Debate on Joint/Divided Infringement Doctrine Continues

by Dennis Crouch

Move, Inc. v. Real Estate Alliance (REAL) (Fed. Cir. 2013)

REAL owns U.S. Patent No. 5,032,989 that covers a computerized map-based system for locating available real estate.  Although the patent is now expired, MOVE filed a declaratory judgment action to stop REAL from pursuing back-damages.

Claim 1 appears to read on most online real-estate systems.  The method includes the following steps:

(a) creating a database of the available real estate properties;
(b) displaying a map of a desired geographic area;
(c) selecting a first area having boundaries within the geographic area;
(d) zooming in on the first area of the displayed map to about the boundaries of the first area to display a higher level of detail than the displayed map;
(e) displaying the first zoomed area;
(f) selecting a second area having boundaries within the first zoomed area;
(g) displaying the second area and a plurality of points within the second area, each point representing the appropriate geographic location of an available real estate property; and
(h) identifying available real estate properties within the database which are located within the second area.

REAL’s problem, of course, is on the question of divided infringement. The accused infringers “create the database” while independent users select the various areas.  In that situation, neither party could be considered a “direct infringer” under the traditional Federal Circuit rule that direct infringement occurs only when a single actor performs each and every element of an asserted claim. 

Of course the law has changed somewhat since the district court’s January 2012 dismissal of the case.  In August 2012, the Federal Circuit issued its en banc rulings in the parallel cases of Akamai Tech. v. Limelight Networks, 692 F.3d 1301 (Fed. Cir. 2012) and Mckesson Tech. v. Epic Systems (Fed. Cir. 2012). In those cases, the court expanded the potential for liability for so-called divided-infringement under the rubric of inducement. In particular, to prove inducement liability, “it is no longer necessary to prove that all the steps were committed by a single entity."

On appeal, the Federal Circuit agreed that there is no direct infringement. “If the performance of those steps is not attributable to Move, then Move cannot be directly liable for infringing REAL’s asserted method claim.”  However, the court remanded on the question of inducement:

We conclude that the district court legally erred by not analyzing inducement under 35 U.S.C. § 271(b). Recently, sitting en banc in Akamai, we clarified the law on inducement. We explained that all the steps of a claimed method must be performed in order to find induced infringement, but that it is not necessary to prove that all the steps were committed by a single entity. In so holding, we overruled the holding in BMC that in order for a party to be liable for induced infringement, some other entity must be liable for direct infringement.

On remand, REAL may be able to prove that it induced users to act in a way that completed all of the claimed step.  However, inducement raises some difficulty because it also requires that the accused inducer have knowledge of the patent (or be willfully blind) and have intended for their actions to induce the infringement.
 
In the background, both Akamai and Epic Systems have filed pending petitions for Supreme Court review. Epic’s question is most pointed: “Whether a defendant may be held liable for inducing infringement of a patent that no one is liable for infringing.” Akamai has asked the Supreme Court to push the envelope on direct infringement by holding that concerted action by two parties can result in direct infringement liability.  Those cases are at the petitions stage and briefing is ongoing.
In the past, I have suggested that liability should persist based upon infringement by conspiracy. 

117 thoughts on “Debate on Joint/Divided Infringement Doctrine Continues

  1. Anon, on inventors, the last word on this by the Supreme Court that I can recall, other than on priority of invention, was in Pennock.

    The last they opined on 101 and the '52 Act was in Graham. They did not address there the effect of the revision of 282.

  2. you continue to think that Congress can constitutionally authorize the grant of patents to people who are not inventors, and on things that are not inventions or discoveries.

    You persist in creating more strawmen on things I have never said, all the while avoiding the actual language used by the Supreme Court.

    Ned – what is the language the Court actually uses?

    Why do you avoid this perfectly valid point?

    Intellectual honesty demands accountability in your position.

  3. Anon, patents on commerce were granted in England and were known in the US as the odious monopolies. They were a cause of the revolution. Think Boston Tea Party.

    Anon, you continue to think that Congress can constitutionally authorize the grant of patents to people who are not inventors, and on things that are not inventions or discoveries.

    The Supreme Court will not so interpret the acts of Congress unless there is no plausible construction that would be constitutional.

    But one thing seems clear to me is that Congress cannot withdraw from the Supreme Court the ultimate authority to decide who is an inventor and what is an invention under the Constitution.

  4. If Congress authorized patents on existing commerce

    I do not understand this strawman, or the point you are attempting to knock down with it.

    You do recognize the explicit point of English law that I reference, do you not?

    meaning the interpretation of what is a patentable invention and discovery is ultimately constitutional in nature.

