Kelley Drye Misses First Step in Collecting $14 Million Fee from Client

By Dennis Crouch and David Hricik

Kelley Drye & Warren, LLP v. Orbusneich Med. Co. Ltd., BVI, 2014 WL 1814204 (Conn. Super. Ct. Apr. 4, 2014). KDW Decision

In this case, the law firm of Kelley Drye (KDW) has sued Orbus to collect the $14,000,000 that it claims to be owed as part of its alternative fee arrangement for handling litigation on behalf of its then-client, Orbus, against Boston Scientific.

The basics: Orbus hired KDW to litigate its patent infringement and related common law claims against Boston Scientific. Orbus was advised that the suit would go quickly on the rocket docket of the Eastern District of Virginia. The fee-setup was a hybrid-contingency-fee arrangement with a guaranteed payout of $375,000 for pre-trial work and another $325,000 for the trial, if necessary. In the event of a settlement, the agreement called for KDW to then receive the full hourly rate for their work plus a “success fee” based on the settlement amount.

The case was filed in the Eastern District, but then was transferred to Massachusetts. Then, Boston Scientific moved for reexam and the suit was stayed. Thus, things were in a ditch:

At this point the exchange of correspondence between the parties (Defendants’ Exhibits B, C & D) make clear that: (1) the U.S. litigation begun by KDW on behalf of Orbus was stayed for possibly several more years; (2) no leverage whatsoever of the kind envisioned in Attorney Moore’s engagement letter (Plaintiff’s Ex. 2) had been brought to bear on Boston Scientific; (3) the settlement value of the U.S. litigation had minimal or no cash value at all; and (4) Orbus’ patents had possibly been placed in jeopardy by the continuing reexaminations. In reviewing the results obtained by counsel when determining the reasonableness of fees charged, the court cannot find on these facts that KDW added substantial value to Orbus’ legal interests as of July of 2012, after three years of litigation and millions of dollars of time expended.

Orbus then turned to replacement counsel. Their strategy had Orbus file a number of European actions, including ones in Germany, UK, Ireland, and the Netherlands. KDW was not much involved.

In 2013, Orbus and Boston Scientific came to a settlement resulting in a one-time payment to Orbus and a worldwide patent license for Boston Scientific. KDW then added-up its fees thus far in the litigation ($2.8 million) and added on its success fee bonus before sending its $14 million bill to Orbus.

When the (now former) client balked, KDW filed suit. In this decision, the trial court rejected KDW’s argument that it was entitled to pre-judgment relief, apparently in the form of some sort of state law attachment of Orbus’ assets. The question the court had to decide was whether KDW was likely to prevail on the merits.

Attorney fee arrangements are treated somewhat differently from ordinary commercial contracts – here the court indicated in can only enforce attorney fee arrangements to the extent that they are reasonable. All state professional responsibility rules prohibit the collection of unreasonable fees. Regarding reasonableness, a major question is whether the attorney exerted substantial effort and/or added substantial value.

Here, the European cases began after the US case was stayed. That fact aided Orbus’s argument that KDW added no value to the European cases. In addition, Orbus argued that the terms of the fee arrangement do not extend to those cases. And, if it had to pay KDW for the European monies then Orbus would effectively be paying “twice for the same legal service” since its European attorneys must also be paid.

Based upon these facts, the trial court stated:

[T]he court is unable to find even a reasonable suspicion that KDW would prevail on the merits at trial, and that the trier of fact would find the superseding contingent fee agreement enforceable in the full amount of $14,560,000.00.

At this point, the court has denied preliminary relief, but KDW still has the opportunity to prove its case at the trial.

180 thoughts on “Kelley Drye Misses First Step in Collecting $14 Million Fee from Client

    1. Once you’ve turned light into matter mayhap you’ll have something eligible. I don’t see why this involves Nuijten.

      1. Once you’ve turned

        past tense…?

        (… read the article 6 – the article is speculating on an improvement of something already done)

        Another example of you and your projecting habits, as elsewhere you implore me to read without misunderstanding, while it is you that happens not to be able to do so.

          1. (the past tense – right forest – is that the making of photons into particles has already happened – just not in a manner that one does not use other matter)

            In that regard, 6’s statement is not correct (whatever the tense).

            1. Of course my statement is “not correct” because Mr. OCPD says so. Only Mr. OCPD can be “correct”. But instead of letting this ruin our interpersonal discussion anon I’ll overlook what you’re saying most recently.

              However, when I talk to you about these sorts of fringe nonsense please do me a solid and just be glad you have someone to talk to about your wingnut ideas, k anon?

              If you want to explain to us all, in simple terms that the everyman can understand, what this has to do with Nuijten I’ll do you a solid and listen to you. Right now I see Nuijten as simply saying light signals (and other signals) are not patent eligible as they are transitory etc. You say scientists now are theorizing yet another way of turning light into matter, this time using no matter and simply turning a huge amount of energy into matter (the opposite of what happens at a nuclear power facility). I don’t see the relevance. What a theoretical way of turning light into matter has to do with light itself (or signals made thereof) being eligible is not immediately clear to me. If you’d like to tell us all, in simple terms what the relevance is, then maybe some of us will talk to you about it. If you don’t want to, that’s cool too.

            2. No 6, you are not correct merely because I say so.

              You are not correct because, in fact, you are not correct.

              That I say so is only indicative that I am sharing reality with you.

              This is really not that difficult to understand.

              Solid matter light has been created. The article exhibits a likely improved manner of creation.

              First steps first – do you understand that?

            3. “Solid matter light has been created”

              There is no such monster and they are not proposing creating such a monster. The article is talking about making light (certain kinds of photons) into matter (various particles with mass) brosef. Not making some sort of hybrid light/matter beast called “solid matter light”. They’re merely proposing turning gamma ray (iirc) photons into electrons and other particles that have mass. As the article noted, this has already been done before, except before they had to use particles with mass along with light in the change process. The only new thing is that they aren’t going to be using those particles with mass in the conversion process, instead just using massless particles. Either way, no new thing called “solid light matter” has been proposed or exists as of now.

              You need to know and understand enough physics to understand what the article is talking about before you continue this discussion. Take a few college courses.

              Also recall that the whole paper is theoretical and hasn’t even been achieved. Thus, no matter what the article is proposing it hasn’t come to pass just yet brosefus.

            4. There is no such monster

              Obviously, you did not read the article which explicitly stated otherwise. (and yes, “solid matter light” should read solid matter from light” – that is clearly evident from the string of my posts – don’t be such a pedantic arse to hang your total argument on a typo)

              You don’t need college training to engage in basic reading 6 – I do suggest that you learn how to master that simple skill before you get so haughty on these boards, as you just look like a total arse.

            5. ” solid matter from light”

              Oh, well yes that is the subject of the theorization in the article. If it is so simple then I’m sure someone will try it out and we’ll just see if it works or not.

              Note though that people have been theorizing about turning energy into matter for a long time. A long long time. So I wouldn’t get my hopes up.

              ” that is clearly evident from the string of my posts”

              Sorry I thought you were just being a retard.

              Alright so, we’re all more or less on board with the facts from the reference. The article has proposed an experiment that some scientists think will turn some light into matter (even though people have tried and failed to demonstrate that for probably a century). We both also understand that them proposing the experiment doesn’t mean it has been demonstrated just yet.

              Now, carry on, let’s proceed down this wingnut path to where you ultimately arrive at something that is relevant to Nuijten.

            6. Tell me 6 – what is the “so soundly established in physics” reason why the man-made changes in Nuitjen were not considered to be manufactures.

              Are you even aware of the legal reasoning used and how that legal reasoning was built on a faulty foundation of physics?

              Tell me 6 – you fancy yourself something of an aficionado in physics, right?

              What was the basis in reality that the law as rendered in Nuitjen rests on?

            7. “Tell me 6 – what is the “so soundly established in physics” reason why the man-made changes in Nuitjen were not considered to be manufactures.”

              I don’t know about any “changes” or “man-made changes” in Nuitjen, I know there were some signals though. The signals were not considered to be manufactures at least for the reason that they were transitory and not within what the word “manufactures” or “products” would mean as a simple matter of law. If I recall correctly. The wording the court used was:

              “A transient electric or electromagnetic transmission does not fit within that definition. While such a transmission is man-made and physical—it exists in the real world and has tangible causes and effects—it is a change in electric potential that,
              to be perceived, must be measured at a certain point in space and time by equipment capable of detecting and interpreting the signal. In essence, energy embodying the claimed signal is fleeting and is devoid of any semblance of permanence during
              transmission.6 Moreover, any tangibility arguably attributed to a signal is embodied in the principle that it is perceptible—e.g., changes in electrical potential can be measured. All signals within the scope of the claim do not themselves comprise some tangible article or commodity.7″

              And that appears reasonable to me. From a physics perspective. And from an everyday perspective. Also from a legal perspective.

              “Are you even aware of the legal reasoning used and how that legal reasoning was built on a faulty foundation of physics?”

              Well I just talked about it above, so yeah I am, and was a few years ago.

              “Tell me 6 – you fancy yourself something of an aficionado in physics, right?”

              Sure, a bit. That’s why I’m bothering to discuss this with you in the first place.

              “What was the basis in reality that the law as rendered in Nuitjen rests on?””

              I’m not sure what you’re referring to as a “basis in reality” that “the law … rests on”. But what the court said has been set forth above. If you’d like to suggest a “basis in reality” that you feel like they rested “the law” on in Nuijten then I’ll hear you out.

            8. And that appears reasonable to me. From a physics perspective. And from an everyday perspective. Also from a legal perspective.

              LOL – your belief system gets in your way on all accounts.

              At least you are consistent that way.

            9. In essence, energy embodying the claimed signal is fleeting and is devoid of any semblance of permanence during
              transmission.

              Look up in the clear night sky and tell me of this “transience” thing.

            10. “Look up in the clear night sky and tell me of this “transience” thing.”

              Are you going to get to your point about the article at some point today or not? We’re not talking about me looking up into the sky and telling you about the gazillions of transient signals from stars that are shining down on me, we’re talking about the article and how it might be relevant to Nuijten. Please stay on topic.

            11. You need to do a better job at reading comprehension 6 – those”transient” signals that you mention so casually have been around in most cases far far far far longer than any patent system in the known history of man.

              Still feel “OK” about this from a physics standpoint (you know, a coldly rational one unaffected by your anti-patent belief system)?

            12. “You need to do a better job at reading comprehension 6 – those”transient” signals that you mention so casually have been around in most cases far far far far longer than any patent system in the known history of man.:”

              What does that, regardless of its veracity or not, have to do with the article?

