University of Colorado economist Keith Maskus has just authored a report for the Council on Foreign Relations, entitled “Reforming U.S. Patent Policy: Getting the Incentives Right.” The blurb at the Council website certainly makes it sound interesting, and I’ll certainly give it a read (likely after exams are done) …

A number of people, in both news stories and blog posts, have highlighted Justice Souter’s questions about a possible disruption problem.

For example, on p. 21, lns. 10-12, Justice Souter asks Deputy S.G. Hungar, “No but — if we see it your way, are there going to be 100,000 cases filed tomorrow morning?”

Reflecting on it a bit, I don’t think that a Supreme Court rejection of the Federal Circuit’s suggestion test (as a necessary element in any successful obviousness attack, which it is today) - a holding that seems even more likely after the oral argument than before - will produce a significant increase in patent infringement litigation.

Here are some of the things that I think would happen to pending patent applications and existing patents were the Supreme Court to reject the suggestion test:

1. Many applicants at the PTO will drop / give up on the broader claims they drafted before KSR.
2. Fewer applicants at the PTO will drop their applications altogether (although I’m sure some will (and should)).
3. Some current licensees will conclude that they should no longer pay royalties because the (likely) broad claim that covers them is no longer valid, and the narrower claims in the patent don’t cover them at all. A subset of these licensees’ former licensors will litigate rather than give up the royalty stream. Other licensors, however, will give up. (In other words, licensors and licensees will make the same decisions they make today, but under a different framework for assessing the probability that a given patent claim will survive court scrutiny.)
4. Some infringement litigation that is going on right now will settle more quickly than it otherwise would, and on terms more favorable to the accused infringer, because the plaintiff-patentee will determine that its probability of success has fallen too far to keep litigating.

These strike me as some of the most likely effects.  What do you think would happen?

EFF has soundly drubbed Barney’s lawyers, achieving a favorable settlement.

I blogged about EFF’s suit against Barney’s harassing lawyers and their overreaching i.p. claims back in August. From my earlier post:

c|net news reports on a new suit filed by the Electronic Frontier Foundation to stop the Barney lawyers from sending more baseless, threatening letters to a parody website. From the story:

EFF and the Akin Gump law firm are representing Stuart Frankel, who maintains the “Source of All Evil” site with a rendering of a vaguely Satanic cartoon tyrannosaur. Frankel writes: “The Barney Creature is a voracious, bottomless pit. All who oppose it with ridicule must be destroyed.”

Matthew Carlin, an associate at the New York firm of Gibney Anthony and Flaherty, sent at least four threatening e-mail messages to Frankel starting in February 2002. Each demands the removal of the Barney pages and threatens immediate legal action unless the pages are deleted.

EFF has its own web page devoted to the suit. If you want to see a copy of the complaint, you can get it there.

And now c|net reports that EFF has won:

Lawyers for the plush children’s icon have agreed to pay $5,000 to settle a federal lawsuit filed against them in August by the Electronic Frontier Foundation, which was defending an anti-Barney Web site called the “Source of All Evil.”

The settlement, announced on Tuesday, caps a five-year campaign by the New York firm of Gibney, Anthony and Flaherty to rid the Internet of unflattering images of its plump saurian client.

Read the whole thing. And the documents, including the settlement, are at EFF’s webpage on the case.

UPDATE: The L.A. Times has also covered the settlement.

Here’s the transcript.

And here’s Lyle Denniston’s post-argument recap at SCOTUSblog.

UPDATE: A Reuters recap.

UPDATE 2: And a Business Week recap, law.com’s Tony Mauro, and Bloomberg.

My own thought, having read the transcript: It’s certainly some of the harshest language I recall seeing in a Supreme Court oral argument. But, then again, I don’t follow criminal law cases very closely …

UPDATE 3: Linda Greenhouse’s take, at the New York Times.

Here’s the story.

UPDATE: And a story at Bloomberg News.

An article about the KSR case from law.com - this one focusing on some of the amicus briefs that various law professors have filed.

UPDATE 1: And here’s quite a fine article from the Associated Press business writer, Christopher Rugaber.

UPDATE 2: And another piece from law.com, this one from Tony Mauro.

UPDATE 3: c|net offers this story about the case.

U.S. Patent No. 6,237,565 is the patent at issue in the KSR v. Teleflex case, to be argued this Tuesday, November 28.

Claim 4 is the only claim in suit:

4. A vehicle control pedal apparatus (12) comprising:

a support (18) adapted to be mounted to a vehicle structure (20);

an adjustable pedal assembly (22) having a pedal arm (14) moveable in force and aft directions with respect to said support (18);

a pivot (24) for pivotally supporting said adjustable pedal assembly (22) with respect to said support (18) and defining a pivot axis (26); and

an electronic control (28) attached to said support (18) for controlling a vehicle system;

said apparatus (12) characterized by said electronic control (28) being responsive to said pivot (24) for providing a signal (32) that corresponds to pedal arm position as said pedal arm (14) pivots about said pivot axis (26) between rest and applied positions wherein the position of said pivot (24) remains constant while said pedal arm (14) moves in fore and aft directions with respect to said pivot (24).

