Mister Softee Bitten By Waiver Under FRCP 50

by Lee Gesmer on January 18, 2010

Mister Softee Bitten By Waiver Under FRCP 50

I’ve written before about how dangerous waiver is for lawyers.  It lurks everywhere, like sharp coral just a few inches beneath the water off an inviting tropical beach.

In Microsoft’s recent loss to i4i in federal court in Texas affirmed by the Federal Circuit, Mister Softee (stock trader slang for Microsoft), found itself hung up on a reef with razor sharp coral when the Federal Circuit may have refused to reverse a $290 million trial verdict on what the court considered a waiver technicality.

As every experienced trial lawyer knows, trials are a virtual waiver landmine – if you don’t proffer the evidence a judge excludes, you’ve waived it on appeal.  If you don’t object to jury instructions, you waive the right to challenge them on appeal.  This list seems almost endless, and there’s nothing a federal court of appeals likes more than to dismiss an argument on the grounds that it was, somehow, waived during trial.… Read the full article

Listen to Oral Argument in Bilski v. Kappos

by Lee Gesmer on December 10, 2009

Well, sort of.

You can wait until the end of the term to hear oral argument in Bilski v. Kappos, or you can listen to Professor Doug Lichtman’s students’ impassioned reading of the transcript, on the superb Intellectual Property Colloquium.  I found this reading to be very accessible – a new twist on audiobooks.

IP Colloquium is by far my favorite legal podcast.  Professor Lichtman has great guests and provides thoughtful commentary.  This Shakespearean treatment of an appeal hearing is inspired.

(Nice summary of the background of Bilski, and what’s at issue, on Bill Trout’s blog).

And, some nice quotes from the justices, trying to figure out the limits of patent protection.  Could a patent protect –

“somebody who writes a book on how to win friends and influence people?””horse whisperers?””a method for speed dating?”

“a great wonderful, really original method of teaching antitrust law?”

“actuarial tables and risk formulas?”

In the meantime the CAFC is applying its “machine or transformation” test from its en banc ruling in In re Bilski. … Read the full article

Judge Michel Announces Resignation, Lays it On the Line (and promises more to follow)

CAFC Chief Judge Paul Michel doesn’t pull punches when he states his views on problems with the U.S. patent system and the federal courts more generally, and he didn’t pull too many when he announced his upcoming retirement from the CAFC on on November 20, 2009.  A few notable quotes from his speech:

On interlocutory appeals of claim construction rulings to the CAFC: A provision in a Senate patent reform bill would allow interlocutory appeals of Markman rulings.  Predictably, Judge Michel doesn’t like the idea.  He states that interlocutory appeals would double or triple the case load on the CAFC, and the court “can’t handle it.”

The median time to adjudicate a patent case before the CAFC?  One year “from filing, to the opinion going up on the Internet.”  Interlocutory appeals would double this to two years.

And, interlocutory appeals are unnecessary as a practical matter, he argues.  Some interesting statistics from Judge Michel:  “About 3,000 [patent cases] are filed a year, about 2,700 settled spontaneously.… Read the full article

Expect a "Perilous Future for Most Business Method Patents," Saith Judge Marylin Patel

Judge Marylin Hall Patel, a federal district judge in the North District of California (San Francisco/Silicon Valley) since 1980 and Chief Judge in the District from 1997 – 2004, is a well known federal judge when it comes to intellectual property matters. For example, Judge Patel decided the Grokster case at the district court level, which eventually was affirmed by the Supreme Court, and she has decided many patent cases.  When she speaks on IP matters, one would do well to listen

Therefore, her March 26, 2009 decision in Cybersource v. Retail Decisions is of no small significance. In this case Judge Patel applied In re Bilski to invalidate two business method patent claims in U.S. Patent No. 6,029,154, titled “Method and system for detecting fraud in a credit card transaction over the Internet.” The CAFC’s decision in Bilski requires that a process either be tied to a machine or apparatus or involve a transformation, and Judge Patel held that the ‘154 patent failed this “machine-or-transformation” test.… Read the full article