Merging Burdens on Motions at Law in Patent Invalidity Cases

By Dennis Crouch

Novozymes A/S v. DuPont Nutrition Biosciences (Fed. Cir. 2013) involved an interesting issue of the weight a judge should give to a jury decision on JNOV. In the case, a jury rejected the accused infringer's written description invalidity argument. However, in a post-verdict judgment the district court judge determined the patent claims invalid as a matter of law, notwithstanding the jury verdict. The law ordinarily requires that jury decisions be given some amount of deference and factual determinations by a jury (such as the written description inquiry) should only be overturned by a judge when not supported by substantial evidence. Some courts rephrase this test as requiring a verdict be "clearly erroneous" before a court may overturn that verdict and, as such, a court cannot merely substitute its own judgment.

The logical confusion in this case stems from the rule that patent invalidity must be proven with clear and convincing evidence. Thus, the court's JNOV decision ruled that: the jury verdict (finding DuPont failed to present clear and convincing evidence of invalidity) was clearly erroneous. My question is whether these two requirements actually merge in this situation. I.e., can the court overturn the jury's non-invalidity verdict if it finds clear and convincing evidence that the patent is invalid? Or instead, must the court apply some standard that is even higher than clear-and-convincing evidence before overturning the jury verdict. Neither of these solutions seem appropriate, although in the appellate court case the majority (Judges SCHALL and BRYSON) chose the prior while the dissent (Chief Judge RADER) chose the latter.

100 thoughts on “Merging Burdens on Motions at Law in Patent Invalidity Cases

  1. Holding on to anger is like drinking poison and expecting the other person to die

    - Buddha

    Malcolm gets angry when his little soapbox gets kicked out from under him.

    But the way forward is not to get angry, but to make sure your soapbox is sturdy (and you do that by being intellectually honest – something that certain people have not been able to be). Instead, they descend into tirades of expletives, filthy projected fantasies, and even more of the accuse-others-of-that-which-they-do tactics. And still pursue their agendas with their rickity soapboxes.

    C’est La Vie

  2. MM, I will note that I have been on this board for about 8 years. A number of different people have treated you about the anon is treating you now. And, they have said about the same thing about you as anon is saying now. They track you and object to almost every statement you make.

    The reason lies in your posts. Your posts make intentional misrepresentations and seem to be self contained in that they do not seem to consider previous posts of yours or of the actual post that you are responding to.

    You seem to make up a little reality with each of your posts that appears calculated to deceive the reader.

    Maybe that is why you pick up these people that hunt you down and want to set you and the record straight.

  3. You do sound like you are coming close to breaking.

    Well NWPA, in all fairness, Malcolm has had a very rough go at it.

    Longstanding as his anti-software patent agenda has been, Malcolm volunteered some key admissions when he dabbled in some substantive discussions awhile back, and I have made sure that he does not forget what he has admitted to (as has been his usual ‘what the Sam Hill’ tactic). Specifically,

      1) his admission of knowing the controlling law in regards to the exceptions to the printed matter doctrine, and
      2) his admission that ‘configured to’ is structural language

    Keep in mind that these are admissions that he volunteered. He cannot change his mind in what he has shared to be his knowledge of the law. They also happen to toast his anti-software patent agenda on a bonfire. He has had a hard time dealing with this.

    Then he spent a humongous amount of effort (on an issue that he claims that he does not care all that much about), only to see me tear him apart on that issue. When Myriad came out as I predicted – and for the reasons I predicted – he simply could not handle it. He vomited a small book of QQ, and has yet to this day has not had the nuts to simply admit to that FACT that is incontrovertible (and always shall be so).

    And to make matters even worse for him, he FINALLY attempted to provide a substantive explanation of how Prometheus squares with the precedent case most on point (and said by the Court to be unchanged) and promptly tossed his pet theory into yet another bonfire. I gave him the opportunity to use his (vaunted) English as a first language skills to rescue his flaming theory, and all he could do was [shrug] and stand by.

    On top of all this humiliation, he then got busted for doing the very thing that he incessantly QQ ed about on this forum: indulgence of svckpuppets. Over at PatentDocs, peculiar (but exact in their errors) posts began appearing trumpeting what ONLY Malcolm has ever trumpeted: his pet theory of what he views is the holding of Prometheus, (it’s not, but that has never stopped him). He point blank 1ied on that blog. And has been torn here to making yet another admission that it was him there – even as it is undeniable.

    You see, Malcolm’s meltdown comes from his being in a very uncomfortable spotlight for him, all courtesy of me. Why else do you think that he cannot even bear to use the proper moniker, but insists on his childish insults even there.

    Everywhere he turns, he is smacked down. He is obviously bewildered.

  4. And, MM, I take responsibility for my own actions and no one else’s.

    Try to remember that this is just a blog. Chill out man. You sound like there is an underlining threat in your posts that is a bit frightening. Chill. It is a blog.

  5. MM, thanks, but I don’t need advice from you on how to post on this board.

    You do sound like you are coming close to breaking.

  6. It’s not that difficult Malcolm, as we both know that the thought put forth of the patent system under attack from both the left and the right was something that Dr. Noonan echoed (mirroring exactly what I have said on the subject). Dr Noonan’s comments coming after you tried your lame ‘you-must-have-English-as-a-second-language’ rhetorical tactic.

    I realize that probably all of Keeping It Real, Robert, Francis, Shrivan, Vivika M., FriendS of the court and Joe Public agreed with you on how swell your mastery of rhetorical tools is (but they were – not surprisingly – wrong).

  7. if you dare ask for that explanation.

    LOL, ever the hypocrite Malcolm. Like the answers, explanations and acknowledgments of points made in discussions that hamper your agendas that you so readily and intellectually honestly accept and reply?

    Like those?

    Tell me as you continue your anti-patent agendas (and yes, anti-business method and anti-software IS anti-patent).

    The tell me who was right in the Myriad case, and importantly – why.

  8. without any reasonable articulated justification for the personal attack

    LOL – as usual Malcolm, your spin is completely wrong. I have provided many times the basis for my ‘attacks’ on you and explained perfectly well (even if I don’t belong to your ‘expert club of English as a first language’ how you can control what you perceive as my ‘attacks’ on you.

    Grow a pair and pay attention.

