Whitserve v. Computer Packages

By Jason Rantanen

Whitserve, LLC v. Computer Packages, Inc. (Fed. Cir. 2012) Download 11-1206-1261
Panel: Prost, Mayer (dissenting), O'Malley (majority author)

Much of this opinion deals with relatively typical appeal issues of infringement, anticipation, and damages.  Two issues are worth highlighting, however.

Prove Every Claim Element: During the district court proceedings, CPi had focused its anticipation case on claim 10 of Patent No. 6,981,007, and the Federal Circuit agreed that claim 10 was indeed anticipated.  However, the CAFC also concluded that CPi had failed to present detailed evidence explaining how each claim element of the remaining claims was discussed in the prior art, and thus affirmed the jury verdict of no anticipation as to those claims.  The moral of this story? In the absence of a stipulation that the validity of all the claims will rise and fall on a representative claim, patent challengers should make sure to present detailed evidence on every element of every claim they are challenging when advancing one claim as a representative claim.  Here, CPi had presented cursory evidence, at best, asking its expert only "are all the elements of those claims disclosed in the Schrader patent?” to which its expert replied “Yes, they are.”

Patentable Subject Matter: Writing in dissent, Judge Mayer would have sua sponte found three of the asserted patents invalid due to lack of patentable subject matter.  "Because the WhitServe patents simply describe a basic and widely-understood concept—that it is useful to provide people with reminders of important due dates and deadlines—and then apply that concept using conventional computer technology and the Internet, they fail to meet section 101’s subject matter eligibility requirements."   Slip Op. at 51.  This issue, in Judge Mayer's view, was appropriate for the court to take up despite not having been specifically raised by the parties on appeal because there were significant changes in the law since the trial court's decision rejecting CPi's section 101 argument, namely, Mayo v. Prometheus, 132 S. Ct. 1289, 1303 (2012). 

Claim 1 of Patent No. 5,895,468, which is representative of these patent claims, is below.

A device for automatically delivering professional services to a client comprising:
a computer;
a database containing a plurality of client reminders, each of the client reminders comprising a date field having a value attributed thereto;
software executing on said computer for automatically querying said database by the values attributed to each client reminder date field to retrieve a client reminder;
software executing on said computer for automatically generating a client response form based on the retrieved client reminder;
a communication link between said computer and the Internet;
software executing on said computer for automatically transmitting the client response form to the client through said communication link; and,
software executing on said computer for automatically receiving a reply to the response form from the client through said communication link.

Edit: The post should have read "present detailed evidence," not "prevent detailed evidence."  Patent challengers certainly don't want to prevent evidence of patent invalidity! – Jason

99 thoughts on “Whitserve v. Computer Packages

  1. 99

    This is just money making and whitserve is the body to be sued .. looking at their court history I would run and hide

  2. 98

    anon is consistent and right?
     
    Hardly.
     
    Take Standford v. Roche.  His thinking might be right in a first-to invent world, but not at all in a first inventor to file world.  The named inventors or those in privity with a named inventors are the owner(s).   In order to change ownership, one must have an assignment that traces to a named inventor or correct inventorship.  The latter can be done by court order or by the PTO under the new statute.
     
    Even Standord v. Roche is not inconsistent.  There the battle was between two entities claiming title from a named inventor on the patent. 
     
    If Standford v. Roach is to be taken further, then only the first inventor has a right to a patent.  But if someone else files on it, the patent is invalid because the named inventor is not the inventor.  But since under the AIA, 102(f) is repealed, that patent is not even invalid anymore.
     
    Anon thinks a third party can challenge via standing.  But that assumes that a true inventor might obtain ownership of the patent if he filed a direct challenge.  But the AIA specifies that such challenges may only be made by rival applicants claiming the same invention in derivation proceedings, and only within one year of claim publication or grant.   What happens is that the pirate's claim is cancelled in favor of the true inventor's claim.  The true inventor does not obtain ownership of the pirate's application or patent.
     
     
     

     

  3. 97

    I want to see the proper foundations for the anti-software patent views as well.

    Crying about evasion while you evade is a fine example of sophistry.

  4. 96

    Contrast this (Prometheus) with your KSR questions.

    In KSR, the law undoubtedly was changed, and the Office refused to entertain re-examination of any references solely in view of the change in law. I understand from a workload perspective why the Office would not want to do this, but the law is not there for the convienence of the administrative body applying the law.

