Proving Anticipation-by-Inherency: It is Hard

By Dennis Crouch

Motorola Mobility v. ITC and Microsoft (Fed. Cir. 2013)

In a short opinion, the Federal Circuit has affirmed the ITC’s judgment that Motorola infringes Microsoft’s Patent No. 6,370,566 covering a mobile device having a “personal information manager.”

The most interesting part of the decision comes from the court’s analysis of the Apple Newton MessagePad device. Motorola had argued that the Newton anticipated the ‘566 patent. The ITC found that, while it was “plausible” that the Newton contained the claimed synchronization feature, that Motorola had failed to fully prove that limitation was practiced by the Newton. In particular, the ITC concluded that the “inference of a possibility” did not rise to the level of clear and convincing evidence. On appeal, the Federal Circuit affirmed – finding that “substantial evidence supports the Commission’s conclusion that Motorola did not present clear and convincing evidence that the operating system necessarily required any additional capacity that would qualify it as a component ‘to synchronize.’ Inherency requires more than probabilities or possibilities.”

The bad trick here is that Motorola pursued anticipation-by-inherency rather than proving that the Newton was actually used in an anticipating manner. As the Federal Circuit wrote, “inherency requires more than probabilities or possibilities” but instead requires that the limitation in question be a necessary consequence of using a device for its intended purposes. As Janice Mueller writes in her treatise: Stated another way, [inherency occurs when the] practice of the prior art reference would inevitably have resulted in the claimed invention.” Bottom line here is that anticipation-by-inherency can be quite difficult to prove well beyond the already difficult hurdle of clear-and-convincing evidence.

The ITC issued an exclusion order that blocks importation of foreign-manufactured Motorola phones that infringe the ‘566 patents. It is unclear to me at this point which phones and Android operating systems are covered by the exclusion order.

= = = =

The ‘566 patent stems from a 1997 application and claims:

1. A mobile device, comprising:

an object store; [i.e., a section of memory used to store records]

an application program configured to maintain objects on the object store;

a user input mechanism configured to receive user input information;

a synchronization component configured to synchronize individual objects stored on the object store with remote objects stored on a remote object store;

a communications component configured to communicate with a remote device containing the remote object store; and

wherein the application program is further configured to generate a meeting object and an electronic mail scheduling request object based on the user input information.

 

 

 

181 thoughts on “Proving Anticipation-by-Inherency: It is Hard

  1. 7

    It seems like this makes a loophole for the PTO to make inherency rejections. The opinion says it is not unreasonable to infer the existence f the synch feature even if not expressly disclosed, but that the ITC had substantial evidence to believe that Motorola did not meet the clear and convincing standard for establishing that the allegedly inherent feature had to exist given the disclosed feature. The PTO, on the other hand, only needs substantial evidence when making a rejection. So if the PTO had asserted that the feature was inherent, then on the same facts Applicant would have lost on appeal. After all, the PTO only has to meet the substantial evidence standard. So there is a double standard at work here.

    1. 7.1

      “The PTO, on the other hand, only needs substantial evidence when making a rejection. “Not exactly. During examination, the examiner has to establish all facts that are relied upon in making the rejection (i.e. the facts establishing the scope and content of the prior art, the facts establishing the differences between the claimed subject matter and the prior art, and in the rare circumstances when it’s done, the facts establishing the level of ordinary skill in the art) by a preponderance of the evidence. The Board has to review the evidence supplied by the examiner to determine if the burden of a preponderance has been met as to each factual element.On appeal, the Fed. Cir. will review the Board’s findings for substantial evidence.

      1. 7.1.1

        AAA JJ, if the examiner shows that the element exists using circumstantial evidence, the applicant cannot simply say he has not established a prima facie case. The burden of production shifts.

        1. 7.1.1.1

          Ned,The burden of persuasion on the examiner is a preponderance. The examiner has to produce evidence that establishes that it is more likely than not that the claimed feature was within the scope and content of the prior art. That burden of persuasion remains on the examiner throughout the entire prosecution. See Oetiker.

          1. 7.1.1.1.1

            The burden on the examiner is a preponderance. The examiner has to produce evidence that establishes that it is more likely than not that the claimed feature was within the scope and content of the prior art. That burden remains on the examiner throughout the entire prosecution.By analogy to the prima facie case of obviousness, if the Examiner makes a prima facie case and the Applicant simply says “NO NO NO NO NO NO!” and nothing else, then the “preponderance of the evidence” standard has been met by the Examiner. In other words “prima facie evidence” weighs more than “temper tantrum.”

            1. 7.1.1.1.1.1

              You really s#ck at this, Examiner Mooney.When the examiner states, “The reference doesn’t disclose claimed feature x, but it is inherent” that is not a prima facie case. The examiner has to present evidence and technical reasoning, not merely conclusory bald faced statements, to establish that a feature is inherently within the scope and content of the prior art. Pointing out that the examiner has provided zero evidence, or arguing that the evidence and reasoning provided is not sufficient to establish, by a preponderance, that the feature is within the scope and content of the prior art is not a “temper tantrum.” It’s the appropriate response.

              1. 7.1.1.1.1.1.2

                “The examiner has to present evidence and technical reasoning”Actually “or”.

              2. 7.1.1.1.1.1.3

                The examiner has to present evidence and technical reasoningI never said otherwise.Pointing out that the examiner has provided zero evidence … is the appropriate response.Only if the response is truthful and there is an explanation as to why the Examiner’s evidence or argument is incorrect. Again, merely telling the Examiner “no” does not put the burden back on the Examiner.You really s#ck at thisSame to you, xxxhole.

                1. For the examiner to merely say, “it’s inherent” does not shift the burden to applicant. Keep s#cking, xxxhole.

          2. 7.1.1.1.2

            “The examiner has to produce evidence that establishes that it is more likely than not that the claimed feature was within the scope and content of the prior art.”Funny you should say that because in establishing inherency the examiner has to produce evidence that establishes that it is 100% likely that the claimed feature was within the scope and content of the prior art.

            1. 7.1.1.1.2.1

              “in establishing inherency the examiner has to produce evidence that establishes that it is 100% likely that the claimed feature was within the scope and content of the prior art.”Not quite. The examiner has to produce evidence that establishes that the claimed feature is necessarily present in whatever prior art disclosure is being relied upon. It’s not good enough to establish, even clearly and convincingly, that the claimed feature could possibly be present.

              1. 7.1.1.1.2.1.1

                Indeed, perhaps I wasn’t clear enough that I was talking about the scope and content of the prior art before you.

      2. 7.1.2

        “The Board has to review the evidence supplied by the examiner to determine if the burden of a preponderance has been met as to each factual element.”Horse sht, looks to me like they just decide the facts de novo in every case I see. Then in so doing they decide, themselves if the preponderance has been meet or not, if they even decide to try to find the fact. In either event, Tino is quite correct that the PTO standard is different, though it wasn’t this case that started that.