  9. NWPA mis-characterizing an invention by the court causes bad examination, bad patents, and bad litigation.

    Not necessarily. I think the composition claims in Myriad were “mischaracterized.” Will that “mischaracterization” result in “bad” examination, “bad” patents, and “bad” litigation? I don’t see how those results necessarily follow, particularly the “bad” patents you refer to.

    You disagree with some Federal Circuit decisions. So do I. My suggestion is to explain why you disagree, bringing as many facts to the table as you can. Explain what undesirable outcomes are likely to flow from the decision and why other people (non stake-holders, for example) should find those results undesirable and adopt your views.

    That’s all you can do. And people are bound to disagree with you. If they explain why they disagree with you, you should feel lucky. Be glad that you don’t have some s0ci0path pr*ck following you around who types up vacuous horsesh*t like “you’re missing the actual point” and refuses to explain why your point isn’t the ‘actual point” and then flings insults at you if you dare ask for that explanation.

  10. ou laden your post with personal attacks while at the same time telling me not to.

    No, I’m telling you that you can do whatever you want. You can rant about aliens taking over Obama’s body and turning him into an anti-patent Lemley clone who controls Judge Chen via alpha waves transmitted from the Invisible Socialist Bunker. Whatever you want to say, just say it.

    But if you, like your friend Tr0 llb0y (and let’s face it: you have far more in common than any differences between you and seem to approve his behavior in general), choose to personally attack me in a response to something I am saying (or just gratuitously in response to something that someone else is saying) without any reasonable articulated justification for the personal attack, I’ll be sure to let you know. Just like I let Tr0 llb0y know when he goes off his meds and starts spewing his insults (which is just about every day).

  11. ” irrational h*te-filled rants about “tyrants” and academics allegedly out to “destroy” the patent system”

    Yes, because Dr. Noonan is just such a person too…

    What? Try to articulate a complete thought, Tr0 llb0y. I know it’s hard for you. But try.

  12. And, MM, I question your grasp of patent law if you can’t understand why mis-characterizing an invention by the court causes bad examination, bad patents, and bad litigation.

    That–if you read through posts of mine starting about 5 years ago–has been a constant theme of mine. That mis-characterization that is caused through dishonesty or ignorance is very damaging to our patent system. Putting more people on the Fed. Cir. without science and/or practical patent experience is only going to make thing worse.

  13. MM, I have been through many times why Lemley and Benson cause bad examination. Ly$ng in academic journals creates an atmosphere of mistrust. Mis-characterizing inventions causes bad examination.

    Lemley should be expelled from Stanford. Lemely is an abomination of our modern society. A public trial of what he has done would do much to correct that.

    And, let’s not be naive. Obama got rid of Kappos and sent three henchmen after the patent system. There is no h*te in that. Statement of my interpretation of the facts. And, let’s not be naive. I wish I had the time to create an objective measure of the ignorance of these new “judges”. But the current crop doesn’t know science or patent law as a group.

    But what do you want from Obama? The remarkable thing about Obama is that he has turned into Bush.

    And, MM, you laden your post with personal attacks while at the same time telling me not to.

  14. irrational h*te-filled rants about “tyrants” and academics allegedly out to “destroy” the patent system< ?i>”

    Yes, because Dr. Noonan is just such a person too…

    /eyeroll

  15. The key is never to say actually say anything

    LOL, you mean like Myriad, Malcolm, like that?

    Literally a book of mewling QQ nothing from you – and STILL you have not admitted that I was right and right for the reasons ACTUALLY SAID.

    LOL – but please, continue your sad campaign of accuse-others-of-that-which-you-do. You are convincing at least Keeping It Real, Robert, Francis, Shrivan, Vivika M, FriendS of the Court, and at least one new svck puppet: Joe Public.

    LOL – Malcolm your incessant QQ ing about svckies being the worst thing ever shows you for the fraud you are. You cannot even come out and admit it without prevarication.

    Why the dissembling? Why the hyprocisy?

  16. Tr0 llb0y: you can invite such people to actually defend their statements in a substantive manner and, when they do you respond, you can ignore everything they say and just tell them that they are missing the actual point, that they are still wrong, and that are torching their own agendas. And even if it’s completely untrue and you start to sound like you belong in the psych ward, you just double-down on the insults. The key is never to say actually say anything, just imply that the person is wrong and that they know they are wrong. If you actually say something, you risk making a mistake, and that’s particularly true in my case for a number of reasons that I also don’t want to discuss.

    Fixed for accuracy.

  17. MM we just had this exchange in another thread. I pointed out that you were completely misrepresenting my previous posts and previous positions. Please stop.

  18. NWPA many patents I see should not have been issued that examiners need more time and better training. And, that the PTO should be moved to a place that is cheaper to live for retention.

    Great! So I’ll start looking forward to all your thoughtful comments along those lines when j*nk patents are at issue, pointing out the errors made by the PTO in allowing those patents. I acknowledge that you do post such comments from time to time (something I can’t say for your friend, Tr 0llb0y). But those comments of yours tend to be lost among the irrational h*te-filled rants about “tyrants” and academics allegedly out to “destroy” the patent system.

    Lemley causes bad examination. Ignorant judges on the Fed. Cir. cause bad examination.

    See, that didn’t take long.

    By the way, you also get some credit for not being a s0ci0path s8ckpuppet-manipulating t 0 0 l like your friend, Tr0 llb0y. You and I disagree on just about everything and, quite frankly, I don’t have much respect for your opinions. But, unlike Tr0 llb0y, you seem able to resist the urge (most of the time) to post a comment containing a personal insult just for the sake of posting a personal insult. There’s always room for improvement in that respect.

  19. Igor “I Can’t Stop Diggging” Faynshteyn:

    the numbers and logic I provided make a lot more sense than any reasoning you supplied so far

    No, they don’t. First, you still haven’t explained a single flaw in my “reasoning.” I’ve explained the flaws in your numbers analysis and you seem to understand at least some of those flaws as well (“we cannot determine in most cases the relative strength of jury’s convictions anyway” < -- just one of the flaws in your "numbers analysis"). They also led you to suggest a conclusion that you subsequently agreed is the wrong conclusion. They also (as you seem to have figured out) are not relevant to the facts in the very case that started the thread, where the jury erroneously failed to give the evidence its proper weight and therefore found that the higher standard was not met.

