Enforcing Injunctions: Perhaps Not so Powerful

By Dennis Crouch

NCube (ARRIS Gp) v. SeaChange (Fed. Cir. 2013)

Injunctive relief is a powerful mechanism for stopping ongoing patent infringement and for forcing settlement by placing large hold-up costs on adjudged infringers who are locked-into maintaining their technology profile. In the area of multi-component systems, many accused-infringers and academics argue that the hold-up costs of injunctive relief sets-up an imbalance of power that results in a windfall settlement for minor-component patentees. The prototypical case is where an injunction is ordered to stop sales of a complex product based upon the finding that one of the many components infringes a patent.

The decision here offers a counterbalance based upon the recognition that product specifications and production methods are continually updated and modified. Major modifications may result in a new product version, but more minor changes regularly implemented without direct customer notification.

Here, the ARRIS patent covers a system of delivering streamed video that have been purchased online. Patent No. 5,805,804. A jury found that SeaChange’s ITV product was infringing and the district court entered a permanent injunction – enjoining SeaChange from using or selling the ITV product or “any devices not more than colorably different therefrom that clearly infringe the Adjudicated Claims of the ’804 patent.” Although stated within the same paragraph here, it actually took four years for the court to order the permanent injunction following the jury verdict. The delay took into account post-verdict motions and briefing and then an appeal to the Federal Circuit where the verdict was affirmed.

By the time the injunction order became effective, SeaChange had modified its ITV system in order to avoid infringement. This approach is common. In essence, when an injunction issues regarding a minor component of a product, the outcome is normally not to cease manufacturing and sales but rather to modify or “patch” the product design and thus avoid the injunction. It’s also common that the work-around is – from the patentee’s point of view – still within the coverage of the patent.

After a failed settlement attempt, ARRIS filed a contempt motion asking the district court to stop the sales. However, the district court refused and that refusal has been affirmed on appeal the Federal Circuit. Rather, in order to stop the new product ARRIS would need to file an entirely new federal lawsuit.

Contempt motions are actually difficult to win. The basic rule is that the party seeking to enforce the injunction must provide clear and convincing evidence that the accused activity falls within the injunction. For new product designs, the courts only allow contempt when the new product is “no more than colorably different” than the one found to be infringing. See TiVo v. EchoStar (Fed. Cir. 2011) (en banc).

Here, the modification was to basically take a ClientID out of a particular table stored on the system and instead stored elsewhere on the system. Although the ClientID still performs the same function, the change “is a significant change to the system.”

The result then is that ARRIS only avenue for enforcement is to file a new infringement lawsuit.

101 thoughts on “Enforcing Injunctions: Perhaps Not so Powerful

  1. They say it’s the world’s first bionic man. 1 milly to build. Imagine how pimp this thing would be if they put a billion into construction. link to news.yahoo.com…”Does creating something so humanlike threaten notions of what it means to be human?”How much longer will the “computers don’t think” crowd hold on to their iron age beliefs?

    1. His awkward, jerky walk makes him more Frankensteinian than ever.1. An improved bionic man, wherein said bionic man comprises a computer, wherein said computer is part of a system controlling the movement of said bionic man, wherein said computer receives data from multiple sources, wherein said data describes the limb motion of said bionic man, wherein said computer processes said data describing said limb motion, and wherein said computer is configured to adjust a plurality of parameters related to leg motion, wherein said adjustment includes adjustment to reduce movements selected from the group consisting of awkward movements and jerky movements.”Please pay me for this incremental innovation. Love, Intellectroll Ventures.”

  2. link to ipwatchdog.com…”AIA II would severely restrict a non-practicing entity’s right to enforce its patent. But, Judge Michel explained, this is contrary to what our Founding Fathers wanted. British law, at the time, only granted patents to practicing entities. The drafters of our Constitution did not want to limit patents to the rich and wrote our laws to reflect that position. Judge Michel emphasized this point by invoking the names of Thomas Edison and the Wright Brothers as people who were then able to choose “inventor” as a career. Neither of them ever produced a product. They were non-practicing entities and would be considered as such by the bills before Congress.”It does seem that PO is biased against patents. I will say again that the group that is biased against patents consistently advocates ignorant positions regarding information processing and consistently advocates policy based results rather than applying the law.This board is also infected with paid bloggers. It is impossible to post a substantive argument on this board that is against the policies funded by as CF Michel says a small group of well funded companies. The post is flooded with garbage responses from a small number of posters on here.It is deeply disturbing that the Fed. Cir. has been stacked with judges that have no experience in patent law and probably even more disturbing is they don’t even have science backgrounds. One must put 1 and 1 together to conclude that this stacking of the Fed. Cir. is the result of the small well funded companies buying off Obama and Congress. We see all that play out on this board. The paid bloggers flooding making it impossible to have a civilized discourse.

    1. “We see all that play out on this board. The paid bloggers flooding making it impossible to have a civilized discourse.”Fascinating. With the new format, it’s quite easy to see who is “flooding” the board with comments. The top 5 are MM, anon (despite that he apparently can no longer spend the whole work day commenting), Ned, 6, and you. Which of those are the “paid bloggers”?

      1. I agree it is better with the new format. I suspect Ned of being a paid blogger and I suspect MM of being a paid blogger. 6 likes to tag along with them.

            1. If he were a paid blogger, don’t you think he would squarely deny it?Still, thanks for being constantly vigilant against lawyers who are paid to have their client’s opinion. Can’t be having that in our profession.Gosh, I wish I could find all those posts of yours under the old comment system, hilariously interspersed with your “paid blogger” rants, where you repeatedly said that your opinions as posted here just happen to coincide with those of your paying clients.If and when you reply, don’t forget to squarely deny that you’re a mythical creature with the head of an egret and the body of a wallaby. Because we all know that random silly accusations on the internet are always true unless they’re squarely denied.

            2. The irony, of course, is that NWPA’s complaints about the horrors of imaginary “paid bloggers” who comment here were preceded by NWPA favorably quoting an article written by a patent litigator who works for Ray “Original Patent Troll” Niro which itself favorably reviewed a (presumably) paid-for speech given by a former judge to attendees of a symposium named after Ray Niro.

