The Patent Trial and Appeal Board (PTAB) might get its role cemented by month's end

Summary: Ahead of WesternGeco and Oil States, following oral proceedings, it's expected that the highest court in the United States will deliver more blows to patent maximalism

TECHRIGHTS attempts to simplify things and strives to put US patent news in simple terms that anyone can understand. The USPTO and US courts -- just like law firms that try to impress/show off by confusing -- like using jargon, legalese and sometimes Latin words/phrases. It's like they encrypt everything to necessitate 'professional' legal advice while pushing away those outside the patent microcosm (excluding it from the debate).

The US Supreme Court (SCOTUS) is a bit different. When dealing with patent matters it uses more generic terms because it looks at the matters from a Constitutional perspective and Justices -- unlike patent judges -- aren't experts in these particular domains (which is a positive, not just a negative). Justices can look 'outside the box', so to speak, and sometimes their rulings can be expected based on what they say in oral proceedings. They very often overturn the CAFC (Federal Circuit), which historically needed patent maximalism to justify its existence.

"It’s like they encrypt everything to necessitate ‘professional’ legal advice while pushing away those outside the patent microcosm (excluding it from the debate)."The other day I publicly exchanged some messages with Daniel Nazer‏ (EFF) regarding Oil States. It's a decision that everyone in the patent world is waiting for and it has been almost exactly a year since TC Heartland. Nazer‏ told me that Oil States will be decided before summer after he had written about WesternGeco (not so relevant to us) as follows: "Thoughts on WesternGeco hearing today in S.Ct: 1) did not go well for respondent; 2) court likely to reverse Fed Cir; 3) ruling will open door to international damages in 271(a) cases (bad) but leave open possibility comity/proximate cause cuts chain of causation in those cases. [...] although EFF supported the respondent in this case, the petition for cert is one of the best I've seen. If you're looking for an example on how to get the Supreme Court to take your case, it's a good one."

As we noted the other day, oral proceedings took place and soon came media coverage from patent-centric news sites. WIPR wrote:

Today, the US Supreme Court will hear oral arguments in WesternGeco v Ion Geophysical, a case concerning lost patent profits occurring outside the US. WIPR outlines the key issues and what’s at stake.

[...]

Ron Cahill, chair of law firm Nutter McClennen & Fish’s IP litigation practice group, explained that the key issue is whether US patent damages are available even where the infringing device is made and sold outside the US.

WesternGeco, a subsidiary of global oilfield services company Schlumberger, has asked the Supreme Court to consider whether the US Court of Appeals for the Federal Circuit erred in finding that lost profits arising from prohibited combinations occurring outside the US are unavailable in cases where patent infringement is proven.

Dennis Crouch expects the CAFC's ruling to be overturned. In his own words:

In my view, the Supreme Court is quite likely to overturn the Federal Circuit’s limitation on lost profit damages and hold instead that Section 284 allows for full compensation for all forms of infringement. The key analogy that may well have won the day is that of the hypothetical French Tourist injured while visiting the US and left unable to work. Under ordinary U.S. tort law, the tourist would still be able to collect full damages even though the job-loss is in France. Likewise, according to petitioner and USGov’t, the US patent infringement act (export) should lend itself to full compensatory damages. That said, I expect for the Supreme Court’s opinion to place additional language on the meaning of proximate cause that may eventually force the Federal Circuit to tighten its doctrine in that area.

Here is another site of the patent microcosm commenting on it some hours ago:

In WesternGeco v Ion Geophysical, the Supreme Court seems prepared to overturn the Federal Circuit’s decision to limit lost profit damages abroad in the case of domestic infringement based on the presumption against extraterritoriality

The Supreme Court heard both WesternGeco’s and Ion’s arguments on April 16 in a case involving lost profit damages.

We can't stress strongly enough that this case has little or no impact on the subjects we're covering. Having said that, it's valuable in showing where SCOTUS (now with the enigma that is Justice Gorsuch) stands on patent matters. ⬆