    2. 7.2

      Agreed. In the PTO, the examiner wins based on the Fed’s reasoning. If the presence of the sync component is more likely that not, based on the evidence, then I think the applicant has to provide evidence that the implication is not in fact true.But this is not really a change in the law, is it?

    3. 7.3

      It seems like this makes a loophole for the PTO to make inherency rejections.More like a “loophole” for the Federal Circuit to avoid using its collective brainpower to tank a junk patent.

  2. 6

    Throw into the discussion (because the anti-software folks won’t): the “inherency” of a device “built to be changed” (and note the inherent contradiction with the Morse case and the typical attempt to claim all future improvements…)

    1. 6.1

      The phrase “built to be changed” is just more functional language. I’m not sure what your point is and I’m sure you can’t be bothered to explain yourself.That said, I (and others who think that software patents are junk) routinely bring up the fact that programmable information processing devices are capable of processing any kind of information that those machines are programmed to process. That includes information about “meeting times”. And, yes, “meetings” inherently includes meetings where “copyrighted media” is being discussed in addition to any other topic that anyone has ever imagined or will imagine in the future. See how that works?

      1. 6.1.1

        Yes, and test tubes are capable of mixing all forms of chemicals ergo anything that can be done in a test tube is anticipated. And, let’s not forget that steel is suitable for all sorts of shapes so that any device built with steel is anticipated.MM: can’t you get a clue.

        1. 6.1.1.1

          test tubes are capable of mixing all forms of chemicals ergo anything that can be done in a test tube is anticipated.Nice non-sequitur.

          1. 6.1.1.1.2

            LOL – talk about non sequiturs….Dump truck? really?You are doing that Accuse-Others-Of-That-Which-You-Do thing again (hint: think exceptions to the printed matter doctrine and functionally related).

            1. 6.1.1.1.2.1

              hint: think exceptions to the printed matter doctrine and functionally relatedHint: if you have a coherent argument to make, then make it. Otherwise focus on that fingerpainting project the nurse gave you.

              1. 6.1.1.1.2.1.1

                We both know the coherent argument Malcolm.Tell me again what is the controlling law in regards to the exceptions to the printed matter doctrine. Don’t be bashful.

                1. We both know the coherent argument Malcolm.Patent Jeebus can read everyone’s mind! Bow down!If anyone out there knows what anon is talking about and can articulate his argument for him, please go right ahead. He needs your help badly right now.

        2. 6.1.1.2

          steel is suitable for all sorts of shapes so that any device built with steel is anticipatedSeveral points leap to mind.First, we’re not talking about world where “steel” is in the prior art and the claim at issue describes, in structural terms, a “new” device that’s made of steel.We’re talking about a world where prior art machines can be programmed to process any kind of information in the prior art, regardless of the source of that information, and the claim at issue just recites a “new” information processing function for that machine, in functional terms. Similarly, a dumptruck is inherently capable of carrying any kind of gravel, regardless of whether the gravel came from Mr. Slate’s quarry or Fred’s backyard. A “limitation” about the source or the color of the gravel that the machine is capable of carrying is a meaningless “limitation.”So, too, is a “limitation” in an information-processing device claim that recites the device’s capability to process information about a “scheduling request.” It’s a sad joke is what it is. Someday we’ll all look back at this garbage and shake our heads.And for crying out loud, if that kind of functional junk is not inherently anticipated, it sure in heck is obvious.

          1. 6.1.1.2.1

            1) Functional claims describe a clear set of solutions to those skilled in the art. Just go look at a specification for a computer system. Written in functional language. So, you contend that people are specifying systems with no meaning being conveyed by these documents. Again, outrageously ridiculous. 2) general purpose computers are just a tool to accomplish the processing of information. How to process the information is the trick. 3) So, according to you a Turning machine anticipates all possible computable functions. Or (in your 5th grade language) some processor that can perform 4 functions anticipates a machine driving a car or a machine writing appeal briefs better than a human. That makes no sense.These ignorant arguments you present to appeal to the mob are both transparent and annoying. Face it your arguments sound so nice and so cozy as then we don’t have to deal with real problems or real life. A nice little bed story to children is what you tell.Your arguments are nothing more than saying a hammer anticipates anything built with a hammer. Or that everything built with a transistor is anticipated by the invention of the transistor because transistors were meant to change or process electricity. It really is not a debate with you. You are fabricating fairy tales that do not reflect science, engineering, or patent law. And, really MM you don’t think that your nonsense is bought by anyone other than your fellow policy pushers and paid bloggers do you?

            1. 6.1.1.2.1.1

              Functional claims describe a clear set of solutions to those skilled in the art. Just go look at a specification for a computer system.”The earth is flat. Just go look at the books that say the earth is flat.”

              1. 6.1.1.2.1.1.1

                Wow, what a come back. Ignore the substance of what I said and what those skilled in the art say and just keep pushing nonsense to achieve policy goals.

                1. Ignore the substance of what I saidI didn’t ignore the “substance” of what you said. You made a circular argument and I threw it right back at you. Try again.

                2. MM read what I wrote above. It reflects reality. It reflects how information processing is understood by those skilled in the art (such as myself.) Your arguments are gibberish. Tell us more about how each time I write a computer program that I am capturing a natural law. (I.e. Benson and your old arguments about 6 years ago.)

                3. read what I wrote above. It reflects reality.It’s a reflection of your desire to maintain a status quo which was created to coddle an industry that didn’t need coddling then, and certainly doesn’t need coddling now.t reflects how information processing is understood by those skilled in the art (such as myself.)I understand “information processing” at least as well as you do. Get off your high horse before you hurt yourself.

                4. You understand information processing at least as well as I do? OK. Tell us about the Church-Turing Thesis and computable functions. Throw in a short discussion about Godel too. Funny, just the other day you were mocking the Church-Turing Thesis.

                5. just the other day you were mocking the Church-Turing Thesis.No, I was mocking you. Or more accurately, I was mocking your obsession with bringing up the CTT in every other comment, as if it is the Most Important Thing Ever for ensuring the patentability of new methods of using a computer to alert Johnny’s mommy when Johnny crosses the state line to buy a beer with Mommy’s bitcoins.

            2. 6.1.1.2.1.2

              How to process the information is the trick.Right, and the “how” is exactly what’s absent from the claims which merely recite the functions achieved by a computer that has been programmed and debugged. according to you a Turning machine anticipates all possible computable functionsHere we go again with your “Turing machine” baloney. Wank away, brother.

          2. 6.1.1.2.2

            Similarly, a dumptruck is inherently capable of carrying any kind of gravel,Such is completely inapposite. Even ignoring your own well-documented self-volunteered self-admissions against self-interest (they’re in the archives, honest), you can’t compare computers to dump trucks. They’re a series of tubes.