            3. IANAE there is a difference between someone that states his background and interests–me, and a paid blogger who is being paid to post the views of others. I am not going to take the time to explain this to you AGAIN because you would just re-post the same nonsense anyway. The difference is so fundamental that I can’t believe any educated person would not see and understand the difference.And, IANAE I have many times said squarely that I am not a paid blogger. I have told people on here what my job is and what my education is. Of course, you know that. But, your dirty little mind likes to misrepresent what I write.IANAE you are one dirty nasty person to consistently misrepresent what I write and intentionally cloud issues. I would guess that in your mind you think that you are a crusader so it justifies your behavior, but at the end of the day there are no justifications for not following the rule of law and not trying to have an intelligent debate and be fair with people in arguments.So, again, what we have here is my posts which can be edgy, but I put things out under my opinion and take responsibility for what I say. And, IANAE and his filthy lot misrepresenting and lying, but the key difference is that they intentionally misrepresent my posts. That is the key cleaning this board up. I don’t really care if they say bad things about me as long as they take responsibility for it. I don’t like it when they misrepresent what I wrote and try to attribute it to me. And that is the key to cleaning this board up. Because every good poster on here has left because there is a core of tro$$s that take their posts and then misrepresent and try to attribute it to the poster. The poster is left with a disturbed feeling and does not like their names associated with the misrepresentations.Just read some of IANAE’s posts where he summarizes other people’s posts. It is obvious that he has the intent to misrepresent and harm the other person by summarizing their posts and then trying to attribute it to the other person. That is the game that f stopped would clean this board up.

            4. “And, IANAE I have many times said squarely that I am not a paid blogger.”But you are a paid attorney, who’s livelihood depends, in your view, upon your blogging to counter the forces of evil. Same thing practically speaking. And to be honest I think in his mind he’s just a normal person not paranoid about conspiracy theories about paid bloggers that will somehow lead to the end of all things. “and take responsibility for what I say.”How precisely do you take responsibility for what you say? “I don’t like it when they misrepresent what I wrote and try to attribute it to me. And that is the key to cleaning this board up.”Your not liking something is the key to cleaning up the board? “Because every good poster on here has left because there is a core of tro$$s”Seems more likely they were just bored or had rl intervene. Sometimes it can be hard to even get D’s posting system to work. Anon seems to be suffering from that now. I have problems at work with being able to post because of security software running on IE5, yes I said IE5. “The poster is left with a disturbed feeling and does not like their names associated with the misrepresentations.”Perhaps they could post about things that aren’t so easy to misrepresent?

            5. 6, don’t be ridiculous. You are outside your competency zone. Try to grow up. It is a matter of a group of people on this board intentionally misrepresenting posts and then trying to attribute it to the other person. It is a mean and dirty tactic that should not be tolerated. It is clearly and explicitly meant to harass and drive posters off this board.And, of course, it is a form of libel. It is in effect someone saying that you said something you did not say. That is why it is such a dirty tacit. It was very popular by republican candidates in the 1970′s, but if my memory serves me, I think the FBI put a stop to it by putting people in prison for doing it.Here on PO we have MM who in almost everyone of his posts misrepresents someone else’s post. For years, he has driven off some of the best posters on this board and filled this board with this perhaps the most dirty form of libel.People simply don’t want to post when they know that MM will take their post and intentionally misrepresent. He is a liar and dirty filthy human being. IANAE consistently does the same thing.

            6. ” It is a matter of a group of people on this board intentionally misrepresenting posts and then trying to attribute it to the other person.”Seriously? You want to talk about growing up? Grown ups understand that other people have different views, and will sometimes try to recast what other people say from their point of view to highlight how preposterous it sounds. This is done to highlight, to others, how preposterous it should be from their point of view as well. It’s called persuasion. You should look into it. Political commentary is all about this, like 24/7 trying to persuade people.

            7. 6, don’t be ridiculous. It is not called persuasion. It is called dirty tactics. And intentionally misquoting someone is libel/slander. And, if you knew what you were talking about, you would know that it is considered so detrimental to constructive discourse that it is perhaps the one thing that is not tolerated in politics in this country. That is generating false statements and attributing them to someone else. That will get you put in prison. That is what MM and IANAE do all the time on this board.That is the one behavior that if banned would repair this board.

            8. “It is not called persuasion. It is called dirty tactics.”I see no reason it can’t be both. “And, if you knew what you were talking about, you would know that it is considered so detrimental to constructive discourse that it is perhaps the one thing that is not tolerated in politics in this country. “Oh so that’s why we have senators calling each other crazy birds and restating each others positions in order to persuade. Oh, say like calling the defunding of the government holding a gun to the dems heads. Everyone knows the republicans didn’t literally pull a gun on the dems head. Get over it NWPA, it’s par for the course politicing. I don’t know what happened in the 70′s, or how you percieved it, perhaps in a drug induced haze, but nobody went to jail for recharacterizing another person’s argument from their perspective. Period. We have a first amendment for a reason and it is liberally applied when it comes to political speech.

            9. No, you said mischaracterizing. But the only characterizing he does is recharacterizing, either properly or improperly (aka mischaracterizing), from his point of view. Aka recharacterizing. The only reason the mis gets added is because of your subjective beliefs about how he recharacterised your position. And the reason I’m involved is because copycatanon, after seeing you bring up the topic so much, decided that he should make it standard fare in his postings to just about anyone who disagrees with him. So if you whiners are to be believed then everyone is constantly picking on you by mischaracterizing you. Nonsense. Lampooning you to highlight the absurdity of your position from their point of view is more like it. What is being done is standard fare in political circles, and just because you’re insulated from that in your tiny lawlyer world suffused in groupthink, at least somewhat, doesn’t mean that you necessarily should be here. If you want to discuss the law on an ultimately political level then you’re going to have to live with politicing. It ain’t pretty.