    This so-called ultra vires Court patent law writing even goes to the heart of modern day obviousness analysis: Graham v. Deere. Recall that in that decision the Court used the Jefferson (anti-patent) letter in what is clearly not an interpretation of what Congress wrote (first and foremost,the letter was not written in any representative capacity; so no matter who wrote the letter, it should have zero weight in a Court understanding of the written law, and second, the letter could have no bearing whatsoever to the 103 rewrite of obviousness). Arguably, Graham was a move by the Court to reject some of the law written by Congress in 1952 (the anti-“flash of genius” portion of 103: “Patentability shall not be negatived by the manner in which the invention was made.“) If this piece of Congress’ writing were to be taken at face value, the power of PHOSITA would be lessoned dramatically, and the ability to obtain a patent may have been deemed obscenely easy; as apparently the Court deemed exactly that. The problem is that the Court took it upon itself to rewrite the plain (and unambiguous) words instead of applying what Congress wrote. Any backlash against the new standard of obviousness should have properly come from Congress, not the Court.

    If we are going to start applying the statute as actually written, let’s not forget to apply this portion.

  5. 95

    being consistent is not the same thing as being right;

    True. But it appears that Anon is consistent and is right.

    and, citing yourself as authority is similarly not all that convincing of a mode of argument

    It appears that the authority of the CAFC should be convincing. The first decision after the Supreme Court Bilski reset stated that Alappat (and importantly, Anon’s view of Alappat was controlling law.

    I haven’t seen any of the citations asked for the counter views yet.

  6. 94

    Anon, being consistent is not the same thing as being right; and, citing yourself as authority is similarly not all that convincing of a mode of argument.

  7. 93

    anon, and just how did you come to the conclusion that a claim to an old player piano with new music was not a claim to a player piano?  

    How?

  8. 92

    Good points raised by several posters clearing the dust kicked up.

    Ned, let’s see the proper (legal) support for the positions you are advocating directly and without evasion or sophistry (in other words, don’t ask questions or try to change the subject, just provide the proper legal citations):

    1) The so called configured machine is not a new machine at all (the anti-Alappat position)

    2) must have software that automatically executed (the automatic execution position)

    3) when needed… except on a temporary basis (the non-temporary position)

    If these three positions are your wish list for how the law should be rather than how the law actually is, you need to be more clear in your writing as “the other camp” is talking about how the law really is.

    With eager anticipation to your proper foundations…

  9. 91

    YAH NED HOLDING!,
    Those Dates that are erased represent “Who” it is that is the eraser and the HOLDER! And that will answer everything else. YES NED their being no Dates on “my Documents” Shows no Statutes of Limitations, only Statutes of Slavery, Opression, Fraud, Identity Theft,and Due Process.
    I know a Lawyer removed those Dates. I also know the reason I had to get the Documents myself affter almost 10 months of his ignoring me was because they were removed. And I also know the only way my Documents and Evidence could be kept from me is someone is claiming they are me, or that I am incapacitated without proving it. Because without DUE PROCESS for me they can’t legally do this. And if what I invented was claimed by someone else after I already signed my Application, only to HOLD mine back .. because the lawyer(s) F@@ked up big time, then signing a copy of mine they stole from me while claiming they were doing it for their LOL Benefit while filing an illegal Trust for their Benefit is also illegal and a HOLDING!
    And then the Story repeats itself not once not twice but three times. Do you really think when I get those Dates now probably reading May 15,1996 or March 2, 1997, or how about August 26, 1998, it will not be game over with a nice 18 USC 2071 to start with? And then maybe to end with!

  10. 90

    Ned, and all I am telling you is that I have explained myself and explained Alappat literally dozens of times to you. Rehashing it now will end up the same. It is up to you to search back through the threads. Or better yet, read Alappat without your agenda distorting what you read.

  11. 88

    Trite and downright preposterous attempt at a smokescreen Ned – new song?

    Music is not a part of the useful arts.

    Didn’t your friend A New Light write a long discourse on that topic a long time ago? As I recall, he deconstructed any tie-in to music exceptionally well. As far as what it takes to be a new machine anyway, you keep on ignoring the plain words in Alappat (and I notice that you fail to supply the proper citation as asked of you). Your answer is there in Alappat as I have demonstrated to you many many many times.

