Attorney Fees: Litigation Misconduct But No Fees Awarded

By Dennis Crouch

Oplus Technologies, Ltd. v. Sears & Vizio (C.D.Cal.2014)

In an October 2013 summary judgment decision, Judge Pfaelzer found in favor of the defendants – holding that the Oplus asserted patents were not infringed (Patent Nos. 6,239,842 and 7,271,840) and also invalid as anticipated (Patent No. 6,239,842). That final decision is pending appeal at the Federal Circuit.

Most recently, the court denied Vizio’s motion for attorney and expert witness fees “pursuant to 35 U.S.C. § 285, 28 U.S.C. § 1927, and the Court’s inherent power.” However, that denial came only as part of a decision that walks through statements by Oplus and its attorneys (the Niro firm) that “were seriously contradictory and unreasonable” and their “manner and style” that were “offensive to the Court.” Particular noted misconduct included:

  • Oplus delayed the litigation by strategically amending its claims to manufacture venue.
  • Oplus misused the discovery process to harass Vizio by ignoring necessary discovery, flouting its own obligations, and repeatedly attempting to obtain damages information to which it was not entitled.
  • Oplus used improper litigation tactics including presenting contradictory expert evidence and infringement contentions as well as misrepresenting legal and factual support.

However, the Judge Pfaelzer also found that (despite summary judgment) that Oplus’s claims were not “objectively baseless.”

Although the misconduct was serious in Judge Pfaelzer’s view one reason for not awarding attorney fees was that Vizio’s was also guilty of delay and avoidance tactics. And, the court found that the inconsistencies in Oplus position actually helped make the Summary Judgment decision easier – probably saving attorney fees.

Ray Niro submitted a letter to Judge Pfaelzer that likely helped sway her decision not to award fees. In the letter, Ray Niro’s letter Niro apologized for “the conduct of one of our young lawyers” and that “could be understood as being arrogant to and disrespectful to the Court.” Niro indicated he has “taken remedial action” and would monitor the lawyer’s conduct throughout the next year. Niro also indicated that – although not an excuse or justification – that the mother of the lawyer who had spoken harshly to the court had been critically ill on the day of the hearing and had died four days later.

The case is interesting as an added element to the ongoing debate on awarding attorney fees. Two patent law attorney fee cases are pending before the US Supreme Court and several related bills are pending in Congress. Here, Judge Pfaelzer had no problem identifying litigation misconduct but applied her discretion to rule that attorney fees were not appropriate. In essence, Pfaelzer began with the presumption that ordinarily no attorney fees should be awarded and then found that there were not sufficient reasons to move from that starting position. At least some of the congressional proposals shift the starting-position so that the ordinary rule would be an award of attorney fees unless there are sufficient reasons to not award fees. I would guess that this is one of the cases that would flip under the proposed rules.

  • Scott Graham from The Recorder has more on the story here.
  • NiroLetter
  • OrderDenyingAttorneyFees
  • As luck would have it, Vizio was sued again this week. This time by Pragmatus Telecom who alleges infringement of several patents, including U.S. Patent No. 8,438,314.

273 thoughts on “Attorney Fees: Litigation Misconduct But No Fees Awarded

  1. The brief by Trzyna and Lee Hollaar argues nothing short of this: if a computer is recited, if an article of manufacture is recited, the claim is eligible. On the latter, they would declare music CDs eligible.

    Benson they argue was correctly decided because of the admission by the applicant that the claim covered its conduct by a human. In this way, the Benson claim was not limited to a computer.

    This position, if adopted, would be elegantly simple to administer, but would so elevate form over substance that the public would begin to think that the Supreme Court was composed of cre tins.

    Prediction, zero chance of adoption.

    1. On the latter, they would declare music CDs eligible.

      No Ned – you are conflating once again.

      Utility and Useful Arts must still be met.

      Stop conflating.

        1. Not impressed with the brief.

          Some decent thoughts in certain aspects, but come people, confusing the difference between patent eligibility and patentabilty?

          1. Ned: The brief by Trzyna and Lee Hollaar argues nothing short of this: if a computer is recited, if an article of manufacture is recited, the claim is eligible. On the latter, they would declare music CDs eligible.

            LOL! And let me guess — patent examiners could deal with digital information encoding “non-obvious” sound waves under 103? Exactly how does that work? Under what theory? What about “claims as a hole”? What about a computer hard drive storing the music? Can I overcome the rejection by showing that I sold 400,000 copies of the sound file?

            It is to laugh.

            This position, if adopted, would be elegantly simple to administer, but would so elevate form over substance that the public would begin to think that the Supreme Court was composed of cre tins.

            I’m pretty sure the public has a good idea about who the cre tins are already. They’re the softie woftie people who want to claim “new functions” and who are despereately trying to defend their interest in a patent system that ran off the rails some time ago. They’ll do and say anything to keep their boat floating, and they’ll deny the noses on their faces even when the mirror is held right in front of them.

            The majority of the so-called neutral amicus briefs seem to be arguing to overturn Benson without every mentioning the elephant in the room, State Street Bank.

            I don’t believe there is any rational, convincing way to reconcile the disparate 101 decisions dealing with computer-implemented junk. Some cases are going to get chucked in the trash out of necessity and it’s very, very difficult to imagine that the chucked cases will be those cases which limited subject matter eligibility.

            New “functions” and new information are not eligible subject matter. You can’t patent new functions and/or new information merely by sprinkling in old (but otherwise eligible) devices or systems.

            Take the simple example of a new, non-obvious set of instructions for making a new, non-obvious cake. Obviously you can’t get a patent on “A new set of instructions …” Nobody disputes that. But it’s equally true that you can’t get a patent on “A new book comprising a new set of instructions …” for the identical reasons. Such a claim would protect the instructions themselves in a given field (books). The same logic leads to the same conclusion for new information stored in an old computer. Putting conventional garbage like “wherein the information is accessibly by a user upon entry of a term blah blah blah” adds nothing of meaning to the analysis.

            And it goes without saying that describing the same computer in terms of its “new functionality” (providing the information) also does nothing to address the fundamental issue.

            I’m quite certain that at least some of the Justices are intelligent enough to understand this. Breyer certainly is and he’ll very likely be able to persuade a majority of his friends.

            So what are we left with? Basically just a loud whine that without the kind of junk patents presently being granted that somehow development of new computer programs and functions will cease and the country will revert to the “iron age”. And there’s no evidence whatsoever for that proposition. It’s nothing more than a self-interested plea to keep the party rolling.

    2. The majority of the so-called neutral amicus briefs seem to be arguing to overturn Benson without every mentioning the elephant in the room, State Street Bank.

      I find it almost shocking that the briefs would take this position after every one the Justices in Bilski would have overturned that case. On what basis do these folks believe the Supreme Court will suddenly embrace State Street Bank and all it stands for given that Congress has twice passed special legislation to deal with the damage caused by that case.

      The gall of these folks is beyond comprehension. But they know what they do, but not a one of them will discuss State Street Bank, not one.

      1. given that Congress has twice passed special legislation to deal with the damage caused by that case

        Maybe because of Bilski and the fact that Congress has acted and has not explicitly ruled out software and business method patents.

      2. On what basis do these folks believe the Supreme Court will suddenly embrace State Street Bank and all it stands for given that Congress has twice passed special legislation to deal with the damage caused by that case.

        There’s nothing “rational” about defending claims to “new functions” for old computers because there was nothing “rational” about the decision to allow that practice in the first place.

        Do any of the amicus briefs begin with the statement that the description of a new function for a computer is “the essence of electronic structure” and new “electronic structures” are certainly eligible for patenting even if nobody can tell you what the structure is? Because that’s really all these guys got.

        As Dennis and many other astute commenters have pointed out, these old 101 decisions can’t be reconciled with each other. Prometheus was the first modern 101 decision to deal with contemporary claiming “paradigms” and articulate a reasonable practical test. Some of these older 101 decisions (and any Fed Cir decisions aligned with them) are going to end up in the trash bin out of necessity. And it’s impossible to imagine that the decisions that represent expansions of eligible subject matter are going to be the decisions that survive.

        1. There’s nothing “rational” about defending claims to “new functions” for old computers because there was nothing “rational” about the decision to allow that practice in the first place.

          LOL – what? Maybe if you ever explained how an ‘oldbox’ without changing ‘magically’ had new capabilities…. (See Nazomi, also see Alappat).

          As Dennis and many other astute commenters have pointed out, these old 101 decisions can’t be reconciled with each other.

          LOL – an incontrovertible fact is that included in these “other astute commenters” is none other than me.

          This appears to be another GLORIOUS admission against interests given how long Malcolm has (without providing any subtantive backing) merely claimed that Prometheus was fully in line with the 101 decisions that the decision itself said were most on point and that were not being changed.

          Maybe it is only possible in the intellectually dishonest and “within the subjective mind” that Malcolm can now hold two completely opposite viewpoints.

          Oh, Happy Day

          1. “This appears to be another GLORIOUS admission against interests given how long Malcolm has (without providing any subtantive backing) merely claimed that Prometheus was fully in line with the 101 decisions that the decision itself said were most on point and that were not being changed.”

            You have a really bad time with your reading comprehension. From what he said I’m pretty sure he still thinks the 101 cases at the USSC were just fine and all in line with each other ta rd. He’s talking about the crp that has come out of the CAFC both not being in line with the USSC’s decisions and also even somewhat not even being in line with yet other CAFC decisions. Some of that CAFC nonsense is going to get chucked sayeth the MM. That’s hardly an admission against interest. He specifically says that he thinks it will not be the ones that are against software which will be chucked. That’s the same thing he’s been saying for years.

    3. “Benson they argue was correctly decided because of the admission by the applicant that the claim covered its conduct by a human. ”

      Benson never admitted that it covered a human conducting the algorithm. Where on earth did they get this idea?

      1. 6,

        If you read the brief you would see that the authors accessed the prosecution history which contains things generally not in the common knowledge.

        1. Oh snap! I might have to check out this brief! Did they put appendices also?

          Even so, if they did admit such before the office the USSC doesn’t appear to have relied on that at all.

        2. That said, the brief’s argument sort of falls flat. Benson’s statement that “the method represented by these claims can also be carried out by hand, the shifting and adding operations being manual” (page 25 of the PDF, page 23 of the prosecution history), and “They can even be practiced by hand.” (page 27 of the PDF, page 24 of the prosecution history) doesn’t really indicate that Benson was admitting that the claim covered doing those things by hand. He was merely admitting that you could perform the algorithm by hand, which of course was noted by the court. Though I would be on board if Benson had expressly noted that the reentrant shift register was merely a euphimism shall we say, and included doing it manually. Sadly though a reentrant shift register is a device. If there be any doubt about the matter people can simply consult the art. The wiki appears very clear about what a shift register is.

          link to en.wikipedia.org

          A cascade of flip flops (some 1950’s tech right there).