            10. The simple reason why it is not both is that one involves intellectual dishonesty.This is not rocket science 6.

            11. So, again, you do not squarely deny it. And, again, you have misrepresented what I said and then tried to attribute it to me.You are such a filth bag.

    2. Thomas edison and the wright brothers never produced a product? Edison had several entire industries and the wrights made planes I think.

    3. Judge Michel emphasized this point by invoking the names of Thomas Edison and the Wright Brothers as people who were then able to choose “inventor” as a career. Neither of them ever produced a product.Huh?It does seem that PO is biased against patents.Then go elsewhere and enjoy those great comments from Mean Gene Quinn and all those insightful, unbiased articles phoned in by Gene’s friends at Ray Niro’s Magical Trollhouse Cookie Tree.

      1. So in other words, your intent is to be obnoxious to run off anyone that doesn’t agree with you. Thanks for confirming that.

        1. your intent is to be obnoxious to run off anyone that doesn’t agree with youNot at all. I’m happy to disagree with all kinds of people about all kinds of stuff. I disagree quite often, in fact, with the people whom you seem to believe I’m “in cahoots with.” I’m merely suggesting that you might be happier somewhere else, where the “anti-patent bias” isn’t so “obvious” and people are less “ignorant” about super complicated stuff like how to identify available real estate with a computer, or how to instruct a computer to do something “new” in response to an old finger swipe on an old touch-screen.

          1. My apologies at the onset, as this will be a long post.First and foremost, NWPA is exactly right in what plagues this board (“ MM knows exactly what he is doing. He doesn’t care about a substantive debate. He is a policy driven (amoral) patent hater. The rule of law means nothing to him ”) – and that so happens to coincide with my personal advice to Prof. Crouch coming on nigh TWO YEARS now.If the new software does anything at all, it only highlights the fact that I have been long correct about exactly what is low quality blogging.Four sets of comments:ONEMalcolm incorrectly tries to spin intellectual honesty as being represented by the presence of mere disagreement:“ Not at all. I’m happy to disagree with all kinds of people about all kinds of stuff. I disagree quite often, in fact, with the people whom you seem to believe I’m ‘in cahoots with.’”Happy to disagree is simply not the point – it is in HOW you express that disagreement. Reposting with only a slight alteration another post of mine from a recent thread (one that was upvoted by Prof Crouch):It is not that you shouldn’t disagree, Malcolm, it is that you shouldn’t disagree in the way that you are disagreeing.Leave out the misstatements of fact.Leave out the misstatements of law.Leave out the misstatements of what others post.Leave out the strawmen.Leave out the dust-kicking.Leave out the obfuscations and dissembling.Leave out the Accuse-others-of-that-which-you-do.Acknowledge and integrate into the discussion the valid points raised against the viewpoints you hold so dear. You have made admissions against interest – start with those. Then include that software is a manufacture and a machine component. Then include that business methods are captured in the Useful Arts (and have been throughout the life of the US patent system).Malcolm asks“ Does “civilized discourse” include suggesting that commenters you disagree with are paid to post false information here?”and I would reply to him that whether you are paid or not is not the focal point – that you do post false information is the focal point.And then seriously Malcolm has the gall to throw out a line like “ Seriously, man, glass houses and all that.” – the man who lies tattered and shredded from the shards of his own shattered crystal palace. Yes the software can eliminate ‘insults’ but we need to be clear about the difference between undeserved insults that serve no purpose and deserved insults that can serve a norming purpose. The new software helps – but not every flagged abuse has been lifted, and the wrong person is being followed, amongst other peculiar treatment of and by Malcolm – still no answer as to why the secrecy and why Malcolm is not a part of the Patently-O DISQUS community.To the point of “ Guess what? The law is always changing. Guess why? Because people advocate for change for policy reasons.” – again – nothing wrong with advocating, even if all you have to advocate with is policy (the adage of Malcolm pounding his paper table fits here), but the CRITICAL part is in HOW you advocate. You need to use some intellectual honesty in your advocacy. Stop the dissembling, the duplicity, the mischaracterizations, the accuse-others-of-that-which-you-do.“ [Quinn] threatens to ban people from commenting if they dare question the patent apologist script”is completely and utterly false. As has been pointed out with examples of Gene’s guest posters there who do not believe as Gene believes. What WILL get you banned is the kind of intellectual dishonest CRP that Malcolm spews. Twist the facts, or the law, or what others post, and you are warned and then, if you persist, you are banned. Malcolm’s blatant name calling and bias is itself clearly shown that without regard to any content of the posts themselves, you throw around the label of “Magical Trollhouse Cookie Tree.” Try actually to make a comment on the substance of the article. Your name calling is not warranted and not wanted.Your (continued banal) projected ad homonym of “wife beating” is clearly something that is MEANT to be cleansed from the Patently-O. There is no room for that type of remark. Never mind the fact that, exactly like the svckpuppetry you CONTINUE to employ at PatentDocs (a new one being RosalindF), you will not deny it without telling a blatant 1ie – because it is true. And it is true, regardless of who says it.“ It’s more like a ridiculous caricature of “the argument”, presented for the sake of avoiding the issue.”Pure malarkey.There is no avoidance in the analogy whatsoever. The logic you employ as to a computer made to be changed is exactly the same vacuous logic in the analogy of what is capable to be done with the three elemental particles. Stop your intellectually dishonest attempt at the “House” argument that the first invention of the computer covers all improvements to the computer. No use of the Morse “all ways not yet realized” argument is allowed. Further, Malcolm himself has volunteered the admission that ‘configured to’ is structural language and needs to be intellectually honest on that point.“ and obtain claims to old, generic computers merely by reciting a “new” function that the old generic computer is “capable” of performing”See immediately above. I will add that this has no place on this board. Malcolm knows that the claim is not to an old computer. In fact and in law, software is a manufacture and a machine component, and the change of an old computer with the configuration of software makes a new machine. See Alappat. Address the law and advocate with SOME small degree of intellectual honesty.“ You’re one of two or three people in the world who continue to say such things”– the Accuse-others-of-that-which-he-does B$ continues. Malcolm denies true reality. “Malcolm provides a link to Arstechnia and says “Heckuva job” Malcolm, I advise you to try a little legal argument instead of the pandering. Take a look at the source (Arstechnica – there is NO legal veracity tobe had there). This is a LEGAL blog, Malcolm, that is the REALITY here. Embrace it and use some substantive legal positions in your comments.TWOLeopold, long an unabashed Malcolm ally, misrepresents NWPA’s post and tries to spin ‘the message’ into something else.“ Fascinating. With the new format, it’s quite easy to see who is “flooding” the board with comments. The top 5 are MM, anon (despite that he apparently can no longer spend the whole work day commenting), Ned, 6, and you. Which of those are the “paid bloggers”?”First, NWPA was NOT merely talking about volume of posts, but rather, volume of posts that are gar b@ge. There is very much a distinction that I have expressed directly to Leopold many many many times – and that is the true underlying message concerning my comment to him that he repeatedly tells the wrong people to just shut up. A post pointing out someone’s gar b@ge post is simply NOT the same as the initiating gar b@ge post. I note that the Crybaby Veto is STILL in effect in part as I am the one followed by Prof. Crouch, while Malcolm STILL is not. As I have further posted, perceptions of unequal editorial control – more so than the truth of any such editorial control – greatly impact this blog. Those perceptions continue to be reinforced with the poster Malcolm, notwithstanding the FACT that he easily reigns as the poster most censored for gar b@ge posts under the new software capabilities.Second, Leopold, only too happily points to my proclivity, while ignoring those that post in greater abundance, not only of timing through the day, but in overall posts. And yes, this conversation ALSO has been had on this board before, so Leopold is once again guilty of a CRP – run away and re-CRP tactic.Third, Leopold subtly twists by neglecting to mention two critical FACTS that has occurred in past conversations on this topic – A) I was the very first one to affirm that I do not post (paid or otherwise) for someone else or in another’s cause, and B) I was the one that pointed out that Prof. Crouch’s ALREADY EXISTING RULES state that posts here are ONLY to be made as your own personal views. Leopold unsuccessfully tried to argue that my interpretation of this QUALITY rule was wrong, and thus implicitly need not be followed. And yet (as I have many times pointed out and explained with examples) posts by – calling a spade a spade – shills are GUARANTEED to prevent conversation. This is easily seen in the difference between a true conversation and mere competing monologues. But only TOO OFTEN those with a desire to soapbox really are not interested in conversation. My veracity on this topic CANNOT be denied.As to content and discussions, the clear soapboxers who want no actual conversation are the ones that I have pointed out. And to diffuse, Malcolm’s poor quality response ahead of time, this is not true merely because I say so (so please, spare everyone the offensive religious insult), but it is true because it is true – regardless of my saying so or not.THREEIANAE, I would like to remind you that under the ethics rules, a real lawyer is NOT paid to have their client’s opinion. They are paid to represent the client in a court of law or in legal negotiations. The client’s views are expressly NOT imputed to the attorney, nor as you suggest here, is shilling a normal part of the client/attorney relationship unless that shilling is performed as a paid duty, which IS expressly against the rules here.Further, your mischaracterizations of posts known to be true as somehow NOT true because they are “on the internet” is pure dissembling CRP. A perfect example are the svckpuppets at PatentDocs employed by Malcolm (especially given the excessive level of his QQ ing about svckpuppets being he worst thing ever here), as absolutely no one other than Malcolm has expressed the views (down to getting the Supreme Court quote on judicial exceptions as dead letters dead wrong). This is NOT a court of law and the abundant proof offered more than suffices. FOUR6, Your comment (and attempted humor) of “How much longer will the “computers don’t think” crowd hold on to their iron age beliefs?” fails on its own accord. Unless you want to remove machines and manufactures from 101, your attempted alignment of advances in machines and machine components built for implementation in humans proves the case AGAINST you. I realize that your ‘character’ makes a point of ignoring logic and disregarding law (or as you put it lawl), but you should realize when you engage in self-defeating behavior that the joke is on you.

