Of Immediate Concern: Best Mode and Joinder

In all likelihood, President Obama will sign the Leahy-Smith America Invents Act into law on Friday, September 16, 2011. There are a few issues that folks may want to consider before-hand.

Best Mode: On the date of enactment, failure of best mode will no longer be a basis for adjudging a patent invalid or unenforceable. However, the new provision only applies to lawsuits filed on or after the enactment date. Thus, a declaratory judgment action filed today could still rely on best mode as the basis for invalidity.

Dis-Joinder: A second litigation-focused issue that goes into force on the date of enactment is the new dis-joinder provision. Section 19 of the Leahy-Smith AIA bars a plaintiff from suing multiple defendants in a single lawsuit if the only justification for the joinder is that all defendants are alleged to have infringed the same patent. The law would also bar a court from consolidating cases for the same purpose absent waiver from the multiple defendants. The idea behind the provision is simply to raise the litigation costs of non-practicing entities who allege that their patents are being infringed by a broad spectrum of corporate defendants. The law applies to all lawsuits filed on or after the bill’s enactment date. Thus, if President Obama signs the bill into law on Friday, a plaintiff may still file a multi-defendant lawsuit today or tomorrow.

186 thoughts on “Of Immediate Concern: Best Mode and Joinder

  1. Ned,

    That may be, but the definition of “useful arts” was taken from the five justice portion – the modern day version.

    Thus, while only four justices partook of the New Age dicta, that very same dicta flows from the modern day reading of “useful arts.”

    Perhaps there was some specific and small item in the concurrence of 4 that lost the fifth vote. It would be most illuminating to figure out exactly what that item was.

  2. AI, just to clarify something if you didn't understand my post, what I was suggesting was that Chief Judge Randall Rader's quotation of the Supreme Court concerning "Industrial Age" was taken from the portions of Kennedy's opinion to which only four justices out of nine agreed.

  3. Malcolm, point conceded.  I believe that you are right that Bush was unconcerned about whether the Wall Street bankers took a haircut.

    That said, the Democrats controlled Congress and controlled TARP.  If they wanted to require that the banksters receive a haircut in exchange for a bailout, that was easily put into legislation; but it was not.  The Democrats deserve part of the blame for not putting this requirement into the statute.

  4. Presumably ‘inventor’ does not now mean ‘the person who files the application.’

    Actually, it can mean just that.

    See the section on who can submit the oath in place of the inventor – this has a very Euro feel to it.

  5. is 2000 years old, so for those reading about him it’s still breaking :)

    Interesting logic.

    Sort of like “It’s new, if it is new to you.”

    Does this mean that you think that if something was held as a trade secret for decades, but was “still breaking” to everyone else, that the policy of Quid Pro Quo should apply for disclosing this “still breaking” in exchange for patent rights?

  6. NED “AI, you should know that I briefly scan your posts to see if they approve approving of my BS. If they are not, I stop reading them and have no intention of replying.”

    ::Fixed::

  7. “There are sections on YouTube where you can rent/buy movies. Of course you can now get movies and music for free as well as long as you view an ad.”

    And where precisely do you have to request to view these ads AI?

    “You can opt in to view such Ads in your preference settings so the ads always come up.”

    “Can opt” is not youtubicles sending you an ad in response to a request.

    Again, the same thing with hulu. They don’t ask you if you’d like to view an ad to view the vid for free.

  8. Je sus Ch rist is 2000 years old, so for those reading about him it’s still breaking :) . Plus I just put that there to get people to read it lol.

  9. Ned Paulson was a Democrat, albeit, a Bush appointee.

    You’re saying that Paulson voted for a Democrat at some point? What is your point? Was he tool of the Democratic Party? Employed by the Democratic Party? Carrying out the Democratic Party agenda?

    Finally do not so lightly dismiss Obama’s role. He negotiated TARP directly with Bush as the leader of the Democratic Party.

    What horrors did Obama “negotiate” for, exactly, that Bush did not want to give?

    The GM stockholders and note holders, in contrast, took a major haircut, as well they should.

    Gee, Ned, you do realize that this was Barack Obama’s approach, don’t you? Prior to that, the Bush admin was simply throwing money at GM. And of course many Republicans were bitterly opposed to Obama’s plan. Until it became clear that it was working, then Republicans began to try to take credit for it themselves.

    I totally agree with you that the banksters should have been treated similarly. But it’s not Barack Obama’s fault that they weren’t. It wasn’t his call. And if you think the current crop of Repukes now in charge of Congress would support giving the banks the GM treatment, you’re deluded. And that’s true even given the fact that the Repukes number one priority between now and next November is to make sure that the economy remains shxtty. These guys are not afraid to come out and say that their number one priority is to take the White House. Jobs? That can wait. What do they care anyway? Most of them are millionaires who will benefit royally from their sociopathic policies at the same time those policies ruin the lives of less fortunate people (also known in wingnutspeak as “the lazy criminals who engage in voter fraud”).

  10. “You may need to apologize for closing your eyes and closing your mind if you are resolute in not understanding what is clearly written.”

    Don’t wait for ay apology from Ned. Only a gentleman and scholar would do that. We all now know Ned and he is neither.

  11. “f you are not contending that Congress amended 101, or that Rader has the personal power to overturn the Supreme Court, where is your authority for you proposition that programmed computers are patentable per se.”

    Ned the authority comes from the statute and from the Courts interpretation of that Statute. Rader is correct in pointing out that there is no statutory bar on software, business methods too for that matter. And that the Supreme Court when given a chance refused to do so. And expressly refused to do so for business methods. It matters not what you want them to do, or what a minority thought. The Court has ruled and this is the law. Now just deal with it!

    Please!

  12. That should be….Now 6, what part of ” No limitations or conditions on subject matter eligibility expressed in the statutory language” do you not understand???

  13. “Given this decision, is it any wonder that there are no comments to the now legal presumption that software – all software is patent eligible on a PER SE basis?”

    To be sure, this claim is not a claim to software per se.”

    From IP Watchdog

    ” In fact, Rader’s next statement may truly cause a conniption for those who oppose the patent-eligibility of computer software: “this court [i.e., the Federal Circuit] detects no limitations or conditions on subject matter eligibility expressed in the statutory language [i.e., in reference to 35 U.S.C. § 101],” citing to Association for Molecular Pathology (AMP) v. USPTO and Prometheus Laboratories, Inc. v. Mayo Collaborative Services, as well as the Supreme Court’s Bilski decision.”

    Now 6, what part of “limitations or conditions on subject matter eligibility expressed in the statutory language” do you not understand???

    Software is in and you are on the way out!

  14. “Note that this should not be taken to imply that I am in fact or have ever been an examiner.”

    On that we could only dream. Unfortunately, the reality is a nightmare.

  15. Ned: “6, the only passage in the whole case that merits any real discussion is this……:”

    Oh I say the following discussion from rom IP Watchdog merits our attention. Especially since you staked you credibility on arguing the opposite. What ye say now Ned?? Huh??? Why sooooooo silent??

    From IP Watchdog” “In what may become the definitive answer to a question that has (unfortunately) lingered since the Supreme Court’s ruling in Bilski, Chief Judge Rader categorically stated that the Supreme Court, in Bilski, “refused to deem business methods ineligible for patent protection.” That statement may cause an “Excedrin-size headache” for the “naysayers” of so-called “business methods” being patent-eligible. ”

    Ned: “Breyer/Scalia concurrence which did find support of a majority of the court on the importance of the MOT and stands in stark contrast with Rader’s misrepresentation.”

    That’s just two Justices Ned, and from what I read they did not agree with your sentiment that MOT was still the sole or even the primary test. All did agree that Diehr controls, ala Bilski 14. Something to this date you are terrified to even acknowledge.

    The MOT is a clue, yup we all get that. It’s helps but lack of any MOT in your claims does not hurt! The majority did not say otherwise. Even your exalted two did not say that. Only you and maybe other naysayers cling to that notion. So in the end Rader did not misrepresent anything.

  16. Ned,

    The intent of Congress has been spelled out – in this case, there was no need to change 101 to redirect the understanding on software as a tool per se. No amendment is necessary, so no need to apologize for missing it.

    You may need to apologize for closing your eyes and closing your mind if you are resolute in not understanding what is clearly written.

  17. Explain, In re Benson being overturned by Gottschalk v. Benson. I assume you are contending that Rader’s panel opinion in Hulu somehow did that, or that Congress amended Section 101.

    If you are not contending that Congress amended 101, or that Rader has the personal power to overturn the Supreme Court, where is your authority for you proposition that programmed computers are patentable per se.

  18. Well, 6, there is nothing like honesty to prevent future (esp., litigation) problems.  I would certainly disclose your relationship to the patent attorney handling your applications.  If you or your moonlighting collegues plan to handle the cases yourself somehow without disclosing that fact, you might be committing all kinds of ethical violations that could have adverse consequences for you and your business down the road.

  19. WTH?? You just got you hat handed to you 10 different ways to sunday and thats all you can say????

    After all the shewolf tickets you sold. All the crying. All that attacking. All the shameful acts and now the best you can do is mumble out a couple of sentences that have nothing to do with the points proven correct.

    And don’t retreat back into your pseudo juvenile passive aggressive narcissism.