    I reach the same conclusion you do, albeit under a different reasoning. My reasoning is this: since we cannot determine in most cases the relative strength of jury’s convictions anyway, then there is no reason to impose more burdens and infuse more complexities into the system.

    I don’t see much daylight, if any, between this reasoning and the reasoning I provided in my July 30 3:56 and 6:57 pm posts upthread. But if you see the difference, Igor, I guess that’s all that matters. Enjoy.

  20. He’s on the right track. I heard Chomsky talk about the american public and the P engines. He said that what the propaganda engines do is tend to confuse people and get people to agree to statements that appear to agree with the propaganda, but only because the statements are taken out of context or do not include the consequences of the statement.

    The anti-patent people have been blasting us for a long time and have some very powerful propagandist, such as Lemley. And, now we have three henchmen marching into the Fed. Cir., and the SCOTUS just running rogue with the patent laws and the Fed. Cir. judges too ignorant to figure out how to combat the SCOTUS.

    Sad state. I know you think I am pessimistic, but I am afraid it is foresight. I see that the forces against patents have slowly been destroying the system, and that RADICAL changes to the system can be made by judges. Just consider that Laurie didn’t care if 100′s of thousands of patents were invalidated by his opinion. And, he doesn’t even know what he Church-Turing Thesis is.

    It is always the ignorant that are used for brutality. The USSR used to bring in men from rural areas of the outlying countries for controlling the city dwellers. Those pictures of baton welding Soviet soldiers are pictures of farm boys raised thousands of miles away and then indoctrinated by the military to control the animals.

    I am afraid that is a good characterization of “the three” that are coming–ignorant henchmen to burn the system down from the left.

    Don’t take my predictions lightly. Consider how wide sweeping some holdings of the Fed. Cir. and SCOTUS could be for all of patent law.

  21. As to the suggestion that competitors were excluded from the use of the new patent, we answer that such exclusion may be said to have been of the very essence of the right conferred by the patent, as it is the privilege of any owner of property to use or not use it, without question of motive. Connolly v. Union Sewer Pipe Co., 184 U. S. 546.
    The right which a patentee receives does not need much further explanation. We have seen that it has been the judgment of Congress from the beginning that the sciences and the useful arts could be best advanced by giving an exclusive right to an inventor. The only qualification ever made was against aliens, in the act of 1832. That act extended the privilege of the patent law to aliens, but required them “to introduce into public use in the United States the invention or improvement within one year from the issuing thereof,” and indulged no intermission of the public use for any period longer than six months. A violation of the law rendered the patent void. The act was repealed in 1836. It is manifest, as is said in Walker on Patents, § 106, that Congress has not “overlooked the subject of nonuser of patented inventions.” And another fact may be mentioned. In some foreign countries, the right granted to an inventor is affected by nonuse. This policy, we must assume, Congress has not been ignorant of, nor of its effects. It has nevertheless selected another policy; it has continued that policy through many years. We may assume that
    Page 210 U. S. 430
    experience has demonstrated its wisdom and beneficial effect upon the arts and sciences.

    Continental Paper Bag Co. v. Eastern Paper Bag Co. – 210 U.S. 405 (1908), affirmed, eBay v. Mercexchange.

  22. ARTICLE: PERSPECTIVES ON PATENT CLAIM CONSTRUCTION: RE-EXAMINING MARKMAN V. WESTVIEW INSTRUMENTS THROUGH LINGUISTIC AND COGNITIVE THEORIES OF DECISIONMAKING

    Andrew Auchincloss Lundgren

  23. to acquire and enforce more patents, more often, against more people.

    Translation: Because having patents is the second ‘worst thing evah’ only behind actually enforcing your rights in such patents (d@_mm this notion of property, Jane, Jane, please help everyone understand what Communism is, so that everyone can hope, everyone can pray on their knees that one day we would become Communists)

    Malcolm: get into a field that you can believe in what you do.

  24. I would place Dr. Noonan in that club, Malcolm.

    And judging by the shortness of his comments of late, you are wearing thin even his prodigious patience.

    By the way, did you see the guest article there admitting of the thought that I have long posted (patent system under attack)?

    LOL – of course you have, and it has spawned yet another svckie of yours. My, how your past QQ ing over svckies paints you the biggest hypocrite.

    As is well known, svcks to be you.

  25. He is the epitome of poor blogging quality, to which, his response is to [shrug] and stand by (and of course, continue his agendas, no matter what).

  26. MM does specialize in misrepresenting others opinions and forming posts that sometimes appear ok when read individually, but are outrageous when read within the context of the post he is responding to and/or other posts of MM.

  27. NWPA,

    You should know that what Malcolm really means by “really means” is that he is going to misrepresent something. It might be fact, it might be law, it might be what others have actually posted. All of these are ‘fair game’ to the spin that Malcolm engages in while he pursues his agenda.

    What to do about it? Well, you can make note of it and draw the ‘ire’ of the little circle club (oh noes), or can you do what those soapboxers would prefer: nothing. Nothing but [shrug] and stand by while the mere repetition of the agenda seeks to make a perception into a reality (the adage ‘repeat a 1ie often enough, and it ‘becomes’ the truth comes to mind)

    Or you can invite such people to actually defend their statements in a substantive manner and watch them get all huffy, torch their own agendas with critical admissions, or both.

  28. >But when you look closer you see that “better >examination” really means “stop denying me patents >based on reasons that I don’t agree with”.

    MM that is absolutely false. Look through my posts here and you will see that I have said that Benson has caused a lot of the bad examination. And, that many patents I see should not have been issued that examiners need more time and better training. And, that the PTO should be moved to a place that is cheaper to live for retention. So, please stop fabricating my positions.

    Lemley causes bad examination. Ignorant judges on the Fed. Cir. cause bad examination. The PTO should be in a place like Pittsburgh.

    I see your b*boon character is failing you.

  29. I appreciate you doing so intelligibly, however.

    LOL – really?

    Such nice pom-poms – even while calling him a j erk.

    Tiptoe, through the tulips…(because it’s Malcolm – said in the best Tiny Leopold tones)

  30. Actually, the numbers and logic I provided make a lot more sense than any reasoning you supplied so far. They may not make sense to you, for whatever reasons, and you may not accept them, but that’s not equivalent to them not making sense objectively, let alone “confusing me” (I am not even sure how you inferred the latter).

