I wrote previously about Tiffany Cunningham who has been nominated to join the Court of Appeals for the Federal Circuit. Judge Wallach is set to take senior status at the end of May 2021.
Today the Senate Judiciary Committee held its hearing on Cunningham’s nomination. The Senate is quite busy to day and her nomination is not considered truly controversial as such there were only a few questions and statements.
Sen Durbin (Chair) and Sen Grassley (Ranking Member) both indicated that they would support the nomination (as did all other Senators who spoke).
Sen Booker: It is amazing that we are still doing “firsts.” Congratulations.
Sen Coons: Will you ensure access to independent inventors and small start-up companies?
Sen Grassley: Will you take a hard look at takings jurisprudence and protect personal property in cases from the Court of Federal Claims?
Documents:
These days there is often not much to learn from the hearing because the nominees are coached to evade and generally answer along the lines of “Thank you for the question, I will endeavor to faithfully apply the law to the facts of the particular cases before me.” The only real answer of interest telling came in response to a question from Senator Grassley.
Grassley: “Do you think it is appropriate for district judges to actively create favorable patent venues in their courts?”
Cunningham: Federal Judges should not be “really taking into consideration what sorts of cases they might want to appear before them.”
I expect that Cunningham will be confirmed by the Senate within the next few weeks.
Did Senator Masie Hirono ask whether Ms. Cunningham had sexually harassed or raped anyone?
Asking for Justices Kavanaugh and Barrett
This just in, if I’m reading a memo correctly, examiners finally supposed to get an hour for doing a restriction even it it is sent out in the FOAM that they themselves write. Also they will get an hour if the case is transferred to a different examiner after a restriction is made either in writing or on the phone. Surprised it took so long, but them’s the breaks.
Restriction practice – don’t even get me started…
Ditto. I have long since lost track of the various ignored AIPLA [and other] study-recommendations for USPTO restriction practice reform over the years.
I NEVER understood that policy. The Office encourages compact prosecution by Examiners, and thus Examiners are supposed to call for a restriction first. BUT, the Office gives 1 hour credit for writing it up instead of calling. What did they honestly think Examiners would choose? And I’d say 90% of times I call, the answer is “just mail us the restriction in writing,” most of the time based on standing client instructions.
That said, I’m pretty sure that the 1 hour credit for phone restrictions (that are memorialized within the FAOM) started last October, as long as you checked the box when you posted the action.
“What did they honestly think Examiners would choose?”
I’m not sure. Maybe back in the day they didn’t have the policy of giving people time to ponder it and all so you were supposed to be able to commence examination immediately more or less. And most likely this is just another band aid (like the rest of the little 1 hr give aways) on the blatantly, at this point, underfunded expectations per examination. So maybe back in the day people weren’t that stressed about getting the hour as supposedly the magic of computers and word searches made the job super ez.
“And I’d say 90% of times I call, the answer is “just mail us the restriction in writing,” most of the time based on standing client instructions.”
I only get that at most 50% of the time, and that’s including a couple of corps that give that standing instruction.
I never elect over the phone. Terrible practice.
Nothing at all in that memo regarding attribute hours or C* challenge time is a new change in office policy. It’s how it’s been since TRP started in October.
“Nothing at all in that memo regarding attribute hours or C* challenge time is a new change in office policy. It’s how it’s been since TRP started in October.”
That might be correct, I haven’t done that so far in the new system so I wasn’t even aware if that was a change or just a reiteration of the previous policy on that.
What about judges that actively create unfavorable patent venues? Like the PTAB? Or the CAFC? Or NDCA? Is that acceptable? How many more of those judges do you think there are over “favorable” judges? Grassley should retire or stop taking big tech money.
OT, but yesterday the CAFC did something quite rare.
In response to a request for reconsideration, a panel modified and reissued their March 9 opinion written by Chief Judge Moore in Edgewell Personal Care Brands v. Munchkin, Inc., 20-1203. [Reversing a district court judgment of noninfringement re a replaceable cassette for a diaper pail system.]