    You need to say you are sorry

    You need to say you were/are wrong

    You need to shout BUSINESS METHODS ARE ELIGIBLE SUBJECT MATTER

    You need to say Diehr cabined Flook and Benson!!!

    You need to say there is no MOT requirement and for all practical purposes not even a MOT test anymore.

    Say it Ned!

    I challenged you to say all the above and show you have a modicum of integrity on this blog.

  20. Ned:

    Once again you willfully choose to ignore the significance of the ramifictions of this case.

    Cybersource is dminished!

    Expressly because it did not work in perfect concert with the law as it s today. The law which expressly says…

    101 is a low bar and with wide scope

    MOT is NOT a requirement

    Business Methods are patentable subject matter.

  21. “You really now can give that whole line of thought a much deserved rest. Even for the sake of argument, if one were to assume that you were correct, the new law overrides any such Supreme Court thinking. ”

    What are you now just making sht up out of thin air?

    Are you a lawyer, or even associated with patent law tangentially?


  22. AI, Rich really did not like the Supreme Court on any number of issues, particularly Douglas, Black and Stevens. His Republican roots really showed. He was at war with these folks on any number of levels.”

    Ned:

    You digress from the fact that Rich, having wrote the law, is/was the foremost the expert on what was written and intended, not the Supremes, not you.

    This is why you are wrong Ned and have lost all the debates on business methods and 101 statutory subject matter, even if you can’t come to terms with that yet.

  23. “Given this decision, is it any wonder that there are no comments to the now legal presumption that software – all software is patent eligible on a PER SE basis?”

    To be sure, this claim is not a claim to software per se.

  24. “Is this enough to distinguish Cybersource?”

    Well of course, thanks to the bs reason they made the holding in Cybersource.

    “Did you gag when he quoted the portion of the Bilski Kennedy opinion that did not have Scalia’s support without even noting that fact?”

    No I skipped most of his quotes, I’ve heard them all 100 times I’m not going to read them again.

    Plus, he needs something to base his opinion on, and since it obviously isn’t the law that he’s using then I don’t really care what he’s quoting.

    I should note though that this decision is a real godsend to my new startup. We can apparently patent our new methods np. That’s free money for me after the company goes belly up and I take all the assets.

    Tell me Ned, if I’m the CEO of a company, and that company hires, let’s say, a few of my coworkers, and my uncle, can my uncle freely file on patent apps and assign them to the company, and then when the company goes belly up and I take over sole control of the leftover assets is that fine legally or is there some problem with an examiner having an ownership stake in any patent/app?

    Note that this should not be taken to imply that I am in fact or have ever been an examiner.

  25. “Lastly, you have never answered Publius – how are you held accountable for your actions on these blog pages?”

    Don’t hold your breath on that. Ned simply chooses to not reply, after of course he attacks, dodges, and evades.

  26. “There is a clear difference between not understanding and not agreeing. Clearly, when you prevaricated and said that you did not understand what medical methods were, you were simply evading the cold logic of the point that business methods are merely a category or type of method (which explicitly differentiates from your deceitful “categorically” position that only you have ever argued).”

    Exactly, and even having his arguments eviscerated by this latest decision , Ned still won’t admit he is wrong, mistaken, or dishonest.

  27. Ned,

    You really now can give that whole line of thought a much deserved rest. Even for the sake of argument, if one were to assume that you were correct, the new law overrides any such Supreme Court thinking. It is now law – software PER SE is patent eligible.

    Can we move on now?

  28. Yup SO says they guy that just a few years ago was still wanking to his Brittney Spears poster.

    Oh wait.. you still do that.

    My bad

  29. Given this decision, is it any wonder that there are no comments to the now legal presumption that software – all software is patent eligible on a PER SE basis?

    See my comment above at “Sep 15, 2011 at 09:15 PM”

  30. MAL, I agree.

    Now consider the broader quote.

    Rader (Hulu):”In other words, a programmed computer contains circuitry unique to that computer. That “new machine” could be claimed in terms of a complex array of hardware circuits, or more efficiently, in terms of the programming that facilitates a unique function.”

    Rich (In re Benson): “Realistically, the process of claim 13 has no practical use other than the more effective operation and utilization of a machine known as a digital computer. It seems beyond question that the machines – the computers – are in the technological field, are a part of one of our best-known technologies, and are in the “useful arts” rather than the “liberal arts.” as are all other types of “business machines,” regardless of the uses to which their users may put them. How can it be said that a process having no practical value other than enhancing the internal operation of those machines is not likewise in the technological or useful arts?”

    Supreme Court (Benson, Flook, Diehr, accord Bilski): a programmed computer must do something practical within the useful arts or be directed to a particular machine. (MOT)

    In other words, simply programming a computer is not sufficient under Supreme Court authority. I don’t understand why Rader does not get it. His brand of thinking was never accepted by the Supreme Court. Even Alappat required the programmed computer to do something “useful, concrete and tangible,” a test now so overruled that overruling does not even begin to sufficiently describe how far into oblivion that test has been cast.

  31. Rader That “new machine” could be claimed in terms of a complex array of hardware circuits, or more efficiently, in terms of the programming that facilitates a unique function.

    “More efficiently”?!?

    Good lxrd.

    I wonder if Rader would have a problem with a claim in the exact form “A computer, wherein said computer does X.” I mean, what is the point of all that excess verbiage about “programmed to” and “executable instructions”. It’s inefficient!

  32. As for the chances of a claim failing 101 being pretty low, I don’t think it’s appropriate to embark on a 101 analysis with such a bias–especially when the elements of the utility requirement, and how they dovetail with 112 and 103, have not yet been sufficiently explored.

    Agreed. The chances of a claim failing 101 should be expected to vary widely depending on the nature of the invention. Generally speaking, methods of information processing should fail at much, much greater rates than, e.g., structurally-characterized new compositions of matter.

    But that’s the sort of common sense statement that you’d have to torture Rader to get him to admit.

  33. “Rader is a smart man, he cannot be presenting these ridiculous views as if they were his actual position.”

    6, State one view, expressed by Rader in this case, that is not already the opinion expressed by the majority of the Supreme Court.

    ::silence::

    I thought so.

  34. Oh that’s my bad, I was told it was Randy and didn’t bother to read the title. No wonder he was touting the 1 billion. Of course that is Michel.

  35. There are sections on YouTube where you can rent/buy movies. Of course you can now get movies and music for free as well as long as you view an ad. You can opt in to view such Ads in your preference settings so the ads always come up. These services/functions did not exist when YouTube first started. And what about Hulu?? They both infringe outright. And we have not even talked about the D.O.E. yet.

  36. Malcolm, you say it will be unenforceable?  Really?  

    The only grounds for IC that I know of  relate to conditions for patentablity.  In this, it tracks the new 282 ground for invalidity.  The fact that actually being an original inventor is NOT a condition for patentability and is not a condition for invalidity cannot be backdoored into an IC defense.  Your statement in this regard is simply unsupported speculation.  

    The remedy for a violation might be a referral to the Attorney General.  But the patent appears to remain valid and enforceable — it protects a patentable invention and was obtain without any violation of the conditions for patentability.

    Also, the more I think of it, the more I think the drafters fully intended to do away with violation of Section 101 a grounds for invalidity as well.  It is not a condition for patentability in part II.  It fell under the catch-all phrase, clause (4), that was deleted.

    The PTO might still fuss with 101, but if they issue the patent, that is it.  The patent is valid.

  37. Many of these steps are likely to require intricate and complex computer programming

    Is Randy suggesting that there is a potential enablement issue?

    Of course not. He’s just wanking.

  38. Commenters’ expressions in their posts give us windows into their thought processes, and enables us to judge, based on that evidence and evidence from other opinions and statements, if the commenter really understands what he is doing, and how he has done it.

    There are not many commentators for whom I would want to look into their thought processes.

    And the judging if they really understand what they are doing is clearly evident from the posts. The higher the amount of handwaiving, conflation, namecalling, profanity and deception, the lower the evidence that they know what they are doing.

  39. Youtube offers you free games/movies/etc that they otherwise charge you for on the condition that you ask them to view an ad?

    Where, precisely, is this on the Youtubicles AI?

    Or did you just have trouble reading the claims?

  40. “Dear Colleagues,

    I am very pleased to inform you that the Leahy-Smith America Invents Act (AIA) was signed into law today by President Obama. Attached is a memo and timeline which provides a brief overview of the provisions in the AIA that impact existing examination practices and procedures.

    Regards,

    You heard it here first folks.

  41. Sauce,

    Except for the last sentence, I agree with your sentiment–however, future panels, litigants, academics, and judges might not be so perspicacious or earnest as yourself, and may easily mis-interpret or mis-construe what was said, take it out of context, or apply it to achieve a political- or career-oriented end, whereupon it takes on a life of its own. It has happened before, and is likely to happen again, yet is in some measure avoidable.

    Rader assumes this risk on behalf of all of us, and he does so apparently without due regard for the consequences.

    It would have been very easy, as you suggest, to have made the linguistic substitution–and potentially very valuable. This opinion is another example of the short-sightedness of the CAFC, and of its failure to successfully manage patent jurisprudence.

    As for the chances of a claim failing 101 being pretty low, I don’t think it’s appropriate to embark on a 101 analysis with such a bias–especially when the elements of the utility requirement, and how they dovetail with 112 and 103, have not yet been sufficiently explored.

