can quibble with individual nominees, but as a group they’re pretty solid. And I’m not aware of any evidence that any has been “bought by google”

                3. DCL: we would have to take the judges one by one. But, each of them except of O’Malley and Stoll were anti-patent before being appointed.

                  And, they are not qualified as a group to sit on the Fed. Cir. They don’t have science backgrounds or any background where they have exposure to innovation or technology.

                  Hughes is a good example of a person that comes from a background of anti-patent (DOJ) and no science or innovation. How can such a person hope to understand any of the issues before him when he has zero real experience with any of the issues.

                  He was clearly someone that exhibited a willingness to be tough on patents for the appointment. I am sure that he is not personally purchased by Google, but that Google’s lobbyist selected him for Obama or approved of him.

                  How in the world do we get to a place where the president appoints 1 out of 7 with real world experience? Lobbying is the only answer. People with Stoll’s background are clearly the type of person intended to be appointed to the Fed. Cir.

                4. And I can’t reproduce all the nonsense we have seen from the Fed. Cir. in a blog post, but consider Taranto saying that merely simulating human thought is per se ineligible.

                  That holding (non precedential) exhibits such an ignorance of science and technology that there is simply no basis for discussion. (At the same time the Google judge wrote this European scientist said that we knew so little about how the human mind works that there was no point in trying to simulate human thought yet.)

                5. Hughes, Reyna, and Wallach have expertise in other parts of the Federal Circuit’s docket.

                  The court also hears trade cases, Merit Systems Protection Board cases, veterans cases, and a few other things. Before the Reyna and Wallach appointments, the court had zero judges with experience in that area. Of course, that means that judges with no patent experience must learn and decide patent cases, but they’re both smart lawyers and seem to be figuring it out. Most of the rest of the judiciary is generalists anyway.

                  Hughes comes from the part of DOJ that appears most frequently before the Federal Circuit. Having an active judge with DOJ experience is a plus. Some comments suggest that this this means there’s a pro-DOJ bias. Perhaps, but it also means that he knows how DOJ works and can tell when the government’s dissembling.

                  I doubt these 3 were appointed “to burn it [the patent system] down”; more likely they were appointed with an eye to the non-patent parts of the court’s jurisdiction.

                  O’Malley, Chen, Stoll, and Taranto seem to be at least part of a good cross-section of the right group to decide patent cases. O’Malley is an experienced ex-district judge (which the CAFC has sorely needed for a long time) who is one of the best writers on the court. Chen has an EE degree and knows better than anyone else on the court how the PTO works. Stoll and Taranto are both from private practice and I *think* they were more often on the patentee side of litigation than most large firm lawyers usually are. Stoll has a technical degree, and Taranto was one of very best appellate lawyers for patent cases before he was appointed.

                  As far as I can tell, the main thing driving the appointments has been competence and coverage of the full spectrum of the CAFC’s docket. I don’t see any evidence that anyone was “bought by Google.” I’m sure that some or all of these folks are well connected, just like most people who get appointed to the judiciary, but this “bought by Google” theory that keeps floating in the comments has thus far not come with any evidnece.

                6. dcl:

                  From what I know, Obama at first was for a strong patent system. O’Malley was appointed before Obama turned. Kappos was removed by Obama.

                  The other judges from what I know all had a history of being anti-patent and science illiterate. Chen has a science background but was anti-patent at the PTO in the solicitor’s office. I think Chen has mellowed a bit.

                  But, note, only Stoll has real world experience in the patent world (Chen was a junior associate for two years).

                  That is an abysmal record for the Fed. Cir. You can go through their records and say they are impressive people and they are, but not for patents or the Fed. Cir. And once Obama turned anti-troll all the nominees were anti-patent except Stoll.

                  And, yes, I am quite sure that this lot has been selected by big corp (or at least approved by.) Stoll is the exception as she was the replacement of Rader.

                  And, I don’t know what world you are living in, but in the real world Google is spending more than Goldman Sachs to get what they want from the White House.