    As far as proper treatment under 101, I made a post in the Ethics threads you might want to check out:
    link to patentlyo.com

    And no – it is not proper to settle a 101 question under 102. In that, the Prometheus decision was quite correct.

  12. 87

    Anon, with respect to section 101, does it make a difference whether the machine claimed is new?

    For example, an old player piano with a new song.  Is this a proper claim to a player piano, or is it a claim to a new song; and how does one decide?  Obviously, one way to do it is to analyze a claim under section 102.  But that analysis was proscribed by Prometheus. 

  13. 84

    I am going to reply to your post in the “Apple Wins 1 Bil” thread so it stays on topic and I can access the some of the court docs. You can follow there if you wish to discuss it more.

  14. 83

    How is the concept of talking to another integrated in the process of transmitting voice using analog signals, i.e. raido? Is radio not patentable subjuct matter? These terms just open the door for willy nilly characterization of what’s invented.

  15. 82

    “Hmm, Samsung should appeal that Apple’s pinch&zoom is 101 invalid because pinch&zoom is a well known concept and Apple’s patent merely took that concept to a post-activity solution.”

    If Apple can prove it’s patent is an application of it’s concept and the concept is “integrated” in the process, there is no post solution activity .

    This is why Diehr received his patent, and Steven’s Post Solution Activity dissent failed. See Prometheus referencing Diehr on Integration.

    “”The Court pointed out that the basic mathematical equation, like a law of nature, was not patentable. But it found the overall process patent eligible because of the way the additional steps of the process “integrated” the equation into the process as a whole.” (12 MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC. describing Diehr. Opinion of the Court) Emphasis added.”

  16. 81

    If when I type my name on a document and your name comes up then, I will deal with that after I file 18 usc 2071 in both states.

  17. 80

    Here too a citation would be appropriate. Where do you get this self-created “automatically” and “[non-]temporary”?

    You will recall of course, that these are not new questions as they were in my Three Steps To Software Challenge that you ran away from.

    How about it Ned, ready to get up to speed and even out the unanswered questions?

  18. 79

    Ned, I like what The Wares asks of you.

    Let’s see a legal citation to your proposed thought of “The so called configured machine is not a new machine at all.” Not only do you continue your fallacy of not recognizing the proper holding in Alappat, you make up a legal notion out of whole cloth, unsupported by any case citation.

    Let’s see proper support for your position.

  19. 78

    it is you who avoid my questions

    Likewise, (as I have said this before), do you really want to compare the number of questions left unanswered between you and I?

    Really?

    I can think of at least two major areas that you need to address to come up to speed (Three Steps of Software Patenting and Why Do You Have An Agenda).

    This is not an area you want to step into.

  20. 77

    Ned,

    We’ve been over this dozens of times: see Alappat.

    And yes, the critical portion is a Holding no matter how many times you close your eyes, stick your fingers in your ears and chant otherwise. That portion was critical to defeating the government position and had the governemtn position prevailed the case would have turned out otherwise. That is the definition of a Holding.

  21. 76

    Posner dealt with these or very similar patents in the Motorola suit. He all but laughed at Apple’s damages theories.

    We are going see a major conflict in the two cases on damages when both read the Federal Circuit. This is shaping up also as Supreme Court material.

  22. 72

    Mr. Abstract, perhaps you are late to this conversation that has taken place over the years.  But despite my best efforts, the proponents of the concept that "programmed-computer-are-eligible" simply have never answered the simple question of what the difference is between loading and executing a progrom in a computer and using a computer.   They have also refused to define what a programmed computer actually is.  
     
    Thus when A loads B's computer with a program, who is the infringer?  If the software is located on a server,  where is the programmed computer?  If a company like MS has the software on its servers and people download and execute it, where is the programmed computer.
     
    Now if you say the person who downloadeds it, how is that different at all from using a computer?
     
    Using and making merge.  They are the same act. 
     
    It is my view that a programmed computer must to be patentable as a new machine must have software that automatically executed when needed such that it becomes part of the machine, and transforms the way it operates.  Other kinds of software that is merely loaded and executed does not make the machine new in any sense, except on a temporary basis.

