Judge Keith Ellison issued a scathing order dismissing a patent case after it had been tried to verdict. Tesco Corp. v. Weatherford Int’l., Inc. (S.D. Tex. Aug. 25, 2014). Four days into a three-week trial over infringement of some patents relating to drilling rig equipment, an inventor testified that a brochure that constituted 102(b) prior art showed his invention. The following day, a Friday, patentee’s counsel told the court he would spend the weekend getting to the bottom of the facts about it (there was even a dispute over whether the brochure had been produced to the defendants).
Come Monday, the patentee’s lawyer said that the brochure had been rendered by someone else, Karr, not the inventor and that Karr would unequivocally, no doubt, for sure, and so on say that it was not the inventor’s device. Trial proceeded. There was a mixed and inconsistent verdict rendered by the jury. Rather than enter judgment, Judge Ellison let the case proceed to other issues.
After trial during discovery relating to exceptional case and inequitable conduct, Karr testified that he had had nothing to do with the brochure and that everything the patentee’s counsel had said was false.
The defendants, not surprisingly, moved for sanctions. Making matters worse, in opposition to those motions, the patentee’s counsel quoted portions of the deposition excerpts that, Judge Ellison felt, were at best misleading.
In this order, the judge dismissed the claims with prejudice, holding that nothing less would protect the judicial system. It then invited motions for attorneys’ fees to be submitted. Stay tuned.
Wow. What a colossal waste of time. Have you guys ever sat back to look at yourselves? It’s like watching a room full of 6 year-olds arguing about who smells worst.
Welcome to the Malcom CRPfest.
Come back to the old country children. We have special places to look after you.
MM has been here for at least 5 years. This blog was much more civil and useful before he showed up.
Some suspect that he is a anti-software troll who is being paid to blog. Others suspect that he is with the USPTO (and has a LOT of time on his hand). My suggestion is to just ignore him — of if you do engage him, don’t get caught up trying to change his mind.
Regardless, MM gets away with the type of comments that would be banned by the vast majority of moderated blogs. However, he has been blessed by the owner of this blog, Dennis, and there is little we can do about him.
It’s much more fun sticking a fork in Malcolm’s eye and highlighting his duplicity and banal1ty.
As you point out, he won’t be going away (even if everyone ignores him), so why not have a bit of fun at his expense?
Come on, didn’t you enjoy it when he attempted a substantive discussion and volunteered his admission against interests of knowing and understanding the exceptions to the judicial doctrine of printed matter?
MM has been here at least 9 years. I started on this blog 9 years ago.
>Wow. What a colossal waste of time. Have you guys ever sat back to look >at yourselves? It’s like watching a room full of 6 year-olds arguing about >who smells worst.
Pretty much true of 90 percent of the posts. 10 percent are OK.
Planet Bingo argues that “in real world use, literally thousands, if not millions of preselected Bingo numbers are handled by the claimed computer program,” making it impossible for the invention to be carried out manually. Appellant’s Reply Br. 14. But the claimed inventions do
not require as much. At most, the claims require “two sets of Bingo numbers,” “a player,” and “a manager.”
So were the attorneys who made that “impossible to be carried out manually” argument to st 00pit to understand how claims are construed, or were they lying?
Seems like a sanctionable argument to me. The fact that this exact same “pretend that the claims are sooper technical and complicated” tactic is routinely employed by patentees doesn’t make it more worthy of respect.
Judges need to learn how to shut these bttom-fee ders up. It’s not going to happen with “gentle reminders”.
>>Judges need to learn how to shut these bttom-fee ders up
I wish someone would pull the plug on your revenue stream for posting on this board. With people like you engaged it is impossible to have real debate. You dirty this forum.
Of course the reason you are the way you are is that you couldn’t engage in real debate as you would lose. (But, wait Ned thinks you are a swell guy.)
“With people like you engaged it is impossible to have real debate”
That’s kind of the point for Malcolm, isn’t it?
