Top Phrases by the Federal Circuit

By Dennis Crouch

Google’s ngram viewer shows that the phrase “ordinary skill in the art” took-off shortly before implementation of the 1952 patent act that includes the identical wording.

From the corpus of all Federal Circuit decisions, I looked for all the five-word phrases found in those decisions. The following list are phrases that are most regularly emerging from the judicial pen.

  1. As_a_matter_of_law    
  2. ordinary_skill_in_the_art    
  3. Under_the_doctrine_of_equivalents    
  4. The_district_court_erred_in
  5. Judgment_as_a_Matter_of
  6. by_clear_and_convincing_evidence
  7. Genuine_Issue_of_Material_Fact
  8. The_Patent_and_Trademark_Office
  9. is_a_question_of_law
  10. agree_with_the_district_court
  11. We_affirm_the_district_court
  12. did_not_abuse_its_discretion
  13. The_scope_of_the_claims
  14. likelihood_of_success_on_the
  15. law_of_the_regional_circuit
  16. and_remand_for_further_proceedings

35 thoughts on “Top Phrases by the Federal Circuit

  1. That’s the point, self-defeating Malcolm – That HAS been your argument.

    You have used the “House” argument. It is your argument in the sense that you have used it.

    Yes, this is archived.

    because it’s not my argument” – LOL – and this blatant lie now joins the archives of your blatant lies.

    Tell me, what is the controlling law concerning the exceptions to the printed matter doctrine?

  2. So, really, people who have spent years studying science and taking calculus and physics etc are no more likely than the political science major to understand a scientific question.

    Prove it, then. You have all kinds of science and tech experience. You’re always saying so. Your science question is: You have some DNA in a vial. How would you go about telling whether or not it’s cDNA?

    Or does that question require graduate-level calculus to answer?

  3. Why do you continue to make the most inane comments. So, really, people who have spent years studying science and taking calculus and physics etc are no more likely than the political science major to understand a scientific question.

    IANAE: your statements are just a joke.

  4. It’s not as much of a strawman as you indicate

    It is a strawman because it’s not my argument.

    this is basically the “House” argument,

    LOL. Define “basically”, Humpty. I’ve never made the “argument” that NWPA is railing against. In any event, let me know if I can get a patent on an old method of administering drugs to an animal by reciting some “new” information about the “status” of the drug.

  5. Dennis, can you tell from the quantities for Item 4 versus the quantities for Items 10-12 and 16 any significant differences?

  6. Nice strawman.

    It’s not as much of a strawman as you indicate, as this is basically the “House” argument, one you indeed have (attempted) to use.

    Yes, it is archived.

  7. There’s no such thing as “science people”. A very experienced computer engineer won’t understand any more about genetics than a lay person

    Completely wrong – as usual.

    A “science people” would know (or should know) that he doesn’t acutally know something.

    A “non-science people” won’t even know that they don’t know, and may even likely think they do know.

    Being trained in science – any science – brings with it a training in critical thinking.

    That being said, the little circle here does its best to destroy that theory on a daily basis (giving them the benefit of doubt that they actually have scientific training).

  8. There is the result of having non-science people on patents.

    There’s no such thing as “science people”. A very experienced computer engineer won’t understand any more about genetics than a lay person. For example, can you personally explain how you would look at a gene sequence (physical molecule or sequence listing, your choice) and distinguish whether it is DNA or cDNA?

    How would you populate the Federal Circuit? How many judges from which branches of science? Every technology will elude most of them, same as it does today, no matter what their backgrounds.

    It’s far less to ask, in my humble opinion, that a litigant before the Supreme Court might manage to find (or create) one well-spoken attorney who is well versed in the particular technology of the case.

  9. There is the result of having non-science people on patents.

    According to some of the watchers, Sotomayor seemed relatively scientifically advanced compared to the other judges. I have no comment on that particular statement of hers. I’m speechless.

    Noonan must be tearing his beard out.

  10. Justice Sonia Sotomayor’s description of the breast cancer gene isolated by Myriad. “In isolation, it has no value,” she said. “It’s just nature sitting there.”

    There is the result of having non-science people on patents.

  11. MM you always play this same game of trying to create this category of “the computer has already been invented, so everything else is obvious

    Nice strawman.

    People have already figured out that if you create molecules and then test them on animals that some may help the animal.

    Right. So can I get a patent on that identical method by including a step of labeling the molecules as “received from a privileged source” and “not received from a privileged source”?