    That would be clear legal error as this is clearly a statutory question. The constitution gives the keys to the realm to Congress, and those keys include the parameters of 100 and 101. You (once again) are ignoring the very words used by the Supreme Court in exactly where they place their authority – the implicit words of Congress and 101. You have no authority to place your supposition on – none whatsoever, whereas I use the very words used by the body (Supreme Court) that you refuse to recognize or acknowledge.

    I daresay in comparing our positions, that yours is utterly baseless. Without you taking seriously (and with a modicum of intellectual honesty) the points I have made, I do not see any basis for a discussion on the matter between us.

    Your move.

  5. anon, your idea that someone besides the Supreme Court has the final say on patentable subject matter is what is interesting here. If Congress authorized patents on existing commerce as did England once, I would think the Supremes would hold such an act unconstitutional.

    Now that I said that, the idea that Section 282 removes from the courts the consideration of patentable subject matter is probably not going to fly very far because if Section 282 actually were very clear on that topic, the Supreme Court just might hold it to be unconstitutional — meaning the interpretation of what is a patentable invention and discovery is ultimately constitutional in nature.

    Congress can authorize the issuance of patents within the grant of the Constitutional. But it cannot authorize the issuance of patents beyond that grant.

  6. What’s really embarrassing is the little circle of mutineers that keep on butchering the law to front their agenda.

  7. MM, despite the remonstrations of some about your so-called obsession, I think you and I would agree that the PTO continues to issue patents where the only difference between the claims and the prior art lies information.

    They continue to issue Beauregard claims, just for example.

    We have discussed Rich and his somewhat open defiance of the Supreme Court on patentable subject matter. We should also discuss the PTO as well. Is it the Director’s fault, or is it the rank and file who defy the Supreme Court?

    Who, for example, made the decision to issue Beauregard claims. Who made the decision to issue claims to business methods where a computer was claimed to carry out the method?

    I recall a solicitor who said at an AIPLA meeting that the PTO owed a duty to raise new issues of patentability to the courts for their resolution rather that allow doubtful patents to issue. Do such solicitors exist today?

    The last time I think the PTO acted with some courage, in my opinion, is when it took Bilski up. Perhaps the PTO had by then heard enough complaints that State Street Bank (Rich, J.) was just plain wrong and needed to be overturned.

    Anyhow, keep of the good work of spotting the trash that PTO issues. They really should be embarrassed.

  8. Benefits? The one who does the last step has the finished product. If he uses it or sells it, he infringes. Are you going to say that he does not infringe when he makes it?

  9. Malcolm, innocent infringement applies to §§271 (b) and (c). It does not apply to direct infringement. (This is why I have so much difficulty with the theories of infringement involving the planting of patented seeds. It seems that the courts are developing a theory of mens rea for direct infringement which I think is alien to American patent law.)

    I think you have to reread the Lilly case one more time because it dealt with intermediate products where the intermediate products at more than one substantial noninfringing use. This is the same issue involved a contributory infringement where as an element of proof one has to prove that there is no substantial noninfringing use.

    This says nothing about a product of a patented process that is a final product.

    Moreover there is a recent en banc case of the Federal Circuit that held that the importation of an intermediate product for use in finishing the process was an infringement. I can't think of the case name right off the top of my head, but I will look it up if you ask me too. In this case, the most critical steps of the process were conducted outside the United States by others. The process was completed in United States resulting in a product that infringed under 271(g). The Federal Circuit assumed this to be direct infringement, and upheld importation of the intermediate as being infringement as well.

    Thus we have competent authority, even en banc authority, that holds that where a process results in a product that is infringement under 271(g), people who produce such a product directly infringe even if they did not perform all the steps.

  10. Ned: the point here with conspiracy is to rope into direct infringement more than just the one who does the final step.

    Agreed.

    so long as we do not conflate conspiracy to infringe with conspiracy to do the acts that are infringement, I will agree. There is no mens rea requirement in direct infringement. One must do the acts.

    Not sure if I agree with this. I see the “conspiracy infringement” as a special case of induced infringement, which does have a knowledge requirement. The mere agreement between two or more parties to carry out separate steps in a lengthy manufacturing process, for a example, would not be enough to find the actors guilty of conspiracy infringement, even if between them all the steps are in fact carried out. I think they need to be aware of the infringement to be found guilty of conspiracy infringement (if such a thing exists). I think also there might need to be a showing that the benefits of the conspiracy are shared (tho not necessarily equally) between the conspirators.

  11. anon, I quote from the case:

    “As appellees concede, the invention of only a single lens patent is utilized in making each blank and finishing it as a lens. We therefore put to one side questions which might arise if the finisher of a particular lens blank utilized the invention of some patent other than the patent which was practiced in part by the manufacture of the blank. And we assume for present purposes, without deciding, that the patent is not fully practiced until the finishing licensee has ground and polished the blank so that it will 249*249 serve its purpose as a lens. But merely because the licensee takes the final step in the manufacture of the patented product, by doing work on the blank which he has purchased from the patentee’s licensee, it does not follow that the patentee can control the price at which the finished lens is sold.

