Soverain’s ‘314 Patent is Now Truly Invalid

Soverain Software v. Newegg (Fed. Cir. 2013) (on rehearing)

In a rare grant of rehearing, the Federal Circuit has amended its original decision in this case. In the original opinion, the Federal Circuit reversed the lower court’s finding of non-obviousness and replaced that with a holding that the asserted claims are obvious as a matter of law. [Link]

According to the request for rehearing – “The panel’s decision analyzed the wrong claim of the ’314 patent. The asserted claims at trial were claims 35 and 51–not claims 34 and 51.” I reviewed the original briefs and those briefs suggest that claim 34 should be the focus. However, the Federal Circuit allowed the patentee another shot on appeal.

Claim 34 – the one already found obvious by the court – is directed to a “network-based sales system” that links a buyer’s computer with a “shopping cart computer” and that facilitates certain purchasing functionality, including using a “payment message” that initiates the transaction once activated. Claim 35 adds one further limitation to the mix – that “shopping cart computer is programmed to cause said payment message to be created before said buyer computer causes said payment message to be activated.”

After reviewing the small amount of evidence presented, the court held that claim 35 is also invalid as obvious.

On this rehearing, Soverain has not provided any new information concerning the specific limitation of claim 35. The inclusion of an additional known element from a similar system, as set forth in claim 35, is subject to review on established principles, as summarized in KSR International Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) (an unobvious combination must be “more than the predictable use of prior art elements according to their established functions”). The supplemental briefing reinforces the absence of dispute that that the element in claim 35 is in the CompuServe Mall prior art.

On consideration of the additional briefing and arguments, we confirm that claim 34 is representative of the “shopping cart” claims, including claim 35, and conclude that dependent claim 35 is invalid on the ground of obviousness. The court’s judgment is amended accordingly.

Now Soverain’s patent is really invalid.

In its motion for rehearing en banc, Soverain cited my prior Patently-O essay for the notion that the original opinion was big news in the way that the court fully reversed the lower court’s finding of nonobviousness. The en banc rehearing request focuses on the distinction between questions of fact and law and argues that Federal Circuit improperly delved into a fact-finding expedition. The fact-law divide is difficult for questions of obviousness since the ultimate question of obviousness is an issue-at-law based upon the factual determinations found in the Graham analysis. In its opinion, the Federal Circuit states that it is only deciding the ultimate legal question while the en banc request argues that the court delved into the factual underpinnings without providing appropriate deference. That en banc request has been denied.

I suspect that Soverain will push for a petition for writ of certiorari. In the en banc rehearing request, the company added Seth Waxman to the list of counsel and the company has at least 15 live infringement cases involving the ’314 patent. (U.S. Patent No. 5,715,314). The damages overturned by the court here amounted to $2.5 million plus costs and an ongoing royalty of $0.15 per infringing transaction until the patent expires in 2015 (denying injunctive relief).

Now, before you feel too sorry for Soverain, you should note that the company has a set of additional patents in the family that it can still assert. See, e.g., 5,909,492, 5,708,780, 6,449,599, and 7,272,639.

74 thoughts on “Soverain’s ‘314 Patent is Now Truly Invalid

  1. More awesome commentary from Newegg’s CLO:

    link to arstechnica.com

    This was a desperate, desperate ploy by Soverain, because we basically wiped out their franchise,” said Cheng, now that the last-ditch effort is finally dead. “They were expecting God knows how many hundreds of millions of dollars over time.”

    Asked this week whether Soverain might continue its fight, Cheng himself appealed to an even higher power than the courts. “Please God, let Soverain file a petition for cert to the Supreme Court,” said Cheng. “That would be so funny. Please make my day.”

    Dennis predicted a petition for cert. Here’s hoping!

    Also this:

    Cheng’s only regret is that he has only one scheduled patent trial to look forward to, against a controversial patent-holder called TQP Development, which claims an Internet-spanning patent on SSL, the widely used encryption protocol. Newegg is currently scheduled to clash with TQP in November.

    “I hope they don’t wuss out on this case,” said Cheng. “I hope they have the balls to try it. I am not optimistic that they will, because it would be a big mistake on their part to let this case go to trial.”