  23. 71

    Hmm, Samsung should appeal that Apple’s pinch&zoom is 101 invalid because pinch&zoom is a well known concept and Apple’s patent merely took that concept to a post-activity solution.

    How is a radio not a post-activity solution to a well-known concept of talking to peopel in a public forum. That concept went much beyond than the time when attorney using manual docketing system (really? this is what prompted the opinion?), the Greeks knew it, the Chinese knew it, the persians knew it. History professors will soon find a new job as expert witnesses. What’s so great about broacasting talking using radio waves?

    How is TV not a post-activity solution applied to theater, a well-known concept?

    At the end of the day, what is abstract and not abstract? Why minimize an effort as post activity solution while that effort defined 20th century.

  24. 70

    Ned,

    You are tired of evasions and sophistries?

    How do you think I feel in my dealings with you?

    You constantly evade my (and others’) points that detract from your position, constantly make spurious legal arguments (The so called configured machine is not a new machine at all. – really?), and refuse to acknowledge the points in law and fact that are put on the board.

    And even if you acknowledge them, that acknowledgemnt is but momentary, as the next day brings back your same claptrap arguments, as if the conversation the day prior never happened.

  25. 69

    What software?

    The answer to that question is easy: software is equivalent to firmware (which is only software in a controlled location) is equivalent to hardware.

    All and each of these are components to a man-created manufacture. Chief Judge Rader in his leading opinion on the subject said no less.

    It is those pretending that software is not patent eligible that are engaging in evasions and sophistry. “The so called configured machine is not a new machine at all.” Give me a legal citation for this edict! Can you even come up with a citation in dicta that supports this?

  26. 67

    You are making no sense whatsoever and crowning yourself on this “job well done,” and you look like a petty fool.

  27. 64

    Aren’t you tired of the red herring of “use” yet Ned?

    Does using a gun make bullets any less patentable?

  28. 63

    But loading software is an essential step in using a computer. Thus, without more, the so-called configured computer claim is simply a step in a process of using a computer. Period.

    No. This is wrong in both overinclusive and underclusive manners.

    You are trying too hard to pick a fight and I refuse to engage such silly arguments. I don’t know if anyone from my “camp” is willing to argue with you, but I suggest you get some basic education in this art field first.

  29. 62

    I did not say that you could not infringe an invalid claim. I said that you cannot AFFIRM A FINDING OF INFRINGEMENT of a plainly invalid patent. That is, if you are an appeals court judge.

  30. 61

    Mr.  Abstract, I am not talking about a particular case.  I am talking about the assertion that one has to configure a computer with software to use it, and that somehow this is the configured computer of an apparatus claim.

    Finally, after may years of pulling teeth, we have at least one attempt by someone in your camp to actually explain what they mean by the term configured?  Let me translate:

    "Configured" means loading software into a computer.  Nothing more.

    But loading software is an essential step in using a computer.   Thus, without more, the so-called configured computer claim is simply a step in a process of using a computer. Period.

    Thus, the person who actually loads the software is the infringer.  

    We see when we enter the tent three computers running.  All are running a "patented program."  A three are owned by Joe Blow.  Is Joe Blow an infringer?

    Let look back in time just a bit.  Our hidden cameras disclose Joe Blow bringing into the tent three computers.  He then leaves.  Then we see, in succession, A, then B, and then C separately entering the tent, loading the software into three different computers, and commanding the execution of the software.  They they leave.

    Under these facts, A, B, and C are infringing because they are the ones loading the software.  Joe Blow is doing nothing not authorized by the law.

    So, what do we have here?   The so called configured machine is not a new machine at all.  It is an old machine that is being used.

    We have, instead, a patent on the software itself. But, after final analysis, that is what was intended, not so?

  31. 60

    suckie “except less words’ might matter as you eliminate elements, limitations or both?

    Gee, suckie, how would a skilled artisan solve the problem of automating the delivery of reminders to a third party using a computer?

    It hugely complicated, isn’t it? I guess that’s why the claim is so “technical” and filled with concepts that you can barely understand.

    LOL.

    Man, this blog has the d—–est trolls.

  32. 59

    Yes, you can infringe an invalid claim. You’re just not liable for such infringement.

    Infringement and validity are separate issues.

  33. 57

    “(so you can stop walking down the garden path of the drafter’s art)”

    No, I can’t, because I’m walking your path today, and I know that is the one you’re on.

