PTAB: Must Consider, but Need Not Follow Prior Court Claim Constructions

Knowles Electronics v. Iancu (Fed. Cir. 2018)

In a split decision, the Federal Circuit has affirmed a PTAB Inter Partes Reexamination decision against a patentee – finding the claims of Knowles Patent No. 8,018,049 invalid as anticipated/obvious.

The patent here covers a cool microphone on a chip with a special inlaid housing for shielding a transducer the transducer when in use in a hearing aid.  The patent claims the microchip “package,” and the construction of that term forms the crux of the appeal.  Note here that this is the same debate previously discussed in the Federal Circuit’s March 1 decision in Knowles Electronics v. Cirrus Logic (Fed. Cir. 2018) [Knowles Case]

Here, the PTAB construed “package” as “a structure consisting of a semiconductor device, a first-level interconnect system, a wiring structure, a second-level interconnection platform, and an enclosure that protects the system and provides the mechanical platform for the sublevel.”

On appeal, Knowles asks argues that the package should further require a “a second-level connection with a mounting mechanism.”  That limitation was required by the Federal Circuit in two prior decisions on closely related claims.  In appeal the Federal Circuit sided with the PTO — reaffirming that the USPTO need not follow prior Federal Circuit claim construction decisions:

We have held that, in some circumstances, previous judicial interpretations of a disputed claim term may be relevant to the PTAB’s later construction of that same disputed term. See Power Integrations, Inc. v. Lee, (Fed. Cir. 2015).

According to he court, the PTAB satisfied its requirements by considering the prior court constructions and determined that its construction still complied with the term’s broadest reasonable interpretation (BRI).

Jude Newman offered a dissent making two collateral points:

  1. The PTO should not have been allowed to intervene in this case to defend the PTAB Judgement.
  2. Even if allowed to intervene, the PTO should not have been permitted to present additional evidence (in the form of dictionary definitions) in the appeal.

 

33 thoughts on “PTAB: Must Consider, but Need Not Follow Prior Court Claim Constructions

  1. 4

    There can only be one claim construction. The legal system is supposed to be about rule of law and justice. But we have a third world legal system. Just look at the champions for the PTAB – they are all high net worth individuals who have the means to play the word game and rob the common people of their duly earned vested property rights. Right here in America the same words have more than one legal interpretation. And in every context it morphs into the interpretation that favors the connected elite party – not the average citizen or small business.

    1. 4.1

      There can only be one claim construction. The legal system is supposed to be about rule of law and justice.

      I can understand how a non-lawyer might think this way, but this is just plain wrong. Certain continental European legal systems (France is the quintessential exemplar of this philosophy) understand themselves to be doing “Justice” with a capital “J,” but this is not the self-understanding of the U.S. in particular or the larger common-law world.

      Our courts adjudicate disputes between specific individual parties. Ideally, these disputes are adjudicated in a just manner, but the whole thing is governed by a sort of “you get out of it what you put into it” philosophy. The duty is not on the court to find the ONE TRUE CONSTRUCTION of some patent claims. Rather, each party proposes its construction, and the court decides which of those is the better construction in view of the evidence that the parties have provided. Left unspoken but well understood in this arrangement is that it is entirely possible that there is some even better construction that neither party has proposed, or even more relevant evidence that neither party has provided.

      The U.S. courts are under no duty to pour their own efforts into finding evidence or crafting claim constructions where the parties have not done so. The French self-understanding of its court system is that such efforts are expected from judges and court officers, but this is definitely not what our U.S. courts are expected to do.

      Because each dispute in our courts is decided between specific parties, proposing specific constructions, in view of specific evidence, there is no single construction that must rule all disputes. Principles of issue preclusion can mean that a given party might be bound by a claim construction from another case involving that same party. Just because, however, there may be one construction involved in a case between one set of parties, that construction need not be binding on another set of parties. Indeed, it would be palpably unfair—where defendant A did a poor job of arguing for a narrow construction—to say to defendant B “you are bound by this previous construction in this previous case, even though you had no opportunity to present alternative constructions or offer additional evidence in that case.”

      If you want a system in which “[t]here can only be one claim construction,” I urge you to restrict your patenting to France, and other such civil-law jurisdictions founded in Cartesian philosophy. Here in the U.S., you are setting yourself up for disappointment if you approach the patent law with that expectation.

      1. 4.1.1

        Thanks Greg – a nice addition!