What was the [indirectly-admitted] error in the original CAFC opinion that won this reconsideration?
I think you should try to respond to my points in 4.
Why should I respond to comment 4? Does anyone really think that purely personal high level remarks in support of purely personal high level complaints about established patent law would make the slightest difference to anyone or accomplish anything without very active Congressional or Sup. Ct. efforts? Especially if one dismisses and attacks at 1.2 here someone with real major power and influence over patent legislation, namely the Ranking Republican Senate Judiciary Committee member, as asking a “ridiculous softball question made for publicity.” Will that win needed votes for patent law reforms?
I try to stick to discussing practical patent law questions or issues that might be tactically useful to new patent attorneys or lay readers, which I assume is a primary intent of this blog.
Paul,
“Purely personal”? No. There is lots of evidence to back up what I’ve said and there are lots of people including former CAFC judges that agree with at least parts of what I’ve said. There are also top academic patent professionals that I’ve spoken with personally that agree with much of what I’ve said.
There are also NYTimes articles that back up what I’ve said.
And, the point of the legislation that would help patents assumes that the Scotus has gone off the deep end and has been discussed many times.
And so forth.
You clearly have your own hidden agenda.
Agreed – Paul’s typical modus operandi is to snipe from the sidelines and not engage in any meaningful way on what he attempts to denigrate as “purely personal.”
He is worse than a hack.
“The only change from the previously issued opinion is the addition of a sentence on page 13, lines 3–6.”
To wit:
“This testimony, see J.A. 2300–01, sufficed to create a question of fact precluding summary judgment as to the annular cover and whether the shrink wrap engages the outer annular wall of the Second Generation cassettes.”
Does not seem that big of a deal.
Thanks Anon. If that is the only CAFC change in its revised decision it seems to suggest that if the original brief and oral argument had more greatly stressed disputed testimony relevant to infringement they could have won the first time, since a relevant fact question in dispute is normally, and probably most effectively, fatal to summary judgement. A good lesson.
“I try to stick to discussing practical patent law questions or issues that might be tactically useful to new patent attorneys or lay readers, which I assume is a primary intent of this blog.”
Is that what you call it?
(how Fn pompous)
Lots of discussions about the district court judges saying they will get a fair shake in their district if they sue for infringement.
Reality: The Scotus has legislated away most of the patent right. The CAFC is a staked court filled with judges selected by SV who instructed Obama who to appoint. Many of the district court judges see patents as junk and will almost summarily dismiss any complaint they see under 101 or by any means available to them. Law professors are paid money to publish law journal articles in accordance with anti-patent/anti-IP law abstracts written by SV corporations. Universities are getting money to appoint law professors that are anti-patent. Giant corporations have 10 if not 100’s of billions of dollars of profit and have market power and use their money to insure their growth and continued monopoly. Biden is pushing for strong Trade Secret law backed by a SV tainted professor. The most famous professor in patent law, Lemley, admitted that his anti-patent crusade has netted him many millions. And so forth.
Under these circumstances our judicial system is falling apart. A judge saying here in my courtroom, I will still apply the law is refreshing and in reaction to the utter corruption of our judicial system.
Reality.
Well yea, sure Night Writer. But other than those handful of oh-so-small problems, patents are one great realm to be operating in these days, right? 🙂
Our Country’s Founders would jump for joy over what SCOTUS, the CAFC, and Congress have done to what was once the greatest innovation engine ever created.
Jump. For. Joy.
“The most famous professor in patent law, Lemley,…”
Ouch! I’m sure you meant no offense to Dennis Crouch,
Associate Professor, University of Missouri School of Law.
Good point ipguy. Let’s instead go with:
“The most infamous professor in patent law, Lemley, …”
I was trying to be generous but I would prefer to use “infamous” rather than “famous”. But I acknowledge that Lemley has the ear of the Scotus and, really, has them wrapped around his little finger.