    To sum up my plausible alternative argument:
    When a court/judge overturn a jury’s verdict made under POE standard, at most 50% is being overturned. When court/judge overturn a jury’s verdict made under C&C standard, up to 74% is being overturned. The % represent the relative strength of the jury’s convictions in their verdict.
    So, my suggested alternative proposal is that since the jury might be more persuaded in their verdict in the latter scenario, than under POE standard, perhaps (key word) it should take a judge proportionally more conviction to overturn this jury’s verdict.

    Ultimately, however, I reach the same conclusion you do, albeit under a different reasoning. My reasoning is this: since we cannot determine in most cases the relative strength of jury’s convictions anyway, then there is no reason to impose more burdens and infuse more complexities into the system.

  31. You rather missed the word ‘promote’ there Malcolm.

    Of course, you knew that already.

    And your loathing of the profession is sneaking out again – so again, some advice for the good of what is left of your soul: get into a profession that you can believe in what you are doing.

    Patent law is not it for you. You svck at it.

  32. Gene has been wrong before.

    It really is no big thing, Ned. It really is NOT as Malcolm would have you believe, that there is an alter built to him.

    Wake up.

  33. That was inconsistent with the theory and the statutory framework that said that patents were property.

    100% wrong on this Ned. Forever and a day under U.S. jurisprudence (other countries may have ‘use’ requirements but U.S. doe snot and never has – quite in fact the “and any improvement thereof” language all but guarantees that you cannot have such.

  34. That’s the game called for in the constitution.

    Sorry, but a runaway patent system is not “called for” by the Constitution any more than endless declarations of war against other countries is “called for” by the Constitution.

    Of course, you knew this already. But like your mentor, you choose to recite a self-serving script that is, at best, less than honest. Maybe you should alert Dennis. LOL.

  35. anon, it was Jean after all propounded the theory that United States began as a first-to-file system; and that was not until 1870 that we adopted interferences. Only a profoundly undereducated or mis-educated person could actually say that. I presume therefore he used Rader's textbook.
     
     

  36. It’s an explanation as to why some special “higher standard” (a standard nobody seems willing or able to articulate) is NOT needed

    Fixed.

  37. MM won’t accept the numbers, and my logic, because it doesn’t jibe well with his overly confident narrative.

    My narrative isn’t “overly confident.” It’s also not a “narrative”. It’s an explanation as to why some special “higher standard” (a standard nobody seems willing or able to articulate) is needed for overturning a clearly erroneous decision by a jury who was tasked with weighing evidence under a clear and convincing standard.

    He has also distorted my position to the point I no longer recognize it as my own.

    Exactly what is your position? You said you agreed with my conclusion: no additional higher standard is needed.

    for full analysis, I included numbers to suggest … that an alternative evidentiary standard might be viable indeed.

    Except your numbers do not suggest that, at least not in any way that makes sense to me. And they seem to have confused you, too. “Viable indeed”? What does that mean for an evidentiary standard to be “viable”? And what is this “alternative evidentiary standard” anyway? How is it applied and what purpose does it serve?

    His method of arguing is via confident and underanalyzed assertions.

    I’m confident because I spent some time thinking about what I was going to say before I hit the “post” key. What assertion of mine is “underanalyzed”? Is there an error in my reasoning? Something you don’t follow or something that doesn’t make sense? If so, point it out.

  38. anon, from the early days, it was well understood that a patent does not grant one right to use an invention, but the right to prevent others from using it. It was deemed a property right. As with all property rights, an injunction was available for trespass. One did not have to show that one was making his own product in order to get an injunction. That was inconsistent with the theory and the statutory framework that said that patents were property.
     
    In other countries we can see what happens when people do not enforce property rights by issuing injunctions. Take a look at Brazil for example.  Squatters move into unused land and cannot be evicted. Soon the land becomes the “property” of the squatters, meaning, the property of no one.
     
    A society without secure property rights cannot progress economically. Just take a look at any favela in Brazil, but or the whole country of Haiti, property rights do not exist.  The lack of property rights in these areas is a proximate cause of poverty and a general lack of civilization.
     
     
     

  39. It seems to me that MM won’t accept the numbers, and my logic, because it doesn’t jibe well with his overly confident narrative.
    He has also distorted my position to the point I no longer recognize it as my own. That’s not surprising, however, given his attitude.

    Yes, I reached the same conclusion MM did, albeit under a different reasoning. But for full analysis, I included numbers to suggest that it’s not as clear cut as he thinks, and that an alternative evidentiary standard might be viable indeed.

    I could not care less if MM agrees with me or not. Likewise, I don’t care whether he credits me, or even accepts my logic and numbers. His method of arguing is via confident and underanalyzed assertions. The numbers, therefore, won’t affect his confidence.

  40. patent game running as hot as possible

    That’s the game called for in the constitution. It’s called ‘promote.’

  41. Translation: Gene is pro-patent and Malcolm does not like that.

    To use his own words, he’s a “patent apologist” and proud of it. I give him credit for admitting that. Unfortunately, that admission coupled with his obvious self-interest in keeping the patent game running as hot as possible at all times taints pretty much everything he writes.

    On top of that, anyone who reads the comments and sees how he treats opposing views (especially when those views are correct and not in line with his apologetics) can see that he’s basically a huge horse’s a–. Plus he’s a Repuke given to excessive jingoism.

  42. The ‘not produce’ is directly linked to the FACT that ‘to produce’ has never been a requirement.

    Ask Malcolm for that early 20th century Supreme Court case that he ‘does not know about’ that held that a patentee is not required to ‘use’ his patent (as in, produce).

    Plain and simple: the patent right has always been a negative right – a right to keep others from doing – NOT a right to do anything in a ‘produce’ mode.

  43. Gene’s obvious mis-education

    Which ‘mis-education’ is that, Ned?

    Perchance the one that aligns you and Malcolm (the canards of anti-business method and anti-software patents)?

    Yes, that question is rhetorical – we both know your third party interests and their views you shi11.

  44. Translation: Gene is pro-patent and Malcolm does not like that.

    (and get your tinfoil hats out and ready because my moniker is in quotes)

  45. Dave Boundy and Ron Katznelson in the same class (it’s actually a very fine class to be a part of).

    LOL. Who else is in that “very fine class”, Tr 0llboy?