          As to the term reentrant shift register according to the art

          link to books.google.com

          On page 160 bottom of page, a reentrant shift register is simply a shift register with the serial output fed back to the serial input. Which makes sense, the output is reentering the input.

          But super interesting anyway!

        3. Well sht my pants! Look here, a copy of the proceedings at the PTO! Made truly public finally by Professor Hollaar! Praise be to a great man! How this went undone for some 50 years is ridiculous! Had I have known such a thing existed or how to find it I would have had to go grab it up myself.

          For some reason my post is stopped from posting with links. The links are in the brief on page 18 or 19 and link to the appendices of Benson’s prosecution history made digital!

          That said, the brief’s argument sort of falls flat. Benson’s statement that “the method represented by these claims can also be carried out by hand, the shifting and adding operations being manual” (page 25 of the PDF, page 23 of the prosecution history), and “They can even be practiced by hand.” (page 27 of the PDF, page 24 of the prosecution history) doesn’t really indicate that Benson was admitting that the claim covered doing those things by hand. He was merely admitting that you could perform the algorithm by hand, which of course was noted by the court. Though I would be on board if Benson had expressly noted that the reentrant shift register was merely a euphimism shall we say, and included doing it manually. Sadly though a reentrant shift register is a device. If there be any doubt about the matter people can simply consult the art. The wiki appears very clear about what a shift register is.

          link to wiki on shift registers goes here.

          A cascade of flip flops (some 1950′s tech right there).

          As to the term reentrant shift register according to the art

          link to google books of Introduction to Digital Electronics By J. Crowe published first in 1998 page 160

          On page 160 bottom of page, a reentrant shift register is simply a shift register with the serial output fed back to the serial input. Which makes sense, the output is reentering the input.

          But super interesting anyway!

          1. 6, thanks for reviewing this for all of us. It does seem that the Supreme Court summarized the prosecution history just fine. While the applicant admitted that the process could be carried out by hand, they never admitted that the claims covered such. Neither did they admit that the claims covered mental processes.

            In the end, I think all that Benson stands for is that the output of the algorithm was a number and that it was not applied to any useful and just as they said in the case.

            In a similar vein, Flook was decided the same way. All it produced was a number. Ditto Bilski.

            In contrast, Diehr used the number to modify the molding process.

            1. Ned,

              Actually it appears to be the opposite of “It does seem that the Supreme Court summarized the prosecution history just fine.

              Precisely because the applicants attempted to differentiate their claim from something that could be done completely in the mindNeither did they admit that the claims covered mental processes. – is exactly the wrong take-away, and we see that the Benson decision is even more flagrantly wrong than ever before.

              It is clear that counsel purposefully disavowed claim scope to cover any type of mental steps doctrine that covers claims completely in the mind. The Court ignored that disavowal completely in its quest to stick its fingers into the 101 nose of wax.

            2. “In the end, I think all that Benson stands for is that the output of the algorithm was a number and that it was not applied to any useful and just as they said in the case. ”

              I’m still surprised you can think that. I mean seriously? They were up front about what it “stands for”. No preempting algorithms, because they’re abstract ideas. Period. It isn’t really that complex.

              But hey, maybe if you know those guys that wrote the amici you can report to them on what a shift register is.

            3. anon: It is clear that counsel purposefully disavowed claim scope to cover any type of mental steps doctrine that covers claims completely in the mind. The Court ignored that disavowal completely in its quest to stick its fingers into the 101 nose of wax.”

              Anon, I agree with you that when the claims were limited to a computer, they no longer cover mental steps. Thus the view that Benson held the claims ineligible because of mental steps has to be wrong.

              As I said, the common link between Benson, Flook, Diehr, and Bilski is that the claims that ended in a number were held in eligible and the claims that used a number were held eligible. It is simple as that.

            4. “Precisely because the applicants attempted to differentiate their claim from something that could be done completely in the mind “Neither did they admit that the claims covered mental processes. – is exactly the wrong take-away, and we see that the Benson decision is even more flagrantly wrong than ever before.”

              For those of us that already understood the case in that fashion just from the decision this is nothing new. If it is new to you, so sorry, you’re just bad at reading. I know this doesn’t come as a surprise to you as surely you must be becoming more self-aware of your reading impairment by now, but still, you shouldn’t take it as some world-shattering event. Just adjust your reading of the rest of the case, now in a better context. Also if you’re just now understanding that about the case then you might just ask yourself what else you might be missing due to those poor reading skills and whether that something is precisely what I’ve preached on here for nigh on 4 years and which has been recognized by the USSC of late.

              There’s nothing wrong with having poor reading skills man. You just need to factor them in when you’re reading stuff. Know that you might not be taking away the correct thing, or you might be missing something that might lead what you’re reading to actually be quite different from that which you’re taking away. Consider other people’s readings of the same thing. Doing so can only make you a better reader. Even people with good reading skills know they must account for the writing ability of the author to properly express himself and other factors like the intended audience etc. Indeed, that is part of what makes you a better reader.

              Overall though anon, I’m glad you’re reaching this small breakthrough in your understanding of Benson. Who knows, if you try super duper hard in another ten years you may just get the whole thing under your belt! Anything is possible!

            5. “It is clear that counsel purposefully disavowed claim scope to cover any type of mental steps doctrine that covers claims completely in the mind. The Court ignored that disavowal completely in its quest to stick its fingers into the 101 nose of wax.”

              So now that you understand this, take the next step padawan! You’re so close! What was the specific action that they took when sticking its fingers into the 101 nose of wax and why did they do such? It’s ok to say that they held that the claim would preempt all uses of the algorithm (by design) and that since the algorithm was an abstraction the claim would effectively preempt the abstraction (by design of the applicant) and would preempt judicially excepted subject matter! It’s ok to just say it bro!

            6. 6, what “judicially excepted” subject matter was “preempted?

              Not mental steps, as the claims were limited to computer execution and the applicant disclaimed coverage of humans conducting the algorithm.

              6, you really have to get off this preemption bandwagon with respect to undefined abstractions. No one knows what that means, even today. Bilski may be the worst Supreme Court case ever written by anybody in history because of where it left patent law.

              Benson objected that the claimed algorithm was not applied to a specific useful end. Indeed, it ended in a number. So did Flook. In fact Flook disclaimed preemption and began its discussion by noting that an alarm limit is a number.

              Diehr employed a computer, but it also applied the computer numbers to a molding process. That is the distinction, not preemption.

              Bilski was a fubar, and it got to be a fubar because of …..

              Rader.

            7. Well 6, Benson said a lot of stuff — threw the proverbial mud at the wall. To find out what stuck, you have to compare the holdings of Flook and Diehr as well.

              Benson ended in a number. Ditto Flook. Diehr applied a number.

              That tells you what of Benson was important. The “number.”

              Numbers are not things. Numbers are information. They may be useful, but numbers themselves are not a use.

              Apply the number to an application and we move from the principle in the abstract to a principle applied.

              It is very simple in the final analysis.

            8. “6, what “judicially excepted” subject matter was “preempted?”

              The algorithm. Jes us fu ck, have you been paying attention at all for the last 6 years?

              “Not mental steps, as the claims were limited to computer execution and the applicant disclaimed coverage of humans conducting the algorithm.”

              You an I are agreed on that. And so is the USSC. What. they. are. concerned. about. is. all. applications. of. the. algorithm. J e s u s! The USSC posits that if someone can claim all applications then effectively they’ve claimed the algorithm itself, FOR THE PURPOSES OF THE PATENT SYSTEM. That last part is important so I tacked it on. How many millions of times do I have to remind you guys of this thing that they blatantly said right in the decision for everyone to read?

              “6, you really have to get off this preemption bandwagon with respect to undefined abstractions. No one knows what that means, even today.”

              Well that’s your own fault. The supremes do. Some CAFC judges get it. It looks like nearly all DC judges get it just fine.

              “Bilski may be the worst Supreme Court case ever written by anybody in history because of where it left patent law.”

              Idk about that. They just didn’t mess with what was already in place because they didn’t need to for the case in front of them.

              “That is the distinction,”

              Mmmm, idk bro, according to the decision itself, the “distinction” is simply that it was a method of molding in the first place. And that it was unquestioned that applicants were not trying to preempt the arrhenius equation, they just wanted one little tiny application thereof.

              “Bilski was a fubar, and it got to be a fubar because of …..

              Rader.”

              eh, cut him some slack. It was really more because of Benson.

              “Benson ended in a number. Ditto Flook. Diehr applied a number.”

              Just stop talking the numbers Ned, it’s annoying and no judge gives two shts about them, and none of the decisions mentioned anything about them except flook in passing.

              “Apply the number to an application and we move from the principle in the abstract to a principle applied.”

              Sure, as long as the application is in the traditional useful arts you’re all straight so long as you’re not trying to get all applications of that principle in the abstract to the whole field or to all fields. Np with such claims.

            9. is in the traditional useful arts

              LOL – but only the subjective in the mind of 6′ “traditional useful arts that is….

              Why?

              Because the acolyte RQ/HD wanna be says so.

              Never mind what he Courts have actually said on the subject.

              /facepalm

            10. 6, “it’s the algorithm they are trying to protect.”

              An algorithm can loosely describe any method. What makes excluded algorithms different from algorithms that are excluded is that the excluded ones are mathematical in nature in that they operate on numbers. But, this is the way all computers operate. They all operate on numbers. Thus every computer program is implicated in the exclusion.

              But what distinguishes the excluded from the included is whether the output of the algorithm is used to do something. If it ends in a number, unapplied, the claimed is ineligible. If it is applied to useful end, it is eligible. It is as simple as that.

            11. Ned,

              Even better than your comment of “Thus every computer program is implicated in the exclusion.” is the direct quote from Benson ending in “We do not so hold.”

              Remind me please about the start of that quote…

              And then finally will you please do as I have asked of you and stop conflating the utility requirement of 101 with the statutory categories requirement of 101?

            12. “An algorithm can loosely describe any method.”

              That’s not really the “algorithm”s that we’re discussing here. We’re talking about a computer algorithm. The fact that you might be able to characterize any method as an algorithm is immaterial. Why does your brain keep trying to bring irrelevant nonsense into this to try to make it seem relevant?

              Just stop man. The decision is a simple one for a simple time for a simple technology. The man discovered an algorithm. He figured he could use it for stuff by implementing it with a shift register. That happened to be the only known use for his algorithm (and likely is still). He tried to patent the use of his algorithm on those shift registers. The USSC said nah bro, if we let you have this we may as well just let you have the patent on the algorithm which is forbodin, so nah. It really is that simple. It has nothing to do with making all methods into algorithms or anything of the sort.

              “What makes excluded algorithms different from algorithms that are excluded is that the excluded ones are mathematical in nature in that they operate on numbers. ”

              Not really ned. It has nothing really to do with “numbers” and everything to do with the abstractness. Sure, numbers are a subset of abstract things, but the thing that concerns us is the abstractness, not simply the numbers. There are practicallyan infinite amount of abstract things that concern us other than numbers.

