The Paramount Interest in Seeing that Patent Monopolies . . . are Kept Within their Legitimate Scope

By Dennis Crouch

Courts have often identified patent rights as a form of monopoly. Perhaps this stretches back to the 17th century Statute of Monopolies that ended all letters patents and other government granted monopolies except for those covering novel inventions. Economists typically reject the categorization because modern patent rights by themselves do not create market power nor even the right to sell or use the invention. (Patent rights only grant the right to exclude others).

Interesting aspect of the Supreme Court’s decision in Medtronic v. Mirowski (U.S. 2014), is the way that the court subtly revives this prior form of thinking by quoting older precedent:

The public interest, of course, favors the maintenance of a well-functioning patent system. But the “public” also has a “paramount interest in seeing that patent monopolies . . . are kept within their legitimate scope.” Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U. S. 806, 816 (1945). A patentee “should not be . . . allowed to exact royalties for the use of an idea . . . that is beyond the scope of the patent monopoly granted.” Blonder-Tongue Laboratories, Inc. v. University of Ill. Foundation, 402 U. S. 313, 349-350 (1971).

Now, the use of the monopoly term here does not appear carelessly placed but instead intentionally designed to link patent rights with the monopoly problem. This connotation is important for the Court’s policy argument that, like monopolies, patent rights need to be controlled. This follows Thomas Jefferson’s famous thoughts against monopolies but eventual support for patent rights that were limited in both scope and duration.

In a recent article addressing this issue from a European perspective, Sven Bostyn and Nicolas Petit argue that continued rhetoric linkage of patents with monopolies is problematic and may well serve “a hidden bureaucratic agenda, that of limiting patent protection through the backdoor, by using ex post antitrust remedies to alter the protective – and innovation-incentivising – patent statutes adopted ex ante by elected democratic organs.” See Bostyn & Petit, Patent=Monopoly: A Legal Fiction (December 31, 2013). The Bostyn-Petit characterization is likely relevant to US policymakers as well. I looked through the few years of Federal Circuit cases that mentioned “patent monopoly.” Time and again the court used the phrase as part of its explanation why patent rights should be limited with the excepting being cases that quote the Georgia Pacific factors. See, e.g., LifeScan Scotland, Ltd. v. Shasta Technologies, LLC, 734 F.3d 1361 (Fed. Cir 2013) (Judge Dyk); CLS Bank Intern. v. Alice Corp. Pty. Ltd., 717 F.3d 1269 (Fed. Cir. 2013) (en banc; Judge Lourie opinion); Brooks v. Dunlop Mfg. Inc., 702 F.3d 624 (Fed. Cir. 2012) (Judge Prost); Ritz Camera & Image, LLC v. SanDisk Corp., 700 F.3d 503 (Fed. Cir. 2012); SanDisk Corp. v. Kingston Technology Co., Inc., 695 F.3d 1348 (Fed. Cir. 2012) (Judge Reyna in Dissent); Akamai Technologies, Inc. v. Limelight Networks, Inc., 692 F.3d 1301 (Fed. Cir. 2012) (Judge Linn in Dissent); Therasense, Inc. v. Becton, Dickinson and Co., 649 F.3d 1276 (Fed. Cir. 2011) (Judge Bryson in Dissent); Micron Technology, Inc. v. Rambus Inc., 645 F.3d 1311 (Fed. Cir. 2011) (Judge Gajarsa in Dissent).

147 thoughts on “The Paramount Interest in Seeing that Patent Monopolies . . . are Kept Within their Legitimate Scope

  1. Message to David Stein and anyone else who objects to MM, I find MM a delight. Sure he is brash, but he is also right most of the time.

    He and I disagree on things all the time, but we never insult each other. We discuss and he explains his views. If you end up in a pissing contest with Malcolm, may I suggest the fault might be partly yours.

    1. The funny thing, Ned, is that there are plenty of other blogs (including one supposedly “important one”) which welcome and encourage uncontested pro-patent, pro-trolling (aka “pro-innovation”) discussions and diatribes about, e.g., terrible Examiners, “anti-patent forces”, out-of-control judges undermining the Constitution and ignoring “the actual law” etc.

      Likewise, at those same places, discussions about junk patents or the issues raised by functional claiming in the computer arts are virtually non-existent and attempts to discuss those issues are quashed by the moderator (who has no hesitation about insulting critics as ignorant shills) or his equally petulant peanut gallery.

      Apparently those places aren’t sufficiently satisfying for them. But rather than criticize those blogs as insufficiently diverse and one-sided (allegedly a concern of theirs), they come here where there are diverse postings and literally cry “shame on Dennis” for “chumming” out of one side of their mouths and out of the other side they attack commenters who question their myopic, entitled view that the patent system exists to serve only patent applicants and patentees (i.e., themselves).

      Their hypocricy knows no bounds. And then they try pretend that people who behave exactly like they do — right out in the open! — don’t even exist.

      There are junk patents out there. More junk patents are being granted now that at any time in the history of the country. People who have never produced a darn thing in their entire lives except legal briefs are asserting those patents against people who are (1) actually producing things; (2) simply trying to operate their businesses with the help of a computer; or (3) trying to use the Internet to share information (including health information) with other people.

      The courts are increasingly being made aware of the issues and, where reasonable arguments are being made, they are siding with defendants and invalidating these junk patents.

      People invested in the status quo do not like this, for obvious reasons. Their response is to attack their critics (and judges or politications who agree with the critics) as part of some conspiracy of thieves or as ignorant thugs who don’t appreciate how awesome they are. And that’s all they do. They do not and they will not give an inch.

      That’s why David Stein feels that he should be able to come here and pretend that Prometheus v. Mayo never happened. You can’t dissect claims! David says. This is *after* Prometheus v. Mayo! And then when he’s called out for being a hack he throws a temper tantrum. Because everybody’s supposed to treat David Stein like he was born yesterday, I guess, rather than treating him like a guy who should know better. Same deal with Patent Guru.

      These guys don’t want to have a serious discussion about patents. Opportunities to discuss serious issues and junk claims are regularly put right under their noses and they just run away.

      What they want is to be able to freely, uncontestedly throw their tantrums about the inevitable changes that are coming to patent law and which are going to “weaken” their beloved “patent rights” and which are oh-so-unfair because if we only knew how important they were to the continued spinning of the earth. That’s it.

      If I’m wrong, let them prove otherwise with actual actions rather than whining about they are so misunderstood and they just want “quality patents” like everybody else.

      1. >>This is *after* Prometheus v. Mayo!

        So, after pages and pages of rant we get one assertion of MM’s that can be discussed. MM is apparently saying (hard to be sure though given the rant) that after Prometheus claims no longer have to be analyzed as a whole.

        I can see how someone could contend that Prometheus so holds, but I suspect that once the SCOTUS considers how sloppily they wrote Prometheus that they will clarify that they do not so hold.

        1. after Prometheus claims no longer have to be analyzed as a whole.

          Funny that still needs to be squared with the fact that in Prometheus the Court said that is was not changing any of its precedents (least of which the precedent most on point).

          Even those with stellar English as a first language have failed to do so.

          1. Funny that still needs to be squared with the fact that in Prometheus the Court said that is was not changing any of its precedents (least of which the precedent most on point).

            If you are suggesting that the relationship of claim elements to the prior is not part of the analysis under 101, then you’re wrong. Prometheus made that perfectly clear.

            All Diehr stands for is the trivial proposition that the mere presence of ineligible subject matter in a claim is insufficient to declare that the claim is ineligible.

            You’ve been told this hundreds of times already but you’re either too st00pit or too dishonest to accept it.

            Go ahead and tell your clients that as long as they have some eligible subject matter in a claim that their claim is eligible. Do it right now. Send them all an email. Be sure to send a copy to David Stein because he also appeared to be very confused and I’m sure he’d love to know what the “actual law” is from a deep thinker like you. So go ahead, anon. Send the email. Maybe attach the Prometheus and the ABL case so your clients can know where you’re coming from.

