Almost There: Senate Confirms Nomination of Richard Taranto

The Senate has confirmed the nomination of Richard Taranto for a position on the Court of Appeals for the Federal Circuit with a unanimous 91-0 vote. I expect that he will be join the bench within the next week or so.

Although largely non-controversial, the confirmation process for of Ray Chen and Todd Hughes will likely take the bulk of 2013.

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

298 thoughts on “Almost There: Senate Confirms Nomination of Richard Taranto

  1. Night, I have thought about it more and now agree that Benson was flawed declaring mathematics off limits as patentable subject matter. Math is not like a Law of Nature. It is the product of man, of his brain.

    Thus whether one wholly preempts a mathematical formula, or for that matter, anything else that is not prosribed as being the same thing as a Law of Nature, is irrelevant. The critical requirement remains that the math be applied to some practical application, which could be a programmed computer…

    Wholly preempt is a vice only when the essence of the claim is a Law of Nature. Period.

    That we extend this ban on preemption to mathematics is indeed a problem.

    I still think the MOT is the best test for whether there is a patentable application, and integration of a principle into the MOT subject matter assures that the subject matter is not claimed in the abstract.

  2. NWPA — I’m noticing that you seem to against ANYBODY who is put forward for the bench. I think you are actually a bio-terrorist engaged in a devious plot to clone Judge Moore. ¿Es verdad?

  3. anon, I was there when the copyright laws were extended to include computer programs. I had thorough discussions with those behind the extension. Copyright extends to the human readable expression, and does not extend to any functional aspects.

    See, e.g., Sectoin 102, which reads, in material part,

    "(a) Copyright protection subsists, in accordance with this title, in original
    works of authorship…

    (b) In no case does copyright protection for an original work of authorship
    extend to any idea, procedure, process, system, method of operation, concept,
    principle, or discovery, regardless of the form in which it is described, explained,
    illustrated, or embodied in such work."

    Section "b" makes it clear the functioning of the software is not the subect of copyright. It is the expression that is protected.

    Because the functional aspects of a computer program are excluded from protection, the only thing left are the non functional, expressive aspects. While these litterally comprise computer programs, their protection is the equivalent of protecting the expression of a novel. It is the words that are protected.

    BTW. check the defining of computer program:

    A “computer program” is a set of statements or instructions to be used directly
    or indirectly in a computer in order to bring about a certain result.5

    Does that definition comport with your definition of software?

  4. LOL – another person that must
    a) speak English as a second language
    b) need to see a doctor
    c) thinks Malcolm is a doof

    Gee Malcolm, you hit on one of three (c) – that’s excellent in major league baseball.

  5. “Additionally, Chen has an undergraduate degree in EE and never was a practicing engineer. That is not science qualified.”

    Keep moving those goal posts. So now it’s 10+ years of private practice experience, and practice as an engineer. How many years? Pick a high number so you won’t have to move this new goal post again later on.

  6. treat the law and facts with proper respect

    Just like you treat the Supreme Court’s holding in Prometheus, right? LOL.

  7. Because a deep scientific background is critical if you want to truly understand the difference between using a computer to access a database and display information about available space in a bookstore versus using a computer to access a database and display data about available space in a grocery store.

    Reply Mar 12, 2013 at 11:12 AM
    Alun Palmer said in reply to MM…

    No,

    Thanks for the admission. In fact, zero scientific expertise is needed to assess such claims and most computer-implemented methods differ from each other by precisely those sorts of abstract differences (i.e., the name given to the data being accessed, stored or transmitted).

    t helps if you understand how software is actually replacing hardware. Unlike you, for example

    Oh, please, O Great Expert Alun Palmer, tell us all how software “actually” replaces hardware and why that’s so terribly important. We all want to “truly” share in your “true” understanding of this extremely difficult concept.

    And after you do that, please describe for us when and why a computer-implemented method that recites the receipt, storage and/or transmission of “new” information content (i.e., content previously not recited verbatim in the context of a computer-implemented method or computer-readable medium) is deemed obvious in view of an old method that recites a different type of information but is otherwise identical. You’re an expert so that answer should be easy. I would just like to see an expert like you articulate the answer to that question. Undoubtedly you understand that it is an exceedingly important question in light of current trends. Give some concrete examples and counter-examples when you reply so we know that you “truly” understand what you are talking about. Thanks.

  8. I confuse nothing.

    Answer my question at 10:09 AM:

    So it is clear – you believe software is not abstract, right?

  9. So it is clear – you believe software is not abstract, right?

    After all you cannot get a copyright on something abstract (that whole fixed tangible media thing and all).

  10. Anon, to the extent that software is expression, the act of fixation in a human readable copy makes it copyrightable. This is commonly known as a source code listing and is certainly copyrightable. But is this human readable source code what you are talking about in terms of a machine, or a machine component?

  11. You dodged the question, Ned.

    Yes or no, are you now challenging the ability to copyright software?

    Why is it so difficult to obtain the simplest of answers from you?

  12. “highly qualified” ?

    How’s that? Never practiced patent law but for two years? His 35 hour a week government job in the solicitor’s office? Are you joking? The work they do does not qualify them to sit on the fed. cir.

    Additionally, Chen has an undergraduate degree in EE and never was a practicing engineer. That is not science qualified.

    Additionally, Chen has distinguished himself as being anti patent.

    Just unbelievable to me that you or anyone else would think that a person that has spent their life as a government attorney should be appointed to the federal circuit.

  13. You can’t be serious. Are you actually suggesting that an attorney from private industry would be better on the bench than highly-qualified Ray Chen? Give me a break. Our courts are way too argumentative as it is… the last thing we need is another ex-corporate mega-mouth, who only wants to shoot off his (or her) mouth, rather than listen carefully before making a well-reasoned decision.

  14. NWPA: “It is bizarre that MM keeps quoting from Bilski as if it was a win for him and yet when it came out he hide from all of us for months in shame.”

    Yes this is the particular brand of insanity of MM. He has been effectively reduced to delusional claiming of victory when he has lost the case. He did the same for Prometheus, the USPTO Office Guidance, and more.

    And he will continue to do so, as more defeats come his way and the anti’s find themselves losing their so called war for destroying the patent system.

  15. Ned,

    Can you get a copyright on a non-physical “piece of software?”

    Are you now challenging the ability to copyright software?

    Once you address that, we can (once again) visit the fact that a constructive reduction to practice of ANYTHING is allowed in patent law – there does not have to be ANY actual physical reduction to practice. Of rivets, or of those things held together by rivets. Of tires, or of speeding vehicles equipped with those tires. Of bullets, or of guns loaded, trigger cocked and released into the carcass of your “legal” positions on this subject.

    Time for you to face reality and stop the nonsense.

    Please.

  16. Legally accepted? You mean Rich’s view from State Street Bank?

    No Ned. I mean like the HOLDING in Alappat.

    Do you want another merry-go-round ride?

  17. Ned: “Rivets, etc., are all physical articles of manufacture.”

    101 Integration Expert: As I predicted you would say.

    Ned: What is software?

    101 Integration Expert: An integrated technological process.

    Ned: “Silence”

    101 Integration Expert: Any other “anti’s” wanna try?

  18. I think what Ned usually says next is that rivets and bullets are articles of manufacture. Although I dont know what he hopes to gain by that response, or the point he is trying to make. :-/

  19. I agree with you whole heartily. I tacked my message onto the wrong message.

    Software is clearly a component of the machine in the real world.

    Let’s not forget the anti’s other argument that software has no structure so that two machines with same structure perform different functions–magic.

    Don’t forget that Stevens believed that thought was part of consciousness and disembodied from the brain. Shameful model in today’s context.

  20. What is a tire on its own? A piece of rubber, cloth and metal with a pretty pattern, that can only achieve its actual purpose, its actual usefulness, when joined with the machine it ends up in.

    What is a bullet on its own? A piece of metal, possibly other materials, and some chemicals, completely inert and useless sitting on the shelf, that can only achieve its actual purpose, its actual usefulness, when joined with the machine it ends up in.

    What is a rivet on its own? An even simpler piece of metal, that is a pretty configuration that does nothing at all sitting on the shelf, that can only achieve its actual purpose, its actual usefulness, when joined with the machine it ends up in.

    The “only in circuits or mahines.” rebuttal is completely lacking in intellectual honesty. This point has been made repeatedly, and yet has been repeatedly ignored.

    The merry-go-round continues unabated.

  21. We can just imagine that it would take years for the new “judges” to figure that out. But, magically, if you can drink a bourbon with the best of them that science just magically becomes understandable.

  22. I have no idea what “disembodied software” is

    It’s very similar to the disembodied cure for cancer. We know what it does. We just don’t know what it looks like. But it’s the thought that counts, right?

  23. Legally accepted is NOT a twist Ned – All I am doing is bringing you back from your little frolic into Ned-IMHO law land, back to good old US of A patent jurisprudence.

    And by the way – that is EXACTLY the same as the court’s holding in Alappat. We have been on this merry-go-round many times Ned, and every time you lose. Alappat has more than one holding, and the fact that the government pursued the argument means that the court’s HOLDING is in place.

    Swallow.

  24. Accepted?

    Why this twist?

    Why not the courts holding.

    Anon, why was the equivalent actually approved?  What was the name of the graphics unit component?

    Sent from iPhone

  25. Better question: what is the legally accepted equivalent new machine in Alappat?

    Even better question: why?

  26. Ned,

    In the context of Alappat, there was no general-purpose machine after a change of configuring with any software.

    Your inability to understand (recognize? admit?) what is plain from the case does not in fact change what the case is about.

    All your ignorance does is keep you ignorant.

    Sorry that this is difficult for you to swallow, but it is what it is.

  27. Anon, in the context of the claims in Alappat, the new machine was the rasterizer, the  Graphics units, and not the general-purpose computer running software

    Sent from iPhone

  28. But it’s hard to leverage that product into a neat box within the patent laws as we have them.

    Why would that be hard? Unless of course, you are purposefully trying to make it hard to fit some other agenda…

  29. In context that process was patentable even though the point of novelty appeared to be somewhat related to the software.

