Bits and Bytes No. 104: Past and Future Events

17 thoughts on “Bits and Bytes No. 104: Past and Future Events”

1. 17

   “JAOI – I accidentally deleted the piracy post while trying to add “categories” to it. I am now trying to see if it is recoverable. ”

   Even DC needs to copy/paste his posts on PO.
2. 16

   Max is right, of course – you shouldn’t take file wrapper consideration out of context. Where you can run a squeeze argument, the file wrapper usually becomes irrelevant. Where validity and infringement are not subject to the same standard of proof and even could be subject to different claim construction, it’s nice to have something concrete to rely on.
3. 15

   But Provincial, it is exactly those common law, nose-holding, thoroughly English barristers in Pall Mall that are the ones in Europe most vehemently against use of the file wrapper to construe the European patent in suit. I thought they were the only ones in Europe you had any time for. And now they disagree with you too.

   The legal certainty comes from knowing that the patent means what the patent says, no more and no less. Everybody reads the file wrapper. Often it provides the fuel for the discovery or the cross-examination that delivers the witness evidence that complements the squeeze arguments from those barristers that will defeat the patent owner. Some readers will know what I’m talking about. But not you I suspect.
4. 14

   Yes, Max–exclude a whole body of evidence in the name of “certainty”.

   Purported “certainty” at the expense of justice.

   The only “certainty” that will follow will be that there will CERTAINLY be less evidence on which to base an informed opinion.

   What you actually get is not certainty, but CERTITUDE, another product of your arrogant european attitude.

   Keep your civil head in the sand, avoid tough questions, and avoid even considering potentially relevant and probative evidence.

   One “relies” on evidence to prove or disprove a proposition. The extent of “reliance” reflects simply the quality of the evidence in the face of the totality of the evidence.

   We can do this because we are not afraid to broach these matters, and ask tough questions. We operate in the light of day, and don’t have the same cowardly need for ease and convenience that europe has, save for NL.

   We do not require your brand of european certitude to maintain our self-constructs. Unlike you, we are not afraid.
5. 13

   JAOI – I accidentally deleted the piracy post while trying to add “categories” to it. I am now trying to see if it is recoverable.
6. 12

   Dear Professor Crouch,

   What happened to this thread?:

   No guns, no boats, no gold. Piracy?
7. 11

   So far, the only thing of value I have gleaned from this thread is that, in patent litigation, the opportunity to rely on the file history is a major disturbance to legal certainty. Some judges fall into error when they base their decision on it, while others fall into error when they ignore it. For giving me that wisdom I thank my old chums JAOI and MM. You see, Europe (except NL) eschews reliance on the file history, and every drafter, examiner, prosecutor, litigator knows it. It gives us more legal certainty. (There, you see JAOI, nuts as ever).
8. 10

   Excuse me, I need a little fresh air…
9. 9

   And the top posters on PatentlyO:

   1. Malcolm Mooney
   2. Malcolm Mooney
   3. Malcolm Mooney
   4. Malcolm Mooney
   .
   .
   .

   And the top cited “authority” on PatentlyO:

   PatentlyO
10. 8

    I have not had the pleasure of meeting Mr. M. Mooney, but, after studying his writings and ranting on this board, I suspect he has a serious “Borderline Personality Disorder.”

    My advice, seek help – seek help immediately.
11. 7

    Dear Alan McDonald,

    Thank you for your comment – please excuse me if I seemed touchy.

    Re: “I was talking about my experience with independent inventors over the years generally.”

    Generally, I certainly agree with you.
    But I have been blessed to meet more than a handful of exceptional independent inventors from whom I’ve learned and honed my practice, and to whom I am eternally grateful for the motivation they instilled in me and instill in others.
12. 6

    Hi Malcolm,

    Please don’t take this the wrong way, but, has anybody ever called you a broad crappy commenter?, with the patent skill set of an orange?
13. 5

    JAOI,

    Sorry if you thought I was talking about you personally.

    I don’t know you or any of your inventions. For all I know they may well be wonderful.

    I was talking about my experience with independent inventors over the years generally.
14. 4

    JOAI: “you never know whether or when a judge is going to use language in the FILE HISTORY to limit the claims in ways you never intended or even imagined.”

    Actually the opposite is more accurate: you never know when a judge is going to *fail* to limit the claims as the file history and case law requires.

    It’s that statistical failure which continues to drive settlement rather than the invalidation of broad, crappy patents.
15. 3

    Dear Alan McDonald,

    Thank you for your comment. However, with all due respect, you missed my point, and I disagree with your points. Please re-read my comment above.

    This was my personal experience:
    My patent was totally and unjustly tanked by Judges that were influenced by “politically-correct” troll-trash talk propaganda right on up to and including the Supreme Court. The decisions in the district court and CAFC were painfully and undeniably result-oriented and our petitions to reargue and to the Supreme Court were denied.

    This screwing was with my reexamined patent that four prestigious patent firms offered to take in the first couple of years of this century on a full “alternate” fee arrangement. A fifth offered with a modest upfront fee requirement. All five firms fully did their diligence.

    Re:
    “What independent inventors will never understand is
    1) everything they come up with is not the “next best thing since sliced bread” and that everyone wants it and
    2) to infringe a patent you must infringe the claimed invention, not the broad concept the inventor thought was the invention or could come up with a way to stretch the claim to cover.”

    I have met several “inventors” as you describe.
    However, if you followed my writings on Patently-O, you would have a much different opinion of me. I am most proud to say attorneys I’ve worked with through the years thought I was a phenomenal client, although some added that I was a “character” (I think they meant that in a fun way).
16. 2

    JAOI,

    You may not like the decisions (finally) giving a defendant an even shot, but saying judges favor corporations over independent inventors is way off base.

    Judges bend over backwards to make sure the poor independent guy isn’t run over by the big, bad corporation with its army of lawyers.

    If this were not so, half of all cases filed by independent inventors would be thrown out without so much as requiring an answer and with Rule 11 sanctions against the plaintiff.

    What independent inventors will never understand is 1) everything they come up with is not the “next best thing since sliced bread” and that everyone wants it and 2) to infringe a patent you must infringe the claimed invention, not the broad concept the inventor thought was the invention or could come up with a way to stretch the claim to cover.
17. 1

    One comment worth repeating:
    link to patentlyo.com

    Dear 123,

    Re:
    “Its unfortunate, but you never know whether or when a judge is going to use language in the spec to limit the claims in ways you never intended or even imagined.”

    Worse yet, despite en banc Philips v AWH and other clearly established precedent, you never know whether or when a judge is going to use language in the FILE HISTORY to limit the claims in ways you never intended or even imagined.

    Moreover, Judges can screw an independent inventor anytime s/he wants, and they are inclined to do so given the troll-trash talk propaganda spread for most of a decade by companies like Cisco, Intel, Microsoft, Oracle, and Symantec directly and through their Coalition for Patent Fairness, a cartel dedicated to dummying down the American patent system overtly and covertly by skewing the media, the public and our three branches of government against self-employed independent inventors.

    Posted by: Just an ordinary inventor(TM) | Feb 08, 2009 at 11:25 AM

Comments are closed.