            1. 6.1.1.2.2.1

              LOL! What’s even funnier, IANAE, is that one of the knee-jerkers gave you a “downvote”. Apparently they don’t like other people stealing their “special” arguments.

              1. 6.1.1.2.2.1.1

                Apparently they don’t like other people stealing their “special” arguments.Too bad, because I’m stealing anon’s argument that downvotes prove how right my post is. Yup, “special” is the word for it.

                1. Poor IANAE,Clearly you are tired of being drubbed directly by me and suffering all of those Calvinball face spikes and are willing to sign up for anything anti-anon.But really, try to place my downvote comment in context. When I receive downvotes from particular people (you especially), that does tend to prove my post is correct. Seeing as your posts are so often shown to be without merit.As to Malcolm, try something slightly original and maybe on point with the law. You know, like I keep on inviting you to (still a chance for you to share your understanding of Chisum).

      2. 6.1.2

        “And, yes, ‘meetings’ inherently includes meetings where ‘copyrighted media’ is being discussed in addition to any other topic that anyone has ever imagined or will imagine in the future. See how that works?”You forgot about the part of the effect induced because of a functional relationship.Funny, that’s the same part that is related to what you volunteered an admission as to knowing what is controlling law in the exceptions to the printed matter doctrine.Actually, that’s not very funny. It’s very hypocritical. You know what the controlling law is. You know that it contradicts your position, you have admitted knowing that it contradicts your position, and yet, you insist on posting arguments that fail because of that controlling law. Repetition ad nauseum.

          1. 6.1.2.1.1

            I know you want to imply this as a smarmy answer, but the plain fact is that you have volunteered an admission as to what the controlling is (and what it means) with the exceptions to the printed matter doctrine.As they say: sucks to be you.

                1. not at all Malcolm, not at all.Yes, anon, yes.please, keep digging.How about I just fabricate some “admissions against interest” that you’ve made and then smear you with them ever time I see you post anything? You know: do exactly what you do to everyone here you disagree with (when you’re not just simply insulting them)? Would you like that, anon? Because that’s what you’re going to get until you’re permanently banned from commenting here, which should have happened a long time ago.Go ahead, anon. Tell everyone how you’d like to play the game.

                2. Are you saying that you do not know controlling law and the exceptions to the printed matter doctrine?Are you saying that you have not admitted to knowing such?Why the dissembling, Malcolm?

    2. 6.2

      Anon, I have no problem with this patent claim as claiming ineligible subject matter. A mobile device is being claimed – with the software being integral part of that device. The claims do not claim a generic computer that executes a program. The claims claim a mobile device that has as part of its structure, novel software. This is entirely different.

      1. 6.2.1

        “The claims do not claim a generic computer that executes a program. The claims claim a mobile device that has as part of its structure, novel software. This is entirely different.”I can’t tell if this is sarcasm.

        1. 6.2.1.1

          It’s easier to understand if you assume that it’s sarcasm, that’s for sure. “Entirely different”? Or “different in a really subtle way that is pretty much impossible to describe but if you want to believe that the patent is valid you can find a way, in your gut, like the Federal Circuit did.”Odd that the word “software” doesn’t appear in the claim. I do see the word “component”, though. Oh but wait! There’s an “active transitive verb” in there, too, I think. That’s important. You can sense it.

      2. 6.2.2

        Ned,A better discussion might be concerning the last wherein clause (of course, this just might be a drafting nit, and will not serve to ban all software patents as the anti-software folk want – hence the constant 101 nuclear bomb desire).Is that last clause limiting? Just intended use?Don’t forget, ‘configured to’ is structural language.

      3. 6.2.3

        “Anon, I have no problem with this patent claim as claiming ineligible subject matter. A mobile device is being claimed:”Ineligible or not patentable, Ned – there is a critical difference (as last noted by the Supreme Court in Prometheus). Please state why you think a mobile device fails the express machine category of patent eligible subject matter, and include proper legal citation to support your position.Further, let’s debunk your implicit fallacy of ‘using’ in the form of a machine executing software.This has been pointed out to you before. You do not ‘magically’ get to have software appear out of nowhere on a machine. The machine must first be changed and configured with software before you can execute said software. Doing so – in the step you repeatedly ignore – creates a new machine. See Alappat.

          1. 6.2.3.1.1

            Ned, You will note that my direct quote of yours indicates that you said “ineligible.” If you meant to say “eligible” that is another thing.

        1. 6.2.3.2

          You do not ‘magically’ get to have software appear out of nowhere on a machine.Unless you’re a patentee, of course.

        2. 6.2.3.3

          Please state why you think a mobile device fails the express machine category of patent eligible subject matter”Please state why you think a chemical fails the express composition category of patent eligible subject matter.””Please state why you think a process fails the express process category of patent eligible subject matter.”The law has sort of moved on since State Street Bank, in case you haven’t noticed.

          1. 6.2.3.3.1

            Who cares about State Street?See Bilski, see the first case post Bilski at the CAFC that reconfirmed Alappat.Better tro11ing please.

            1. 6.2.3.3.1.1

              See BilskiBilski found a process ineligible, in spite of the fact that “processes” are listed in 101. Likewise with Prometheus. And then there was Myriad, involving a man-made composition of matter: also ineligible.So there are no “magic words.” Reciting a “machine” does not make a claim eligible subject matter. It’s the other words that matter.Can you claim a new function for an otherwise old composition merely by reciting the old composition and its new function in the claim, and end up with an eligible claim? I don’t think so. And no Supreme Court decision says otherwise, unsurprisingly.

              1. 6.2.3.3.1.1.1

                LOL – nice strawman, Malcolm.But an “otherwise old composition” when combined with a new manufacture and changed into a new machine is quite different, isn’t it?Add:”And no Supreme Court decision says otherwise, unsurprisingly.”Nice dissembling. We’ve talked about the fact that the majority of controlling law has not been in front of the Supreme Court. Your intimation that such is not ‘real law’ is a fallacy. Please stop posting in such fallacious manner.

  3. 5

    I can only imagine the super technical and detailed structural construction given to the term “synchronization component.” That construction must have been heavily analyzed by the Federal Circuit, given its importance to this case. There’s already an (old) “communication component” allowing the device to “communicate” with a remote data storage device. It must require some really ingenius and new-fangled electronics way back in 1975 (when this application was filed) to allow a computer to update a local memory based on data that was obtained from a remote device.Or not.

    1. 5.1

      Actually synchronization is an inherently impossible problem to solve absolutely correctly in the general case. There are several mathematical proofs of the insolubility of the various aspects of the dilemma — starting with Two Generals and moving on to general ACID compliance — since it is, after all, a mathematical problem. Various techniques and compromises are known and practiced widely and some are quite complicated.Apple has suffered from high profile failures of its Core Data Sync that have been losing data for customers over the past few years.So not only §103 but also §112 should be enough to knock the claim down. (That’s to say nothing of §101 — of course the ‘novelty’ claimed is not a process, machine, manufacture, or composition of matter but rather an abstract idea of functionality.)