    ! Canard Alert !

    Point of Novelty – uuggghhhhh.

    All agreed that a general purpose digital computer programmed to perform the recited mathematics was an equivalent

    to continue the thought: …which made the machine a new machine.

    That’s rather important.

    With that as a baseline, we can then explore the patentability of components of a machine in their own right (think rivets, tires and bullets).

  30. Keep flailing AAA JJ – your enthusiasm is noted by other things besides syntax. For example, I notice your selectiveness in addressing points raised both by me and by NWPA – most immediately, you do not address at all the fact that your admonitions ALWAYS call for appeal EVERYTHING (you don’t need all caps – that’s my bonus translation), while I point out (and have pointed out) that EVERYTHING is a vast overestatement and quite ignores the fact that certain situations will call for different tactics.

    Oops.

    Go AEWaGT team !

  31. AAA, I agree that the Supreme Court has been less than clear. But what has long been clear is that abstract ideas are not patentable subject matter. One gets patents for practical applications, and that means things that can be made, used and sold. Of course we know that software, packaged and placed on transportable computer readable media, seems to fit that bill. But it's hard to leverage that product into a neat box within the patent laws as we have them.

  32. I think Benson was wrongly decided, so all I can tell you is that we have to live with the consequences of SCOTUS not knowing what the heck they are talking about.

    On another site I recall seeing a cite to a case (I think Microsoft) for the “holding” that “disembodied software” is an abstract idea and not patent eligible. I have no idea what “disembodied software” is and have never seen a claim actually drawn to “disembodied software.” Most of the court decisions I’ve read invalidating claims as patent ineligible subject matter provide conclusory, unpersuasive “reasoning” as to why the claims fall into one of the judicially created exceptions. That’s particularly true in the cases decided by SCOTUS, who are without a doubt in my mind are simply making it up as they go along (i.e. “We can’t define abstract but we know it when we see it.”).

  33. AAA JJ, first off, how can we discuss whether or not software is patentable subject matter if we do not even know what we are talking about? How can I say with a straight face that I do not believe that software is patentable subject matter if we are talking about the kind of software we found in Diehr? That software implemented an Arrhenius equation and modified a molding process. In context that process was patentable even though the point of novelty appeared to be somewhat related to the software. In Alappat, the claimed subject matter was a rasterizer, a physical machine; but because it was claimed in a means plus function format, means plus function equivalents had to be resolved for patentability purposes. All agreed that a general purpose digital computer programmed to perform the recited mathematics was an equivalent. But the machine was claimed in context of a graphics processing unit, and not out of context. In context I agree that the graphics processing unit utilizing a programmed computer to implement the specified mathematics was patentable subject matter.

    Context.

    But I think that software as patentable subject matter by people want to go farther claim the mathematics out of context. As such, they run square into Benson. It is not my opinion that counts, it is Supreme Court opinion that counts here. Out of context software is not patentable subject matter, to the extent that software is like software in Benson. (Forget claim 13.)

    So I have to know what you mean by software before I can give you an opinion.

  34. I’ve never posted my advice to appeal everything in either bold, italics, all caps, or even with any exclamation point(s), so I’m not sure how you’re determining my level of “enthusiasm” when I post that advice.

    Not only does your reading comprehension s#ck, it appears that your vision does too. Maybe you wanna get that checked.

  35. You’re still flailing.

    You rather miss the fact that it is your ‘enthusiasm’ with which you post “Appeal EVERYTHING” – even when that is hardly the correct answer, depending on the individual circumstnaces, and for which, other routes simply are better alternatives – that makes you so wiper.

    The fact that you do not seem to grasp this makes you a much better candidate for comparison to 6.

    But thanks for playing.

    Go Appeal-Everything-Whaling-and-Gnashing-Teeth team !

  36. As I’ve noted time and time again, 75% of the applications in which a pre-appeal or appeal brief are filed are re-opened, and as appeals are still treated as amendments, and not like continuations (as RCE’s are now treated), you get an OA in response to your pre-appeal and/or brief much faster than you get a response to your RCE. So my position is actually a constructive solution to the growing RCE backlog problem, hardly a “sky is falling” lament.

    Your reading comprehension is below that of even 6.

  37. I was explaining how we are getting 6 years of PTA. Exelixis I has nothing to do with why we’re getting that PTA.

    Keep flailing.

  38. Good question.

    I’ve asked him similar questions in the past, asking him to provide legal background to his additions to requirements of patent law when it comes to software.

    Like my questions, I predict that you will not receive any viable answers.

  39. And you may want to re-read your post of 2:14 PM – exactly why did you have to add “We did not receive a FAOM (first action on the merits) until more than 3 years after filing.” – just to be pointless? (I gave you some credit beyond that, but hey, if you want to claim being pointless, more power to you.

  40. every application I know I’m going to win

    LOL – You’re the one flailing – this brand new little addition to your Sky Is Falling mantra notwithstanding.

    How does it feel to look in the mirror and see all that wiper?

  41. “If you do not agree with this, then what do you mean by software?”

    Ned, I can only answer your question with a question: if you don’t think software is patentable, under which judicially created exception to patent eligible subject matter do you think it falls under, and why?

    Thanks.

  42. “Are you not concerned that Mr. Chen believes ‘process’ is subjugated by the other sections in 101?

    Or that he believes the useful arts should be limited to the type of technology and transformations known in the 1800’s ?”

    I’m not concerned. And you know Mr. Chen “believes” these things how?

    “Because I tell you, if he get’s on the CAFC with that type of thinking and your clients software invention ( or just about any process) is appealed before his panel, you can kiss that patent goodbye.”

    Really? So the whole way that appellate panels operate is going to be changed when Mr. Chen gets there to allow him to have the only vote? The other two judges on the panel are going to do what, get him a cup of coffee or pick up his dry cleaning?

    So my client’s patent on a method of casting an alloy into a component of a machine is going bye-bye if Mr. Chen is confirmed? Wow, maybe I should be concerned.

  43. My approach to appeal every application I know I’m going to win is a sky is falling mindset?

    You’re flailing.

  44. On the other hand, being known by the company you keep is applicable as a filter on patent law blogs.

    Nice cites by the way.

  45. Are you not concerned that Mr. Chen believes “process” is subjugated by the other sections in 101?

    Or that he believes the useful arts should be limited to the type of technology and transformations known in the 1800’s ?

    Because I tell you, if he get’s on the CAFC with that type of thinking and your clients software invention ( or just about any process) is appealed before his panel, you can kiss that patent goodbye.

    However, the doctrine of noscitur a sociis is inapplicable here, for §100(b) al- ready explicitly defines “process,” see Burgess v. United States, 553 U. S. 124, 130, and nothing about the section’s inclusion of those other categories suggests that a “process” must be tied to one of them.
    Cite as: 561 U. S. ____ (2010) 3
    Syllabus
    Finally, the Federal Circuit incorrectly concluded that this Court has endorsed the machine-or-transformation test as the exclusive test. Recent authorities show that the test was never intended to be ex- haustive or exclusive.

  46. You see my tiny brained friends these judges are the ones that empower the low life.

    It more of a symbiotic relationship.

    Actually, (and thankfully) we recently had a post pointing out that thre is a lower correlation between agenda driven claptrap and use by the courts. Look at the Chen article, and wonder why patent academia has such a low citation rate. It’s unadulterated agenda pushing. The patent world is rife with those who are OK with achieving ends at WHATEVER means. And yes, there is a very real ethical disconnect with such.

    ps: my wiper business is not aimed as a slap at you per se. I ‘get’ that this is a hot point for you. I was using that as a comparison to others who were making light of your hot point, while having equally ‘sky is falling’ mindsets about their own hot points (hint: appeal everything).

  47. What is with this wiper business? You mean I am the only one to have the courage to see just how bad this is?

    I listed a few of the outrages above. The worst outrage is that these judges feed into Ned’s and MM’s. If we had real judges, they would be a stop to this Benson nonsense.

    And, Ned: really?!!! About you Benson quote. What dirty filthy nonsense. Not worth of being on toilet paper. If I claim a nail, would the SCOTUS come back and say that I have claimed nails for all uses and so over sweeping that one cannot claim a nail. A nail can be used for joining wood, making houses, building toys. One cannot claim a nail.

    You see my tiny brained friends these judges are the ones that empower the low life.

  48. Danny,

    I am not ignoring your advice. Really. It’s just that my auto-correct function on my smart-phone rewrites the ‘anthropomorphication’ word as I use it, and I don’t feel like correcting it.

    Let’s just recognize the word I am using for the meaning we both know is intended.

    Thanks.

  49. Sorry dude. The 12 year goalpost was like 12 goalposts ago. You currently have to have at least 89 years of IP private practice experience for your opinions to matter in any way according to NWPA rules version 3.2.5

  50. but the choice of what goes into a particular program memory localtion is a design choice

    Ned, at this level of abstraction, ALL invention elements are design choices.

    No one ever attempts to patent executable code

    You clearly do not understand this art field with this type of reasoning Ned.

    obvious given a desired functonality

    You do realize that you just wrote gobbledygook, right? You are saying it is obvious in view of itself.

    Function of a Machine – in the weeds deeply, you are. This explains why you refuse to acknowledge the loss of your mental steps paradigm and your tightly closed eyes to the fallacy of anthropomorphication.

    By the way, in re Tarczy Hornoch explained that it was NOT Supreme Court HOLDINGS that provided the foundation to the Function of the Machine doctrine.

    A machine configured to perform a new operation inherently capable of the old machine is not a new machine

    Another fallacy you cling to and something that is just not law. See the actual controlling law in Alappat. Configured to is structure. Even Malcolm has volunteered this admission.

    that does not produce anything physically new

    You confusion and conflation continues. I have corrected you many many many times now that the result of a perfectly eligible process need not be something new. Even for process patents, you can patent a new process to achieve an old result, for example, the express Diehr method claims.

    I believe the root of your fallacies still traces to an improper understanding of the process category and the taint of the no-process-allowed-English influence. You have allowed that to prevent yourself from entering the modern era and understanding how patent law works today.

