Condemned to Repeat? Or just, CAFC Review Redux, Re-Do.

Did not my 7th grade math book ask, if three persons can complete a task in 37.5 minutes, then how long would it take six persons?  The answer, based on CAFC decisions since Thanksgiving would be that two panels of three persons take twice as long to review a case than one panel – cause they do it twice.  Grappling with this inverse proposition, makes it more understandable why colleges put the math and philosophy departments in the same building.  But, I digress.

In the past months, the CAFC has busily issued opinions in cases that previously have been before that Court.  The most recent is Transclean v. Jiffy Lube, which affirms offensive collateral estoppel against a patentee who won an earlier infringement case.

Oh swell, the value of patents continues to be reduced.  A winning patentee may not get a post-verdict injunction; a patentee who settles based on a license has to worry that the licensee later will challenge validity, and now, winning an infringement suit against a maker can preclude later suits against other known infringers.  What’s next, no need for the infringer to prove teaching, motivation or suggestion?

The ‘back for a return engagement’ aspect of Transclean describes too the recent CAFC rulings in the E-Pass, the Abbott v. Andrx, and the Plumtree cases.  The recent E-Pass ruling works off a pre-Phillips claim interpretation decision in 2002.  The 2006 Plumtree decision now asks whether the 2005 case, involving a patent with slightly different claims, provided that “reasonable apprehension” that our Founding Fathers must have been thinking about when they quill-penned Article III onto the parchment. 

Now, in Transclean, the panel seems to focus on the opposite end of that apprehension spectrum, where the patentee does not give potential infringers a reason to expect suit.  The earlier, successful suit was affirmance of an infringement judgment granted as a discovery sanction.  There too was garden-variety infringement, over the disputed claim term “resilient”, but the earlier CAFC panel vacated (punted on) that, because one cannot be twice as much an infringer, i.e., the infringement as a sanction was adequate relief.  Of course, had the garden-variety infringement not been vacated, that would have come into play when Transclean II reached the CAFC, where the infringement sanction became grounds to preclude, as collaterally estopped, the patentee’s suit against the customers of the infringer in Transclean I

On second review, this is not at all like 7th grade math.  It is much more like the Myth of Sisyphus, and the philosophic battle between dung-balls and gravity.