            1. “Leopold, long an unabashed Malcolm ally, misrepresents NWPA’s post and tries to spin ‘the message’ into something else.”False. I didn’t misrepresent anything. I stated a few facts and asked NWPA to respond. Which he had no trouble doing.”Second, Leopold, only too happily points to my proclivity, while ignoring those that post in greater abundance, not only of timing through the day, but in overall posts.”False. I listed the top 5 posters since the Disqus format has been introduced. Which person that posts “in greater abundance” did I ignore?”Third, Leopold subtly twists by neglecting to mention two critical FACTS that has occurred in past conversations on this topic – A) I was the very first one to affirm that I do not post (paid or otherwise) for someone else or in another’s cause,…”False. I didn’t “subtly twist” anything. I simply asked NWPA to elaborate on his comment.To quote from somebody who posted here recently:”Leave out the misstatements of fact….Leave out the misstatements of what others post….Leave out the dust-kicking.Leave out the obfuscations and dissembling.”To that I would add, “Leave out the whining.”

            2. Christ that’s long. Initially I’d say that one thing that strikes me about “one” above is that you can always simply post references to establish something if MM is stating the opposite is factually correct. But you never do. And that is a wonder.

            3. “Yes the software can eliminate ‘insults’ but we need to be clear about the difference between undeserved insults that serve no purpose and deserved insults that can serve a norming purpose. The new software helps – but not every flagged abuse has been lifted, and the wrong person is being followed, amongst other peculiar treatment of and by Malcolm – still no answer as to why the secrecy and why Malcolm is not a part of the Patently-O DISQUS community.”I’ve been trying to establish norms around here by calling people tards for nigh on 5 years now, but only very seldom does it stick beyond a day or two. Also I don’t know why this is bolded. As to why MM isn’t on disqus, perhaps it is because he didn’t sign up for it?