  4. 4

    So, the distinguishing feature of the claim is “a synchronization component configured to synchronize individual objects stored on the object store with remote objects stored on a remote object store”.Regarding this feature Motorola had produced a Newton connection utilities manual (as far as I understand, this is a program that can be loaded and run on a desktop computer), which stated that the Newton Connection Utilities work with the Newton 2.0 operating system and that synchronization may be initiated using the Apple Newton MessagePad (p. 9 of the decision). Furthermore, Motorola had an expert testifying that he synchronization function disclosed in the Newton Connections Utilities manual required the execution of software on the Apple Newton MessagePad (p. 8 of the decision).Maybe I am oversimplifying things, but if I have software running on a computer to synchronize local data with mobile data, there must necessarily be another piece of software running on the mobile device closing the communication loop and reading/writing data on the mobile device, depending on which data is to be synchronized on which device. Considering that the term “synchronization component” is purely described in term of its function and was not construed in any specific way (p.7 of the decison), it is not clear to me why this case was decided this way. I notice that the Court comments (again p.7) that “[g]iven the use of an active transitive verb with the mobile device component as the subject, that meaning requires something more than whatever software may be needed simply for the mobile device to operate at all and to act entirely under the control of another device”, but unfortunately it is not apparent to me what kind of “something more” they had in mind…

    1. 4.1

      “it is not clear to me why this case was decided this way.”Because when it comes to computers the courts become complete ta rds.

    2. 4.2

      Considering that the term “synchronization component” is purely described in term of its functionShocking! notice that the Court comments (again p.7) that “[g]iven the use of an active transitive verb with the mobile device component as the subject, that meaning requires something more than whatever software may be neededShouldn’t that “something more” have been identified during claim construction? If it wasn’t identified, then how can its absence be determinative of the outcome here?What a joke.

    3. 4.3

      L.B.Z., I think the court was making the distinction between synchronizing objects located on the PC with objects located on the Newton. The proof of one does not prove the other, unless it is impossible not to synchronize the objects on the Newton when synchronizing objects on the PC.

        1. 4.3.1.1

          I would think that it has its ordinary meaning, but the law requires one to read the specification and then make the call. Since I have not read the specification but only the case, I am only going on what I garnered from the court’s opinion.They seem to require some active component on the mobile device that synchronizes objects on that device with objects on the PC. This clearly means something more than just allowing the PC the read the mobile device.

          1. 4.3.1.1.1

            They seem to require some active component on the mobile device that synchronizes objects on that device with objects on the PC.Nothing in the specification or claims defines synchronization in this narrow manner. All that the claims require is that there is a component in the device that allows synchronization to occur, automatically or upon instructions from the user.

            1. 4.3.1.1.1.1

              MM, Well, they should have conducted claim construction on this element. For now, all I can go on is the construction given the element by the Federal Circuit. That construction required some active component on the mobile device as opposed to some more generalized communication capability that wound enable the PC to sync.On another question, I think Motorola proved its case by a preponderance. In a reexamination, Motorola should win. In court they cannot. Which is why, in part, reexaminations are do fundamental violence to the statutory presumption of validity. They employ both BRI and a preponderance burden.

              1. 4.3.1.1.1.1.1

                The fundamental violence is done at the point the Office strips the presumption.That’s a very undocumented and subjective point.(add: Ned, Malcolm needs another lesson on scire faciasadd#2: See Ned how little regard Malcolm actually has for the law?)

                1. It is one thing to voluntarily submit a patent for reexamination, it is quite another to have it stripped from you without a presumption of validity, without a court trial, and without a jury. We are not talking about a patent application, but a patent, that the patentee has a right rely on to build his business.The people who are behind reexaminations are blowing smoke screens and are using slight of hand to divert attention from the fundamentals of what is happening. Imagine an analogy. Suppose I was accused of a crime by some big boy who could have my guilt adjudicated by an administrative agency without the presumption of innocence, without the right to counsel, without the right to a jury trial? How could one justify that? By saying the kind of crime involved was created by Congress?But that is what they have done with patents.

                2. It is one thing to voluntarily submit a patent for reexamination, it is quite another to have it stripped from you without a presumption of validity, without a court trial, and without a jury.The same administration that screwed up by granting it is taking it away.And somehow this reminds you of a person being convicted of a crime without a jury trial? Take a deep breath, friend.

                3. We both know the examiners screw up constantly. We both know that validity is properly the subject of a court proceeding. We both know that a patent owner has a right to a jury trial. But when the government believes it made a mistake, who is to decide? Itself, or must they go to court?Now just where did congress get the power to override Art. III right to have controversies where the government is a party be decided by the government? Where? Where? Where? The constitution does not grant congress any such power. Anywhere.And just where did congress get the power to deny one a right to trial by jury by throwing the determination into equity or into an Art. I court? Where?Nowhere. There is no such power.

                4. And don’t tell me that the Federal Circuit has decided this issue already. That really does not carry much weight when the issue is statutory construction and the constitution is involved. One could have expected such a hometown decision, not unlike the courts of Dixie deciding whether separate but equal was constitutional.

                5. “We both know that validity is properly the subject of a court proceeding.”That’s up to congress, friend. “Now just where did congress get the power to override Art. III right to have controversies where the government is a party be decided by the government? Where? Where? Where?”Interesting angle Ned, and I’d like to see it get loled out of court. “And just where did congress get the power to deny one a right to trial by jury by throwing the determination into equity or into an Art. I court?”um they threw it into an administrative agency, not Art i court or equity.

                6. 6,This is one of those times where a hesitation to post on your part would have been intelligently followed by a decision not to post at all.You do realize that the Article I court Ned is referring to is within the administrative agency, right? You do know what it means to be an Article I court, right?

                7. TBH I totally did not even notice he said article i court and just copied what he was saying. I’ve never even heard such tribunals called an article 1 “court”. Such a name is absurd from the outset. But fine, if he wants to blabber about omg omg omg where did congress get the power to deny one a right to trial by jury by showing the determination into equity or into an article 1 “court” then fine, I’ll lol at him about that as well. They didn’t throw “the determination” into an article 1 “court”. They created yet another determination and then tossed that one into an article 1 “court”. That determination is whether or not they desire to continue to support your government entitlement they granted you.

                8. whatevz you say. As soon as I see the federal circuit start agreeing with you idiots I’ll be super convinced.

                9. LOL – “wahtevz”…? Really? Taking your ‘legal prowess’ cues from Malcolm’s “Whatever” school of thought is not a bright move son.

                10. LOL – you post a response and afterwards admit to not even bothering to read the post you are responding to, and then turn around and accuse me of “brotroll?”The Malcolm runs deep in you.