    More CLO’s like this please.

  2. The level of misinformation in these comments is remarkable. You guys are complaining about a jury issue here?! The trial judge in that case took the obviousness issue away from the jury, with the patentee’s urging, because he found the evidence insufficient. The case went to the jury on just infringement, with the judge having deprived NewEgg of the right to a jury trial on the invalidity/obviousness issue. When you read the opinion, you do get a sense that the Federal Circuit was in part punishing the trial judge for taking obviousness away from the jury when, in the appellate court’s mind, the obviousness issue was compelling and strong. I doubt the trial judge will make that mistake again.

    The other issue with this case is a simple one — the underlying patent was invalidated by old world technologies like CompuServe; the only thing it was lacking was web technologies like hypertext since the art was pre-web. The Federal Circuit’s case law makes clear that those kinds of claims are not going to survive obviousness scrutiny, if all they’re doing is tacking the web onto an existing technology. I think people are making a mistake ignoring this particular context; the Federal Circuit has been more willing to find Internet claim obvious as a matter of law than in any other area.

  3. hat’s not really a “finding of fact” on the Federal Circuit’s part. That’s just a “we can read and we don’t know why you can’t” moment for the lower court judge.

    And like everone else but 1000 times deeper, the Supremes have a limited amount of time. Mouth-to-mouth for this patent? On this issue?

    C’mon. Ted Olsen or David Boies at least. Seth Waxmen? Please.

  4. “6, when the issue is whether a claim element is in the prior art public use, is this an issue of fact or an issue of law?”

    Show me where this issue was raised.

  5. In the case of validity, if there is no clear and convincing evidence produced. And if there is such, no rebuttal evidence produced. In such cases, the court can rule JMOL.

    There was no such finding on any issue by the CAFC.

    They found that the “rebuttal evidence” was an f*n joke, Ned. They can do that. Really. They can. And they should. Because they can read the testimony. Which they did.

    You don’t automatically get a right to a jury trial just because you pay some guy to recite a script that doesn’t hold up to scrutiny.

  6. Then you agree that the Federal Circuit’s findings that the evidence demonstrated the prior art had the two element were based on equivalent performance was a finding of fact.

    Now, do they have the right to make such findings?

    Sure, if the fact is right there in front of their faces and there is no reasonable dispute about it. Some expert said that “black is white” because that’s what he was paid to do? But on cross the expert couldn’t back up what he was saying, but continued to to recite his script anyway?

    That’s not really a “finding of fact” on the Federal Circuit’s part. That’s just a “we can read and we don’t know why you can’t” moment for the lower court judge.

  7. 6, regarding jury trial, I think the patentee was blindsided by the summary reversal here and did not forcibly argue the jury trial issue. But, if there is a right to a jury trial for validity, disputes of fact have to be resolved by the jury.

    A JMOL can be entered if there is no substantial evidence produced. In the case of validity, if there is no clear and convincing evidence produced. And if there is such, no rebuttal evidence produced. In such cases, the court can rule JMOL.

    There was no such finding on any issue by the CAFC. They decided the facts themselves.

    This to me assume that there is no right to a jury trial.

  8. MM, I see. Then you agree that the Federal Circuit’s findings that the evidence demonstrated the prior art had the two element were based on equivalent performance was a finding of fact.

    Now, do they have the right to make such findings?

    I would rather the court have found that the claim elements were not there, cite the differences and then say that the differences were obvious.

    But they did not do that.

  9. Assume you own a patent that calls for compound A as an element of a patent product. The infringer produces a prior art product that he alleges has compound A. He bases his inference on the product’s “behavior” — the product does the same a product with compound A. The defense demurs and says such behavior can be caused by the presence of a compound B.

    Is the question of whether the prior art product has compound A a question of fact or one of law?

    It’s a question of fact but only if the dispute is a real one and not just some made-up horsesh*t where one side’s expert isn’t really just saying “Because I say so” and/or plainly soils/contradicts himself during cross. And just because one judge in Texas couldn’t figure this stuff out doesn’t mean that the Federal Circuit’s hands are tied.