            1. Malcolm once again warms the bonfire:”mere presence of ineligible subject matter in a claim is insufficient to declare that the claim is ineligible.

              Since everyone knows that perfectly valid claims may be comprised of all [oldsteps], Malcolm’s admission here of an ineligible step, say [newthought], then is insufficient to declare a claim comprised of [oldsteps] + [newthought] not patent eligible.

              WHOOOSH – and Malcolm’s pet theory goes up in flames.

              Again.

            2. Malcolm’s pet theory goes up in flames.

              It’s not “my pet theory.” And it never was. It’s just a simple exercise in logic and there’s just a handful of stubborn/ignorant people (including you) who are incapable of understanding or who simply refuse to even try to understand.

              As I suggested upthread: it’s your malpractice insurance, not mine. Believe whatever looneytunes ideas you want.

              ABL could have saved themselves some money if they’d listened to me. But they chose to listen to someone else instead. They chose to listen to someone who makes “arguments” similar to yours.

              That’s not my problem. Quite the opposite.

              Since everyone knows that perfectly valid claims may be comprised of all [oldsteps], Malcolm’s admission here of an ineligible step, say [newthought], then is insufficient to declare a claim comprised of [oldsteps] + [newthought] not patent eligible.

              That makes absolutely no sense. But go ahead and type that it in an email and send it along to your clients along with the ABL case.

            3. Malcolm prevaricates YET again with “They chose to listen to someone who makes “arguments” similar to yours.

              You really are not paying attention at all, are your Malcolm?

              (sigh) Try reading what I actually wrote – see the key 2.

        2. MM is apparently saying… that after Prometheus claims no longer have to be analyzed as a whole.

          Tell everyone what you think it means to analyze “claims as a whole” (a phrase that appears in 103, not 101, lest we forget).

          If you think it means that one is not permitted, for any purpose, to look at how various elements in the claim relate to the prior art, then you are mistaken. It never meant that. It never will mean that.

          But go ahead and everyone exactly what you think the phrase means. The way you behave one would suppose that you believe it means “every new method or manufacture is non-obvious and eligible.” But only a m0r0n would believe that. So tell everyone what you actually do believe about that phrase and its magical, mystical power to overcome reason and common sense.

          1. LOL – typical Malcolm CRP – when asked a question always responds not with answers, but with a questions back to the other person.

            Fear: the Malcolm Way.

            1. Well, I am sure that Malcolm’s “GFY, nutcase.” surely must meet some objective standard for discussion on this website….

              Right?

              After all, a vapid expletive is just, well, ‘brash

              /eyeroll

            2. some objective standard

              The “objective standard” is that it’s perfectly reasonable to respond to a pathological liar (such as you) with the phrase “GFY”, particularly when the evidence proving that the person is a pathological liar is right in front of everybody’s face and the person has been advised repeatedly to get medical attention or STFU.

            1. Is that how it appeared in Diehr?

              Here’s how it appeared in Diehr:

              the fact that one or more of the steps in respondents’ process may not, in isolation, be novel or independently eligible for patent protection is irrelevant to the question of whether the claims as a whole recite subject matter eligible for patent protection under 101.

              which is exactly what I’ve been telling you for years and exactly what I wrote again upthread: the mere presence of ineligible subject matter in a claim is insufficient to declare that the claim is ineligible.

              That’s a trivial proposition.

              Let me know when you find a claim in the form [oldstep]+[newthought] that’s eligible for patenting. You’ve had years now to do it. You’ve never come up with a single example. Neither has David Stein. Neither has NWPA. Neither has Patent Guru. Nor has AAA JJ. Bob Sachs never did it. Gene Quinn never did. Kevin Noonan never did it. Hal Wegner never did it. Don Chisum never did it. Courtenay Brinckerhoff never did it. (who else am I missing? there was some litigation partner who popped up with some 100% wrong analysis who also never faced the music).

              Nor has anyone else on your team of sand pounders who continue to pretend that Prometheus was some radical decision that tore a giant hole in the fabric of patent law. There’s a very good reason for this longstanding failure. Shall I share it with everyone or can you figure it out for yourself?

              Looking at a patent claim and comparing it to the prior art in order to understand whether ineligible subject matter is being removed from the public domain (a domain which includes, by the way, information accessible in books and information accessible by computer) is not a violation of the trivial proposition set forth in Diehr (and affirmed in Prometheus).

              The claim in Diehr, by the way, was junk that should never have been granted. Eventually the Supreme Court will acknowledge that fact as well.

            2. Move the goal post back to the point of the question Malcolm and your quote of “(a phrase that appears in 103, not 101, lest we forget).

              Try again.

              This time stay on point.

            3. 6 – Wake up and get the point that Malcolm is simply wrong – again.

              Not engaging is already what he does – note the lack of answers to the simple questions that go to the heart of the software patent discussion.

              But you should also notice that his not engaging is not working out for him.

              At all.

              When Malcolm opts for the ‘don’t engage’ path and insists on posting totally obvious B$ and those posts simply are not consistent with his own volunteered admissions against interest that Malcolm has made in the past (lol, and yes there is PROOF, as Malcolm’s latest bogus posts insist upon with the return of the archives), all Malcolm does is end up looking like the deceptive tool that he his.

              It (naturally) makes him sad.

            4. Malcolm being Malcolm: “The claim in Diehr, by the way, was junk that should never have been granted.

              Because RQ/HD says so – oh, how very Carroll of him.

            5. “But you should also notice that his not engaging is not working out for him.”

              Yes we already know you’re an ar sehat you don’t need to remind us like every hour or two.

    2. Sure he is brash, but he is also right most of the time.

      He is ‘right’ close to zero percent of the time Ned.

      And ‘brash’ is not the right term, as no one – and I emphasize NO ONE is more an a$$hat than anyone.

      The reason why you like him is because he generally subscribe to the Ned IMHO version of the law.

      Nothing more.

    3. Ned, don’t be ridiculous. You agree with MM regarding information processing patents. MM makes no attempt to have a fair discussion because, frankly, there are no grounds for one. The character of the discussion is one of trying to justify a policy by misconstruing the law or misrepresenting the facts.

      Gee, just think back 6 years when MM was telling us all that computer instructions captured natural laws. Now he denies he did that.

    4. It is also pretty ridiculous of you Ned to be siding with MM. MM blasts this blog with 10’s of posts to clog up the possibility of any real discussion. He also is the one that “pounds his fist” on the desk and shouts “junk claims!” And, yet, just like the lackies like Laurie on the Federal Circuit, he provides some bizzarro 101 arguments rather than a 102/103/112 argument. How many times has MM posted the claims of ABL?

      And, Ned, my suspicious is that one or both of you are paid bloggers. Of course you would never admit that as then you might be banned from this blog which could endanger your job. And, Ned, you are a ridiculous human being. Your argument that information processing patents are fine as long as they include a ROM is absurd.

      So, give me a break. You are in no position to be judging anyone on this blog and your continued endorsements of MM only discredit you further.

      1. my suspicious is that one or both of you are paid bloggers.

        How much do you suspect we’re being paid?

        Please let everyone know.

        The patent teabaggers can’t resist attacking their critics this way because they assume that their critics are just like them: money grubbing bottom feeders who will do or say anything for a buck. And the teabaggers will do whatever backflips are necessary to “prove” their point. “He used to own $10,000 in Google stock — it’s obvious why he doesn’t support functional claimed computer-implemented junk!” And they have no idea how paranoid and looney they sound.

        Keep up the great work, NWPA. You and your li’l buddy anon make a wonderful team. Like I said, you should join up with Dale, Eric, Nick, AAA JJ, PG and DStein and form some sort of devastating league of Patent Superheroes. You’ll be unstoppable! It’ll be even more persuasive and successful than anon’s old army of sockpuppets.