  51. “It is bizarre that MM keeps quoting from Bilski as if it was a win for him and yet when it came out he hid from all of us for months in shame.”

    Yes, I was really worried too because the assault weapons ban had been repealed.

  52. Is that your new (third) rebirth of MoT? – equating it to the Diehr integration test?

    If you only used the proper terminology (as in, drop the MoT), you and 101 IE would be fast friends.

  53. No. Your view is not correct. My synopsis, my characterization is correct.

    Again, I am sorry that you choke on this (but here is a helpful hint: you have to let go of your agenda – just like anthropomorphication).

    Thanks.

  54. Ned,

    Your post at 6:10 is non-responsive to my post highlighting your fallacies.

    Whether or not your “distinctions” are reached is immaterial until you deal with the law as it is. Quite in fact, your attempts at “distinctinction” is mere dust-kicking.

    Again, I am sure that you are very much aware of this, and yet you venture forth with the asinine “robot-chef-and-cookbook” claptrap.

    The ball remains in your court to prove your intellectual honesty.

  55. Anon, an instruction such as "add" at a particular location in memory may be functional with respect to the machine, but the choice of what goes into a particular program memory localtion is a design choice. No one ever attempts to patent executable code. What they attempt to patent is the new computer functionality with the new code. The particular way the computer is programmed to achieve that functionality is almost completely irrelevant and, might I add, obvious given a desired functonality.

    But, from long, long, ago the Supreme Court has held, and repeatedly so, that the function of a machine cannot be claimed as a process. You either have a new machine or a new process. The particular operation of a machine is not a process. A machine configured to perform a new operation inherently capable of the old machine is not a new machine. A series of physical acts that produces something physically new probably is patentable as a process. A series of machine operations that does not produce anything physically new is not a patentable process.

  56. anon, your version misplaces the emphasis from Bilski to suggest that the MOT is not the single best test, and, in characterization of Mayo, implies that a claim which passed the MOT could never be eligible. You ingnore that when the LON is integrated into the old steps to produce a new transformation or state, or a new particular machine, as in Diehr, then the MOT is sufficient.

  57. if a book describing

    (yawn).

    Ned – another thing you have NEVER commented on is the exceptions to the printed matter doctrine.

    Why is that?

    Wait – I already know.

    And yes – that is your intellectual honesty at stake there. And note that even Malcolm has recognized that he understands what those exceptions mean and are controlling legal authority.

    You need to come up to speed on that topic first.

    Thanks.

  58. does software included a flowchart? At a high level,…

    Thus another fallacy is exposed. At any “high enough level” ANYTHING is an abstraction – note that ACTUAL PHYSICAL REDUCTION TO PRACTICE is NOT required to obtain a patent.

    Worth repeating: note that ACTUAL PHYSICAL REDUCTION TO PRACTICE is NOT required to obtain a patent.

    I can build an entire [fill-in-the-blank-with-WHATEVER-will-not-be-questioned-as-patent-eligible] in my mind, reduce that [fitbwWwnbqape] to a CONSTRUCTIVE reduction, and no problems, right?

    ANTHROPOMORPHICATION Ned – you keep on avoiding what this does to your deisred mental steps dogma.

    Why is that?

    We both know why. And we both know that that means this thread will soon be derailed by you.

  59. Except that it’s not really a word at all. The one you’re looking for is “anthropomorphization.”

    I don’t expect any thanks, but you’re welcome.

  60. Nice attempt at spin there Ned.

    My version is shorter, more compact and more correct.

    Sorry that you have such a hard time swallowing it.

  61. I see, anon.

    Can you tell me if a book describing a business method is just a much a machine component of a computer as a rivet is to the steel framework of a bridge?

    Talk of intellectual honesty. If one never defines what he or she is talking about, as in the case of my repeated request of you to tell me what software is, just how can we have a conversation.

    Any computer can read the pages of the book, do an OCR and with some intelligent compiler, perhaps with the aid of a human, produce a set of executable code to that can carry out the business method. But is a book a machine component?

    I could program a computer to read a cookbook, generate a sequence of computer operations in an automatic kitchen that will create the finished food product according to the recipe. But is the cookbook a component of a machine.

    Define what it is that you are talking about in some coherent and intellectually honest manner.

    Program memory and the hardware that fetches and excutes instrustions are machine components. Whether a particular memory location has an add command or a substract command is, I think, irrelevant. You begin to define differences not by physical difffernces, but by informantional differences.

  62. …or mayber we can pretend that he is a new poster recovering from cancer, or a son grieving for his recently departed father and let you let loose with some of your tasteless goldmine humor.

    Failing that, there is alwasy the hoot of s_exual improprieties with dead presidents…

  63. I was going to let you do that when you recognize his response on this thread includes citing Quinn.

    And after you invited him to your club and all. Geesh.

  64. And that’s the really funny thing Alun (it’s like a comedy gold mine).

    Malcolm has voluntarily admitted (more like let slip, but why quibble) that he does understand important factors in the patentability of software discussion (like configured to is structure and the current controlling legal authotity as presented by the excpetions to the printed matter doctrine).

    It’s just that he is not intellectually honest enough to maintain that understanding front and center, to treat the law and facts with proper respect – and constantly tries to spin facts to support his agenda.

    When such low blogging is highlighted for him, all he can do is [shrug] and stand by.

  65. That creepy feeling is an intentional aspect of my using a line that fits your style. It’s a bonus that you recognize it. Now just take that next step and realize that it is an additional slam against you.

    This is pretty entertaining, anon, but can we just skip to the part where you call AAA JJ a poopoo head?

  66. I think that what bja and NWPA are about here is that the politicians should care something about the concerns of patent pracitioners.

    I think Joe Allen falls into that same club.

  67. Congrats on winning the appeal. Can you say what subject matter? For example, was it for software or business methods, or the supposedly more tangible categories like machine, manufacture, or composition?

  68. Then again Ned, we have your inability to deal (in an intellectually honest manner) with components of machines being perfectly eligible in their own right (think rivets, tires and bullets).

  69. Practicing patent AGENT with I think now 12 years prosecution experience. Now, do I have to add that to every comment?

  70. Gene Quinn quotes Zeidman for:

    "Software consists of the instructions that a computer follows to perform a task, whether it's calculating the square root of 2, excepting input from a user, running a hotel elevator system, displaying a webpage, or searching Internet…"

    From the above, I gather that software comprises computer instructions, probably arranged in sequence of execution and physically located in computer program memory that they may be accessed by the CPU, sequentially, as the program executes.

    If you do not agree with this, then what do you mean by software?

    For example, does software included a flowchart? At a high level, the flowchart comprises instructions albeit not the machine executable instructions that one finds in program memory. If you're not limited to the instructions as they exist in program memory, at what level of abstraction do you call a halt?

  71. It depends what you mean by sane. I’m sure most of us would be found legally sane. Clinically? That would be a different question. Even then, if you are committed I don’t think they give you Internet access.

  72. Or, how about the Joe Allen Litmus test at:

    link to ipwatchdog.com

    In a purely fair use manner, note especially:
    The attacks are typically emotionally based with broad allegations devoid of supporting facts that can withstand serious scrutiny. However, the message is easily understood, resonating with the media and a public which doesn’t understand commercialization or the patent system.

    Many in our community think that the critics are so obviously off the wall that no one will take them seriously. Others feel that it’s someone else’s job to speak up.

    This mirrors the anti-software people habiting these haunts, as well as some of the what-me-worry yellers.

    So it is a useful Litmus test too.

  73. They are non-controversial only in the party political sense. The politicians care nothing about the concerns of patent practitioners.

  74. No, but it helps if you understand how software is actually replacing hardware. Unlike you, for example.

  75. So you’re crowing about a change in the law that had zero effect?

    No. I am merely maintaining focus on the aspect that a law can be changed without trying to change the goalposts and talk about effects of those changes.

    I make no concession nor comment on Malcolm’s (or yours) attempt to switch the subject.

    But keep trying.

    That creepy feeling is an intentional aspect of my using a line that fits your style. It’s a bonus that you recognize it. Now just take that next step and realize that it is an additional slam against you.

    Thanks.

  76. LOL – so does yours – as the Exelixis comment is related to ANY appeal action initiated after the three year mark (we already know that a successful appeal is not at all affected by the Exelixis case).

    But hey – at least you got some exercise there.

  77. “Feel free to try to kick up dust and move the goalpost from ‘change in law’ to ‘effect of change in law.'”

    So you’re crowing about a change in the law that had zero effect? Congratulations. On whatever small part you actually think you may have had in achieving that change.

    “There there hush child. Would you like a lollipop?”

    I get the creepy feeling that you’ve used that line on others before. I hope your registered with the local authorities.

  78. As I said, no RCE was filed, so Exelixis I is completely irrelevant to the PTA we’re getting.

    Your reading comprehension still s#cks.

  79. Feel free to actually answer Malcolm’s question as to whether this change in “actual” law had actually had any impact

    Feel free to try to kick up dust and move the goalpost from ‘change in law’ to ‘effect of change in law.’

    Calling on Malcolm as a reference will never win you any credibility points.

    F#ck you very much.

    LOL – yeah, I thought that tie-in to your own wiper moments of posting about that cause would sting a little.

    There there hush child. Would you like a lollipop?

  80. Bilski: MoT not necessary.
    Prometheus: MoT not sufficient.

    Time to retire the overreading of MoT from Benson.

    Thanks.

  81. I think Night favors patenting ideas, mental processes, things that can be worked on the blackboard with aid of a human. He never seems to get that patents are for things that can be

    made

    used, and

    sold.

  82. You … quite miss the humor

    I quite do. But keep trying.

    I am wiping your nose in your own vacuous shtt.

    More comedy gold. Or not? Stay tuned.

  83. Night, “Benson is an outrage. It equates math with natural laws and information processing. Any judge–ANY JUDGE–that can’t see that Benson should be expressly over turned is IGNORANT of science and does not belong on the federal circuit.”

    Benson: “Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work. … He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end.” We dealt there with a “product” claim, while thepresent case deals with a “process” claim. But we think the same principle applies.