  42. Very gracious of you, IBP, and I mean that. I agree with your original posting except for the splitting hairs part, et seq. I think if you substitute “formal claim construction” or “adversarial claim construction process” for most of Rader’s references to “claim construction,” you then end up with a pretty fair idea of what he meant. It’s pretty reasonable in my view to say that you don’t necessarily need Markman briefs, hearings, etc., to resolve a 101 question. Especially, as he points out, since the chances of a claim failing 101 should be pretty low…

  43. I’m not writing under color of law in an official capacity after having considered my writing for months, and after having had staff and aides comment, contribute, and edit.

    And the larger point is, I recognize the error that I made when writing in haste, and I accept your admonition. You are, of course, correct.

    And if I were writing a judicial opinion and I had presented my work to you, and you returned with that comment, I would be sure to thank you for it, discuss it with you, and evaluate and incorporate your findings to produce an improved version of the opinion.

  44. Well, no, but CAFC decisions can be appealed…

    Actually, no they can’t. You can petition for a writ of certiorari.

    This is not splitting hairs. Commenters’ expressions in their posts give us windows into their thought processes, and enables us to judge, based on that evidence and evidence from other opinions and statements, if the commenter really understands what he is doing, and how he has done it. This stuff is important with regard to analyzing the performance of commenters. Nobody in our society should be above having their performance analyzed. While statements such as yours are always considered irrelevant bloviation in a precedential sense, they give us information on HOW a commenter is thinking, and of what underlies the actual conlusion forwarded by the commenter.

    Sorry, but I’m obligated to provide this response, in order to carry out my duty to uphold something about the legal profession.

  45. Contrary to Rader’s belief, “claim construction” DID occur in this case, as it must necessarily occur any time a claim is presented and read.

    The following, which appears at pages 4 and 5 of the opinion, is totally inarticulate:

    “This court has never set forth a bright line rule requiring district courts to construe claims before determining subject matter eligibility. Indeed, because eligibility is a “coarse” gauge of the suitability of broad subject matter categories for patent protection…claim construction may not always be necessary for a § 101 analysis. See, e.g., Bilski v. Kappos, 130 S. Ct. 3218, 3231 (2010) (find-ing subject matter ineligible for patent protection without claim construction). On many occasions, however, a definition of the invention via claim construction can clarify the basic character of the subject matter of the invention. Thus, claim meaning may clarify the actual subject matter at stake in the invention and can enlighten, or even answer, questions about subject matter abstractness. In this case, the subject matter at stake and its eligibility does not require claim construction.”

    As soon as a claim is presented and read, it is “construed”. Rader is defining the term “construction” as an analysis having some sort of arbitrary threshold below which it is no longer considered “construction”, but something else (tellingly, that “something else” has not been given its own name).

    That is because any reading or analysis of a claim constitutes claim “construction”. To “construe” something is to “interpret” it, and when we see the symbols of the alphabetic characters appear, we interpret their meaning according to all sorts of rules of grammar, syntax, phonics, etc..

    When after this process there remains superfluity, or uncertainty due to inconsistency, ambiguity, or any other quality that does not enable the ultimate task of the court to be efficiently or successfully performed, further “interpretation” of the claim, or parts thereof, can or must be made.

    This “interpretation” requires analysis. There are many possible methodologies of analysis from among which to choose, and the selection of methodology is made in relation to the ultimate task required. One of these methodologies is deconstruction/editing/reconstruction, the result of which is an edited version of the original text. This analysis can of course be followed by many other types of analysis, as required.

    Because “construction” or “interpretation” is an attempt to explain the meaning of something, an indicator that “claim construction” has in fact occurred is the existence of any such attempt at explanation.

    In this case, the ultimate task of the court was to determine if the invention as claimed satisfied the eligibility requirements of 101. To this end, there is superfluous language in the claim as written. The court

    At page 9 of the opinion, Rader presents his attempted explanation of the meaning of Claim 1, after having judged that such explanation was sufficient to permit the ultimate task of determining if the invention as claimed satisfied the eligibility requirements of 101: “…the claimed invention is a method [preamble] for monetizing [steps 3, 10 and 11] and distributing [preamble and steps 1-9] copyrighted products [step 1] over the Internet [preamble and step 3].”.

    The very existence of this attempted explanation of the meaning of the claim is incontrovertible evidence that “claim construction” has in fact occurred, and it is easy to understand precisely how that construction, or analysis, was undertaken.

    The possibility that the analysis used, and the resulting explained meaning presented, are insufficient to permit tasks other than a 101 analysis is totally irrelevant with respect to the ultimate task of the court in this case.

    Even though the “claim construction” undertaken was limited to that required to permit 101 analysis, it was nevertheless clearly, unambiguously, and incontrovertibly, “claim construction”, in a logical sense.

    This is not splitting hairs. Judges’ expressions in their opinions give us windows into their thought processes, and enables us to judge, based on that evidence and evidence from other opinions and statements, if the judge really understands what they are doing, and how they have done it. This stuff is important with regard to analyzing the performance of judges. Nobody in our society should be above having their performance analyzed. While statements such as his are often considered mere dicta in a precedential sense, they give us information on HOW a judge is thinking, and of what underlies the actual precedential “decision”.

    So what? you ask. After all, it’s not like you’re going to get a judge removed for inarticulation, or for not “thinking straight”. Well, no, but CAFC decisions can be appealed, and there will be other cases in the future that will require, or will be able to make use of, this opinion–and there it is, in writing. Some future justice, or maybe Timothy Dyk, or more likely one of their clerks, might read that in the future and consider it fact. CAFC judges really do need to be more careful about what they write, and how they write it, lest it reflect poorly on their perceived impartiality or competence. This opinion, in particular, brings into question either Rader’s analytical competence or rigor, or his writing competence or rigor–both areas critical to judicial effectiveness.

    Does anybody feel “reasonably certain” about the status of software/system claims, in view of this opinion? Of course not. If we continue to see this low quality of opinion, maybe there should be more decisions issued without opinion in the future.

  46. I’m going to go ahead and change that last line:

    As fair elections are foundational, my tolerance for voter fraud is much lower than that.

  47. “I believe it is unwise present comments that read as if he is the only one behind the decision, and that border on personal challenges to his mastery of patent law.”

    You’re probably right, he probably led the others into folly. He is chief judge and he has some sway.

    “While I have no insider information suggesting it to be the case, it does seem to me that the court is setting the stage for sending the Supreme Court a message in the hope that it will force the latter’s hand to examine “abstract” with a higher degree of granularity than was the case with Bilski.”

    That’s what I feel like. It’s almost too perfect of a setup between Cybersource and this one.

  48. Mal,

    I do have to give you credit for including that last line:

    The vote was LARGELY along party lines 101-48.

    I never claimed you claimed the billboard disenfranchised anyone. That’s a fun game.

    Translation of translation: I don’t know. Another fun game.

    The billboard is not evidence of the GOP’s intent to suppress votes. I’m using “suppress votes” in what I think is the usual sense in that it is an illegal act attempting to prevent some person or group from voting. I just don’t see the billboard as intent to commit the crime of supressing votes. But what do I know, I’m on a patent blog after all.

    You seem to imply that voter impersonation would have to be “rampant” in order to justify acting, and even then, I only “might” have a point. My tolerance for voter fraud, which I see as foundational, is much lower than that.

  49. Ned says in relation to this decision that “this is really getting political“, yet also spins prior politicalness as “. (I do note that Douglas and Stevens didn’t fully understand the issues and their 101 decisions had to be ‘clarified’ .”

    Clarified? Didn’t fully understand the issues?

    Talk about political-correctness speech. Please stop kicking up the dust of “political” to cover your own “philosophical” madness.

    I am positive that that Douglas and Stevens understood the issues much more than you do Ned. There is a clear difference between not understanding and not agreeing. Clearly, when you prevaricated and said that you did not understand what medical methods were, you were simply evading the cold logic of the point that business methods are merely a category or type of method (which explicitly differentiates from your deceitful “categorically” position that only you have ever argued). I noticed no substantive “understanding” from you on the distinctions from the previous thread, and you still have not explained Bilksi 11 nor 35 USC 273. And now on this thread we have additional congressional record that clearly paints your obsession with beign anti-business method patent as a lawless philosophical jihad.

    You only understand that which you want to understand. It is the only way for you to maintain your false beliefs. You seek to cover your l i e s with more dust and other l i e s.

    Lastly, you have never answered Publius – how are you held accountable for your actions on these blog pages?

  50. Republican versus Democrat is much too easy an answer in my view. Pre-CAFC experience seems to me to be a more important discriminator, and especially when such experience is associated with the CFC.

    Having read Judge Rader’s opinion on behalf of a unanimous panel, I believe it is unwise present comments that read as if he is the only one behind the decision, and that border on personal challenges to his mastery of patent law.

    While I have no insider information suggesting it to be the case, it does seem to me that the court is setting the stage for sending the Supreme Court a message in the hope that it will force the latter’s hand to examine “abstract” with a higher degree of granularity than was the case with Bilski.

    For example, I recall just a couple of weeks ago that a case sent back on remand to reconsider in light of Bilski resulted in the CAFC reversing its earlier position that 101 served as a bar, but now that Bilski is on the “books” the invention now meets the test for 101.