  46. I am not sure why you are lumping me in with Gene and I am not sure why it is our responsibility to advocate for these improvements of the USPTO.

    Because like you and like “anon” and many others, Gene’s stock answer to every problem perceived by others is “better examination.” But when you look closer you see that “better examination” really means “stop denying me patents based on reasons that I don’t agree with”. At least, very little else that would lead to “better examination” in the way that most people, particularly non-stakeholders, think about it is ever seriously pressed. All of the loudest and most repetitive shouting and crying is reserved for those “terrible” Supreme Court cases and laws and rules that make it harder for Gene and his friends to acquire and enforce more patents, more often, against more people.

  47. anon, thanks for the links.

    It does seem that the patents held by so-called Trolls are at least as good as patents held generally. The troll problem then reduces to the fact that trolls do not produce, meaning that they cannot be counter-sued. This implicates a deliberate strategy chosen by many companies to simply ignore patents. Why? They normally do not have to worry about suits from competitors if they too have large patent portfolios. Their own portfolio buys peace, somewhat like a large stockpile of nuclear weapons.

    But, NPEs, like terrorists, do not have their own targets for counterstrikes. Thus they avoid the MAD strategy.

    So what to do? Strip NPEs of the ability to effectively enforce patents? That does seem to be the strategy.

  48. You’re being a j erk, MM.

    LB, review the thread from the beginning. I expressed my opinion and I did so kindly. Igor got hung up apparently because I didn’t give him enough “credit” (for reaching the wrong conclusion?) and then he accused me of not “responding” to his analogy with the numbers. I don’t have to agree with Igor. That’s doubly true when he doesn’t agree with his own suggestion.

    Like Igor, I also like numbers,

    I do, too, in the right context.

    I agree with you that it’s unworkable in practice

    So are colors. They add nothing to the discussion. That was my point.

    there’s nothing wrong with the logic that since a higher standard than “preponderance” is needed to overturn a “normal” jury finding then something higher than “clear and convincing” should be used to overturn a finding that supposedly was made under that elevated standing.

    There is something wrong with the “logic”, LB, because it assumes the conclusion that, for no apparent reason, more deference should be given to a jury who weighs evidence under a higher standard. Why should that be the case? If the evidentiary standard is higher, does the jury try harder to be correct? Of course they don’t.

    They are either correct in applying the particular evidentiary standard, or they aren’t, and it’s up to the jurist to decide. The “deference” given to juries is that unless the jurist can explain why they are clearly incorrect, the jurist can’t substitute his belief for the jury’s belief. And he can’t reverse the jury unless he can present evidence that meets the standard — a task that is more difficult when the standard is higher.

    I really don’t know what else to say. If we adopt the contrary approach we run into a situation where a jury who finds worthless evidence “clear and convincing” is harder to overrule than a jury who finds that the same terrible evidence meets the preponderance standard. Why would we want to do that? What purpose is achieved?

  49. You’re being a j erk, MM. (I appreciate you doing so intelligibly, however.) Like Igor, I also like numbers, much better than colors, in fact. And while I agree with you that it’s unworkable in practice, there’s nothing wrong with the logic that since a higher standard than “preponderance” is needed to overturn a “normal” jury finding then something higher than “clear and convincing” should be used to overturn a finding that supposedly was made under that elevated standing.

  50. Ned: It is the standard that is important, not what fact needs to be proved.

    Thank you, Ned. I reached that conclusion using my brain.

  51. The numbers is actually what demystifies abstract concepts,

    Right, and the “demystification” worked so well that you were compelled to suggest a conclusion that you don’t agree with.

    I think that these burden of proof standards are so abstract that I decided to put numbers on them,

    That’s nice. Try letters next time. Or colors. See where that gets you.

  52. Key words: “at least none that I’m aware of

    So very Carroll of you, just keep your eyes closed, Malcolm and spin away – and the fact that you spewed a rampage of that against me is no surprise given your favorite rhetorical ‘trick’ of accusing others of that which you do.

    Typical Malcolm FAIL.

  53. NWPA,

    I am not sure why you are lumping me in with Gene

    That’s just part of Malcolm’s ‘swagger’ of attacking people that are pro-patent and that do not even post here.

    Don’t worry, he holds other pro-patent people like Dave Boundy and Ron Katznelson in the same class (it’s actually a very fine class to be a part of).

    Speaking of Quinn, though – he has a guest posting a series of articles debunking the “Troll” hysteria by Steven J. Moore, who no doubt has earned membership in the pro-patent club. Moore is related to the pro-patent fight in Taffas.

    See:

  54. MM, “clear and convincing.”

    It is the standard that is important, not what fact needs to be proved. And this case simply holds that the standard is applicable in deciding directed verdicts and summary judgment motions. The former includes JMOLs.

    From the case:

      “The true rule, therefore, is that a trial judge, in passing upon a motion for directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion; or, to state it another way, if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond reasonable doubt, the motion must be granted. If he concludes that either of the 254*254 two results, a reasonable doubt or no reasonable doubt, is fairly possible, he must let the jury decide the matter.”

    This view is equally applicable to a civil case to which the “clear and convincing” standard applies. Indeed, the Taylor court thought that it was implicit in this Court’s adoption of the clear-and-convincing-evidence standard for certain kinds of cases that there was a “concomitant duty on the judge to consider the applicable burden when deciding whether to send a case to the jury.” 464 F. 2d, at 243. Although the court thought that this higher standard would not produce different results in many cases, it could not say that it would never do so.”

    Liberty Lobby at 253-254.

    The Supremes adopted the rule of this case:

    United States v. Taylor, 464 F. 2d 240 – Court of Appeals, 2nd Circuit 1972

    link to scholar.google.com

  55. Second, I don’t find the numbers helpful because they are just abstractions layered on top of standards that are already abstract. “Turning over 74% of a jury’s persuasion”? That hurts my brain.

    So, you don’t find the numbers helpful… because they are abstractions?? The numbers is actually what demystifies abstract concepts, or at the very least clarifies them. But to you the numbers are as abstract as the concepts of standards? That’s laughable.

    It is precisely because I think that these burden of proof standards are so abstract that I decided to put numbers on them, to make more sense out of it. But it made your brain hurt, apparently.