    Thanks.

  12. MM you always play this same game of trying to create this category of “the computer has already been invented, so everything else is obvious.”

    Can you try to be a human being and man up to that argument. Apply that logic to every other field of invention. Boy. It is pretty easy to create a category like you do that abstracts away all the details and all the inventions.

    People already figured out that if you mix two or more different types of metals together that you may get a metal that is more useful.

    People have already figured out that if you create molecules and then test them on animals that some may help the animal.

    People have already figured out that you can combine or shape metal to form new machines.

    Boy, you are a joke. Boy you need to stop playing your silly little games and grow up.

    Just disgusting the games you play.

  13. Malcolm’s vacuous comment about the word – attempting to hand wave it away simply – does not work.

    HUMPTY HAS SPOKEN!!!! BOW DOWN!!!!!!

  14. 1) the things I say are not ridiculous

    2) I am not the one that changes the subject and runs away from the topic.

    You really like playing the Malcolm games, don’t you?

  15. Let’s not forget:

    ANTHROPOMORPHICATION.

    You just gotta love that word (even if the spelling is merely blog-ready).

    And Malcolm’s vacuous comment about the word – attempting to hand wave it away simply – does not work.

  16. “BRAIN” is a misnomer

    Let’s not forget: the reference to a POWERFUL COMPUTER BRAIN is just a reminder that the USPTO treats computer-implemented inventions as if computers were invented yesterday and nobody has ever contemplated that they would automate tasks previously performed by humans (using their human brains).

    The phrase comes from advertisements for Merlin, a Parker Brothers toy advertised as “computer with personality”.

    link to reflectionsonfilmandtelevision.blogspot.com

    MERLIN is described in his instruction manual as “a remarkably intelligent computer.” The same instructions also note that “as you compete with him, you’ll discover that MERLIN is very talkative.”

    anon’s “point” about “anthropomorphification” is just another silly trollshow when the claims being discussed are typically as “anthropomorophicized” as any non-human composition could possibly be.

  17. But you have to ask yourself if the ruling on inequitable conduct is actually patent law, or does it fall to the remedy under equity that Congress has allowed the courts to apply.

    No, I don’t have to ask myself that at all. But keep going – let’s see how many ridiculous things you’re prepared to say before you manage to change the subject.

  18. Any writing of patent law outside of the Congress is ultra vires.

    But you have to ask yourself if the ruling on inequitable conduct is actually patent law, or does it fall to the remedy under equity that Congress has allowed the courts to apply.

    (phhhfffft)

  19. the power to write patent law is specifically set forth in the constitution, thereby differentiating it from those areas of law that are allowed to have judges use common law to change the law

    That’s good to know. So the Federal Circuit’s recent decisions on inequitable conduct have been ultra vires, to use another of your favorite terms? Or are you using a different definition of “common law” than everyone else?

  20. Note: the actual word is, for some unknown reason, changed to the word you see when I post from my handheld device.

    You don’t have control over what text comes out of your handheld device when you type?

  21. thereby differentiating it from those areas of law that are allowed to have judges use common law to change the law.

    Of all the “patents are a constitutional right” arguments I’ve seen over the years, that one is probably the funniest.

  22. common law judges aren’t allowed to change the law

    LOL – point for me: the power to write patent law is specifically set forth in the constitution – thereby differentiating it from those areas of law that are allowed to have judges use common law to change the law.

    Once again, too much trying to be a smart-@$$ without the smart.

  23. Note: not actually a word

    Note: the actual word is, for some unknown reason, changed to the word you see when I post from my handheld device.

    It’s close enough for blogging to the word that does exist (take your pick: anthropomorphism, anthropomorphic, anthropomorphically).

    Better trolling please.

  24. It was already noted that “BRAIN” is a misnomer.

    It’s a bit of a stretch, granted. Probably more of a metaphor than a misnomer. But in a world where words are never allowed to change their meaning in casual conversational use, and common law judges aren’t allowed to change the law, who even knows anymore?

  25. I would imagine any such system would of necessity be powered by a BIG COMPUTER BRAIN.

    (but let’s not forget that “BRAIN” is a misnomer as we keep in mind that beautiful word: Anthropomorphication)

  26. Interesting post. I’m just wondering how you chose which five-word phrases to search for? Or did you really start with a program that was capable of identifying recurring phrases of five words, and then determining how many times each phrase appeared? Because if there are programs that can do the latter, there might also be other interesting uses of them.

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