    Notwithstanding the assumption which we have made as to the scope of the patent, each blank, as appellees insist, embodies essential features of the patented device and is without utility until it is ground and polished as the finished lens of the patent. We may assume also, as appellees contend, that sale of the blanks by an unlicensed manufacturer to an unlicensed finisher for their completion would constitute contributory infringement by the seller.”

  12. EG, do you really not consider the making, selling and using of the product of patented process not to be direct infringement? I asked you to read §271(g)

  13. We’re not talking about intermediate products that have substantial noninfringing uses at all.

    Agreed. See my 11:26 comment.

  14. §271 (g): Whoever without authority imports into the United States or offers to sell, sells, or uses within the United States a product which is made by a process patented in the United States shall be liable as an infringer.

    Ned, the caveat regarding “can be made by another process” applies to importation of drug compositions, per the Lilly case.

    As for the other part of 271(g), it surely does not reach to products made by non-infringing processes. Such a non-infringing process would include, among many others, a process consisting of only a subset of the recited steps in the claim, even where that process is the last step in the process. I’ll grant you this much: as far as I know there isn’t a case directly on point directly addressing this issue. We can discuss why that might be, if you like.

    As a hypothetical, I’d offer the following scenario for you to ponder. Imagine a patented process for making a small, sharp stick. The process involves five steps (written with comprising language). Steps 1-3 involve (i) cutting a tree branch, (ii) putting it into a special patented mill machine which removes the bark, (iii) soaking the branch in a special formula for at least three years (iv) breaking or cutting branches into pieces less than a foot in length, and (v) sharpening one end of the resulting piece of wood to a point.

    Lumber mill engages in (i)-(iii). They sell the wood to people without restriction. Mostly it’s furniture makers. Johnny Angel is walking buy the lumber yard and he finds a stray soaked branch made by process (i)-(iii) that fell off a truck. He uses it as a walking stick until he gets to the river where he fishes ever day. While fishing, he breaks the piece into a short 10 inch stick and then whittles one end to a point. Eventually he makes a toothpick which he uses to extract some beef jerky from his incisors.

    You think you can convince a judge to find Johnny guilty of infringement under 271(g)? That’s not going to happen.

  15. Translate?

    LOL – any 1L’s out there that feel up to the task of explaining basic law to Malcolm? Please note that you will be insulted for your efforts.

  16. your position needs a huge caveat

    Ned, I hope you realize that your posts today (and their clarification) is exactly the huge caveat that I asked for yesterday.

    Thanks.

  17. Anon, the Supreme Court in Univis lens assumed that without the authorization of the patentee the actions of the lens finishers on lens blanks produced according to the patented process would be an infringement.

  18. (sigh) – the imprimatur of the SC is not required Ned. We’ve covered this before.

    There have been many many many such patents throughout the history of the Office. Prof. Crouch had a guest writer on the very topic. I have posted links previously.

    It’s like you insist on not understanding in order to ride the very same merry-go-round, over and over and over again, hoping that this time it takes you somewhere else.

  19. Anon, I that when a product can be produced by another process, the product itself does not prove infringement. Proof of infringement requires a demonstration that every element of the process was used to make the particular product. But that is again the burden of the patentee and he has to carry that burden in order to prove infringement.

  20. you are assuming exhaustion. That is your problem here.

    In the Univis case you are thinking that I am assuming exhasution?

    Really?

    (sigh) yet another reason that your views on Supreme Court case law are askew.

    Ned – you need to go back and read the case for the first time (without your preconceptions that are distorting what you are reading).

  21. Anon, for the life of me I do not understand how you can say that a process that does not produce anything physical is eligible. Not in the entire history of the Supreme Court has the Supreme Court ever authorized such a process to be patented.

    If you disagree with this, please cite the case.

  22. Anon again, exhaustion only takes place when the acts performed would be an infringement if not authorized by the patentee. The Supreme Court said that.

    Stop talking as if we were talking about authorized actions by the patentee. We are not. We are talking here about actions of third parties and whether they would be an infringement. The process claims required producing lenses blanks and then finishing them according to the prescription of the patient. These acts were performed by two different and independent parties. The Supreme Court considered these acts to be infringement. It is clear they did. They further consider the actions of the producers of lens blanks to be contributory infringement. They further considered the actions of the lens finishers to be direct infringement.

  23. point of departure over the prior art

    aka

    point of novelty

    aka

    Canard.

    Your previous points have bene recognized – and dismissed.