        1. So, are you suggesting that there aren’t paid bloggers? Is that the question regarding money? There was a job announcement here on patentlyo about 6 months ago for a patent attorney to manage paid bloggers including the policies etc.

          1. Quite frankly, that doesn’t sound like an activity that an intelligent person with my sociopolitical leanings would engage in.

            Ah, I see the trick there – you inserted a false condition of “an intelligent person,” something that you simply FAIL at (time and again…

            …and again…

            …and again…

            …and again…

            …and again…

            …and again…

            …and again…

            …and again…

            …and again…

            …and again…

            (get the picture)

            And tell me, is Francis, Vivika M, and Friend(s) of the Court a part of that sockpuppet army?

            Gee, maybe we can have an “intelligent” response of *click,* ‘Kenneth,’ base cussing, or maybe if we are (gasp) lucky, some of that special AOOTWMDs.

          2. MM, I think you do protest too much. The job was for a Washington lobby group that was anti-patent. I am sure you know who I mean. Is that angry response and denial on your policy sheet you use to blog with?

          3. NWPA I think you do protest too much.

            LOL!

            The job was for a Washington lobby group that was anti-patent. I am sure you know who I mean.

            I have no idea who you mean. I didn’t see the ad. I don’t know who you’re talking about.

            As I said, if you’ve got some evidence showing that “anti-patent” people are being paid by some organization or company to comment here (or anywhere), then show everyone the evidence. Otherwise maybe think about shutting up about it because you sound like a paranoid d*psh*t who is incapable of winning arguments on the merits. Of course, that’s true of nearly all the patent teabaggers but we knew that already.

            Now go cry some crocodile tears about how mean I am.

          4. I have copy and pasted and given you links to the paid blogger advertisement several times. There have been numerous posts on this blog regarding paid posters and their use by people that work with Washington lobby groups.

            Your push reset every 5 minutes is ridiculous. Everyone knows these groups exist. Everyone knows that many people are paid to blog as part of lobbying. You have been shown that many times. Your push reset nonsense is just ridiculous.

  2. For David Stein, who so badly wants to have a nice discussion about patent law.

    Let’s look again at the junky claim that was tanked in ABL:

    Claim 1: A method for guiding the selection of a therapeutic treatment regimen for a patient with a known disease or medical condition, said method comprising:

    (a) providing patient information to a computing device comprising:

    a first knowledge base comprising a plurality of different therapeutic treatment regimens for said disease or medical condition;

    a second knowledge base comprising a plurality of expert rules for evaluating and selecting a therapeutic treatment regimen for said disease or medical condition;

    a third knowledge base comprising advisory information useful for the treatment of a patient with different constituents of said different therapeutic treatment regimens; and

    (b) generating in said computing device a ranked listing of available therapeutic treatment regimens for said patient; and

    (c) generating in said computing device advisory information for one or more therapeutic treatment regimens in said ranked listing based on said patient information and said expert rules.

    I have a simple question (and it’s an old question but I’ve never received an answer). I’ll be really impressed if one of the highly educated and experienced law firm partners who fancies himself an expert in this area can provide a compelling answer.

    Imagine that this claim is obvious as a matter of fact (pretty easy to imagine). Now imagine that we add one more “limitation”: “wherein said therapeutic treatment regimen comprises [insert non-obvious instructions here]“.

    Is this claim now non-obvious and eligible for patenting? If so, is there any way to prevent people from obtaining claims that effectively remove useful non-obvious (but otherwise ineligible) electronically stored information from the public domain?

  3. Actually, isn’t the issue whether some patents, granted within the Rules as they are presently being applied, have a scope and consequences in terms of their impact on commerce that is not commensurate with the objects for granting patents in the first place?

    1. David,

      No.

      What you are suggesting is that the rules need to be changed. That is the job (explicitly) for Congress and not the Court.

      1. What you are suggesting is that the rules need to be changed.

        Seems like he could be suggesting that the way “the rules” are being applied needs to change.

        You do understand that when Congress passes rules such as, e.g., patent statutes, they aren’t contemplating the universe of all possible “inventions” that will be examined under those rules. They understand that the PTO and the courts will be playing a large and important role in ensuring (or attempting to ensure) that the system doesn’t break down.

        The position of the patent teabaggers seems to be that only Congress can take something away from you. You forget that many of those things were given to you in the first place by the courts.

        Thanks for your comment.

        1. Be clear Malcolm – are you saying that the Court can write patent law in contradiction to that written by Congress?

          Shall I remind you of a quote found in most every 101 patent law decision published by the Supreme Court since 1952 that lays your ‘proposition’ to waste?

          1. are you saying that the Court can write patent law in contradiction to that written by Congress?

            No.

            Shall I remind you of a quote found in most every 101 patent law decision published by the Supreme Court since 1952 that lays your ‘proposition’ to waste?

            How about you type the quote you’re referring to like a big boy. Then you can climb up on your magical pony with David Stein and fly into the rainbow wonderland where all those evil judges get impeached whenever they disagree with you. Super fun!

            1. Great first part answer – now use that to join the conversation.

              Second part? Typical Malcolm (but I have to be careful responding, lest I be too brash – or is not brash enough – so difficult to tell with no objective standard in place).

              Maybe more facetious magical ponies…?

        2. Thanks for replying. Two great replies.

          When patents were first legitimized they were seen as a way of encouraging, by sheltering, new business start-ups. This has shifted to: “Tell us a secret (with inventive character) and you will be granted exclusive rights for 20 years.” Exclusive rights over what? Not just over making product or delivering services that would compete with your new business. Rather, exclusive rights over using the information disclosed as the patentee has defined those rights in his claims. Patents now serve as a means of collecting money from others as well as sheltering new business start-ups.

          The art of claim drafting is now focused on crafting a net of maximum coverage. Functional claim language combined with perceptive abstraction of the idea contributed by the inventor maximize the breadth of coverage of the net.

          What should be done to address this situation? I don’t have an answer. But I have just reviewed the Selden case and I believe that a patent claim could have been drafted that would have covered Ford’s use of an Otto cycle engine, even though Selden only described in detail use of a Brayton cycle engine.

          Would that have been legitimate? Would it have been desirable if it had meant that Henry Ford would have been put out of business?

            1. I do not know where you obtained your History of Patents, but you should see if you can get your money back.

              Oh dear. David Stein and Patent Guru will have a sad if you keep engaging in this incivility, anon.

              Just kidding, of course. Incivility is a perfectly appropriate response to anyone who criticizes software patents or patent trolls, because only ignorant or “jealous” people do that.

              You told us that, anon. Or maybe it was someone who’s boots you love to lick. Does it make much of a difference?

            2. Telling David to get his money back was hardly uncivil Malcolm. It was friendly advice trying to stop him from being ripped off.

              But nice attempt at twisting, um, well, something

          1. David, the Selden case needs to be discussed and understood by everyone. Claims functional at the point of novelty, which I believe the Selden claims were, are a major problem in patent law and have always been so. But recognizing just when a claim is functional is not that easy. In Selden’s case, the claim was functional because he used a broad, generic, seemingly structural term at the exact point of novelty and because his claims did not include any meaningful limitations directed to the modified Brayton engine that he actually invented.

            There was a lot of controversy about functional claims right after Halliburton. There was extensive testimony to Congress the functional claims were okay because they better described the invention and better protected the invention because all equivalents were literally covered. The same arguments are being heard today, particularly being advanced by the Europeans who are quite used to claiming inventions broadly using means plus function that in Europe have no scope limitation imposed by law.

            Thank God that we have a case now on appeal in Nautilus that actually might address this issue. The real problem in Nautilus was a termed “spaced relationship” in combination with the argument made in re-examination that effectively turned this claim limitation into a claim that anything that worked was covered without any limitations because the patent specification described no examples of any embodiments of that actually worked or what criteria was important to produce the claimed a result.