    In this case, the Federal Circuit looked at the record and said: “There’s no other way that any reasonable person could interpret the testimony in a way that matters to the ultimate conclusion. The claims are obvious.”

  10. 6, I’m sorry, but perhaps you came to this story late. I even posted on this issue in the original thread and received no responses.

    The issue is whether two elements were in a prior art reference. Is this an issue of fact or one of law?

  11. “MM, the issue is not about credibility, but whether a court can decide an issue in dispute, and whether the issue is one of fact or one of law.”

    The issue in dispute was plainly one of law. Read the decision Ned.

  12. MM, the issue is not about credibility, but whether a court can decide an issue in dispute, and whether the issue is one of fact or one of law.

    Leg me ask you this. Assume you own a patent that calls for compound A as an element of a patent product. The infringer produces a prior art product that he alleges has compound A. He bases his inference on the product’s “behavior” — the product does the same a product with compound A. The defense demurs and says such behavior can be caused by the presence of a compound B.

    Is the question of whether the prior art product has compound A a question of fact or one of law?

  13. “And, who is to decide whether the prior art has an element? A judge or a jury? ”

    I think that depends on the procedure.

    “Isn’t this anticipation?”

    You need to read the other decision because it’s plainly a 103.

    ” think the District Court rather than the courts of appeal must finds the facts.”

    Which they did.

    “The dispute centered on two elements. The CAFC found both elements present, then held the claims obvious under 103.”

    1. the “dispute” that arose on rehearing was the sufficiency of a factual finding to impart invalidity. And 2. actually the CAFC didn’t find both elements “present”. You really need to read the whole decision in its entirety and stop acting like the sky is falling.

  14. Also, this is a very odd obviousness case that proceeded on the basis that all the claim elements were found in a single prior public use. The dispute centered on two elements. The CAFC found both elements present, then held the claims obvious under 103.

    Huh?

    Isn’t this anticipation?

    And, who is to decide whether the prior art has an element? A judge or a jury?

    103 Obviousness is reserved to the situation when a single prior art reference does not disclose every claim element. If the prior art does, the issue is not obviousness, but a question of fact.

    Obviousness is reserved to situations where the skill of the person of ordinary skill can make substitutions or additions to what is there. The judgment is based on the claims as a whole, and that judgment is the one that is of “law.”

    Deciding whether elements are present or not is a factual inquiry reserved for the trier of fact. If there is a right to a jury trial, the courts cannot decide the facts. If there is no jury trial right, I think the District Court rather than the courts of appeal must finds the facts. The assessment by the appellate court is based on clear error, not based on de novo.

    Everything about this case seems a bit screwed up.

  15. because the facts were heavily disputed.

    Right, but that’s only because (1) one side was obviously full of sh*t. Get it?

  16. The appeals court cannot find facts in the first instance on appeal.

    The sky is blue. Water is wet. And databases and “identifiers” are nearly as old as computers. For many decades (at least) no computer-implemented methods or systems or compositions could ever properly be deemed patentworthy merely because such bogus “limitations” are added to the prior art.

    In addition, the Constitution remains perfectly alive and well whenever lawyers are prevented from trying to convince a jury otherwise.

  17. Re: 3. The dispute was whether the prior art system had a database.

    Re: 5. The dispute was whether the messages sent to the shopping cart computer comprised product identifiers.

    Both points were heavily disputed.

    Oh, I’m sure they were. You think “databases” and “product identifiers” weren’t in computer systems in the prior art?

    Maybe Soverain got off easy. Seems like some sanctions were probably in order.

  18. He did so because in his opinion, the evidence was confusing.

    Sure it was reaaalllly confusing. Because this “technology” is really hard, especially when you are looking at the gobbledygook in the specification instead of the functionally claimed kindergarten-level j*nk in the claims.

    But it wasn’t confusing to Judge Newman. And correct me if I’m wrong, but isn’t she believed by the folks who tend to embrace this kind of crp to be somewhat persuasive and especially tech-savvy?

  19. The case discussed two limitations: elements number 3 and 5.

    Re: 3. The dispute was whether the prior art system had a database.

    Re: 5. The dispute was whether the messages sent to the shopping cart computer comprised product identifiers.

