by Dennis Crouch
In BobCar Media v. Aardvark, the patentee (BobCar) sued Aardvark for infringing its utility and design patents as well as its trade dress related to mobile showroom services. The patentee lost on a motion to dismiss with the district court holding that BobCar had not proven its ownership rights. No ownership => no standing to sue. 
On the one hand, BobCar is listed as the assignee on the patents and the inventors stated under oath that they did assign rights to BobCar. “I am 100 percent sure that we assigned the patents to BobCar Media, LLC.” In addition, BobCar more recently filed a retroactive nunc pro tunc assignment. On the other hand, BobCar could not find the original assignment documents and apparently never actually filed it with the USPTO. In the end, the district court dismissed the case — finding insufficient evidence of ownership.
On appeal, the Federal Circuit affirmed, but did so without any opinion — simply a R.36 judgment without opinion.
BobCar has now filed a petition for writ of certiorari — focusing particularly on the issue no-opinion judgments as a matter of due process and appellate procedure.
1. Whether the Court should resolve the circuit split under Federal Rule of Appellate Procedure 36 (wherein a minority of circuit courts issue judgments without any explanation of their decisions), and elucidate whether or not the use of one-word affirmances has constitutional and statutory boundaries.
2. Whether the Federal Circuit’s extensive use of its Rule 36, to enter judgments which extinguish constitutional rights and private property rights without any explanation, violates constitutional and statutory protections, principles of right and justice, and this Court’s supervisory authority.
3. Whether Federal Circuit Rule 36(a)(3) violates constitutional principles, such as the Seventh Amendment, Due Process, and Equal Protection, by authorizing panels to affirm summary judgment decisions denying jury trials, without any explanation whatsoever, and irrespective of the rules and rights in the circuit from which the case was appealed.
The case relates to a paper I wrote several years ago, although my argument against R.36 judgments was based upon a statute that applies only to appeals from the PTO.
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I spent many days in Princeton’s Fine Hall that housed the mathematics department. The petition includes an interesting story about obviousness:
In Princeton’s Fine Hall, Boas recalls, someone once posted a “Scale of Obviousness”:
If Wedderburn says it’s obvious, everybody in the room has seen it ten minutes ago.
If Bohnenblust says it’s obvious, it’s obvious.
If Bochner says it’s obvious, you can figure it out in half an hour.
If von Neumann says it’s obvious, you can prove it in three months if you’re a genius.
If Lefschetz says it’s obvious, it’s wrong.
Source: https://patentlyo.com/patent/2021/08/ownership-opinion-judgments.html