              “Still feel “OK” about this from a physics standpoint (you know, a coldly rational one unaffected by your anti-patent belief system)?”

              I’ve heard your argument about transience before so yeah, it fails to convince me today just like it did years ago. I’m not going into the reasons why so that we can talk about the article. Could we talk about the article’s supposed relevance now?

            13. It is not the veracity of the article, 6, but rather the ability (or lack thereof) of your reading comprehension of the article, and what the article portends to ordinary, objective physics-based understanding of reality and how the judicial (mis)understanding of that reality as exemplified in the In re Niutjen case all roll together to show that that case was in fact poorly decided.

              I’m not going into the reasons why

              LOL – of course not, as you would be forced to face the fact that you act, not in any sense of a rational and objective person of science, but rather in the sense of a lemming, marching up that anti-patent hill.

              I have led you yet again to the water trough of wisdom, I cannot make you drink the water. That my friend is something that you must decide to do.

            14. “It is not the veracity of the article”

              I wasn’t talking about the veracity of the article re re. I was talking about the veracity of your previous assertion.

              “6, but rather the ability (or lack thereof) of your reading comprehension of the article, and what the article portends to ordinary, objective physics-based understanding of reality and how the judicial (mis)understanding of that reality as exemplified in the In re Niutjen case all roll together to show that that case was in fact poorly decided.”

              You’ve probably got a typo or grammatical error in there somewhere but I can’t tell where or what it is.

              I already showed that I can read and completely understand the article, we’re in agreement on the facts set forth in the article remember?

              The article doesn’t “portend” (indicate in advance) anything “to” an objective, ordinary, physics-based understanding of reality. I’m not even sure how you portend anything to an understanding. Something might portend (indicated in advance) x to a person. But I’m not really sure that you can portend (indicate in advance) something to an understanding. An understanding is something that you have right now, in the instant moment, if something has been indicated to you, then your understanding is changed, thus there is no way to portend something to an understanding.

              Either way, and “pedantry” (pointing out your inability to express yourself so that I and others can understand you in English) aside, the only thing the article indicates at all (not necessarily in advance) is that some scientists have a plan that might work and that they expect will work.

              If you think there is something else that the article indicates in advance that has to do with an “understanding of reality” then please SPIT IT OUT ALREADY FFS.

            15. Anon I don’t give two shts about the veracity of this that or the other thing. We’re agreed as to the facts of what the article explicitly said. Either you’re going to tell me something about this article that is relevant to Nuijten or we’re done talking. If you want to tell me something about what you feel like the article portends or implies or whatever then fine. If you don’t have anything to tell me about then fine.

            16. The best thing I could do 6 is to get you to start thinking for yourself.

              But you don’t care enough, or you are too afraid, or you are too wedded to your belief system, or, well, you have a million and a half reasons not to.

              Not even appeals to the part of you that enjoys physics will get you to think objectively about anything.

              Drink a little from the water trough that I have already led you to before you demand to be brought to even more water that you will refuse to drink.

            17. The best thing I could do 6 is to get you to start thinking for yourself.

              But you don’t care enough, or you are too afraid, or you are too wedded to your belief system, or, well, you have a million and a half reasons not to.

              Not even appeals to the part of you that enjoys physics will get you to think objectively about anything.

              Drink a little from the water trough that I have already led you to before you demand to be brought to even more water that you will refuse to drink.”

              Well thank you for finally admitting that is the best thing you can manage. And trolling me for the last few days pretending that this article was in some way relevant to Nuijten.

            18. That’s just it, 6 – the article is relevant.

              Anyone having an objective viewpoint of science and physics would immediately see the relevance.

              The fact that you do not – or that you are afraid to admit that you do – speaks volumes as to your symptoms of denying reality and/or over-imbibing in an anti-patent belief system.

  1. anon, you are up on the AIA. Do you know why §306 was amended to eliminate the right of appeal to a District Court under §145 for ex parte re-examinations?

    1. We have this from Wikipedia:

      Judicial review of reexamination decisions

      “Opponents noted that the AIA contained a provision that would deny the right of patent owners to obtain judicial review of adverse USPTO decisions in ex parte patent reexaminations by civil action in district court – a right that has existed under 35 U.S.C. § 306/ § 145 since the inception of reexamination in 1980. They contended that abolishing this right will leave direct appeal to the Federal Circuit as the only judicial recourse – an intolerable scenario for patent owners who need to rely on evidence that was unavailable during the administrative appeal stage.[44] Opponents contended that this provision will exacerbate ex parte reexamination abuses by creating an unprecedented end-run around Federal District Courts in potentially all patent disputes. They warned that alleged infringers would simply file ex parte reexamination requests with USPTO, receive a final agency decision subject only to Federal Circuit review, essentially bypassing Federal courts. Opponents feared that given the deference the Federal Circuit must accord the agency (Zurko), large number of prospective/alleged infringers would choose this new favorable path to challenge a patent, overwhelming the USPTO, causing much lengthier delays in reexamination and holding up patentees’ patent rights for years.”

      Not noted here was the fact that the District Court in Patlex upheld the constitutionality of re-examinations because of this right of appeal to a District court which could conduct a trial de novo. A similar move by Congress in ’78 to remove bankruptcy jurisdiction from the District Courts resulted in the Bankruptcy Act being held unconstitutional.

      1. (worth keeping in mind is the purposeful “too big to fail” aspect of the AIA, severabillity of any individual aspect of the AIA being found to be unconstitutional and the explicitrejection by Congress of an amendment that would have made the provisions of the AIA severable)

        If a court were to draw a parallel to the Bankruptcy Act and hold a portion of the AIA unconstitutional, it is easily arguable that the entire Act would be unconstitutional, creating such a massive rollback in patent law as to be a de facto attempt by the writers of the AIA to make their work ‘judgement proof” along the lines of reasoning of constitutionality.

        Such reminds me of the South Korean Chaebols, and their gambit under their own laws – a prime example of the Too-Big-To-Fail strategy.

        1. (the refusal of Congress of including the amendment for severability can be likened to building the Titanic with deciding purposefully not to have any flood-protection bulkheads below the water line)

          One unstoppable hole will bring down the entire ship.

          1. Agreed.

            Then we have the issue of 315. The PTO says it has the right to decide whether the petitioner is barred as a real party or privy based on prior suits and that dissatisfied parties, neither the petitioner nor the patent owner have a right of a appeal.

            Even thought that position was just affirmed by the Federal Circuit in cases still to be discussed here by Dennis, the whole notation that the PTO can decide a JURISDICTIONAL issue and not have that issue be subject to appeal is itself unconstitutional.

            Cf., Crowell v. Benson , 285 U.S. 22, 52 S. Ct. 285, 76 L. Ed. 598 (1932). “When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.[30] We are of the opinion that such a construction is permissible and should be adopted in the instant case. The Congress has not expressly provided that the determinations by the deputy commissioner of the fundamental or jurisdictional facts …. shall be final.”

            But, according to the Federal Circuit and the PTO, congress in fact made the agency decision FINAL, directly violating the holding of Crowell v. Benson.

            1. The construction/interpretation dichotomy runs headlong into a Constitutional separation of powers issue.

              As Prof. Hricik has provided some links on the topic (notably the writings of Calibrese), the use by the Court of the tool of construction (or re-construction) necessarily broaches the actual writing of law. In most areas of law that Congress writes, this may not be a critical thing. Patent law, however, is one of those things that authority to write is clearly provided for in the body of the Constitution, and is not something that the Court can legitimately ignore.

              Even the Supreme Court cannot wave a magic wand over a hole in this AIA Titanic below the waterline and keep the ship from sinking. You cannot trade off one Constitution-proofing method and create a new, equally devastating one in its place.

        2. anon, good point.

          Then there is the whole issue regarding BRI that does so many patent owner in, that forces amendments that may cause the lose of damages.

          In District Court, on appeal, the PTO cannot with a straight face argue BRI should control. I think this was a big part of staying away from District Courts.

          Then there is the whole bit about the right to get evidence and trial de novo provided by a District Court. Kappos took that trial de novo issue to the Supreme court in Hyatt and lost, but that was in 2012, after the AIA.

          As a whole, it looks like a large power grab by the PTO in cutting out District Courts.

          1. The loss of damages (potential loss that is) is a bit more tricky and nuanced.

            I do agree that the notion of an amendment causing loss of the doctrine of equivalents can be (but not always necessarily will be) problematic.

            One possible (and easy) out would be to give full faith and credit to the entire line of the doctrine of equivalents of any final claim, regardless of amendment, or timing of amendment, with the reasoning that any such claim merits full protection as a validly approved claim by the federal agency whose authority it is to pass such claims.

            One may hear quibbling about “notice.” And without fully dismissing such quibbles (the negotiation on partial rights earned with mere publication do touch on that notice aspect), any such quibbles can be answered in that there still exists a no new matter rule, and that – in essence – notice is still available with the application as filed (and published).

            Of course, those that drink deeply of the populist kool-aid (for example, Dobu) would cry out that publication alone is not sufficient of ANY notice to the public. Yes, both you and I know better, but that real knowledge will not stop the QQ.

            1. Well, anon, we do have some on the Federal Circuit who seem to want to review BRI in the context of IPRs. Such claim construction should never be allowed with respect to an issued patent because, in practice, the claim construction is more like BUR construction. During the initial examination, there is justification to force clarity. But when the patent is issued — especially when any change is scope means no past damages?

              Did you know in Europe that a narrowing of scope does not result in lost damages?

            2. ” any such quibbles can be answered in that there still exists a no new matter rule, and that – in essence – notice is still available with the application as filed (and published).”

              An altogether laughable position that tosses notice of what the government has deemed to set aside for the patentee to the winds. But it will be fun to hear someone try that argument in court.

              “cry out that publication alone is not sufficient of ANY notice to the public. ”

              It isn’t that it is not sufficient “of” any notice to the public. It is that it is not notice of what has been set aside for the patentee by the government. Fundamentally that simply is not what mere publication of the app is notice of. Publication of the app is nothing but notice of what the applicant has disclosed and what his claims at the time of publication are.

            3. 6,

              I suggest that you inform yourself of what we are discussing – that being pre-granted claims, in light of the negotiations that brought about pre-granted publication.

              Thanks.

            4. 6, As I noted above, in Europe narrowing the scope does not relieve anyone of liability for damages. The theory is this: if it infringes before, and infringes after, it infringes.

    2. I have always thought that particular section of the AIA carried with it some deicidedly underhanded (and un-discussed, and perhaps purposefully un(**)foreseen) consequences.