            The passing of section 112 paragraph 6 (then paragraph 3) really through a monkey wrench into the development of the law of functionality that has since allowed very broadly worded patents to issue. These patents have caused extensive havoc to American industry. I can give you numerous examples, but the Selden case is one case on point where we can all agree that the broad claim in that case did not protect any invention invented by Selden, but rather imposed a trade monopoly on the American people.

            1. “The real problem in Nautilus was a termed “spaced relationship” in combination with the argument made in re-examination that effectively turned this claim limitation into a claim that anything that worked was covered without any limitations because the patent specification described no examples of any embodiments of that actually worked or what criteria was important to produce the claimed a result.”

              Well also because the court bizarrely brought the functional limitation in the claim up to modify the “spaced relationship” without any apparent reason to do so other than the patent protect under the “insolubly ambiguous” standard. Not to mention the part about where the true scope of the claim was at best given to the public 15+ years after issue.

  4. Oh, lookie! It’s another bottom-feeding patent attorney who fancies himself an “inventor”:

    link to arstechnica.com

    Philip Lyren appears to be the latest example of a “lawyer-inventor” being behind a patent lawsuit, a trend that really got going around 2008.

    As patent trolling accelerated and became an industry, some patent attorneys weren’t satisfied merely litigating patent cases: they wanted to get their own patents, suing for infringement of the intellectual property they had actually created.

    Often, the lawsuits were over “inventions” that only existed in the offices of the lawyer-inventors. In 2009, Google’s top patent lawyer wrote about the “disturbing trend,” noting: “[T]he patents being asserted against us are owned by—and in a surprising number of cases, are even ‘invented’ by—patent lawyers themselves.”

    Nobody could have predicted this exciting new trend.

    Just in case anybody was wondering, the patent covers the download of movies over cellular networks. What’s that, you say? Impossible! Oh but wait: there’s a very important “limitation” — the movies that are downloaded are (wait for it) “not publically available in movie theatres or DVD.”

    Apparently that’s the kind of technological progress that is being rewarded by the USPTO — at the behest of the patent teabaggers, of course.

    You know who the patent teabaggers are, don’t you? Just read these threads. They’re the guys who want to impeach judges who use the term “monopoly” when they discuss patents. And they really care about patent quality. Sure they do. They said so.

    1. I thought about this a bit more. Movies that aren’t publically available really are totally different from movies that are publically available, especially if you’re a computer or a cell phone. Completely different structures! How could anyone argue otherwise? It’s like saying that the transmission of a baby deer movie is technically indistinguishable from the transmission of baby elephant movie. Who would ever make such a ridiculous assertion? Everyone knows they’re totally different!

      That’s what the patent teabaggers here want you to believe. But they’ll never come out and say it. Not here anyway. Maybe in court they’ll say something like that, after they drag you down to East Texas where the roaches and the lawyers grow to about the same size (must be the diet). Maybe they’ll even cry a few tears for the jury. They’ve been known to do that.

        1. Nothing of the sort:

          The evidence to support my statement is right here in the threads for everyone to see, TB. You can pretend all you want that you want “better examination” but what you really mean is “stop rejecting my claims with arguments I don’t like.”

          Junk patents are shoved under your nose all the time. You just whine and cry about how people should use “official channels” to discuss them. You never explain why the patents should never have been granted because you would be shooting yourself in the foot.

          As best I can recall, you spoke up on the junkiness of just one patent: Myriad’s (a patent which I agreed was complete junk). In classic teabagger hypocrite fashion, suddenly the “judicial exceptions” were alive and well when it came to their claims! Why was that? Because you got a huge boner at the prospect of some claims in a non-softie woftie art unit getting tanked in a manner that wouldn’t impact your own junk.

          Man, you’re pathetic.

          1. but what you really mean

            More utter nonsense.

            But hey – the RQ/HD has spoken, so it must be true

            /major eyeroll

            use “official channels” to discuss them.

            Also dissembling nonsense. To be clear I have never said that you have to use official channels to discuss them. Discussing them on these boards is perfectly acceptable. Instead what I have said – and what I have always said – is that the way you discuss them – resorting as you do to spinning and dissembling – is what is not acceptable.

            Witness this immediate reply of yours which misstates my well understood distaste of how you comport yourself.

            As to Myriad, once again you are flat out wrong. For that case – like all other cases, I was discussing the underlying law and trying to explain that to you. You simply did not listen. Even after the decision, you dissembled a 30,000 plus mewling QQ sh1tstorm of ‘not listening.’

            To this day, you refuse to listen – thus, as you recently admitted, you just don’t understand the law.

            No one is really surprised Malcolm.

            Your last sentence is classic AOOTWYA.

            1. Shorter Trollboy: “Waaah!!! Waaaaah! Stop saying mean things about patent trolls and the people who defend them.”

              Go ahead and defend the junk patent at issue in that case. Prove you’re not exactly the person that I described in my comment because all available evidence suggests that you are the quintessential patent teabagger. Make my day, Trollboy.

            2. law on First Principles

              Oooh, that sounds so important!

              Dennis, please dedicate a post to the Law on First Principles. It’s apparently very important to anon, and everyone knows how important anon is.

      1. “Movies that aren’t publically available really are totally different from movies that are publically available, especially if you’re a computer or a cell phone. Completely different structures! How could anyone argue otherwise? It’s like saying that the transmission of a baby deer movie is technically indistinguishable from the transmission of baby elephant movie. Who would ever make such a ridiculous assertion? Everyone knows they’re totally different!”

        I had to kill some claims similar to this the other day. They dead tho, you don’t have to worry about em.

        1. I had to kill some claims similar to this the other day.

          It’s unbelievable that people could present such claims for examination without being sanctioned.

          Claiming an old method of providing information content and changing only the information content is no different than claiming a new book based on the content of the book.

          But that’s how broken the system is. People think they have a realistic chance of getting away with it and so they throw their wet toilet paper up against the bathroom wall to see if it sticks.

  5. Has it occurred to anyone else that the Supreme Court is not supposed to be in the business of determining patent policy? Three branches of government, and all that?

    Congress is a big body of elected officials who are directly lobbied by all of the parties with a stake in the patent game. A consensus among those people led to some strong decisions about the scope of patent protection, agreed upon as Title 35 of the U.S. Code.

    Now, a small group of judges, not elected but appointed (some back in the 1980’s), who have very limited contact with industry and no responsibility whatsoever (lifetime appointments and all that), has assumed the role of re-deciding those questions. And it appears to be doing so not by talking to lobbyists, but through extensive navel-gazing.

    Does anyone else have a problem with this?

    1. Congress is a big body of elected officials who are directly lobbied by all of the parties with a stake in the patent game.

      ROTFLMAO

    2. a small group of judges, not elected but appointed (some back in the 1980′s), who have very limited contact with industry

      Maybe the next Supreme Court nominee should include a widely respected patent attorney like Erich Spangenberg or J. Mac Rust. You know, someone who really understands the “industry.”

      Call your congressman, David. Let them know. I’m sure all your neighbors will back you on that. After all, you’ve already told them that if they blow this next nomination than everybody might as well toss their computer into the sea and live like the Amish, right?

      You people really do crack me up. You have to visit Answers In Genesis or similar places to see the level of reality denial exuding from the patent teabaggers. They really think the world revolves around them and everyone who doesn’t worship software patents is just “patent hater.”

      Have you considered hiring a professional PR firm to help you? Or are you going to stick with that IP Hotdog dude?

      1. By injecting an “abstract idea” exception into 101 the Court is improperly rewriting the law.

        By bringing this up now many years after the ship has sailed, you sound like a patent teabagger who cares only about more patents all the time and nothing else.

        You think people should be able to patent abstract ideas? If not, call your Congressman and tell them to amend the statute to make that perfectly clear.