      2. 4.1.2

        indeed a nice contrib, but somewhat of a re ta rded system.

      3. 4.1.3

        Greg DeLassus seem to be denying the existence of issue preclusion.

        Newman dissents because for the CAFC has already specifically vouchsafed a claim construction for some of the claims under consideration. The CAFC can only have one construction for a specific claim.

        Thus,

        (1) if A sues B for infringement in one federal district,

        (2) if A sues C for infringement in another federal district,

        (3) if f A v B is fully litigated to the CAFC, and

        (4) if the CAFC makes a holding that a specific claim construction is the valid claim construction,

        that holding becomes binding law for all subordinate courts and for the CAFC (unless SCOTUS overrules at some at some point).

        If A v C is eventually appealed to the CAFC with a different claim construction, the CAFC is supposed to apply its claim construction, which is binding law, and A v C will either be upheld, remanded, or reversed according to the CAFC’s prior determined claim construction.

        [IANAL. Please correct me if I am misunderstanding this point of law.]

        Now there is an exception to this logic under the Doctrine of Dual Sovereignty, but to try to apply this Doctrine would undermine the Doctrine of Judicial Review (of federal law and action), which is a fundamental principle that goes back to Marbury v. Madison.

        All lower court and tribunal patent decisions are appealed to the CAFC.

        Newman seems to be completely right.

        If Nantkwest prevails in Nantkwest v. Iancu, we may see a situation at the appellate level in which SCOTUS will have to step in to decide federal law. Otherwise, even though the patent and trademark statutes have parallel language, Shammas v. Lee (Focarino) would create one law in the 4th Circuit for attorney fees in trademark cases (15 U.S. Code § 1071 (b) (3) – Appeal to courts) versus another law in the CAFC (35 U.S. Code § 145 – Civil action to obtain patent) for attorney fees in patent cases.

        1. 4.1.3.1

          Joachim,

          Please read THIS case – there is no such “Newman dissents because for the CAFC has already specifically vouchsafed a claim construction for some of the claims under consideration.” here.

          Further, “ The CAFC can only have one construction for a specific claim.ONLY if that matter is purely within its own Article III realm.

          That is not the case here. When an item is within the non-Article III realm of the Office, different rules and different standards can very well give different results.

          Here, it is NOT the construction of the CAFC in the spotlight. Rather, it is the construction of the non-Article III realm that is in the spotlight (even if that spotlight has moved to the Article III realm).

          Your one federal circuit to another federal circuit though may be accurate, but that is not what is at point here.

          Further, your attempt at introducing the Doctrine of Judicial Review is inapposite. What is being reviewed is the goings on in that different forum with that different forum’s different construction capabilities. Judicial Review will not transmogrify the Forum settings.

          As to your last comment – trademark law arises under a different US Constitutional power. Your “alarm” is not warranted.

          1. 4.1.3.1.1

            You are in effect disagreeing with Newman and not with me. IANAL, but the legislative history of the CAFC seems prima facie to support Newman.

            The CAFC is an Article III appellate tribunal and “is unique among the courts of appeals because it is the only court that has its jurisdiction based wholly upon subject matter.” It is the successor of of the CCPA, which was first an Article I tribunal and then an Article III tribunal. “In its first decision, the Federal Circuit incorporated as binding precedent the decisions of its predecessor courts, the United States Court of Customs and Patent Appeals and the appellate division of the United States Court of Claims.”

            One legislative purpose of creating the CAFC seems to be the definition of a unified patent realm that straddles Article I and Article III. Congress has not created a similar unified trademark realm because because trademark appeals from a District Court go to a regional appellate court.

            The CAFC vouchsafed the construction with respect to litigant Knowles of a claim in an issued patent because of an appeal from the ITC, which is an Article I tribunal. The PTAB applied construction used in examination of an application to a claim that was contained in an issued patent and that had already been litigated to the Appellate level (i.e., the CAFC) — something that seems never to happened previously.

            Phillips claim construction and BRI claim construction are not so different, and the assertion of examiner error is rather like the boy who cried wolf at this point.

            Wallach and Chen to some extent implicitly conceded Newman’s argument because they applied their own even more bizarre claim construction (based on assigning meaning to a transitional, on redefining “basic,” and on not reading the claims in light of the specification).

            B & B Hardware v. Hargis Indust., 135 S. Ct. 1293, 1306 (2015) does not seem to apply because that decision answered whether a District Court should apply issue preclusion on the basis of a TTAB decision when the two lower tribunals are judging by different laws or rules.