      ** – yeah, right ;-)

    3. Ned you an anon seem to have had quite a bit of fun on this topic but you both seem to be missing the point of reexamination. The whole point is to take the initial decision away from the courts and put it with the agency. If they allowed you go just appeal the PTO’s decision to the DC then the whole point of reexamination away from the courts (the proceedings happening under administrative procedures, rules and law, no new evidence etc) is lost. The AIA simply clarified that such was what congress wanted. If it is unconstitutional then cool, get harmed and bring suit.

      1. Not at all 6 – you appear to be missing something rather important about taking a granted right away and placing that in an agency context.

        1. Mayer, from Markman,

          But today’s action is of a piece with a broader bid afoot to essentially banish juries from patent cases altogether. If it succeeds juries will be relegated, in those few cases where they have any presence at all, to rubber stamps, their verdicts preordained by “legal” and “equitable” determinations that brook only one “reasonable” result. Indeed, this movement would vest authority over patent disputes in legislative courts, unconstrained by Article III and the Seventh Amendment. See In re Lockwood, 50 F.3d 966, 970 (Fed.Cir.1995) (opinion dissenting from order denying rehearing in banc)

          Declaiming that the jury is a “black box” incapable of a “reasoned decision”, several judges of the court have already advised that they are aboard this campaign. Id., at 990. The quest to free patent litigation from the “unpredictability” of jury verdicts, and generalist judges, results from insular dogmatism inspired by unwarrantable elitism; it is unconstitutional.

          1. results from insular dogmatism inspired by unwarrantable elitism; it is unconstitutional.

            Take a closer look at this statement Ned, and realize that the Royal Nine is the pinnacle of insularity and unwarrantable elitism. Who else would declare that no matter what, their own implicit writings would not be made into dead letters?

            King Chamberlain’s raiment is as threadbare as ever.

            1. It is the very idea that judges who are not patent lawyers, specialists, “tradesmen,” have no business deciding patent cases, etc., which is the problem.

              What did Scalia say just the other day in his speech?

      2. 6, you are absolutely right. Unconstitutional as all get out.

        There is a right to a jury trial and actions to revoke a patent. Ex parte Wood and Brundage.

        1. “There is a right to a jury trial and actions to revoke a patent. Ex parte Wood and Brundage.”

          Well you still have the right to a jury trial or action to REVOKE a patent. They just gave you another, completely administrative, option.

          1. I am sorry, 6, but it is the patent owner rights that are at stake.

            If he wants back into the PTO, he can do so through reissue or reexamination, his choice.

            But if he is forced back in against his will, and his patent is revoked by the PTO, he has lost his right to defend the patent in court and to a jury

            The Supreme Court has recognized this per se in Granfinanciera, SA v. Nordberg, 492 U.S. 33, 109 S. Ct. 2782, 106 L. Ed. 2d 26 (1989). (“Legal claims are not magically converted into equitable issues by their presentation to a court of equity. …. Nor can Congress conjure away the Seventh Amendment by mandating that traditional legal claims be brought there or taken to an administrative tribunal.” Id. at 52.)

            1. “But if he is forced back in against his will, and his patent is revoked by the PTO, he has lost his right to defend the patent in court and to a jury”

              I agree, now if only that “right” was somewhere made explicit as “right” then you’d be all good to go. As is, the whole system is nothing but a big entitlement program and is wholly under the thumb of one entity known as “the congress”. In other words, the congress that gave you that “right” has now taken it away in one context.

              And yes, I’m familiar with the “principle” or “point” you’re making. I’m simply telling you that it isn’t as well founded as you like to belieb. And, if you think otherwise, then sue someone and let’s let the lols start rolling when they send you for a reexam and you try to appeal to the DC and render the reexam statute unconstitutional. I’m down for those lols. Yes sir. Whether you win or lose I get lols.

              You know though Ned, this does bring up a good point. What if the congress decided, at its whim, to take the whole of patent validity/infringement/whatevz jurisdiction away from the courts all together and vest it in an agency called the PTO or perhaps the “Issued Patent Assertion Office”? Would that be kosher? No more dealing with the courts or their nonsense. Just take em out of the picture entirely. What do you think?

            2. I agree, now if only that “right” was somewhere made explicit as “right” then you’d be all good to go

              It is.
              He is.

              (you need to take a property course to understand the bundle of rights concept and the fact that a patent grant creates that bundle of rights that is removed from the executive agency ability to recant (see Ned’s prior posts on scire farcis [sp?]).

            3. Well, 6, the SC recently indicated in Markman that there is a right to a jury trial in infringement cases. I assume the court would say that congress did not have the power to pull infringement cases out of the courts.

              Part and parcel to every infringement case is that the defendant has the legal and constitutional right to question the legal basis for the claim, not just whether he infringes. The defense to infringement that a patent is invalid has always enjoyed a right to a trial by jury. See, ex parte Wood and Brundage.

              The SC has held that while congress may create new statutory rights, it cannot withdraw from the courts jurisdiction to independently assess jurisdiction, standing, and the like. See, Crowell v. Benson. Thus, while it is true that congress can wholly withdraw patents, if it creates a right to a patent, such that it might be granted, it cannot withdraw the right from either the patent owner or the defendant a right to a trial by jury for a legal claim.

              Public rights is a doctrine of sovereign immunity — government operating in a sphere in which it historically it operated without the assistance or interference from the courts. Court-martials, is one such area. The original public rights case, Murray’s Lessee, involved a customs official who treasury ascertained owed them money after an audit. Crowell v. Benson listed the following as “public rights:” “Familiar illustrations of administrative agencies created for the determination of such matters are found in connection with the exercise of the congressional power as to interstate and foreign commerce, taxation, immigration, the public lands, public health, the facilities of the post office, pensions and payments to veterans.” Id. at 51 Murray’s Lessee also talked about “political questions,” such as whether or not there was a rebellion, a state of war, diplomatic relations, the conduct of military operations and the like — government acting in its sovereign capacity.

              But the liability of one person to another is not a public right, but a private, even when a new statutory right is involved. Crowell v. Benson. When the statutory right is analogous to a right that was litigated in the courts of England in 1789, it is a matter that cannot be withdrawn from the courts. Northern Pipeline. Ditto in spades if the matter has a right to a trial by jury. Granfinanciera.

              There seems no way that either a patent owner or an infringer could be thrown into the PTO for a full infringement trial without their mutual consent. But, as we see in Stern v. Marshall, consent is not enough to make such trials constitutional. They would be more like mediations, and would have no collateral or res judicata effect.

            4. ” the SC recently indicated in Markman that there is a right to a jury trial in infringement cases”

              Yes, that is in infringement cases (i.e. when you’re in the court), not in an administrative procedure (i.e. when you’re back in the PTO via the order of congress).

              “I assume the court would say that congress did not have the power to pull infringement cases out of the courts.”

              Very interesting there Ned. Why do you think that? What magic forces congress to administer its entitlement program through the court system?

              I frankly don’t think there is any such magic. It’s just the way things were done in the past. Tradition. And guess what? Tradition done got busted up on the reexam front because people couldn’t resist abusing patents. Congrats.

              “Part and parcel to every infringement case is that the defendant has the legal and constitutional right to question the legal basis for the claim, not just whether he infringes. The defense to infringement that a patent is invalid has always enjoyed a right to a trial by jury. See, ex parte Wood and Brundage.”

              That is all in the litigation context not the administrative review context.

              “it cannot withdraw from the courts jurisdiction to independently assess jurisdiction, ”

              Perhaps not. But that doesn’t stop congress from reassigning jurisdiction outright.

              “Thus, while it is true that congress can wholly withdraw patents, if it creates a right to a patent, such that it might be granted, it cannot withdraw the right from either the patent owner or the defendant a right to a trial by jury for a legal claim.”

              And why would that be? I’m missing the magic part that forces congress to utilize the courts to hear patent claims against other folks.

              “But the liability of one person to another is not a public right, but a private, even when a new statutory right is involved. Crowell v. Benson. When the statutory right is analogous to a right that was litigated in the courts of England in 1789, it is a matter that cannot be withdrawn from the courts. Northern Pipeline. Ditto in spades if the matter has a right to a trial by jury. Granfinanciera.”

              Well that’s all very interesting. What a tangled web you weave. Good luck with that in court. Frankly I think you have somewhere around a 0% chance of getting the courts to overrule the will of the people as expressed by congress on this matter.

              “There seems no way that either a patent owner or an infringer could be thrown into the PTO for a full infringement trial without their mutual consent.”

              Well they’re sure as f thrown into a far flung district court in the ED TEX so I see no reason why they couldn’t be. Though I’m sure you have some sophisticated reasoning why not.

              In either event ned, all this is tangential to the question we’re after – whether there is a problem with the reexam setup. And frankly even if there is some problem or other with withdrawing all patent cases from the courts to the PTO (or another agency, say Commerce maybe) I don’t think that really bears on the question we’re really after because even if there is some small problem with that, then it doesn’t mean that there is a problem with them doing what they have with reexams. The whole side situation is simply an experiment to help illuminate whether it would really be problematic to have reexams as they are.

              “a patent grant creates that bundle of rights that is removed from the executive agency ability to recant”

              It used to anon, it doesn’t anymore in the reexam context. From whence do you think these magical “bundle of rights” spring? The aether? They spring from the statute, and the statutory ways of invalidating the patent. I’m not really sure where you and guys thinking like you on this subject get your idears from, but it sure as f ain’t tha lawl as written in the statute.

          2. 6, you do know that we have a 7th Amendment?

            Congress does not have the power to deny a constitutional right. That is what you seem to miss.

            1. “Congress does not have the power to deny a constitutional right.”

              You have yet to identify what “constitutional right” you think congress is “denying”. Go ahead, we’re waiting.

              But yes, I’m aware that we have a 7th amendment.

            2. Great decision Ned, and it demonstrates what your problem is. You’re trying to rely on the “in suits at common law” portion of the constitution to establish a “right” in a case that isn’t a suite at common law. And you’re trying to rely on an old case that explicitly goes out of its way to note that they were not going to construe the patent act in the way that the congress has now explicitly amended it.

              Note how in the decision they rely on the patent act, and not the constitution, and they talk about suits in common law:

              “Both of these objections are founded upon the provisions of the 10th section of the patent act, and must be decided by a careful examination of those provisions. ”

              “This question must be decided by the terms of the section in controversy; but in the interpretation of those terms, if their meaning is somewhat equivocal, that construction ought certainly to be adopted which, not departing from the sense, is most congenial to our institutions, and is most convenient in the administration of public justice” <<< also note the horrible run-on sentence.