  56. I think we have common ground, but I am not sure why you are lumping me in with Gene and I am not sure why it is our responsibility to advocate for these improvements of the USPTO.

    But, I do think we should do all the things you said to improve the USPTO funded by fees.

  57. that better training, better database, etc. should come without the expansion of the covered business method program

    Okay. Then your friend Gene Quinn and like-minded souls should be forcefully advocating that increased funding to the PTO for a better database of prior art, more training to better apply the law (particularly when it comes to using non-patent prior art and “real world” methods and knowledge against claims directed to “virtual” methods), and more examiners (so they have more time to find better prior art, examine each application, and write more thoughtful office actions). I’d happily support a portion of my tax dollars going to these goals. Wouldn’t everybody?

  58. It’s great that I came upon this thread after MM made his 2:52pm post, because it is exactly what I would have posted, and it saved me a heap of time.

    MM, +1

  59. Your so-called “explanation” was that you disagreed because… it made your brain hurt. That’s not an explanation.

    There was more to my explanation that that. Now you’re “cherry picking”. Do you want to argue about that now? I don’t.

    Reflecting back, I guess I could have pretended that I really enjoyed your comment even though it was filled with head-scratching phrases that weren’t helpful to me and ultimately led you to “suggest” a conclusion that you and I both agree was wrong. I’m glad I didn’t do that.

  60. MM, that better training, better database, etc. should come without the expansion of the covered business method program. They are not (or should not be related.)

  61. Your so-called “explanation” was that you disagreed because… it made your brain hurt. That’s not an explanation.
    Maybe you should read the entire post, instead of cherry-picking parts and then pounding on them.

  62. it is not addressing the primary problem of good examination

    Really? Better training, a better database, and more examiners so each examiner has more time to examine and think about the prior art and the claims isn’t “addressing” that problem?

    Huh. What would constitute “addressing the primary problem of good examination” on your planet?

    have a real examination if you want to assert it.

    I’m all for a “real examination” prior to the assertion of any patent. Aren’t you?

  63. MM, they say it is the same standard for a directed verdict which is the same standard for a JMOL.

    For so-called New York Times cases. Why should anybody reading the comments care about this case, Ned? I’m not sure if you’re disagreeing with something I wrote, with something that the majority wrote, with something that Rader wrote, or what. In short, I don’t know where you’re coming from or where you are going with this case. And I’m not going to guess.

  64. Your not finding the numbers helpful and making your brain hurt does not mean that it’s not helpful in an objective sense. I found them helpful

    I didn’t. I explained why. If that’s not “responsive”, I don’t know what is.

    I merely suggested that the standard might have to be heightened; but I don’t actually think it should.

    Maybe in the future if you agree with someone you should simply say so, rather than saying the opposite. Just a thought.

  65. LOL – how very Lewis Carroll of you.

    Not at all, D umpty. Of course, you’re the last person on earth who is qualified to make such a statement.

    I didn’t make any assumptions in my reasoning (at least none that I’m aware of — can you point one out?). Nor are there are any unjustified leaps in logic that I’m aware of. So I’m pretty confident about my analysis and my conclusion.

    When the opposite conclusion is (apparently) reached by someone after an analysis that refers to “a court overturning a jury that may have been 74% persuaded”, I’m pretty sure that a mistake has been made somewhere. Here the mistake is ignoring the fact that, whatever “percent jury persuasion” was obtained, when a judge wishes to reverse a jury’s finding that evidence failed to meet a particular standard, the jurist herself must meet that standard and must explain why the jury was clearly incorrect (the “deference”). When that particular standard is higher (e.g., “clear and convincing” versus “preponderance of the evidence”) then it’s more difficult for the jurist to reach that result. There is no need for additional obstacles (e.g., a higher standard than “clear and convincing,” whatever that might be — presumably not “beyond a reasonable doubt”!) to be put in place to preserve the jury’s findings.

  66. A very b*boon type of response. Well, my small frontal lobe friend, the problem with this solution is that it is not addressing the primary problem of good examination. Moreover, it is a bit offensive. It is saying here come pay money to have your patent examined at the PTO, but if you want to assert it or try to license it, then you have to come back and go through another procedure and pay lots more money.

    Getting closer to a registration system really. Pay to have it formatted and printed and then have a real examination if you want to assert it.

    Now, I know that symbols and abstractions are difficult for your kind, but try….

  67. Your reasoning is non-responsive because it doesn’t address the scenario I laid out above. In other words, you are not responding on point.
    I merely suggested that the standard might have to be heightened; but I don’t actually think it should. I apologize for analyzing both sides of the issue and then making a nuanced conclusion. I apologize for not barreling head-on towards a definitive conclusion as you are doing.
    Your not finding the numbers helpful and making your brain hurt does not mean that it’s not helpful in an objective sense. I found them helpful, so I put them into my analysis.
    To reiterate: I made the same conclusion you did, but for different reasoning. Hence, I “concur”.

  68. I’m not sure what you mean when you say that “my reasoning” is “non-responsive”. My reasoning is my reasoning. I didn’t follow your reasoning, in part, because it seemed to lead you to a conclusion (a “higher standard” might be needed) that is opposite to the one reached with my reasoning.

    LOL – how very Lewis Carroll of you.

  69. lots of those covered business method patents are coming to come out alive and well, and the Fed. Cir. and the PTAB isn’t going to be able to handle the load.

    What is that good news? Sounds like we need to provide a lot of additional funding to the PTO so they can handle the load. That funding could be used to upgrade and improve their prior artdatabase, training programs, and also for hiring additional examiners.

    make everyone pay more money

    Whereas nobody will pay more money if everyone has a patent on every “new” method of using a computer to determine something or every “new” method of extracting money from someone else. Is that the logic? Sort of like how we’d all be safer if everyone carried a loaded gun. Deep thinking, bro’.

  70. I actually concur with your conclusion

    Okay. That wasn’t clear from your previous response when you wrote that some “higher standard” might be needed to overturn a jury’s finding “when C&C is involved”.

    I think your reasoning is non-responsive to the scenario I described above using numbers.

    I’m not sure what you mean when you say that “my reasoning” is “non-responsive”. My reasoning is my reasoning. I didn’t follow your reasoning, in part, because it seemed to lead you to a conclusion (a “higher standard” might be needed) that is opposite to the one reached with my reasoning.