    Here the “process” claim is so abstract and sweeping as to cover both known and unknown uses of the BCD to pure binary conversion. The end use may (1) vary from the operation of a train to verification of drivers’ licenses to researching the law books for precedents and (2) be performed through any existing machinery or future-devised machinery or without any apparatus.

    “Transformation and reduction of an article “to a different state or thing” is the clue to the patentability of a process claim that does not include particular machines.

    “It is conceded that one may not patent an idea. But in practical effect that would be the result if the formula for converting BCD numerals to pure binary numerals were patented in this case.”

  84. Rich did not write Section 282, nor did he ever rely on it in a 101 case. This seems to indicate that even Rich did not fully understand what Frederico intended.
    Rich would have stoon on more solid ground had he actually invoked 282 and Frederico. Without 282, there really is no literal requirement that 101 analysis occur before 102/103/112. Without that statutory support that was just his opinion.
    Then there’s a whole bit about Federico trying to align patentability and validity. Is quite clear that Federico did not view section 101 as a condition of patentability. Rich did

  85. We won the appeal. The appeal was docketed to the Board in January, 2011. We did not receive a FAOM (first action on the merits) until more than 3 years after filing.

  86. Glad to answer that question AAA JJ: I do think becoming an attorney dulls one’s senses. I have made real products for real markets.

    Being an attorney is winning from the transaction not the outcome–usually.

  87. Malcolm, I think Lemley is against abusive patent practices in all their forms. For my time here on Patently O I read you to have the same overall viewpoint.

    I think it is telling that people who find Lemley objectionable also support patents on abstract methods, including mathematics and business methods. I can understand why they fear Lemley.

  88. AAA JJ:

    “Received a Board decision recently (i.e. this week) for a case filed in June, 2004. No RCE. Looking at about 6 years of PTA.”

    Are you saying you won the appeal and will get 6 years of PTA now in your favor? Also, how long did this appeal take?

    Thanks

  89. anon, Night, in conversations with me, has never agreed that his claims to mathematical procedures should be limited in any way to modifying signals or to limitation to any “particular” machine. He wants to patent information processing in the abstract.

    It seems to me that you do not go this far yourself.

  90. “That same weeping and gnashing that impacted actual law?”

    Feel free to actually answer Malcolm’s question as to whether this change in “actual” law had actually had any impact whatsoever on the plague of inequitable conduct charges.

    “Maybe you can grab him for your ‘appeal everything’ weeping and teeth gnashing party.”

    Received a Board decision recently (i.e. this week) for a case filed in June, 2004. No RCE. Looking at about 6 years of PTA.

    F#ck you very much.

  91. Right back at you, but I’ll only harp on one (which I noted before and you ignored): “Once you became an attorney your ability to understand innovation and motivation are gone.” (Your 3/2/13 at 7:03 PM post).

    I asked you before, and I’ll ask it again: you’re now an attorney, so does that mean your ability to understand innovationand motivation are gone, and if not, why not?

  92. I notice AAA JJ that you repeatedly ignore the substantive points I make.

    1) Moore did not understand how to analyze a patent;
    2) The judges did not understand the Church-Turing Thesis, which is about like not understanding gravity;
    3) A natural law is not made by adding a number;
    4) The judges do not understand the use of an abstraction in engineering;
    5) Lemley does lie in articles and I think it is unethical.

    But, it is certainly mature of you to selectively respond to my comments and focus on the non-substantive parts.

  93. the defense of inequitable conduct to be a plague

    That same weeping and gnashing that impacted actual law?

    So your point is that it does make difference to weep and gnash teeth?

    NWPA will be so happy.

    Maybe you can grab him for your “appeal everything” weeping and teeth gnashing party.

  94. Here’s an idea: Why don’t you write a letter to your Senators opposing the nominations of Mr. Chen and Mr. Hughes. Tell your Senators that the Fed. Cir. doesn’t need any “govt. low life” (please use those exact words, the same ones you used here) appointees. Sign your real name to the letter. Then let me know the response you get. As a prediction, I’ll say the response you’ll get will be polite and will probably ignore your childish name calling, and your letter will be immediately circular filed. And both your Senators will vote to confirm both Mr. Chen and Mr. Hughes.

  95. If he has joined any club, that club would be the Wiper club with NWPA.

    I was thinking more about the club of people that found themselves taking the Anontucket Sleighride to nowhere.

  96. Pretty busy right now, but AAA JJ:

    I don’t call them names for the positions they take but how they arrive at their positions–it is not their conclusions but their methods.

  97. Benson was decided in 1972, so the war’s only been going on for 41 years. :-)

    I think software is patent eligible subject matter under 35 USC 101. Others don’t. But I don’t think that those who don’t are liars, govt. low lifes, bozos, fat cat trolls, bloated pigs, or any of the other insults you hurled around.

    I also believe that the people who think software is patent eligible subject matter are well represented, well funded, and perfectly able to defend, and advance, their position.

    If software is ruled to be patent ineligible subject matter, it won’t be by the Fed. Cir., and most certainly not by Mr. Taranto, Mr. Chen and Mr. Hughes, but by SCOTUS. And if SCOTUS so rules, and the “software is patentable” lobby is motivated enough, they’ll open their check books and lobby Congress for an amendment to 35 USC to clarify that software is patentable.

    Are things ok now? If I were emperor of the world things would certainly be different than they are now. But I’m not, so I’m getting along.

    There’s been an incredible amount of weeping and gnashing of teeth from some in the patent bar the last 5-10 years. People have proclaimed the doctrine of equivalents to be dead, the defense of inequitable conduct to be a plague, the decisions in KSR and Bilski to be the death knell of patents, etc. I’m still working. I’m still getting patents for my clients. The company I work for is still spending hundreds of millions, if not billions, on R&D. When the CEO of the company I work for announces, “Well, Mark Lemley has published another pack of lies in his tireless anti-patent crusade and there’s nothing we can do to stop him so it’s time for all of us to pack up our desks and go home” then I’ll be worried. Until then, I’ll be in my office again tomorrow working on the drafts on my docket, along with all the other issues that come up every day.

  98. So, AAA JJ, the answer to question above is information processing. There has been a 50 year war since Benson. Do you think anything with a number is a natural law?

    Do you really think things are ok now? I don’t.

  99. Wow, talk about a lack of reading comprehension…

    If he has joined any club, that club would be the Wiper club with NWPA.

    Most definitely not the Malcolm little circle club.

    Better trolling please.

  100. I never ascribed to any notion that Gene Quinn is always right.

    That would be “subscribed to any notion.”

    In any case, whether Gene is sometimes wrong or right, he certainly did much more than hint that Mark Lemley is not “anti-patent.”

    Maybe he is a double agent. Or triple agent. Or a double triple agent.

    [Quinn] is … far more intellectually honest than you ever dare to be

    That much I know is false.

  101. LOL – my reading comprehension is super fine.

    Your touch with reality… well, that seems a bit off. Perhaps a chunk of blue sky knocked you upside the head.

    Now, please stop yelling at me (LOL).

  102. “wiperish” is obviously a coined phrase generated from NWPA’s moniker (Night Wiper), and his tendency to go all ballistic and “sky is falling.”

    Look at AAA JJ – he’s being very wiperish.

    It’s absolutely amusing that he is yelling so much at someone to stop yelling. Imagine a videotape of the two muted, and you are handed a transcript – you wouldn’t be able to tell which one was saying what.

    (btw – should I start yelling at you for “uninvitedly inserting yourself” into this exhcnage? LOL)

  103. “I’m having fun…”

    Might be time for a new hobbby.

    “…pointing out your inconsistency with yelling at someone else to quiet down.”

    I’m yelling at NWPA to quiet down? Your reading comprehension s&cks.

  104. As far as needing to “chill out” it seems to me that you are the one who has been constantly, and uninvitedly, inserting himself into the exchange between NWPA and myself.

    ooooh – uninvitedly – on an internet chat board.

    um – there is someone needing to chill down – and that would be you.

    Me? I’m perfectly mellow about all of this. NWPA is overreacting. AAA JJ is equally overreacting. I’m having fun pointing out your inconsistency with yelling at someone else to quiet down. Perhaps, you should step back and chill out before you review the comments in the thread. Your current review seems only to be making you hotter under the collar (it’s not working so well for you).

  105. That’s a rather lame dodge.

    Hardly. So much of his writiing is so full of c_rrp, that a sample from you is rather like ‘dealer’s choice.’

    The patent law hasn’t adapted to computers?

    (sigh) you need to read my post again. The law is fine – but you parsed “system” down to “law” and that’s not where NWPA is coming from.

    do you meet NWPA’s ever-shifting criteria for a Fed. Cir. judge?

    I don’t care. I would pay. Whether or not you doubt that is another thing I don’t care about.

  106. I’ve reviewed the comments in this thread and as far as I can tell I’m not the one who claimed that every single one of a group of patent attorneys with 10+ years of private practice has called any one of these three nominations “ridiculous.” I haven’t called anybody a liar. I also haven’t resorted to ad hominem attacks like “troll” and “fat cats” and “joke” and “bloated pigs” and “bozos,” etc. As far as needing to “chill out” it seems to me that you are the one who has been constantly, and uninvitedly, inserting himself into the exchange between NWPA and myself.

    Maybe you should heed your own advice a little too.

  107. I guess Gene Quinn just lost another superfan.

    Um, OK. Except I never ascribed to any notion that Gene Quinn is always right.

    He is, however, more right than wrong, and far more intellectually honest than you ever dare to be (what is the controlling state of law regarding exceptions to the printed matter doctrine again?).

    LOL.

  108. Is anyone surprised that our resident patent t–b–ggers would employ such a ridiculous litmus test for “credibility”?

    resident patent t–b–ggers – sorry, I have no clue what you mean by that phrase. Really.

    Lemley as a litmus test? Sure, not perfect, but it is a pretty good one. A more solid one is the little circle litmus test.

  109. no indication that information is being “processed” any differently than a person would “process” the information.

