Tuesday, February 08, 2005

FIRST REPORTS IN ON PHILLIPS V. AWG CORP.: The Federal Circuit Bar Association just completed a meeting with counsel for Phillips, AWG, and the USPTO immediately after their arguments at the Federal Circuit. The arguments were heavily attended at the Federal Circuit(250+ people), and it was standing-room-only. While nobody was ready to make any hard-and-fast predictions, there were a few interesting observations that were made about the oral proceedings:

(1) Of the "seven questions" presented in the en banc order (and the 50,000 sub-parts), the court was not able to address each of these questions individually. The perception was that the first three questions were the main focus of the court's attention.

(2) Everyone agreed that the Federal Circuit (uncharacteristically) focused on factual issues in the case. The court normally bemoans appellants that rehash factual issues instead of arguing the law, so everyone was surprised that they spent so much time on the facts.

(3) The court had virtually no discussion on prosecution history or expert witness testimony (question 6).

(4) The issue of deference to lower courts was only mentioned by Judges Rader and Mayer, and the other judges didn't address this issue at all. One commentator mentioned that this case was a poor one to resolve issues of deference, as the Markman hearing took place back in 2000, and was subsequently transferred before litigation resumed again.

Everyone seemed in agreement that this case had way too many issues that could be effectively decided on appeal. All together, there were approximately 35 amicus briefs filed, and the complexity of the issues presented were such that the court could not reasonably deal with them properly in the time allowed.

Nevertheless, one commentator predicted that he thought that the Federal Circuit would "quietly" conform the law more closely to Cybor, where lower courts could use extrinsic evidence to understand, but not to interpret, the claimed terms in a patent.

I will provide more details and links to other blog sites as they become available . . .

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