                  I note you don’t respond to the abysmal science form this lot. Nor does it make sense to say they are rounding out the Fed. Cir. to get experience in other areas. There are plenty of patent people with real world experience and science backgrounds that would have met those criteria.

                7. >Hughes comes from the part of DOJ that appears most frequently before the Federal Circuit. Having an active judge with DOJ experience is a plus.

                  DCL: the DOJ is and has been for a long time anti-patent. Hughes is anti-patent, which is no surprise coming from the DOJ.

                  I am surprised you don’t know this.

              2. MM : “They’ve never said anything of the sort”

                Keep us with what your Boss is saying or you might get fi red .

                link to recode.net

                Watch the video

                link to talkandroid.com

                “Google’s Sergey Brin discussed several changes to U.S. patent law during a recent onstage presentation. Some of the sweeping changes he would like to see include the elimination of business process patents, a requirement that a patent holder actively use the patented technology, and significantly reducing the time allowed for patent protection to exist.”

                Google wants to change our Patent System and want to work with the administration to make that change.

                link to googlepublicpolicy.blogspot.co.uk

                “And the meetings we did have were not to discuss the antitrust investigation.
                In fact, we seem to have discussed everything but, including patent reform”

                More on Google Lobbying effort for Patent reform. And money spent by Google Lobbying

                link to washingtonpost.com

                This does not include the PR funding for the Patent reform effort.

                again I understand you don’t want to admit to anything ..because you are paid by Google .. but for the rest of us .. we can see it clearly ..

                I can show you all the information i want but you will never see it .. as they say …

                You can lead a ho rse to water, but you can’t make it drink

                [shrugs]

                1. Also, Google has said their competitive advantage is size–their infrastructure. They have also been in trouble for anti-trust violations for the size and for conspiring not to hire others’ employees.

                  All of this plays right into Google wanting no patents. It is to their advantage. They are the giant ape at the top of the hill and innovation is the only thing they have to fear–which is what they said in 2010 documentary about Google which used to be available form Netflix.

                  But, I guarantee you that next blog post MM will deny all this again.

            2. calling me “pitbull”

              I didn’t call you a pitbull. I used a figure of speech to describe your apparent obssession with this “Google is against patents” story that you insist on re-telling here without any supporting evidence.

    2. Brian, a potential fix for IPRs is to allow de novo review. Obviously, the same claim construction must take place both in the patent office and in the courts. But because of the majority of the Federal Circuit here being so intransigent, I would certainly put in such future the legislation that the claim construction in IPRs should be that of the courts.

      But this case also illustrates that the patent office is the enemy of the patent system, seeking to undermine the presumed validity of issued patents by deliberately construing claims to read on prior art were such a construction would never occur in the courts. They are not seeking to uphold the validity of patents where there is doubt. They cast due process aside and hand patent owners rough justice.

      From all the amicus briefs, every one of which pointed out the unfairness of broadest reasonable interpretation in connection with issued patents, I would think they would get behind the constitutional appeal in order to force Congress hand if this going to be anything like IPRs in the future.

      I think there is concern that the whole AIA may go down if we win. I think this is where the amicus may argue severability of the IPR provisions from the rest of the AIA because they clearly are distinct.

      1. Ned: this case also illustrates that the patent office is the enemy of the patent system, seeking to undermine the presumed validity of issued patents by deliberately construing claims to read on prior art were such a construction would never occur in the courts.

        Please explain to everyone how this case illustrates that. The construction to the claims given by the PTO in this case seems perfectly reasonable (true also of nearly every IPR’d case thus far).

        On top of that, let’s try to remember that district courts come up with all kinds of ridiculous claim constructions all the time.

      2. Ned,

        Serious questions on two points:

        1) how can you advance any judicial separability notion when the amendment to do just that was explicitly rejected by Congress?

        2) why are you overlooking the direct point that impacts the property aspect? By this I mean that here you seem to want to hang “due process” on the notion that a patent – in review – has certain “sticks” in the bundle of property rights. But that just is not so. The particular stick that you want to rest upon is explicitly removed at the very point of instituting the review. It is at that precise point that a taking is made – and it is that very point that has been made non-reviewable.