            4. “Unless you want to remove machines and manufactures from 101″Well, I’ll settle for just removing the ones that are distinguished from the prior art based on their thinking, or being instructed to think. How’s that work for you? “your attempted alignment of advances in machines and machine components built for implementation in humans proves the case AGAINST you.”My attempted alignment? I didn’t even realize I attempt to align advances in machine components built for implementation in humans much less do I see how that “proves the ‘case’ again me”.

            5. “… amongst other peculiar treatment of and by Malcolm – still no answer as to why the secrecy and why Malcolm is not a part of the Patently-O DISQUS community.”My guess is that MM doesn’t show up on the listing under “Community” because some d00fus has flagged a whole bunch of his posts as “inappropriate.”

    4. The paid bloggers flooding making it impossible to have a civilized discourse.Does “civilized discourse” include suggesting that commenters you disagree with are paid to post false information here? Does “civilized discourse” including sugesting that people you disagree with are likely criminals who should be arrested by the FBI? Does “civilized discourse” include calling people “worm boy”? Seriously, man, glass houses and all that.the group that is biased against patents consistently advocates ignorant positions regarding information processingThere’s a difference between “ignorant positions” and “positions that undermine NWPA’s policy goals.” and consistently advocates policy based results rather than applying the law.Guess what? The law is always changing. Guess why? Because people advocate for change for policy reasons.PO is biased against patentsI don’t see that as the case at all. If you want to see “bias” read the comments over at IP Watchdog where Gene habitually threatens to ban people from commenting if they dare question the patent apologist script. Meanwhile, not a week goes by where you aren’t accusing me or Lemley or some other “well-funded” “anti-patent” entity (Dennis and Jason included, of course) of being part of some nefarious, coordinated misinformation-propagating scheme. Personally, I find your comments interesting insofar as they do appear to accurately represent what many “pro-patent” bloggers seem to believe are compelling “arguments” for making patents even easier to obtain and enforce than they already are. That is, they aren’t “arguments” at all but rather transparent and patehtic attempts to preserve the status quo by frightening people into believing that virtually any change which arguably “weakens” any type of patent is a change that will lead our country back into the stone age.

    5. this stacking of the Fed. Cir.The belief that the Federal Circuit is “being stacked” with “anti-patent” jurists is right down there with the belief that the Supreme Court is “being stacked” with “anti-traditional marriage” jurists. In fact, what is happening and what undoubtedly continue to happen is that the Federal Circuit (and the Supreme Court) will increasingly be “stacked” with people who grew up with computers and who therefore are not impressed when a computer does something that it was built to do (e.g., facilitate the receipt, processing, storage and transmission of whatever information is deemed worthy of same). Even if the computer is so small that …. it fits in your hand! OMG! It fits in your hand!!!

        1. No patent law experience and no science background. That is the issue.Could you remind everybody why you believe that “small well funded companies” want to bribe Obama or members of Congress to “stack” the Federal Circuit with such people? And when did this “stacking” start exactly?

          1. MM, the core of the problem with you is that you summarize other people’s arguments where you intentionally misrepresent them.If I were Dennis, I would ban you from this board for this practice. You commit a form libel on many of your posts.Please re-read my posts and then edit your comment.And, seriously, there is probably nothing else about you that is real horrible. But, your practice of intentionally mis-characterizing other people’s posts is highly offensive.And, it is something that can be enforced. It is the same thing that many people on this board have gotten very angry with you about. What you do is not just put your opinion forward, but you include misrepresentations of other people’s view in your posts.Seriously, a large part of the problems on this board would be solved by enforcing the simple rule of not permitting MM to post misrepresentations of other people’s posts. From reading MM’s interaction with other posters, it is clear to me that the reason they get so mad is they don’t like a post sitting there with their view summarized by MM with intentional misrepresentations. Dennis should ban MM for this practice.And, Dennis you should seriously consider this. Many great posters on this board have left because of MM. MM intentionally drives them off. Just look at his recent posts to me. I would like to post on this board, but it is annoying to post and then have a tro$$ like MM respond to your post with misrepresentations that often are a form libel. And, the casual readers of this board often do not pick on what MM has done.So, here I am giving you an objective way to read MM posts (and others) and ban a form of misrepresenting what others have posted. If I remember correctly, NAL’s main complaint with MM was the same. That he misrepresented her comments. Anon complains about the same thing. And, just read a few strings of MM’s posts. He clearly plays a game of misrepresenting other’s posts. Core to almost all of his posts is an incorrect summary of someone else’s posts. He throws in there all sorts of misrepresentations that clearly are intentional and clearly have the intent to damage the other poster.

          1. Hard to argue with his qualifications. But, in reality he is a government person. That experience really shouldn’t count. Government attorneys are not real attorneys. As I have said before the appointment of these judges is an offense to the patent bar.Also, he has a reputation as a rabidly against patents. (And, frankly, the type of person that doesn’t mind bending the law to get policy results–in other words another one of those people against the rule of law.)Seriously 6. You must see on a daily basis how ignorant people are of science. Can you imagine these 45+ year old judges now learning science? Or now learning patent law?

            1. “Government attorneys are not real attorneys.”Do you even hear yourself talking? You don’t even know his bio. From your favorite blog watchdog:Chen received his B.S. in electrical engineering in 1990 from the University of California, Los Angeles, and his J.D. in 1994 from the New York University School of Law. After graduating from law school, he joined Knobbe, Martens, Olson & Bear, a boutique intellectual property law firm in Irvine, California, where he prosecuted patents and represented clients in intellectual property litigation. From 1996 to 1998, Chen served as a Technical Assistant at the United States Court of Appeals for the Federal Circuit, performing the functions of a staff attorney. At the end of his two-year term, he joined the USPTO as Associate Solicitor and remained in that role until his promotion to Solicitor in 2008. Since joining the USPTO, Chen has represented the agency in numerous appeals before the Federal Circuit and personally argued over 20 cases, issued guidance to patent examiners to ensure consistency with developing law, advised the agency on legal and policy issues, and helped promulgate regulations. He has co-chaired the Patent and Trademark Office Committee of the Federal Circuit Bar Association and is a member of the Advisory Council for the United States Court of Appeals for the Federal Circuit.