    ” I allow for the exceedingly rare instance when a device may also be a patent on the abstraction”

    So then it could be done, theoretically.

    “I cannot give you an example of what this rare case may look like”

    But you can’t do it because you are the sux.

    I have news for you bro, your buddies are doing it all the time, and you’re probably doing it unintentionally as well.

  34. 56

    LOL, If you want to get ot the “gist” of the invention, sometimes you have to take out some of that minor stuff.

    Oh wait, didn’t the CAFC just chide a dissenting view on doing exactly that?

    T O O L

  35. 55

    It’s the same as the claim at issue here except less words

    Don’t you think the “except less words’ might matter as you eliminate elements, limitations or both?

  36. 53

    suckie Judge Mayer’s bueprint fails due to the blueprint of the just reheard Myriad decision.

    A manufacture is not a law of nature

    Uh, I don’t think that’s the argument, suckie.

  37. 52

    suckie a person having ordinary skill in the art knows full well the metes and bounds of the claim.

    “A device for automatically delivering professional services to a client comprising a computerized means for automatically delivering professional services to a client.”

    Is there anyone “skilled in the art” who is confused about the metes and bounds of this claim? It’s the same as the claim at issue here except less words.

  38. 51

    suckie: It’s a meaningless difference. Just ask the courts their views on draftsmen

    Because describing compositions of matter in structural terms is a “draftsman’s trick.”

    Man, this blog has the d—–est trolls.

  39. 50

    You ask “What software?” and then dribble off into an incoherent rambling of use.

    I suggest you read the case, or at least the patent claims and specification before you decide to launch into what can only be described as an incomprehensible message.

  40. 48

    I loved how J. Mayer cited, in his dissent, his own dissent from another case. Somebody might want to explain to J. Mayer that his dissents are most decidedly not the law.

  41. 47

    If Judge Mayer is right, then the Supreme Court is wrong. The constitution is clear as to who has authority to write patent law and it is not the Judiciary.

  42. 46

    I never agree with you.

    I write a lot of software cases.

    Yeah, there’s “a lot of room for improvement” here.

  43. 45

    How deeply depressing. Are there no US attorneys with sufficient wit to rid us of these troublesome patents?

  44. 44

    Mayer is wrong in “This issue, in Judge Mayer’s view, was appropriate for the court to take up despite not having been specifically raised by the parties on appeal because there were significant changes in the law since the trial court’s decision rejecting CPi’s section 101 argument, namely, Mayo v. Prometheus, 132 S. Ct. 1289, 1303 (2012).

    Breyer was explicit in that he was not creating new law. See 132 S. Ct. 1289, 1292: “while eliminating any temptation to depart from case law precedent.

  45. 43

    You cannot very well affirm a finding of infringement of a plainly invalid patent bro.

    You have assumed the point that needs to be proven.

  46. 42

    Obviously, computerizing an abstract concept is patent eligible. Just as AI, anon, Rich or Rader, all who see the word “computer” and then need to seen no more.

    Be careful Ned. You appear to be slipping back into your well worn errors of conflating a category discussion with the proper application of the judicial exceptions at the individual claim level.

    My views on this are well known and are consistently applied (unlike your ultra vires application to highly selected categories – something the Supreme Court has repeatedly warned against).

  47. 40

    Judge Mayer’s bueprint fails due to the blueprint of the just reheard Myriad decision.

    A manufacture is not a law of nature and evinces the hand of man.

    Judge Mayer has not provided a compelling position based on the “new law” of Prometheus, which in its own words states “We are not making new law. We are sticking to our precedent (whether they did so or not is a different topic).”

  48. 38

    Judge Mayer just gave a blueprint to CPi and the district court judge of how to invalidate all of the claims under 101 on remand.

  49. 37

    you go on to believe that there is some “special sauce” that the drafters are putting in the “majority” of cases?

    No. This is not something being “put in” (so you can stop walking down the garden path of the drafter’s art); but rather, I allow for the exceedingly rare instance when a device may also be a patent on the abstraction. I cannot give you an example of what this rare case may look like, but as they say, never say never.

  50. 36

    So you do think that “the rarest of cases” can be invalidated like this? But… you go on to believe that there is some “special sauce” that the drafters are putting in the “majority” of cases? What separates these cases from the “rarest” of cases? Drafting?

