All Eyes On Translogic's Patent Appeal to Supreme Court

Normally, a party who loses its appeal at the Federal Circuit has little hope of the Supreme Court accepting its case on a petition for Certiorari. Even with increased activity by the Supreme Court reviewing patent cases in the last two years, chances of having review granted by the Supreme Court are less than 1 in 1000. Oregon maker of multiplexer integrated circuits, Transolgic Technologies may have better chances.

I posted last October (here and here) about this case when Translogic sought rehearing by the CAFC en banc. It took the Court until January 2008 to finally deny rehearing. Now, with its $86.5M jury verdict hanging in the balance, Translogic has pulled out all the stops for its petition for certiorari, hiring noted patent legal scholar, John Duffy of George Washington University Law School to challenge the constitutionality of the BPAI's 61 administrative judges. Click here for an article on the case by the National Law Journal.

The National Law Journal quoted Duffy as follows:

"You shouldn't take such a position — saying the whole board is unconstitutionally structured — unless you're pretty sure," said Duffy. "I thought this was incredible. I checked it every single way I could before I went out on a limb to say this . . . .The government has never argued I'm wrong. The question is: What do you do about it?"

Needless to say that many a patent litigator has pondered the question: "Should I stay pending reexam, or let the cases proceed along parallel tracks?" Some district courts (like those in East Texas) are notoriously against staying litigation pending reexamination. In these districts, litigants have little choice but to proceed on parallel tracks. What happens, then, if the patent holder wins (verdict of infringement, patent not invalid) and the claims are held invalid by the BPAI? Translogic says the BPAI's ruling (by a panel of three nonArticle III Judges) can trump a jury's verdict. As many lawyers (myself included) say, "that just can't be right."

Well, we soon may find a definitive answer to this question, and it may cause the unravelling of the BPAI's administrative judicial system. These are indeed exciting times to be practicing patent litigation.

Supreme Court Hears Oral Arguments in LG v. Quanta

On Wednesday, the Supreme Court heard oral arguments in the LG v. Quanta case, a case dealing with the doctrine of patent exhaustion. This is an incredibly important decision because it may transform how patent licenses are drafted and negotiated. Many believe that the Supremes will rule in favor of Quanta, overturning the Federal Circuit's decision, holding that patent rights covering methods or system claims are exhausted when the thing used to carry out that system or method is sold. Here is a link to the oral argument transcripts. Patent Troll Tracker had this to say about the arguments:

"It's very hard to read Supreme Court tea leaves. In this case, though, I think that Justices Roberts, Stevens, and especially Breyer honed in on exactly the problem with the Federal Circuit's opinion in LG. Justices Alito and Thomas were completely quiet. Justices Scalia, Kennedy, Ginsburg and Souter asked questions, but without really revealing which way they were leaning, although Justice Scalia did seem to discount that LG/Intel's notice meant anything, and Justice Ginsburg picked up on the fact that LG could have expressly conditioned its license requiring Intel to sell products only to licensed companies. So, on balance, I'd say the Court appears to be leaning towards overturning the Federal Circuit, but perhaps only slightly, and I certainly won't be surprised if it's a 5-4 or 6-3 decision the other way. And who knows what the scope of the opinion will be? Should be interesting."