        Good luck.

        1. You sound like you really believe that an amendment is needed to understand the law correctly as written…

          You don’t get this law thing at all, do you?

          A parallel here is the now eviscerated marking statute and the law as written understanding of how to calculate the ‘punishment’ for that law – a later case correcting an earlier misapprehension resulted in Congress – not the Court – rewriting the actual law.

          Actual law Malcolm – that is the focus. Try to keep up.

          1. You sound like you really believe that an amendment is needed to understand the law correctly as written…

            I understand the law quite well, Trollboy. There’s nothing in the law suggesting that abstractions or facts or correlations should be eligible for patent protection, and there’s nothing in the law suggesting that wordsmithing should allow applicants to get around that fact.

            The phrase “on a computer” isn’t some magical term that turns an abstraction into a wonderful new machine. I know that you wish it was the case but, sadly, you’re wrong.

            Do you think ABL should appeal, by the way? Are you continuing to advise your clients to file junk like ABL’s junk? Let everyone know. You like to pretend you’re a professional. Prove that you are one. And I don’t mean a professional hack. That’s already a given.

            1. Malcolm requests “Let everyone know.

              I have already provided an answer to a degree. You disingenuously (and errantly) mocked the substantive post on the two keys to understanding this decision.

              To answer more directly here, ABL is screwed as they cannot use arguments abandoned below, so no, I do not recommend them appealing.

            2. “To answer more directly here, ABL is screwed as they cannot use arguments abandoned below, so no, I do not recommend them appealing.”

              Ah, so all they really needed was some new arguments! Lulz. Lulz. Lulz.

            3. A rather NIMBY approach to that First Amendment support.

              BOOHOOOHOOHOO!!!

              Last time I checked, you are free to leave and enjoy commenting in the echo chamber where people who disagree with the patent teabaggers script are insulted regularly, by both you and Gene.

    3. Yes David it has occurred to a lot of us. It also disturbs a lot of us that O’Bummer is stacking the court with non-patent attorneys and liberal arts majors.

      One person that was bothered by this was Judge Rich who basically said that it was clear this was a policy decision that was being made and not the application of patent law.

      1. NWPA hits a homerun with “Judge Rich who basically said that it was clear this was a policy decision that was being made and not the application of patent law

        And that’s exactly why Judge Rich not only openly rebuked the dicta in the Benson case, it is why eventually both Benson and Flook were cabined by the Diehr decision. See Bilski as well as the Michel Amicus Brief.

  6. DC: Sven Bostyn and Nicolas Petit argue that continued rhetoric linkage of patents with monopolies is problematic and may well serve “a hidden bureaucratic agenda, that of limiting patent protection through the backdoor, by using ex post antitrust remedies to alter the protective – and innovation-incentivising – patent statutes adopted ex ante by elected democratic organs.” See Bostyn & Petit, Patent=Monopoly: A Legal Fiction

    “Hidden bureaucratic agenda?” That’s pretty funny.

    I don’t think there’s anything “hidden” about the public’s interest in keeping patent rights reasonably curtailed. And the term “monopoly” is used by most people simply to refer to the amount of control that someone has over the availability and cost of a particular product or service. Patents are certainly used by people to exert such control.

    DC: This connotation is important for the Court’s policy argument that, like monopolies, patent rights need to be controlled.

    Patent rights do need to be controlled. What of it, Dennis? You think there’s something radical or nefarious about that suggestion?

    I’m curious as to whether this “patents aren’t monopolies and if you suggest otherwise you are being mean and dumb!” baloney is supposed to be the latest defensive salvo fired off by the patent teabaggers and their grifting bottom-feeding friends who throw a tantrum every time their rights to sue people are curtailed. If so, please bring it on because it’s just about the most pathetic garbage I’ve heard yet.

  7. Hi Dennis,

    The Statute of Monopolies did not eliminate all monopolies except those of novel inventions. It also expressly excluded other patents from its reach, including patents (charters) for corporations, patents for printing books, and patents for digging up and making gunpowder and ordinances.

      1. And, Dennis, it was limited to “within this realm.” That did not include trade between England and elsewhere, or in the Colonies. This “exception” allowed the British East Indies Company to maintain its monopoly in the Colonies and is the real and most fundamental reason for the American Revolution — the reason why the rich Southerners like Washington backed the cause.

  8. The difference between a patent monopoly and a patent on the invention was made clear when the founding fathers limited patents in United States to patents on the invention. We should remind folks who are not Americans that the United States Constitution limits patents to land patents and to patents on the invention specifically to distinguish and to implicitly condemn the English practice of granting patents on trade. After all the Boston tea party sparked the American Revolution; and that tea party was a demonstration against the trade monopoly held by the British East Indies Company.

    This said, we do not want patents on the invention to be extended in any way to become patents on trade. Thus we require that patents describe the invention, and be limited in its scope to what was invented. Patents that grant broad coverage on narrow disclosure, as in the case of the notorious Selden patent that granted Selden a patent all automobiles regardless that he only invented one type of engine, are in fact odious because they are patents on trade and have monopoly power. The Selden patent in fact allowed a few to control the entire American automobile industry.

    It is essential therefore my opinion that we carefully look at why Selden was granted such a broad patent on such a narrow invention. Clearly it is because his claims were functional at the point of novelty, not being limited to the invention he made but to any gasoline engine and to any car however made. Such claims are inherently indefinite and violate the fundamental bargain between the people and the inventor that he receive exclusive rights for that which he invented.

    1. Then we should also consider whether patenting business methods is not the same thing as patenting trade – the very thing we found so odious about the British practice. By allowing business methods to be considered to be within the useful Arts, we may be violating the spirit and essence of the distinction we sought when we limited patents to patents of invention within the useful Arts.

      1. Except for the little fact that business method patents have been granted throughout the life of the nation.

        Small but oh so inconvenient fact for your crusade to swallow.

        But don’t worry Ned – the ‘odious’ aspect is contained by the very same patent laws that apply to all inventions and thus your dust-kicking machine can be safely switched off.

        1. anon, granted but never confirmed by any court. Their validity was and is suspect.

          The commissioner has an opinion about the law. But the courts have the final say.

          Citing to the commissioner is not authority.

          1. For some reason you think that law must be confirmed by a court to render validity….

            I have no idea where this odd idea of yours comes from.

            Tell me of the case that confirms validity of the screwdriver – or do you think that tool is not patent eligible because it lacks a direct and on point Supreme Court (or any court) case…?

            Stop kicking dust Ned.

      2. “Then we should also consider whether patenting business methods is not the same thing as patenting trade…”

        Don’t need to really consider that. Again, a patent on a business method (whatever that may be) doesn’t grant anybody the “right” or “power” to “carry on a particular business or trade.” I think we already covered that.

        1. Again, a patent on a business method (whatever that may be) doesn’t grant anybody the “right” or “power” to “carry on a particular business or trade.”

          Why don’t you explain to everyone what a patent on, say, “A method of doing business, wherein said business is carried out over the Internet” does do. Imagine that such a patent is granted by the PTO tomorrow. You’d never state any objection to it, of course. What does that patent enable the patent owner to do? Tell everybody. Imagine you’re explaining it to your neighbors at a city hall meeting.

            1. LOL. You really s*ck at this, don’t you?

              C’mon, AAA JJ: call your congressman and ask to have the judge impeached. And tell him why. Use the “official channels” like a big boy instead of whining about it here. And then tell us what your congressman says in response.

              Or you can just be a hypocritical tool, like your patent teabagger friends here.

            2. Malcolm quips “Use the ‘official channels’ like a big boy instead of whining about it here

              …and the world’s largest irony factory just went ka-blooey.

