February 9, 2009
Another Patent Statute Example
As noted below, I'm again teaching patent law and so the statutory interpretation issues are really jumping out at me.
The latest case is almost the mirror image, conceptually, from the one discussed below. In Thomson, SA v. Quixote Corp., 166 F.3d 1172 (Fed. Cir. 1999), the court recognized that the language it was interpreting, 35 USC 102(g), was not intended to apply to a particular circumstance, but, nonetheless held that it did apply. In a footnote (!) the court ignored the express statement of the "commentaries" that, in other contexts in patent practice, are given enormous weight, and instead relied on plain language (which one could easily debate) and later judicial constructions. It's way too esoteric for you non-patentees out there, but the juxtaposition of this case with the one below is fascinating.
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