            Newman is not arguing that the PTAB should have applied issue preclusion because of a decision in the ITC. She is arguing that PTAB must apply issue preclusion because of a decision of the PTAB’s own appellate court. Implicitly she also seems to argue that Chen and Wallach should not have revisited and overruled the previous judgment of the CAFC in the appeal from the ITC.

            I concede that the situation is a mess and is most easily resolved if SCOTUS simply decides all post-grant proceedings (except Reissue, which is initiated by the patent owner, and ex parte reexamination except from supplemental examination) are unconstitutional.

            Newman seems to be applying the correct principles the most consistently to deal with the mess Congress hath wrought by proliferating post-grant proceedings at the USPTO.

            1. 4.1.3.1.1.1

              No – I am not disagreeing with Newman – I am distinguishing Neman based on the critical factor of which YOU are overlooking in attempting to apply Newman’s view here.

        2. 4.1.3.2

          Greg DeLassus seem to be denying the existence of issue preclusion.

          I am a bit mystified how #4.1 might seem that way to you, given that I explicitly acknowledged that “[p]rinciples of issue preclusion can mean that a given party might be bound by a claim construction from another case involving that same party,” (emphasis added).

          Really, there is nothing about this case that is at all at odds with the ordinary working of issue preclusion. As the Court noted in B & B Hardware v. Hargis Indust., 135 S. Ct. 1293, 1306 (2015), “[i]ssues are not identical if the second action involves application of a different legal standard, even though the factual setting of both suits may be the same,” (quoting Wright & Miller, Federal Practice & Procedure § 4417). In other words, issue preclusion simply does not apply if the second tribunal is applying a very different legal standard than the first tribunal. Here, the court was construing under Philips, while the PTAB was applying BRI—different legal standards, so issue preclusion simply is not applicable.

          If Nantkwest prevails in Nantkwest v. Iancu, we may see a situation at the appellate level in which SCOTUS will have to step in to decide federal law. Otherwise, even though the patent and trademark statutes have parallel language, Shammas v. Lee (Focarino) would create one law in the 4th Circuit for attorney fees in trademark cases (15 U.S. Code § 1071 (b) (3) – Appeal to courts) versus another law in the CAFC (35 U.S. Code § 145 – Civil action to obtain patent) for attorney fees in patent cases.

          And? There is a circuit split if two different courts say that the same statute means two different things. There is no circuit split to be resolved, however, if two different courts say merely that two different statutes mean two different things. I do not see what there is here for the Court to “resolve.” Do you imagine that every instance of “parallel” (i.e., not identical) language must be read the same way, even when the language appears in different statutes? I do not see why that is a problem, really.

          1. 4.1.3.2.1

            I was slightly involved in the Nantkwest Rehearing. The lawyers seemed to be of the opinion that if the Court decided that the USPTO does not ever pay attorney fees that can be considered expenses, it has as much relevance to 15 U.S. Code § 1071 (b) (3) as to 35 U.S. Code § 145.

            In the Nantkwest oral hearing the judges seemed to doubt whether the USPTO ever pays or can pay any attorney fees that can be recouped under expense shifting.

            A USPTO salaried attorney is not Schrödinger’s cat that charges attorney fees in the trademark eigenstate and the charges no attorney fees in the patent eigenstate.

            If the USPTO does not pay any attorney fees, attorney fees cannot be recouped under either 15 U.S. Code § 1071 (b) (3) or 35 U.S. Code § 145.

            I discuss applicability (?) of B & B Hardware to Cirrus v Knowles Inter Partes Reexamination above in reply to anon, but I should reiterate that I don’t see how construction using BRI and Phillips construction are so different that a lower Article I tribunal can ignore a previous judgment of its appellate tribunal.

            When I write claims for a client, I never think about Phillips construction at all. Barring major new decision from SCOTUS or change in law from Congress, claims I write should never require reissue and never be found invalid in District Court, but I am technology obsessed over the period from ancient Sumer until the 22nd century, whose technology I try to prodict whenever I have free time. (I know I am a bit eccentric, but I am fairly certain that current trends in AI and autonomous vehicles are headed for dead ends.)

            1. 4.1.3.2.1.1

              A USPTO salaried attorney is not Schrödinger’s cat that charges attorney fees in the trademark eigenstate and the charges no attorney fees in the patent eigenstate.