  51. without engaging in personal attacks, casting aspersions, etc. on specific members of the judiciary

    The judiciary and the academia, it appears, are supposed to get free passes on the personal attacks and casting asperions…

    …everyone else?

    F them.

  52. Pro Se, I think some judges do have biases and no matter what the Supreme Court says, they will not give up. Rich was like that. Rader seems to be as well.

    I also note that there seems to be a correlation between being a Republican or Democrat on these issues, with the Democrats generally trying to following precedent and the Republicans trying to invent new tests to expand patent coverage. (I do note that Douglas and Stevens didn’t fully understand the issues and their 101 decisions had to be “clarified.”)

    This is not so much as casting aspersions, but simply recognizing why things happen the way they do.

  53. AI, Rich really did not like the Supreme Court on any number of issues, particularly Douglas, Black and Stevens.  His Republican roots really showed.  He was at war with these folks on any number of levels.
     
    Rader, a Bush I appointee, appears to be following in Rich's footsteps and appears to have the ear of Kennedy, Roberts, Alito and Thomas, but not Scalia.  Some of the other Republican appointees on the Federal Circuit appear to agree with Rader, at least with respect to 101.
     
    This is really getting political.

  54. AI, this case appears a bit different from the other recent cases.  The closing two paragraphs are very important:  controlled access to a website.   This actually does something.
     
    It might be sufficient.
     
     

  55. lol…just two weeks ago he declared August to be the greatest month of his life. But seriously, does anyone know why Hulu, and YouTube, were dismissed from the case? I read the claims and it sure looks like at least youtube in using this process now. Hmmmm…..

  56. “I will agree with you that the rest of the case is the same bizarro horse pucky that we got a lot of from Rich…..”

    Ned:

    WTH are you to disparage Judge Rich? I know you said you used to mow his lawn, or something like that, ( maybe he did not pay you) but how can you know more about how to interpret the statute than the man that wrote it? Makes sense that the Court has deferred to Rich during his life time and today.

    The law is being interpreted the way Rich and his colleagues in congress intended and expressed. And that is the way it should be until the law is changed. And so far it does not look like the American “Inventors” Act, has dramatically change the original congressional intent.

    So you my friend will just have to suk it.

  57. “Whether one agrees or disagrees with the rationale used in a decison, a decision should be addressed on its merits/demerits without engaging in personal attacks, casting aspersions, etc. on specific members of the judiciary.”

    Ummm….You must be new around here.

  58. “Unlike the claims in CyberSource, the claims here require, among other things, controlled interaction with a consumer via an Internet website, something far removed from purely mental steps.”

    Is this enough to distinguish Cybersource?”

    Ned:

    Distinguish is the wrong word. Diminished is more appropriate as this case correctly aligns itself with the precedent of the SCOTUS Diehr that was upheld in Bilski and the CAFC cases that continued the pure blood line so to speak, of those controlling precedents.

    If I have them all correct, we now have Diehr, Bilski, Research Corp, Classen and ULTRAMERCIAL. Which makes Cybersource, sort of a Flook, ( Pun intended)

    It’s a great year for Actual Inventors! :-D

  59. “Lulz, I cannot wait until the USSC comes down from it’s perch on high and tears Rader a new ar sehole on these outrageous beliefs of his.”

    Why would the USSC do that when it was the USSC that set down the precedent in Diehr and upheld in Bilski that Rader is citing and basing the decision on?

    Besides isn’t this the same exact rhetoric you expressed when Bilski was on the way up? And look how that worked out for ya.

  60. Hello Ned:

    First of all thank you for posting this linkt to the case. Well we all know what MM thinks, and no one cares, really. But I would like to know what you think. Especially since this case debunks every theory and destroys every point you put forth in all our business method thread discussions.

    You remember, all those legal opinions I cited from actual case law and controlling precedent which you dismissed by calling me a mo —ron and claiming I did not know what I was talking about?

    Let’s review this case, especially how it relates to the business method threads shall we???

    Point 1: Business Methods Eligible

    Indeed, the Supreme Court recently examined this definition and found that the ordinary, contemporary, common meaning of “method” may include even methods of doing business. See Bilski, 130 S. Ct. at 3228. Accordingly, the Court refused to deem business methods ineligible for patent protection and cautioned against “read[ing] into the patent laws limitations and conditions which the legisla- ture has not expressed.” Id. at 3226 (quoting Diamond v. Diehr, 450 U.S. 175, 182 (1981)).

    Point 2 NO MOT REQUIREMENT

    In an effort to grapple with the non-statutory “ab- stractness” limit, this court at one point set forth a ma- chine-or-transformation test as the exclusive metric for determining the subject matter eligibility of processes. In re Bilski, 545 F.3d 943, 956 (Fed. Cir. 2008), aff’d on other grounds, Bilski, 130 S.Ct. 3218. The Supreme Court rejected this approach in Bilski, noting that the machine- or-transformation test is simply “a useful and important clue, an investigative tool, for determining whether some claimed inventions are processes under § 101” and is not “the sole test for deciding whether an invention is a patent-eligible ‘process.’” 130 S. Ct. at 3227 (emphasisULTRAMERCIAL v. HULU 8 added). While machine-or-transformation logic served well as a tool to evaluate the subject matter of Industrial Age processes, that test has far less application to the inventions of the Information Age.

    DCAT ACKNOWLEDGED -

    ( mnemonic device for Diehr’s Concept and Application Test/Analysis ) Oh, and 6, you can learn from this one too. )

    The application of an abstract idea to a “new and useful end” is the type of invention that the Supreme Court has described as de- serving of patent protection. Gottschalk v. Benson, 409 U.S. 63, 67 (1972). After all, unlike the Copyright Act which divides idea from expression, the Patent Act covers and protects any new and useful technical advance, including applied ideas.

    BTW Ned, the above passage is the answer to your redundant question of how Diehr Cabined Benson?!? AND it gives you the clue to why Bilski did not get his patent as well. Which you claimed to not know. All the answers are right before your eyes.

    And on the latter point regarding why Bilski did not get his patent, in case you still just dont get it… read this from the case.

    “Returning to the subject matter of the ’545 patent, the mere idea that advertising can be used as a form of cur- rency is abstract, just as the vague, unapplied concept of hedging proved patent-ineligible in Bilski.”

    Again Ned, Diehrs Concept and Application being used right before your eyes. That’s what sunk Bilski, not a machine or transformation, not a business method, not even hedging as subject matter. It was the application of the concept!

    ::GLOATS::

  61. No matter whether one agrees or disagrees with the opinion rendered by the panel (i.e., two others besides Judge Rader), it distresses me that some who engage in the practice of law seem to not be the slightest bit reluctant to cast aspersions at specific members of the judiciary.

    Whether one agrees or disagrees with the rationale used in a decison, a decision should be addressed on its merits/demerits without engaging in personal attacks, casting aspersions, etc. on specific members of the judiciary.

  62. “They’re turning the abstract idea analysis into a subjective minefield instead of an objective inquiry as it should be.”

    When has it ever been an objective analysis?

  63. “Is this enough to distinguish Cybersource?”

    Let’s see how Cybersource tried to distinguish from Research Corp. “the method could not, as a practical mater, be performed entirely in a human’s mind.”

    As a practical matter? This is the great distinguishing feature between Cybersource and Research Corp.

    I’ve been saying this for awhile, yet nobody listens. The Federal Circuit is split into two camps — one advocating strong patent rights one advocating weak patent rights.

    Whether your patent is affirmed or invalidating will likely depend upon who is on the panel — not on the facts.

  64. Yummy, yummy case. Mal (nee moonface) should be crying in his green tea right about now.

    Radar even paraphrased one of Mal’s favorite lines — “complex computer programmging.” Although they forgot the brain part in there.

    It appears claims to software are alive and well.

    Tra la la la la ….

  65. Mal,

    At the risk of being invited to go to some other blog, I am inviting you to apply some critical thinking to the post above.

    Think about what the statement says and perhaps more importantly, think about what the statement does not say.

    The “fix” you offer is a difference without a distinction.

    The provision is not granting some new right that did not exist before, some new exception to the exception of coverage of what is patent eligible that did not exist before.

    The provision is making clear that the new law is not affecting the existing rights that the subject material already has.

    The provision specifies tax software as you point out, but that is only because the provision itslef is limiting tax items.

    This means that the per se attribute is not new (or newly bestowed), not for software related to tax and not for software related to anything. There was no creation for tax software being created, the note is an acknowledgment that that attribute was already there. This means that all software already has this attribute and that all software is per se patent eligible.

    What Section 273 meant to business methods in the Bilski case, the understanding captured in the Congressional Record that this provides has the capability of doing for software per se.

    The words are clear: software is to be considered as just another tool and there is no 101 bar to patent eligibility for tools.

    And while I will grant that any claim to software must still pass the 102/103 and 112 tests, 101 is now gone on a per se basis to eliminate software on its own right, just as any other man-made tool passes 101.

  66. Since this is the American “Invent” Act, The concerns of Actual “Inventors” should be discussed first and foremost. And fortunately all our interest and hard fought for rights still seemed to be upheld. Rights and gains such as ….