  51. 35

    Then test the claim under 112, 102 and 103 to determine whether it should be allowed/invalidated.

  52. 34

    It’s a crucial difference.

    It’s a meaningless difference. Just ask the courts their views on draftsmen.

  53. 33

    How can you address this case without making note of the fact that WhitServer is trying to shake down every maintenance fee service out there. Given that their patent has just been held as valid, law firms that have contracts with CPi had better watch themselves. They may be separately sued.

    Anyone know how the lawsuits against those firms are going?

  54. 32

    certain cases the patent on the device may also be effectively a patent on the abstraction.

    No. You can only reach that position in all except the most rarest of cases if you are misapplying the law against abstraction in violation of the warning given in Prometheus.

  55. 31

    “we aren’t talking about a patent on the equation, we are talking about a patent on the device”

    Mhmmm, this is true, but in certain cases the patent on the device may also be effectively a patent on the abstraction. Which, in many cases, it is.

  56. 30

    Using a computer, or for that matter, an abacus, to conduct the calculus does not justify the patent on the equation, at least according to the SC

    But that’s the point – we aren’t talking about a patent on the equation, we are talking about a patent on the device. Benson is inapposite to this question. (and yes, you are using the term “using” inappropriately too) – in order for the software to execute, it must become configured. Granted, it is not the most elegant phrasing, but a person having ordinary skill in the art knows full well the metes and bounds of the claim.

  57. 29

    Mr. Abstract, you are using the term "abstract" the way Newman used it, not the way the good folks at the SC are using it.

    See, e.g., Benson.

    1 + 1 = 2  is abstract.

    Using a computer, or for that matter, an abacus, to conduct the calculus does not justify the patent on the equation, at least according to the SC.

  58. 26

    How do you computerize an abstract concept and have it remain abstract as that term is understood by the Supreme Court?

    Fixed.

    The answer is : throw in some meaningful structural limitations and don’t just recite “software executing on said computer for storing data about the frequency that grandma contacts non-familial males using a social network” or similarly inane cl-ptr-p.

  59. 25

    How do you computerize an abstract concept and have it remain abstract? Isn’t it particularized once you make an application of it?

  60. 24

    They should have just prosecuted this:

    A device for automatically delivering professional services to a client comprising a computerized means for automatically delivering professional services to a client.

    Same scope. Less words.

  61. 23

    Dennis, the guest post on 10-years of IP reexamination stats did not get posted here — yet.

    Regarding that topic, I think the main problem for patent owners in any reexamination is BRI. There is no sufficient justification for it since it forces clarifying amendments that the courts may recognize as changing claim scope with all the downsides and wealth shifting that causes. The justification offered by the PTO and by the Federal Circuit for this very real damage to POs is insufficient, to say the very least.

    BRI, not prior art, is the reason why infringers game the system. What is going on here is plainly unjust.

  62. 22

    But, in hindsight, I think I might have been wrong on that issue

    Ned? Wrong? I am shocked.

    /off sarcasm

  63. 21

    That’s actually a good point by MM. That’s a method step in an apparatus claim. The claim is invalid as indefinite for mixing statutory classes. See the IPXL v. Amazon Federal Circuit case. ]

    Should have redrafted to something like “computer with software configured to …” I’m sure MM would love that.

  64. 20

    Did you also see in this opinion that Whitmeyer is a principal of the St. Onge firm and that Whitserve is its only client?

    Nobody could have predicted etc.

    The important thing to remember is that without Whitserve’s incredible contributions to the art of reminding people of stuff, we might be calling our clients on the phone to remind them of every deadline. The idea of using a POWERFUL COMPUTER BRAIN and the magical Internets to facilitate such tasks is a truly inspiring one and, in view of the 1953 priority date, well ahead of its time.

    America thanks you, Luke Wassum, for a job well done!!!!!

  65. 19

    There are a good many other interesting issues discussed in this opinion. Both the District Court and the CAFC panel dumped on failures or breaches committed on both sides at trial. Look at the damages fiasco including the totally confused expert opinion testimony on reasonable royalty damages and the closing arguments to the jury asking the jury to award punitive damages (see the footnote admonition to the District Court to control his courtroom in the remand) causing the CAFC to order a new trial on damages, the failure to present either a 103 or a 101 defense as to any of the asserted claims, the District Court’s refusal to explain his denial of post judgement motions including his denial of a permanent injunction, etc. This District Court judge is going to be one angry dude when he sees these litigants back in his court. Settlement time.