              Your eigenstate attempt is off.

              Patent law and trademark law have different foundations – they are NOT of the same eigen families.

              1. 4.1.3.2.1.1.1

                The issue of Nantkwest is unrelated to the difference between trademark and patent law.

                During oral arguments the judges in the en banc rehearing asked without any reference to patent or trademark law whether the USPTO has attorney fees that can be entered into the expenses account on the USPTO accounting ledger.

                15 U.S. Code § 1071 (b) (3) states:

                “all the expenses of the proceeding shall be paid by the party bringing the case.”

                35 U.S. Code § 145 states:

                “All the expenses of the proceedings shall be paid by the applicant.”

                [U.S. Code § 145 is in some sense more favorable to the trust I represent than 15 U.S. Code § 1071 (b) (3) would have been because the USPTO is trying to deny the patent prosecution entity standing on grounds that it does not own the application and, therefore, never was the applicant. Digression aside, the issue in Nantkwest does not rest on the meaning of “the applicant,” and I believe — possibly incorrectly — that using proceeding in the singular or in the plural has no significance whatsoever.]

                There was a fairly lengthy discussion of law firm practices for determining the fee charged to a client. Much of the discussion seemed independent of specific law and focused on accounting practices and definitions.

                Overall the accounting discussion was disappointing. No one seemed to realize that “self-funding USPTO” is more a slogan than reality because USPTO employees received civil service pensions, which are not funded by USPTO fees.

                Jaynie Lilley from the DOJ seemed extremely ill-prepared even though she has a Harvard MBA. Maybe she should have studied at MIT Sloan School.

                1. You raise some good points in so far as the discussion may hinge outside of patent (or trademark) law and instead may be decided on the accountant’s ledger.

                  Pensions (funded as you say outside of USPTO fees) has far less to do with the “self-funding” nature of the USPTO (in its mission) and more to do with a nature of a general civil servant. I do not think that banking [sic] on that difference provides any meaningful leverage.

                  The USPTO is a non-profit agency, and so parallels with how attorneys may be paid (and may cost entities outside of the government) may also bear little on the issue.

                  Bottom line [sic], an attorney in the Office is a cost, by the Office. All costs borne by the Office can – in some sense (cents?) be viewed as expenses. After all, what types of outflows are viewed as non-expenses? And by the way, a a quick perusal of accounting terms nearly all list wages (that is, what an attorney would be paid) as an expense.

                2. To some extent I agree, but accounting like law has its own subtleties. An corporate accountant tracks credits and debits in accounts and subaccounts in order to determine corporate profitability.

                  The money paid for a one-time expert consultant usually ends up as an expense in accounts payable.

                  The money paid to an outside lawyer to cover attorney’s is usually treated similarly.

                  The money paid to an in-house counsel might might be treated as a recurring expense in accounts payable to some extent like rent, which is usually treated as overhead.

                  A corporation could pay for a license to patented technology, and that payment is a debit, but the license is an asset (unlike rental space). That asset might later be sold at a profit. The license fee to the patent owner is taxable income. The licensee cannot deduct that fee (yearly) from its income — only the depreciation. (Keep in mind that the asset might actually increase in value before the patent term expires. It is a complex issue in corporate tax accounting.) For this reason a lot of what the USPTO does in programs like SAWS or in corruptly invalidating patents looks to me (as an accountant) like tax fraud along with criminal conspiracy against the USA.

                  The attorneys in the USPTO’s office of the solicitor look more like direct labor cost because of the nature of the service that the USPTO provides. I am not sure how said attorneys differ from APJs or examiners from an accounting perspective.

                  I brought up “self-funding” because Jaynie Lilley used it as a argument to justify changing a practice that is over a century old.

                  The oral argument also asked why doesn’t “All the expenses” cover the salary paid to the Judge and the court personnel, etc.

                  If one does not use the use the GAAP definitions relative to the USPTO, these two statutes in the USPTO’s interpretation quickly lead to absurdities.

                  By the way, the tax evasion graphic is not really meaningful. Each country evasion number should probably be normalized by the selfsame country’s GDP.

                  In any case, the tax evasion total facilitated by corrupt senior USPTO officials and APJ clowns is probably not large compared to total US tax evasion even if it is at the upper end of insider trading or Ponzi scheme totals.

