The best source for IDCC is still the club at Raging Bull.
I agree. For example, there was very good coverage of the IDCC and NEC arbritration proceedings at the club before the settlement. It just goes to show the good that can happen when you take out the wackos with multiple personalities and multiple screen names, who are typically capable of posting more than 100x a day, out of the loop.<g>
Anyway, here are a couple of commentaries on Festo vs SKKKC, which many patent lawyers call 'the most important patent case in decades.' This clearly has bearing on IPR companies like IDCC.
Tuesday January 8, 9:50 pm Eastern Time
Supreme Court Hears Arguments in Landmark 'Festo' Patent Case
Tony Mauro (American Lawyer Media) --
Taking on a high-stakes patent dispute, the U.S. Supreme Court on Tuesday appeared to be searching for a way to soften the impact of a lower court ruling that critics say has sharply limited protection for more than 1 million patents.
The Court heard arguments in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., No. 00-1543, a dispute over conflicting patents for "rodless cylinder assemblies," described by many patent lawyers as the most important patent case in decades.
The U.S. Court of Appeals for the Federal Circuit, in a November 2000 ruling, said that the traditional protection enjoyed by patent holders against near-copycat competitors -- known as the doctrine of equivalents -- is stripped away if the patent claim was narrowed during the application process.
The circuit said it was striving for a clear rule in an area of patent law that had been governed by what it described as an "unworkable" flexible approach to deciding when patent amendments weakened the protection of the doctrine of equivalents. Patents are frequently amended during the review process, often at the request of examiners seeking clarification.
Instead of bringing clarity, Festo lawyer Robert Bork told the high court, the Federal Circuit had "drastically undermined" the patent system with a rule that would not reduce patent litigation. "One thing this rule does not do is eliminate uncertainty," said Bork.
The retroactive application of the rule, Bork added, would render millions of patents "virtually worthless." As for the future, Bork said that patent lawyers, not wanting to trigger amendments, would seek patents that were too narrow to start with, patents that would be "of little value" and would discourage innovation.
Bork added, "If this were done by anything other than a court, it would be a taking" in violation of the Fifth Amendment.
Bork offered up the parade of horribles in a quiet but commanding tone that seemed to resonate with the justices, including Antonin Scalia and Chief Justice William Rehnquist. Rehnquist expressed resentment about the Federal Circuit decision, asserting, "I dare say we're in a better position to interpret our cases than the Federal Circuit."
Justice Anthony Kennedy, who holds the seat that Bork aspired to before his nomination was rejected in a bitter battle in 1987, spoke repeatedly of the "very serious consequences" of the Federal Circuit's rule.
Bork's sweeping condemnation of the Federal Circuit decision prompted several justices to muse about alternate approaches.
Justice Sandra Day O'Connor asked repeatedly about suggestions made by the solicitor general and by the Institute of Electrical and Electronics Engineers that would modify the Federal Circuit rule to give patent holders protection for amendments that were not foreseeable when the claim was first made. Deputy Solicitor General Lawrence Wallace represented the United States before the Court.
Justice Stephen Breyer, noting that the Federal Circuit is "supposed to be the expert on this," even suggested at one point that the Federal Circuit rule could be viewed as a short-term experiment that could be scrapped if unsuccessful. Rehnquist later obliquely responded to Breyer, suggesting that counting on the Federal Circuit to reverse itself if its ruling does not work out was "not the most auspicious view."
Just as Bork sought to emphasize the sweeping impact of the Federal Circuit rule, adversary Arthur Neustadt tried to minimize it. Neustadt, a partner at the Arlington, Va., patent boutique Oblon, Spivak, McClelland, Maier & Neustadt, argued on behalf of the Japanese firm that most patent litigation does not involve the doctrine of equivalents. Most patent amendments, he added, are not narrowing amendments, so the Federal Circuit rule does not affect most cases.
"It has been in effect for 13 months, and there have really been no problems," said Neustadt.
Justice Kennedy countered, "Maybe everybody is waiting for this case."
Neustadt argued that the Federal Circuit rule would bring much-needed predictability to the patent process, allowing competitors to innovate in the areas that were vulnerable to litigation under the old rule.
Tough questioning for Neustadt came from several justices who wanted him to square the Federal Circuit ruling with Warner-Jenkinson Co. v. Hilton Davis Chemical Co., the 1997 decision that established the central principles of the doctrine of equivalents.
Justices Scalia and Ruth Bader Ginsburg expressed skepticism when Neustadt said that the two rulings could coexist.
Neustadt stumbled on occasion, referring to Justice John Paul Stevens as "Justice Stevenson" and addressing Breyer as "Mr. Breyer" rather than "Justice Breyer."
It was clear from the arguments that the justices had tried, but not always succeeded, in comprehending the dense and arcane rules and language of patent law.
"I've had a lot of problems understanding this patent theory," said Justice Stevens at one point. As for the more than 40 amicus briefs that inundated the Court in the case, Stevens confessed, "I can't say I've read them all."
chipcenter.com
Intellectual Property Prospectives
Festo Heard by the U.S. Supreme Court
by Brian Elfman, Contributing Editor
On January 8, 2002, the U.S. Supreme Court heard arguments from Festo counsel Robert Bork and opposing counsel Arthur Neustadt. [Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. (Festo: No. 00-1543)]. This is an update to this open series on Festo. Of these articles, on May 16, 2001, I highlighted Judge Bork's (ret.) coming on board as Festo's lead counsel. Bork delivered the goods. A job well done. Tony Mauro (of American Lawyer Media) wrote "Bork's sweeping condemnation of the Federal Circuit decision prompted several justices to muse about alternate approaches." (biz.yahoo.com/law/020108/44640-2.html)
How 'bout that! To add to Festo's day in Court, opposing counsel Neustadt (I favor neither side here) lost his concentration on occasion under what Mauro called "tough questioning from several justices."
If it was a good day for Festo, it was an equally good one for design engineers and independent inventors. The IEEE amicus brief was at center stage.1 Justice Sandra Day O'Connor's questions bore directly on the arguments advanced by IEEE in its amicus. Reporter Mauro noted other justices picked up on the "foreseeable bar" proposed by IEEE. I should quickly add that the IEEE amicus was highlighted last fall in my article IEEE Files a Festo Amicus Brief—An Update on This Major Case. I hope to do an analysis of the "foreseeable bar" in this column's next installment. The consensus among legal scholars is that Festo is singly the most important patent case in several decades. That more than justifies the attention Festo's been given in the media and here as well.
It is noteworthy that of the more than 40 amicus briefs filed, only two supported the Court of Appeals ruling. One being IBM. That's very disappointing for independent inventors. IBM is the leading company in terms of the number of patents awarded each year. It's also the leading licensor of patents in the world at between $1–$2 billion per year revenue. The other is, not surprisingly, Ford Motor Company. Ford is greatly vilified by most independent inventor organizations as being anti-inventor and anti-patent system. And only two amicus briefs favored neither side (IEEE and the U.S. Solicitor General's—the only other amicus briefs mentioned in Court). The balance were filed in favor of Festo
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