    Both points were heavily disputed. These are issues of fact, not obviousness. If there was a right to a jury trial, these issues should have been resolved by the jury.

  20. “The district court’s conclusion that a prima facie
    case of obviousness was not met is not explained by the court or by Soverain, and does not accord with the record.

    That’s called a slam dunk. Goodnite, Soverain! Maybe Soverain can waste some more money by hiring Ted Olsen and David Boies, too.

  21. I can hardly believe that a court could … establish that the public use was established by clear and convincing as a matter of law.

    Uh … why? What’s so special and hard to prove about that?

  22. This from the opinion:

    “The district court’s conclusion that a prima facie
    case of obviousness was not met is not explained by the
    court or by Soverain, and does not accord with the record.
    Dr. Shamos did not provide evidence to rebut Newegg’s
    prima facie case that every claim element was embodied
    in the prior art.
    Although the district court criticized Mr. Tittel’s
    expert report on the question of obviousness, the trial
    record contains extensive testimony of the experts for
    both sides, discussing every claimed element of the patented
    subject matter and the prior art system. Their
    testimony was subjected to examination and crossexamination,
    before decision of the question of obviousness
    was removed from the jury.”

  23. MM, but the evidence must be clear and convincing to hold a patent invalid. The prior art here was public use and the testimony was by fact witnesses. There was a dispute whether claim elements were found in this prior art. I think these are fact questions, not obviousness questions.

    The legal part of obviousness is addressed to the claim as a whole.

  24. Regarding “must,” if there is a right to a trial by jury regarding validity, and the evidence is public use supported by fact witnesses, I can hardly believe that a court could hold that the facts are not in dispute when they are heavily disputed, nor can they establish that the public use was established by clear and convincing as a matter of law.

    On the contrary, if there is not right to jury trial, I think the court is quite justified to decide the facts himself.

  25. He did so because in his opinion, the evidence was confusing. I think this reason is a good one if there is no right to a jury trial. I am not so sure it is a good one if there is a right to a jury trial.

    Also consider that if the evidence is confusing, it may not be “clear and convincing.” I think that is what he meant.

  26. “There must be a “real invention” in that specification somewhere, right? ”

    A lot of that mindset is spill over from where in the useful arts nearly every single app will in fact have some “real invention” in there somewhere. Not all, but pretty much all. Whether or not it is valuable or not is another question.

  27. Ned: I think they are arguing that the Federal Circuit should not have held the patents invalid if they disagreed with the District Court, but should have remanded to have the issue once again tried to the jury.

    Why would they do that when they can see that the patent is invalid as a matter of law? What’s the point of the circus in that case? Total waste of resources and everybody’s time.

    If this case provides any guidance, it would seem that most courts could remove from the jury’s consideration the question of obviousness and decide the case themselves on the basis that the factual disputes were not material.

    Sure, but only in the circumstance were the district court judge can explain in a convincing manner why the factual dispute “is not material”. What’s the problem with that?

    the issue … may also involve the subsidiary issue of whether the issue of validity must be tried to a jury under the 7th Amendment.

    When you say “must”, do you mean “even where there is only one legally correct result based on the indisputed facts”?

    The jury trial issue may not have been pressed heavily by the patentee given that they had won below.

    Not that it matters much (because the patentee never complained that I’m aware of) but did the judge sua sponte take the issue out of the jury’s hands or did he do it upon the request of the patentee?

  28. Let’s summarize.

    At the close of trial, the district court withdrew obviousness from the jury and held that the patents were not invalid for obviousness. He did so on the basis that the facts were not in “material” dispute and because the issue could resolved as a matter of law. (Summary judgment standard?)

    The Federal circuit reversed, holding that removal from the jury was OK, and holding the patents obvious as a matter of law.

    The jury trial issue may not have been pressed heavily by the patentee given that they had won below. But now the issue is now serious. I think they are arguing that the Federal Circuit should not have held the patents invalid if they disagreed with the District Court, but should have remanded to have the issue once again tried to the jury.

    If this case provides any guidance, it would seem that most courts could remove from the jury’s consideration the question of obviousness and decide the case themselves on the basis that the factual disputes were not material. But why is that fig even necessary if there is no right to a jury trial in the first place?