                11. I don’t accuse of you brotroll. I called you brotroll. It’s more of a descriptive term rather than an action verb.

                12. 6, may I recommend that you actually read Stern v. Marshall, 131 S. Ct. 2594, 564 U.S. 2, 180 L. Ed. 2d 475 (2011) and Granfinanciera, SA v. Nordberg, 492 U.S. 33, 109 S. Ct. 2782, 106 L. Ed. 2d 26 (1989) and then reconsider your remarks about whether Congress has the power to withdraw from Article III courts matters that were tried in the courts of England prior to 1789 and whether Congress has the power to withdraw from the courts cases and controversies that bear a seventh amendment right to a jury trial. I think your attitude would fundamentally change.

                13. I will read them later, until then I will continue to guffaw loudly at your expense. I will currently note however though that reexamination or pgr was not a matter tried in the courts of england prior to 1789. And again, there is no controversy that bears a seventh amendment right to a jury trial happening in a reexam/pgr. If you’d like to tell us all what that supposed controversy is then perhaps we can more fully flesh out why you’re having such a hard time.

                14. On the contrary, validity was tried in the courts of England for the purpose of revoking a patent. The action was know as scire facias. And it did have a right to a trial by jury. See, ex parte Wood & Brundage, 22 US 603 – Supreme Court 1824 link to scholar.google.com

                15. “On the contrary, validity was tried in the courts of England for the purpose of revoking a patent.”I have yet to hear of trying validity at the PTAB for the purpose of revoking a patent as a result of of reexam or pgr. As far as I was aware you get to amend your claims and continue to have a patent in so far as the art allows. Claims may fall, but you can always amend. Not so in the courts of england. Is that not the way things happen in reexam/pgr? It seems the interbuts says that it is the way it happens, you can indeed amend and go on happy as can be having a patent.

                16. “Suppose I was accused of a crime by some big boy who could have my guilt adjudicated by an administrative agency without the presumption of innocence, without the right to counsel, without the right to a jury trial?”It’s just the opposite, though.The patentee and accused infringer both have the right to do a thing. Then the patentee goes to the government and asks an administrative agency to take that right away from the accused infringer, without right of contest or a jury trial, in a secret proceeding.Then when the accused infringer goes to court to get his rights back that have been taken wrongly, he finds that the secret procedure enjoys a presumption of validity.That’s what needs reversing. The patent should be reviewed in court for validity with no presumption of validity. The burden should be that the patentee present clear and convincing evidence of validity since he should have had such evidence available already at the examination.

                17. “It’s just the opposite, though.The patentee and accused infringer both have the right to do a thing.”It says so right there in the Infringer’s Handbook….(and surely in the Lemmings Quick look up guide)Owen, you really do not understand patent law at all, do you?

                18. I’m sorry Owen, but you are ignoring that infringers are protected by intervening rights. In contrast, the whole point of forced reexamination, BRI and the lowering of the burden, is to force clarifying amendments to claims that may grant infringers intervening rights where nothing of substance has been changed in the claims, the patent owner has been harassed, and patent term has been withdrawn (the patents are effectively unenforceable during reexamination). This is not about patent quality. It is about granting infringers a get out of jail free card and undermining the patent system.

                19. “that the patentee has a right rely on to build his business.”Who on earth told you that nonsense? He who builds his house, or business, upon the sand of an invalid patent entitlement beware. Imo take some responsibility for your validity.

                20. 6, and there you go. You recognize instantly that without the presumption of validity and all that it entails then patents are unreliable and cannot form the foundation of a business as intended by the Constitution.

                21. I recognize that the presumption of validity was supposedly nothing more than a burden shifting provision and that the validity or not of a certain patent has dic to do with shifting burdens or any presumptions made. “he foundation of a business as intended by the Constitution.”Where on earth did you read that? IPMaximalists.com?

                22. Where? O’Reilly v. Morse, just for example. Patents are not given out for abstract ideas, but for useful applications. Now, what does that limitation imply?

                23. And, when you amend b/c of BRI and a lower standard of proof what do you get? You get intervening rights. That, my friend, is real damage.

                24. Ok, let’s say, for the sake of argument, it is. Whom cares? I note though that what you just stated doesn’t jump out at me from the Morse case.

                25. 6, patents are award for inventions that are useful and that are proven to be useful (enabling.) Now the inventor invented and prove the utility of an invention for a reason. He hoped to make products or he worked for a company that did. Not everyone can succeed in doing that, but most hope to. And the patent protects him from piracy.

                26. “He hoped to make products or he worked for a company that did.”Very interesting ned, you should inform the trolls. I understand the role of patents Ned, and I find it lamentable that the congress saw fit to implement PGR’s rather than engage in any real reform. But, that’s life, and it was their call to make, and within their authority. Likewise, being able to invalidate a patent and/or get intervening rights was likewise their call and within their authority. Though I think the intervening rights is just something that arises as an effect of related statutes or case law rather than having been written into the statute verbatim right? Congress could always eliminate it if they wanted to by various mechanisms.

                27. 6, you speak of Congress this Congress that, but a lot of this has to do with the patent office. They are the ones that came up with re-examinations in the first place, and the use of a lowered presumption of validity (none) and the use of broadest reasonable interpretation with respect to an issued patent. I have this on firsthand authority from the guy who created re-examinations, Rene D. Tegtmeyer, former Deputy Commissioner

                28. Ok? What does that matter? The Congress still holds the reigns of this entitlement program and everything about it. Ultimately I mean.

                29. Congress looks to the PTO as neutral party in the war between big business who are undermining patents and the startups who need them. Their opinion counts and counts a lot.

                30. Ok, so their opinion counts and counts a lot, what is your point as it relates to the original topic? You seem to be jumping from topic to topic in a haphazard way.

                31. That’s pretty typical – you have not noticed that before?But on point, didn’t the AIA require such a study? Isn’t that study way way way overdue?

                32. “Suppose I was accused of a crime by some big boy who could have my guilt adjudicated by an administrative agency without the presumption of innocence, without the right to counsel, without the right to a jury trial? “You’re being ridiculous, Ned. Criminal proceedings involve all kinds of fundamental individual rights. Patent proceedings do not.

                33. The fundamental violence is done at the point the Office strips the presumption.Oh my! “Fundamental violence”! Call the teabaggers!

                34. MM, We good o’ boys get riled when y’all starts a talkin’ ’bout mess’n with our fundy rights, yeh hear.

                35. Malcolm, check my post above to anon regarding ex parte Wood & Brundage, 22 U.S. 603, 6 L. Ed. 171, 32 S. Ct. 589 (1824).

                36. I can’t wait until I get some reexams and get to do “fundamental violence”. It’s like violence, except better I guess. More fundamental.

