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Federal Appeals Court Hears Oral Arguments

Mary Wood

A panel of judges from the U.S. Court of Appeals for the Federal Circuit lobbed quips and tough questions at attorneys arguing four cases at the Law School Oct. 2, in what was the court’s first hearing in Virginia. Chief Judge Paul Michel ’66 presided, along with Senior Judge S. Jay Plager and Judge Randall R. Rader, who has taught at the Law School.

Federal Appeals Court Hears Oral Arguments
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The panel heard cases on patents involving Adidas athletic shoes and motion sensors, on a pet treat trademark, and on whether a former federal firefighter qualified for certain retirement benefits.

In Akeva LLC v. adidas-Salomon AG and adidas America, Inc., Akeva attorney Dirk Thomas argued that his client’spatented technology was used in shoe technology employedby adidas. “This is a very good case today because half theaudience no doubt is probably wearing athletic shoes,”joked Plager.

The case offered students an inside look at the kinds of technical minutiae debated in patent cases, which often involve making fine distinctions among similar technologies.

The adidas shoe heel in question was not detachable, and the “inventor [appellant] criticized the prior art for having detached use,” adidas attorney Doug Kline offered in defense of his client. “We believe the claim’s language covers a rotatable heel,” argued Thomas—and that description is not limited to detachable heels.

The panel’s second case, In Re Pet Food Centers, LLC, was appealed from the U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board decision. Attorney Tim Pecsenye argued that the board rejected Pet Food Center’s trademark application for the name “Play Things” based on spurious Internet evidence. Pet Food Center’s products include the Dingo Goof Ball, an edible rawhide ball wrapped around a chicken jerky treat.

“What’s the harm in letting them have this Play Things label?” Plager quizzed associate solicitor William Jenks. “The harm is, we’re removing from the lexicon words that can be used to describe products,” Jenks replied. Pet Food Centers may re-apply for the trademark with new standing if the Play Things label becomes distinctive in the marketplace, he added.

In the third case, DESA IP v. EML Technologies, LLC and Costco Wholesale Corporation, DESA IP appealed a decisionfavoring EML Technologies, which created an outdoorlight the appellant said infringed on its motion-sensortechnology. Costco distributed EML’s light.

The judges were troubled by the district court’s reliance on the appellee’s expert. “[The expert] seems to have made up a whole new nomenclature,” Michel said, and the judge seemed to accept it. “What’s really at issue in this case is whether they’ve succeeded in designing around your patent,” Plager told DESA counsel James Higgins Jr.

At stake in Thor Weatherby, III, v. Department of the Interior was whether Weatherby, an Interior Departmentemployee who previously served as an electronic mechanicfor an Alaskan firefighting team, qualified for the federalgovernment’s Civil Service Retirement System, whichwas phased out in 1987. To qualify under the old system,

Weatherby needed three years of service as a firefighter prior to 1987. The Interior Department questioned whether several months of his service qualified as the kind of work that the system was designed to reward.

Weatherby’s job involved rigorous activity, if not the direct threat of fire, Michel pointedly told the government’s attorney; he climbed mountains to set up communications equipment, for example. Weatherby’s counsel, Craig James, noted his client was involved in 11 fires during the sevenmonth period in question, “many of which went days.”