              “But, this is the way all computers operate. They all operate on numbers. Thus every computer program is implicated in the exclusion.”

              Indeed so. But some computer programs could be included in some claims that could survive. It is an acceptable compromise in this context to allow for programs that are directed to the traditional useful arts and to a narrow application of whatever programming is recited. Ala Diehr where the computer program utilizing the arrhenius equation appears more or less old from the art of record but they’re just claiming using it in the context of auto-opening a mold after a curing has taken place. Nobody much cares about that. Though congress could go ahead and wipe those out as well if they wanted.

              “But what distinguishes the excluded from the included is whether the output of the algorithm is used to do something.”

              You’re overly concerned with the output of the algorithm being used. That’s not really required though it is one way to get over one hurdle of not having your claim ultimately preempting the algorithm.

              “If it ends in a number, unapplied, the claimed is ineligible. If it is applied to useful end, it is eligible. It is as simple as that.”

              See but that’s not necessarily so. You could hypothetically, though I don’t know why you’d want to, write a claim with limitations in it to a computer humming along not outputting anything or outputting a number, or any signal, that is not used at all in the claim for anything, and then also have limitations to a novel unobvious enabled traditionally patent eligible method. That’s perfectly fine.

              As an example, if in Diehr they never actually used the number to do anything or they swapped out the program utilizing the Arrhenius equation for some random program that wouldn’t accomplish anything in a rubber curing process, the claim would still be eligible. Though there is no real reason to tack such computer program limitations on though. Which was a pretty big wrinkle in Diehr, there was no reason to have those computer limitations in there in the first place excepting perhaps to “set the background” for the claim as some drafters are fond of doing unnecessarily limiting their claim’s scope. The only other reason that I can think of is that perhaps the drafters thought that they should put that limitation in there so that the scope of the claim would reasonably correlate to that which they enabled because previously the auto-opening was not enabled due to people not having good enough temperature measurements and then knowing to use them in the arrhenius equation via a computer.

            13. anon, I think our real debate has always been about whether the use is the kind of use that is eligible. Hope, love, music are clearly excluded and we agree. You contend that price is not clearly excluded — and I think the reason is that price is useful. Do I have that right?

              6, You say the issue is abstractness, but no one really knows what that means. We talk about the preemption holding of Benson. I agree that case did hold that the claims preempted all practical uses. But the very next case Flook said Benson was not about preemption but about mathematical algorithms. It started its opinion by noting that an alarm limit was a number.

              For this reason, 6, the issue of preemption has been cabined by Flook. It is not really an issue. That Bilski raised it once again is a travesty, because there they really did not understand what they were saying. That case is an utter joke.

            14. 6 trips with “See but that’s not necessarily so. You could hypothetically, though I don’t know why you’d want to, write a claim with limitations in it to a computer humming along not outputting anything or outputting a number, or any signal, that is not used at all in the claim for anything, and then also have limitations to a novel unobvious enabled traditionally patent eligible method. That’s perfectly fine.

              That’s because you have to look at the claim as a whole, right 6?

            15. Ned inches closer to understanding with “anon, I think our real debate has always been about whether the use is the kind of use that is eligible

              It appears the light of comprehension is flickering when one stops conflating the 101 requirement of utility with the 101 statutory categories.

              Keep in mind Ned, that both Benson and Flook were cabined by Diehr.

            16. Ned,

              Bilski could have been worse. Stevens could have maintained his anti-business method, rewriting the explicit words of Congress, early majority position, and really caused a constitutional separation of powers crises.

              As it is, Bilski really only does have two holdings to keep in mind. Did you ever check out the right hand column on the wiki page I supplied? link to en.wikipedia.org

            17. “That’s because you have to look at the claim as a whole, right 6?”

              Um no, it’s because in such a claim you’re not trying to preempt all uses of an abstract idea, natural phenom, or lawl of nature.

              But yes anon, you and I both agree that you must look to the claim as a whole when beginning your analysis, you don’t just leave parts of the claim out of the analysis entirely (i.e. totally ignoring them). The only thing we disagree on is whether you can dissect the claims for purposes of analyzing the claim. Which I say you may. And which the USSC says you may. You and a group of holdover ta rds that have trouble reading a throwaway paragraph in Diehr in context are the only ones remaining saying you cannot. So, you may dissect.

              And, even dissecting hypothetical claims like I put forth will yield the same result as I just came to. That it is perfectly alright.

            18. “6, You say the issue is abstractness, but no one really knows what that means. ”

              People who aren’t re tar ded know.

              “We talk about the preemption holding of Benson. I agree that case did hold that the claims preempted all practical uses.”

              Well then for the love of all that is good and holy stop talking about numbers and uses thereof. Just stick to the basics of what was held and you’ll be fine and dandy. Though an art class to help you understand what abstractness is might help.

              “But the very next case Flook said Benson was not about preemption but about mathematical algorithms.”

              Um no. They did not say that in Flook. Benson is about both, preemption and mathematical algorithms. In fact it was about preemption of a specific mathematical algorithm. You in fact just admitted such in the post I’m responding to.

              “It started its opinion by noting that an alarm limit was a number.””

              Right those are the facts of Flook which is why they brought up a number in passing. But those are just very specific facts to the Flook case. They’re not some general rule that all 101 determinations are about. Or even a rule that all 101 determinations related to computers are about.

              “For this reason, 6, the issue of preemption has been cabined by Flook. ”

              Um nah bro. You need to read Flook again, like ten times if necessary until you understand that isn’t even close to right. Flook reaffirmed Benson and cited it approvingly, it did not “cabin” the very simple holding in Benson at all. On the contrary it broadened the application of the notion of preemption (the preemption doctrine shall we say) to where even if you limit your claim to one single field of endeavor or add on some pre/post solution activity they’d still bust you for attempting to patent the abstract idea, just because they felt like the drafters were acting an ar se and attempting an end run around their overall exceptions to patentability.

              “It is not really an issue.”

              Well you can keep asserting that while the court invalidate claims left and right over just that issue. Up to you bro, but your clients might not be impressed when their claims go down because you, their lawlyer, can’t understand a very simple concept announced 50 years ago and abide by it.

              “That Bilski raised it once again is a travesty, because there they really did not understand what they were saying. That case is an utter joke.””

              Meh. Your opinion. I hear it, but pshaw, you don’t have power over the situation.

          2. 6, No preempting algorithms, because they’re abstract ideas. Period. It isn’t really that complex.

            And that is why the jurisprudence has become so screwed up. Benson did say this, but a set of the things as well. They also said that the essence of a patentable process was its application to a useful end. The common factor in all the section 101 cases related to computers is this: if the claim ends in a number it is not eligible. If the claim uses a number to produce a useful end, it is eligible.

            If anyone was searching for a simple rule regarding computers implemented inventions, just read these posts.

            1. Ned,

              You are one (very small) step away (again) of realizing why the conflation of the utility aspect of 101 with the eligible categories aspect of 101 is so damaging.

              Conflation – the WHATEVER mantra – in law is something to be despised. The purposeful seeking out of conflation – as is done by those with a specific anti-software patent agenda – is the anathema of those who respect clarity in law.

            2. “And that is why the jurisprudence has become so screwed up”

              How is that screwed up? It’s easy and straightforward. A very simple holding for a very simple time (the 1950’s).

              “They also said that the essence of a patentable process was its application to a useful end”

              Well yes, as far as dicta goes that’s decent to say, just to help poor applicants get their sht together.

              “The common factor in all the section 101 cases related to computers is this: if the claim ends in a number it is not eligible. If the claim uses a number to produce a useful end, it is eligible.”

              Well idk about that. You’re leaving out the most important term from their dicta. The “application” part. Sorry Ned, you leave that out and your sht just ain’t right bro. It’s the application that’s important, the useful end is just a shout out to the utility req.

            3. The irony here is that the ends and means do matter – together.

              Let’s see if that lesson can be applied to the “subjective in 6’s head” views and bring him in line with the objective law that exists in reality outside of 6’s head.

        4. Yeah I’m reading benson’s opening brief and it states quite clearly on page 24 that “even if it were admitted that these steps could be performed mentally, WHICH IS NOT ADMITTED, it is clear that none of these steps would require reflective or interpretive action on the part of an operator”. Seems pretty clear that applicant argued that “appellants, however, call for steps which are all of extreme simplicity, requiring no involved or complicated processes to implement, AND ARE ALL PERFORMED BY THE DISCLOSED APPARATUS”. I mean, it’s pretty hard to read that as an admission that the claims cover mental activity.

          The discussion in the prosecution history is simply talking about the algorithm itself, which undoubtably can be carried out by hand. The claim however is argued by applicant to not cover such.

          In any event, super duper interesting to read that!

    4. Ned: The brief by Trzyna and Lee Hollaar argues nothing short of this: if a computer is recited, if an article of manufacture is recited, the claim is eligible. On the latter, they would declare music CDs eligible.

      LOL! And let me guess — patent examiners could deal with digital information encoding “non-obvious” sound waves under 103? Exactly how does that work? Under what theory? What about “claims as a hole”? What about a computer hard drive storing the music? Can I overcome the rejection by showing that I sold 400,000 copies of the sound file?

      It is to laugh.

      This position, if adopted, would be elegantly simple to administer, but would so elevate form over substance that the public would begin to think that the Supreme Court was composed of cre tins.

      I’m pretty sure the public has a good idea about who the cre tins are already. They’re the softie woftie people who want to claim “new functions” and who are despereately trying to defend their interest in a patent system that ran off the rails some time ago. They’ll do and say anything to keep their boat floating, and they’ll deny the noses on their faces even when the mirror is held right in front of them.

  2. IBM’s brief deserve special mention because it seeks to wholly erase the “abstract idea” exception. IBM assures the court that the inquiry under section 103 would fully address the courts concerns in prior cases for wholly preempting general principles. Furthermore, they argue, the obviousness inquiry under 103 must be free of 101 concerns.

    They argue that abstract ideas is fundamentally different from the law of nature and natural phenomena exclusions. The latter are easily identifiable in a course eligibility test, while the former are not. They argue that the abstract ideas exception has been a total failure in practice. It could exclude, they argue, fundamental advances in computer technology such as public key encryption.

    The IBM brief fails because of their argument that 101 considerations must be excluded from 103. Thus any difference between the claimed subject matter and the prior art, whether it be technological or other, would, if considered to be nonobvious, lead the patentability. Not even the Europeans go that far. If accepted, Benson is overruled.

    The clue for eligibility is actually stated earlier in their brief, but then ignored thereafter. Let me quote:

    “Courts and Amici agreed that the technological functions carried out via software could also be implemented through computer hardware in the form of integrated circuit (chips) are other discrete electronic components, and the patent eligibility of those tangible devices is beyond question. Accordingly, there is no principled reason to draw distinctions between hardware and software when it comes to section 101 patent eligibility.”

