Last Wednesday the Chicago IP Alliance held its second annual Chicago IP Day at Loyola. It was, no surprise, an excellent program providing an information-packed day. I do not have the time to summarize all of the presentations, but I will give some highlights. George McAndrews, McAndrews, Held & Malloy, gave a very interesting presentation outlining his views on the Supreme Court’s recent eBay v. MercExchange opinion requiring the use of the standard permanent injunction test to determine whether a permanent injunction should be granted after a patent infringement judgment. Essentially, he argued that the Supreme Court’s ruling contradicts the constitutional grant of a limited monopoly. His presentation led to some spirited debate at various tables during the excellent lunch in Loyola’s beautiful new conference room atop the law school.
The day’s keynote presentation was by the USPTO’s Deputy General Counsel and Solicitor General John Whealan. John’s presentation lived up to my advance billing. He gave his take on the Supreme Court’s recently increased interest in the patent laws. While I cannot do all of his remarks justice, he outlined three instances in which he felt the Supreme Court was taking patent appeals. First, circuit splits — splits between the Federal Circuit case law and the law of a regional circuit pre-Federal Circuit. Second, and maybe the most obvious, splits between different Federal Circuit panels. And third, on Cert. View of the Solicitor General ("CVSG"). CVSG is a process initiated by the Court, when they ask the Solicitor General for its view on whether the Court should grant cert. The Solicitor General works with the relevant governmental entity, the USPTO in the case of patents, and hears arguments from each side of the case before sending the Supreme Court its recommendation. Whealan stated that CVSG had been used once for a patent issue prior to 2000 and 17 times since then. Once again, if you get the chance to hear Whealan speak, do not pass it up. You always learn something and he is always an entertaining speaker.
Great job to the folks at Loyola and Kent for putting together an excellent and educational day.