Not every appeal passes the laugh test.
Guest Post By Andrew J. Dhuey
Welcome to the first installment of Making a Federal Circuit Case of That? – an occasional peek at some unusually entertaining cases before the U.S. Court of Appeals for the Federal Circuit.
Our first case is Cornish v. Doll, argued on August 3, 2009. If you clicked the preceding link, you already know the unhappy ending for Mr. Cornish: a Rule 36 affirmance without opinion. Still, Mr. Cornish had his morning in court, and what a 25-minute session it was (audio file).
Mr. Cornish is an attorney who lost his right to practice patent prosecution before the PTO in 1995. Before he took the podium, Judge Rader quietly – but not quietly enough – prepared his fellow jurists for a bumpy ride:
0:19 JUDGE RADER (whispering to another judge): Fasten your seltbelt.
0:20 CHIEF JUDGE MICHEL: Yeah. Heh.
Safely buckled up, the judges heard Mr. Cornish explain what his case was about: free speech, religious freedom, Tafas v. Doll, continuing legal education, the patent bar exam, a name change in gratitude to God, and Olympic swimming. Mr. Cornish is an ardent opponent of the limits on continuation applications and claims at issue in Tafas. His 39-claim amended complaint suggests that Mr. Cornish dislikes numerical limits, generally.
The opening minutes of oral argument revealed much confusion about what Mr. Cornish was appealing and what he sought in relief. He seemed at least as interested in discussing Tafas as he was his own loss of eligibility to prosecute patent applications:
4:43 JUDGE LOURIE: How have you been damaged? This has nothing to do with Tafas.
4:50 MR. CORNISH: Well, if you would allow me to just mention the final rules, which is my concern.
4:57 JUDGE RADER: Well they’re not the concern of the court in this case. We have that case before us in another sense. We’re interested in you, and what reason you think you have for damages, and you have no stake whatsoever in the Tafas case, so please tell us about something that’s relevant to this matter.
5:18 MR. CORNISH: Alright, the reason why I was interested in Tafas is because it…
5:25 JUDGE RADER: I just said you have no interest in Tafas, tell us about this case.
With the focus back on Mr. Cornish’s personal grievance with the PTO, he explained that he changed his name around the time that the PTO removed him from its list of active patent attorneys:
6:52 MR. CORNISH: My name was Cornell D. Cornish. I went to the court…
6:58 JUDGE RADER: Yes, I know, you’re now Judge Cornish.
Some of the confusion in Mr. Cornish’s case concerned how he took and failed the patent bar exam three times after the PTO had declared him ineligible to prosecute patent applications. If, as Mr. Cornish contends, he was never properly removed from the PTO’s list of patent practitioners, then why did he sit for the patent bar exam three times?
7:35 JUDGE RADER: Well now we come to 2005, they tell you if you’re to be readmitted, you must take the [patent] bar, and you agree with that because you take it three times.
7:44 MR. CORNISH: No, sir, I don’t.
7:46 JUDGE RADER: Well why did you take the test three times?
7:47 MR. CORNISH: Simply because of CLE. I’m required in
7:58 JUDGE RADER: You’re educated by taking the tests, is that it?
8:01 MR. CORNISH: Yes, indeed, absolutely. So, I’m like Mark Phelps, who lost a race after winning five gold medals. Just because I simply didn’t get a passing grade on the exam doesn’t mean that I’m not qualified or competent.
Okay, it’s really Michael Phelps and he won gold medals in all of his eight events in
As time ran scarce, there was really only one question left to resolve: why did Cornell D. Cornish become Cornell D.M. Judge Cornish?
23:49 JUDGE LOURIE: Question – why did you change your name?
23:53 MR. CORNISH: Well, it’s actually a First Amendment religious case because I changed my name after heart surgery and my heart stopped for one hour. And the only explanation I can find for my survival for quite a few years since is divine intervention. So I took my new names out of the Bible in thanks to God for whatever mercy He had given me. It’s much, much more than I deserve. And my name was told – I told the Patent Office I’ve changed it and it was for religious reasons. It wasn’t as they point out that I was resigning to avoid the embarrassment of disbarment.
And with that miraculous finish, the ride came to a complete stop. So did Mr. Cornish’s appeal, which, as mentioned, the court summarily rejected the following day.