              "In suits at common law, where the value in controversy exceeds 20 dollars, the constitution has secured to the citizens a trial by jury. "

              Note then that the court didn't want to presume that the congress created back then what the congress has now explicitly created in modern times:

              "It is not lightly to be presumed, therefore, that Congress, in a class of cases placed peculiarly within its patronage and protection, involving some of the dearest and most valuable rights which society acknowledges, and the constitution itself means to favour, would institute a new and summary process, which should finally adjudge upon those rights, without a trial by jury, without a right of appeal, and without any of those guards with which, in equity suits, it has fenced round the general administration of justice."

              But the court does not say that the congress doesn't have the power to make a new process (regardless of the summary nature/or administrative nature), that should finally adjudge upon those rights, without a trial by jury, (though with a right of appeal to the federal circuit), and without any of those guards with which, in equity suits, it has fenced round the general administration of justice.

              The reason the court doesn't say that is because the congress does have that power. And they just now utilized it.

              The congress removed the reexam proceeding from suits at common law. Or rather, they created it as an alternate route alongside the suits at common law. You no longer enjoy the right to which you are referring in this "other" proceeding.

              I know I know, you may have another decision that indicates (in your view) that so long as x was an issue decided by courts back 200 years ago that it has to be decided by courts now. Frankly I doubt that it has to be EXCLUSIVELY decided by courts now. Nowadays you could have a proceeding in courts or a proceeding in the newly authorized agency route. And I doubt that the courts would give the decision you cite the weight you want them to.

              If you still think differently, then BY ALL MEANS, I invite you to bring the lulz for me. Bring em in barrels.

              ________________

              Just an FYI, the court even in that case notes how limited their jurisdiction was in that matter:

              "The jurisdiction given to the Court, is not general and unlimited, but is confined to cases where the patent was obtained surreptitiously, or upon false suggestions; where the patentee resides within the district; and where the application is made within three years after the issuing of the patent."

              The jurisdiction was limited by congress, by statute, and congress gets to put it where they want it. Say, in an agency.

              Also for lols:

              "It would be somewhat surprising if, after such anxious legislation, there should exist in the act a clause which, in a summary manner, enables any person to repeal his patent, and thus sweep away his exclusive property, without interposing any guards by way of appeal, or any regular proceedings, by which the validity of titles, in ordinary cases, is examined and contested."

              I agree such would be surprising back when, and would be today if not for the now explicit words of congress on the subject in modern times in the AIA.

            3. Ned my comment awaits moderation. The jist of it is simply that the case you just cited doesn’t establish some sort of constitutional right to have a trial by jury AT ANY TIME his patent is subject to revocation by the government in whole or in part. That decision is quite clear that that they’re saying there is a right to a trial by jury when the suit is a suit in common law. Re exams, for what feels like the millionth time, are not suits in common law. That means they fall outside the 7th amendment.

              Note also that the very decision you cite note how strange it would be to presume congress to have made an alternate route around suits at common law back then without being straightforward in explicitly adding such a route to the law. Guess wut? Now congress went ahead and explicitly added an alternate route around suits at common law. And the court in your decision certainly did not say that congress lacked that power.

            4. 6, consider, again, that if one has a right to trial by jury, congress has no power to assign adjudication of the right to an administrative agency. Granfinanciera.

              Also, the US Supreme Court has already ruled that Congress has no power to allow the PTO to reexamine a patent after issuance. McCormick Harvesting Machine Co. v. Aultman, 169 U.S. 606, 18 S. Ct. 443, 42 L. Ed. 875 (1898).

              link to scholar.google.com

              6, it is you who is insistent that congress has the right to abrogate a 7th Amendment right. They do not.

            5. Ned,

              6 does not understand what the constitution means in the sense of what “unconstitutional” entails.

              He really does think that all of this “lawl”stuff is completely subjective, up in the head, make up anything you want – and is so for any and everybody.

              I have tried to teach him otherwise, but he clings too tightly to his belief system.

            6. 6, regarding the 7th Amendment, it simply refers to actions tried in the courts of law, in England, prior to 1792. That includes patent infringement, patent validity and patent revocation — all.

              The SC has made this clear. See, esp., Tull v. United States, 481 U.S. 412, 107 S. Ct. 1831, 95 L. Ed. 2d 365 (1987) at Section II. link to scholar.google.com

              In Granfinanciera, SA v. Nordberg, 492 U.S. 33, 109 S. Ct. 2782, 106 L. Ed. 2d 26 (1989) link to scholar.google.com, the Supreme Court further made clear that new Federal Statutes are covered by the 7th Amendment if analogous actions were tried in the English law courts. Patent infringement, patent validity and patent revocations all were tried in the courts of England prior to 1792.

              I hope this helps. The distinction you make has no basis in the law.

            7. 6, my reply to you is awaiting moderation. I provide citations to Tull v. US, and Granfinanciera v. SA Norberg.

              But, the distinction you are trying to make between common-law rights and statutory rights is not the correct distinction. The seventh amendment applies to actions tried in the English courts of law prior to 1792, and federally created statutes that are analogous to causes of actions tried in the Law courts of England prior to 1792 are covered by the 7th. The SC has said that patent infringement has a right to a trial by jury.

              If you read In re Lundberg, you will find that patent infringement, patent validity, and patent revocation for all causes of action tried in the courts of England prior to 1792. The first two were tried in the law courts, while in patent revocation, disputed facts were tried to juries in the law courts.

              Regardless of this fine detail with regard to revocation, the revocation action was commonly known as an action scire facias, and it had a right to a trial by jury as noted by Justice Story in ex parte Wood & Brundage.

            8. “6, consider, again, that if one has a right to trial by jury, congress has no power to assign adjudication of the right to an administrative agency. Granfinanciera.”

              We’ll look at gran below.

              “Also, the US Supreme Court has already ruled that Congress has no power to allow the PTO to reexamine a patent after issuance. ”

              The USSC said no fu cking such thing. Jesu s chr ist Ned. Read the decision.

              From the old timey decision:

              “Our conclusion upon the whole case is that, upon the issue of the original patent, the Patent Office had no power to revoke, cancel or annul it. It had lost jurisdiction over it, and did not regain such jurisdiction by the application for a reissue.”

              They simply held that back then the patent office had no power to revoke, or cancel or annul the patent. This is because congress hadn’t granted that power. That is not a holding that the congress cannot grant that power to the PTO. Je sus chris t. Huge difference between the two things. You’re a lawlyer, screw your head on straight.

              “6, regarding the 7th Amendment, it simply refers to actions tried in the courts of law, in England, prior to 1792. ”

              Of course. You’re quite right of course about what the 7th amendment is referring to, suits (court proceedings) that were not suits in equity back in 1791. That is beyond question, you don’t need to cite a case about it.

              “That includes patent infringement, patent validity and patent revocation — all.”

              Only when we’re talking about SUITS, proceedings in court. We’re not simply talki

            9. Sorry typo at end due to pasting.

              “6, consider, again, that if one has a right to trial by jury, congress has no power to assign adjudication of the right to an administrative agency. Granfinanciera.”

              We’ll look at gran below.

              “Also, the US Supreme Court has already ruled that Congress has no power to allow the PTO to reexamine a patent after issuance. ”

              The USSC said no fu cking such thing. Jesu s chr ist Ned. Read the decision.

              From the old timey decision:

              “Our conclusion upon the whole case is that, upon the issue of the original patent, the Patent Office had no power to revoke, cancel or annul it. It had lost jurisdiction over it, and did not regain such jurisdiction by the application for a reissue.”

              They simply held that back then the patent office had no power to revoke, or cancel or annul the patent. This is because congress hadn’t granted that power. That is not a holding that the congress cannot grant that power to the PTO. Je sus chris t. Huge difference between the two things. You’re a lawlyer, screw your head on straight.

              “6, regarding the 7th Amendment, it simply refers to actions tried in the courts of law, in England, prior to 1792. ”

              Of course. You’re quite right of course about what the 7th amendment is referring to, suits (court proceedings) that were not suits in equity back in 1791. That is beyond question, you don’t need to cite a case about it.

              “That includes patent infringement, patent validity and patent revocation — all.”

              Only when we’re talking about SUITS, proceedings in court. We’re not simply talking about individual issues like infringement, validity or revocation. We’re talking about suits brosef, proceedings in court.

            10. “In Granfinanciera, SA v. Nordberg, 492 U.S. 33, 109 S. Ct. 2782, 106 L. Ed. 2d 26 (1989) link to scholar.google.com, the Supreme Court further made clear that new Federal Statutes are covered by the 7th Amendment if analogous actions were tried in the English law courts. Patent infringement, patent validity and patent revocations all were tried in the courts of England prior to 1792.”

              You’re telling me that you read a decision about the USSC granting someone a jury trial rather than an ordinary bench trial proceeding for fraud (what used to be an equitable issue in the courts way back when in england) as the judge in that case originally gave them, to mean that all issues that were tried in english law courts back 200 years agoe are now stuck in the courts forever?

              Preposterous nonsense Ned. You go way beyond the holding of that case. Not to mention you think that the USSC has the power to take away congresses power to determine, entirely, how the legal system will be setup (within the overall constitutional framework that it itself can amend) as the voice of the people. Preposterous.

              You’re going to be loled out of court if you bring this nonsense.

              I’m loling at you right now dude. You have 0 chance.

              Congress has the power to assign jurisdiction. So sorry. And the 7th amendment refers to actual suits (court proceedings) that are analogous to old timey english suits. It doesn’t, on an issue by issue basis determine that those issues must be decided by a court rather than an administrative agency if the congress says it wants the issue to be decided by an agency rather than the courts. Sorry brosef. It just doesn’t.

              He ck, your case even says outright:

              “We have consistently interpreted the phrase “Suits at common law” to refer to “suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered.”

              Guess wut brosefus? A reexam is not a suit at all, much less a suit in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized and equitable remedies were administered. So sorry. Not a suit. And that case doesn’t hold that every issue must be handled in a suit regardless of congresses wish. That case merely holds that, when we’re having a suit, you have to get a jury trial, rather than a bench trial or other court proceeding, when it comes to instances where there are rights to be ascertained and determined, as opposed to instances where solely matters of equity were concerned.

              That’s it. That’s all. To read more into the 7th amendment than that along the lines you’re wanting is preposterous.

              And be clear, it isn’t just me making this distinction. Your congress made that distinction in writing the AIA.

            11. 6, The whole point of McCormick Harvesting is that property cannot be revoked by the executive against the will of the owner, that congress cannot assign to a legislative tribunal that power, as it is constitutionally exclusive to the courts.

              The cited cases rely on Marbury v. Madison, among other cases.