    I think the issue is fascinating, and may also involve the subsidiary issue of whether the issue of validity must be tried to a jury under the 7th Amendment. Cf., the vacated Lockwood v. American Airlines, 107 F.3d 1565 (1997). If it does not, the District Court would seem to have the power to decide the facts regardless of a jury trial demand. That to me is what happened here.

  29. Witness the series of articles and the GAO report

    Behold! Patent Jeebus brings us a series of articles and a GAO report! He knows exactly what they mean. Bow down, everyone.

  30. Lame and trite

    Indeed, nothing remotely as insightful as “How Fn LAME” or “another vacuous post.”

    Thank you, Patent Jeebus! Bow down, everyone. Patent Jeebus is here to tell us what is right and wrong.

  31. How Fn LAME.

    Thanks, Patent Jeebus. You’re whistle is so beautiful. Bow down, everyone. Patent Jeebus is here to tell us who is right and who is wrong.

  32. True to form, the Church of Patent Apology has a write-up about the Soverain case but (surprise) somehow the expert in patent law and computer technology who wrote it has absolutely nothing to say about whether the decision regarding obviousness is correct or not.

    Nope. Why, that just wouldn’t be “fair”, would it? So what happens instead? Patentee counsel Seth Waxman’s boots get licked nice and shiny. Isn’t that special?

  33. Another post by you Malcolm that is merely empty vacuous prattling.

    You haven’t insulted the GAO Report writers yet, nor Steve Moore – pacing yourself I see.

  34. Reposted from below so it doesn’t get lost and Dennis can correct his article:

    I note that Dennis failed to mention that Soverain is a quintessential patent troll.

    link to arstechnica.com

    Soverain isn’t in the e-commerce business; it’s in the higher-margin business of filing patent lawsuits against e-commerce companies. And it has been quite successful until now. The company’s plan to extract a patent tax of about one percent of revenue from a huge swath of online retailers was snuffed out last week by Newegg and its lawyers, who won an appeal ruling that invalidates the three patents Soverain used to spark a vast patent war. [MM: fyi, I believe these three patents are 5,715,314, 5,909,492, and 7,272,639; Dennis was mistaken upthread when he said those patents were still alive -- they are dead as doornails, good riddance, so long, goodnite].

    The ruling effectively shuts down dozens of the lawsuits Soverain filed last year against Nordstrom’s, Macy’s, Home Depot, RadioShack, Kohl’s, and many others (see our chart on page 2). All of them did nothing more than provide shoppers with basic online checkout technology…

    For Newegg’s Chief Legal Officer Lee Cheng [< -- an actual patent attorney who isn't a snivelling toad when it comes to telling trolls where to stick it], it’s a huge validation of the strategy the company decided to pursue back in 2007: not to settle with patent trolls. Ever.

    “We basically took a look at this situation and said, ‘This is bllsh*t,’” said Cheng in an interview with Ars. “We saw that if we paid off this patent holder, we’d have to pay off every patent holder this same amount. This is the first case we took all the way to trial. And now, nobody has to pay Soverain jack squat for these patents.”

    Enjoy.

  35. I am the one that brings the points and insights,

    Indeed. You are the second coming of patent Jeebus. Bow down, everyone.

  36. Except Malcolm, I am the one that brings the points and insights, while all that you do is dissemble and spin.

    Witness the series of articles and the GAO report, and your vacuous response.

    Do you realize how transparent you are?

  37. Says the s*ckpuppet. Too funny.

    LOL – way too funny that Malcolm would retreat to this *script* of his.

    Did you get permission from Francis?

    LOL, Malcolm, you are a riot.

  38. You seek to dismiss anything that gets int he way of your agenda without even bothering to recognize what it is that you are shoving aside.

    In fact, it’s you who seek to dismiss anything that gets int he way of your agenda without even bothering to recognize what it is that you are shoving aside.

    Fun game, TB. Want to start another round.

  39. Malcolm,

    You are delusional. You seek to dismiss anything that gets int he way of your agenda without even bothering to recognize what it is that you are shoving aside.

    There is plenty of Kool-Aid around – but you are the one peddling it.