    But there is a principal reason to draw distinctions between hardware and software – and that is where the software is not used for new technological functions, but simply to calculate things like price. The fact that IBM totally ignored this reality in their later argument is why their argument must fail.

    Assume that the software here simply was used as in State Street Bank to calculate the improved price. The test that IBM advances would allow the patentability of that software simply because it was implemented on a computer. Since that result cannot be correct, IBM’s test fails.

    But they got close. If they would add that the differences between the prior art and the claimed invention were technological, then I would agree that that moving the inquiry to §103 would work.

    1. Ned: IBM assures the court that the inquiry under section 103 would fully address the courts concerns in prior cases for wholly preempting general principles. Furthermore, they argue, the obviousness inquiry under 103 must be free of 101 concerns.

      Hilarious. So IBM expressly advocates that the Supreme Court rejects the so-called “printed matter doctrine” invented by CCPA and later adopted by the Federal Circuit?

      That would show a surprising degree of integrity. Should I be surprised, or is IBM just playing the predictable and self-interested game of whack-a-mole?

      there is no principled reason to draw distinctions between hardware and software when it comes to section 101 patent eligibility

      There is no “principled” reason to allow applicants to claim new “functions” for hardware or software merely because those functions are “new” or “non-obvious”.

      The IBM brief fails because of their argument that 101 considerations must be excluded from 103. Thus any difference between the claimed subject matter and the prior art, whether it be technological or other, would, if considered to be nonobvious, lead the patentability.

      Indeed. And that game is so transparent and so tired that it boggles the mind that they’d shove it under the Supreme Court’s noses again. I guess when you got nothin’ else, might as well just throw the hail mary and say “we tried.”

      1. I wonder if footnote 4 of the IBM brief struck a chord with Malcolm (as he has repeatedly shown an inability to understand the differences in protection that copyright and patents provide).

        1. he has repeatedly shown an inability to understand the differences

          This has been another episode of “Meet the Pathological Liar.” Be sure to tune in tomorrow when the Caped Deluder will present more examples of his “power.”

          1. LOL – except for the fact that my posts are accurate and that you have repeatedly suggested that copyright is ‘good enough’ to cover what patents cover – clearly not true.

            GASP – Malcolm caught in a lie, lying about his own obfuscations and lies….!

            Sorry mr. zero credibility boy – maybe if you hadn’t created this problem for yourself by incessantly posting that you don’t think that intellectual honesty is required for blogging, and the little thing about constantly dissembling you might have a leg to stand on.

            Then again, maybe not.

            As they say, svcks to be you.

            1. And by the way, lovely AOOTWMDs with the whole ‘pathological liar’ bit when you have failed to show a single lie at all. How are those incontrovertible facts coming along?

              It really does svck to be you.

            2. LOL – but the record really does show you saying that copyright is every bit as effective as patent to protect software.

              A statement incontrovertibly false.

              How is your search for incontrovertible facts coming along?

              LOL – the ‘game‘ is not going well for you. You should think about trying something else.

            3. the record really does show you saying that copyright is every bit as effective as patent to protect software.

              Does “the record” show that? Show everyone the quote, and provide a link to the thread so the quote (whatever it is) can be seen in its original context.

      2. MM: There is no “principled” reason to allow applicants to claim new “functions” for hardware or software merely because those functions are new or non-obvious, except if it is enabled by the specification.

        I fixed your sentence for you.

        1. Why are you on such a big “enablement” kick these last couple months NWPA? I don’t recall you being all “enablemented” out in years past, what changed?

          1. 6, my “enablement” kick as you put it is in response to the latest functional claim attack. You see, the big picture: these simians keep attacking the patent system. They always misrepresent or leave off something. In this case, with the functional claim attack, they are leaving off that the enablement part.

            It is nice that their natural law arguments have finally died, but they have resurrected themselves with functional claim arguments.

            And, ole Neddie boy, trying to pass one over on us with the EPO nonsense that information processing isn’t technical in nature.

            1. They always misrepresent or leave off something

              You realize NWPA that 6 just verified that such shenanigans are perfectly justified in his own mind.

            2. Night, do you really contend that using a computer to calculate numbers is patentable so long as the algorithm is new?

              If this is what you contend, what is the difference between reciting the computer and not reciting the computer if the algorithm is the invention?

            3. “6, my “enablement” kick as you put it is in response to the latest functional claim attack”

              Oh, alright. Good that you at least recognize the source of your making up some nonsense. Also good to see that the latest “attacks” are provoking you. ;’p

              “They always misrepresent or leave off something”

              Well come on NWPA, they feel the same way about you. I’m willing to put both sides view’s forward, in their entirety, and have the USSC decide the matter. Are you?

              “In this case, with the functional claim attack, they are leaving off that the enablement part.”

              That’s a little bit bizarre of a statement to make, their argument is usually iirc that x isn’t described sufficiently, i.e. WD problems. They don’t even bring up enablement nor do they care much about it in terms of making their argument. You seem to be advocating that they first should erect a straw grounds of rejection, or straw argument for invalidity in court, on enablement grounds so that you can knock it down. Or else you appear to be arguing that at the least, so long as you enable something you should be able to get a patent on it sans written description thereof. I mean, what you’re saying just seems bizarre even if it really isn’t. If you’d like to set the record straight, if those aren’t your basic arguments written out longhand, I encourage you to, just so you don’t come off as seeming quite as nuts.

              “It is nice that their natural law arguments have finally died, but they have resurrected themselves with functional claim arguments.”

              I don’t recall that ever having taken place, must have been before my time. Is it in legal journals or something? Because I’ve been reading some of the old stuff and I don’t see hide nor hair of such. But as a a proponent of the functional attacks, I’d just like to thank you for doing us the service of providing credence (and even throwing in some crazy sounding rebuttals for free) to the arguments!

            4. “You realize NWPA that 6 just verified that such shenanigans are perfectly justified in his own mind.”

              Of course anon, as they are in thousands of other minds concerned with the topic. It’s called politicking brosefus.

            5. 6, scope of enablement. Read LizardTech. This functional claim nonsense is just that–nonsense. Read Deener. And, read cases regarding claiming function of a machine in the early 20th century.

              In other words, read cases before the Lemley propaganda machine was in full swing.

            6. I gotcha on the old cases. I’ve read deener and lizard though, I see no reason to read them again. I am interested in what your actual “argument” is though, which is why I’ve invited you to make such a bit more explicit, if for no other reason for us to all have a good laugh!

            7. 6 misses (again and badly so) with “I see no reason to read them again

              To 6, ‘reading’ is enough, as it is clear that all that matters to 6 is the subjective view within his own mind and any semblance of an objectively correct view of the law is to be dismissed while he is “playing politics.”

              The fact that he openly admits to this ‘world-view’ destroys WHATEVER slim hope of credibility that he may hope for – and that he is simply blind to this fact simply does not matter to someone who so relentlessly commits character suicide.

              That he thinks that his approach yields ‘good laughs’ only shows that he is the f001.

            8. 6, scope of enablement.

              That is what a person is entitled to claim. Pretty simple argument. Laid our very clearly in LizardTech.

              Not sure what you have to laugh about. My guess is that the distance between the Lemley fantasy world of deciding cases by the judge looking at an invention and proclaiming whether it is good or not, and the world that we should all live in where the law is applied would make anyone laugh–or the moral people cry.

            9. “That is what a person is entitled to claim. Pretty simple argument. Laid our very clearly in LizardTech.”

              K, so does Lizardtech also note anything about the WD req or do they just set it to the side because that case didn’t involve that issue?

              “Not sure what you have to laugh about.”

              Your pathetically bad misunderstanding from Lizardtech that they didn’t mention WD because it was not at issue in that case. I’m mean, it’s just… so bad. So bad it’s funny.

    2. Ned, we’ve been through this before and you know that our Courts have held that Useful Arts is broader than technological arts.

      It is pure legal error to hold otherwise.

      You need something else for your argument to hold any weight.

    3. Ned, you are (again) off with “and that is where the software is not used for new technological functions

      The US Courts have held that there is no technological arts test.

      You really need to realize the extent of the difference between Useful Arts and technological arts (and try to stay within one nation’s jurisprudence – this nation).

      Further, you are conflating a different aspect of the 101 test: utility.

      The utility requirement is separate from any of the judicial exceptions.

      The utility requirement is also separate from any of the named explicit categories of patent eligible subject matter.

      You can have a brand new chemical not found in nature, perfectly described in a claim in glorious and exacting structure (including spatial folding parameters) and without utility, that chemical is just not eligible.

      Ned, pay attention to your arguments and make sure that you are not conflating the different aspects of the 101 test.

      1. Anon, you assume that technological is narrower than useful Arts, when in fact it might be broader.

        Regardless, I agree that no court has held that useful Arts and technological are co-extensive.

        Thus a computer programmed to play a new song may be eligible, and the brief by Trzyna and Hollaar actually makes the argument that it is.

        1. Sorry Ned, but I heartily disagree as the court decision that ruled that we (in the US) do not have a technological arts test fully indicated that the Useful Arts were broader.

          I can see no realistic nor reasonable way that the Useful Arts are more narrow.

          None.

          As to your ‘music’ line of thinking, you are simply pursuing a false path, one easily defeated.

          I have not read the Trzyna and Hollaar brief yet, so I am not sure if you are merely over-reading that brief or in fact Trzyna and Hollaar are also missing the other aspects of 101.

    4. “They argue that abstract ideas is fundamentally different from the law of nature and natural phenomena exclusions. The latter are easily identifiable in a course eligibility test, while the former are not.”

      I agree with them on that for the most part. IDing abstract ideas is much harder, if for no other reason than the tricksey ways lawlyers try to hide them in their apps, or those same lawlyers failure to recognize such even while they were drafting the app.

      ” They argue that the abstract ideas exception has been a total failure in practice. ”

      I must strongly disagree. To the extent that it has been a failure it is a result of the federal circuit’s failure to give good guidance, with many of them instead preferring to bury their heads in the sand and hope the whole thing blows over.

      “It could exclude, they argue, fundamental advances in computer technology such as public key encryption.”

      Sounds good. :0)

      “The IBM brief fails because of their argument that 101 considerations must be excluded from 103. Thus any difference between the claimed subject matter and the prior art, whether it be technological or other, would, if considered to be nonobvious, lead the patentability. Not even the Europeans go that far. If accepted, Benson is overruled.”

      Amazing that you’re starting to pick up on that Ned.

      “Accordingly, there is no principled reason to draw distinctions between hardware and software when it comes to section 101 patent eligibility”

      I have to disagree with them on that. Due mainly to the form that they tend to draft those claims in. Nobody would care much if they patented software the same way they patented hardware, describing the physical structure and claiming such.