      3. > By allowing business methods to be considered to be within the useful Arts, we may be violating the spirit and essence of the distinction we sought when we limited patents to patents of invention within the useful Arts.

        useful: adjective.
        1: capable of being put to use; especially: serviceable for an end or purpose.
        2: of a valuable or productive kind.

        Many arguments about how the founding fathers limited patentability (specifically excluding business method patents) seem to assume a much more rigid definition of “useful,” like “must involve a physical device” or “must involve technology, not just commerce.”

        But I don’t see any such limitations in the standard definition of “useful,” which is simply “productive.”

        There’s a very Scalia-like circularity tactic afoot:

        (1) Stuff words into the founders’ mouths that adapt what they said or wrote for a modern-day issue

        (2) Cite the founders’ presumed intention as an unassailable basis for interpreting the law in a particular way

        (3) Profit

        1. (1) Stuff words into the founders’ mouths that adapt what they said or wrote for a modern-day issue

          (2) Cite the founders’ presumed intention as an unassailable basis for interpreting the law in a particular way

          (3) Profit

          Thank goodness the patent teabaggers never rely on the Founders to justify their bizarre views about what should be patentable.

        2. I recommend reading Waltersheid’s The nature of the Intellectual Property Clause, which delves into the meaning of “science” and “useful arts” at the time of the adoption of the constitution.

          1. What did Waltersheid teach you, Tony?

            Everyone’s got a lot of stuff on their reading list. Maybe you can give everyone a hand with a brief summary of his conclusions and why you found them persuasive.

            1. Tony,

              You should be aware that Malcolm does not do answers and will not readily volunteer to join a discussion of a legal topic on the merits.

              This is because in the rare occasions that he does so attempt, he usually volunteers admissions against interest of his crusades, and it makes him sad.

              That being said, anything Waltersheid says should be taken with a grain of salt given as to how the Court rejected his view in the Eldrich case. Personally I find his view to be too narrowly focused, as he does not take into account the actual meaning of the word ‘promote,’ instead falling into the modern trap of only thinking in a linear advance, while those understanding innovation know that such linear thinking is just not how innovation often works, nor a proper limitation to understanding the Constitutional phrase.

            2. anything Waltersheid says should be taken with a grain of salt given as to how the Court rejected his view in the Eldrich case

              Yeah, that makes a lot of sense.

            3. Frankly, it’s been too long since I’ve read it to do so very well. Probably should pull out it and read the relevant chapter again.

              anon,

              Thanks for the information. I was referring more to the interpretation though of “useful arts.” I believe that was positively cited in some of the Bilski non-majority opinions, but I could be wrong, and other opinions. Obviously, the view that useful arts doesn’t include business methods under a historical interpretation didn’t win out, but I’m not sure I saw anything actually question his scholarship. But I need to re-read (as well as Eldrich).

          2. You are welcome Tony.

            If you like this historical research angle (and how can you not?), let me provide a link to a story at PatentDocs, that features the heartthrob (Jon Dudas) of one of our regular posters (6) and the award winning historical research of David Kline:

            link to patentdocs.org

            Be ready to have some of the current witch hunt against “Trolls” disabused.

        3. “Useful Arts” is a term of art brosefus, you don’t just interpret it as a layman interpreting two words next to each other. If you want to see what the term referred to back in the day you can find a helpful book on specifically what was encompassed by the term “useful arts” and which subjects were considered separate therefrom and were in “the sciences”. Here’s a hint, algorithms and business methods were in the latter.

          I think I have that book faved on my comp at work.

          1. back in the day

            That’s just it 6 – the term of art is not frozen to what it meant ‘back in the day.’

            Thanks for playing though.

            1. Sorry 6 – the Supreme Court has stated otherwise.

              Plus, your way simply is not compatible with the notion of progress and invention.

              But hey, thanks for confirming that you are clueless with this concept as well.

    2. Ned: “as in the case of the notorious Selden patent that granted Selden a patent all automobiles regardless that he only invented one type of engine”

      And therein lies the problem with most software patents.

  9. Judges who insist on referring to the exclusionary right that a patent provides as “monopolies” need to be removed from the bench. Pronto.

    1. “…whoever without authority makes, uses, offers to sell, or sells any patented invention…”

      The very definition of a monopoly. That’s what a patent is. If it were anything else, no one would care about it.

      1. “…whoever without authority makes, uses, offers to sell, or sells any patented invention…”

        The very definition of a monopoly.

        Actually, it’s the part you replaced by the ellipsis that determines whether it’s a “monopoly”.

        Have you asked the good people at MercExchange whether they think a patent is a monopoly? And if so, what exactly they think the term means?

        If it were anything else, no one would care about it.

        The record filing and grant rates in the years since eBay would like a word.

      2. “The very definition of a monopoly.”

        Not sure what dictionary you’re using, but let’s, just for poopies and haha’s look at Black’s Law Dictionary, which defines “monopoly” as a privilege or peculiar advantage vested in one or more persons or companies, consisting in the exclusive right (or power) to carry on a particular business or trade, manufacture a particular article, or control the sale of the whole supply of a particular commidity; or a form of market structure in which one or only a few firms dominate the total sales of a product or service.

        The last time I checked the grant of patent never provided anybody with the right (or power) to carry on a particular business or trade, or the right (or power) to manufacture a particular article, or control the sale of the whole supply of a particular commodity. A patent may give the patentee to the right (or power) to prevent others from manufacturing and/or selling a particular article, but it most certainly doesn’t give the patentee the right (or power) to manufacture and/or sell anything. The distinction is important. Judges that don’t understand that should not be on the bench.

        1. +1

          For some, “WHATEVER” is a vacuous and vapid legal mentality that not only is allowed to seep into their viewpoints, but is seemed to be promoted in order to advance certain highly questionable agendas.

          The clarity sought here should be embraced by those wanting intellectual honesty – rather than populous soundbyting – to guide our conversations.

        2. A patent gives no right to carry on a particular business or trade, or manufacture an article, it only gives the negative right to exclude others. But I assume you knew that.

          I think the problem with monopoly comes in sense of the latter two issues: “or control the sale of the whole supply of a particular commidity; or a form of market structure in which one or only a few firms dominate the total sales of a product or service”

          It certainly gives no right to control a particular commodity, nor does it allow a firm to dominate a particular product except only in the strictest sense of the word. Several companies have patents on particular features in smartphones, but nobody could be granted a patent on “a smartphone”, nor could they be granted a patent on “a self-driving car” or “an interstellar spaceship” or any other product (in the general sense).

          You can claim your engine, your car, your code, nobody denies that if you are the first to make something non-obvious that a disclosure of it entitles you to be the only one who makes it again for 20 years. But it is necessary in the public interest in expanding the “your” too far into the general concept.

          You can claim your engine, but not all electric engines. You can claim your code, but not the function. That’s what the worry against monopoly is.

          1. nobody could be granted a patent on “a smartphone”, nor could they be granted a patent on “a self-driving car” or “an interstellar spaceship” or any other product (in the general sense).

            Uh … why not? That’s all eligible subject matter, isn’t it? And the PTO grants obvious junk all the time.

            any other product (in the general sense).

            Is there a finite list of generic “products” for patenting that I missed somewhere?

            1. There’s a distinction between “your new object” and “the class to which your object belongs”.

              Apple can stop people from making an iphone 5, Apple cannot stop people from making a smartphone.

              People invent a particular smartphone, not the category of smartphones, in the same way that Morse invented his telegraph, but didn’t invent the function of his telegraph.

          2. There’s a distinction between “your new object” and “the class to which your object belongs”.

            Not if my new object is the first member of that class and my claim covers every member of that class.

            I understand what you’re saying, RG. My point is that the distinction between “patents” and “monopolies” is not meaningful to most people and that’s not because most people have a “hidden agenda” or because they’re ignorant. It’s because from the perspective of consumers “an exclusive patent” on a thing and “a monopoly” on that thing really aren’t terribly different.