  40. I would prefer it tough if the examiners would require a clarifying amendment. Wouldn’t you?

    Pretty sure it’s not a question of “preference” but rather the law.

    The problem, of course, is that in many cases the written description support isn’t there. That’s why it occasionally gets “waved off.”

    As we all know, the operating mindset at the PTO is that everyone who files an application deserves something for their money. There must be a “real invention” in that specification somewhere, right? Otherwise they wouldn’t have paid the fee to paly at the Patent Casino. This drives a lot of behavior at the PTO, at all levels.

  41. If you think “the GAO” report or some “series of articles” at the Church of Patent Apology has somehow “debunked” the existence of patent trolls and the j*nk patents flowing out of the PTO every week, you are not only drinking the Kool-Aid but mainlining it.

  42. If these patents were directed to transmission systems for tractors then you wouldn’t be here

    Ah, yes, those tractor transmission trolls and the sea of j*nk functional claims that they use to shakedown farmers. This is a widely recognized problem. I’ll get right on it.

    The decision has absolutely, positively, nothing to do with the fact that the claims are directed to computer-implemented inventions. It’s a 103 decision.

    LOL. Hey, if it makes you happy to believe that, then go with it.

    this type of case bolsters the pro-software patent eligibility side

    Uh .. no.

    it shows that obvious software claims–even those of trolls–will be struck down

    At the Federal Circuit. After millions of dollars are spent defending the j*nk that should never have issued in the first place. Please show me where anyone from the “pro-software patent eligibility side” made any attempt to speak out against the assertion of these j*nk claims by Soverain. I know that plenty of people on the “other side” did so.

    This is a genuine public relations problem that the sofrware patent bulls need to address. Maybe over at the Church of Patent Apology, instead of crowing about the j*nk that IBM or Apple or Google is filing (or worse, getting allowed), the geniuses over there can start pointing out the massive reams of j*nk being filed. You know, they could actually help the PTO out and avoid the even worse PR (for “their side”) that will result when the j*nk is asserted and ends up in the news. And it would show that they actually care about “improving patent quality”.

    Get it?

  43. What are you trying to say?

    If these patents were directed to transmission systems for tractors then you wouldn’t be here, but since these claims are directed to computer-implemented inventions, and were invalidated, you come around here puffing your chest out like it’s some victory.

    The decision has absolutely, positively, nothing to do with the fact that the claims are directed to computer-implemented inventions. It’s a 103 decision.

    In fact, I’d argue (as I did above) that this type of case bolsters the pro-software patent eligibility side because it shows that obvious software claims–even those of trolls–will be struck down, thus nixing the argument that excluding certain subject matter is the only solution.

  44. Gotta love this from the first opinion:

    “The distinction proposed by Dr. Shamos and advanced
    by Soverain is not embodied in the claims and not
    reflected in the claim construction.”

    This lead to the holding that the particular claim limitation was obvious — as a matter of law. Arguing points of distinction not in the claims is tantamount to an admission that the claim limitation is in the prior art.

    Arguing features not in the claims is common practice during ex parte prosecution. Many examiners call the prosecutor on this — pointing out that the argument is beyond the scope of the claim. But at times, the claims are allowed and the point argued limits the scope of the claims through disavowal. Disavowals are handled during claim construction and apply both for infringement and validity.

    But, I would prefer it tough if the examiners would require a clarifying amendment. Wouldn’t you?

  45. Not sure what you mean by ‘script,’ Malcolm (other than your usual accuse-others-of-that-which-you-do nonsense).

    But it does come from the series of Articles (not by Quinn) at IPWatchdog – by a guy who happen sto know a bit about patent law (you know, he was involved in the Taffas case), as well as the GAO report.

    If you think that is Koolaid, you have some explaining to do.

  46. Could be a litigation tacit.

    I suppose. “Hey, Federal Circuit, look at who we just hired! Makes you think a little more about how serious we are, doesn’t it?”

    That’s pretty sad.

  47. Speaking of Seth Waxman, he seems like a reasonably intelligent person with some knowledge of the Supreme Court. Does he really think the Supreme Court is going to give mouth-to-mouth to some patent troll’s shopping cart claims just so they can fuss over whether the Federal Circuit “delved into issues of fact”?