                37. Check. 1. In an opinion by Story, the Supreme Court held in ex parte Wood & Brundage, 22 U.S. 603, 6 L. Ed. 171, 32 S. Ct. 589 (1824) that the statutory action to revoke a patent provided by the patent laws (see Section 6 of the 1790, Sec. 10 of the Act of 1793) was akin to a scire facias and required a right to a trial by jury because such a right was accorded to such actions at common law.Both sections (6 and 10) authorize the cancellation of a patent upon a showing that the “patentee was not the true inventor or discoverer.” The action did not have to be brought by the true inventor. Anyone could bring it.The scire facias writ was removed in 1836.What is important here is that an action to cancel or revoke a patent was an action that had a right to a trial by jury.

              2. 4.3.1.1.1.1.2

                the construction given the element by the Federal Circuit. That construction required some active component on the mobile device “Some active compoenent”? That’s not a claim construction, Ned. That’s just fabricating a result out of thin air. How do you have a synchronization capability (which the Newton certainly had) without component capable of performing the synchronization? And where do they get off reading “active component” into the claim in the first place? The claim doesn’t say anything about any “active component”. It just says there’s a component that is capable of “synchronizing” with a remote memory. Those components are in the prior art, by the way.

                1. As I said, in the PTO, Motorola should win. But I agree with the Feds that the evidence is not clear and convincing. It is at best circumstantial. I don’t think circumstantial evidence can ever be enough.

      1. 4.3.2

        Thanks for the reply, Ned. I did not consider this possibility, but I don’t think such an argument makes technical sense in the context of the patent. “Synchronize” is a word that has different “ordinary” meanings, but the only one that makes sense in this context is (imho) “to cause two or more entities to coincide or agree in time”, the same way you synchronize two clocks so that they indicate the same time. Applied to software objects, the only characteristic that may be made to agree in time is the status of the object; for example, if the object is a text file, and the text file residing on the mobile device has been modified today while the one on the remote object store has been modified two days ago, synchronizing the two would mean to update the file in the store to the newer version, or to restore the older version in the device (the claim covers both alternatives).The Newton connection utilities is a software residing on a desktop computer that can communicate with the Newton; this appears uncontested in the decision. Equally, it is a fact that the Newton connection utilities manual states that synchronization may be started using the Newton MessagePad. Following your argument would mean that the court could not find clear and convincing evidence that the above facts meant that i) the MessagePad synchronizes its own objects with the ones on the desktop computer, thereby anticipating the claim, because they could also support that ii) the MessagePad uses the software to transmit a synchronization command and then the computer carries out a synchronization only between objects that it stores internally. While ii) is not technically “impossible”, I would think that it is technically “illogical”. Firstly, it disregards the original purpose of the MessagePad, which was a PDA mostly known for its handwriting recognition, not a remote control for a desktop computer. Secondly, if you happen to have more versions of the same object within the same computer, it is because you want to keep them, so synchronization hardly makes sense in this scenario. Thirdly, it would mean that the user would need to connect (which, in the case of the MessagePad, meant attaching a serial cable) an additional device to a computer for carrying out a function already available on the computer itself.

        1. 4.3.2.1

          L.B.Z, on the contrary, because the mobile device is required to have an active synchronization component, I think it requires that the objects on the mobile device be synchronized with objects on the PC. Otherwise, the PC can simply has to read the information on the mobile device to bring them into synchronization with objects on the PC.I think Motorola should have been able to show synchronization of objects on the mobile device by installing the software on a PC, changing an object on the PC, and showing that the corresponding object on the mobile device changed in response to a synchronization. Alternatively, they may have reverse engineered the software that was on the PC to show that it did not do a general read of the mobile device, but instead simply asked for an update from the mobile device of change objects for synchronization purposes. This would have required an active synchronization component on the mobile device.Obviously the difficulty in doing this may have been have something to do with the lack of computers and operating systems that could run the old software.

          1. 4.3.2.1.1

            I’ll start from the bottom of your reply by agreeing with you that building a rig and showing live the claimed functionality would have probably done the trick (I mean, if this is not clear and convincing evidence…). Since we are speaking about mid 90’s technology, I don’t think this would have been too hard to do for a tech company – who knows why they didn’t go for it…As for the rest, because “synchronization” appears to be an elusive concept, and yet the decision was taken without it even undergoing claim construction, perhaps it’s best to quote the patent itself:”it is advantageous for the PIMs [applications which enable the user of the mobile device to better manage scheduling and communications] on both the mobile device and the desktop to contain the most up-to-date information, regardless of whether recent changes to the PIMs have been made on the mobile device or the desktop computer. The process of coupling the mobile device with the desktop computer, and integrating the information stored by the PIMs on the mobile device and the desktop computer such that the two contain the same updated information is referred to as synchronization.”Furthermore, “[i]n order to accomplish synchronization, synchronization components run on both mobile device 3 and desktop computer 4. The synchronization components communicate with PIMs 5 and 7 on mobile device 3 and desktop computer 4 through well defined interfaces to manage communication and synchronization”.Hence, even in the patent’s own words, synchronization goes both ways and a synchronization component may be simply a piece of software which runs in collaboration with a similar piece of software running on the desktop computer. Motorola clearly had a synchronization component on a desktop computer, and a manual telling that the mobile device could initiate synchronization (so, if you want, took active part in the synchronization). They were in the same technical context of the invention, and argued that a synchronization component was inherently present on the mobile device; the court disagreed, based on a reading of the claim that I find hard to follow. What puzzles me the most is that in such a situation I would expect the rebuttal to be: “no, it’s not inherent, synchronization could also occur in this other way”, but I see no alternative explanation supporting the same fact pattern here. Motorola might be partly at fault, as I get the feeling that the non-infringement theories that were initially advanced muddled the waters considerably when it came to validity, but still I think they got the short end of the stick.

            1. 4.3.2.1.1.1

              LBZ, I think the Newton did have a sync component. But that is based on circumstantial evidence only, not clear AND convincing.Motorola needed to run the Newton with its PC software to demonstrate actually synchronization, or get its software from Apple and use that to prove the component. I assume, without knowing it, that neither proof was actually available to Motorola for one reason or another.

              1. 4.3.2.1.1.1.1

                I think the Newton did have a sync component. But that is based on circumstantial evidence only, not clear AND convincing.Then why are you convinced?

  5. 3

    One wonders whether Apple ever filed any applications itself describing its Newton. That might have show the sync component.Second, why in the world did Motorola not request of Apple its specs and source code for its Newton OS? Assuming that they did, perhaps Apple long ago destroyed its records — which is perhaps the real reason why Motorola’s defense failed.

    1. 3.1

      “Second, why in the world did Motorola not request of Apple its specs and source code for its Newton OS?”Under what theory would Apple be required to turn over its proprietary specifications and source code to a competitor that is not involved in the suit?

      1. 3.1.1

        LB, I presume you have heard of protective orders? The information would not be turned over to a competitor, only to litigation counsel.As to the last point about Motorola not being involved the suit, perhaps I missed something. Please elaborate as I do not understand. Motorola was the respondent.