      “But there is a principal reason to draw distinctions between hardware and software – and that is where the software is not used for new technological functions, but simply to calculate things like price.”

      Yeah that also. But that’s really just a subset of the problem I mentioned above.

      “But they got close. If they would add that the differences between the prior art and the claimed invention were technological, then I would agree that that moving the inquiry to §103 would work.”

      See and that is an acceptable compromise. In fact it is the only acceptable compromise.

      1. 6,

        You remind me that you never lived up to your promise with the ladders of abstraction discussion (come to think of it, Leopold is also tardy with references on the same topic).

        1. How many times do I have to tell you that I did discuss them one day and that’s all you’re getting nutty mcnutcase boy? Do I have to discuss them every single day with you? We already found our area of disagreement regarding that topic, why drag it up again?

          1. Because it is a great objective example of you being less than forthright and how you still have not adequately addressed an important concept in patent law, while pretending (in your mind) that what you have ‘presented’ is enough.

            Hint: it is not.

            1. Dude that’s all I’m giving ya, that’s a final rejection. Seriously. Go ask the board about the issue. Why sit and pout about not getting more mere discussion from me, on a near-weekly basis no less? Do you care that much about what I think that you simply must have more discussion? Seriously? How much is such a conversation worth to you in dollars? 1000$? Because I mean, if you’re offering real money we can sit and talk about it all day.

            2. that’s all I’m giving ya, that’s a final rejection.

              LOL – this is not an office action 6 – you have failed in the first instance to adequately do what you promised to do.

              How much is it worth to show you for the fraud that you are? Meh, that’s pretty much a dime a dozen kind of thing. But to show you as a fraud in your very own ‘beloved’ abstraction thingie – that’s just plain juicy.

              You can count on me bringing it up whenever it pleases me to do so.

            3. In other words you’re just a douchenozzle eh?

              I have no clue what you mean to intend with the made up word 6.

              But if you mean that I am absolutely correct in what I say then the answer would be yes.

              If you mean additionally that my bringing this point up (and correctly so) makes you sad because it is juicy and wrecks your ‘special’ abstraction theory, then yes again.

              Of course, you do have some control over being so sad. Just post in accord with the objective law.

    5. You know Ned. Your arguments are just ridiculous.

      The EPO’s method is ridiculous. It is a quagmire that essentially says that if you are current a piece of hardware or you make a piece of hardware more efficient then you are eligible. It does not count information processing—you know that stuff that is projected to replace over 50,000,000 jobs over the next 20 years.

  3. More on the Alice briefs. The AIPPI (Euro AIPLA) argued like the AIPLA that computer implemented inventions that produce useful results should be eligible. Since this is a given since at least Diehr, what is the point of the brief?

    Well, they cite heavily to Bergy and name Rich as its author. They argue that patentability has doors, 101 recites categories that should be easy to determine. They argue that the 102/103/112 filters are better suited to determine not only patentability, but eligibility.

    They specifically note that “invention,” analogous to 103, requires that the differences from the prior art be technical. Br. at 27. The EPO, they argue, looks to whether the novel subject matter demonstrates a technical contribution.

    Now while this somewhat is inconsistent with Prometheus dicta, it is in fact the very position advocated by the US government to the Supreme Court in that case. It has a lot to recommend it. I applaud the AIPPI and the Euros for getting it right.

        1. Can you explain Dio?

          Do you know that the Court was explicit in rejection of the Government’s argument?

          Or are you just saying that you wish the Court said something else?

            1. Dear sweet Dio, none of your posts have contributed to the conversation.

              Do you think yourself clever? You are not. You made a comment, then cannot defend the comment, but instead sink into pedantic game-playing.

              You post nonsense and then wish to engage only with more nonsense.

              Until you show that you have something – anything – to actually say, you can continue to sound like the empty clanging wagon that you are.

              Have fun.

            2. clang… clang… clang…

              Pedantic: of or like a pedant.

              Pedant: a person who is excessively concerned with minor details and rules or with displaying academic learning.

              You clang along attempting to nitpick on something not even there. You post without meaning and then post nonsense in the guise of telling me that I am “not following the rules” or some such nonsense.

            3. Dio misses completely with “ I’m pointing out the substantive errors in your posts.

              No, Dio, you have done no such thing. You have vapidly stated “No it isn’t” with zero explanation. When I ask for one, then you descend into pedantic game playing.

              You have said absolutely nothing of any substance, let alone substantive errors.

              Try – for the first time to say something meaningful.

            4. LOL – Nice Dio, you want to try again to explain what is mistaken or wrong or ‘not to the rules’ that you say you don’t care about, but apparently do care about (but only in a pedantic way) with my first post in this string at 6.1?

              Or do you want to continue flogging your empty wagon?

              And if you care to aim for a lack of professionalism, I can point you to some extreme expletives and truly vapid posts devoid of intellectual honesty – Just look for posts by MM.

    1. Further, the Bergy opinion (which technically should be reflected as sub nom Chakrabarty would take the Rich rejection of the Benson dicta to a rather interesting place, given your expressed views on Judge Rich.

      And what to make of those Justice-made implicit writings? Ah, there is the rub.

      But before we travel down that path, tell me more of this seemingly odd conflation here, that eligibility (distinct and separate as it is from patentability) is better served under the narrowing filters of 102/103/112 than the open gates of 101. And in these musings, let us not forget – not for a moment – the difference in jurisprudence and the reflection of that difference in the fact that the Useful Arts are broader than the technical arts.

      Because the Euros may in fact get it right for their jurisprudence and still get it wrong for US jurisprudence.

    2. Ned: They argue that the 102/103/112 filters are better suited to determine not only patentability, but eligibility.

      Do they argue that, or do they simply just say so without explaining why that is the case? That’s what the government tried in Prometheus and they got their behinds handed back to them. You can expect that to happen again in this instance.

      For the billionth time, if ineligible subject matter (e.g., information) is being protected, in any context, by a claim that merely sprinkles in some eligible subject matter (e.g., a field-of-use limitation like a general purpose programmable computer or any number of similarly conventional computer-related “systems” in the prior art) then the claim is ineligible.

      The only reason that patent teabagger defenders of computer-implemented junk (and surely the AIPLA is one of those) want to shift the analysis to 103 is so they can play the 103 game of folding in more and more ineligible or old junk until the PTO gives up. That’s it. But the analysis remains indistinguishable whether you carry it out under 103 or 101.

      “New functions” are ineligible subject matter. “New information” is ineligible subject matter. You can’t get around these prohibitions merely by sprinkling conventional junk elements like “a computer” that “automatically” “determines”.

      1. MM, the way I view it is the novel subject matter has to be identified before any analysis has take place. As you and I have long agree, this is what the Supreme Court has always done anyway. The AIPPI brief simply formalizes what the Supreme Court does in fact.

        Perhaps their briefs is more an effort to harmonize US law to European Law, while not changing the substance of what is going on. The introduction of a technological requirement in the novel subject matter is one of the essential aspects of eligibity.

        But of course, we have folks like anon argue that technological is too narrow, and useful Arts is the only criteria, and price is within the useful Arts.

        We shall see about that.

        1. the novel subject matter has to be identified before any analysis has take place

          Or you can identify the ineligible subject matter first. I doesn’t make any difference which you do first and in most cases it takes two seconds to do that analysis.

          useful Arts is the only criteria

          They argue this because it’s easy to argue that something is “useful.” We saw this gambit in Prometheus, too.

          A book with new non-obvious recipes in it is that can be opened by a “user” and read is useful for cooking in the kitchen. A computer with new non-obvious recipes stored in it and “configured to” make those recipes available “upon request from the user” is useful for cooking in the kitchen.

          For some reason, the patent teabaggers want that computer to be eligible and they want it to be examined under 103. I’ve already explained why they want this. It’s quite transparent and it has nothing to do with “legal principles.”

          They patent txxbaggers whine about the “controlling law” all the time because it’s far easier to kick up dust with garbage, poorly-reasoned case law and irrelevant dicta than it is to make a coherent policy argument in defense of the junk they want to be able to patent.

          1. LOL

            garbage, poorly-reasoned case law and irrelevant dicta than it is to make a coherent policy arguments

            actual law – B-b-b-but it is garbage and poorly reasoned – because Malcolm says so

            policy – B-b-b-but it is coherent because Malcolm says so

            The RQ/HD says so , thus it must be so – never mind actual law.

          2. To sum up MM’s argument: I can spot something worth patenting when I see it. Use a judicial exception to arrogate patent law to judges and do not apply the law.

            In the great age of information processing where patents have proven to be massive generators of innovation–get rid of them ’cause information processing ain’t something that is real.

            So saith the MM….what a bozo.

            1. In the great age of information processing where patents have proven to be massive generators of innovation

              You have proof that patents are “massive generators” of “innovation” in “information processing” methods?

              Please share your “proof” with everyone.

            2. To sum up MM’s argument: I can spot something worth patenting when I see it.

              To sum up NWPA’s “argument”: hey, check it out! I can create a strawman and beat on it.

            3. Malcolm: “I can create a strawman and beat on it.

              Now tell us something we do not know.

              Oh wait, that’s one of those incontrovertible AOOTWMDs.

              oooohhhh

            4. MM, tell us why your argument is not summed up by statement above. Clearly if it weren’t you could write a sentence or two that would be something different.

              But, you can’t. My summary of your arguments is precise and accurate.

        2. Ned,

          We have case law that says “technological” is too narrow.

          Sorry, but that is the way it is – it is not me personally that holds so.

            1. Dio,

              You kind of remind me of that guy who went looking for a modern advanced society that had eliminated all of their IP laws.

              Maybe you should join that search.

            2. Dio: “And when you “attack” a politician on points like this, you weaken all your attacks.

              Are you a politician under attack?

              Have you lost your way?

              Are you confused and lonely?

              I know a store where you can buy a nice puppy.

            3. The matching couple:

              Funny, both the mysterious ‘new’ poster and Malcolm losing their cool at the same time….

              Maybe they are both Friends of the Court….

              LOL

        3. Ned’s “ harmonize US law to European Law, while not changing the substance of what is going on

          Tell me Ned how do you change controlling jurisprudence without changing the substance of what is going on?

          Last week you merged US and Canada law without explanation, then went on to merge US and German law without explanation, and now US and European law without explanation.

          I suggest that you first understand the differences between the laws.

        4. But that view seems to interpret “useful arts” according to what it means today though and not at the time of the adoption of the Constitution. As another example, “science” in the same constitutional clause also has a drastically different meaning in modern times.

          1. Tony,

            The Courts have said that the phrase is construed in the terms of today, and is not to be locked into an 18th century meaning.

            And if you give it a moment’s thought, you would see that it simply would not make sense to lock innovation into the understanding of a fixed time.

            That is why 101 is to be considered a wide open welcoming gate.