He also writes papers with professionals that are anti-patent judicial activists and then works to get them appointed as professors.
The fact is that Lemley is the tool of SV and what a tool he has been for them. His results are nothing short of phenomenal. In return Lemley has taken many millions as has universities and university professors.
Who knows what she will do. I don’t see any strong evidence indicating what type of judge she will be. She has the feel of someone that is unlikely to go full anti-patent judicial activism like Taranto.
Oddly, her manner reminds me of Newman.
“Oddly, her manner reminds me of Newman.”
“Oddly”? One could only hope to have an appointee who matches J. Newman’s competence, intellect, temperament, grasp of practical consequences of decisions … been far too long.
Oh s h u t u p. You sound like a cancel culture executioner looking for a victim.
No kidding that that would be a good thing.
Night Writer,
I have to wonder if you are suffering from “Blog PTSD.”
Your reactions have contained more than a bit of over reactions of late.
Here, you are telling someone who basically agrees with you (and seeks to augment your point) to not-so-nicely ‘be quiet,’ and at the same time that you want to cancel their comment, you wield a charge that they are employing a cancel culture technique?
Take a step back, and a deep breadth.
anon, stop being ridiculous. My reactions are in proportion to the comments and appropriate. Shh…..stop feeling you have to comment on every single post.
As you yourself comment so?
So, you want to “cancel me” too?
That you think your response here is appropriate is even worse than the initial over reaction.
Discourse would be better on this blog if you both stepped back, took a break, and spent less time attacking other posters when you did post rather than just having an honest exchange of ideas without hyperbole and invective.
Attacks on IamI starting in… 3… 2… 1…
I have no problem with “attacks.”
My point is in fact NOT that attacks “are bad,” but that THAT particular “attack” was bad.
Your version of “discourse would be better” sounds WAY too much in the “let’s NOT offend anyone” mode.
To paraphrase, words ought to be sharp, as they are an assault on the unthinking.
Don’t like those sharp words?
Easy: don’t be the unthinking.
Woosh.
Is “whoosh” a substitute for actually addressing anything that I stated?
One case in which she represented a biotech firm asserting two patents in which one of them was knocked out under 101. Seems to me that she has mostly represented defendants, but that is typical of biglaw.
Re: “..mostly represented defendants, but that is typical of biglaw.” This sounds like another interesting statistical study for Dennis? Of course big companies do make the fattest suit targets, and having the most to lose are more willing to pay higher legal fees. But on the other hand, few individuals sue on patents, even on a contingent fee basis, and the large sums now being invested in the many PAE patent suits on PAE acquired patents are clearly also financially incented and sophisticated enough to hire competent patent litigation attorneys.
But on the other hand, few individuals sue on patents, even on a contingent fee basis, and the large sums now being invested in the many PAE patent suits on PAE acquired patents are clearly also financially incented and sophisticated enough to hire competent patent litigation attorneys.
Big law doesn’t do contingency — if they do so, it is rarely. People who are defendants are almost always deep pocketed. You don’t sue poor companies. Deep pocketed companies can afford (particularly when the stakes are high, e.g., a patent litigation) big law.
I found Paul’s push back interesting – and with perhaps a slight nuance.
Let me try to restate it:
Given the understanding of when Big Law is invoked, are PAE’s just as likely to invoke Big Law for their side of the battle? If not, what types of law firms are enlisted by the PAE’s?
Wandering Words (WW) is correct in my experience in big law and a top IP firm.
I am not sure why WW keeps using the wrong name.
… wrong name?
“Wandering through” rather than “Wandering Words (WW)”.
Are you not the same person who got all in a huff when Malcolm would purposefully change your chosen moniker?
I named Malcolm “MM”. I think we have a “WW” here. He just needs to accept his given name.
You missed the point.