              Ditto the right to a jury trial. Congress cannot permit a legislative tribunal to try cases that have a right to a trial by jury. Let’s quote Granfinanciera,

              “If a statutory right is not closely intertwined with a federal regulatory program Congress has power to enact, and if that right neither belongs to nor exists against the Federal Government, then it must be adjudicated by an Article III court. If the right is legal in nature, then it carries with it the Seventh Amendment’s guarantee of a jury trial.”

            12. “6, The whole point of McCormick Harvesting is that property cannot be revoked by the executive against the will of the owner”

              Horsesht, that is not what they held. And it wasn’t even explicitly at issue in the case. You’re implying that it was at issue, and then you’re implying that it was the “whole point”. They didn’t even touch that subject explicitly. You think the USSC is hiding an elephant in a mousehole.

              “, that congress cannot assign to a legislative tribunal that power, as it is constitutionally exclusive to the courts.”

              They didn’t talk about that what so ever in the case. You’re just making that up out of whole cloth.

              “The cited cases rely on Marbury v. Madison, among other cases.”

              Whoptie do. They cite to a case where the courts themselves ruled that they didn’t have jurisdiction because congress overstepped in having given the courts too much jurisdiction, and you want to now bring that up as a plus for your side being able to claim that the courts have jurisdiction over all these patent law questions no matter the will of the congress? Preposterous.

              “Ditto the right to a jury trial. Congress cannot permit a legislative tribunal to try cases that have a right to a trial by jury. ”

              You’re asserting that based on nothing. And let me tell you they did permit an aministrative “tribunal” to “try” (here they really just “decide”) cases that, if they were in court, would have a right to a trial by jury rather than having a judge do a bench trial. And Granfinanciera doesn’t say otherwise, we’ll talk about it in a sec. Nothing else says otherwise either. And keep in mind, that the decisions of this article 1 tribunal are ultimately reviewed by the federal circuit (article 3 court) and involve a newly created public right, the right of citizens to have a patent reviewed for validity by the agency. So it’s all cool mah brosefus.

            13. 6, once again, you are saying congress has the power to do that which the supreme court says they do not have the power — based on Art. III and the 7th Amendment.

              In order to justify reexaminations, they are going to have to overrule a long line of authority that goes back to Marbury v. Madison, ex parte Wood, Murray’s Lessee, Tull v. US, Granfinanciera and ends in Stern v. Marshall. And you think we have no chance?

              Really?

              Can you cite me one case, just one, were congress withdrew private rights from the court system and allowed such rights to be revoked by the executive against his will and where the Supreme Court upheld that law? Just one?

            14. “Let’s quote Granfinanciera,

              “If a statutory right is not closely intertwined with a federal regulatory program Congress has power to enact, and if that right neither belongs to nor exists against the Federal Government, then it must be adjudicated by an Article III court. If the right is legal in nature, then it carries with it the Seventh Amendment’s guarantee of a jury trial.””

              Right. I can see how you’re getting confuzzled. You’re taking little bits and pieces, quote mining out of context, and working yourself into a frenzy. Making a mountain out of a molehill. Quote mining dicta to boot (the case was already being tried in an article 3 court iirc they just didn’t get their jury trail). The context of their statement is the context of a lawsuit (a proceeding in a court). In our situation though the statutory rights are closely intertwined with a federal regulatory program congress has the power to enact. Patents. That’s why the patent office is involved. So let’s go over this a bit.

              Note:

              “The form of our analysis is familiar. “First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature.” Tull v. United States, 481 U. S. 412, 417-418 (1987) (citations omitted). The second stage of this analysis is more important than the first. Id., at 421. If, on balance, these two factors indicate that a party is entitled to a jury trial under the Seventh Amendment, we must decide whether Congress may assign and has assigned resolution of the relevant claim to a non-Article III adjudicative body that does not use a jury as factfinder.”

              Read that last part about if the first two factors indicate you get a jury trial then “we must decide whether congress may assign, and has assigned, resolution of the relevant claim to a non-article III adjudicative body that does not use a jury as fact-finder.

              Then we move down in that decision to the part where public rights are brought up in Section IV A at 51.

              “In Atlas Roofing, we noted that “when Congress creates new statutory `public rights,’ it may assign their adjudication to an administrative agency with which a jury trial would be incompatible, without violating the Seventh Amendment’s injunction that jury trial is to be `preserved’ in `suits at common law.'”

              So we know that if congress creates a new public right then it is all coo to assign their adjudication to an admin agency with no jury.

              Finally we move down the part about where:

              “Our case law makes plain, however, that the class of “public rights” whose adjudication Congress may assign to administrative agencies or courts of equity sitting without juries is more expansive than Atlas Roofing’s discussion suggests.”

              Yeah, turns out that is really expansive.

              “Indeed, our decisions point to the conclusion that, if a statutory cause of action is legal in nature, the question whether the Seventh Amendment permits Congress to assign its adjudication to a tribunal that does not employ juries as factfinders requires the same answer as the question whether Article III allows Congress to assign adjudication of that cause of action to a non-Article III tribunal. For if a statutory cause of action, such as respondent’s right to recover a fraudulent conveyance under 11 U. S. C. § 548(a)(2), is not a “public right” for Article III purposes, then Congress may not assign its adjudication to a specialized non-Article III court lacking “the essential attributes of the judicial power.””

              I see what they’re saying np.

              Then they talk about public rights a bit:

              “In our most recent discussion of the “public rights” doctrine as it bears on Congress’ power to commit adjudication of a statutory cause of action to a non-Article III tribunal, we rejected the view that “a matter of public rights must at a minimum arise `between the government and others.’ ” Northern Pipeline Construction Co., supra, at 69 (opinion of BRENNAN, J.), quoting Ex parte Bakelite Corp., 279 U. S. 438, 451 (1929). We held, instead, that the Federal Government need not be a party for a case to revolve around “public rights.” Thomas v. Union Carbide Agricultural Products Co., 473 U. S., at 586; id., at 596-599 (BRENNAN, J., concurring in judgment). The crucial question, in cases not involving the Federal Government, is whether “Congress, acting for a valid legislative purpose pursuant to its constitutional powers under Article I, [has] create[d] a seemingly `private’ right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary.” Id., at 593-594. See id., at 600 (BRENNAN, J., concurring in judgment) (challenged provision involves public rights because “the dispute arises in the context of a federal regulatory scheme that virtually occupies the field”). If a statutory right is not closely intertwined with a federal regulatory program Congress has power to enact, and if that right neither belongs to nor exists against the Federal Government, 55*55 then it must be adjudicated by an Article III court.[10] If the right is legal in nature, then it carries with it the Seventh Amendment’s guarantee of a jury trial.”

              And I note that disputes under the new provisions arise in the federal patent law regulatory scheme which virtually occupies the field.

              The court then decides that the right to recover fraudulent conveyance under the statute was more a private right than a public right. And of course that is the correct judgement. Blatantly there is one private actor taking another to court to recover $$$. That’s a private right of the first actor, straight up.

              In either event, I understand now why you’re harping on the private rights v. public rights distinction. And yes, I will make that distinction now. Private rights, like the right to exclude others, via an infringement suit, could not be tossed to an agency. However, newly created public rights, like the right to have the validity of a patent reviewed by the PTO/Board, are just fine to toss to an administrative agency or their article 1 tribunal. Sorry brosefus. And even if you think it the other way around, your subjective feelings on the newly created public right being a private right don’t make it all of a sudden a private right :/. Blatantly the newly created right to have the patent reviewed is a public right. It is a right that belongs to any citizen but is ultimately vested in and vindicated by political entities (the PTO board).

              I note that rather than a 0% chance, I’ll give you a .05% chance of getting 5 justices or some court to deem the new rights private rights rather than what they blatantly are: public rights.

              Interesting reading:
              link to law.cornell.edu
              link to en.wikipedia.org
              link to en.wikipedia.org

            15. My comment detailing Granfinanciera pends Ned. Bottom line, I get what you’re saying about private v public rights. I walk you through the decision and why the newly created rights in the AIA are public rights and it is coo to toss them to the agency.

            16. My comment on Grandfraciera pends still Ned.

              In any event:

              “”6, once again, you are saying congress has the power to do that which the supreme court says they do not have the power — based on Art. III and the 7th Amendment.”

              Nah bro courts never said they didn’t have the power to do this :/ You have a snowballs chance in heck of getting them to say that.

              “In order to justify reexaminations, they are going to have to overrule a long line of authority that goes back to Marbury v. Madison, ex parte Wood, Murray’s Lessee, Tull v. US, Granfinanciera and ends in Stern v. Marshall. And you think we have no chance?”

              Nah they don’t have to.

              “Really?”

              Ya rly.

              “Can you cite me one case, just one, were congress withdrew private rights from the court system and allowed such rights to be revoked by the executive against his will and where the Supreme Court upheld that law? Just one?””

              Don’t need to, the newly created public rights to having validity reviewed by the agency is a public right brosefus. I’m sure there are some decisions involving that situation.

            17. 6, I truly appreciate the and effort you are taking to poke holes in my argument. I know I have a steep hill to climb, but I really believe I am right here.

              Even if we do not in the end agree, this discussion has been a good one.

            18. Ned,

              Ask 6 to explain himself when he says that patents are newly public rights.

              The law that states the type of right that a patent is (that would be personal property) was NOT changed in the AIA.

              Somehow 6 has conjured up a major change in patent law that no one else has seen.

              Maybe if you ask him nicely, he will explain this to you. Then he can explain it to Congress.

            19. Anon you’re silly dude. Of course “patents” are not a newly created public right. The right to have validity of a patent reviewed in the agency is the newly created public right silly beans.

              In simpler terms, for a kindergartener like yourself, it is the right of “review” that is newly created and is available to random members of the public.

              I can barely believe you two bozos have been working yourselves into a frenzy over this. You guys were talking about this for a long time now right?

              Hilarious.

            20. lol – you call me silly when it is you that is making up new rights…?

              You lack a fundamental understanding of law and yet want to pontificate about law as if you know it all.

              That laughter you hear is not laughter with you.

            21. “lol – you call me silly when it is you that is making up new rights…?”

              Dude I didn’t draft the AIA, I’m not even a fan of it myself. That’s the congress that “made up” new rights.

            22. Regarding your assertion that a reexamination is a new public right,

              Whose right is it? Clearly, being forced into the PTO is not a right. It is not a benefit of the patent owner, but undermines his patent. It is also inconsistent with Financiera.

            23. There you go again 6 misunderstanding.

              No one is saying the AIA did not happen.

              What is being said is that your version of that event, your reading of some new fangled “right” that was created that somehow over-rides an existing property right – that was not changed – is somehow “there.”