            1. I wouldn’t view an 18th Century view as blocking new innovations. Might block pure business methods (but not necessarily software) under some people’s interpretation, but that view was obviously rejected in Bilski.

              I just hope we can get some real guidance. As far as I see it, the case law is so nebulous everyone can have their own interpretations and you are just left to the whims of the PTO, Board, which District Court judge and which Federal Circuit panel you get, etc.

            2. Tony, you are perpetuating a fallacy with the business method line of thinking.

              Yes, Bilski was a major loss for the anti-business method philosophy. A guest post on these boards also dispelled the myth that business methods were only a modern occurrence.

              Do not confuse ‘wide-open’ with nebulous, but do be on guard for those whose philosophical agendas would curtail whole art fields.

        1. I have a comment on the IEEE brief.

          They seem to be unable to properly ascertain the differences between the prior art and the claimed invention. Specifically they ignore the “automatically” at the end of the claim. At least (we can’t be sure of the rest of their limitations being shown since they did a pi ss poor job of matching limitations to the art). Do you remember that limitation? The thing that was one of two things that the applicant argued was the baddest ar se thing about his invention and which the USSC indicated they believed him about?

          Or, even if they did do a good job and got it correct, they’re unable to show that the USSC made the same factual findings as they are now back in the 80’s. And that is kind of important in the instant situation where it is pretty clear from the record that the USSC bought the applicant’s arguments about there being more there than the algorithm that was new. It doesn’t matter what the facts in the reference in Diehr actually were in Diehr, what matters is what facts the court found in the references, and they could have very jolly been mistaken. Though I don’t think they were, I think IEEE is simply leaving out limitations. Do you remember that? The thing you’re allegedly constantly btching at examiners about?

          Either way, they also seem to be unable to understand that even in the event they were right (which they aren’t) nobody appraised the USSC Majority sufficiently of those facts and thus it would simply mean nothing more than that the USSC made a bad decision based on faulty facts. Which obviously would explain a lot.

          All that is pretty embarrassing for IEEE, but frankly I’d say it is more of a reflection of the incompetence of a few lawyers hired on by IEEE. Or, failing that, an overall hope of the organization for software to be patent eligible and thus creating a faux conundrum to try to sway the court.

          As an aside, I note that in the reference cited it appears the Arrhenius equation is mentioned. So I guess we should treat that as a familiar part of the prior art in this context as well.

          Likewise while reading the reference the closest thing I see to automatic opening is: “When this calculated carcass temperature has fallen to the required value the opening of the press is initiated. ” Which is simply not a statement that the press was auto-opened. According to the applicant the prior art systems still required people to open the press.

          And finally as I’ve noted before the temperature sensors are not in the proper placement (according to the applicant) in that reference to allow for fine enough temperature measurements to be made to allow for auto-opening. Though as others have argued, that limitation might be in another piece of prior art.

          In either event, my overall position that the court simply bought what the applicant was selling, that he was trying to accomplish auto-opening by way of getting better temperature measurements and applying the arrhenius equation thereto does not appear to be impacted in the slightest even if we took the IEEE brief’s findings of fact as Truth.

          But hey, maybe you’d like to make some citations to passages in that art that show auto-opening and proper placement of thermo-couples or whatever to allow for fine enough temperature measurements to be made?

          1. Um,…

            Nice rant 6 – but we are talking about the IEEE amicus brief for the Alice case.

            (see Ned’s link – you , um did bother to read the conversation, right?)

          2. “Nice rant 6 – but we are talking about the IEEE amicus brief for the Alice case.”

            That’s what I was talking about. In their amicus brief they talk about the facts of Diehr and premise pretty much their entire thesis around the facts of Diehr being different from those that the everyday observer can tell the Supremes used in that case.

            1. Meh idk about that, I simply didn’t take the time to read too much else of it because it was lame in at least that respect. They wanted to look at the “application” of approaches to various fact patterns iirc. They then made a mistake in at least one fact pattern leading them creating a faux legal issue where there need be none. It’s basically just what you do.

            2. 6’s Malcolm-sniff style of “I simply didn’t take the time” creates an immediate LOL.

              6,

              Why do you think what does not work for Malcolm will work for you?

            3. “Why do you think what does not work for Malcolm will work for you?”

              W t f are you talking about? I don’t need it to “work” for me. It’s an action I took, regarding a brief that doesn’t amount to a hill of beans. My approach to saving time on not reading the whole thing “works” for me just fine in that it saved me some time reading more thoughts from those people. People that just so happened to have boinked up right in the middle of their “analysis”.

              Also, how can you not understand by now that dio, the poster above, is lampooning your ta rd posts from the past?

            4. My approach to saving time on not reading” – LOL – that right there says more than I think you really care to admit, 6.

              Dio arrives late and does not understand the history of our exchanges – and the fact that I have provided more pincites to law than anyone else on the board. His attempt at mockery falls flat precisely because I have provided substantive analysis, facts and correct points of law.

            5. Not sure why you are laughing Malcolm, as my methods surely outclass the propaganda wagon you use.

              But hey, if you want to play the f001 and laugh, by all means have at it.

            6. “Dio arrives late and does not understand the history of our exchanges – and the fact that I have provided more pincites to law than anyone else on the board.”

              Oh yes, pincites are very important! LoL.

              And regardless of his “arriving late” or not, he’s doing an excellent job lampooning you.

            7. 6 misses (of course) with his “he’s doing an excellent job lampooning you

              Hmmm, maybe that’s why he is already resorting to profanity, right 6?

              /facepalm

        2. Anon, the IEEE brief seems to be arguing based on a general misunderstanding of the case law. They seem to be arguing that programmed computers that actually do something new should be patentable subject matter. Every single example they give to the Supreme Court of a program computer doing something new is in context, even as they rely on Alappat where Alappat clearly was in context. But as we know, the Diehr court already held that program computers in context are eligible. There is no serious contention by anybody otherwise. In fact that was the holding of Benson.

          But I smell a rat. I suspect they make this argument precisely because they want to overturn Benson to the extent that any recital of a computer in a claim, even in a method claim, is sufficient for eligibility purposes. That would allow the eligibility of a claim to a method that does not do something useful simply because of the recital of the computer. In essence they argue that if a computer is recited in the claim it passes 101 because a computer is a machine. This argument was the very argument made by Judge Rich in In re Benson, and that argument failed. What is important is that the claimed subject matter produce a new and useful result.

          To the extent that the IEEE brief argues otherwise, and I think they do, then their argument will fall on deaf ears.

          1. Ned,

            I cannot make sense of your assertion of “seems to be arguing based on a general misunderstanding of the case law, given your admission of “But as we know, the Diehr court already held that program computers in context are eligible.”

            Further, I think you err with “That would allow the eligibility of a claim to a method that does not do something useful specifically because utility is still required, no matter which category of patent eligible subject matter an invention is claimed in. After all, we both know that a brand new chemical composition – even one painstakingly defined in structure, including three-dimensional folds and what not, will fail 101 if that brand new chemical has no utility.

            As to falling on deaf ears, well, yes, the professional society long (and honorably) recognized in the actual art field may falter when it comes to the Supreme Court and their addiction to shaping the nose of wax. But that won’t be due to the factual (software is equivalent to firmware and is equivalent to hardware) content, nor the legal understanding of a wide open 101 gate and the explicit nature of manufacture or machine components.

    3. Ned, we don’t like the European way of determining eligibility. Europe is not a role model for us. Europe lags behind us 20 years in information technology. You steal our stuff. I am sure you don’t want patents then you’d have to pay us money for your theft.

  4. Any statute that would award attorneys fees against a plaintiff who loses even if he has a meritorious claim is flatly unconstitutional under numbers of Supreme Court cases.

    1. Any statute that would award attorneys fees against a plaintiff who loses even if he has a meritorious claim is flatly unconstitutional under numbers of Supreme Court cases.

      “Flatly unconstitutional”, where the precise language of the statute in question and the factual circumstances underlying the statute were never presented to the Supreme Court? I kinda doubt that.

      In any event, as you surely know, Ned, attorney fees are awarded regulary to defendants, regardless of whether any or all of the plaintiff’s infringement contentions are/were “meritorious”. There are many possible bases to justify fee shifting in a particular case and a “meritorious” infringement claim does not present a legal roadblock to that result.

      By all means, if you have “meritorious” claims you should bring them (although it might be a good idea to present some “meritorious” license terms first). But if you behave poorly and/or continue to press b.s. contentions after your game has been exposed then be prepared to pay a heavy price. That price should include fee shifting and massive sanctions of the sort that will cause a moment’s reflection for even the most shameless, fatcat, bottom-feeding attorneys (and clients, to the extent they are distinguishable) who are busily polluting the courts and the patent system as we speak.

      1. MM, no doubt attorneys fees are awarded for sham complaints and litigation misconduct. But the Supreme Court made it abundantly clear that the sham litigation hurdle is there not because of any statute, but because of the 1st Amendment.

        1. Ned: the sham litigation hurdle is there not because of any statute, but because of the 1st Amendment.

          I love the 1st amendment. But it’s possible to pass laws restricting certain kinds of speech, and (as I recall) easier still if it’s commercial speech. Perhaps the 1st amendment rights of PAEs who exist solely to parasitize productive entities are not as far-reaching as they might hope.

          I wonder when Dennis is going to put a post up about the Kilopass case, which seems pertinent here (I would recommend that Vizio appeals the District Court’s decision in this case).

          1. PAEs who exist solely to parasitize productive entities

            Conclusions assumed in the disregard of the means to reach desired ends.

            The mere assumption from the Infringers’ Rights handbook that an entity that is producing something is somehow always virtuous over a mere patent holder was thrashed in 1908 by the Supreme Court (and that decision is still controlling law).

            1. thrashed in 1908 by the Supreme Court (and that decision is still controlling law

              That’s nice. 1908 was a long time ago. Things change. People learn stuff. Laws that were poorly considered in the first place or are no longer irrelevant are discarded in favor of new ones.

              You should know that better than anybody by now.

            2. While it is no doubt true that things do change from 1908, this Supreme Court case has not.

              Sorry Malcolm – you have to deal with the law as it really is – that’s the way it goes on planet Earth.

            3. things do change from 1908, this Supreme Court case has not.

              I never said otherwise. I did plainly indicate that perhaps the issue addressed in that case is ripe for revisitation.

              you have to deal with the law as it really is

              More hypocritical w*nking from the sad stooge who still can’t bring himself to admit that an [oldstep]+[newthought] claim is ineligible for patenting and always will be. How dumb and dishonest does a person have to be to behave like anon and still expect to be taken seriously by anybody? The mind reels.

              Let us know who the next judge is that’s up for impeachment proceedings initiated by your li’l buds Eric and AAA JJ. I can’t wait! That may be your best PR move yet.

            4. Malcolm, there is nothing “More hypocritical w*nking” about knowing and applying controlling law.

              Try it sometime.