        Is it any coincidence that these two points that you seem not to want to embrace are two points that I personally was the very first to point out?

  4. In other CAFC news, the court today finally shut the door on Cuozzo’s desperate, “say anything!” attempt to patent an obvious speedometer. In re Cuozzo (CAFC 2015)

    In the process of doing so, the panel does an excellent job of explaining how, why and when patentees are permitted to amend their claims in the course of an IPR proceeding.

    To get a whiff of how far out there Cuozzo was going with his arguments, consider just this passage:

    Cuozzo also argues that there is no motivation to combine Aumayer, Evans, and Wendt because Aumayer is an automatic device while Evans and Wendt are manual devices.

    Seriously?

    Top that off with Cuozzo’s apparent inability to comprehend what a broadening amendment looks like and the fact that the key claim term (“integrally attached”) doesn’t even appear in the specification.

    Newman writes one of her trademark lengthy dissents and somehow manages to do so without recognizing a key point: the system worked. Cuozzo’s patent was junk. That fact was exposed in an IPR proceeding where Cuozzo had every opportunity in the world to make a compelling argument in defense of his junk patent and he failed miserably.

    1. Also: a petition for an en banc hearing of Cuozzo’s complaints about the use of “broadest reasonable interpretation” in an IPR context was denied.

      The dissenting opinions’ sole arguments for eliminating the broadest reasonable interpretation standard in inter partes review (“IPR”) proceedings are that (1) IPR proceedings are a substitute for district court litigation, so
      the district court claim construction standard should apply; and (2) the right to amend in IPR proceedings is limited.

      Neither argument supports setting aside the longstanding practice of applying the broadest reasonable interpretation standard in United States Patent and Trademark Office (“PTO”) proceedings. The PTO has applied the broadest reasonable interpretation standard in a variety of proceedings for more than a century. …. Interference proceedings are adjudicatory, see Brand v. Miller, 487 F.3d 862, 867–68 (Fed. Cir. 2007), but nonetheless apply a variant of the broadest reasonable interpretation standard, see, e.g., In re Baxter, 656 F.2d 679, 686 (CCPA 1981).

      Nothing in the America Invents Act (“AIA”) indicates congressional intent to change the prevailing broadest reasonable interpretation standard. The dissents are wholly devoid of any evidence in the legislative history that Congress intended in the AIA to change the standard, and we must interpret the statute in light of the long history of the use of the broadest reasonable interpretation standard in PTO proceedings.

      I think it’s highly unlikely that the Supremes will take up Cuozzo’s cause here.

      1. Those dissents seem pretty persuasive to me, while the concurrence’s rebuttal (which is all it is) is pretty thin and conclusory. Maybe it needs a better vehicle, but I don’t think the BRI issue has been put to bed yet.

        1. I don’t think the BRI issue has been put to bed yet.

          I agree that “the BRI issue” won’t be put to bed until the Supreme Court gets involved.

          But I really can’t imagine a worse set of facts for that question to be addressed than the facts here, i.e., an unenforceable, d.o.a. claim where the term being construed doesn’t even appear in the specification and where the patentee appears to be an expert at heel-digging and little else.

          1. No, the BRI issue is not put to bed, it is very much awake in the pending patent legislation, and seems likely to be changed thereby to the D.C. claim scope test [which Fed. Cir. panels quite often differ on.]
            However, there is little evidence or reason for that making a significant difference in IPR decisions.
            If nothing in the claim text, or spec definitions forclaim text, or prosecution disclaimers, or even extrinsic testimony as to what claim terms mean to a POSITA provides a distinction over better new prior art cited in an IPR, the claims lose under either claim scope test.

            1. there is little evidence or reason for that making a significant difference in IPR decisions.

              To be clear, all the evidence points plainly in the exact opposite direction (including the evidence in Cuozzo’s case).

            2. However, there is little evidence or reason for that making a significant difference in IPR decisions.

              As a theoretical matter, I agree that it shouldn’t. As a practical matter, though, BRI in the normal prosecution context is used by many examiners and at least a few BPAI judges as a license to twist the claim language into all kinds of ridiculous things. Making it clear that BRI doesn’t apply in the IPR context would force the judges to at least pretend to consider the ample case law on post-issue claim construction.