Wandering Words (WW) is correct in my experience in big law and a top IP firm.
??
I am not sure why WW keeps using the wrong name.
??
Live with your moniker. WW.
I recall how you refused to “just live with” the “Wiper” moniker.
Quite in fact, you groused rather loudly about it.
Thanks. Very interesting that Ranking Republican Senate Judiciary Committee member Grassley would ask: “Do you think it is appropriate for district judges to actively create favorable patent venues in their courts?” Presumably, being aware of and receptive to complaints about Judge Albright’s Waco WDTX court? [And/or the prior activities in Marshall EDTX?]
I can think of no other reference.
I do pause though at the implications of the value statements (the answer reflecting the tenor of the question).
Why in the world would a judge NOT want to care about the types of cases in HER courtroom?
What is with the implied “unfairness” in “favorable patent venue” of the question?
Why would not ALL judges want a “favorable patent venue?” Are not patents a good thing?
Sure – this might take some reading between the lines, but it is not as if that reading occurs in a vacuum, now is it?
What is with the implied “unfairness” in “favorable patent venue” of the question?
Why would not ALL judges want a “favorable patent venue?” Are not patents a good thing?
Plaintiffs decide where to file lawsuits. A judge who encourages filings in his court (I’ll say “his” since we’re really talking about 1 or 2 people) is necessarily enticing plaintiffs.
Arguably, judges shouldn’t be in the business of encouraging or discouraging anyone to file anything in their court. Judges should take cases as they find them, do their best to be fair, competent, and efficient, and let the chips fall where they may. Once judges start enticing litigants (sometimes called “forum selling” but that’s a tendentious expression), the judges invite trouble.
A potentially reasonable response is that there’s good forum selling and bad forum selling, and the difference depends on what the judge is offering. If the judge is offering something all parties should want — “I decide cases efficiently and fairly and have a bit more skill and experience with patent cases than the average” — then there’s arguably nothing wrong. The judge gets a yearly salary from the government and doesn’t get additional money by inviting additional work for himself.
But if the judge’s pitch is the following–implicitly or explicitly–it’s a problem: “If you file in my court, you’re more likely to walk away with a large, favorable, appeal-proof judgment. I’ll almost never grant summary judgment. I’ll almost never grant a transfer motion. If you file in my court, I will do what I can to thwart the defendant’s IPR strategy:
I’ll almost never grant a stay motion for PTAB proceedings, and I’ll move quickly enough to beat the PTAB to judgment and to discourage them from instituting at all under the new Iancu NHK/Fintiv procedures. I know enough about patent law that I can write opinions that favor you without inviting reversal.”
The sheer number of motions to transfer out of two particular courts suggests to me that very few defendants think they can get a fair trial in either court, and that if any judge is making the “good” sales pitch, defendants aren’t hearing it.
“Arguably, judges shouldn’t be in the business of encouraging or discouraging anyone to file anything in their court
”
and — equally — arguably NOT.
EVERY single judge actively manages their docket.
NO single judge EVER merely “takes cases as they find them”
There is zero prima facie wrong with a Judge deciding to manage their docket to develop a specialty. NO ONE is indicating that proper cases are being turned away, or that Justice is somehow suffering.
The legal reality is that Forum shopping happens – and extensively, happens outside of what judges do.
As you indicate, depending on what the judge is offering – which is why I found the intonation especially pernicious.
It’s as if there is a wink and a nod that enforcing patent rights is ‘the bad.’
There is NOTHING on the plate (so far as anyone has been willing to share) that is untoward or otherwise NOT ‘deciding cases fairly.’ Each of the “oh-N0es” of appeal-proof, non-summary judgment, lack of transfer, and thwart IPR strategy has NO inherent unfairness. Yes, this may come as a shock to the ‘captured’ sensibilities of Efficient Infringer mantra. YOU presume that ‘the defendants must be right’ and that bias is evident in your last paragraph. Fairness is NOT made with the Defendant’s measuring stick. If that is what you are using, you are doing it wrong.