              Oh wait, you still haven’t even answered the questions on the controlling law regarding the exceptions to the printed matter doctrine.

              You know, you sure spend a lot of time in “policy-land.” Try to spend a little time in “law-land” and “fact-land.”

              Just a little.

            1. the fact that there is a lower hurdle is inapposite to the discussion at hand.

              In fact, Ned and I were discussing the application of the 1st amendment to patent trolls so please gfy. Thanks, Junior! Here’s a lolly for you to suck on. No, you have to take your li’l referee whistle out of your mouth first. That’s a good boy.

              What I’m really looking forward to is for the True Believers to tell everyone that the bottom feeder PAE’s who exist solely to assert patents which they have no intention of commercializing and never reduced to practice are performing a “public service.” You know that story, right? The white knight rides into town with his piece of paper that says everybody is infringing his patent and for our own good we should pay him, unless we want to do battle with him in some court in Texas where he pretty much lives his entire life. Because he’s going to “create a job” or something, with our money. I love that story.

            2. discussing the application of the 1st amendment to patent troll

              Yes, I noticed. That’s why I was gracious to help you out with a little of the realty of law on this planet – you know, planet Earth.

              The appropriate response is “Thank You.”

            3. no intention of commercializing and never reduced to practice

              You see Malcolm – here that controlling law from 1908 comes in handy.

              What was that splendid advice you gave another chap..?

              Oh, yes, contact your Congressman.

          2. it’s possible to pass laws restricting certain kinds of speech, and (as I recall) easier still if it’s commercial speech.

            After Liquormart and Citizens United, the exception to the First for commercial speech is mighty thin and may not exist at all anymore.

            Does the right to petition for a redress of grievances really block any default fee shifting in cases brought on the basis of a discretionary privilege granted by the government against other private individuals? I don’t think the Supremes are going to see it that way. Goodlatte and co. seem quite sanguine about their chances of implementing losing party pays.

            1. Owen, the Supreme Court cases focus on malicious prosecution cases that seek to obtain attorneys fees as damages. When they hold that awarding attorneys fees for anything less than sham prosecution would burden the right to seek redress provided by the 1st Amendment, I am certain that Congress cannot overrule.

              Congress may be thinking the high hurdle is statutory, in which case, they are in control. But it is not statutory, it is constitutional.

            2. being heard in court for a legal grievance is not commercial speech

              It’s not so clear whether that’s true if the sole purpose of the entity is to profit by threatening or sueing other entities.

            3. It’s not so clear whether that’s true if

              LOL – no wait – LOL LOL LOL.

              B-b-b-ut they are using the court to make money…

              That’s really pathetic Malcolm.

    2. Why? Lots and lots of state statutes (and I believe a number of other federal statutes) have loser pay provisions (changing the default To the English rule). I’m not aware of these ever being found unconstitutional. Please provide cites. There is a first amendment right to petition the government. But I don’t see where that right gives you the right to cause millions of dollars in costs/fees on others when you are wrong.

      Perhaps there would be a constitutional argent if the fee shifting only happens in one direction, but not not sure I even see that.

      1. I can easily see the problem with fee shifting in one direction.

        I do not see the constitutional problem with fee shifting in general.

  5. Just ran across this on the website of infamous patent troll Dinesh Agarwal (e.g., link to techdirt.com):

    What is a patent?

    It is a legal monopoly over an invention for up to 20-years for utility and plant patents, and 14-years for design patents.

    LOL! Too bad Dinesh can’t be impeached, huh, guys? The amusement is never-ending, really.

      1. just ran across… techdirt…

        The techdirt link is just a reminder of the sort of awesome “innovations:” that Dinesh (a typical “small inventor” of the sort your team loves to cheerlead about) brings to the table.

        That’s not how I found his “patent monopoly” definition.

        In any event, please alert your buds Eric and AAA JJ so you guys and Dinesh can get your scripts tightened up, mkay?

        LOL.

  6. digging up a post from circa 2011

    Has there been some material change in the way that Smegmatus Telecom operates?

    thread unrelated to that topic

    Uh … what? Dennis identified the patent in question in his post. Please put down your referee whistle, Junior. The dog whistle is so much more becoming, after all.

    1. It might be more effective for someone else to criticize litigation misconduct Malcolm.

      Someone who exhibits intellectual honesty on these boards, even if this is not a court.

      As it is, all you achieve is sounding bitter and repulsive as the characters you try to condemn.

      1. repulsive as the characters you try to condemn.

        I’m glad we can at least agree that Ray Niro is repulsive. That’s some “progress” worth celebrating!

        1. “I’m glad we can at least agree that Ray Niro is repulsive. That’s some “progress” worth celebrating!”

          Indeed! Crack open the bubbly!

      2. It might be more effective for someone else to criticize litigation misconduct Malcolm.

        That sounds fine – go ahead.

        1. Sure Leopold.

          Litigation misconduct (as here) simply is not sanctioned severely enough.

          As Chief Judge Rader has put forth (and I have agreed in comments before), the existing tools are not being used enough to self-police our profession.

          Both sides in this case should have been punished much more severely.

          1. …activity on blogs should be held to a higher standard.

            To a higher standard than lawyers’ conduct in litigation? Are you serious?

            And why should “both sides” in this case have been punished more severely. What did the defendant do that should have resulted in sanctioned?

          2. Litigation misconduct (as here) simply is not sanctioned severely enough.,

            [golf clap]

            Both sides in this case should have been punished much more severely.

            LOLOL! What?

            …activity on blogs should be held to a higher standard.

            Ah yes. I suppose that would be the “higher standard” where your b.s.-riddled, self-serving scripts are immunized from attack, while you get to label everyone who disagrees with you as ignorant of the technology or the law. I can see why you’d like that.

            1. LOL – more Malcolm self-FAIL.

              If my posting in an intellectually honest manner creates a ” immunized from attack,” then so be it.

              Yes, posting with honesty should have such rewards.

            2. Malcolm pulls his RQ/HD with “All of us have had the extremely unpleasant experience of trying to explain incontrovertible facts

              Sure, Malcolm,, name one incontrovertible fact. Not a Malcolm spin-fact, but a real fact.

            3. a Malcolm spin-fact

              What a surprise! The blogtroll can’t hold back it’s own inherent dooshiness even when it wants to be taken seriously as a proponent for “higher standards”.

              What a f*ckn t00l.

            4. software is equivalent to firmware and is equivalent to hardware.

              The earth is equivalent to the moon is equivalent to the sun.

              Fun game.

              Do you have a point, Socrates, are you off your meds again?

            5. Well Malcolm, that was, um, ‘witty’ and all, but the conversation ball is still in your court.

              (that happens a lot when law and facts are on the table – even or perhaps more accurately, especially those incontrovertible ones)

          3. To quote the write-up above: “one reason for not awarding attorney fees was that Vizio’s was also guilty of delay and avoidance tactics

            And yes – I am serious about intellectual honesty in posts. What possible reason would you have to excuse dishonesty in blog posting?

            Are you serious?

          4. To quote the write-up above: “one reason for not awarding attorney fees was that Vizio’s was also guilty of delay and avoidance tactics”

            The write-up above is wrong. The judge said nothing of the sort in her order, and did not suggest that anything Vizio did approached litigation misconduct.

          5. What possible reason would you have to excuse dishonesty in blog posting?

            Where did I excuse dishonesty in blog posting? Way to live up to those high standards, anon…

          6. “Just because this is not a court does not mean that intellectual dishonesty should be tolerated.”

            Wouldn’t want to tolerate what some folks subjectively feel is intellectual dishonesty on thems interbuts now would we?

            If this was early Merica anon would be flying the king’s colors and decrying this whole new “freedom of speech” thing.

          7. 6 misses badly with “Wouldn’t want to tolerate what some folks subjectively feel is intellectual dishonesty on thems interbuts now would we?

            If this was early Merica anon would be flying the king’s colors and decrying this whole new “freedom of speech” thing.

            There is an objective difference under discussion 6 – not a subjective one.

            As I have posted, I have no problem with something posting their opinion that differs. That is not the issue whatsoever.

          8. “There is an objective difference under discussion 6″

            I’m willing to hear you out on what this “objective” “difference” is anon. At least if you’ll steer clear of gobbledegook nonsense words you make yourself. If you can’t do that just keep your comment to yourself, thanks in advance.

          9. Tell me 6 if you understand first that there is a controlling law as to the exceptions to the printed matter doctrine, and then what that controlling law means.

            This is an objective understanding that can be reached.

          10. Leopold at 5:29 pm states: “The write-up above is wrong. The judge said nothing of the sort in her order

            However, on page 13 of the order, lines 13-20 reveal:

            The Court declines to award attorney fees to Vizio for Oplus’s litigation misconduct. Although Oplus’s behavior has been inappropriate, unprofessional, and vexatious, an award of attorney fees must take the particular misconduct into account. This case has been fraught with delays and avoidance tactics to some degree on both sides. However, Vizio is right in using Oplus’s inconsistent statements to strengthen its arguments on summary judgment. At each step of the case, Vizio’s credibility inevitably increased while Oplus gathered rope to hang itself.

            Seems quite the sort, and makes it appear that Leopold is wrong.

            Feel free to apologize to Prof. Crouch and myself at your convenience.

          11. “This is an objective understanding that can be reached.”

            I thought we were talking about “objective differences” not “objective understandings”. Do you know of any “objective differences” or not?

            “Tell me 6 if you understand first that there is a controlling law as to the exceptions to the printed matter doctrine, and then what that controlling law means.”

            First that sounds a bit “subjective” to me as it is only yours and some other folk’s “understanding” at issue.

            But nah, I not only do not “understand” that there is such “controlling” law. I “understand” that there are some cases that you’d like us all to belieb are “controlling” in certain situations though.

            I also “understand” that I literally just got done hypothetically dumping a case on the hypothetical pile of abandonments that was chock full of hypothetical claims that, according to your “controlling law” view of printed matter should have been peachy keen. I’m talking some hypothetical 20 pages of claims, that started out with like 35 huge claims. The lawyer, a hypothetical purported established expert at citing such “controlling” law, didn’t even cite it once that I recall in several hypothetical rounds of prosecution. So that is how much such caselaw “controlled” in that hypothetical case. I venture a hypothesis that when the PTO pushes back correctly that caselaw controls about as much as a tiny gust of air. It isn’t that it couldn’t control something, it’s just that the effects are rather small and not really noticeable if the other side gets their sht together.

          12. 6, your desire to call the correct reading of law as ‘subjective’ does not make it so.

            You march your lemming march to the purposeful obfuscation because you hear the tune of your belief system.

            It is sad to see you so readily throw away your critical thinking skills (what little there may be), and see you post as if your examiner actions accord with the objective rule of law – as it is.