    Note too, that I have previously challenged you – and you have ignored the challenge – to the fact that you misclassify software as mere displaying, rather than the including in your considerations the appropriate functional relationships. You have never squarely addressed this and we both know why: your third party influenced posting prevent you from a full and intellectually honest discussion. I firmly believe that THAT is why the terms of use forbid that.

  24. anon, you are assuming exhaustion. That is your problem here.

    Take the actions of lens producers and lens finishers where neither is authorized by the patentee to do infringing acts. The lens producers partially practice the patented method, and provide lens blanks to finishers who complete the last step in the patented process.

    In your view, is there infringement?

    Clearly there was infringement in the minds of the Supreme Court. Because the Supreme Court requires direct infringement whether to be contributory infringement, who is the direct infringer?

  25. Thanks for the clarification. I understand now that you do mean to indicate that the product does have a one-to-one condition with the patented process.

    If you can show that, then I agree that you have a case for infringement. It might be a trick to show that though, right? Especially for things effectively like products that are generated by non-patented processes. For such products, clearly you do not have a case for infringement.

    By the way, this is an important element as to why the Supreme Court’s products of nature exception rules out patents for the product, while still allowing you a patent on the process (bonus hand-holding for Malcolm).

  26. Anon, I really don't know what you're driving at with respect to your "angle." The point I am making and have made is that point of departure over the prior art cannot reside in information content. One can patent a label, but one cannot be patented label with different information.

    Thus if the only departure over the prior art in the particular case at bar was that information displayed, the claims could not define over the prior art. The real question is whether the prior art showed displaying the contents of the database on a map.

  27. how can you patent a process that does not produce anything?

    That’s the wrong question to ask precisely because it is the wrong focus to have.

    Ned, where in the statues do you see the process category made subordinate to the other categories?

    Then realize, that there are plenty of processes that do not produce anything physical.

    Your hang-up is on the result of a process ITSELF being something of one of the remaining categories of patent eligibility.

    BUT THAT’S NOT WHAT THE LAW STATES.

  28. Ned, do some basics with the facts in relation to: who
    what
    when

    Then look at what the Court actually said. Exactly why (and when) did exhaustion take place. Can you even have infringement of something WHEN (or more to the point, AFTER) a patent right has been exhausted?

  29. see the problem you are having with Univis… Without infringement there is no possibility of exhaustion.

    Ned. Quite the contrary, I am having no problem. You are having an immemse problem on some basic “who-what-when” fact analysis.

    The final step people most definitely would have NOT been the direct infringers. Period. Clearly, you are absolutely wrong on this point. Your view of Supreme Court law is (once again) askew. This is not the first time. It will not be the last time.

  30. Malcolm, so long as we do not conflate conspiracy to infringe with conspiracy to do the acts that are infringement, I will agree. There is no mens rea requirement in direct infringement. One must do the acts. That is the only question.

  31. Malcolm, I have now read the cited American Cyanamid case. The question on the table in that case was whether an intermediate product of a patented process was infringement. In particular question was whether the intermediate product that was imported in that case was an infringement when it had substantial noninfringing uses.

    Might take on the particular facts in this case is that if the intermediate product has substantial noninfringing uses, just as in the case of contributory infringement, there is no infringement. That was a situation in this case, the intermediate product had a substantial noninfringing use.

    How that relates to the question on the table of the final product is not clear. The proposition on the table is that the product of a patented process is infringement. We're not talking about intermediate products that have substantial noninfringing uses at all.

  32. , your proposition that all steps are carried out does not reach.

    Does not reach what? Can someone please translate to English?

    Conspiracy is an inchoate crime and even though there is an overt act requirement (typically),

    Right, and in the case of patent infringement, all the steps would need to be carried out by the conspirators.

    Maybe Dennis has a different view. If so, he’s free to elaborate.

  33. Malcolm, the statute does not read as you say. It implies to all acts of infringement within the United States. I will look up that case because I find it incredulous that the court would hold that a product made by patented process is not an infringement the products could be made by another process. That is decidedly contrary to statute as written and the intent of the law as drafted and passed by Congress.

    §271 (g): Whoever without authority imports into the United States or offers to sell, sells, or uses within the United States a product which is made by a process patented in the United States shall be liable as an infringer.

  34. Just saying, a data structure is patent eligible because of the structure not because of the data content. I urge you to reread In re Lowry for better understanding of that case.

  35. Anon, I said the product of a patented process is an infringement. I did not say that similar products, even identical, not made by the patented process are infringements absence a separate print patent on the product.

  36. Anon, I see the problem you are having with Univis. Let me explain this much: the Supreme Court was operating under the understanding that the acts involved by the lens makers and lens finishers were infringements absence some involvement by the patentee. Without infringement there is no possibility of exhaustion.