    Second, I don’t find the numbers helpful because they are just abstractions layered on top of standards that are already abstract. “Turning over 74% of a jury’s persuasion”? That hurts my brain.

    If I might digress on the issue of statistics, it’s for somewhat similar reasons that I am bothered by jurists, lawyers and pundits who demand that findings of eligibility or inequitable conduct should be “rare” because the law is narrow or the standard is high. The fact of the matter is those findings shouldn’t be rare at all if the facts exist to support the findings. We don’t want judges thinking “Gee, I found that computer-implemented method of remembering where your car keys are ineligible just last week. It seems too soon to find this method of identifying available space in an animal shelter ineligible, too.”

  71. I actually concur with your conclusion, but I think your reasoning is non-responsive to the scenario I described above using numbers.
    I merely pointed out that hypothetical to suggest that the case is not as clear cut as you seem to be so confidently asserting.
    At the end of the day, I think that we shouldn’t complicate the system much more than it already is and that’s why the standard for overturning the jury should remain the same. But I think you failed to respond to the scenario I set out above…

  72. You should write an article on the following. My guess is that we are going to see the cover business method program expand greatly. It is going to be the case that when you assert your patent, you will have to go back to the PTO “one more time” to prove that they really should have issued you the patent. The reason that this is going to be expanded is that (1) they can slip it in (that is why you have to watch legislation it is like a mold growing on bread), (2) PTO will love it as it gives them more power and business, (3) the litigation is suspended, and (4) those letters from NPE will be able to be responded to by putting them in the PTO for a year or so and making them spend lots of money.

    The negative, of course, is that lots of those covered business method patents are coming to come out alive and well, and the Fed. Cir. and the PTAB isn’t going to be able to handle the load.

    But, let’s shift all the problems around and make everyone pay more money as long as the corporations are happy and Wall Street, universities, and medical people, then all is fine with the world of raising money.

    Google, Wal-Mart Ask Congress To Target ‘Patent Trolls’
    Google Inc., Facebook Inc., Safeway Inc., Macy’s Inc., Wal-Mart Stores Inc. and dozens of other companies on Tuesday urged Congress to expand a federal program under which entities can challenge dubious business-method patents relied on by so-called patent trolls.

  73. This case presents the question whether the clear-and-convincing-evidence requirement must be considered by a court ruling on a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure in a case to which New York Times applies.

    If there’s something pertinent in the case that isn’t limited to the above question, Ned, you should feel free to paste those specific passages here and explain why they are relevant.

  74. when the court is overturning a jury that may have been 74% convinced, it’s harder to do than when it’s overturning at best 50%.

    Again the “higher” standard for overturning a jury finding in the situation at hand is already built into the system: it requires clear and convincing evidence to invalidate a patent. That applies to both judges and juries.

    If the judge finds that evidence for invalidity is clear and convincing and the jury doesn’t, then the judge has to explain persuasively why the evidence is clear and convincing in addition to explaining why the jury is clearly wrong. That’s a more difficult task for a judge compared to the case when the jury has, say, mistakenly found that some evidence failed to meet a preponderance standard.

    Likewise, if the jury has mistakenly found that the evidence meets a clear and convincing standard, that finding is also easier for a judge to overturn than a jury finding that the evidence has met the mere preponderance standard. That’s exactly as it should be.

    perhaps the standard for overturning jury’s findings when C&C standard is involved should be higher than when POE standard is involved.

    Again, that’s already the case when the jury finds that evidence has failed to meet the C&C standard: it’s more difficult for the judge to reverse because the judge has to persuasively explain why the jury is wrong and why the evidence meets the higher standard.

    If you think that there should be even more hurdles put in place other than the one’s required by current law, then describe them. Try finishing the paragraph in my 3:56 pm post upthread with something that doesn’t sound too contrived. I’m not saying it can’t be done. I’m saying that I don’t see how it can be done. Judges are people, too.

  75. If the PO does present such evidence, and it is directed to proving that there was possession, then the jury verdict of not invalid stands.

    The requirement for invalidating a patent is that the evidence for invalidity is clear and convincing. That requirement doesn’t change simply because the PO decides to “rest on his laurels” and, e.g., argue only that evidence presented is insufficient as a matter of law.

  76. Actually, MM, PO simply cannot rest on his laurels in face of an invalidity challenge. He has to rebut the evidence of the defendant if they present a sufficient cases, as here. If the PO does present such evidence, and it is directed to proving that there was possession, then the jury verdict of not invalid stands.

    My point was that here, the evidence produce was directed to enablement, not to possession. As was said my the majority, the evidence “missed” the point.

  77. Let me try to answer this with the help of numbers:
    Preponderance of the evidence (POE) standard requires the jury to reach 51% in determining that the Plaintiff proved it case.
    Clear and convincing evidence standard (C&C) requires something like 75%.
    Suppose the jury didn’t find that the P proved it case under POE standard. That means that the judge is overturning at most 50% of jury’s persuasion.
    Suppose the jury didn’t find that the P proved it case under C&C standard. That means that the judge is overturning at most 74% of jury’s persuasion.
    So this means that when the court is overturning a jury that may have been 74% convinced, it’s harder to do than when it’s overturning at best 50%. So, perhaps the standard for overturning jury’s findings when C&C standard is involved should be higher than when POE standard is involved.

  78. I think Dennis’s question is whether the heightened requirement of “clear and convincing” evidence standard should affect the standard used for overturning a jury’s verdict.

    If so, my answer to that question is “no.” I don’t see any reason that any more deference should be given to the jury’s finding that the defendant failed to meet his burden of proof simply because the burden of proof is “clear and convincing.”

    The fact that the burden is “clear and convincing” means that the jurist already has a high standard to meet. Either the jurist will meet that standard and persuasively explain why the jury is wrong (the “deference”) or the jurist will fail to do that and will be overturned on appeal.

    I don’t see what more we can ask of judges. “The jury was clearly wrong because [insert explanation here] and there is no substantial evidence to support there finding [insert explanation here]. In addition, there is clear and convincing evidence of invalidity which is [insert here]. Yet, I can not reverse the jury’s finding here because … ”

    Can anyone finish that paragraph with something compelling?

