I happened across the following footnote in a recent opinion from U.S. District Court Judge Sue Robinson on a motion to exclude expert testimiony:

I note for the record that I am very well aware of the fact that the above captioned case is a patent infringement action. Therefore, I need not be educated on this point by plaintiff in the opening line of every opening brief filed in connection with every motion filed on behalf of plaintiff.

TruePosition, Inc. v. Andrew Corp., No. 05-747, 2007 WL 2429415, at *1 n.1 (D. Del. Aug. 23, 2007).

Sua sponte motion to spank is hereby granted!

A short, entertaining story in the New York Times about an accused infringer’s detective work in finding invalidation prior art:

Mr. Goldin said he spent thousands of hours flying all over the country to search for obscure business contracts and to pick the brains of people in his niche of the financial services industry before finding 48 typewritten pages in the archives of a company called Paymentech in July 2006.

Give it a read!

From today’s New York Times story about Attorney General Gonzales’s resignation:

As recently as Sunday afternoon, Mr. Gonzales was denying through his press spokesman, Brian Roehrkasse, that he intended to leave.

Mr. Roehrkasse said Sunday afternoon that he had telephoned Mr. Gonzales about the reports circulating in Washington that a resignation was imminent, “and he said it wasn’t true, so I don’t know what more I can say.”

White House spokesmen also insisted on Sunday that they did not believe that Mr. Gonzales was planning to resign. Aides to senior members of the Senate Judiciary Committee said over the weekend that they had received no suggestion from the administration that Mr. Gonzales intended to resign.

Earlier in the story, it’s established that “Mr. Gonzales, who had rebuffed calls for his resignation, submitted his to President Bush by telephone on Friday, the official said.”

No great harm, I suppose … a few days from now he won’t be able to recall it.

“It is clear, then, that a state exists by nature and is prior to each [of its parts] … and one who cannot associate with others or does not need association with others because of self-sufficiency is no part of a state but is either a brute or a God.”

– Aristotle, Politics, 1253a26-29 (translated by Hippocrates Apostle, Peripatetic Press 1986)

The Federal Circuit, alone among the U.S. Courts of Appeals, has the power to hear cases before a five-judge panel (rather than a three-judge panel).  It also has the power to decide, by local rule, when it will hear a case with a five-judge panel.  Here’s the key language from 28 U.S.C. § 46(c):

Cases and controversies shall be heard and determined by a court or panel of not more than three judges (except that the United States Court of Appeals for the Federal Circuit may sit in panels of more than three judges if its rules so provide), unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service.  (Emphasis added).

And the Court has certainly heard patent cases with five-judge panels.  See, e.g., Animal Legal Defense Fund v. Quigg, 932 F.2d 920 (Fed. Cir. 1991).

So … here’s my somewhat odd idea to help reduce interpanel unpredictability (if one thinks, as some do, that there’s too much such unpredictability): If, after oral argument in a case, a three-judge panel splits its vote (i.e., there’s a dissenter), the case is reassigned to a five-judge panel that includes two more judges (as well as the original three) for a new argument (and more briefing, if needed).  In practical terms, this gives the dissenter the chance to persuade two other colleagues and become a new, three-person majority.  Or not.  Either way, the resulting decision involves more focused consideration by a greater number of the court’s judges.

What do you think?

Mike Madison has a wonderful, if scary, post at Madisonian for entering law students.  Give it a read!

Patently-O has the report: a day after the PTO published it’s new continuation and claiming rules, a suit’s been filed challenging the regulations on a host of theories.

A few thoughts …

(1) The constitutional arguments are just silly, proposing standards that have never been the law and aren’t going to be any time soon.

(2) The regulatory / Patent Office power arguments aren’t as silly, but they’re close. In my view, here’s what anyone who wants to knock out the new regulations on the ground that they’re beyond the Patent Office’s longstanding, sweeping power to “establish regulations, not inconsistent with law, which shall govern the conduct of proceedings in the Office,” 35 U.S.C. section 2(b)(2)(A), needs to be able to explain: As a matter of regulatory power, how are the continuation rules any different from, e.g., the rule that the application be presented in English (37 C.F.R. section 1.52(b)(1)(ii))? Or, for that matter, that it be presented on a particular type of paper (37 C.F.R. section 1.52(a)(1))? And it’s not enough to shout, as the complainers typically do, that section 120 provides for continuation applications. A continuation application filed in Finnish, or in white print on black paper, won’t be accepted.  Why should the third, or fourth, or fifth continuation application be accepted, without any explanation from the applicant about why the claim amendments and/or supporting arguments couldn’t have been presented earlier? How are the new rules different, given that — like the rule requiring an English-language disclosure — these rules are reasonably (if not perfectly) designed to help the Patent Office do its job of evaluating whether a given claim passes muster under the Act (including the written description requirement of section 112!)? Unless someone has a cogent answer to this question (and I haven’t heard one yet), the Patent Office rules strike me as an eminently reasonable, lawful exercise of the Office’s regulatory power to create an effective examination process at the Office.

I refer, of course, to Universal Music Group v. Augusto.

Augusto resold a UMG free promotional music CD on eBay. UMG alleges it’s copyright infringement.

EFF is on the case for Augusto, along with Keker & Van Nest.

Here’s the web page for pleadings, at EFF.

Tim Lee has written about the case, at both Ars Technica and The American.

A question I have … is the Bobbs-Merrill Co. case, the fountainhead of the first sale doctrine, any weaker now that the Supreme Court has, in the Leegin case, overturned the Dr. Miles case (which had held that resale price maintenance was a per se antitrust violation)? After all, the sale condition the book publisher purported to impose in Bobbs-Merrill was a resale price maintenance condition …

Seagate’s a sea change in the law of willful infringement and waiver of attorney-client privilege and work product protection. The standard for showing willfulness has been raised significantly, and the waiver rules have been greatly curtailed. Here’s the opinion, and here’s some coverage at law.com.

UPDATE: And here’s Peter Lattman’s story at the Wall Street Journal.

Here are the new continuation and claiming rules, a 128-page chunk of today’s Federal Register.