              You do not know enough to even know what you do not know.

              And even worse, you just don’t care about your ignorance.

            24. “Regarding your assertion that a reexamination is a new public right,

              Whose right is it? Clearly, being forced into the PTO is not a right. It is not a benefit of the patent owner, but undermines his patent. It is also inconsistent with Financiera.”

              Why bother asking me whose right is it? Read the statute brosefus.

              link to law.cornell.edu

              Looks to me like it says “any person” “at any time”. Aka the public.

              “Clearly, being forced into the PTO is not a right.”

              Meh, that’s a side effect of a person in the public exercising its right to have a patent reviewed in the agency. And technically I don’t think the patent owner has to respond. He could just remain mum and let the patent go down if the PTO rejects iirc. Or maybe the PTO maintains the patent.

              “It is not a benefit of the patent owner, but undermines his patent.”

              Yep. Sure does. Sux brah. You should have been fighting the maximalists harder a long time ago so congress wouldn’t have to take this step.

              “It is also inconsistent with Financiera.”

              How’s that? What is “inconsistent”? Looks entirely consistent to me.

            25. “You do not know enough to even know what you do not know.

              And even worse, you just don’t care about your ignorance.”

              Anon, you’ve got a big ol mouth on ya regarding this matter brosef. Why don’t you put your litigation where your mouth is and go ahead and try to get the statute declared unconstitutional while I lol @ u for not understanding the basics of a new right being created.

            26. 6, your so called “new” public right for a member of the public to petition to revoke a patent in whole or in part is not a “new” public right. It is quite old — the writ of scire facias, discussed in ex parte Wood.

              The Supreme Court held that such a right had a right to a trial by jury against a argument that the procedure was summary, with no right of appeal. It made no difference to this case that a court was involved. It made a difference that the result of the action was the revocation of the patent.

            27. “6, your so called “new” public right for a member of the public to petition to revoke a patent in whole or in part is not a “new” public right. It is quite old — the writ of scire facias, discussed in ex parte Wood.”

              At this point I can practically hear you crying Ned. I mean seriously, just let it go brosef. Or else take it to court and be heard for reals. I know you have a lot of time and thought (maybe even money) invested in this but don’t get all emo on me.

              Ned look brosef, I know you want this right to not be different, you want the right to be the same SOOOO badly. Based on the ultimate result of invalidity of the patent. But it is not the same. It isn’t the same procedure. And the 7th amendment is a procedural protection, not a protection of substance. And I’m sure you know that procedurally there are many differences as you yourself have been so vigilant in pointing out. We can start with that the procedure takes place in an agency, not a court ala scire facias writ. And we can move on to the BRI etc. etc.

              “The Supreme Court held that such a right had a right to a trial by jury against a argument that the procedure was summary, with no right of appeal. It made no difference to this case that a court was involved. It made a difference that the result of the action was the revocation of the patent.””

              Yeah, and if you want to exercise your “old” right of scire facias in a courtroom you can, and there will be a jury trial.

              The new right doesn’t require all that.

              And I hear you that according to you supposedly the fact that a court was involved made/makes no difference, but frankly I don’t see that as being the case. The USSC has itself acknowledged that there are instances when the congress can do an end run around the 7th amendment protection that comes part and parcel as a part of a lawsuit, and guess wut? This is one of those instances where they can do an end run around it. This is one of those instances to a T.

              Also note that in the reexam scheme you do have a right of appeal, to an article III court no less.

              _________________

              Besides all that above Ned, in your argument the right to review (whether “new” or “old”) either has to be a public right or a private right. Blatantly the statute is not making a new private right brosefus. It starts the section about requesting out by stating “anyone at anytime”. It be public as all get out. Can we at least agree to that?

              Also, can we wrap this up? I’ve got you practically in tears and anon running his dum bas mouth as usual, and generally I’m about through if all your concerns have been addressed. And they appear to have been.

            28. Ned I’m about done with this conversation brosef. The new posting rules prevent me from posting full responses all at one time.

              “6, your so called “new” public right for a member of the public to petition to revoke a patent in whole or in part is not a “new” public right. It is quite old — the writ of scire facias, discussed in ex parte Wood.”

              At this point I can practically hear you cryi ng Ned. I mean seriously, just let it go brosef. Or else take it to court and be heard for reals. I know you have a lot of time and thought (maybe even money) invested in this but don’t get all emo on me.

              Ned look brosef, I know you want this right to not be different, you want the right to be the same soooo badly. Based on the ultimate result of invalidity of the patent. But it is not the same. It isn’t the same procedure. And the 7th amendment is a procedural protection, not a protection of substance. And I’m sure you know that procedurally there are many differences as you yourself have been so vigilant in pointing out. We can start with that the procedure takes place in an agency, not a court ala scire facias writ. And we can move on to the BRI etc. etc.

              “The Supreme Court held that such a right had a right to a trial by jury against a argument that the procedure was summary, with no right of appeal. It made no difference to this case that a court was involved. It made a difference that the result of the action was the revocation of the patent.””

              Yeah, and if you want to exercise your “old” right of scire facias in a courtroom you can, and there will be a jury trial.

              The new right doesn’t require all that.

              And I hear you that according to you supposedly the fact that a court was involved made/makes no difference, but frankly I don’t see that as being the case. The USSC has itself acknowledged that there are instances when the congress can do an end run around the 7th amendment protection that comes part and parcel as a part of a lawsuit, and guess wut? This is one of those instances where they can do an end run around it. This is one of those instances to a T.

              Also note that in the reexam scheme you do have a right of appeal, to an article III court no less.

              _________________

              Besides all that above Ned, in your argument the right to review (whether “new” or “old”) either has to be a public right or a private right. Blatantly the statute is not making a new private right brosefus. It starts the section about requesting out by stating “anyone at anytime”. It be public as all get out. Can we at least agree to that?

              Also, can we wrap this up? I’ve got you practically in tears and anon running his du m bas mouth as usual, and generally I’m about through if all your concerns have been addressed. And they appear to have been.

            29. Ned I’m about done with this conversation brosef. The new posting rules prevent me from posting full responses all at one time.

              “6, your so called “new” public right for a member of the public to petition to revoke a patent in whole or in part is not a “new” public right. It is quite old — the writ of scire facias, discussed in ex parte Wood.”

              At this point I can practically hear you cryi ng Ned. I mean seriously, just let it go brosef. Or else take it to court and be heard for reals. I know you have a lot of time and thought (maybe even money) invested in this but don’t get all emo on me.

              Ned look brosef, I know you want this right to not be different, you want the right to be the same soooo badly. Based on the ultimate result of invalidity of the patent. But it is not the same. It isn’t the same procedure. And the 7th amendment is a procedural protection, not a protection of substance. And I’m sure you know that procedurally there are many differences as you yourself have been so vigilant in pointing out. We can start with that the procedure takes place in an agency, not a court ala scire facias writ. And we can move on to the BRI etc. etc.

            30. “The Supreme Court held that such a right had a right to a trial by jury against a argument that the procedure was summary, with no right of appeal. It made no difference to this case that a court was involved. It made a difference that the result of the action was the revocation of the patent.””

              Yeah, and if you want to exercise your “old” right of scire facias in a courtroom you can, and there will be a jury trial.

              The new right doesn’t require all that.

              And I hear you that according to you supposedly the fact that a court was involved made/makes no difference, but frankly I don’t see that as being the case. The USSC has itself acknowledged that there are instances when the congress can do an end run around the 7th amendment protection that comes part and parcel as a part of a lawsuit, and guess w ut? This is one of those instances where they can do an end run around it. This is one of those instances to a T.

              Also note that in the reexam scheme you do have a right of appeal, to an article III court no less.

            31. Besides all that above Ned, in your argument the right to review (whether “new” or “old”) either has to be a public right or a private right. Blatantly the statute is not making a new private right bros efus. It starts the section about requesting out by stating “anyone at anytime”. It be public as all get out. Can we at least agree to that?

              Also, can we wrap this up? I’ve got you practically in tears and anon running his du m bas mouth as usual, and generally I’m about through if all your concerns have been addressed. And they appear to have been.

            32. Besides all that above Ned, in your argument the right to review (whether “new” or “old”) either has to be a public right or a private right. Blatantly the statute is not making a new private right brosefus. It starts the section about requesting out by stating “anyone at anytime”. It be public as all get out. Can we at least agree to that?

            33. Actaully, 6, neither the public nor the government have any rights at stake. The right at stake is a patent, and its is a legal right. Thus, it cannot be a public right. Cf, e.g., Marbury v. Madison.

              The only question is the form of action, as you say, procedural, to revoke the patent.

              But ex parte Wood does stand for the proposition that regardless of form, the action to revoke accords the patent owner a right of trial by jury in a court of law.

            34. Ned, if not plainly evident already that 6 is absolutely clueless about the law in play here, his comment of “And the 7th amendment is a procedural protection, not a protection of substance.” should have affirmed it for you.

            35. Hey, 6, you are quite inventive in your defense of your job. But, even if I eventually win this argument, all they have to do is implement scire facias, provide a trial by jury and … Well there is a problem even here, standing. But if one has standing, one can sue to revoke a patent.

              Alternatively, use the PTO as special masters to provide an expert opinion.

              Ditto, IPRs. Make the trial adjunct to a district court. Magistrate judges handle cases all the time. This was the way bankruptcies were held for a very long time before Congress cut out the courts in ’78, causing the new Bankruptcy statute to be declared unconstitutional.

              There are ways to skin this cat in a constitutional manner.

              BTW, the right of appeal does not cut it. See, Stern v. Marshall.

            36. “Actaully, 6, neither the public nor the government have any rights at stake.”

              Nobody said that they did. In fact, except in cases where the government owns the patent then neither the public or the gov does have any rights “at stake” (at stake ready to be burned btw lol).

              “The right at stake is a patent, and its is a legal right. Thus, it cannot be a public right. Cf, e.g., Marbury v. Madison.””

              Look, I could hold your hand through this slowly and let you figure your own way into figuring what I’m about to say out, or you can just take it from this spoon. First of all a patent is not, in and of itself, a “right”. A patent is a piece of paper. The “right” that comes along with your patent is the right to exclude others, specifically a cause of action in court, and that requires the patent to be valid. Validity is not a “right” in and of itself. Or, even if we consider validity to be a right due to the presumption of validity statute, validity was certainly not a right back in the day before the presumption of validity statute was passed.

              “The only question is the form of action, as you say, procedural, to revoke the patent.

              But ex parte Wood does stand for the proposition that regardless of form, the action to revoke accords the patent owner a right of trial by jury in a court of law.”