With people like you engaged it is impossible to have real debate.
So says the brotards who compared critics of our broken patent system to “fundamentalist ra pers and killers in Iraq.”
What a incredible pair of hypocritical dooshbags.
your revenue stream for posting
When you promulgate this insane horseshirt you’re only revealing your own selfish motivations to everyone.
Not everybody is like you, thank goodness. Most of us are far more intelligent and far less inclined to lick the bottom of the fishtank just because it fattens our wallets a little bit.
Maybe step outside of your bubble and meet some ordinary people or, better yet, some intelligent people who aren’t personally invested in your warped views about what’s patent-worthy. Tell them about the “rapists and killers” and see how they react.
“selfish motivations”
LOL – that sounds a lot like G-g-g-g-grifters
(oh my)
Better yet – maybe just discuss the law and facts….
(oops – Malcolm won’t go there)
The memorandum opinion is worth looking at. Looks like this judge completely lost control of the parties. But when the state bar gets a whiff of this case, there’s a Bracewell & Giuliani partner who’ll be looking for work on oil rigs.
Judge Ellison: “The Supreme Court explained and the Federal Circuit affirmed, ‘if in the informed discretion . . .’ ”
Not sure Judge Ellison has a complete, overall picture of the US judicial system and its hierarchy.
“Not sure Judge Ellison has a complete, overall picture of the US judicial system and its hierarchy.”
For everyone who can’t get that what SCOTUS says goes, period, it would appear that the patent bar doesn’t get the complete, overall picture either.
“ says goes, period”
lol – so much for checks and balances – right?
I thought it was the final arbitrator. And what it says goes …
Until a later SCOTUS decides/moderates that ruling, or until Congress changes the law. And the court CAN decide that the law is unconstitutional.
Even I learned that much from high school civics class.
You don’t get the concept behind checks and balances either….
jesse – your logic needs some serious work.
Haven’t seen anything wrong with my logic.
all you have done is say it is wrong. And “because I said so” doesn’t count as that is not logical 🙂
Of course you have not jesse – at least I think enough of you not to be like Malcolm and post in an openly dishonest manner.
You just happen to be an honest clueless dolt. – Lots of lemmings like you.
(and telling you what the law is is not “because I say so.”
A little gift: read and then come back
link to copyright.gov
I have read.
And what I’ve read from various sites indicates you are not quite telling the truth.
Second, a statement of “law” that doesn’t match reality is an assertion. In fact, all law is based on assertions (much like math)- some of them are even invalid.
Math attempts to identify and show the invalid assertions – which are then removed.
As I have always understood it, the ultimate court in the US is the Supreme Court, whose decisions are by definition “ultimate”, so their decisions are final. The checks on it are from Congress which can decide the definition of a law – but it is still the courts that have to handle the arbitrary mismatches between reality and the law, and one law and another (which is one reason the places that have laws requiring a footman to precede an automobile are ignored, it is illogical).
The science of computation is a field of mathematics. A law declaring software (part of the field of computation) is hardware is an assertion – and not based in fact. Software (as we now call it) has existed since about 1800 and is how computation of ballistic tables, navigation tables, and even other math tables (such as sine/cosine/tangent/roots/differences…) have been created. At that time a “computer” was a person following the sequence of rules for the procedure (the software). Charles Babbage translated those rules into wheels and gears to create a mechanism – at least for the difference tables :), and he conceived (and designed) what is now called a computer. There is even an experimental project that is trying to actually build it.
Now such “software” procedures were not original even then – there is some pretty good evidence that similar procedures go back to around the 6th century BC or earlier (use of trigonometry in Egypt).
Copyright/patent law is much more recent… but doesn’t seem to have caught up with mathematics as far as quality of development, hence the illogic in some of its assertions.
Complaining about the correction by the court of some of the illogic is… a bit illogical.