    Once the patentee or his licensee sold the lens blanks embodying the essential features of the invention, there was exhaustion even though the patented process under consideration was not finished or completed until the final step by the lens finishers. Even though the lens finishers final step was conventional, they still would have infringed had the lens blanks they were finishing not been purchased from the patentee or his authorized licensee.

    Clearly, the Supreme Court was of the opinion that the actions of the lens finishers, albeit conventional, was an infringement – a direct infringement. The actions of the lens blanks manufacturers required a license because in the absence of the license their actions were contributory infringement.

    Univis Lens stands for the proposition that when all the steps of the patented process are completed, the process produces an infringing lens and all the parties involved in the process infringe at various levels. The finisher, albeit doing a conventional step, does so on the partially completed lenses and is a direct infringer. The lens blanks manufacturers contributorily infringe.

    Thus the Federal Circuit opinion that one cannot have multiparty infringement of a process patent is complete nonsense. It flies in the face of controlling Supreme Court case law.

  37. Anon, I think I replied to this already, but is clear Univis stood for the proposition that all parties involved from the original producer of the lens blanks to the finisher was thought to be infringers by the Supreme Court and needed a license if there was no exhaustion involved. That was the whole premise of the case. They did not rest their opinion on lack of infringement. Infringement was required before exhaustion ever took place. For example, if the patentee were selling and unpatented component that had nothing to do with the invention to the lens finishers, let us say what he was selling was grinding fluid and not the partially completed lens blanks, there would be no exhaustion.

    I can't for the life of me understand how there can be exhaustion if there is no infringement. Please explain this to me if you can.

  38. Anon, I simply urge you to read §271(g). The product of a patented process is an infringement. Doesn't make any difference whether the product is old are not. That is irrelevant.

  39. Conspiracy to infringe a patent requires that all steps in the claimed process are carried out by the conspirators, acting in concert.

    (sigh) well, it lasted for a post. Conspiracy is an inchoate crime and even though there is an overt act requirement (typically), Malcolm, your proposition that all steps are carried out does not reach.

  40. Atta boy to Malcolm – including a case cite (I haven’t checked it put, but it sure does look purty).

  41. Conspiracy does not require actual infringement. Actual infringement is a must.

    Conspiracy to infringe a patent requires that all steps in the claimed process are carried out by the conspirators, acting in concert.

    Can an officer of a corporation wishing to avoid infringement create a second corporation solely for the purposes of performing a step in a patented claim and thereby avoid infringement? What would be the point of allowing that happen?

  42. The product of a patented process is covered by 271 (G)

    271(g) applies only to imported products made by a patented process and, if the product is a drug (at least), it doesn’t apply if the drug could be made by other non-patented processes (Eli Lilly v. American Cyanamid CAFC 1996).

    I’m not sure why you insist on dragging this topic (inducement of infringement of a claimed process) into the weeds.

  43. Printed matter Doctrine.

    What is being displayed is a visual representation of a data structure. Printed matter doctrine does not apply to data structures. See In re Lowry.

    At least Ned tried …. tried and failed … but at least he tried.

  44. There does not need to be an exception for old products.

    You are missing the point that “a” product does not have to correlate to “a” process. If another process exists for making the product, I can import that product to my heart’s content without infringing the (non-used second patented) process.

    Your position requires a one-to-one condition which I have provided a defeating example to.

    Your wanting me to read 271(g) is misinformed. You have made an assumption that does not carry universally.

  45. Clearly the finishing opticians were not infringers because the non-final-step-completed lens sales exhausted the patent rights.

    The lesson in Univis Lens was about post-sale control. There clearly was a “last-step” that could be performed by anyone without that anyone being an infringer.

    I am not saying this is universally true – but my exception disproves your point.

  46. Why do you say that?  Clearly the finishing opticians were thought to be infringers when they made the final lenses from partially completed lenses not made or authorized by the patented.

    Sent from iPhone

  47. All they have to do is finish the product.

    That is most definitely not the lesson of Univis Lens.

  48. Not if that product is achievable through nonpatented means.

    Remember, a legitimate process patent can be achieved for a product that is old. Your position falls apart if there is more than one way to produce the product.

  49. I don't think that 271 (g) provides an exception for so-called commodity items. The product of a patented process is infringement to the extent that User or seller or importer infringes.  

    Sent from iPhone

  50. Yes.

    But it has always been the law that making a patented product Does not require the maker to produce all the components,  et cetera.   All they have to do is finish the product.

    Sent from iPhone

  51. somehow believes that it doesn’t matter as long as the mortgage is paid for and they are well feed.

    Maslow may have something to say about that. (Not everyone is your enemy NWPA)

  52. And, you sock puppet, represent the bloated america. The middle class that watches Fox News and drinks a few beers and is disinterested and somehow believes that it doesn’t matter as long as the mortgage is paid for and they are well feed.

