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« Court Report | Main | Qualtrics, LLC v. OpinionLab, Inc. (PTAB 2016) »

April 25, 2016


Justice Sotomayor's Mach Mining question was the high point of the hearing. I am indifferent about BRI, but I really hope that the SCotUS uses this opportunity to restore flexibility to the CAFC's too-rigid reading of § 314(d).

Best summary of the oral argument posted to date.


Flexibility for the sake of itself is not a desired trait for statutory (not common) law domains.

Regarding "restore flexibility to the CAFC's too-rigid reading of § 314(d)" - the rigidity is NOT with the CAFC, but instead is in the blunt and direct writing itself (you seek to blame the wrong entity and then invite the wrong solution).

The rule of law is not (or should not) be a nose of wax... (to borrow a phrase)

"Justice Breyer was not accurately portraying Cuozzo's patent with this example, because it was not as simplistic as simply selecting a particular color for the indicator. "

Selecting a color is actually more complicated that Cuozzo's "innovation" (<-LOL), and might even be remotely "technical" if there was some teaching away from using the particular color or if the color was unexpectedly useful.

Cuozzo's claim has none of that. Kudos for Breyer for recognizing these claims as junk.

The proper standard in PTAB trials should stand alone and not depend on whether the PTO sometimes issues bad patents, any more than you change the proper standards for criminal conviction because a bad guy got off.

If the current procedure cannot properly distinguish good patents from bad, the solution doesnt have to lie in the standard, but the procedure. The rest of the world conduct oppositions with the right to amend, and it has worked well. Why does the PTO insist on BRI without a realistic right to amend the claims?

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