                  It is just outrageous that a federal agency is contributing (conspiratorially) to the defeating of tax payments — which is, as far as I know, part of the definition of tax fraud.

                3. It is just outrageous that a federal agency is contributing (conspiratorially) to the defeating of tax payments — which is, as far as I know, part of the definition of tax fraud.

                  You keep on wanting to include that – it just ain’t so.

                4. We may be splitting hairs of epistemic jargon. For accountants and regulators tax fraud and tax evasion are more or less synonymous.

                  Here is the statute.

                  26 U.S. Code § 7201 – Attempt to evade or defeat tax

                  Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 5 years, or both, together with the costs of prosecution.

                  (Aug. 16, 1954, ch. 736, 68A Stat. 851; Pub. L. 97–248, title III, § 329(a), Sept. 3, 1982, 96 Stat. 618.)

                  The common accountant and regulator use of the term tax fraud does not seem to correspond to the legal meaning of fraud.

                  If we call the felony tax evasion instead of tax fraud, one does not have to be the beneficiary of the the tax evasion to be guilty of tax evasion (defeating payment of taxes), one need only have to help someone else evade the payment of taxes.

                  Secret unlawful “fake QA” programs like SAWS by stalling or preventing the issuance of a patent to which the Applicant is entitled assist incumbent corporations to poach IP and to evade taxes. These programs are almost certainly unlawful under the APA. Under 26 U.S. Code § 7201 these programs become felonious and probably also involve violation of 18 U.S. Code § 371.

                5. I don’t know how accurate the following quote that I took from Wikipedia is.

                  To prove a violation of the statute, the prosecutor must show (1) the existence of a tax deficiency (an unpaid federal tax), (2) an affirmative act constituting an evasion or attempted evasion of either the assessment or payment of that tax, and (3) willfulness (connoting the voluntary, intentional violation of a known legal duty).

                  We know that SAWS and post-grant proceedings involve economic modeling. I have internal USPTO email that demonstrates the USPTO valuation of claims. Teresa Stanek Rea explicitly discussed avoiding disturbing the settled expectations of incumbent corporations. Settled expectations could certainly include not paying license fees that would represent taxable income to the licensor.

                  The behavior of a small number of senior USPTO officials seems to come close to meeting the criteria of violation.

                  I do not know what the puppeteers of programs like SAWS are receiving for their efforts, but at the very least we are seeing a revolving door. There is more than enough reason for FBI and SEC investigation.

    2. 4.2

      The Rule of Law provides for more than one claim construction based on the rules of the different forums (among other things).

      Your argument misses the mark in this important regard.

      What you should be more upset about is that at the point of the institution decision – when the granted property right is placed back into the non-Article III forum – that granted property right suffers a Taking of one of the sticks in the bundle of property rights.

      That type of Taking F A I L S scrutiny of the other Constitutional protections that are afforded property.

      1. 4.2.1

        What you should be more upset about is that at the point of the institution decision – when the granted property right is placed back into the non-Article III forum – that granted property right suffers a Taking of one of the sticks in the bundle of property rights.

        Except that the “right” one obtains is conditional and includes the “right” to watch one’s patent get shredded at the PTO when someone presents evidence that the PTO screwed up.

        There is no “stick taking.”

        And let it be said once again that there is nothing more bizarre or hypocritical than a glibertarian getting wet and excited about the US government granting reams of junk patents and making them as difficult as possible to expunge from the system. Of course, if one recognizes that glibertarians are basically infantile l 0 sers with the depth of a puddle of cat p e e on a hot street than it all makes a little more sense.

        1. 4.2.1.1

          Except that the “right” one obtains is conditional and includes…

          Except not – there was NO such change to the property right.

          Also, once made a property right, even Congress does not have free reign to change that right (as indicated by the fact that property attaches other Constitutional protections).

          You have never embraced this nature of property. Do you even understand property law?

          nothing more bizarre or hypocritical than a glibertarian getting wet and excited about…

          My views are, and always have been, consistent. “Glib” is nothing more than your usual Accuse Others meme in action.

          Glib: (of words or the person speaking them) fluent and voluble but insincere and shallow.

          Not sure the “fluent” applies to you, but everything else surely does.

          1. 4.2.1.1.1

            “You have never embraced this nature of property. ”

            Why on earth would he pretend to be evi l white cis hetero capitalist christianish patriarchial? You’re trying to get him to buy into/embrace a system that is allegated to oppress his fellow victims bro.