    1. Business Methods still the law of the land!

    (Especially since being bunkered by Congress not repealing or amending 273 and of course upheld in Bilksi 11, and 14, by the Courts. And especially congress not eliminating business methods as a sub category of processes. )

    2. Processes are still a separate and independent category of the statute.

    3. Diehr still controls and Flook and Benson!

    (Thus when viewing those cases through the lens of Diehr one must view them as applications of processes first and not interpret said cases to be requirements for a processes being tied to machines or transformation.)

    So far so good! Let the good time keep rolling!!!

  67. 6, the only passage in the whole case that merits any real discussion is this:

    “Unlike the claims in CyberSource, the claims here require, among other things, controlled interaction with a consumer via an Internet website, something far removed from purely mental steps.”

    Is this enough to distinguish Cybersource?

    I will agree with you that the rest of the case is the same bizarro horse pucky that we got a lot of from Rich and Rader before. Did you gag when he quoted the portion of the Bilski Kennedy opinion that did not have Scalia’s support without even noting that fact? He quoted it as if it were the opinion of the court. Supreme Court this, Supreme Court that. The part he quoted was not the opinion of the Supreme Court. If the wanted to quote the court, he should have quoted the Breyer/Scalia concurrence which did find support of a majority of the court on the importance of the MOT and stands in stark contrast with Rader’s misrepresentation.

    Just read this with the point of view that what he is quoting is not the opinion of the five members of Supreme Court, but only of Kennedy’s 4-justice “concurrence.”

    “While machine-or-transformation logic served well as a tool to evaluate the subject matter of Industrial Age processes, that test has far less application to the inventions of the Information Age. See id. at 3227-28 (“[I]n deciding whether previously unforeseen inventions qualify as patentable ‘processes,’ it may not make sense to require courts to confine themselves to asking the ques-tions posed by the machine-or-transformation test. Sec-tion 101’s terms suggest that new technologies may call for new inquiries.”). Technology without anchors in physical structures and mechanical steps simply defy easy classification under the machine-or-transformation cate-gories. As the Supreme Court suggests, mechanically applying that physical test “risk[s] obscuring the larger object of securing patents for valuable inventions without transgressing the public domain.” Id. at 3228.”

  68. Such as me? Nah, no other blogs come close.

    And to be sure, I still like ol’ Rader, he’s just a bit loopy now that his own advocated 101 doctrine is coming back to bite the patents he so <3′s in the behind. He knows what was let loose in the Bilski (as well as some other judges, possibly besides Moore) and is trying desperately not to allow it to become accepted law.

    The one thing is though that Rader may very well be smart enough to take these outrageous positions in order to abide by what he feels is mandated by his own court’s decisions in order to set them up for the USSC to smack them down. Rader is a smart man, he cannot be presenting these ridiculous views as if they were his actual position.

    On the other hand, I haven’t read the briefs or the DC opinion, perhaps nobody noted what, specifically, was the offending abstract idea. He didn’t see one, and so he let it go.

  69. “This court does not define the level of programming complexity required before a computer-implemented method can be patent-eligible.”

    Exactly, because it is ineligible no matter the level of complexity.

    “Nor does this court hold that use of an Internet website to practice such a method is either necessary or sufficient in every case to satisfy § 101.”

    Oh oh, my bad, so, it’s just sometimes, when in your (rader’s) subjective opinion it is sufficient that it helps out with this whole pesky eligibility problem?

    Je sus Chr ist, the man bends over backwards to make the judiciary look bad and protect on patents.

    “In other words, a programmed computer contains circuitry unique to that computer.”

    But nevermind what that circuitry is eh Rader?

    “That “new machine” could be claimed in terms of a complex array of hardware circuits, or more effi-ciently, in terms of the programming that facilitates a unique function.”

    In other words, just state the function (and then attach it to “programming”!). Purely functional claiming rises from the grave no matter how many times the judiciary tries to put it down.

    I swear to go d, NWPA may very well be Rader. Even though we know he’s Martin.

    “The digital computer may be considered by some the greatest invention of the twentieth century, and both this court and the Patent Office have long ac-knowledged that “improvements thereof” through inter-changeable software or hardware enhancements deserve patent protection.”

    Don’t try to pin this on the Office. This is your responsibility if you choose to go down the ridiculous path.

    “This court understands that the broadly claimed method in the ’545 patent does not specify a particular mechanism for delivering media content to the consumer (i.e., FTP downloads, email, or real-time streaming).”

    Why not admit that it preempts a specific abstract idea and write the idea out for us Rader? If you’re going to assault the law, do so head on son. No need to beat around the bush.

    “Finally, the ’545 patent does not claim a mathemati-cal algorithm, a series of purely mental steps, or any similarly abstract concept.”

    So you say, but I doubt it would take me more than 5 minutes to recite the offending abstract idea.

    Oh wait, here, I think I have it. “the abstract idea of making a “content customer” request and click on a presented selected ad, the selected ad from a group of ads you’ve been monitoring for over-use where overuse is defined by the developer, before allowing them access to some DRM’ed, and not publicly available for free, content available for sale on your website after having offered to this deal to the “content customer”, where you got the content from a developer while getting money from the dev when they do so and recording the transaction”. In less than 2 minutes!

    That’s pretty close to it. Take that abstract idea, break it up, claim it, and presto, the courts give you some monies!

    “In a recent case, this court discerned that an invention claimed an “unpatentable mental process.””

    I think you mean that in a recent case the court upheld the law, and mangled the law in so doing to try to make it overly narrow.

    These judges just cannot bring themselves to properly apply the law.

    This sht is humiliating to the entire US, our federal judges cannot be bothered to apply the law. Do they even realize the uncertainty they’re creating by not properly applying the law? They’re turning the abstract idea analysis into a subjective minefield instead of an objective inquiry as it should be.

  70. “Many of these steps are likely to require intricate and complex computer programming.”

    OOOOOOOhhhhhhh… WOW! Intricate and complex computer programming (authorship) now justifies the grant of a patent!

    Lulz, I cannot wait until the USSC comes down from it’s perch on high and tears Rader a new ar sehole on these outrageous beliefs of his.

    “In addition, certain of these steps clearly require specific application to the Internet and a cyber-market environ-ment.”

    So, just recite the abstraction of the internet and you’re good? Or perhaps recite a combination of the abstraction of computer authorship and the internet together? Yeah that’ll totally do it!

    Rader, stop embarrassing the judiciary.

  71. Idk about MM, but it appears that the good judge has been following along with the online discussions of claim construction being very helpful in dealing with potentially abstract claims under 101. Indeed, recently a number of commenters have been noting that claim construction is practically a requirement to do the analysis correctly. His little notes about it not being a requirement, but practically resolving the case are in very close alignment to my own and some others comments of late.

  72. Malcolm, “I seem to recall the term “inventor” showing up elsewhere in the statute Ned.”

    It might be, but not as a condition of patentability.

    For example, §132 prohibits the addition of new matter by amendment. So what if one willfully and intentionally violates §132? Is his patent invalid under §132? No! Why? Because §132 is not a condition of patentability.

    I would hardly think that if one willfully violates §132 that the courts would hold the patent unenforceable.

    I will anticipate your comeback: claims that depend upon the new matter may be invalid under §112.

    But unless the claims being asserted depend upon the new matter, the patent itself is not invalid generally just because it includes new matter. Further, unless it is shown that the new matter somehow affects the patentability or the validity of the claims, I do not see how anyone could make a serious case that the patent was unenforceable for willful and intentional violation of §132.

    Thus I think we need to treat the issue of inventorship in the same way as we treat the issue of “new matter” of §132. Inventorship is no longer a condition of patentability. Therefore inventorship no longer affects the validity or the enforceability of the patent.

  73. DIMS The Texas ID law was bipartisan

    Sure it was, DIMS. The Democratic Party in Texas lined up and held hands and sang kumbaya and shafted their base, all in the name of “voter fraud.” Meanwhile, back on Earth:

    link to texasobserver.org

    Democrats, of course, would disagree. For them, this day is a historic loss. Democrats have been fighting voter ID legislation since it was first purposed in 2005, arguing that it would disenfranchise poor and minority voters who traditionally vote Democratic. Republicans argued that voter ID legislation was needed to prevent voter fraud. But Democrats see it as a ploy to give the GOP an edge in elections.

    Although outnumbered in the Legislature, Democrats succeeded in blocking voter ID bills for three straight sessions. However, this session—with Republicans holding a two-thirds majority in the House—they simply didn’t have the numbers to stop the GOP juggernaut from forcing the bill into law.

    The bill signed today enacts a voter ID law more stringent than its counterparts in other states. Unlike Indiana’s law—which the bill was largely based on—Texas’ voter ID law doesn’t recognize student IDs as acceptable forms of voter identification and it gives people with a missing an ID only six days to produce one in order for their vote to count.

    Critics suspect that provisions in the bill may be challenged in federal courts. Due to its history of discriminatory voting practices like poll taxes and literacy tests, Texas is one of nine states that, according to the Voting Rights Act, must first clear any significant election law changes with the U.S. Department of Justice.

    link to trailblazersblog.dallasnews.com

    The House gave final approval to the measure that would require voters to show picture identification at the poll Thursday.

    The vote was largely along party lines 101-48

  74. DIMS The answer to your first question is no, the billboard does not prevent fraud. But it also does not disenfranchise anyone.