            2. My comments were written in view of his bio. That is the resume of the typical government lifer. 2 years at a law firm is not enough experience to take you out of government status.

            3. I get the feeling you don’t even know his Bio. he was an attorney outside the office you know. And where you got your info on his reputation I don’t know. Even your cheerleader Gene likes him. See his bio and Gene loving on him below. He has a bs in EE so I don’t know just how ignorant he is of science. Though I do imagine that he has bought into the ignorant view of software supposedly being structure. We will see though won’t we? link to ipwatchdog.com

            4. I formed my own opinion listening to him at oral arguments at the Fed. Cir. As I said 6, his experience is by far the best of the last lot of henchmen, but he still has no real patent law experience. He is a government attorney. 2 years at a law firm many years ago as a junior associate is not much experience. So, what exactly do you disagree with that I wrote?

            5. Well you do know that when he argued in the Federal Circuit he was representing more views than his own correct? He’s not completely autonomous outside the director’s office. But in any event, I think the part that I most disagree with is the part where you say that he isn’t a true scotsman because his experience is limited outside the office.

  3. Shouldn’t the ease of designing around, the availability of a substitute non infringing component, or the simple removal of the feature by a software update be a strong factor IN FAVOR of an injunction, rather than against?

    1. Shouldn’t the ease of designing around, the availability of a substitute non infringing component, or the simple removal of the feature by a software update be a strong factor IN FAVOR of an injunction, rather than against?That seems reasonble. (a gentle reminder that in this case an injunction was granted and adhered to; the defendant simply changed its product so it no longer infringed or fell within the scope of the injunction).

  4. In that Apple v. Motorola case, Posner made a big point about how easy it is to redesign software to avoid infringement, assuming that is that the part of the software that infringes is truly non essential. Just take it out.If it is not so easy, and one must fight tooth and nail to find the current software product non infringing, then the implication seems to be that the patented component and the way it operates is essential to the larger system. It may not provide the entire value to the larger system, but that is a “red herring” argument that is a legacy from the days of allocating lost profits. The value of an invention to the infringer varies with its use. We learned long ago in the Supreme Court’s vacuum tube case, that different uses of the very same tube justified different royalties because the value of the invention to the end use varied.

    1. In telecom, for example, even though a design around is easy, it’s often expensive in terms of time and money due to the government regulations (sometimes a trivial software change requires a new FCC certification) and wireless carrier certification programs (e.g., Verizon doesn’t like software changes, even trivial ones because the whole device may have to be recertified.) Patent owners know this and use it to their advantage to get a financial windfall that has nothing to do with the real value of their patent.

      1. Mr. Bored, Huh? I think that really depends on the patent. If the feature is, for example, the way a phone scrolls or is unlocked, as in the Apple case, what has this to do with the FTC? IIRC, it was the ease of avoiding infringement that somewhat factored into Posner’s denial of an injunction. That is counterintuitive. The ease of avoiding infringement shows that an injunction does not cause the party enjoined any real harm at all. If enjoined, simply take the infringing feature out.Recall, i4i? MS Word was enjoined, but MS was given time to issue an update that removed the infringing feature. The ease of doing that had to be a factor in assessing the real harm to MS.

        1. FCC. It’s a different entity. Look at the back of your mobile phone. It should have an FCC ID number that it was given when it passed FCC certification.You’re missing my point. A software change to design-around IS easy. It’s the other stuff (government and customer testing and certification) that is tedious and expensive.

          1. How is that the fault (or problem) of the person who created the separate and independent software invention?Those making these decisions then need to accurately assess the value and include full and accurate assessment of what you label as ‘trivial.’What is there to stop a baseline certification from being completed? Why should Big Corp be excused in their business model from properly vetting even the ‘trivial’ aspects that they want to sell to everyone?

  5. This is a pretty good case to think about how bad can a troll really be. How hard is it really to get around any patent? This is another case that provides a macro reality challenge to the patent haters.From what I see most of the “troll” problem is attorneys taking a lot of money from clients when fairly simple counter measures are before them. I will say it again—make it so that the initial phase of litigation is as expensive for the p as the d and the “troll” problem will go away. How? By right, let the d bifurcate to infringement and then invalidity. Costs is those local rules that force all the invalidity contentions up front.(And, yes MM is a super Bozo.)

    1. Bifurcation of infringement and invalidity is a disaster in Germany. It’s unlikely to be any better here.I agree that a lot of the “troll” problem would go away if there was a more equitable allocation of the early-stage litigation costs between plaintiff and defendant. One way to do that would be for the plaintiff to have to pay the defendant’s discovery costs. A substantial part of the cost of US litigation is that the defendant must produce (and have attorneys review, categorize, Bates stamp, etc.) hundreds of thousands of pages of documents.

      1. I agree “bored with your silly comment” that the discovery costs are another huge problem. I don’t know the German system so I didn’t know that.Maybe split the discovery costs? I think all that needs to be done is to keep the costs about equal between the p and d during the early phases.

    2. “How hard is it really to get around any patent?”That depends on what you’re trying to do and how broad the functional language in their claim is now doesn’t it NWPA?

    3. Great idea. Why haven’t courts adopted it yet? Judges must know the burden of developing invalidity contentions, and must know by now that this burden is wasted when the infringement case fall apart. Any idea how often defendants actually bifurcate? Nothing in the rules says you cannot ask.

      1. Local rules force the invalidity contentions up front. Judges generally have no interest in such things. They generally treat the litigants as if they are both culpable for being in court and they should have settled before coming to court.

  6. I disagree with underlying premise of this post. The Ncube Seachange case is irrelevant to whether it’s a good idea to grant injunctions against a complex product for infringement by minor parts of a complex product. Dennis compares a scenario in which Seachange controls the design of the infringing system to a scenario in which an unsuspecting manufacturer aggregates many off-the-shelf components (semiconductor chips, leds, etc.) to make a complex device. He then reasons that because Seachange can create a design-around that is substantial enough to necessitate a new trial on the question of infringement, somehow (hand-waving happens here) that counters the device manufacturer’s argument that complex devices shouldn’t be enjoined for infringement by off-the-shelf parts legitimately purchased from a third party. That’s flawed reasoning because those are unrelated, non-analogous issues. BTW, defendants will always have a design-around in case they lose because that’s the prudent thing to do. It’s not a new tactic and it isn’t unfair.