    If a purely mental process is ineligible, it doesn’t seem “bizarre” at all to discount the mere recitation of “on a computer.”

    no indication… on a computer…

    Um, that would be an indication.

    Newsflash: computers do not think.

    Anthropomorphication. It makes such a lovely dust cloud and fear-mongering tool.

    Per se obvious… 101…

    LOL – more glorious Malcolm self-defeat. See that 9-0 dance a jog, baby Prometheus decision for that desire to conflate obviousness and the 101 inquiry. See your own backtracking when it comes to any Myriad of posts attempting to keep the 101 and 102/103 worlds far apart in particular ‘backyards.’

    Careful venturing into substantive law Malcolm – you tend to burn yourself badly when you go there.

  110. “Provide a sample, and I will be glad to.”

    That’s a rather lame dodge.

    Your, and NWPA’s, insistence on calling anybody who disagrees with you a liar is really childish.

    “easy – computers.”

    The patent law hasn’t adapted to computers? You can’t get a patent on a computer? I wasn’t aware of that. Thanks for the insight.

    “…but all you are doing by ignoring NWPA’s focal point and its basis in reality is stirring the pot.”

    His focal point? There’s a focal point to his ramblings? I must confess I missed it. I doubt I’m the only one who did though.

    You’d pay to be on the bench? Somehow I doubt that. But assuming you would, do you meet NWPA’s ever-shifting criteria for a Fed. Cir. judge?

  111. by copying idioms from my comments verbatim.

    LOL – You flatter yourself and quite miss the humor, as when I copy your idioms I am wiping your nose in your own vacuous shtt.

    Obtuse. Is it on purpose? (said in the best Andy Dufresne tones)

  112. It is just bizarre they keep referring to steps of information processing performed on a machine as a mental step.

    It’s not “bizarre” at all when the invention is a series of “determining” and “analyzing” steps, with no indication that information is being “processed” any differently than a person would “process” the information.

    If a purely mental process is ineligible, it doesn’t seem “bizarre” at all to discount the mere recitation of “on a computer.” Perhaps if the USPTO would pull its head out of its arse and acknowledge that all such claims are per se obvious we wouldn’t have to use the 101 machine gun.

  113. Why? Because I think someone who writes so zealously would desire to be able to have a visceral impact on patent law?

    Really?

    Heck – I would pay to be on the bench.

    You need to chill down a bit – you are being rather wiperish.

  114. Granted, NWPA tends to go over the top and see blue sky falling quite often, but seriously AAA JJ, your counter views are too far in the opposite direction

    “Lemley lies in his papers.”

    Please provide one example.

    Provide a sample, and I will be glad to.

    Please identify one “new technology”

    easy – computers. You presumption is a bit off (too narrowing). By patent system, NWPA includes (I believe) those attempting to subvert the patent laws (which are fine in and of themselves). In case you haven’t noticed, there has been a philosophical dogfight on this dating back more than fifty years (see Prof. Crouch’s post on that toppic – and my comments therein).

    I ‘get’ that you wish to reign in some of NWPA’s grief over the nominations (I don’t share his level of angst), but all you are doing by ignoring NWPA’s focal point and its basis in reality is stirring the pot.

  115. “I really do think he would pay to be put on the bench.”

    I really do think you’re beyond even professional help.

  116. Lemley is virulently anti-patent.

    Period.

    Ned, to even hint otherwise is to instantly lose what is left of your credibility.

    I guess Gene Quinn just lost another superfan.

    link to ipwatchdog.com

    “The way I read [Lemley’s] article is as quite patent friendly. The fact that he recognizes that there is a complex set of incentives and business/science rationales to justify the patent system doesn’t worry me in the least even if the narrative is not the traditional one.”

    Is anyone surprised that our resident patent t–b–ggers would employ such a ridiculous litmus test for “credibility”?

  117. And I never indicated “a fear” of Lemley on the bench – quite in fact, his being on the bench would likely cabin his anti-patent ways a bit, as he would actually have to provide solid support for his views and would not be able to get away with his (current) self-citing and poor support.

    Take a deep breadth AAA JJ.

  118. coming across as a case of serious delusional paranoia

    LOL – really? You read that much ‘fear’ in my post?

    I think someone should seek some help, but it isn’t me. My commnet only aligns with Prof. Lemley’s zeal for attacking patents. I really do think he would pay to be put on the bench. There is not any “serious delusional paranio” about that.

    You note below that NWPA should heed his own advice.

    Ditto. The 9:01 am post is so wiper of you.

  119. What else can one expect from Malcolm, who – as typical – accuses others of that which he does?

    This from the guy who spent years struggling to teach himself English by copying idioms from my comments verbatim.

  120. “You’re starting to sound like a troll.”

    So anybody who asks you to clarify your overbroad and generalized statement, and maybe provide some actual evidence, other than your own opinion, is a troll?

    Got it.

  121. “I’ve been a businessperson and engineer. Your experience could never come close to mine.”

    And you know this how?

    “Once you became an attorney your ability to understand innovation and motivation are gone.”

    What?! Is your ability to understand innovation and motivation gone now that you are an attorney?

    “You sound very limited to me.”

    Because I don’t share your paranoia over these nominations, right?

    “A corp. attorney that does his job and is smart, but doesn’t get the bigger pictures.”

    Working for a Fortune 10 company in the top 10 of patents granted per year is a very small picture indeed. Do you have any suggestions on where I should go to see the bigger pictures?

    “Lemley lies in his papers.”

    Please provide one example.

    “I think most of the problems we have due to the patent system not adapting to new technology.”

    Please identify one “new technology” that the patent laws (which I presume you mean to say the courts and/or PTO) have not adapted to.

  122. “Funny too that you say your read some bad opinions from Moore than jump on me for saying the untrained are easily led astray.”

    I jumped on you? I asked to clarify your statement that “the ones that don’t have patent law experience are more easily lead astray.” You still haven’t provided any clarification.

    “And, thank you, but I have had lots of business experience as an engineer and businessperson both in small companies and large corporation.”

    How much is “lots”?

    “Government attorneys without science backgrounds isn’t the way to go.”

    Mr. Chen has a science background. He clearly understands science better than say, oh I don’t know, a history major.

  123. So, a government attorney who spent 2 years practicing patent law. How is he qualified? A person that has spent his entire career at the patent office?

    Come on. Obama should be able to find better.

  124. I dont really know who Chen is besides the comments in this thread, but it seems you are over exaggerating, and may be completely wrong in your characterization. The link you are dismissing says

    “As an Associate Solicitor, Mr. Chen spent 10 years defending the USPTO’s decisions in federal court, briefing and arguing numerous cases before the U.S. Court of Appeals for the Federal Circuit. His notable Federal Circuit arguments include In re Bilski, In re Nuijten, and In re Comiskey. Mr. Chen has also provided legal advice to the USPTO on new regulations and examination guidelines.”

    “Before joining the USPTO, Mr. Chen served for two years as a Technical Assistant at the U.S. Court of Appeals for the Federal Circuit. Prior to that, he was an associate at Knobbe, Martens, Olson & Bear in Newport Beach, California, where his practice focused on patent prosecution and litigation. Before entering law school, Mr. Chen was a scientist for Hecker & Harriman in Los Angeles, California, specializing in patent prosecution for electronics and computer-related technologies. He received his J.D. from the New York University School of Law and his B.S. in Electrical Engineering from the University of California at Los Angeles.”

  125. And, AAA JJ: Try to be a human being. Think. This is an age like no other in the history of the world. Our machines are becoming more capable than we are at processing information.

    This is incredible. Nothing like this has ever happened before. And, we are appointing judges that think math is the same as a natural law. We are appointing judges that don’t know what the Church-Turing Thesis is and don’t care.

    Get a grip AAA JJ. There are people out there that are changing the world and trying to make things better. There are fat cat trolls that sucking up the resources with their bloated pig attitudes. Lemley, Stern, you, and these three judges below to the latter group.

  126. Maybe a starting point would be to start a list of the outrageous holding that we must now live with and attribute them to the various “judges.”

    Obama you have shamed your office by nominating these three. Shame on you. Shame on you. Shame on you.

  127. So, AAA JJ, I hope you are starting to understand that some of us care about patent law and innovation. We don’t like people ly.ng to try and turn the system to their ends. We don’t like it when we see “judges” that can’t read a patent. We don’t like it when “judges” equate math with natural laws.

  128. We don’t want more non-science, inexperienced judges on the bench. And, we have good reason. We care. Too bad you have become a bloated joke of a corporate attorney who thinks he can blow by me. Stop and smell the reality at the Fed.Cir. and at Lemley’s paper’s and you’ll smell the rot of ignorance and corruption.

  129. AAA JJ:

    And let’s be serious here.

    Moore doesn’t know how to read a patent. She wants to put in a patent application more than what is novel and needed to recognize the invention and for any one to make and use an invention.

    Benson is an outrage. It equates math with natural laws and information processing. Any judge–ANY JUDGE–that can’t see that Benson should be expressly over turned is IGNORANT of science and does not belong on the federal circuit.

    Law professors lie in vanity press law journals and don’t even understand what ethics is. Let’s see if Lemley can withstand a letter to the Stanford faculty. He should be removed for academic dishonesty.

    The Oral hearing had attorneys saying things directly contradictory to the Church-Turing Thesis. Nobody there even understands the Church-Turing Thesis (which is without question the most important thesis of our information processing times.)

    I could go on with many more outrages.

    So, AAA JJ, you are a joke. A fat cat corp attorney that is getting his. Big deal. You don’t care about science and patent law or you would be just as outraged.

    You probably figure that you are fat and bloated enough that you’ll get yours before the ship sinks and you don’t care about anything else.

    Be real…these new judges are boz0s. The Oral hearing on information processing was a boz0 circus.

    And, now more boz0s to come.

  130. Lemley is virulently anti-patent.

    Period.

    Ned, to even hint otherwise is to instantly lose what is left of your credibility.

  131. I have shown you time and again Ned that you merely agree with the dicta and less-than-dicta rankings of a Supreme Court in defiance of a man who helped write the actual law that, as a judge, he was interpreting what the writers of the law intended (as opposed to a pie-addicted Supreme Court bent on writing patent law itself).