    Good luck with that, Seth.

  48. Much like the (false) “Troll” hubaloo

    Too funny. Is that the new script? Because it sounds a lot like the old script. You guys never cease to amaze. Tastiest. KoolAid. Ever!

  49. I note that Dennis failed to mention that Soverain is a quintessential patent troll.

    link to arstechnica.com

    Soverain isn’t in the e-commerce business; it’s in the higher-margin business of filing patent lawsuits against e-commerce companies. And it has been quite successful until now. The company’s plan to extract a patent tax of about one percent of revenue from a huge swath of online retailers was snuffed out last week by Newegg and its lawyers, who won an appeal ruling that invalidates the three patents Soverain used to spark a vast patent war. [MM: fyi, I believe these three patents are 5,715,314, 5,909,492, and 7,272,639; Dennis was mistaken upthread when he said those patents were still alive -- they are dead as doornails, good riddance, so long, goodnite].

    The ruling effectively shuts down dozens of the lawsuits Soverain filed last year against Nordstrom’s, Macy’s, Home Depot, RadioShack, Kohl’s, and many others (see our chart on page 2). All of them did nothing more than provide shoppers with basic online checkout technology…

    For Newegg’s Chief Legal Officer Lee Cheng [< -- an actual patent attorney who isn't a snivelling toad when it comes to telling trolls where to stick it], it’s a huge validation of the strategy the company decided to pursue back in 2007: not to settle with patent trolls. Ever.

    “We basically took a look at this situation and said, ‘This is bllsh*t,’” said Cheng in an interview with Ars. “We saw that if we paid off this patent holder, we’d have to pay off every patent holder this same amount. This is the first case we took all the way to trial. And now, nobody has to pay Soverain jack squat for these patents.”

    There you are.

  50. Much like the (false) “Troll” hubaloo, much (way too much) dust gets kicked up – and you can thank the anti-software, anti-business method agenda seeking dustkickers for that.

    No shortage of QQ.

  51. The fact that these claims happen to be directed to computer-implemented inventions is irrelevant for all intents and purposes.

    Hardly. You think it’s just a coincidence that this case was brought in the Eastern District of Texas?

    if the USPTO did what it should have in the first place–reject this as obvious under 103–then there wouldn’t have been an issue.

    Is that because Soverain doesn’t like to appeal adverse decisions?

  52. No, but if the USPTO did what it should have in the first place–reject this as obvious under 103–then there wouldn’t have been an issue. The fact that these claims happen to be directed to computer-implemented inventions is irrelevant for all intents and purposes.

  53. Maybe, just maybe, this case is proof that the junk gets kicked out like it should.

    Right. This is surely way to get rid of computer-implemented j*nk: spend millions of dollars to get the Supreme Court to uphold an obviousness finding that should have been made by the PTO in the first instance and was subsequently bungled by (surprise!) some goober judge in Texas.

  54. A computer-implemented invention being ousted under 103(a)?

    With all of the hand-wringing and pearl-clutching that’s been going on I’d have thought this would be an impossibility, because, boy, if a claim satisfies 101 it is certainly going to be granted!

    Maybe, just maybe, this case is proof that the junk gets kicked out like it should.

    And what is with the replacing letters with characters? Are you twelve? Am I missing something?

  55. before you feel too sorry for Soverain, you should note that the company has a set of additional patents in the family that it can still assert. See, e.g., 5,909,492, 5,708,780, 6,449,599, and 7,272,639.

    No doubt those claims are just as awesome as the computer-implemented shopping j*nk that just got tanked.

    I suspect that Soverain will push for a petition for writ of certiorari. In the en banc rehearing request, the company added Seth Waxman to the list of counsel and the company has at least 15 live infringement cases involving the ’314 patent.

    Golly, that’s a lot of money going to the pockets of patent lawyers. Maybe someone at Soverain could discover something useful to do with that money instead. Isn’t that their speciality? Or maybe they just like to throw paper at people.

  56. “”The panel’s decision analyzed the wrong claim of the ’314 patent. The asserted claims at trial were claims 35 and 51–not claims 34 and 51.” ”

    /facepalm.

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