  53. Well, sock puppet, I take the opposite view of MM, but I get worked up over 101. I see all of these issues as related. I think that the zeitgeist is in the 101 argument debates.

    We see people in positions of authority (like Lemley who is a professor) knowingly lie in published papers in law journals to get his way. We see professors on this blog make statements like “but that is what you want” in regards to an intentional lie in a journal paper. We see the motives of some of these people is financial.

    We see people that are belief driven that believe the end justifies the means. People that are publicity driven that believe the end justifies the means. Greedy people that will do anything to get theirs.

    All of this plays out in these 101 arguments. We also see medieval arguments being used to try to hoodwink the uneducated. We see spiritual beliefs blind some to information processing. We see the Fed. Cir. being taken over by inexperienced policy wonks or worse. We see Obama’s view of patents that is obviously being feed to him by advisors with slick sound bites that let you know he has no idea what he is talking about.

    We see paid bloggers that endless spew out the same arguments and could and should be replaced with AI programs. (This is Citizen’s United with commercials.)

    So, you see, it is nothing and everything in the grand scheme of things. The problems with 101 illustrate all the problems we have in this country.

    Just open your eyes…

  54. I didn’t see you point out the prior art … patent are assumed to be valid … your burden.

    That would take effort and actual legal analysis. Not something that you often see from Malcolm (and see even less being done correctly).

    But he can spin facts and misrepresent the law while [shrugging] and standing by. I bet he will even throw in an unearned insult or even one of his famous vacuous *clicks* for you.

  55. Typical MM legal analysis

    Yup – vacuous and misleading. You can bet he will simply [shrug] and stand by.

  56. “It’s called obviousness aka 35 USC”

    haha … saying something is “obvious” isn’t a 103 analysis … what a tool.

    “Are you going to tell me that there is no prior art?”
    I didn’t see you point out the prior art … patent are assumed to be valid … your burden.

    “But don’t tell me I’m not ‘discussing the law’ when I point out that this patent should never have been granted.”
    No … you are not discussing the law. You are making the same whining policy arguments you’ve been making over and over and over again for years. Anybody can make policy arguments and not know a lick about the law. You have shown that time and time again.

    Regardless … my comments about you still stand. Anybody that gets worked up as much as you has issues. Seek help.

  57. When a process produces nothing tangible, is it even 101 eligible?

    LOL – the Justice Story in England there are no process patents bias shows. Attempting to denigrate the process category by making it subservient to the other patent eligible categories is not in 101 or 100.

  58. I’m pretty sure your position needs a huge caveat about the type of items involved (as in, are commodity items involved that have other market uses).

  59. “The sky is blue.”

    Typical MM legal analysis –> completely lacking. I’m glad to see you are upholding your own standards. Please note that I didn’t ask you that question as I did not expect a real response. Perhaps Ned will be up for the task that you are so incapable of performing.

  60. Clearly, the law regarding “make” does not require that every step to make the product be by one party. Just the last.

    Is that the lesson from Univis Lens?

  61. You have to asK yourself whether the law regarding process claims should be different when the process produces a new product or machine and when the process produces northing tangible. Clearly, the law regarding "make" does not require that every step to make the product be by one party. Just the last.

    When a process produces nothing tangible, is it even 101 eligible?

    Parties performing the other steps contribute to the infringement.

    But there is a direct infringer.

  62. Think “make.”

    Huh? I’m talking about process claims, not composition claims. You know, process claims like the brilliant method of looking at real estate availability with a computer that Dennis posted.

  63. MM, the product of a patented process is a patented product.

    As a general proposition, that is absolutely false.

    It may be true some of the time but it is certainly not necessarily true. It may even be the rare case where it’s true.

    Given that fact, I’m not sure how or whether to address the rest of your comment.

  64. Case cite please.

    “The sky is blue.”

    “Case cite please.”

    “The moon isn’t made of green cheese.”

    “Case cite plase.”

    etc.

  65. You can get riled up over abortion/woman’s right to choose; capital punishment; wars in the middle east; gun violence.

    LOL! Thanks for letting me know what I’m allowed to get riled up about.

    you go ballistic year after year after year about an economic interest

    Guns aren’t an economic interest? War isn’t an economic interest? Freedom to control when you reproduce isn’t an economic interest? My tax dollars being used to execute people isn’t an economic interest?

    Most come here to discuss the law.

    I did discuss the law. It’s called obviousness aka 35 USC 103. Go ahead and defend the patent. Are you going to tell me that there is no prior art? Please do. That’s the usual starting point for folks with your sensitivities. Go ahead and defend it. Read the prosecution history for starters and let me know what’s in the allegedly closest prior art and how that art was distinguished. Go ahead. But don’t tell me I’m not “discussing the law” when I point out that this patent should never have been granted.