It happens quite a bit in the field of math. One persons proof may be shown to be incorrect by another persons analysis. Exactly the same thing happens in programming (only there is called a “bug”).
I do accept that you don’t have to like it.
But calling names is also not logical.
You remain clueless.
The science of computation is a field of mathematics.
So what. Biotechnology is a field of biology … which has been around for how long?
Software (as we now call it) has existed since about 1800 and is how computation of ballistic tables, navigation tables, and even other math tables (such as sine/cosine/tangent/roots/differences…) have been created.
You seem to forget that patent law also protects PROCESSES.
I would respond to the rest of your post if you had some relevant points to make — you didn’t.
No, I didn’t forget.
You forget the difference between a description of a process, and a process.
You don’t patent the description.
/face palm
jesse is way beyond the weeds.
I appreciate the stalking love you have for me, but if you cannot even get basic points down, I am just going to have to ask you to return to slashdot.
This plaintiff-patent owner attorney and his firm that are the subject of this judical sanction decision should be publicly named, including here, since that is already of public record in the S.D. TX D.C. The only attorney identification of any kind that I could find in or on this attached opinion itself is a “Mr. Ballard” reference in an exerpted testimony question.
I didn’t see your comment while I was writing mine.
He is named in the memorandum opinion. Glenn Ballard, partner, Bracewell & Giuliani.
link to law360.com
John Luman, co-counsel is also mentioned.
Gamesmanship like this is appalling – and no less for a statement like “Finally, Tesco argues that any misrepresentations it might have made to the Court did not make a difference because it never made them in front of the jury”
In – or out – of the court, such duplicity is reprehensible. While the court was naturally concerned with its proceedings, and reached a severe penalty for reasons listed in regards to the matter being in court, advocates should recognize that “being in court” is not a limiting factor.
Outside of the court (like on this blog), several, um, supposedly attorneys routinely “affirmatively and knowingly [misrepresent]” law, facts, and what others post.
“The testimony reveals that this is not a simple case of innocent mischaracterization.” – likewise to advocacy on these boards.
“The Court is entirely confident that the conduct that it finds so troubling is entirely out of character for the attorneys.” Not so with the ill actions of those advocating on these boards.
We all know who comprises this little circle.
Outside of the court (like on this blog), several, um, supposedly attorneys routinely “affirmatively and knowingly [misrepresent]” …facts….
“Hardware and software are equivalent!”
Except when they’re not. Oops.
Except that they are.
Do you need to have your hand held as to the difference between equal and equivalent?
Sort of like the difference between clue and requirement?
Never seen software as either equal or equivalent to hardware.
I have seen software WITH hardware provide equal capability as other hardware…
But software in and of itself doesn’t do anything.
Rivets, bullets and tires, oh my.
Rivets, bullets and tires
What’s your point, Billy?
machine components are manufactures in their own right – and just like a rivet is “meaningless” on its own, so too, anything “on its own” is not determinative.
machine components are manufactures in their own right – and just like a rivet is “meaningless” on its own, so too, anything “on its own” is not determinative
Determinative of “what”, Billy?
LOL – too nuanced for you, Malcolm? Having trouble connecting the dots?
/face palm
too nuanced for you
Not at all. Just answer the question.
What’s the matter, Billy? Is your mommy taking a nap so she’s unable to help you with your English language issues?
Physical objects may hurt…
But software alone will never hurt me.
poor jesse, still trying to play in a terrain he just does not understand.
Malcolm, be a dear and explain the controlling law as to the exceptions to the printed matter doctrine to our friend from slashdot, won’t you pal?
still trying to play in a terrain he just does not understand.
And there Billy goes again, reading from the patent t e a ba gg er script, right from the top: “You don’t understand the technology” or “You don’t understand the law”. Rinse. Recycle. Repeat.
What’s really being said, of course, is “Stop bringing these issue up because waaah!!! waah!!!”