The second page of the patent, with numbered images, is below.

According to a story in today’s New York Times:

Google, the world’s most-used Internet search engine, reached a settlement with Belgian photographers and journalists yesterday in a copyright dispute over how Google’s news service links to newspaper content.

In August 2006, the Federal Circuit issued another decision in the long-running erythropoietin litigation, Amgen Inc. v. Hoechst Marion Roussel, Inc. The Federal Circuit’s August decision turned, in part, on a claim construction dispute; the panel split on the proper interpretation of the claim term “therapeutically effective amount.” The majority reversed the trial court’s claim construction decision, and Chief Judge Michel would have affirmed it. The August decision’s official report is at 457 F.3d 1293 (Fed. Cir. 2006). The Patently-O write-up is here.

Today, in a lengthy order, the Federal Circuit denied Amgen’s petition for rehearing en banc. The denial itself is, as usual, a one-paragraph order. More interesting is that six separate opinions accompany the denial order. The four dissents from the denial of en banc review state, in one fashion or another, a willingness to reconsider - and perhaps overrule - the Federal Circuit’s de novo standard of review for claim construction (from Markman and Cybor). Writing dissents are Chief Judge Michel (for himself and Judge Rader), Judge Newman, Judge Rader, and Judge Moore. By contrast, there are two opinions concurring in the denial of en banc review - one from Judge Lourie, and another from Judge Gajarsa (for himself and Judges Linn and Dyk).

Chief Judge Michel offers the following reflection on how the courts have fared under the de novo standard of review for claim construction:

In my view, four practical problems have emerged under the Markman-Cybor regime: (1) a steadily high reversal rate; (2) a lack of predictability about appellate outcomes, which may confound trial judges and discourage settlements; (3) loss of the comparative advantage often enjoyed by the district judges who heard or read all of the evidence and may have spent more time on the claim constructions than we ever could on appeal; and (4) inundation of our court with the minutia of construing numerous disputed claim terms (in multiple claims and patents) in nearly every patent case.

Our standard of review of no deference to the trial judge’s claim constructions, expressed in Cybor, rests upon the premise that claim construction is always a purely legal exercise, devoid of factual content. We have likened claim construction to statutory construction. I believe that this analogy is open to serious question. In interpreting statutes, a judge, whether trial or appellate, essentially asks himself/herself, “What does the disputed term mean to me, the judge, as an artisan in the law?” With claim construction, on the other hand, the judge is supposed to inquire, essentially, “How would the average artisan in the relevant field of technology understand the disputed claim terms in the context of the rest of the patent, the prosecution history, and the prior art?”

It seems to me that the claim construction question often cannot be answered without assessing, at least implicitly, what the average artisan knew and how she thought about the particular technology when the patent claims were written. To make such determinations, the trial judge necessarily relies upon prior art documents and other evidence concerning the skill of the ordinary artisan at the relevant time. Indeed, trial judges are arguably better equipped than appellate judges to make these factual determinations, especially in close cases. In such instances, perhaps we should routinely give at least some deference to the trial court, given its greater knowledge of the facts. Or, perhaps other adjustments to our current practice should be considered.

Whatever our resolution, however, I believe the time has come for us to re-examine Cybor’s no deference rule. I hope that we will do so at our next opportunity, and I expect we will.

Judge Moore - in what I believe is her first signed opinion as a member of the Federal Circuit - takes an evern dimmer view of Cybor:

I dissent because I believe this court should have taken this case en banc to reconsider its position on deference to district court claim construction articulated in Cybor Corp. v. FAS Tech., Inc., 138 F.3d 1448, 1454-55 (Fed. Cir. 1998) (holding that claim construction was purely a matter of law and therefore subject to de novo review). Five judges of this court have written opinions in this case expressing disagreement with the two judge panel majority’s claim construction even under the de novo standard of review.

In this case, the district court construed the term “a therapeutically effective amount” with the assistance of a technical advisor (an MIT Professor) and a Special Master. The district court opinion explains that the term was construed using the patent claims, the specification, the prosecution history, three different dictionaries, and prior art. The opinion also explains that the claim construction is supported by the expert testimony presented by the parties in this case, but then disavows using it to “define the term” or “construe the term” instead stating that it is being used to “understand the technology.”

I commend the district court for its thorough, detailed, thoughtful, and competent efforts in construing this claim limitation. The district court did everything we have asked it to do, and in my opinion, did it correctly. While this may not be a basis for taking the case en banc, reconsideration of the deference accorded to the district court in this case would have been. Therefore, I would grant en banc review.

(footnotes omitted).

I hope to obtain a pdf copy of Amgen’s rehearing petition. I’ve already received an electronic copy of HMR’s opposition to the rehearing petition, which you can retrieve here.

UPDATE: And here is Amgen’s rehearing petition.

With oral argument next Tuesday in KSR v. Teleflex, the press previews are gearing up.

Here’s today’s story from Joan Biskupic, who covers the Supreme Court for USA Today.