  66. “I guess that means showing the addresses or something distinct from the “points” that are shown in the previous step.”

    Nah, it is just “looking” again.

  67. MM, the product of a patented process is a patented product. He who makes the patented product directly infringes. The person who performs the last step in making a patented product is liable as a direct infringer under 271(a).

  68. M M, agreed. The relevant inquiry is whether the prior art displayed associated data on a map. The type of data displayed is legally irrelevant.

  69. On “direct” infringement as defined by 35 USC 271(a), you are correct: only one actor allowed. What the Akamai-McKesson en banc decision did was to define “indirect” infringement (under 35 USC 271(b) or (c)) as requiring at least a completed infringement, e.g., all steps of the claimed method be at least performed, even if more than one actor is involved. As Judge Linn pointed out in his dissent in the Akamai-McKesson en banc decision, that view is problematic in view of certain prior Federal Circuit cases such as Joy Technologies, and is certainly problematic in view of one prong of the Supreme Court’s 1972 decision in Deepsouth Packing Co. v. Laitram Corp.

  70. It is both hilarious and sad to see you get worked up over these patents. How many times have gone into an apoplectic fit over these types of patents on this blog? 50 times? 100 times? 500 times?

    You really must be disturbed.

    Most come here to discuss the law. You come here to bit ch and moan and bit ch and moan and bit ch and moan. You have some deep-seated hat red that you cannot satiate.

    If you were my friend in real life and you shared with me your writings on this blog, I would serious recommend that you seek counseling. That much hat red is not a good thing … particularly at something as inconsequential (in the grand scheme of things) as what is patentable and what is not.

    You can get riled up over abortion/woman’s right to choose; capital punishment; wars in the middle east; gun violence. However, when you go ballistic year after year after year about an economic interest (i.e., a patent) on this blog, you’ve got some serious issues to sort out.

    I suspect that I’m not the first person who has told you this (anonymously or not). Perhaps one day it’ll sink in.

  71. And please don’t cite that exhaustion case again.

    LOL – you mean the one wherein the person actually doing the last step of lens manufacturing is not the one that would be liable?

  72. direct infringement is a strict liability tort.

    So?

    Why should a conspiracy by two parties to infringe a patent be treated differently from direct infringement? If the law can treat a corporation with thousands of employees like a single individual for purposes of direct infringement, then why not treat two entities knowingly acting in concert as equal, direct infringers? From a policy standpoint, why make a distinction between those two situations?

  73. I think the person who does the last step is liable. Period.

    Even if that’s the only step I take and I know absolutely nothing about the patent?

    That’s ridiculous.

    And please don’t cite that exhaustion case again.

  74. Dennis Crouch: conspiracy?

    To directly infringe?

    I think direct infringement is a strict liability tort. No intent is or should be required. Did they jointly infringe on did they not?

    I think the person who does the last step is liable. Period.

  75. you really still don’t understand why claims liked these are perfectly fine MM

    Please tell everyone why obvious computer-implemented j–k that is identical to previous computer-implemented j–k except for reciting (i) “new” data content; (ii) a “new” device or location for carrying out the steps; and/or (iii) a “new” recipient/target for the processed information is “perfectly fine.”

    I’m all ears. Impress me with your deep knowledge of the patent law in this area where entitled children so love to play pattycake with no-nothing Examiners who always seem to have been born yesterday.

  76. Though we’ve been in the 21st Century for more than a decade now, you really still don’t understand why claims liked these are perfectly fine MM?

    Really?

  77. So says the person that has never invented anything in his life.

    Actually I think he just invented the double-zoom on a display of available real estate.

  78. Of course, this claim would absolutely fail my 101 utility formulation for lack of substantiality.

    SS&C, baby!

  79. “Zooming TWICE. That’s got to be the brilliant part here”

    So says the person that has never invented anything in his life. But the real question is, does any invention have to be “brilliant” in order to qualify for a patent? Oh and who decides what “brilliant” even means?

  80. I guess that means showing the addresses or something distinct from the “points” that are shown in the previous step.

    Huh, you’re right. I guess displaying the second area (which is defined as being within the first area) is somehow distinct from displaying the first area, too.

    So basically it’s looking at a map, choosing a part of the map you’re interested in, and looking at some points that are inside a part of the map that’s inside the part of the map you’re looking at.

    Which, I suppose, is completely different from a realtor asking you “What city are you looking to buy in? Okay, any particular part of that city? Let me check the map… Here are the houses I have listed there.” Because it recites a compu… oh, wait. It doesn’t.

  81. I don’t think the second selected area needs to be zoomed. After you selected the second selected area within the first zoom, all that needs to happen is that area is displayed (zoomed or not) with a “a plurality of points within the second area” also shown, where “each point represents the appropriate geographic location of an available real estate property.”