And as for understanding “technology” I note that the last time you attempted to even define the word you ventured into the scientific method, from whence I handed you your @$$ on a platter by showing you that business methods have used the scientific method since at least the days of Demming.
You quickly ran away from that conversation.
And just what “physical structure” does software relate to?
There isn’t any. If you count the CPU as a physical structure (fine), then ALL software relates to a CPU… except, that it doesn’t.
Mathematical expressions never have. It always requires something OUTSIDE the math to translate to or from the symbols of math.
The CPU is just a symbol processor (actually, just an emulation of a math processor)
jesse,
There is no such thing as software “in the mind.” Such is only the thought of software.
Much like the ability to obtain copyright protection, software must be committed to a tangible media.
Read Sun Tzu – then realize why this foreign terrain (foreign to you) poses such calamity.
Read Sun Tzu – then realize why this foreign terrain (foreign to you) poses such calamity.
Take your head out of your axx, Billy, and then realize why your endless j nk patent lovin’ b.s. has wasted everybody’s time for years.
“Much like the ability to obtain copyright protection, software must be committed to a tangible media.”
That is why software can be copyrighted. As can mathematical writings…
But that doesn’t mean it should be patentable… software, even when on tangible media, still has to be read by something, and interpreted by that something. And it doesn’t matter whether that something is human, chimpanzee, or a CPU.
Even software “on tangible media” is still nothing but symbols, just like any writing.
math cannot be copyrighted jesse – and (again) you miss the point that copyright and patents protect different aspects – as I am sure that you are aware that software can earn both patent and copyright protection, right?
“ And it doesn’t matter whether that something is human, chimpanzee, or a CPU.”
Actually – that matter IS critical. That’s because the law allows for machines (and machine components, like software).
You really need to understand why you are failing here.
…and as for the “just writing” – there again your ignorance of the law trips you up.
Funny, I invited Malcolm to explain this to you, seeing as how he has admitted to knowing and understanding the controlling law on this topic. I wonder why he is letting you down….
Anon – it isn’t exactly foreign territory.
What IS foreign is your imposing a law that doesn’t apply to MY territory.
I understand software quite well.
You do not.
I don’t attempt to impose software rules on law, yet you are attempting to impose law on software.
And mathematics has always been subject to copyright. Every mathematical proof in existence (well, since copyrights anyway). Even lawsuits over it (usually called “plagiarism”). But you can check the history of Elsevier for that.
Now derivatives of proofs are still created. Just as novels are still created.
There is also the Curry–Howard correspondence that shows programs and mathematical proofs are the same kind of objects.
The mix of both is foreign territory.
You think that your view of tech is sufficient.
Clearly, it is not.
You think that your “logic” can cover both – and this displays a fundamental weakness in the very thing that you seem to want to prize: logic.
That you fail to see this and persevere in your inanity is proof that you do not grasp just how very wrong you are.
Nobody could have predicted Billy would return to the top of his patent t e a b a g g e r script and accuse jesse of being too st 00pit to converse with.
It’s that Billy does. It’s what Billy was taught to do by his hero.
Keep up the great work, Billy. It’s been working wonders for you so far.
LOL.
Because Malcolm wants to borrow Ned’s “6-must-be-a-genius-because-he-agrees-with-me” and think that silly jesse has a clue in the legal world…..
Good luck with that.
“There is no such thing as software “in the mind.” Such is only the thought of software.”
What?
Even while in school, we evaluated software “in the mind”. Yes, we had to use pencil and paper… But the computer being studied did not exist. It was just a mathematical construct. Our studies were of the “how do you do X” given the construct.
You need to visit an introductory class on lambda calculus to see just how “in the mind” software is.
jesse – evaluating is not software.
thinking is not software.
Please provide a piece of software that is not a machine component.
(ps, I do not need a class on lambda calculus thanks – you need a class on reality and how to say no to the Kool-aid that you have become addicted to)
And yes, you really do need to recognize that applied math is fully patent eligible. Hint: the key is the “applied” part.