    I never claimed the billboard disenfranchised anyone. The billboard is simply evidence of the GOP’s intent to suppress votes that has nothing to do with “fraud.” Again, honest people “get it”. Only GOP shills like you recite these scripts.

    As to the “numerous surveys” saying the groups are less likely, how much less likely? The statement is rather meaningless.

    Translation: “I’m going to put my head in the sand and ignore everything that doesn’t agree with my script.”

    Maybe they figured the elderly don’t commit that many crimes.

    Or maybe it was, in fact, a shameless display of the falsity of their voter fraud motivations. If there was evidence of rampant voter impersonation crimes committed by college students and poor people, you might have a point. But since you don’t have that evidence, all you have left is a readily explained desire to suppress votes, no evidence to suggest otherwise, and plenty of evidence supporting the voter-suppression explanation. Hxll, I haven’t even started presenting all that evidence.

  75. Malcolm, Paulson was a Democrat, albeit, a Bush appointee.  I will agree a good number of Republicans voted for the plan, still the main opposition were House Republicans.  Finally do not so lightly dismiss Obama's role.  He negotiated TARP directly with Bush as the leader of the Democratic Party.  He shares responsibility.

    What was needed for Wall Street was what GM and Chrysler got:  controlled bankruptcy.  Bailing out Wall Street allowed the Treasury Secretary, Paulson (a Democrat), and his buds at Goldman Sachs to keep ownership interests intact at taxpayer expense.  The GM stockholders and note holders, in contrast, took a major haircut, as well they should.  

    The problem of letting Wall Street off
    the bankruptcy hook is that it sends the wrong message.  It tells them they can ignore risk when lending money, because Uncle Sam will bail them out.  That is the wrong message.

  76. I seem to recall the term “inventor” showing up elsewhere in the statute Ned.

    Presumably “inventor” does not now mean “the person who files the application.”

  77. §102 (f) “he did not himself invent the subject matter sought to be patented.”

    This has been deleted from the statute. Congress appears to have fully intended not to make inventorship either a condition for patentability or one of the grounds for invalidity, i.e., it removed the requirement of actual inventorship from the statute for all practical purposes. I do not believe that the courts would seriously consider in end-around Congress’s expressed intent to eliminate the defense by backdooring it through inequitable conduct.

    Whether a named inventor lied or otherwise is irrelevant. The statute provides that only a rival inventor may challenge inventorship through a derivation proceeding, and that only within a very narrow window. Absence a challenge by a rival inventor, an infringement defendant has no basis for alleging that the patent is invalid because the named inventor did not invent the subject matter of the patent. Had Congress intended such a defense to be meritorious, it would not have deleted §102(f) from the statute.

  78. Mal, a truly amazing response! Name calling, non-sequiturs, and almost every sentence is deceitful! I’m impressed.

    The answer to your first question is no, the billboard does not prevent fraud. But it also does not disenfranchise anyone. No more than if I ask you to refrain from voting. Your question is meaningless.

    Why is the claim that there were 221 cases REPORTED dubious? What is the relationship between a) the ratio of REPORTED voter fraud cases to total votes cast and b) the ratio of ACTUAL instances of voter fraud to total votes cast? Does crime not occur if there are no convictions? The statement about the rate of fraud is deceptive: it is actually a statement about the rate of reported cases? Is Kansas representative? Why didn’t you pick New Jersey?

    As to the “numerous surveys” saying the groups are less likely, how much less likely? The statement is rather meaningless. As to “The elderly are more likely to vote Republican;” what is “more likely” referring to? More likely than 18 year old blacks? I’ll give you that. More likely than not to vote Republican? Not likely. Gallup shows the elderly are Democrats by a wide margin. The Texas ID law was bipartisan, so were the Texas Democrats who voted for it trying to disenfranchise Texas Democrats? Maybe they figured the elderly don’t commit that many crimes.

    In case this all gets by you, I’ll write something you can understand: Maltwit!

  79. Thus, tax software per se is recognized as being patent eligible

    Fixed.

    I’m sure your “discovery” will be a great relief to all the owners of software patents that are per se obvious or invalid under 112 or ineligible under 101 for other reasons.

  80. I took the various edits from the bill and came up with the new 282 as follows: (Note, I was wrong about deleted section (4).”

    35 U.S.C. 282 Presumption of validity; defenses.
    (a) In General- A patent shall be presumed valid. Each claim of a patent (whether in independent, dependent, or multiple dependent form) shall be presumed valid independently of the validity of other claims; dependent or multiple dependent claims shall be presumed valid even though dependent upon an invalid claim.

    (b) Defenses- The following shall be defenses in any action involving the validity or infringement of a patent and shall be pleaded:

      (1) Noninfringement, absence of liability for infringement, or unenforceability.

      (2) Invalidity of the patent or any claim in suit on any ground specified in part II of this title as a condition for patentability.

      (3) Invalidity of the patent or any claim in suit for failure to comply with–

      (A) any requirement of section 112, except that the failure to disclose the best mode shall not be a basis on which any claim of a patent may be canceled or held invalid or otherwise unenforceable; or

      (B) any requirement of section 251.

    4) Any other fact or act made a defense by this title.

  81. The fact that actually being an original inventor is NOT a condition for patentability and is not a condition for invalidity cannot be backdoored into an IC defense.

    Stramwan. We’re talking about the fact that someone who is not an inventor lied in a sworn document which said they were an inventor. That’s affirmative egregious misrepresentation.

    Your statement in this regard is simply unsupported speculation.

    Sorry, Ned. Please don’t adopt the tactics of the sockpuppets. It’s a losing tactic.

    Let’s put it this way: simply because you can contort your peculiar brain into a position where it appears to you that a non-inventor can steal someone else’s idea and obtain a patent on it does not mean that the AIA has removed the inventor requirement from our patent laws.

    Sometimes I wonder if you might be snorting cocaine in between comments. Seriously. Maybe take a deep breath before hitting the post key.

  82. TARP was proposed by the Democrat secretary of the treasury

    Paulson was the secretary of the treasury and a Bush appointee.

    approved by a Democrat Congress including then Sen. Obama, but opposed by Republican legislators.

    Opposed by Republican legislators? LOL.

    Alexander (R-TN) Bennett (R-UT) Bond (R-MO) Burr (R-NC) Chambliss (R-GA) Coburn (R-OK) Coleman (R-MN) Collins (R-ME) Corker (R-TN) Cornyn (R-TX) Craig (R-ID) Domenici (R-NM) Ensign (R-NV) Graham (R-SC) Grassley (R-IA) Gregg (R-NH) Hagel (R-NE) Hatch (R-UT) Hutchison (R-TX) Isakson (R-GA) Kyl (R-AZ) Lugar (R-IN) Martinez (R-FL) McCain (R-AZ) McConnell (R-KY) Murkowski (R-AK) Smith (R-OR) Snowe (R-ME) Specter (R-PA) Stevens (R-AK) Sununu (R-NH) Thune (R-SD) Voinovich (R-OH)
    Warner (R-VA)

    These guys voted FOR the program. Maybe they aren’t “real” Republicans? Seriously, Ned. You can do better than this. Please don’t mislead.

    I consider TARP one of President Bush’s greatest mistakes

    The main problems with TARP were (1) that the banksters who clearly screwed up were allowed to retain their jobs and continue paying themselves disgusting salaries, and (2) that Glass-Steagull was not re-enacted as part of the deal.

    Blaming Obama for TARP is like blaming Obama for the deficit (which the nutjobs told us a few months ago is the worst thing ever). You have to be a real mxrxn to do that, or you have to assume you’re talking to a real mxrxn. I’m not one of those mxrxns, Ned. I’m also the furthest thing from an Obama axx-kisser. Please step it up, or shxt up.

  83. Malcolm, you say it will be unenforceable? Really?

    The only grounds for IC that I know of relate to conditions for patentablity. In this, it tracks the new 282 ground for invalidity. The fact that actually being an original inventor is NOT a condition for patentability and is not a condition for invalidity cannot be backdoored into an IC defense. Your statement in this regard is simply unsupported speculation.

    The remedy for a violation might be a referral to the Attorney General. But the patent appears to remain valid and enforceable — it protects a patentable invention and was obtain without any violation of the conditions for patentability.

    Also, the more I think of it, the more I think the drafters fully intended to do away with violation of Section 101 a grounds for invalidity as well. It is not a condition for patentability in part II. It fell under the catch-all phrase, clause (4), that was deleted.

    The PTO might still fuss with 101, but if they issue the patent, that is it. The patent is valid.

  84. Here’s a beaut.

    In the Congressional Record, accoompanying HR 1249:

    The provision is directed to…, which are a subset of business methods, and is not intended to deny patent protection for an invention that consists of… software or other tools used…Thus, a software program that is novel and non-obvious as software would not be affected by this section even though the software is used for a tax purpose.

    Thus, software per se is recognized as being patent eligible.

    Rut row.

  85. Dimtwit the mechanism is prevention of Democratic fraud, not disenfranchisement

    So tell me, Dimtwit, when a GOP shill puts up a billboard asking “Should people who receive entitlements be allowed to vote”, is that also supposed to “prevent Democratic fraud?”