            1. 4.2.1.1.1.1

              Lulz…

              Why?

              Because he professes to be an attorney and attorneys have ethical responsibilities (even in the forum of blogs).

              He is just not at liberty to advocate in any ‘ol way that he wants to!

        2. 4.2.1.2

          You are also confusing a takings AFTER a determination that the grant was “in error” with the separate takings that occurs AT the separate initiation decision point.

          I “get” that you like to pretend that the Ends justifies ANY Means, but that is just not how US law works.

        3. 4.2.1.3

          There is no “stick taking.”

          This is absolute rubbish.

          One merely has to compare the basket of property rights before an institution decision with the basket of property rights immediately after an institution decision (and thus before any determination on the merits as to whether or not a screw up HAS occurred).

          The government can – and does – engage in takings of property – but those takings must meet the protections afforded by other portions of the Constitution. Takings are not allowed because some screw-up MAY have occurred (especially given that what is taken makes it easier to expunge the rest of the property).

          There is a gap of following the protections.
          As the ‘rules’ for a proper taking are – as I have previously spelled out in great detail – lacking with the vehicle as written by Congress in the AIA, this creates the very notion that what Congress HAS DONE is not proper.

          Malcolm, you want to turn a blind eye to these very details and merely postulate that Congress has changed the property right to some type of “conditional” property right and NOT address the very fact that THAT act does not abide by those other Constitutional protections. In essence, your “legal position” is that Congress went ahead and did what they did. But as we have recently seen (in at least the Tam case), just because Congress went and did as they did, that WHAT they did survives Constitutional scrutiny.

          Further, your “granting junk patents” meme is nothing more than dust-kicking and avoids the fact that what I argue is the law itself and is NOT to some type of “just expunging junk.” The items of law that I discuss apply to all patents. I know that you like to kick up dust and hide in the cloud with attempts to “defend a bad patent,” and my typical responses to you along those lines has always been to implore you to focus on the law itself and the bigger picture.

          As you “advocate” in the particular forum of a patent blog, I will remind you that you are STILL advocating, and that the rules of ethics DO control your advocacy efforts.

          See: link to patentlyo.com

  2. 3

    This opinion (as well as other prior/similar Federal Circuit opinions) is clearly wrong. Based on several SC cases related to the separation of powers principle dealing with the relationship between the judiciary branch and an Art. II administrative adjudication, an agency tribunal is obligated to follow a prior final Art. III opinion on the same subject matter. Very disappointing.

  3. 2

    Pay attention folks (and Congress):

    However, in the rare situation where there is no remaining appellee and the intervenor has asserted no injury to itself, the intervenor of right does not have independent standing to continue the litigation.

    When you move from one forum (with no Article III standing) to a different forum with an Article III forum requirement, Congress cannot legislate that forum requirement away.

    And yes, this has been noted here previously.

    1. 2.1

      Very good point again anon.

  4. 1

    Ree. Dick. U. Lous.

    The CAFC interpreted the claims. End of story.

    It’s pathetic that Judge Newman is the only judge on the CAFC who has any respect for the institution of which she’s a member.

    1. 1.1

      >>It’s pathetic that Judge Newman is the only judge on the CAFC who has any respect for the institution of which she’s a member.

      Agreed. Many of the other judges are Google appointments.

    2. 1.2

      She does not even get to that point, AM.

      No standing.
      No ability to introduce new evidence on appeal.

      Does not reach the merit of the claim interpretation issue (which by the way is clear that the different forums – with their different standards – may very well reach different results).

      1. 1.2.1

        Oh, you too read the decision. Good for you, Anon! And you noticed that in *this* case she didn’t get to the issue of the PTO reinterpreting a claim that has already been construed by the CAFC – two more Brownie points for you!

        But (as I’m sure you know) she already explained herself on that issue several years ago: it’s inconceivable that once a patent is litigated before the CAFC and a claim construction made, that the PTAB can subsequently deviate from that claim construction.

        In the present case, she says to her colleagues that the PTO doesn’t have standing to bring the appeal. In so doing, she implicitly says it’s beneath the dignity of the CAFC to hear this “appeal”.

        From where I sit, Judge Newman seems to be the only judge who consistently views the CAFC as demeaning itself (maybe shirking its responsibility would be a better way of phrasing it) when it allows the PTO to engage in these shenanigans.

        1. 1.2.1.1

        2. 1.2.1.2

          CAFC has become a Google court.

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