            Making a bunch of hay about this is beyond silly. But it’s what the patent teabaggers do. What else are they going to do? Make a compelling argument that the should be allowed to continue to claim “new” computer systems based solely on the information content stored in the computer systems? They can’t do that. So they stamp and scream and cry about impeaching judges who write things they don’t like.

            They’re pathetic, entitled crybabyies, wealthier than 90+% of the country, but they cry, cry, cry at any attempt to slow down the madness.

            1. Malcolm misguides: “Making a bunch of hay about this is beyond silly. But it’s what the patent teabaggers do

              LOL – translation: “WHATEVER” works to achieve the desired ends is good – never mind what shambles are made of the legal process in the means used (with a senseless ploy to popularity thrown in to boot, and of course a generous helping of vapid insults – funny how much those insults parallel the creation and use of the “Troll” denigration – and do we need to remind anyone of who exactly coined that term and why exactly they coined that term; with the hint that it was NOT for the benefit of Malcolm’s spin choice of the moment of the populace).

            2. at any attempt to slow down the madness

              ..because granting patents must be equated with madness…

              …so decries RQ/HD, so it must be true…

              /AOOTWMD identifier

  10. Patent Monopoly
    Patent Troll
    Liberal
    Right Wing
    Tea Bagger

    Its easier to ignore the merits of the other side once you label them. It also helps other people (on your side) identify you through your use of the “code words.”

    1. Its easier to ignore the merits of the other side once you label them.

      It’s easy to label people as patent teabaggers when they reflexively defend any patent no matter how junky it is and respond to every and any attempt to limit their precious patent rights as an assault on their Precious Freedums and Merka Itself.

      Until you start demonstrating that you actually give a crxp about the concerns that people are raising about the broken patent system, then get used to more “labels”.

      And speaking of inane “labels” — “Patent Guru”. That’s pretty lame. Almost as lame as “Berkeley IP Law Master”.

      1. You again mislead by attempting to paint the comments as defenses to the patents at hand.

        Wake up Malcolm. Almost all of the posts are discussing the underlying law. Your apoplectic rants of rage are – as usual – misguided and unhelpful.

      2. when they reflexively defend any patent no matter how junky it is
        Where is your evidence? Where are your polls?

        Like ALWAYS, you are pulling sh_t out of your a s s. I rarely defend any patent — if ever. To label a patent as good or “junky” would require an analysis of the claims, the prosecution history, and the prior art. I have better things to do than that, and I have clients who pay me money to do that.

        Frankly, I have no idea why Dennis puts up with your c r a p. This was a much more vibrant board many years ago before you went off the deep end. There were a far greater variety of posters, and people actually discussed the law. Time and time again I watch a new person post and see you pull your MM schtick on them — berating them and your usual internet trolling techniques. It is no wonder that I rarely see the same name posting again.

        If there was another blog that had the variety of articles on patents that this blog has, I would have been gone a long time ago. This is blog is a cesspool and you, MM, are its chief denizen.

        1. +1,000,000,000

          Actually discussing the law is exactly what Malcolm does not want to happen.

          He would have to admit controlling law and that what he posts is actually advocating a change in law.

        2. > This was a much more vibrant board many years ago before you went off the deep end.

          Yeah, this is the final post of my brief visit here, for exactly this reason.

          I posted a lot here in years past, when the Mooney factor was much attenuated by the regular contribution of a dozen actual practitioners who kept up with the law, and we had some great discussions about 101/102/103/112.

          Other pursuits kept me away, but on a whim, I decided to visit again yesterday – finding, to my dismay, that 90% of the posts are MM blather.

          The noise has overwhelmed the signal. It’s really a shame. Back to more productive tasks…

          1. DS: we had some great discussions about 101/102/103/112.

            There’s still lots of opportunities for great discussions about those statutes here, David. You missed some when Dennis changed to Disqus and every teabaggers favorite li’l lapdog “anon” was gone for a few weeks.

            actual practitioners who kept up with the law

            There we go again: Mooney doesn’t toe the teabagger party party line when it comes to the terrible things that the courts or the PTO are doing to patents, therefore he can’t be an “actual practitioner” and he isn’t “keeping up with the law” like all the people who agree with David.

            That’s pathetic, David. But it’s typical.

            You want to have a discussion about functional claiming in software? Tell us what you think about. You want to have a discussion about patents that protect information? Tell us what you think about them. Good? Bad? Why?

            And then I’ll share my opinion. And then the choice is yours as to how to respond. You can throw a tantrum and spew some insults or you can respond directly to the points being made. And when the patent teabaggers li’l yapping lapdog “anon’ pipes in with some nutcase blather, you can do the right thing. Or you can pat him on the head and encourage more trainwrecks.

            The choice is yours, David. You’ve always had that option. You chose not to exercise it and directed your ire and insults only at people here whose opinions you disagree with. Unfortunately, those opinions do tend to align with the changing law. You know that, don’t you? Isn’t that what you’re crabbing about? Maybe you didn’t know that the law is changing and that patent rights are being diminished. You do keep up with the law, don’t you?

            1. You can throw a tantrum and spew some insults or you can respond directly to the points being made.

              Malcolm, in the comments for this post alone, you’ve used the terms:

              “pathetic” x5
              “professional hack”
              “joke”
              “grifting bottom-feeding friends”
              “throw a tantrum”
              “hypocritical tool”
              “nimrod”
              “entitled crybabies”
              “clowns”
              “boohoohoo”
              “trollboy”
              “lame”
              “bottom-feeding patent attorney”

              This is why I will not engage you, and why others do not take you seriously. Professionals – no, adults – do not address each other this way.

              It is also why the level of conversation here is much diminished.

            2. David Stein plays the “civility” card: <i.Professionals – no, adults – do not address each other this way.

              Two questions,David: do “professionals” call for the impeachment of judges who use the term “monopoly” in the patent context? I don’t recall you piping up. Your friend NWPA routinely makes outrageous statements about critics of the contemporary patent system. I don’t recall you ever piping up. Your li’l lapdog “anon” is infamous for spewing endless streams of insults at every commenter he has ever disagreed with, regardless of what the commenter writes! I don’t recall you every piping up about “civility” when that happens.

              But now suddenly you’re very interested in “civility.” You know what you are, David? You’re a hypocrite.

              And lastly it goes without saying that when people behave like entitled bottom-feeders who can’t accept criticism and who insult everyone who disagrees with them as “anti-patent” or “ignorant”, they deserve to called out. Do you believe that these people don’t exist in the world of patents, David? If not, just say so. If you do believe that such people exist, then maybe you can contribute to the discussions about those people.

              Did you ever see a junk patent, David? Not an invalidated patent or a patent that was declared ineligible. But a patent that should never have been granted that is still “out there”. Did you ever see one of those, David?

              What do you think about the “podcasting” patent, David? Share your “expertise” with everyone. Show everyone how someone who ‘actually practices” and what someone who “keeps up with the law” might say about the legal meaning of a limitation “wherein said movie is not publically available” in the context of a technical improvement to an old transmission method.

              Go ahead, David. Impress everyone with your civility. Show everyone how it’s done.

            3. LOL – the post (correctly) noting just who had the most vile posts removed from the blog in the Disqus era is removed…?

              Seriously?

              I would love to hear the ‘objective’ reasoning why such a post is not material to the conversation. After all, it is Malcolm that brings up the Disqus era. Or is his ongoing insults including “and every teabaggers favorite li’l lapdog ‘anon’ somehow objectively more germane? A perfectly valid counterpoint that (again) revealing duplicity having direct bearing in response is removed while the vile post that called for the response remains.

              Really?

              Such selective editing that shapes the content may become, shall we say, problematic? (especially when no objective standard is followed consistently)

              Well, this is the good professor’s blog, so, as they say,…

              C’est La Vie

            4. anon: the post (correctly) noting just who had the most vile posts removed from the blog in the Disqus era is removed…?