    On a recent thread I showed you that not only Rich, but your hero Frederico (and even the Supreme Court itself, on its VERY carefully chosen words) have ALL indicated that Congress revoked the judiciary’s power to write a common law of invention in 1952.

    I will remind you that you point blank agreed with me.

    Now, stop your nonsense. Please.

  132. Night, just to make this simple, you want to patent mathematical algorithms per se, a series of steps. You, like Rich, think the claim valid if the specification discloses a machine, like a GP digital computer, for carrying out the steps.

    While there is some merit, I think, in the Rich position, and yours for that matter, the case for such claims has been decided. Let's move on, please.

    Regarding knowledge of science, etc., I don't think that is necessary for a court of appeals. They are not the trier of fact. Experts instruct the disctrict courts on science. Findings of the district court on facts should be respected, not overturned by appellate judges who substitute their own scientific views for the lower court's findings.

    Perhaps you are instead arguing for a nationwide patent trial court, holding trials locally if necessary. I would have no objection if they broke that court up into judges having different technical backgrounds, like the PTO Board, so that the triers would fully understand the technology involved. Perhaps we should begin that discussion.

    I am not sure Lemley is anti-patent. I think he does have a problem with indefinite claims. But shouldn't we all?

  133. It is just bizarre they keep referring to steps of information processing performed on a machine as a mental step.

    That means the machine has a mind. Ned, if you can’t see that you have some serious issues with these machines out processing (OK, let’s say out thinking so you can understand) you, then you should go see a shrink. ( I hear some software programs are starting to get pretty good at psychoanalysis.)

  134. “I do agree with you though that I should just give up and become like Lemley.”

    Don’t even think about!

    Don’t even think of getting tired and quitting!!

    Because I am sick of the anti’s BS and we need you Night!!!

  135. It is bizarre that MM keeps quoting from Bilski as if it was a win for him and yet when it came out he hide from all of us for months in shame.

    And, MM, I predicted Bilski pretty accurately as I remember. You did not.

    And, MM your comments do illustrate an anti-crowd does exist.

  136. Thank Gott we now have Bilski and Mayo to once again spike that nonsense.

    Ned – you are out of control once again.

    Please stop.

  137. Ned: “the Rich era, an era that now is gone with the proverbial wind.”

    Ned, I think the Supreme Court would have had to overturn Diehr for that to be the case.

    But as you know Bilski and Prometheus respectively upheld Diehr, business methods, claims as a whole, no dissection, and more of Rich’s legacy.

    And of course the coup de grace for the anti patent crowd, Integration.

    And if you think the Supreme Court will outlaw software, when it could not even muster the votes to do away with business methods, you have been inhaling whatever MM, is smoking.

  138. Mental steps? You mean a machine that processing information? You mean the machines that you and MM claim have no structure? The ones that are now driving cars, beating people at Jeopardy, diagnosing cancer, painting your new car, vacuuming your carpet? Those machines? The ones where the information processing is the key aspect of the machine that makes it valuable?

    “well educated” in patent law and science. You mean the judges on the Fed. Cir. who don’t know what a Turning Machine is, or the ones that don’t know the most basic theoretic result in computer science, the Church-Turing Thesis. The judges that sat there during oral arguments and allowed arguments that contradict the Church-Turing Thesis. Those “well-educated” judges?

    The problem is that information processing has not been accepted. If it had been completely accepted and an attempt to understand it had been made, then the patent laws would have adapted to it by now.

    I do agree with you though that I should just give up and become like Lemley. The end justifies the means and just get what you can from people and the world. Isn’t that what Lemley and Stern are all about?

  139. And, actually AAA JJ, you are an attorney. I’ve been a businessperson and engineer. Your experience could never come close to mine. Once you became an attorney your ability to understand innovation and motivation are gone.

    You sound very limited to me. A corp. attorney that does his job and is smart, but doesn’t get the bigger pictures. An honest man (presumably) that believes others are honest and well meaning.

    A solid citizen, but there are those out there now that aren’t like you. Lemley lies in his papers. He is not an honest actor, but someone who intentionally misleads for his ends. Stern wrote Benson for the same reason.

    And, frankly, the biggest reason to worry is that underlying all patent law is science. If the judge is in their 40 or 50s and hasn’t put the effort into learning science yet, it is insanity to appoint them to the fed. cir. where the rapid progress of innovation demands adapting the patent laws.

    I think most of the problems we have due to the patent system not adapting to new technology.

  140. Night, you advocate patenting processes consisting entirely of mental steps. That has been your lietmotif since I have joined the discussion here years ago. You characterize anyone who disagrees with you as anti-patent. They have an agenda, you say, not you.

    Now you want to rig the CAFC with judges who think like you. Your hero was Judge Rich, who also held your views on patentable subject matter.

    What you fail to appreciate is that the Rich era, especially after State Street Bank, brought the CAFC and indeed the entire patent system into disrepute. As MM would say, the PTO began issuing patents on information, where the sole novelty lay in new mental steps, new information. Thank Gott we now have Bilski and Mayo to once again spike that nonsense.

    Night, you remind me of Don Quixote tilting against windmills. You cannot accept reality, and pine for an imagined past, the Rich era, an era that now is gone with the proverbial wind.

    What we need in the CAFC are solid jurists, well educated, wise and unbiased, people who will dicide the cases before them without agendas. It is this latter concept that seems to elude you the most.

  141. Oh I am very worried. I think most of the problems we are having stem from people like this. We need people with real experience and real science backgrounds. We don’t need opinions like Benson. We need people that care about technology and like it. And, people that understand how patents promote innovation.

    Funny too that you say your read some bad opinions from Moore than jump on me for saying the untrained are easily led astray.

    We don’t need government attorneys and particularly not from the Justice Dept.

    And, thank you, but I have had lots of business experience as an engineer and businessperson both in small companies and large corporation. This was prior to becoming a lawyer.

    The reality is that there are some very big challenges ahead for patent law to adapt to new technologies. So far, the Fed. Cir. has shown that they aren’t up to the task. I think we need people who actually understand the technology or are willing to put the work in to understand it. Government attorneys without science backgrounds isn’t the way to go.

  142. Stuart, providing that all patent appeals go to one circuit court was, I think, the goal of the CAFC act. The perceived problem was “forum shopping” because some circuits, like the 8th, found every patent obvious.

    What I do not understand is why the patent bar chose the CAFC to be that circuit court? That court had no respect at all at the Supreme Court level, it having not even been considered to be an Art. III court at one time.

    The most respected circuit court in the land was the DC circuit, the court that hears appeals from most agencies and which is expert in administrative law. Its judges are often elevated to the Supreme Court. Why couldn’t we have chosen that circuit court to hear patent appeals from the district courts as well as the patent office? The CCPA could have been folded into that court.

    Regardless, what we got in the Fed. Cir. was a court dominated by one judge, Rich, who seem locking into vendetta with the Supreme Court over any number of what Rich viewed as Supreme Court mistakes: patentable suject matter (Morse,Funk Bros., Benson and Flook), Mercoid, Halliburton, Cuno Engineering, many of which he had managed to have “overturned” via the ’52 Act. Rich penned State Street Bank, (as he did Musgrave and Benson) all cases that shall live in infamy. If Rich is any example, having patent attorneys on the court was a very bad idea. But it might just be Rich.

    But frankly, I think the whole enterprise back in the day was designed to focus patent appeals on the CCPA just because Rich was there. and the powers that be in patent law liked his views. In retrospect, that was a big mistake that we should not make again.

    I think we need to consider scrapping the CAFA and merging it with the DC Circuit.

  143. Stuart, I agree about the AIPLA essentially being a tool of one special interest, big companies.

    Regarding copyright and trademark attorneys, why not include them. They are harmless. Besides, many patent professionals also deal in those two regimes as well.

    Also when a guy calls himself an IP attorney, it means something: he is not a patent attorney. That does not mean he is ignorant and clueless, though.

  144. I doubt he’d want to take the pay cut.

    Quite the opposite, I think he would gladly pay to have a seat on the bench.

  145. If fact AAA JJ, this comment of yours brings into doubt everything you have written.

    I haven’t known a patent attorney yet that doesn’t shake their head at some of the recent opinions and say they must never have practiced patent law.

  146. MM: “As for the new location of the goalpost (“the concluding analysis”), it’s pretty funny.”

    101 Integration Expert: Why would (“the concluding analysis”), be considered “pretty funny” or “moving the goalposts” ?

    If the Court has ruled as you claim, that so called new thinking steps can be ignored when determining statutory subject matter, would not the “ignoring” apply to the concluding analysis?

    Unless of course when one reads the conclusion of the Court cases there is no actual “ignoring” of the so called new thinking step, or any step or element, and indeed the claims have been considered as a whole, as mandated by Diehr. In that case in would be “pretty funny” if someone viewed the case as being for dissection, stripping away and ignoring steps and elements and celebrated, 9-0 baby, when in fact they were wrong.

    Of course if that same person doubled downed and posted a link to the USPTO Office Guidance claiming it supported their view, only to discover that the Guidance supported the view of “Integration” and not dissection, stripping away and ignoring steps and elements, that would be beyond funny.

    link to uspto.gov

    That would be downright embarrassing!

  147. Last year was pretty incredible. You could see the fire from space.

    Recounting your personal experiences of your approach to our planet Malcolm?

  148. you’ve moved the goalposts

    LOL – from the king of moving goalposts.

    What else can one expect from Malcolm, who – as typical – accuses others of that which he does?

  149. the vast majority of APJ’s are/were lifer hacks who came up through the examining corps.

    Sounds mighty wiper of you.

  150. MM: “Also pointless in the case of [oldstep]+[newthought] claims because the ineligible step can never be sufficiently “integrated” to satisfy 101.”

    Again,

    Diehr did not state this.

    Prometheus did not state this.