    1. Seachange controls the design of the infringing systemAs have any of us who have ever designed a system that allegedly infringes an “assumed valid” patent out there, of which there are many many thousands.because Seachange can create a design-around that is substantial enough to necessitate a new trial on the question of infringement, somehow (hand-waving happens here) that counters the device manufacturer’s argument that complex devices shouldn’t be enjoined for infringement by off-the-shelf parts legitimately purchased from a third party.I didn’t get that all. I read the article as a suggestion that perhaps, in certain fields, enforcing an injunction against a system operator who makes a “small” change to his/her system can be difficult. Maybe more difficult than you thought. But maybe for good reasons.

          1. MM knows exactly what he is doing. He doesn’t care about a substantive debate. He is a policy driven (amoral) patent hater. The rule of law means nothing to him. But, anon, we have Lemley, Lourie, Posner, and others that are just as bad as MM. I am not sure how this will turn out. If I had to guess, I would say that some of these people arrested by the FBI. It isn’t that unusual for these types to start committing crimes of corruption. After all, the step from policy driven results to taking money for results is a very small one.If MM wants to refute this, then let him respond to real issues of fact and law that he ignores repeatedly.

            1. You will get downvotes for your asking Malcolm to hold himself accountable (although the FBI part is a bit over the top – I chalk that up to your charming blue-sky-is-falling tendency).No surprise.At all.C’est la vie.

    2. Not only is it not unfair, it is arguably the point of the patent system. Forcing a design-around can stimulate more invention and thus promote progress in the useful arts. Of course it may not do so 100% of the time, but as long as it does so some of the time, that should be good enough.

  7. the ClientID still performs the same functionThat’s one of two options for all information received by a computer. The information either performs a function that corresponds to the arbitrary name given to the information by someone (e.g., an application drafter or a programmer) who is authorized to name the information (e.g., “ClientID” information “identifies the client”; “ClientGrandmaID information”, on the otherhand, “identifies the client’s grandmother”, or perhaps “identifies the grandmother status of the client”) or the information performs any one of a zillion different functions that someone tells the computer to perform with the information (if ClientID information consists of less than 10 characters or an even-number of characters greater than 20, then computer-readable instructions are transmitted wireless to a submarine, wherein the submarine comprises a mobile device, wherein the submarine plays a copyrighted video upon receipt of said instructions). <— that’s innovation! Want more? Just ask.

    1. Enablement? Or are we back to if MM can imagine it in a science fiction story then it is possible and obvious. Why don’t you just image a program to write your blog posts and you can then just review your blog posts written by your personal blog post machine? Or a program to perform your job (whatever that may be, which may be a professional blogger), then just take home the paycheck with no work. Why aren’t those machines here for you MM? After all you and the other patent haters (antis) say you just imagine something that a computer can do and then you tell a clerk programmer to go and get it done. Oh reality again…by the way I am still waiting for an answer to a comparison and contrast of information processing with other areas of patent law. Oh yeah, reality again.

      1. if MM can imagine it in a science fiction story then it is possible and obviousName some information that is “impossible” for a computer to receive, transmit, store or “process.”I am still waiting for an answer to a comparison and contrast of information processing with other areas of patent law.Right, because I want to discuss patent law with some guy on the Internet who thinks I should be “arrested by the FBI”. If you can’t find a way to distinguish a method of “processing information” from a method for, e.g., administering a new therapy to a leukemia patient or weatherproofing a car, then you probably shouldn’t be hanging around here insulting people. Just a thought.

        1. What a wormy way to get out of accountability. Did I say you should be? Or have you mischaracterised again?Is transmit/store/receive the right test? You know it isn’t. Did you forget to type determine or is that the worm in you popping out again? And, what of my question of why you haven’t had a clerk programmer make you a computer program to perform your blogging duties? Why haven’t you done that? Try to stay focused worm boy.

          1. Name some information that is “impossible” for a computer to receive, transmit, store or “process.”This request was in direct response to your insult upthread, NWPA. If you can’t answer or you refuse to answer, then perhaps consider retracting your insult. Thanks.Try to stay focused worm boy.Dennis, I thought your new system made it easier to delete these personal insults directed at other commenters?

    2. link to venturebeat.com…Now that article above must be a complete lie. We know from MM’s posts that if you can imagine it, then it is obvious and simple to do with a computer. The computer was meant to process information ergo all information processing is easy and obvious. Just like the test tube was meant to perform chemical reactions in ergo all chemical reactions are obvious and easy.

      1. …or we can go even simpler:Let me give you three elementary particles that are extremely old in the art (very nearly as old as the universe). Let me also give you the method (the method of nature) of how to combine these elementary particles. Then let me give you the method (the method of nature) of configuring these collections of elementary particles into (known and old in the art) elements. Further, these known and old in the art collections can be configured into “zillion different functions.”I give youprotonneutronelectronfrom these, configurations of elementsfrom these, configurations of moleculesso as NWPA paraphrases Malcolm, “in ergo all chemical reactions are obvious and easy”.And let’s not forget that configured to is structural language, and that a new machine is made when the manufacture of software (a patent eligible component in its own right,not unlike rivets, tires or bullets) is added to an old machine. This way we can avoid the intellectual dishonesty and move the conversation forward.

          1. That is basically the argument MM puts forth day after day.It’s more like a ridiculous caricature of “the argument”, presented for the sake of avoiding the issue.Yes, it’s true that elementary particles can be combined in “zillions of way” (some of which have already been described and enabled; some of which haven’t). That’s why patent law requires that valid, enforceable claims to allegedly “new” chemicals (and other compositions, including articles of manufacture) are distinguished from the prior art on the basis of their structures, not on the basis of some newly recited but previously undescribed function. Computers have been excepted from this requirement. Why? Because that’s the way some people like it, including you apparently. Enjoy it while it lasts.