On the last paragraph of your comment–It’s entirely possible that transfer-movant defendants are all wrong, and that most trial courts outside of Texas are unduly defendant-friendly. I don’t mean to suggest that “fairness” means making plaintiffs and defendants equally happy, only that when a judge is marketing his court to plaintiffs by offering more plaintiff-friendly rules and outcomes than other judges, that doesn’t look very neutral or judicial. Part of the difficulty with these arguments about individual courts is finding an uncontroversial baseline.
I don’t understand the distinction you’re drawing between docket management and judges taking cases as they find them. Nor do I understand the relevance of the observation that forum shopping happens with or without encouragement from judges (perhaps true, but has nothing to do with whether judges should encourage forum shopping).
This all somewhat underscores why likely-future-Judge Cunningham was smart to give an answer that avoids wading into this stuff.
“only that when a judge is marketing his court to plaintiffs by offering more plaintiff-friendly rules and outcomes than other judges, that doesn’t look very neutral or judicial.”
This is necessarily a judgement call – and who better than a judge to make that call?
The problem of course is to DEFINE a line over which something is objectively NOT neutral.
As it is (or should be) readily apparent in this day and age — and quite the point that I am making by drawing attention to the tone and reflexive answer — “enforcing one’s patent rights” is viewed to be a negative.
As I noted, bias is evident (even in YOUR comment) and one MUST account for that bias as to any notion of “gee, that appears ____.”
As to docket management, it is less a distinction, and more a matter that docket management IS an act (set of acts) that directly refutes the notion of “taking cases as they find them.” ALL kinds of mechanisms exist for the court to NOT “take as they find.” Once one realizes that this is NOT a point of distinction, and is merely a reflection of the level of judgment already given to the court, one may then appreciate even more how biases can creep in. For example, IF it is noted that the general view of enforcing patent rights is ‘bad,’ then even the notion of “I WILL ENFORCE PATENT RIGHTS HERE” will be viewed as ‘one-side friendly’ and — as you put it, “that doesn’t look very neutral or judicial.” when in fact it is the epitome of being neutral and judicial (just not to a propagandized view).
As to the relevance of forum shopping (a legal reality, and one that maybe viewed as largely P and D, rather than J), my point was that legal reality cannot be divorced. It is (or should be) recognized that a certain level of shopping is always present. You yourself attempted to paint this in two categories.
Just as there exists the legal reality of P and D effects, it should be recognized – and accepted as reality — that there be J effects as well. This ties directly to the fact that there already are quite a large number of tools FOR a judge to put into effect those J effects (that is, docket management tools). NO ONE blinks a eye at those tools, and their use. Rather, there is the biased ‘bleedover’ when certain tools happen to coincide with type of case.
Thus, the point is NOT one of whether or not the J effect is seeking to directly or even indirectly affect the P or D effect. It is only a reflexive (and biased) reactionary view that SINCE a P or D effect may be in play, that the J effect ‘is bad.’ This is just not so, and any — and all — J effects should be looked at as just that: J effects.
As to “This all somewhat underscores why likely-future-Judge Cunningham was smart to give an answer that avoids wading into this stuff.” – I entirely agree, but perhaps for different reasoning. The reasoning that I see is that determinations and selections OF judges has simply itself become unmoored from objectivity, and heavily (polarized) politicized. It is LESS about being open and forthright as much as it is about giving the political ‘other side’ any ammunition.
and THAT does distinguish from the items at point.
Arguably, judges shouldn’t be in the business of encouraging or discouraging anyone to file anything in their court.
Since judges run their own courts, there will be some judges whose actions will be more favorable to one side and some judges whose actions will be more favorable to another side. Take, for example, 100 judges and you’ll get some outliers on both sides of the continuum (of favorability towards plaintiff versus favorability towards defendant).