              We already discussed that case didn’t we Ned? This is going to go on forever and ever isn’t it? I mean, seriously, how do you dodge this little bit:

              “It is not lightly to be presumed, therefore, that Congress, in a class of cases placed peculiarly within its patronage and protection, involving some of the dearest and most valuable rights which society acknowledges, and the constitution itself means to favour, would institute a new and summary process, which should finally adjudge upon those rights, without a trial by jury, without a right of appeal, and without any of those guards with which, in equity suits, it has fenced round the general administration of justice. ”

              They say explicitly that it is not to be lightly presumed that congress would do what they have done in modern times back in the olden days without having made such a thing explicit back in the olden days.

              Therefore, they were not deciding on that day whether congress could do an end run around the 7th amendment protections IF THEY WANTED TO. They were simply stating that they found that congress wasn’t wanting to back in the olden days. Thus it does not “stand for” all that which you said.

              But all that aside, can we at least just agree on the one thing, that the right to have a patent reviewed by the PTO/board is a “public right”?

              And can we please wrap this up?

            37. You are also missing a critical point of something happening concomitant with the different right that you are focusing on, 6 – one of the sticks in the property right of a granted patent is taken by the government without any due process consideration.

              That too is kind of important.

            38. Non I’m not going to sit and discuss this with you unless you be crystal clear as to why you think “property” is important. And what “stick” in the “bundle of rights” you think is removed, at specfically what time, by whom, and whether those folks have the power to remove that “stick” and why they do or do not have that power.

              Also two other things: is the right to review in the agency a public right or not?

              Not even discussing this with you unless you go ahead and answer the above clearly and concisely. I answered this thread for ned, not mr. Ocpd who will nearly surely make a huge mess of it if not contained.

            39. unless you be crystal clear as to why you think “property” is important.

              This is a basic notion in law and in US patent law in particular 6.

              You should already be crystal clear on this – of your own accord.

              That you are not is part of the problem you (perpetually) have in these discussions of law: You just don’t understand the depths of your own ignorance.

              The mess being created is by you – and it is your typical symptom at work projecting that mess to others.

            40. It is laid out for you – you just fail to recognize it.

              Don’t get mad just because I don’t want to hold your hand on some pretty low basic law stuff.

            41. It isn’t just me reading this blog as hat. Nobody else is jumping on this nonsense bandwagon save you and Ned that I’ve seen. And Ned isn’t just coo coo for “property”. He has the integrity to base his opinion on the matter on a simple misreading of court cases such that they can be reviewed and his error pointed out for him easily. Contrast that to you and your mythical “property” “concepts” or “bundles of air” or whatever in the clouds that is unreviewable so that you just sit around and say “property” all day long like a crazy man.

              I’m done talking to you.

            42. And Ned isn’t just coo coo for “property”. He has the integrity to base his opinion

              LOL – I’m not “opinionating” at you 6 and your lack of understanding of the legal nature of property is what holds you back.

              Now instead of doing something positive about your lack of understanding and bringing yourself up to speed, all you can do is QQ and accuse, projecting your deficiencies.

              I am not charged with holding your hand on such basic stuff. You want to play and discuss law on a legal forum, then you need to do your homework. That will earn you a little integrity for yourself, and hopefully stop you from projecting so much.

            43. “LOL – I’m not “opinionating” at you 6 and your lack of understanding of the legal nature of property is what holds you back.

              Now instead of doing something positive about your lack of understanding and bringing yourself up to speed, all you can do is QQ and accuse, projecting your deficiencies.

              I am not charged with holding your hand on such basic stuff. You want to play and discuss law on a legal forum, then you need to do your homework. That will earn you a little integrity for yourself, and hopefully stop you from projecting so much.”

              So hopelessly OCPD.

            44. So hopelessly OCPD.

              A meaningless response of an accusation that is just not true, nor fitting to the conversation.

              6, it comes across that you are lashing out because you do not understand the basics of law and you just don’t care enough to inform yourself intelligently to be able to provide any substantive responses on the merits.

              You would be better off not responding at all.

            45. I’m sure that is how I come across to you anon. Thanks for sharing. You have my sympaties, living with either of psychopathy or ocpd is difficult. Having both like you do is a pitiable situation.

              But on the other hand I come across to normal folks as merely someone who humors the village madman. Or attempts to though the mdman resists mightily.

              Having. expressed my smpathies for you I’m done discussing the matter.

            46. Having both like you do is a pitiable situation.

              You are doing that projecting thing again…

              Your expression of sympathies then is simply off the mark – as is your understanding of the underlying law, and why you seem (always) to be on the wrong side of that law.

              Whether you continue to discuss or not is hardly the point. The better point of course would be whether you are willing to actually learn.

              That appears to be answered in the negative.

    1. So does that mean the federal circuit decision the other day was for naught pretty much since they just did a huge settlement? Or perhaps that the decision drove the settlement?

      1. 6,

        1. I think Apple realized it cannot win a patent war with fast changing phone products and “software” patents that are easily designed out. Motorola had better, hardware patents. But they are worthless FRANDED.

        2. The sale by Google of its Motorola division means it is no longer directly competing with phones.

        Apple could only win such a war if it had an essential patent that applied to all phones. It does not have such a patent.

        Without the ability to win the war, the only victors are the lawyers. Big waste of money all around, for the lawyers and for the worthless software and FRAND patents.

        1. “The sale by Google of its Motorola division means it is no longer directly competing with phones.”

          Oh I didn’t hear about that, when did that happen and whom did they sell to?

          “Without the ability to win the war, the only victors are the lawyers. Big waste of money all around, for the lawyers and for the worthless software and FRAND patents.”

          Yeah I gotcha.

    2. “Apple and Google have also agreed to work together in some areas of patent reform,” the statement said.

      Good.

      1. Good

        Sight unseen (and from the same guy that posted that the wage conspiracy thing was a sign that patents were bad…)

        /face palm

        1. the same guy that posted that the wage conspiracy thing was a sign that patents were bad…

          I never posted any such thing, nutcase.

          What the f is your problem?

            1. Anon this just goes to show how bad you are at understanding what the author is saying when you read brosef. MM not only did not say those exact words he said nothing that even came close to implying those words. Guess we all, MM included, can cut you some slack on account of your being psychopathic though I guess.

            2. Still held up in moderation is a direct quote from the link to the earlier Patently-O comments replicating exactly the further discussion.

              I think the moderation is stuck on a word that Malcolm uses.

              6, it is clear from the context of the discussion that I have correctly deduced Malcolm’s meaning, so (again), it is not I that misunderstands. That habit of yours of projecting is on display yet again.

              What this also shows is your rather obsessive focus on me, while Malcolm’s clearly self-h@tred (if he is indeed an attorney) runs amuck. You only seem to want to use your B$-psycho rhetoric aimed at me, while all about you in your little circle of anti-patentists psychosis reigns.

  2. OT but Justice Scalia gave an interesting commencement speech at William and Mary College:

    link to lawyersgunsmoneyblog.com

    Perhaps — just perhaps — the more prestigious law schools (and I include William and Mary among them) can continue the way they are, though that is not certain. But the vast majority of law schools will have to lower tuition. That probably means smaller law school faculties . . . and cutting back on law-school tuition surely means higher teaching loads. That also would not be the end of the world. … And last but not least, professorial salaries may have to be reduced, or at least stop rising. Again, not the end of the world.

    Offered without further comment.

      1. Not sure why that particular thought struck your fancy, Malcolm…

        I found it interesting that Scalia made both a very accurate statement about the present and a very accurate prediction about the future. The present tuition trends aren’t sustainable. It’s a bubble built upon a top of a bubble built on top of a massive pile of grift.

        1. What’s odd is that you equate almost everything about the profession as grounded in “grift.”

          There was nothing at all in Scalia’s address that would support such a self-denigrating view (assuming you are in fact an attorney).

          As I have recommended to you before: get into a profession in which you can believe in the work product you produce. For all of the “psycho-B$” that 6 spoons my way, it is you that exhibits some serious psychosis.

          1. There was nothing at all in Scalia’s address that would support such a self-denigrating view

            On the contrary, I think there “may” be something there ….

            get into a profession in which you can believe in the work product you produce

            I do believe in my work product. What makes you think I don’t?

            it is you that exhibits some serious psychosis.

            Right. So please tell everyone what I said that triggered this li’l meltdown you’re having and why.

            1. Right. So please tell everyone

              Already answered:

              What’s odd is that you equate almost everything about the profession as grounded in “grift.”

            2. What’s odd is that you equate almost everything about the profession as grounded in “grift.”

              That’s not true but even if it was I don’t think there’s anything necessarily “odd” about that belief.

              What planet are you from, anyway?

      1. A man must know his limitations:

        I came out with some gaps—some blind sides—that I have always regretted. Intellectual Property, for one

        1. ““I came out with some gaps—some blind sides—that I have always regretted. Intellectual Property, for one“”

          Well we all saw his high-profile blunder in Bilski.

          1. Which “blunder” are you talking about? The “4 is not 5” part or the part in which he did not join the Kennedy 4 part?

            Do you think that whichever “blunder” is going away soon (as in Alice), given that he reminded Ginsburg that 4 is not 5?

            1. “the part in which he did not join the Kennedy 4 part?”

              The part where he didn’t join Stevens more or less in full.

              “Do you think that whichever “blunder” is going away soon (as in Alice), given that he reminded Ginsburg that 4 is not 5?”

              Yes, his indication that he remembers his blunder enough to bring it up at oral args (and on a TV interview awhile back) is a primary indication that the majority of the effects of his decision not to join will likely go away after Alice.

              But we’ll see shortly anon.

            2. Yes, his indication that he remembers his blunder enough to bring it up at oral args

              Wow, talk about density – you do realize that he was chastising Ginsburg on that point and not bringing it up in any way to indicate that such was a blunder, right?

            3. “Wow, talk about density – you do realize that he was chastising Ginsburg on that point and not bringing it up in any way to indicate that such was a blunder, right?”

              Gl with that interpretation Mr. psychopath. The good justice most certainly was not “chastising” the other justice. He was helping to fill in an argument he felt was being made. No, he was not indicating that it was a blunder to him subjectively (it is a blunder to us outside observers not him), but he knows he had trouble on that case and is ancy about his vote. He’s said as much in an interview. It is “on his mind” that he may have made a mistaken call in joining with the majority in part. He knows people like you are arguing that he joined with the majority thus it controls and leads, perhaps, to the opposite conclusion than he already knows he’s about to come to in Alice. That’s the argument you guys are making which he’s bringing up, he’s hyper aware of people making that argument because he is literally the only reason that argument has any legs at all.