        1. 3.1.1.1

          Sorry, Ned, I meant to say that Apple is not involved in the suit.Yes, I’ve certainly heard of protective orders, but Apple’s proprietary source code and specifications are not prior art – if I were Apple I would fight a subpoena tooth and nail. If Motorola wanted to use public use of the Newton as prior art, then it should track one down on its own.

          1. 3.1.1.1.1

            Perhaps a discussion of the legal grounds for Apple motion to quash a subpoena would be very interesting to this conversation. Even if Motorola had a Newton, figuring out whether there was a synchronization component in its OS would have been nigh on impossible. Doesn’t his give Motorola a right to the discovery?

            1. 3.1.1.1.1.1

              Even if Motorola had a Newton, figuring out whether there was a synchronization component in its OS would have been nigh on impossibleDepends on the definition of “synchronization component” and what the Newton was known to be capable of doing.Does the Federal Circuit require defendants to disprove the possibility that the Newton used magic to perform its operations?

              1. 3.1.1.1.1.1.1

                “Does the Federal Circuit require defendants to disprove the possibility that the Newton used magic to perform its operations?”I know right? I’m curious to know what the alternative proposed by the patentee was.

            2. 3.1.1.1.1.2

              “Even if Motorola had a Newton, figuring out whether there was a synchronization component in its OS would have been nigh on impossible. “If that’s the case, doesn’t it mean that the Newton wouldn’t be relevant prior art, since the feature at issue was not publicly known?

                1. 6, but with third party prior art, one must still show public use. Secret info is not prior art to anyone but the party who put the secret info on sale.

                2. “Secret info is not prior art to anyone but the party who put the secret info on sale.”Again, the whole device was on sale. Software and all. There is nothing secrit about the functionalities of the device.

                3. If a device is “on sale” in the US, i.e., publicly available, it is in public use. That is the proper statue to pursue.

              1. 3.1.1.1.1.2.2

                I think that all depends on whether the Newton can be reversed engineered to determine its software components. If for some reason, that is impossible because Apple made it impossible, then I would agree that the Newton would not be good public use prior art for the very reason that the details of its OS were kept secret. So, Motorola is placed on the horns of a dilemma. If it cannot reverse engineer the Newton, it is not prior art. If it can, why does it need Apple’s source code? Clever.

                1. Ahh I see. “Most Newton devices were developed and marketed by Apple (this includes the wholeMessagePad line and the eMate 300), but other companies — Motorola, Sharp, and Digital Ocean — also released devices that ran the Newton OS.”http://en.wikipedia.org/wiki/N…

                2. whether the Newton can be reversed engineered to determine its software components.You don’t necessarily need to “reverse engineer” anything if there is clear and convincing evidence showing that Newton was able to update data its memory based on a communication with a remote device.Likewise, I don’t need to reverse engineeer a prior art chemical to show that it had a “headache reducing component” (functional claim language) if the prior art is filled with sales brochures and testimony describing the functionality.

                3. Malcolm, if expert testimony could link the proof you describe to the necessity of a synchronization component, then you could be right. But, isn’t that the real issue here. Just what does one have to show to prove with clear convincing evidence that a component exists in fact.

                4. Just what does one have to show to prove with clear convincing evidence that a component exists in fact.If the “component” is functionally claimed than the existence of the function in the prior art is all that is needed to meet the limitation. Was the Newton capable of “synchronizing” its memory in any conceivable way with the memory of a remote device? That’s the question. If the answer is yes, the patent is anticipated, inherently or otherwise, or (if the function is found in some device other than the Newton), then the claim it’s obvious as the combination of old features for their well-known functionalities.Whatever name we choose to call the “information” in the memory of the devices being “synchronized” is, of course, utterly irrelevant.

                5. Malcolm, I think you read out of the claim the term “individual objects.” You do it in exactly the same way that judge Newman read out of the claim that a message had to include, if I recall correctly, a product ID when she determined as a matter of law that the claimed invention was found in a prior art CompuServe system despite that the CTO of CompuServe testified that the corresponding messages of in the CompuServe system did not have such a product ID.

                6. I think you read out of the claim the term “individual objects.”No, I didn’t read that term out of the claim.

                7. We can get into a pissing match on that term, if you choose. But I saw nothing in your prior posts about individual objects. You didn’t even try to prove that element.

                8. a message had to include, if I recall correctly, a product IDIf we’re talking about a device claim, the contents or arbitrary name given to any “message” that the device might receive is irrelevant and meaningless to determining the structure of the claimed device.But thank you for highlighting one of the key reasons that nearly all of these computer-implemented claims are pure junk.

                9. As it turned out, the use of a product ID in the message was probably the key distinguishing claim element. The jury found that the CompuServe System did not have that feature when it decided no anticipation. The Feds simply cannot ignore the limitation as if it were irrelevant.What Newman decided was that the CompuServe System accomplished the same result as the claim as a whole, but in a different way. Just as such is not an equivalent for infringement purposes, such is not an equivalent for prior art purposes.

            3. 3.1.1.1.1.3

              Yes, I am not sure why there’s this silly discussion about whether or not Apple would have to turn over source code. Of course they would. Happens all the time. They’d have no basis to oppose it, provided that it’s produced under an appropriately strong protective order.Not sure why the previous poster kept talking about sensitive, etc. The Newton was discontinued by Steve Jobs when he returned to Apple in 1997, and the OS and technology for it was not used thereafter. But this is the problem with using a device itself as an anticipatory reference. In most cases, you’re a lot better off using a device plus a manual or book describing it (“Newtons for Dummies” type book), which would have described the allegedly inherent synchronization component.

          2. 3.1.1.1.2

            “but Apple’s proprietary source code and specifications are not prior art”Um, it is a real device (the newton) that was on sale iirc. According to the re tards backing the current system all of that source code is “is the machine” and the specifications to the device, the ones that are publicly revealed anyway, are prior art. Likewise, while the secrit specs might not be prior art, the device itself was, and all they want is EVIDENCE as to what the prior art device that was on sale inherently was (regardless of whether or not that evidence is itself prior art). All the parties here want to know is what the machine on sale really was, inherently.

            1. 3.1.1.1.2.1

              “Likewise, while the secrit specs might not be prior art, the device itself was, and all they want is EVIDENCE as to what the prior art device that was on sale inherently was”Yes. And like I said, if I’m Apple I’m not the slightest bit interested in helping either party.The other possibility, of course, is that Motorola did not go after the source code/specifications because they were afraid of what they might not find.

              1. 3.1.1.1.2.1.1

                “Yes. And like I said, if I’m Apple I’m not the slightest bit interested in helping either party.”Well of course. But I just wouldn’t think that it being prior art or not would matter. “The other possibility, of course, is that Motorola did not go after the source code/specifications because they were afraid of what they might not find.”Perhaps. But I doubt that. Since they must have known their inherency case was probably too weak without it.

    1. 2.1

      My thoughts exactly. They allege inherency so frequently, most often without support. You point out their error(s) and they still hang on to it for dear life.