    This case provides a road map for the next defendant accused of infringing these patents.

    Did you also see in this opinion that Whitmeyer is a principal of the St. Onge firm and that Whitserve is its only client? Is that true?

  66. 18

    AAA, 

    1. The issue was litigated below.  It was simply not appealed.  Is that a waiver?  If not, the appeals court may decide the issue.
    2. The better approach would be to call for briefing on the issue before deciding it.  However, the parties may still brief the issue in a motion for reconsideration.

    This happened to me once.  Just let me say, I was not and still am not a happy camper.  We lost.  But, in hindsight, I think I might have been wrong on that issue.  Regardless, it was claim construction, a so-called matter of law, that entitled the court to do what it did. 

    Same here.

  67. 17

    You think an appeals court should be able to invalidate a patent on grounds that were never raised, briefed, argued?

    I’d simply inform the plaintiff’s lawyer that he can admit the irrefutable facts or pay for the wasted time.

  68. 16

    Sarah, click on the Patent Ethics tab above. There is an interesting post by the good professor on Google trying to disqualify one of their outside patent attorneys for representing a third party in an ITC action against cell phones that use Android. Google said Android was a Google product. But it turns out, the truth lies elsewhere on that issue.

  69. 15

    It’s the same as yours from the Myriad case.

    Not at all.

    The “device” here is claimed and distinguished from the prior art on the basis of what it does.

    The compositions in Myriad were distinguished tructurally from the nearest identifeid sequences in the prior art.

    It’s a crucial difference.

    Try to keep up, suckie. Even the Federal Circuit is keeping up pretty well, these days.

  70. 14

    You think an appeals court should be able to invalidate a patent on grounds that were never raised, briefed, argued?

  71. 13

    “Glad you recognized it. It’s the same as yours from the Myriad case.”

    LMAO!

    MM continues his record breaking self defeats!

  72. 12

    Do you know that I have a Document as filed claming I gave him my IP. We know that’s a lie.

    And why did that change. Why was he allowed to say oh ok she can have it back, but I can still steal all her mail and IP claiming what? That I still live where I was shot at? Do you have any idea how many times I sent that…

  73. 11

    Obviously, computerizing an abstract concept is patent eligible. Just as AI, anon, Rich or Rader, all who see the word “computer” and then need to seen no more.

  74. 10

    Another @#$% declaring a device to not be an apparatus because it is alleged to be obvious.

    How did the claim get to the Fed Cir.?

    Never mind that. How did the Judge?

  75. 9

    Mr AAA, I think the appellate boys need to decide cases on appeal. The primary role of the trial court is to find facts.

    If the appellate court IDs a dispositive issue that does not require a remand for further fact finding, they should decide the case on that basis.

  76. 8

    Nice strawman, suckie.

    Glad you recognized it. It’s the same as yours from the Myriad case.

  77. 6

    You cannot very well affirm a finding of infringement of a plainly invalid patent bro. I think Mayer knows his job better than you do.

  78. 5

    “Writing in dissent, Judge Mayer would have sua sponte found three of the asserted patents invalid due to lack of patentable subject matter.”

    Pretty sad that an appeals court judge doesn’t understand his job. Maybe it’s time for age/term limits on federal judges and the abolition of “senior service.”

  79. 4

    Dear Judge Mayer – Regarding the conclusion invalid due to lack of patentable subject matter. “Because the WhitServe patents simply describe a basic and widely-understood concept—that it is useful to provide people with reminders of important due dates and deadlines—and then apply that concept using conventional computer technology and the Internet, they fail to meet section 101’s subject matter eligibility requirements.”

    Nope. Just rely on 102/103 instead of further confusing the 101 standards.

  80. 3

    Prometheus was a method case

    Nice strawman, suckie.

    On the other hand, does this sound like a limitation in a composition claim?

    oftware executing on said computer

    LOL.

    That’s one of the shxxtiest claims ever drafted. How this pile of cxxxx ever made it to the Federal Circuit is beyond me.

  81. 2

    but but but Prometheus was a method case and law of nature case and this was a device and a manufacture is not a law of nature.

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