  79. here though the jury found the patent valid

    This all gets bogged down in semantics and we can talk endlessly past each other. Juries don’t “find patents valid.” The patent is presumed valid. If there is clear and convicing evidence of invalidity, the jury can find the patent invalid. Or they can make an error and fail to find the patent invalid.

    If there is clear and convincing evidence of invalidity in the mind of the jurist, and the jury disagrees, then the jurist can reverse the jury. He just needs to explain carefully why he is doing that, i.e., he needs to show why the jury is wrong and he is right. Either other jurists (at the appeals court) will agree with him or they won’t.

    If any substantial evidence is produced to support the jury verdict,

    Again, it’s confusing to talk about “substantial evidence” of validity. In the case where the jury finds in favor of the patentee, either (1) there isn’t clear and convincing of invalidity and the jury recognizes it, or (2) there is clear and convincing evidence of invalidity and the jury doesn’t recognize it. In the latter case, the judge can disagree with the jury or not. But if the evidence of invalidity is clear and convincing to the judge and the judge can and does explain why the jury is wrong, what additional “deference” can be given? Beyond a reasonable doubt? Should the judge roll a six sided dice in such a circumstance and let the jury’s decision stand if he rolls higher than 4?

  80. Ned I think he said the invention was the specification of the 33 sites — and that one would know to try all possible variations at each site and it would take only a week to do so.

    Right, and then they would find that some worked and some didn’t. Never mind that some of those sites identified in the specification were already modified in the prior art and available for sale by DuPont’s competitor as of DuPont’s filing date.

    There’s no “invention” there. More like a business plan describing a sub-field in which intellectual property rights will be asserted later, when the applicant figures out what actually works.

    The worst part of cases like this is that if you get past the written description issue (e.g., you get Rader and a like-minded jurist on your panel), the applicant can then use post-filing data obtained by others to prove the non-obviousness of their otherwise obvious and speculative “invention”.

  81. MM, here though the jury found the patent valid and the court held it invalid as a matter of law. The evidence of invalidity was overwhelming. The evidence of validity “missed the point.” Even if the patent owner’s facts are proved, they are legally insufficient.

    When the Feds upheld the lower court, they applied regional circuit law for JMOLs. This standard is inherently higher than clear and convincing in the first place. If any substantial evidence is produced to support the jury verdict, it stands.

    Here, the evidence produced on WDR was legally insufficient. The jury could not have found the patent valid.

  82. I think Dennis’s question is whether the heightened requirement of “clear and convincing” evidence standard should affect the standard used for overturning a jury’s verdict.
    At least that is my understanding of what Dennis is asking…
    *Please correct me if I am wrong.

  83. anon, I think he said the invention was the specification of the 33 sites — and that one would know to try all possible variations at each site and it would take only a week to do so.

    But this sounds in enablement, not written description. Further, the claim was to a specific variation at a specific site, and that was not disclosed even if it was enabled.

    Example, I disclose a picture frame of four pieces of wood attached at their corners with nails. I suggest in the spec that any attachment mechanism would work.

    I can claim the nail or the generic attachment mechanism, but I cannot claim a particular kind of screw even though it existed and was something one of ordinary skill would try.

  84. Dennis: The law ordinarily requires that (1) jury decisions be given some amount of deference and factual determinations by a jury (such as the written description inquiry) should only be overturned by a judge when not supported by substantial evidence. Some courts rephrase this test as requiring a verdict be “clearly erroneous”… [It's also true that, (2),] patent invalidity must be proven with clear and convincing evidence.

    …My question is whether these two requirements actually merge in this situation. I.e., can the court overturn the jury’s non-invalidity verdict if it finds clear and convincing evidence that the patent is invalid?

    I think that both requirements apply in all situations (at least, all patent situations).

    In order for a jury’s finding (that the defendant’s evidence of invalidity was insufficient) to be reversed, it must be the case that clear and convincing evidence of invalidity exists. Once it’s been decided by the jurist(s) that such clear and convincing evidence was presented, then the jury’s finding was necessarily “clearly erroneous” (I presume this is what is meant by the term “merging”). It’s during that deciion making process that the jurist is required, by law, to “defer” to the jury’s decisions regarding “close” factual issues.

    As a practical matter, the “deference” given to the jury will only becomes apparent when the decision is written. The error made by the jury should be addressed by the jurist, lest it appear that a “mere substitution of opinion” has taken place. From the patentee’s viewpoint, of course, it will likely look the same regardless of any explanations made by the “anti-patent” jurist(s).

    I don’t see how the above “solution” is “inappropriate”. Deference is given to the jury and the clear and convincing standard for proving invalidity is applied. What more can we ask of the human brain?

  85. It’s an interesting question. Perhaps it would be instructive to look at cases in which the burden of proof was clear and convincing evidence (for example, SEC fraud cases), and where the jury’s finding was that the burden of proof has not been satisfied, but the court overturned the jury’s finding and the case was appealed. It would be interesting to see how an Appeals Court dealt with such a question.
    My hunch is that the same standard should be used (i.e. jury’s verdict not supported by substantial evidence; clearly erroneous), rather than some higher standard, if for no other reason than that it would complicate things unnecessarily. It also makes sense, because adopting a higher standard would be to implicitly mix issues of law and fact.

  86. I don’t think that Rader missed the point at all, Ned.

    He simply disagreed.

    That said, I do not think that he presented why (e.g. his position and reasoning) in a very compelling manner.

  87. Dennis,

    1. The defendant has to prove his case by clear and convincing evidence. They presented evidence. The PO presented counter evidence.

    2. The jury verdict here (not invalid) can be overturned if as a matter of law the PO’s evidence was insubstantial.

    3. The majority opinion did hold that the POs evidence was insufficient as it “missed the point.” See, p. 26, last paragraph.

    4. Rader believes it was substantial. But he misses the point on the legal requirement for what the evidence must show: actual possession.

  88. Does the confusion come from two things at play – law and fact?

    My read on the majority reasoning is not to challenge the facts – per se. Rather, in spite of the facts as found by the jury, the question of law cannot reach the decision given those facts. All the deference in the world can be given to the jury’s findings of facts as facts, but isn’t the majority simply saying that given those facts, the question of law still does not reach the conclusion that the jury reached?

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