    2. 2.2

      Here, Motorola had to show inherency by clear and convincing evidence, which certainly can be hard. But the burden of proof is lower for examiners – they need to show inherency merely by a preponderance of the evidence. Not as hard.

      1. 2.2.1

        Yeah, and this shows why re-examinations and IPRs are fundamentally unfair — and might I add unconstitutional.

  6. 1

    Just so we’re perfectly clear: a “mobile” device that (1) can “generate a meeting object and an e-mail scheduing request” based on “user input information” (WOW!), and (2) (as a separate capability) can “synchronize” portions of its memory with a remote device (WOW!) was somehow deemed non-obvious in view of reams of old computers that did those things and in view of the fact that making computers “mobile” was also old in the prior art?Seriously? When claimed purely functionally? Good lord.More evidence of a broken patent system.

    1. 1.1

      Did you honestly expect Motorola Mobility to even attempt to invalidate a patent claim on the basis that “computers could do that at the time, and computers count as mobile devices”?

      1. 1.1.1

        Exactly. The very parties who have the most to lose from the current regime are the parties that have the most to gain also.

      2. 1.1.2

        Did you honestly expect Motorola Mobility to even attempt to invalidate a patent claim on the basis that “computers could do that at the time, and computers count as mobile devices”?Good point. Their lawyers can’t argue well-known facts because those facts would end up tanking Motorola’s own portfolio or would make the inequitable conduct charge defense impossible for them to overcome.Can someone please remind the Supreme Court of this issue so they can keep it mind when they read the briefs being submitted in the Alice case?

        1. 1.1.2.1

          “Their lawyers can’t argue well-known facts because those facts would end up tanking Motorola’s own portfolio or would make the inequitable conduct charge defense impossible for them to overcome.”Coming from Malcolm, the hypocrisy meter explodes (given his well documented volunteered admissions against interest and his continued ‘arguments’ disregarding same.add: the very same hypocrisy displayed on this thread.

          1. 1.1.2.1.1

            well documented volunteered admissions against interestYou enjoy fabricating this nonsense because you are a sociopath. Get help.

            1. 1.1.2.1.1.1

              No fabrication at all Malcolm.But your misrepresentations here will be interesting to juxtapose with the archives once those are restored.

        2. 1.1.2.2

          >>Can someone please remind the Supreme Court of this issue so they can keep it mind when they read the briefs being submitted in the Alice case?<<What should the Supreme response be if they do consider it? I guess they could fulminate that the overwhelming majority of abstract functional computer patents result from utter failure to take §103 seriously and demand that the PTO revise its practice, but that wouldn’t address the questions Alice raised at the CAFC.Maybe they could take this case as background to Judge Moore’s opinion, “this would render ineligible nearly 20% of all the patents that actually issued in 2011. If the reasoning of Judge Lourie’s opinion were adopted, it would decimate* the electronics and software industries.”Noting that almost all of the litigable claims in question are like the ones in this case, they could then come to the conclusion that those patents need to be recognized as ineligible for the good of the country, the industry, and the patent system.*Judge Moore apparently misspelled ‘delight.’ Abolishing software patents would _delight_ the software industry.

          1. 1.1.2.2.1

            “Noting that almost all of the litigable claims in question are like the ones in this case, they could then come to the conclusion that those patents need to be recognized as ineligible for the good of the country, the industry, and the patent system.”More Kool-aid drinking from lemming Owen. Because enforcing patent rights (shockers – through litigation) is only the second worst thing ever behind the actual granting of patent rights.Owen – you mistake and buy into the fallacy that occurrence of the subject in courts necessarily means that the patents are bad. Take a little time and review history: this is NOT the first time that an advance in technology results in more suits being brought, and most definitely does not support the argument that such patents are ‘bad.’

    2. 1.2

      I know right? To make matters all the worse, the accused can’t make the necessary assertions to defend itself for fear of invalidating its own patent pool.

        1. 1.2.1.1

          Get out the tinfoil hats.There is nothing “tinfoil hatted” whatsoever about the fact that attorneys avoid making arguments that are detrimental to their client’s interests.

        2. 1.2.1.2

          Topics that they’ll talk freely with you about on the phone are not exactly a conspiracy anon.

          1. 1.2.1.2.1

            LOL – No one is saying anything about ‘talking freely on the phone’ 6.What is so ‘conspiracy-minded’ is that all of the parties conspire to keep some ‘secret’ out of the courts because that ‘secret’ would nullify their own patent holdings – such is not only banal and fallacious, it is also inconsistent with the other lemming belief that no one in the software world even wants software patents (see the post by Owen). If such no-one-wants belief were true, then the exact opposite (of the conspiracy-minded cabal) would have occurred long long long ago.

            1. 1.2.1.2.1.1

              Isn’t ‘t_lking freely on the phone’ covered by the method for cre_ting _d-hoc _udio w_veforms for electronic stor_ge _nd tr_nsmission over _ telephone network p_tent? I got _ dem_nd notice in the m_il l_st week for th_t. Should I settle or fight it in court? I got one the week before for using the letter “_” in _ blog comment so I h_d to stop doing th_t or p_y $5000 for _ license.

            2. 1.2.1.2.1.2

              What is so ‘conspiracy-minded’ is that all of the parties conspire to keep some ‘secret’ out of the courts because that ‘secret’ would nullify their own patent holdingsThey aren’t “secrets”. They are facts that undermine positions taken during prosecution of their own patent.he other lemming belief that no one in the software world even wants software patentsThe number of people who want software patents is dwarfed by the number of people who believe they are, at best, unnecessary, and that includes people who “innovate” in the software space.

            3. 1.2.1.2.1.3

              “parties conspire to keep some ‘secret’ out of the courts because that ‘secret’ would nullify their own patent holdings – such is not only banal and fallacious, it is also inconsistent with the other lemming belief that no one in the software world even wants software patents (see the post by Owen). If such no-one-wants belief were true, then the exact opposite (of the conspiracy-“It’s no secrit. It’s just carefully overlooked. Them turning their gaze the other way is hardly a cover up. Oh and to be clear, there are plenty of people in the software world that would like to have patents of their own lol. Why else would there be so many apps in prosecution or allowed? There’s plenty that want them, including large corps. But that number is of course dwarfed by people that know better and do not.

              1. 1.2.1.2.1.3.1

                “Oh and to be clear, there are plenty of people in the software world that would like to have patents of their own lol. Why else would there be so many apps in prosecution or allowed?”LOL – maybe Owen or Malcolm wants to take a shot at answering that question.And by ‘knowing better’ do you care to share an actual legal or factual context, or just the usual lemming mantra?

                1. “And by ‘knowing better’ do you care to share an actual legal or factual context”I already have shared a “factual ‘context'” and you reject it out of hand as not being a fact even though an expert in the field did declare it point blank.

Comments are closed.