              1. BRI in the normal prosecution context is used by many examiners and at least a few BPAI judges as a license to twist the claim language into all kinds of ridiculous things.

                If it’s ridiculous, then it’s not reasonable and the intepretation of the claim is not, in fact, the “broadest reasonable intepretation.”

                What you’re describing is “ineptness”. That’s not a condition that is unique to the PTO. On the contrary, it’s everywhere. The numerous Rule 36 affirmances against patent applicants is testimony to that fact.

                1. Every single example out of your mouth – no matter the situation – is against patent holders. You have anointed yourself the “savior” at the edge of the field of rye and religiously watch out for a particular kind of “badness.”

                  But you are not anti-patent….

                  Sure.

                  /off sardonic bemusement

            3. BTW, on the theory of “bad facts make for bad law” it is actually lucky there is little chance for a Sup. Ct. appeal here given this Fed. Cir. decision that the issue is not even worthy of it’s en banc review. Because, if I recall correctly, Cuozzo had argued for a BROADER than BRI claim interpretation in its IPR! [Inconsistent with the usual [albeit rarely proven] allegation that BRI is TOO broad compared to D.C. claim scope determinations!]

              1. Then why is Google / Lee fighting so hard to keep the BRI

                What’s the alternative? Narrowest reasonable interpretation? The most reasonable interpretation that preserves the patent’s validity? Those are awful alternatives.

                Just learn how to write a patent application for cripesake.

                1. Why not just “correct” interpretation, with no thumb on the scale toward broad, narrow, valid or invalid? Same standard district courts use… (I’m aware of Athletic Alternatives but don’t think it’s worth much these days)

                  The BRI rule has some logic to it, and shows that the PTAB views IPRs to some extent as extensions of the examination process. … But I’m surprised by the suggestion that there’s no viable alternative.

              2. One reason is that using a “D.C.” claim interpretation will require wasting time and delaying IPRs with attorney arguments over which inconsistent Fed. Cir. panel decision on claim scope. It would be better, as the Fed. Cir. has just done, to reverse IPR PTAB claim interpretations decisions that are not “reasonable.” After all, even BRI is supposed to take into consideration spec definitions of terms and the prosecution history. But do we really want the PTO applying some of the nutty Fed. Cir. panel decisions that want to limit claim scope to the spec example when there is only one spec. example?

  5. I cannot agree that her background parallels Judge Chen. Judge Chen was in the solicitors office at the USPTO, where is argued cases (often embarrassingly) before the court. Judge Stoll was a partner in a large law firm where she represented clients in actual litigation. Thus, Judge Stoll should understand the realities of litigation, whereas nothing in Judge Chen’s background allows him to do that — and he can’t, as his jurisprudence shows.

    1. Chen was at Knobbe for a bit before the PTO Solicitor’s Office, and he did a solid job as the PTO solicitor. I think Hal Wegner’s e-mails said that he won something close to 100% of his Federal Circuit appeals. I’ve seen him argue and read his opinions, and I’m not sure what basis there is for suggesting that he’s not up to either task.

  6. Congratulations.

    I think would be great to have another judge with broad patent experience for the Fed Cir. I’ve been extremely disappointed with too many opinions the past few years.

  7. Night, frankly, I don’t understand this appointment. She is not even a district court judge and apparently has done nothing in her career to distinguish herself.

    1. Apparently she was a clerk for Judge Schall. She has an engineering degree, patent litigation experience (looks like a lot of plaintiff work), and PTO experience. It sounds like she has everything that the usual people grumble about.

        1. You mean the lack of academic experience which somehow distinguishes you in patent law (Ned’s real disappointment with this new judge)?

          1. Harry, I really would like new appointees to have the same qualifications as any other circuit court judge. I think they need experience as district court judges. That, or that they stand out from their peers in some respect that gives us confidence. “Could this candidate be considered for the Supreme Court” might be a substitute for experience at the trial court level.

Comments are closed.