Remove the judge that is furthest away from the average, and guess what happens. The judge that is next furthest away will become the most desirable judge. Unless all judges run their trials in the exact same manner, there will always be a handful of judges who will be the most desirable.
The sheer number of motions to transfer out of two particular courts suggests to me that very few defendants think they can get a fair trial in either court.
No — it suggests that the defendants think they can get a better trial outcome (from their perspective) elsewhere. Getting a better trial doesn’t necessarily mean getting a fairer trial. In fact, the opposite could be occurring. Defendants could be transferring out because they think they’ll get a less fair trial elsewhere — but that less fairness is towards the plaintiff.
Whether one gets a “fair” trial or not is ALL a matter of perspective. Regardless, whether the court is “fair” or not is immaterial. What is important is that you go to the court where you think you’ll get the better outcome for your client.
The hear what you are saying, and while I would express it differently, I do not disagree with the gist of your point.
… “The hear” ==> “I hear”
Damm autocorrect
“Remove the judge that is furthest away from the average, and guess what happens. The judge that is next furthest away will become the most desirable judge.”
This is sophistry as the current scenario has a judge who effectively advertised their court to a type of plaintiff. Establishing a spectrum of plantiff-defendant favorability does not establish that such behavior reasonably falls on that spectrum. Could you point to 5 other such judges who engaged in this behavior?
This is sophistry as the current scenario has a judge who effectively advertised their court to a type of plaintiff.
Thank you for providing an excellent example of sophistry. What “effectively advertised” really means “not advertised in reality, but this is what I’m saying he is doing.” Nice bit of deception on your part.
Establishing a spectrum of plantiff-defendant favorability does not establish that such behavior reasonably falls on that spectrum.
Really think about what you wrote and figure out why it is nonsensical. A judge that automatically rules for plaintiff, for example, is still on the spectrum of plaintiff-defendant favorability — he or she just happens to be on one extreme.
There will ALWAYS be a judge and/or venue that is most favorable to plaintiffs. There will ALWAYS be a judge and/or venue that is most favorable to defendants. Remove one and there will ALWAYS be another to take his/her place. That is my point. Smart plaintiffs will try to file lawsuits where they think they will get the most favorable result. Smart defendants will try to transfer cases to where they they think they will get the most favorable result. What is surprising about any of this?
Wt,
Ben is the same guy who insisted that he was not attacking the Texas judge (as he continues to attack the Texas judge).
It is doubtful that he recognizes the irony of his words.
“What “effectively advertised” really means “not advertised in reality, but this is what I’m saying he is doing.””
I put that in there because of the potential distinction between earned media and paid media, but I’d think it’s very reasonable to say that Albright has advertised his court.
I’m not the only one.
“He has been explicitly advertising his district—through presentations to patent lawyers”
link to patentlyo.com
So could you not find 5 examples of other judges engaging in this behavior?
“What is surprising about any of this?”
It is surprising that you think this is a compelling argument. You yourself say that a judge that automatically rules for the plaintiff is on this spectrum. Your argument condones such a “judge.” How can you stand by that nonsense?
I mostly agree with this last part. I should’ve left out the comment about the number of transfer motions.
That was a ridiculous softball question made for publicity.
Not really even a quesiton.
Agreed
I disagree. The question is an easy-to-pass filter to weed out the most extreme nutters. Just because every candidate should pass a filter doesn’t mean there’s no value in applying the filter.
You misunderstand the softball nature.
Virtue signaling — as it often tends to be — IS meaningless.
It is just not a matter of “Weed out the most extreme nutters.”
You display an incredible lack of appreciation of the historical context of how “questioning of judges” has become what Prof. Crouch calls These days there is often not much to learn from the hearing because the nominees are coached to evade and generally answer along the lines of…”
That was a ridiculous softball question made for publicity.
Not really even a quesiton.
Evergreen reaction to confirmation hearings.
?