    The Official Office Guidance does not state that Diehr or Prometheus stated this either,

    If I am wrong please provide the exact quote from either Diehr, Prometheus, or the USPTO Official Office Guidance, that says “ineligible steps can never be sufficiently “integrated” to satisfy 101.”

    :: Crickets Chirping ::

  151. MM: “process claim elements are analyzed in view of the prior art for the purposes of determining eligiblity.”

    Not for 101.

    Diehr did not state this.

    Prometheus did not state this.

    The Official Office Guidance does not state that Diehr or Prometheus stated this either,

    If I am wrong please provide the exact quote from either Diehr, Prometheus, or the USPTO Official Office Guidance.

    :: Silence::

  152. the concluding analysis

    Yes, Your Hackship. We understand that you’ve moved the goalposts and now admit that process claim elements are analyzed in view of the prior art for the purposes of determining eligiblity. As for the new location of the goalpost (“the concluding analysis”), it’s pretty funny. Also pointless in the case of [oldstep]+[newthought] claims because the ineligible step can never be sufficiently “integrated” to satisfy 101.

    Now, hurry back to kindergarten. They are serving your favorite graham crackers and a half-pint of skim milk.

  153. Dear Stunned:

    Do you want to place a bet on which side he comes out on?

    I am sure he will be confirmed. But, again, a government hack–not a practicing patent attorney. Have you ever dealt with the solicitor’s office?

  154. “…defending the decisions of Administrative Patent Judges at the United States Patent and Trademark Office. All of which likely have more experience than any of us.”

    I wouldn’t say that. Prior to the hiring binge of the past year or two, the vast majority of APJ’s are/were lifer hacks who came up through the examining corps.

  155. In inter partes reexams, when the party challenging patentability appeals to the Fed. Cir., the Solicitor’s office defends the decision of the Board in affirming the patentability of the claims. So Mr. Chen has participated in cases in which the PTO was arguing FOR the patentability of claims.

  156. Let me get this straight, Raymond Chen has spent 10 years defending the position of the USPTO in federal court. Logically, the one of the few times the position of the USPTO needs to be defended is when the USPTO denies a patent to someone. I will repeat, so that it can sink in. Raymond Chen makes arguments defending the PTO’s decision to deny someone a patent. He is not defending his own decisions. He is defending the decisions of Administrative Patent Judges at the United States Patent and Trademark Office. All of which likely have more experience than any of us. And this makes him anti-patent? I call it vigorous representation of your client. And I think he will make a fine judge on the Federal Circuit.

    I’m a patent prosecutor by the way.

  157. Well, MM, if the link to the USPTO Official Guidance on “Integration” in view of Prometheus upsets you that much why don’t you just counter and post the link to the USPTO Official Guidance on “dissection” in view of Prometheus in which steps/or elements are stripped away and ignored in the concluding analysis?

  158. “You being in corporate probably still counts as a patent attorney.”

    Gee, thanks. I guess. 13 years of private practice apparently doesn’t count for much these days. I actually do a much wider variety of legal work in the corporate world than I did in private practice. You should try it sometime. You’d be amazed at how ignorant you are of your clients’ actual business strategies, practices, and goals. Billing them 2,000 hours a year for drafting their apps and amendments doesn’t give you all that much insight.

    BTW, why don’t you go read J. Newman’s bio and tell me how much private practice experience she had before becoming a judge.

    “Regarding your reference to Bill Lee, maybe there are exceptions.”

    Not maybe. There are “exceptions” (whatever that may mean). Lots of them. A lot more than you think.

    “my sample is from the second largest IP boutique and from AM LAW 100. As I said, never had this conversation in person where the patent attorney didn’t say they thought 10+ years was a requirement.”

    Exactly. Look at where your sample is from.

    “And, honestly AAA JJ, I am surprised to hear you say this. I really have never heard a real patent attorney say this before.”

    I’m a real patent attorney. As real, if not more real, than your second largest IP boutique and AM LAW 100 buddies. I worked at four law firms all of which were in the top 15 of patents issued for years, I did huge volume fax practice prosecution, drafted apps for individual inventors, start up companies, top 10 patent grubbin’ companies, personally interviewed hundreds of examiners, argued before the BPAI, negotiated sales and licenses of patents, wrote more than a dozen non-infringement/invalidity opinions, and I’m telling you that I haven’t lost one nanosecond of sleep over any of these 3 nominations.

    Neither should you.

  159. His other posts out him as an anti-patent hack without prep and pros experience, so probably not the most trustworthy to begin with.

  160. LB “Really. In the US. With a small, but quite successful law firm.”

    But apparently not “quite as successful” at applying “Integration Analysis” to claims such as Ultramercials.

  161. MM: “Bilski was just the beginning.”

    Yes, MoT NOT required and Diehr as controlling precedent.

  162. MM: “party favors from the State Street Bank bash are in the dumpster,”

    With the exception of the most important ones, that say

    Business Methods are STILL Statutory Subject Matter.

  163. “Really. In the US. With a small, but quite successful law firm.”

    But apparently not “quite as successful” at applying “Integration Analysis” to claims such as Ultramercials.

  164. And, honestly AAA JJ, I am surprised to hear you say this. I really have never heard a real patent attorney say this before.

  165. AAA JJ: Regarding your reference to Bill Lee, maybe there are exceptions. CJ Rader has made a good judge and he doesn’t fit the criteria. Maybe, but I am still very skeptical as CJ Rader worked hard to overcome the fact that he was a history major. He worked very hard and respected J. Rich.

    AAA JJ: my sample is from the second largest IP boutique and from AM LAW 100. As I said, never had this conversation in person where the patent attorney didn’t say they thought 10+ years was a requirement.

    I would be interested in more of a scientific survey as this has been an interest of mine for some time.

    And, I will repeat that I don’t think J. Moore did not understood how to read the patent at oral hearing.

    You being in corporate probably still counts as a patent attorney.

  166. That’s quite a scientific method you used there. I’m beginning to see how you arrived at your current opinions.

  167. I’m in corporate practice now. With a Fortune 10 company. That’s 10. Not 100. Top 10 in patents granted last year. 13 years in private practice. Am I disqualified because I’m no longer in private practice?

    I don’t know if you consider your exchanges with LB and me to be “conversations” but as of just today you’ve had two in which people said that 10+ years of practice as a registered patent attorney isn’t necessary as a qualification for Fed. Cir. judges.

    Please do ask all of these very reasonable people you’re discussing qualifications with what they think of, for example, Bill Lee from WilmerHale. Not a registered patent attorney. Doubt he’s ever drafted an app, an amendment, or any other prosecution related filing. Think he’s qualified to be a Fed. Cir. judge? If your answer is no, and I guess that it would be, then again I can only recommend that you get out a little more.

  168. Not sure if I am going to count you as one. I might.

    So, loosey goosey experience is good 1 (AAA JJ); 10+ experience 100+.

    OK. There’s the tally.

  169. And are you know in private practice?

    As I’ve said, I’ve never had a conversation with someone with 10+ years experience who didn’t say that they believed that to be appointed to the fed. cir. that you should have 10+ years experience as a patent attorney—NOT one.

  170. You don’t believe what, that I have 9+ years of patent examiner experience and 14 years of private practice experience, or that I don’t know a single person who’s described these nominations as “ridiculous,” or that I know a couple hundred people who meet your ever shifting criteria for having an opinion on the matter?

    You know I always find it highly persuasive to call anybody who disagrees with me a liar. So at least you and I agree on that. :-)

  171. 3 Judges out of 12 doesn’t matter? You must be kidding.

    It certainly could matter if they were “anti-patent slaves” or “pro patent slaves” but there is no evidence for that. And even if they were so biased, it would only modestly affect the rate of change, not the direction of that change.

  172. I know many and from some of the top firms in the country.

    And, I’ve been having this conversation for many years with them in what should the qualifications of a fed. cir. judge be. Not one has ever not included 10+ years of actual patent law experience–not one.

  173. “Are you a patent attorney with 5+ years experience that is currently practicing patent law in private practice?”

    and then

    “So, to be clear, I have not heard a single patent attorney with 10+ years experience say…”

    Nice moving of the goal posts, BTW.

    I personally know a couple hundred registered patent attorneys with 5+, and 10+, years of experience, and not one has used the term “ridiculous” to describe these nominations. I don’t know how many you know, but “all have said – ridiculous” only tells me that you need to expand your professional and social circles a little bit.

  174. I have many years of experience as an examiner, and 14 years in private and corporate practice, and I’m not overly concerned with these nominations. I’m sure there are plenty of practicing attorneys who are qualified, but these appointments are political and I just don’t think the folks responsible for finding candidates are down far enough in the weeds to find them. And even if they were, the candidate would have to have the political support. If you’re not in the political world, it’s hard to get that support.

    Would I like to see a partner from Finnegan, Oblon, Fish, MoFo, Foley, etc. with significant prep and pros, trial and appellate experience nominated? Sure. But I don’t think there’s as much of a demand for that as you seem to think there is. JMO

    Go over to Gene’s site and read his interview with J. Linn where he explains how he was nominated. In today’s political climate, that might as well have been a century ago. We’re not living in the 1980’s anymore. Or even the 1990’s. It’s 2013. Deal with it.

  175. Because if you are then you will be the first attorney I have heard say that. Actually, the first one with 10+ years experience if you have that.

    So, to be clear, I have not heard a single patent attorney with 10+ years experience say that any nomination of a judge with that did not actually practice patent law for 10+ years was OK. They all have said–ridiculous. And that from large boutiques and AM LAW 100.

  176. MM: I don’t think Moore understood the patent she was quoting from. I said that above. She didn’t know how to read it properly. I also said in another thread with which you agreed that Moore may be an anti that was just putting forth the best arguments of the other side as a test.

    3 Judges out of 12 doesn’t matter? You must be kidding.

  177. I don’t know what Stanford pays law professors. I’m sure it’s nice, but probably not that great.

    Lemley does practice law. He’s not a patent prosecutor, but I don’t think one has to be a patent prosecutor to “understand” patents.