            1. Computers haven’t been excepted from any rule. The functional claiming is the same in all areas of patent law. I have compared functional claiming of computers with mechanical and chemical claims. There isn’t any difference.And, again, the claims you complain about as I have said do have a definite boundary to a person of skill in the art. You just blather on with the same bullet points. Try to refute the sentence about definite boundary rather than endlessly reciting your bullet points.

            2. “a definite boundary to a person of skill in the art”Perhaps, it just isn’t in the claims. I’ve been dealing with a few more computer implemented cases lately. Having some more interviews. The more we discuss the claims, the more limitations that aren’t in the claims that supposedly are in the claims keep coming out of the woodwork. Talk about importing limitations.

            3. And, I should add NWPA, that those conversations in rl cases are actually quite illuminating. If the claims were indeed limited in the many supposedly implicit ways that at least one attorney would like them to be then I’d have much less of a problem with them. Problem is, those 5 or so lengthy, though supposedly implicit, limitations are nowhere to be found in the actual claim.

            4. the claims you complain about as I have said do have a definite boundary to a person of skill in the art. You just blather on with the same bullet points. Try to refute the sentence about definite boundaryWhat’s to “refute”, NWPA? You’re just preaching your own gospel and refutation is impossible. Anyone and everyone who disagrees with you is apparently a criminal subject to “arrest by the FBI”. I’ve asked you before to describe for everyone the “definite boundaries” to various softie woftie claims are and in every case you were unable to describe those boundaries to us. That’s because the claims are functional and cover “every object that is capable of producing the desired result.” That’s not a “boundary” defining a composition of matter (or article of manufacture) any more than the “product” produced by an open-ended process is “bounded” by the recitation of those process steps.

            5. Computers haven’t been excepted from any rule.Of course they have been excepted. Every week people prosecute and obtain claims to old, generic computers merely by reciting a “new” function that the old generic computer is “capable” of performing. You can’t do that with, e.g., an allegedly “new” syringe or an allegedly “new” protein. You have to describe the syringe or protein structurally, such that the structure is definite and distinct from the prior art structures.I have compared functional claiming of computers with mechanical and chemical claims. There isn’t any difference.You’re one of two or three people in the world who continue to say such things. Except for that tiny handful, there is no educated person who even bothers to pretend for one second that such an assertion accords with reality.

      2. If that thing works on the same level as other little car driving sets do it will be god aweful. But, I hope I’m wrong and it’s the best thing ever.

  8. the modification was to basically take a ClientID out of a particular table stored on the system and instead store it elsewhere on the system. Although the ClientID still performs the same function, the change “is a significant change to the system.”Of course that’s a “significant change”. If that sort of “innovation” wasn’t deemed “significant” by our pathetic and broken patent system, than ARRIS’s junk patent wouldn’t have issued in the first place.If you find it difficult not to laugh at this kind of junk, consider that the junk would likely never have issued were it not for the recitation of “multimedia data” (as opposed to “any kind of data”) in every claim.This following quote is also pretty funny and illustrates the shallow level at which courts (and litigants) approach computer-implemented technology: “the patented technology allows a user to purchase videos that are then streamed to a device”.Guess what? “Technology” that allowed a “user” to purchase information that would be transmitted to “a device” of the user existed long before this innovation. But that doesn’t stop the Federal Circuit from patting the patentee on the head and suggesting otherwise.

  9. May I ask: why isn’t the standard form of injunction one that simply orders the Defendant not to infringe, period?

    1. I would hope that if they are found to infringe on a second-go round that the Court will treble damages and a matter of course.

  10. OK, assuming second infringement case, is the defendant precluded under principles of res judicata from bringing a invalidity counterclaim?

    1. And, I would hope that they would not have the right to change constructions of claim terms previously construed. Perhaps trial could be limited to one thing and one thing only: equivalents.

    2. Ned: Yes, the defendant is precluded from challenging validity. For settled cases, it is important to retain the right to challenge validity. For cases that are resolved by trial, the defendant can never raise it again, in court, but can file for post grant review.

      1. That seems very odd, considering the patentee is likely changing his claim construction or asserting equivs.

          1. I’m not saying a court would let them change their claim construction. I’m saying that they’d likely try that. As to equivs ned, perhaps you can help me, if the patentee asserts that the claim covers x newly made thing by the company being accused through doctrine of equivs, and if x is obvious ivo the prior art is the claim now invalid? Tbh I’m not familiar with the nonsensical doctrine of equivs to be sure.

            1. The claim should not be construed to cover the accused device if that construction also covers X, per Wilson Sporting Goods.You are certainly right that the patentee would try to escape the preclusive effects of prior claim constructions if necessary to cover a new device. The defendant would also try to escape the preclusive effect of prior claim constructions as well. It would take extensive research to ascertain to what extent, and under what conditions, this would be permissible. The new device might raise some issues that require clarification of the previous claim construction.

            2. Davy, IIRC, Wilson asked is the hypothetical claim would be patentable over the prior art. This is a slightly different question that simply whether it covers the prior art. Suppose the change was in a claim element that itself is old and not part of the novelty. The hypothetical claim would still be patentable.

            3. Yes, I took 6′s “X” to be the entire claim. Taking “X” as a variant of a single element, you are of course correct that the claim may well remain patentable despite the obviousness of many, perhaps all, of its elements. The assertion that any particular claim element is obvious does is only a puzzle piece, and only has effect when you find all the pieces and instructions for assembly in the prior art. If the claim resulting from the application of the doctrine of equivalents covers the prior art, then that construction is not allowed; If a single element as expanded by the doctrine of equivalents is in the prior art, that is merely a step toward application of Wilson Sporting goods.That leads down another rabbit hole: If the variant X is found in the prior art, is it a permissible equivalent? Or is there some caselaw that limits equivalents to later developed variants?

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