    And the last step is “identifying available real estate properties within the database which are located within the second area.” I guess that means showing the addresses or something distinct from the “points” that are shown in the previous step.

    This is nothing more than what real estate and rental agents have been doing forever with some “cutting edge” techno-hoo-haw thrown in to make it sound like an “invention.” And what do you know? Our awesome PTO fell for it and somehow this g-r-bage wasn’t tanked on summary judgment.

    Heckuva job, all the way around.

  82. I think you’re exactly right – inducement is a non-starter for at least two reasons. First, just knowing that double-zooming might happen is not enough – they have to do something to encourage it to happen. Second, I think they’d have to come up with evidence as to the extent of the infringement, i.e., a convincing approach to proving how many people did the double-zooming, or how many times it was done. I suppose it’s conceivable that the defendant saved every command that the server received from client browsers and that you could reconstruct the double-zooming events from that, but holy cow…

  83. Except … ZOOMING!!!!!

    Zooming TWICE. That’s got to be the brilliant part here.

    Now, the real question is whether they induce the independent users to select an area and zoom – twice. I guess they’d have to tell people to zoom once to an area that’s not quite as detailed as the one they’re interested in, and then on to the view they actually want. And people would have to actually do that, instead of just zooming to what they wanted to see in the first place.

  84. Except … ZOOMING!!!!!

    I think these guys invented zooming. Yeah, that must be it. Zooming in the real estate context. Because nobody ever looked closely at a map and then picked up a map with higher resolution before computers.

    Man, these software guys are really the sharpest knives in the drawer. How do they do it?

  85. Looks to me like they just automated putting markers representing properties on a map and then looking at it.

  86. DC liability should persist based upon infringement by conspiracy.

    Agreed.

    Epic’s question is most pointed: “Whether a defendant may be held liable for inducing infringement of a patent that no one is liable for infringing.”

    It’s “pointed” but also a bit circular. Mom wants to employ a patented method comprising step A and step B to produce a product (product isn’t patented). She tells one son: do step A. She tells the other son: do step B. It seems that the correct result is that mom is guilty of inducing infringement, even though neither son has infringed the patent.

    The question Epic is really asking (but doesn’t want to ask in this manner) is: “Whether a defendant may be held liable for inducing infringement of a patent merely because two or more parties carried out separate steps of a claim, in the recited order and without knowledge of the patent, at the instruction of the defendant who was aware of the patent.”

  87. (a) creating a database of the available real estate properties;
    (b) displaying a map of a desired geographic area;
    (c) selecting a first area having boundaries within the geographic area;
    (d) zooming in on the first area of the displayed map to about the boundaries of the first area to display a higher level of detail than the displayed map;
    (e) displaying the first zoomed area;
    (f) selecting a second area having boundaries within the first zoomed area;
    (g) displaying the second area and a plurality of points within the second area, each point representing the appropriate geographic location of an available real estate property; and
    (h) identifying available real estate properties within the database which are located within the second area.

    Does anyone approve of this ridiculous pile of j—k??? Even within the realm of incredibly obvious computer-implemented j–k, it stands out as particularly inept.

    Why is any court wasting their time fashioning new law around this invalid nonsense?

    Here’s a question for the patent t—b—gers: what possible difference could it make for patentablity whether “available real estate” is recited in this claim as opposed to any other type of information? Why not “available space on a bookshelf”? Or “available spaces on an airplane”? Or “available spaces in a parking lot”? Or, for that matter, “spaces in a parking lot with nails on them”? “Spaces on a chess board with knights on them”? Etc. etc. etc.

    Can I get a patent over this one simply by throwing in some additional “limitation”, ala “wherein the steps are carried out in a robot car or on a plane”? Or “wherein the steps are carried out by a guy with a beard”? Or “wherein the real estate is in a place with racial covenants”? Or “wherein the real estate is limited to houses once owned by people whose last name begins with W and ends with S”? Or “wherein the real estate includes dog houses”? If not, why not? Why are those differences any less of an “advance” over this patent as this patent is over the prior art?

    Promote the bubble! It can’t pop too soon, really. I wonder if there’s going to be enough kleenex to catch the tears from all the grifters as they stumble out of the Great Patent Casino. I doubt it. Still, I can’t wait to find out.

  88. “On appeal, the Federal Circuit agreed that there is no direct infringement.”
    — Is this really so? I thought the whole point was that there was direct infringement, but no one was liable for it.

  89. “From” isn’t an action, so step (h) would have to be modified since it refers to “the database.”

    Technicalities aside, divided infringement was based on the selecting steps which are performed by a user.

  90. Dennis, very interesting and topical issue. Please post the interesting briefs if you get the chance.

  91. Could the divided infringment issue have been avoided simply by making the first word of the claim “From” instead of “Creating”?

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