    I don’t think I’ve read a single Lemley article that I agree with. His article with (now J.) Moore was laughably wrong, bordering on silly. But when the PTO tried to stop “continuation abuse” with those ill advised rules, they were challenged, and stopped, by Steve Moore (a “real” patent attorney) and John Desmaris (not a “patent attorney” as far as I know). I watched them both argue at the USDC and the CAFC and they were both excellent. As equal a match, if not more, for Lemley as you could want to have.

    I don’t know what you mean by “academic integrity.” Lemley has certain beliefs about how and what the patent system should be and he writes articles in which he presents the evidence and arguments he believes support those beliefs. I don’t think he has some hidden agenda. He’s pretty up front about what he thinks should be done. I don’t agree with him on anything that I can think of at the moment, but I don’t think he lacks “integrity” because his beliefs and my beliefs are pretty much polar opposites.

    I seem to recall a whole lot of chicken littles running around claiming the sky was falling when J. Moore was appointed. She’s written some stuff that’s made me cringe, but I’ve also been pleasantly surprised at some of her decisions and writing.

    I wouldn’t lose too much sleep over Lemley being appointed to the Fed. Cir. I seriously doubt he would even want the job. If he’s making as much money as you’re worried he’s making, I doubt he’d want to take the pay cut.

  178. Are you a patent attorney with 5+ years experience that is currently practicing patent law in private practice?

    You really think that there is some big divide over this guy’s nomination based on the level of experience and whether one’s practice is private or not? I think you’re wrong.

    I seem to recall much grumbling about Judge Moore’s nomination. And yet there she was during the Alice Corp. oral hearing making the exact arguments that you make here all the time (“how can a computer be abstract?” etc).

    I think it’s silly to worry about a few judges. It’s the big picture you should be worried about. Well, maybe it’s not worth worrying about but it’s worth paying attention to. The big picture is that change is in the air and the wind is blowing pretty much in one direction. All of the streamers and party favors from the State Street Bank bash are in the dumpster, waiting to be incinerated. Bilski was just the beginning. Prometheus was an introduction. And that’s just the Supreme Court weighing in on the current mess.

  179. Look through the job listings on patentlyo. One of them was for a supervisor of paid bloggers. Some front for anit’s in DC.

  180. Yes, and I never really received an apology from you for the years of abuse you heaped on me claiming that those were my sock puppets.

    And, MM, would you be in the group? Are you a patent attorney with 5+ years experience that is currently practicing patent law in private practice?

  181. By “non-controversial”, I meant that the Senate is not likely to see these as controversial appointments.

    It’s time for the Million Inventor March on Washington!!!!!

    /p-t-nt t–b-gger off

  182. Obama could have reshaped the court with science experience

    Because a deep scientific background is critical if you want to truly understand the difference between using a computer to access a database and display information about available space in a bookstore versus using a computer to access a database and display data about available space in a grocery store.

  183. in other words, Dennis, not controversial to whom? Not us, I’ll bet.

    Just think about how much more controversial it would be if anon’s s-ckp-ppets were allowed to weigh in!

  184. The “professors” have turned their jobs into non-academic platforms for making money. What practicing patent attorney has time to go on the talk circuit like Lemley does?

    Who is in a position to challenge Lemley? No one. Who reviews his journal articles for academic integrity? No one.

    Give me a break.

  185. The funny thing is that it is really the opposite. That the corporations and organizations and the government have monopolized the information.

    Read Stuart’s comments. The once great AIPLA represents corp interests.

    The fact is where do real patent attorneys have a voice?

    The law journals are littered with Lemleys that have a platform for making money outside the professor job and have no academic integrity.

    The organizations are taken over by corp or government

    The blogs are littered with paid bloggers so that real attorneys don’t have the time to compete.

  186. Stuart’s comments got me to thinking about this. I would very much like to see opinions separated by patent attorneys (+5 years experience) vs. those who don’t have that much experience or are not patent attorneys.

    And, in particular, +5 years experience and actually currently practicing patent law–not government gravy train.

    I’ll bet our group has a lot of agreement on these issues. So, in other words, Dennis, not controversial to whom? Not us, I’ll bet.

    I don’t think I speak alone. I think my views are very much in the main stream of real patent attorneys with experience who are currently practicing.

  187. I think that people have listened to Chen in oral arguments hear an ignorant anti patent slave

    Chen throws a great Bad Patent Burning Party every 4th of July. General Soros was there, Colonel Dudas, Lieutenant Lemley … Last year was pretty incredible. You could see the fire from space.

  188. allocated money for 12 judges

    Thanks Prof. Crouch – good to know. Paints Radar’s earlier comments in a slightly different light.

  189. reporting these guys as factually “non-controversial” is just not quite accurate.

    Someone on the Internets disagrees with Dennis!

  190. Good thing is that CAFC budget already has allocated money for 12 judges.  With only 10 there now, they may also be well under budget and thus not directly impacted by the sequester. 

  191. Aside from the merits of the individuals being processed, doesn’t the sequester affect any of this? I recognize that the judges do not make a king’s ransom, but at this point it’s a zero sum game, right?

  192. The requirement should be registered patent attorney with at least 5 years private practice, preferably largely as a prosecutor.

    That takes care of all of it.

    Dist. court experience is completely unnecessary for an appellate judge.

  193. Dennis, these guys are far from “non-controversial”. You usually provide great data with some commentary that is clearly opinion, but reporting these guys as factually “non-controversial” is just not quite accurate. Please stop with the “there is nothing to see here, move along” campaign. The less than accurate statements in a group of cynics is like moths to a flame; it just draws more attention.

  194. And, plurality, you get these people from the insular environment of the PTO. They have no clue how patents work in the economy. None. Total ignorance. Their life has been to please people within the monster federal government.

    Be real. Just read some of Newman’s opinions. She practiced patent law. That is what we want. listen to Chen speak. It is obvious that he has formed views to please his masters that have gotten him the appointment.

  195. I remember thinking to myself about two years ago that Chen was the worst anti-patent and most ignorant person I’d ever hear from the solicitor’s office.

  196. And, I think that people have listened to Chen in oral arguments hear an ignorant anti patent slave that has the potential of creating many years of psychotic case law that has no bearing on real patent law.

    But, then how could any of these people even know what patent law is when they have never practiced patent law.

  197. His experience is what? A government attorney? You think that someone working in the solicitor’s office gains patent law experience? Sorry no they don’t.

    I think he was an associate for two years before jumping on the government gravy train. Chen epitomizes what we want to avoid. We want REAL patent attorneys. People that have done real litigation. Written real patents. Helped protect real products with real corporations. Written real licensing agreements.

    Plurality: have you ever been to the solicitor’s office at the PTO? Chen is a product of environment that is not hardened by reality. How many patents has he written? How many Markman hearings has he run? How many claim charts has he written?

    Let’s be clear: working in the government is not patent law anymore than working at the dep. of commerce is business experience.

  198. Your views on the current state of the AIPLA are accurate and on point. As a member for over 30 years, I’m likely to let my AIPLA membership expire. Sad to say that as the AIPLA (ALPA when I joined) was very beneficial in the early part of my career but no longer is. In particular, the AIPLA doesn’t do much any more for small boutique IP firms or solo IP practitioners like me.

  199. How can we get started? Requiring the judges to be experienced patent attorneys would solve the problem.

    I just don’t see how you can appoint a judge to the Fed. Cir. who does not have a science background and has never practiced patent law. CJ Rader has made great strides in understanding patents and science, but still it is a struggle for him.

    J. Newman just blows the other judges away in the quality of her opinions and it is simply because she put the time in learning science and learning patent law.

    That really is all there is to it.

  200. Amend the CAFC Act. I was part of the group in 1982 that got the Court organized in order to stop the anti-– patent trend among the federal district and circuit courts.

    Our version sailed through Congress but, at the last moment, the D. C. Bar stripped the provision
    requiring the judges to be experienced patent lawyers.

    The AIPLA Does not reflect the needs of the patent system. It is controlled by large corporations, many of whom do not like the patent system. It also grants membership to lawyers who have no experience in patent law and, of course, lawyers who specialize in copyright and trademark law as well as characters who mislead clients by calling themselves “IP” specialists.

    We should reorganize the APLA. Remember that?

  201. And, Moore who actually has a science background and more of a patent law background than these three could not understand or read a patent. That was evident in the oral hearings.

    So, we are appointing three more “judges” that can’t read a patent. Can’t understand science. Brilliant.

  202. On another note: I am considering filing a complaint against Lemley with the Faculty Senate at Stanford. I think that his assertions in his paper on copyright and software amount to clear academic dishonesty. I think it is on the same level as making up data.

    I think we may be able to start policing these vanity press anti-patent liars by appealing to a broader academic community that may recognize a liar when they see one.

  203. And, I’d could live with an anti-patent person that actually understands patent law and patents, innovation, and industry.

    But, one of these ignorant —- the best they can say about Richard Taranto is that he taught patent law at Harvard. That is a joke. I could have taught a writing class at a tier one law school. Does that make me qualified to run the writing program at Yale? Obama you have failed. I voted for you twice and this is the pay back.

  204. And, just to clear:

    10 years experience practicing patent law.

    science background.

    dist. ct. experience.

    That is what he should have gone for.

  205. I mean really. 3!!!!!!!!!!! Obama could have reshaped the court with science experience and real patent law experience. Instead dweebs and anti-patent gov. low life.

  206. That is the problem with Obama. He thinks that patents are causing trouble so he is appointing people that are going to get tough on patents.

    So, we are going to get ignorant judges who have not had the experience in patent law to understand it. Who probably can’t even read a patent or at least won’t understand the patent. And, have never done 100 other things that patent attorneys have learned to do that you need to understand to understand patent law.

    It is enough to make one want to give up.

  207. What a terrible judge this person is going to make. He “taught” patent law at Harvard. That is his qualifications? Just unbelievable how little respect patent law receives.

    I was thinking about the oral arguments where Moore was talking about the specification. What struck me was how utterly clueless she was at understanding a patent specification. How is this Richard Taranto going to be any better?

    It is offence to justice to appoint Richard Taranto to the federal circuit. We need people with science backgrounds that have practiced patent law.

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