              Seriously? I would love to hear the ‘objective’ reasoning why such a post is not material to the conversation.

              Why don’t you take an educated case, anon? You’re usually not so circumspect when it comes to deducing the “implicit” beliefs of other people.

              Such selective editing that shapes the content may become, shall we say, problematic?

              Oooooh! What are you going to do about that, TB? Call the Blog Police and have Dennis arrested? Are you going to do your “shame on you!” routine? That’s always pretty funny.

            1. Patents are a kind or class of monopoly. But properly granted they are “approved’ monopolies.

              You don’t impeach Judges for sloppy use of language or even sloppy thinking. That is what Courts of Appeal are for – to correct errors.

          2. The noise has overwhelmed the signal.

            Gee, I don’t recall you complaining, David, when your little lapdog “anon” was driving by with an army of sockpuppets every day and insulting anyone and everyone he disagreed with.

            You’ve noticed, David, that your little buddy anon does his little drive by nutjob insult routine pretty much every time that LB or MD or 6 or Ned Heller or IANAE or Random Guy or Own posts anything? Right? And yet you never chime in about “civility” then. Is it because none of those people are “actual practitioners” or because none of those people “keep up with the law”?

            Tell everyone, David. What’s the explanation for your strange one-sided objections here? Set the record straight. Maybe you have some sort of patent law dyslexia or something. Maybe you have a client conflict? Surely there’s a good answer.

        3. Well said. It may be that the proprietor puts up with MM for the same reason that local news shows focus on car crashes and other voyeuristic spectacles – selling to the knuckle-dragging lowest common denominator is the surest way to increase advertising revenue.

          And in the the patent world, the character “MM” is as close to a voyeuristic spectacle as it gets.

          1. the knuckle-dragging lowest common denominator is the surest way to increase advertising revenue

            What do you think about impeaching judges who use the term “monopoly” in the patent context, Tourbillion?

            Is Professor Lemly guily of treason, Tourbillion?

            It’s a one way street with the patent teabaggers. It always has been. Theirs are the only views that matter because, in their little bubble world, they are the people responsible for everything new and shiny in America. Their critics are “jealous” communist paid by shadowy corporations hoping to steal all their ideas. Their critics are so incivil because they dare to ask questions like “Do you have any evidence to support that statement” instead of simply thanking them for their incredible “innovations.” Their critics are ignorant of law and technology and “the industry” because they dare to question the motives behind the teabagger’s incessant whining about “terrible rejections” or “runaway courts.”

            I’ve heard this garbage from the same crowd of patent luvvin zombies from day 1. You guys don’t want to “discuss” anything that might negatively impact your “monetizing” scheme or your bottom line (or those of your clients). You just want to shout down your critics as ignorant. That’s what you do, day in and day out.

            1. I do not think judges who use the term “monopoly” should be impeached.

              Based on what little I know of him, I do not think Lemley is guilty of treason.

              I have a firm conviction that you are probably unbalanced, definitely malevolent, incapable of ordinary civil discourse, not exceptionally smart (you can’t even spell my name), and probably a very disappointed and bitter old man who has argued for a living far too long. And I think Dennis Crouch likes it that way because as I said, you are the patent world answer to knuckle-dragging loud-mouthed talk show hosts that sell so much beer and deodorant. A more appropriate screen name for you would be Rush Limpatent, except that would unfairly disparage Rush’s cognitive skills.

          2. “It may be that the proprietor puts up with MM for the same reason that local news shows focus on car crashes and other voyeuristic spectacles – selling to the knuckle-dragging lowest common denominator is the surest way to increase advertising revenue.”

            MM was pretty much the first person posting regularly here. He’s kind of grandfathered in. And, on a somewhat related note, has displayed, just like nearly everyone else, the ability to post in a much more civil manner without certain other posters around.

            1. the ability to post in a much more civil manner without certain other posters around

              LOL – what 6 means (as Ned does) is that as long as you agree with the philosophy of Malcolm, you will not have to deal with the Red Queen.

              BZZZZZZZT – wrong 6. Being ‘civil’ to only those who share an agenda and not being civil to those who call out for intellectual honesty is not what ‘civil’ posting means.

              Why is it so hard for Malcolm to comply with decency in his posts? to treat law and facts without his excessive spin? His volunteered admissions against interests betray any ‘excuse’ in not knowing better.

            2. And ‘grandfathered in’ does not – and cannot – comply with any sense of an objective standard for evaluating and removing posts.

              Plus the fact that in the Disqus era, notwithstanding your feeble ‘grandfather’ malarky, Malcolm was the one who had the most posts removed for being vile.

              So just because Malcolm can be civil, is no excuse for his rampant incivility.

              Lastly, you need to deal with his pervasive CRP AOOTWMD meme – the epitome of his baselessness.

            3. anon: those who call out for intellectual honesty

              See that, folks? anon is calling out for intellectual honesty! Hear ye! Hear ye!

              His volunteered admissions against interests

              Two seconds later and the nutj0b is right back to his usual looneytunes bullshirt. Nobody could have predicted.

            4. “what 6 means (as Ned does) is that as long as you agree with the philosophy of Malcolm, you will not have to deal with the Red Queen.”

              You’re calling yourself the “red queen” now? Seriously? What manner of tar dation have you adopted this time anon?

              ” wrong 6. Being ‘civil’ to only those who share an agenda and not being civil to those who call out for intellectual honesty is not what ‘civil’ posting means.”

              I never said anything about only being civil to those that share an agenda. I noted that certain persons were more civil, TO EVERYONE when certain someones weren’t around antagonizing/trolling day in and day out.

              “Why is it so hard for Malcolm to comply with decency in his posts? ”

              Probably you. Since there is empirical evidence for this hypothesis it stands to reason that it is most likely correct.

        4. PG: To label a patent as good or “junky” would require an analysis of the claims, the prosecution history, and the prior art. I have better things to do than that

          Nobody asking for you to sign a legal opinion, PG, but thanks for proving my point. The junk claims I’m talking about do not take the kind of analysis you describe to demonstrate to any fair-minded person that they are junk.

          The fact is that you have plenty of time to criticize anybody or anything that might limit your precious patent rights and plenty of time but for some mysterious reason you have absolutely no time to offer your “expert” advice when the worst junk is put right under your nose.

          This was a much more vibrant board many years ago

          I showed up many years ago and this board was an echo chamber for patent teabaggers who enjoying whining about how awful the PTO was.

          It’s also true that the broken-ness of the patent system “many years ago” was not nearly as evident as it is now. Do you ever leave your bubble and take a look around at what people are saying?

          Moreover, I don’t seem to recall you peeping up one word when your li’l buddy “anon” was destroying every other thread with his insult-flinging sockuppet army. Apparently that didn’t bother you one bit. Gee, I wonder why.

          If there was another blog that had the variety of articles on patents that this blog has, I would have been gone a long time ago.

          That’s nice. If there were fewer patent teabaggers around applauding the exploitation of the patent system and reciting unsupported scripts about the awesomeness of junky software patents and accusing every critic of being ignorant of the law or technology, then I wouldn’t be commenting as much.

          Let me know when you want to have an honest discussion about protecting information with patents. I tried to initiate one with a very simple fact pattern but you refused to engage, as I predicted would happen.

          The issues don’t go away because you don’t want to discuss them. And then they don’t go away because you say that the person raising them is “biased” or “anti-patent.” You need to address them or they will be addressed for you in ways that you may not approve of. You haven’t noticed this happening?

          1. Translation: no matter what actually happens, just declare victory and keep spouting (from Chapter 4 in the Malcolm Feminine Product Strategies to be Impervious to Reason or Logic manual)

            1. just declare victory

              Again, the only way that you could accuse anyone else of doing this (much less in response to my comment) without getting a giant ulcer is that you lack a conscience or you are certifiably insane.

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