And yes, you really do need to recognize that well over 90% of patent claims of any value are abstracted up at least one and often several rungs up the ladder of abstraction.
Notwithstanding the “support” of the anti-patent Malcolm, these are basic principles in patent law that apply across the board (and not just in the software arts).
“Please provide a piece of software that is not a machine component.”
No problem.
(x, y) \mapsto x \times x + y \times y
No machine component anywhere. Not a semiconductor or memory location, nothing.
Yet, as an expression of lambda calculus, it also works as software without changes.
“Hint: the key is the “applied” part.”
Math can be applied in many ways… But math in and of itself is not “applied”. It is just math. Formulas should not (according to the judge) be patentable. Whether they can be used to describe forces on a bridge or not.
“ works as software”
as…?
It is either software or it is not.
By definition software is a machine component.
You FAIL.
“By definition software is a machine component.”
No it isn’t. That would be like claiming an accountants record book was a “software component”. Sorry, it isn’t. Quite possibly that is why lawyers fail at software. You ASSUME that because YOU think such is the case, it MUST be the case.
As shown by the Curry-Howard correspondence – there is no difference between math and software.
Yes.
It is.
If you cannot even get that much, your “expertise” even in a technical sense is nonexistent.
“ there is no difference between math and software.”
LOL – kiss copyright goodbye then too, as I am sure you are well aware of, you cannot copyright math.
Or didn’t you know that?
There is a LOT of copyrighted math.
Elsevier has tried to prevent owners from publishing over it.
Or didn’t you know that?
Math cannot be copyrighted – you should know that.
Step up your game – this is easy and basic stuff.
“Math cannot be copyrighted – you should know that.”
You are misrepresenting things, as I expected.
Single math expressions, even entire formulae are not copyrightable as a statement of facts…
And english expressions, even entire sentences are not copyrightable as a statement of fact either.
Yet, entire works of math ARE copyrightable, just as entire articles of history written in english are copyrightable.
I am not misrepresenting anything.
It is math – or it is not math.
Take your pick.
Maybe you should hire an attorney, Billy.
LOL.
because….?
If you have a point that you want to make, why don’t you just go ahead and make it?
“It is math – or it is not math.”
Oh it is math. And math publications do copyright it, as to mathematicians. After all, ANYTHING written since about 1975 has automatically been copyrighted by the author, and written math is, well, written. And like anything written, it MAY contain parts that are not covered. In the case of math (like news stories and history ought to be) there is an organization applied, and a logic applied to show the steps from one element to the next.
Your derision of math by claiming it can’t be copyrighted would be the same as my claiming history texts or news stories cannot be copyrighted simply because they contain facts.
Both are wrong.
It also appears to show you don’t know very much about math or software, and possibly even copyright. At worst, it shows a shyster mentality.
still wrong and still clueless
This is not entirely academic, as it is one of the issues with Beauregard claims, in which no machine is actually claimed. A true Beauregard claim is to novel software conventionally written on conventional storage media, which software could and might be used to controll a machine, and thus can be asserted as infringed by someone merely selling the media with that “written matter” on it even if the alleged infringer is not a person using it in a machine.
It’s not academic at all paul – last I checked, a manufacture (which is what a machine component is, fits the statutory category aspect of 101 fully).
Of course, those who are interested in NOT misrepresenting my views will fully realize that merely meeting a statutory category is not enough to meet the legal requirement of 35 USC 101 (there is the utility aspect).
B claims are dead as doornails. Anyone who pays for them is an idi0t.
So decrees the Red Queen / Humpty Dumpty.
(sigh)
You did the same clown dance, Billy, in the run up the Prometheus.
All those [oldstep]+[newthought] claims are still dead as doornails, just as I told you they were.
See how that works, Billy?
You just keep your head up your axx where it’s warm and safe. Your hero Big G probably sounds a lot like God himself from inside there. That would explain a lot, wouldn’t it, Billy?