              Look anon, psychopathy is a legit disability. It’s like being born with a misshapen limb, except on the inside. You’re not to blame for it dude. It prevents you from understanding what people are saying, a huge portion of the time. Especially when there is a lot of stuff going through the speaker’s mind that the psychopath cannot get a glimpse at due to his disability.

              In any event, we’ll see shortly. 9-0 brosefus.

            4. 6, I sense that both Scalia and Kennedy are regretting Bilski. The majority opinion somewhat too much trampled on 102/103.’

              Stevens opinion, on further consideration, was narrowly focused on a particular problem. It did not create others, as did Kennedy’s opinion.

              Kennedy’s repeatedly asking Phillips about business method is the key. He was really in doubt that business methods could ever be eligible, which is key to his holding in Bilski — that they might be is the reason they were not categorically excluded.

            5. that interpretation

              LOL – really? And you call me the psychopath?

              Somehow you are deriving a comment that “4 is still not 5″ as saying that “oops, 4 will be 5.”

              You keep wanting to take motes out of others’ eyes while ignoring the log in your own.

              That is just not working out too well for you.

              Ned,

              It is compeltely unbelievable that you would state “Stevens opinion, on further consideration, was narrowly focused on a particular problem. It did not create others, as did Kennedy’s opinion” as Steven’s opinion would have made an explicit re-writing of patent law and would have precipitated an immediate constitutional crises along the separation of powers doctrine.

              You know – or should know – this very well.

              unglaublich

            6. “Somehow you are deriving a comment that “4 is still not 5″ as saying that “oops, 4 will be 5.””

              Nah bro, not necessarily. You’re going too far with what I’ve said. He’s just showing that he’s hyper-aware of of the argument being made before him (in briefs) and reminding everyone else about the argument. That’s it. That’s all that explicitly happened.

              To put that in the broader context of what I know about Scalia and his role in Bilski we then know:

              1. He considers Bilski one of his toughest cases to decide (from interviews). People who make decisions (judges, examiners etc) consider cases tough when they don’t know which way is the right way to decide. Thus, he wasn’t too sure about his decision being right back then, and he’s even less sure now.

              2. He based his decision on a statute now no longer in existence (this is from Bilski itself) where its replacement statute expressly forbids him from using it to justify his position as he did previously (he got the message from congress to stop that nonsense statutory construction in this instance).

              3. He’s hyper aware (from the comment itself) of people using him (his vote in Bilski) as the sole justification for the patent eligibility for claims that he’s on the fence about to begin with.

              It doesn’t take a supar genios to see where this is headed or what Scalia is thinking. It sure as f isn’t that he needs to correct or chastise his fellow justice. But if you’re out to lunch on this one that’s fine, I know with psychopathy it can’t be ez brosef. 9-0 comin soon to a decision near you bro.

              Maybe if you listened to the oral args in audio rather than print you’d pick up a little more.

            7. Nah bro, not necessarily. You’re going too far with what I’ve said.

              Not at all.

              If you meant to say something different, then you should just admit that you made a mistake, retract your error and say what you meant to say instead of getting all accusing-others like.

              And I DID listen to the oral arguments after digesting them in print – or are you forgetting that I gave an extensive analysis of the print and augmented that analysis after listening to the audio version (which even more swung against your views)?

              Face it 6 – you goofed and now want to blame someone else for your goof. Man up so we can move on.

            8. “If you meant to say something different, then you should just admit that you made a mistake, retract your error and say what you meant to say instead of getting all accusing-others like.”

              Um I did literally say different words than those you set forth. You then take from my words what you’ve set forth. I then come back and tell you that you’re interpreting my words too extremely. I even lay out what exactly I was saying for you again in more simple terms. You then don’t belieb me, and demand that I apologize and that I speak differently. That’s what a sociopath does brosef. It is called controlling the interpersonal interaction aka interpersonal control. So I’m going to cut you some slack.

              I will admit that it is readily apparent that you did not take from what I said the correct meaning and thus, as a party involved in the communication perhaps I failed to make myself clear enough for you to understand. I even went ahead and explained what I meant again, in more simple terms in the immediately preceding comment. And I said how what he said fit into the context of what we know about Scalia. You have yet to say anything regarding that.

              I did all that already just for you anon. I did that as a favor for you. Already did it.

              “And I DID listen to the oral arguments after digesting them in print – or are you forgetting that I gave an extensive analysis of the print and augmented that analysis after listening to the audio version (which even more swung against your views)?”

              Well that’s interesting, I missed you having done that already. I guess you missed his intent now 2x. Oh well. It’s alright brosef, that’s part of sociopathy. You’ll miss it a thousand times, that’s literally part of being a sociopath.

              “Face it 6 – you goofed and now want to blame someone else for your goof. Man up so we can move on.”

              Just to cut you slack and for the sake of this conversation moving forward I’ll say that I tots GOOFED. I however don’t mean to “blame” anyone. I rarely put “blame” on anyone for anything. Sht happens in the world. Certain sht happens over and over with sociopathic individuals as that is a part of their condition. I don’t blame those people for it.

              Now, if you’d like to address what I was saying, about the comment in the immediately preceding comment, and how it fits into the broader context that’d be super. Though it may just be simpler to agree to disagree. You have your take, I have mine, and we’ll just see.

            9. Certain sht happens over and over with sociopathic individuals as that is a part of their condition

              LOL – you screw up and then label someone else a sociopathic individual.

              Do you not understand (or care) how messed up that is?

            10. “LOL – you screw up and then label someone else a sociopathic individual.

              Do you not understand (or care) how messed up that is?”

              I was afraid of this, now you’re entirely off topic and are too disturbed by my labeling to actually converse about what we were discussing.

              Look, let’s just say that I “understand and care” just how “messed up” it is to identify sociopathic behavior. Then let’s move past that and either discuss or not discuss the topic.

        1. Ned,

          Do you think any of the Justice’s qualify as “high quality?”
          Do you think all of the Justice’s qualify as “high quality?”

    1. Malcolm, so Harvard has increased its tuition tenfold, adjusted for inflation, in the last 60 years. Now for the real scandal. Ticket prices at the new 49ers stadium not far from where I work have gone up. Season tickets are sold by licenses, just for the right to buy tickets in preferred areas. Licenses range from $20,000-$80,000 for seats near midfield. The ticket prices per seat thereafter range from $3250 – $3750.

      There are similar plans for less advantageous seats.

      Seems that the prices have gone up – does anybody have any recollections of what ticket prices were 20 and 30 years ago near midfield?

  3. Would this sort of suit by lawyers against their former clients really end up with the lawyers trying to convince lay jurors [presumably holding typical public opinions of lawyers and their fees] that the millions they are demanding is “reasonable”? I.e., is what is a reasonable legal fee in a particular situation a fact question an anti-lawyers jury gets to decide?

    1. 6, I apply the law and represent science and technology fairly. I am the educated one that does not distort the truth.

      Those people on your link are almost exactly like you and MM and the rest of the Palin Brothers.

      1. Reality check: who are the ones that have jeered the Church-Turing Thesis? 6 and MM. 6, that is like saying gravity is not real.

        Lemley is the chief inquisitor. Software is the “witch.” 6 and MM are the mob wanting to see blood. This blog is the public square.

        1. “who are the ones that have jeered the Church-Turing Thesis?”

          Who is the one that cannot understand, to this day, that we jeer at him and not some thesis? NWPA. That’s who.

          1. I think that you misunderstand NWPA and do not care either that you misunderstand or about his feelings, 6.

            You might want to look into that…

          2. “I think that you misunderstand NWPA and do not care either that you misunderstand or about his feelings, 6.”

            What’s to misunderstand? He wears his thoughts on the matter on his sleeve. He thinks that his abstract thesis somehow will stop a judge from ruling that a claim to an abstract idea is not directed to an abstract idea. Then when we tell him that we understand his line of reasoning but he’s crazy to think that such will happen he thinks we’re mocking the thesis, as opposed to mocking him. There isn’t really all that much to understand about the situation.

            1. What’s to misunderstand?

              Apparently, you find a way to misunderstand most about anything.

              Must be that anti-patent belief system of yours.

        1. > Lol. Is that like some sort of title?

          Hmm, it might be, given that you have a matching (but opposite) title… ;-)

  4. I was an expert in the case involving Jenner & Block and Parallel Networks, which involved an analogous situation. Despite my opinion, the arbitrator in that case gave a partial award to J&B (still millions of dollars but not the full hourly fees it demanded after dropping its client after losing summary judgment). It will be interesting to see if Texas courts think that’s okay or, as this judge said, there’s not a chance in hell of enforcement (aka “reasonable suspicion”).

    I ended up writing “Dear Lawyer….” in the Mercer Law Review. It goes into lot of this stuff — contingent fee agreements that seek to avoid contingencies…

  5. Doesn’t this kind of action by a law firm cause significant damage to the prospects of the firm with future clients?

    I suppose the partners at Drye might be rolling the dice on a big settlement in hopes of retiring. If they win, the firm can be liquidated and the partners are multi-millionaires with no obligations. If they lose, they can always dissolve the firm and take their existing clients elsewhere. It makes me wonder if the stigma follows the partners afterward. I usually check the news history before I hire an attorney and this would probably show up.

  6. This case reminds me of Jenner & Block’s arbitration against their former client, Parallel Networks. In that case, Jenner lost summary judgment and then fired the client. Parallel retained new counsel who got the summary judgment vacated at the CAFC and then the case settled on the eve of trial. After that settlement, Jenner filed an arbitration against Parallel for more than $10 million in fees. The arbitrator awarded Jenner $3 million (presumably for the time and effort that Jenner put into the case – which resulted in a summary judgment of no infringement). Gotta love these big firms and their warped sense of their “value add” to their clients.

  7. At this point, the court has denied preliminary relief, but KDW still has the opportunity to prove its case at the trial.

    It’s hard to imagine that KDW will go to trial on this – this preliminary motion was their best hope of putting some pressure on Orbus. It looks to me as though KDW is owed approximately $375,000.

    1. I largely concur – maybe.

      It would be interesting to see the actual language of the shifting fee arrangement.

      The amount you list appears to accurately represent a non-client winning calculation. It appears that the client fully recognized that a win would change that first guaranteed amount.

      Just as clearly that KDW deserves no portion of the larger European “win,” the portion they do deserve for the US work may very well be more than the guaranteed level.

      Words (of the contract) matter.

      1. Problem being that the “worldwide” license includes the US. Using the literal contract terms, I think that you’d have to apportion the license between the US and ROW and then take percentages accordingly. Who knows what a court will do though. For some reason, all judges and attorneys think that everyone else’s fees are ridiculous, but not their own.

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