    Also, please choke on this:

    Kris Kobach, the secretary of state of Kansas and longtime conservative activist, has led the voter ID drive in his state. Kobach explained that between 1997 and 2010, Kansas has experienced “221 cases of reported voter fraud.” A dubious claim since not a single criminal conviction has resulted. Over the same period of time, Kansans cast 10 million votes. Even if everyone of the claimed cases of voter fraud were accurate, the rate of fraud would be miniscule.

    Numerous surveys show that blacks, Hispanics, the elderly, and the young are less likely like to possess a form of government-issued identification. Except for the elderly, the other demographics are more likely to vote Democratic. The elderly are more likely to vote Republican. In a shameless display of the falsity of their voter fraud motivations, Republicans in Texas simply exempted the elderly from the new voter ID law.

  86. take some time to present your position carefully instead of just mumbling some inarticulate conclusions

    You are making Mal nervous – don’t you realize that that is Mal’s job?

  87. Ned, I must say it is frustrating to read you complaining about the alleged incoherency of a statute when your own comments are clear as mud.

    In other words, the requirement that a patent be granted to an inventor is illusory.

    There is no requirement that “a patent be granted” to an inventor. Inventors can choose to file for patents or not. It’s up to them.

    I’m guessing you meant to say that the Reform statute allows non-inventors to obtain patents. Guess what? Non-inventors can obtain patents under the current statute. They just can’t enforce them.

    As you note, “The statute still requires a named inventor to allege that he is the original inventor in his oath.” If this “named inventor” is discovered to be lying, the patent will be held unenforceable.

    Please stop flipping out on this hypothetical crxp or, at the very least, take some time to present your position carefully instead of just mumbling some inarticulate conclusions about what the statute does and does not allow. And no, I’m not encouraging you to flood the stage with a massive treatise.

  88. Yeah, it does raise a question as to whether we critics were asleep at the wheel.

    It appears we were, and that what was apparently done here was far beyond our wildest dreams or nightmares, take your pick.

  89. Alun said “Voter ID laws benefit the GOP and are intended to do so.”

    Yup. But the mechanism is prevention of Democratic fraud, not disenfranchisement.

  90. What does this have to do with patent law, anyway?

    Patent law is not discussed here, it is merely disgust here.

  91. There is even a question of Whether 101 survived the cut.

    Rut row

  92. Voter ID laws benefit the GOP and are intended to do so. How about the homeless people all over the streets of DC. I’ll bet some of them have no photo ID. Last time I checked they were entitled to vote, and it’s hard to imagine them voting for the GOP, although stranger things have happened. You asked about people we know, and I know quite a few of them, at least to the extent that we say hello and enquire after eachother’s health as I make them a small donation. What does this have to do with patent law, anyway?

  93. There is a pattern here, and best mode is only one example. While we discuss here the fact that the statute still requires the best mode be disclosed, it eliminates a defense of invalidity that the best mode was not disclosed.

    What is not being discussed here is something even more radical that the statute does which I did not understand nor see being discussed prior to its passage. The statute still requires a named inventor to allege that he is the original inventor in his oath. But the statute provides no defense that the patent was not validly granted to an inventor, let alone that is not first inventor.

    In other words, the requirement that a patent be granted to an inventor is illusory. It exists only in formalities, but not in substance.

    So much for “first inventor” to file. That apparently was a lie.

    Note also, that the following: “(4) Any other fact or act made a defense by this title” was stricken from the statute. Thus the statute is very specific about what grounds there are for invalidity, and they include the conditions for patentability specified in part II (essentially, §102 and §103), the requirements of section 112 other than best mode and the requirements of section 251. There are no other grounds. §102(f) was deleted.

    There is even a question of Whether 101 survived the cut.

  94. TARP.

    TARP was proposed by the Democrat secretary of the treasury, approved by a Democrat Congress including then Sen. Obama, but opposed by Republican legislators.

    I consider TARP one of President Bush's greatest mistakes.  However, Sen. Obama and Pres. Obama supported it as well and must share some of the blame.

  95. I write on this afternoon to Broje to inform her that I have made another invention, I believe of great importance, which she may not have and which I’m keeping as a secrit for now.

  96. Advice you to look under Due Process jurisprudence

    Is this the latest jxnk theory that the Quinnbots are peddling on the block this week?

    Where’s the legal argument and case cites? Please don’t make me use bold, italics and caps on you.

    By the way, have pharma stocks tanked yet as a result of the Patent Reform Act rendering future patents on pharmaceuticals unobtainable? Everyone I talk to you is really, really anxious about that.

  97. Mal, yeah, give it to the bankers like the O-man did.

    Excuse me? Are you referring to the 2009 stimulus? I don’t remember bankers getting much money out of that.

    What are you referring to, Ned?

  98. My assumption is that you are the same person as THRT, in which case I think you’re just trolling. First you complained that the law is “selectively aimed at a particular class of property owner,” which sounds in equal protection jurisprudence, not due process. Patent trolls are not a suspect class (ldo). Even if they were, a law is not necessarily unconstitutional even if it has a disparate impact on a real suspect class.

    Perhaps realizing how untenable lumping “patent trollness” in with race, ethnicity, national origin and sex, now you appear to be arguing that the new joinder provision effects an unconstitutional taking in violation of due process principles. I no longer believe you intend to be taken seriously, but I appreciate the procrastination fodder you’ve provided up until now.

  99. On further thought:

    If one were to bring the issue of a failure to comply with the best mode requirement to the attention of patent owner’s counsel during any of the post-issuance review procedures, would they then have a duty to disclose it to the PTO?

  100. The dis-joinder provision would be subject to Constitutional Challenges on multiple grounds. One of these grounds would be separation of powers. This law enacted in the zeal to placate one group of large politial donation consituents haven chosen to violates the right of other groups and parties and people.
    Courts as an independent and co-equal branch of the government is best suited to determine the optimum approach to joinder based on the equity of the parties and the facts that are unique to each case.

  101. I’m curious about that too. Congress had the opportunity to completely eliminate the best mode requirement, but 35 USC 112, first paragraph –now relabeled as 35 USC 112(a)– still has best mode as one of its requirements for a specification. So in theory, one still cannot obtain a patent in the first place unless the best mode requirement is met. But if the PTO were to grant a patent that fails to comply with the best mode requirement, a defense apparently cannot be brought on that point during infringement litigation, or in an inter partes review, or a post-grant review. Even preissuance submissions by 3rd parties under 35 USC 122(e) will be limited to prior art and can’t bring potential best mode issues to the PTO’s attention.

  102. Your due process issues are laughable. The truth of the matter is that the practice of lumping in unrelated defendants into a single suit actually raises constitutional concerns as to the fair treatment of defendants.

    Dozens of unrelated defendants are routinely dumped in single suits in venues like E.D. Texas. When the case goes to trial, the judge gives both “sides” 25 or so hours to put on their cases, which means that the plaintiff (one party) gets a huge advantage over the multiple co-defendants, which must divide up their time among themselves. Individual non-infringement defenses or damages theories applicable to a single defendant, or even group of defendants, tend to get lost in the shuffle or are jettisoned simply because there isn’t enough time to adequately present them at trial. As one might expect, juries look at the defendant “side” in a multi-defendant case as one infringing or non-infringing monolith.

    Sometimes judges will split up defendant “groups” in multi-defendant cases for trial, but you can’t count on that happening, and even then, the end result is still a procedure that compromises individual defendants’ ability to defend themselves.

    The joinder provision is actually a good thing, and it will improve the image and prestige of the U.S. patent system. The current practice of mega-defendant cases — with defendants often tossed in for no reason other than because they happen to reside in a particular venue — is an international embarrassment and disgrace to our patent system that should be ended.

  103. The joinder provision will have little or no effect in patent-friendly jurisdictions. I’m not going to give out free advice, but trolls will easily overcome this hurdle.

  104. Lots of people vote Democrat simply because they believe that they will personally benefit from doing so (e.g., they are lazy and jealous and their pocketbook will be fattest with redistributist Democrats in charge). That’s a rational choice, albeit a simple-minded and selfish one.

  105. “There are a few issues that folks may want to consider before-hand. …”

    Like a new career. Mooney will have to get a real job.

  106. “All the animals are equal, except some are more equal than others”.

    All kinds of property are equal, except some are more equal than others.

    If a landowner wants to simply own the land, do nothing with it, doesn’t live on it (absentee), and I walk on the land, can I just pay a “reasonable trespass fee” as the only punishment?

    I don’t think so. Said landowner can send the sheriff to grab me by my collar and drag me off. If I resist I will be killed.

    Contrast the intellectual property situation.

    Some of the animals are more equal than others.

    Welcome to the Brave New World.

  107. “the patent reform is powerful reform and will create many new jobs and possibly a new industry if the patent-protected ideas get executed correctly.”

    hope so, the taxpayers are already in the hole on the Solyndra patents, all 11 of them. A patent auctioneer will snag a gig though.

  108. tell me, how many people do you know who cannot produce photo id?

    Too funny.

    Modern life is nearly impossible without a photo ID.

    Honestly I can’t remember the last time I was asked to show mine. It must have been a plane flight. Is it your position that modern life is impossible without flying on a plane?

    I’d bet that of the group of people who don’t have a photo ID and who cannot get one of the free ones, if there are any such people, very few would vote anyway.

    Are you on expert on voting patterns? You talk like one. I take that back. You talk like a GOP shill or someone who has no understanding of the real world outside of his/her comfy little bubble.

    If you want to be consistent you should also assume that the democrats oppose photo ID laws because they want to influence elections by voter fraud.

    [insert sound of cuckoo bird here]

    There is a need to ensure our elections are not decided by fraud.

    Is there a need to ensure that voters aren’t disenfranchised? Because the way that these “anti-fraud laws” are passed and implemented sure smells like voter suppression to me. Again, see what happened in Wisconsin.

    I guess you forgot that ACORN has been convicted of illegally registering people to vote?

    I guess you forgot that ACORN legally registered many, many, many more voters that might otherwise not have registered, which is why they were targeted by the GOP and the GOP’s usual water-carriers. I’m kidding, of course. I know you didn’t forget that. It’s just something you’re not supposed to talk about.

    I don’t know why I waste my time responding to hyper-partisans

    I don’t know why you waste your time defending obvious efforts to disenfranchise voters. If you really believe that these picture ID requirements are about “voter fraud,” you are incredibly naive. Perhaps nobody in your magic bubble has ever told you that before. Nevertheless, it’s true. You really are incredibly naive (or dishonest).

    Why not just come out and say that politics is a knife fight and the GOP is carrying a really nasty knife? It’s the truth. It doesn’t mean that you can’t vote for the GOP and feel good about yourself. Lots of people vote for the GOP simply because they believe that they will personally benefit from doing so (e.g., they are wealthy and their pocketbook will be fattest with the GOP in charge). That’s a rational choice, albeit a simple-minded and selfish one. Who cares if some person in a blog comments section criticizes you about it and points out some ugly truths? I just don’t understand why you’d recite some lame script that doesn’t even come close to a convincing rebuttal.

  109. Bravo, Dennis, regarding the best mode alert. Whatever the merits of this change of law, it’s a vital thing for practitioners on the verge of litigation to understand. Just the latest reminder why this is a must-follow blog for patent lawyers and litigators.

  110. There have been several recent elections decided by a very narrow margin where election fraud could have been a deciding factor. In 2000, Bush won Florida by how many votes? I believe 537. Al Franken was declared winner of his senate race by how many votes? I think it was about 312. The 2004 Washington state gubernatorial race decided by how many votes? 129 I believe. The judge that decided the case found that 1,678 votes had been illegally cast throughout the state. We have had numerous elections in the past decade or so that come down to a very very small percentage of the votes. The margin of victory in these cases was so small that illegally cast ballots could have easily been the deciding factor.

    And I guess you forgot that ACORN has been convicted of illegally registering people to vote? No, there is no voter fraud, right?
    link to dailycaller.com

    Most of the voter ID laws allow poor people to get a free photo ID if they cannot afford one. And tell me, how many people do you know who cannot produce photo id? Modern life is nearly impossible without a photo ID. I’d bet that of the group of people who don’t have a photo ID and who cannot get one of the free ones, if there are any such people, very few would vote anyway. And they could probably vote absentee without showing an ID.

    Your partisanship is preventing you from seeing the truth. There is a need to ensure our elections are not decided by fraud. Ensuring that we have fair elections is one of the most important roles of the government. If elections are affected by fraud, who would believe in the legitimacy of the government?

    Also, if you want to think the worst of republicans based on the most superficial evidence, I think it is fair to do the same of the democrats. If you want to be consistent you should also assume that the democrats oppose photo ID laws because they want to influence elections by voter fraud.

    Honestly, I don’t know why I waste my time responding to hyper-partisans such as yourself…

  111. See if you can find the notion of “or to the effect of” in your tutorial.

    Advice you to look under Due Process jurisprudence, rather than Equal Protection jurisprudence.

  112. Mal, yeah, give it to the bankers like the O-man did.

    Republican policy has always been to cut checks directly to the people, or to cut taxes permanently, putting money directly into people’s hands.

    The O-man would get a lot of Republican support for his new plan if he proposed simply to give every family $5000. Think about that for a moment. Think about it and would it would mean to the average man and to the economy.

    So, why doesn’t he do it?

  113. Yeah sure. If the O-man had simply given every family the 900billion stimulus, that would be three thousand per person, or about 10k per family.

    That would be a substantial contribution to the annual income of millions of families. And they’d probably do insane stuff with the money like spend it on food and clothes, or buy stuff from “small businesses”.

    No doubt we’re better off giving the money to some bankers and investment firms so they can gamble with it wisely. After all, they’ve never let the country down before.

  114. Ned: Not commenting on trolls, but the requirement for ID might have something to do with preventing fraud.

    Oh, right. I seem to have forgotten about all the cases of voter fraud based on false identification that were proven in 2008. Remind me again: how many elections were shown to have been decided wrongly because people voted using assumed identities?

    Seriously, Ned. It’s okay to vote GOP. Lots of people do. Just don’t pretend that these voter ID initiatives aren’t a blatant attempt to keep poor people (who are less likely to have photo IDs and more likely to vote Dem) from voting. Doing these kinds of backflips just makes you look like naive or, worse, like a paid shill. Did you read about the dxxchebag in Wisconsin at the DMV who sent a memo around telling employees not to inform people requesting photo IDs for voting that they were free? How does that square with “fraud prevention”? Rhetorical question.

    Next we are going to hear how the GOP is plotting to deny Democrat voters their money by requiring folks to use bankcards at ATMs

    This analogy is lame on many levels but, most importantly, it fails to account for that fact that(last time I checked, anyway) everyone already needs to use bankcards at ATMs.

  115. the patent reform is powerful reform and will create many new jobs and possibly a new industry if the patent-protected ideas get executed correctly.

  116. Yeah sure. If the O-man had simply given every family the 900billion stimulus, that would be three thousand per person, or about 10k per family.

    That’s Republican policy for you.

  117. Not commenting on trolls, but the requirement for ID might have something to do with preventing fraud.

    Next we are going to hear how the GOP is plotting to deny Democrat voters their money by requiring folks to use bankcards at ATMs.

  118. Chance that “Trolls Have Rights” is sockpuppeting its “theory” in forums discussing GOP efforts to disenfranchise voters by requiring them to present photo ID at the voting booth?

    Zero.

    Of course, that’s because nothing is more important and fundamental to our way of life than bigger and better patent troll lawsuits.

  119. oops, should have used square brackets instead of angled brackets:

    Microsoft and Intel are barred from naming multiple unrelated entities in a patent suit the same as [insert your least favorite troll here].

  120. Microsoft and Intel are barred from naming multiple unrelated entities in a patent suit the same as . The fact that Microsoft and Intel were unlikely to have engaged in that practice is irrelevant.

  121. “The number of people living in poverty in the United States is growing (and will be much, much larger if Republican policies are enacted). ”

    Every new poor person is a potential servant MM. Get your mind right.

  122. How can one legitimately KNOW that a patentee intentionally failed to disclose the best mode until some discovery has been taken? How can one legitimately file a DJ action alleging invalidity on this basis?

    Ned, I seem to be reminding you and others here quite often that many inventors publish information about their inventions in great detail shortly after they file their applications. In many cases, those publications show that the manuscripts were submitted prior to the filing date.

    Does this answer your question?

  123. The biggest take-away for indies and small entities (i.e. poor people)

    Ah yes. Reminds me, what is average yearly income for those owners of small businesses and “small entities” who rely on the patent system?

    Likewise, what is the median net worth of the owners of small businesses and “small entities” who rely on the patent system?

    Just curious. I expect that the organizations who shill, propagandize and lobby for these types of people would be in possession of such data. Would they be willing to share?

    Thanks in advance for the information. The number of people living in poverty in the United States is growing (and will be much, much larger if Republican policies are enacted). We need to keep track of these poor people and document who they are.

  124. How can one legitimately KNOW that a patentee intentionally failed to disclose the best mode until some discovery has been taken? How can one legitimately file a DJ action alleging invalidity on this basis?

  125. Commissioner Stoll just said in a Foley webinar on the AIA that applications will still be examined for best mode because it is a statutory requirement, and Hal Wegner opined that they must have too much time on their hands if there is no penalty for violation. … The biggest take-away for indies and small entities (i.e. poor people) is not to rely on a certain Professor’s advice to simply publish to preserve U.S. patent rights, but to file ASAP.

  126. I’ll echo a possible constitutional due process concern with selectively deciding which type of party can and cannot join defendants.
    Not picking sides, just place this “dis-joinder” thing in a vacuum and look at it.

  127. because the law applies to all patentees.

    It does not apply equally, hence the problem.

    Step it up.

  128. I’ve been looking without success.

    But does anyone know where the judiciary committee came up with the first draft of the AIA? Did they make up the language, did they receive it from some divine inspiration, or were they given some language and asked to come up with something?

    It’s my understanding that Federico, Rich and Harris came up with the initial language of the 1952 Patent Act. Who are the Federico, Rich and Harris for AIA?

  129. THRT Does this amount to an arbitrary and capricious law selectively aimed at a particular class of property owner

    No, because the law applies to all patentees.

    Trolls do have rights. Brains? No so much.

  130. The idea behind the provision is simply to raise the litigation costs

    I thought the impetus was to lower the litigation costs across the board. Does this amount to an arbitrary and capricious law selectively aimed at a particular class of property owner (wherein there is no law against a particular class from being a property owner?)

    I understand the “policy” foundation, I just question whether such a foundation has any implications for constitutional due process rights.

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