            Malcolm’s propaganda is meant to sound like what he preaches is law and not merely his hopes for a policy change – and you buy it hook line and sinker. You want an objective difference? The objective difference is what is law now versus what law would need to be changed to for Malcolm’s view to be actual reality. You hear the RQ/HD and clench tight your eyes.

          13. “6, your desire to call the correct reading of law as ‘subjective’ does not make it so.”

            Perhaps not my desire. But my actually doing so irl does.

          14. ” and see you post as if your examiner actions accord with the objective rule of law – as it is. ”

            I never said that they were, or posted in such manner. Whatever the “objective rule of law” supposedly is, I do not pretend that all of my “examiner actions” accord with such. Indeed, my “examiner actions” do an end run around what you subjectively consider to be “the objective rule of law” quite often. By design.

            “Malcolm’s propaganda is meant to sound like what he preaches is law and not merely his hopes for a policy change ”

            I’m unaware of him ever stating such. In fact I can think of a number of occasions, indeed in this very thread, that he has noted that there is some nonsensical judicial blatherings on various topics that might lead one to think “the law” is otherwise.

            “and you buy it hook line and sinker.”

            I buy MM’s views? On what subjects specifically? Because me and him differ quite a lot. Are we only talking about the “exceptions to the printed matter doctrine” because if so, I think me and him think about that rather differently. He thinks the existing what you call “da law” is simply bunk. I feel like there may or may not be a place for a legitimate exception to the printed matter doctrine (though I’m rather dubious of this proposition), but I just don’t think it is involved what so ever in routine computer cases. And when dealing with such cases I do an end run around the “PMD” issue generally speaking, and just tossing it in for flavoring if at all. So how is that my buying his position?

            ” The objective difference is what is law now versus what law would need to be changed to for Malcolm’s view to be actual reality. ”

            Ok, so the pretty much the only “objective difference” is just a difference between on what you consider to be what the law is now (aka your subjective opinion, perhaps even shared by some members of the judiciary, subjectively also) where you stamp your foot about it being “the law” unquestionably, and what “the law” would need to be for MM’s subjective views to be “actual reality”.

            Ok, well I think we’re at least making progress. Your writing things out longhand helps to shed some light on what your malfunction is. An inability to tell what objective things are and what subjective things are, regardless of how many people accept what a given subjective thing is. Do you think that generally sums it up pretty good?

          15. Do you think that generally sums it up pretty good?

            No.

            Again – the law is not subjective. That Malcolm tries to twist it to meet his desired ends does not make it so (and the point of your lemmingness is the anti-software patent point – sure you can disagree on other matters, but the point under discussion here is what you should pay attention to).

          16. 6 reveals too much with “Perhaps not my desire. But my actually doing so irl does.

            Yes 6, your actually twisting of the law is subjective. Just because you can ‘do so’ does not make the real law less objective. Your ‘doing so’ is the making subjective.

            However, the correct reading of the law remains objective – no matter how much you wish otherwise and no matter how much subjectiveness you attempt to put into your irl reading.

            Guess what 6? Your ‘irl’ readings of the law with your subjectiveness inserted is simply a wrong reading of the law. Objectively wrong.

            Your ‘belief’ system blinds you to this. You hear the call of Malcolm and march up that hill because your belief system matches the lemming call of the desired law that does not match the actual objective law.

          17. “Again – the law is not subjective.”

            K, if I ask Judge Newman on Wed whether the law is subjective or not will you belieb her if she tells you that in many areas, especially areas not explicitly governed by statute, it is?

            “Just because you can ‘do so’ does not make the real law less objective”

            I disagree when it comes to things outside the statute. Courts have been a flip floppin’ all over the place with regards to what the “law” actually is here in the last few years in the event you haven’t noticed. The only reason that this can even occur is because “the law” is subjective, at least for people not having to write a legal brief AS AN OFFICER OF THE COURT. That’s the crucial difference that I think you might be mistaking. For an officer of the court, the law is supposed to be taken as given by their courts. People outside the court system, who are not officers of the court, are free to hold their own beliefs about a. what the law actually is, regardless of what x judge on x appeals board/court said or decided and b. what the law should be. Likewise, officers of the court can do the same outside of their responsibilities to the court.

            “Your ‘doing so’ is the making subjective.”

            Yes of course, but it isn’t just me doing it. Hundreds or thousands of other people doing it as well, all of which together make it subjective.

            “However, the correct reading of the law remains objective – no matter how much you wish otherwise and no matter how much subjectiveness you attempt to put into your irl reading.”

            Well idk about that. When it comes to “the correct reading” of a statute, sure, usually that’s fairly objective. Usually. Though not every time. That’s why we have a court system to help sort through statutory construction because a lot of it is written such that the interpretation is subjective. The same is more or less the case when it comes to non-statutory “law”, except the situation is even worse because you have to factor in the facts of the case before the court doing the pronouncing, changes in the statute, etc etc. There’s ample room for subjective reading in there. Sure we could all be textualists about every little sound byte from every case, regardless of whether that case was correctly decided or not. But that’s not how things operate. So there’s plenty of room for subjective interpretation.

            “Your ‘irl’ readings of the law with your subjectiveness inserted is simply a wrong reading of the law. Objectively wrong.”

            Then you and others have a remedy if you subjectively think so.

            “Your ‘belief’ system blinds you to this.”

            Nah, not really. At worst it would be simple disrespecting the court. You know, like EG taught me to!

          18. 6 trips as he attempts to parse too finely with “at least for people not having to write a legal brief

            Think about why you waffle at that point 6 – think long and hard. If you were a lawyer you would recognize exactly why there is an ethical duty to tell the court controlling law when you are arguing outside of that controlling law.

            Again – you can have WHATEVER opinion you want to have – but when you are talking law – as law – you d@mm better be straight about it.

            As I have often said, Malcolm is welcome to have any opinion of the law as he wants and can post suggested changes to the law to make it as he would like it to be. The problem comes in how he presents his arguments – he twists what IS and is simply not intellectually honest. You simply do not get to be so subjective as to be subversive as to what the law IS. That is called dishonesty, not opinion.

          19. the correct reading of the law remains objective – no matter how much you wish otherwise

            Meet Johnny Repukkke, the first 9 year old member of the Federalist Society member. Take a bow, Johnny! Love the bowtie.

          20. Malcolm: “Repukkke… Federalist…”

            Wow Malcolm, you are really flailing something fierce here.

            You need better script writers. Maybe Francis can help you?

          21. “Think about why you waffle at that point 6 ”

            I’m not “waffling” at that point. This may in fact be the crux of your dispute between MM and even myself. You guys are officers of the court (maybe anyway), you bind yourselves to taking every little blathering of a judge as “dat law dat binds myself” or at least “law” that you must advise your clients of. Ordinary people do not do so and have no obligation to do so. The executive branch does not always do so and has no obligation to do so if they have reason not to. If you want to sit around and talk about things in the context of yourself being a lawlyer and binding yourself to taking blatherings of courts to be binding upon youself that is up to you, subjectively, to do. But you need not sit and pound your fist on the table that it is your “objective truth” or “controlling law” and tell us about such things. Such “law” only controls those that allow themselves to be controlled by it. Lawyers may feel so bound. Some judges may feel so bound. Other lawyers or judges may not, despite any such duty they may have that requires them to do so. Still other judges, say the USSC, has no obligation to feel controlled about the “law” under discussion right now, at all. And likewise, ordinary people, lawyers even perhaps when they’re not on duty and are just commenting on a blog, have no obligation to be so controlled. They are free to make their own arguments against such “law”, seek courts to change such and they can feel free to plot just that, along with indicating that such already is what the law truly is regardless of the blatherings of a court “binding” other courts or lawyers.

            Do you understand? Not everyone is “controlled” like lawyers are. They may have their own subjective opinions on what the law is. And they may seek such to be implemented in their own case. And courts can, upon a good showing, make just such a ruling.

            Seriously? How can you not know this?

            1. Seriously 6 – your view on whether dissembling is permissible does not work in your favor.

              Are you really that clueless to be arguing that dissembling on law is a good thing?

              Such “law” only controls those that allow themselves to be controlled by it.

              Yes 6 – your understanding of the rule of law is quite the joke. But some of us in this profession really do take law seriously.

              Maybe you should just let the grownups talk. You can watch your Be@vis and Bxtthead show in the other room.

            2. “Are you really that clueless to be arguing that dissembling on law is a good thing?”

              I’ve not argued such a thing. Note I don’t even use the word “dissembling” in my everyday speech as it is too pretentious even for me.

              “dissembling”

              You keep using that word. I think you need a dictionary because it does not fit in that sentence. I’m not “hiding under a false appearance” ‘on law’. I’m also not “concealing facts, intentions or feelings” ‘on law’. If you feel like I’m ever hiding under a false appearance, or concealing facts, intentions or feelings then feel free to pipe right up, I don’t mind at all.

              “Yes 6 – your understanding of the rule of law is quite the joke. But some of us in this profession really do take law seriously.”

              But sooooo wut? First the “rule of law” itself is quite subjective with everyone supposedly being for it, but everyone also having different ideas about what it entails. And second how is you and some blow hards taking “the law” “seriously” (more seriously apparently than the rest of us mind you) relevant to the instant discussion? Your subjective beliefs on the law, along with the rest of the blow hards that are taking “the law” “seriously”, are no more important than anyone else’s outside the court bro. Even there they’re of questionable utility beyond a point. In either event we be outside the court. Stop acting like this blog is a courtroom. It isn’t, it should not be, and it never will be.

              “Maybe you should just let the grownups talk.”

              I’ve got a small dog in this fight is why and “the grownups” apparently couldn’t be trusted to get the law right previous to a few years ago. Now that they’re getting their act together I am very tempted to just let them handle it. If they’d get off their hands and fix er right up in the few remaining areas needing attention I’ll happily stop agitating. There’s really only two major areas left: functional claiming and softiewaftie claims. Most business methods, obviousness issues, 112 1st issues etc. have already been taken care of (or at least the tools to take care of them have been put in place, regardless of how people use those tools) in my brief time here. I’m rather proud of “the grownups” getting their sht together a lil bit but there’s just a tiny bit left.

          22. “If you were a lawyer you would recognize exactly why there is an ethical duty to tell the court controlling law when you are arguing outside of that controlling law.”

            Right … IF. But I’m not. So I don’t. And in fact I have no ethical duty to be bound by such either. The only duty that I might have, as a person who lives on the side of I-95, in this matter, is to implement any policies of those over us people that live on the side of I-95. And I might, gasp, might, either a. do an end run around them, or b. disregard them entirely. Depending on the case. And neither does MM have any such ethical duty when he’s not speaking as an officer of the court. Though you could argue he has a duty even when speaking anonymously. Meh, idk about that either way.

          23. “Again – you can have WHATEVER opinion you want to have – but when you are talking law – as law – you d@mm better be straight about it.”

            There’s no reason for me to “dam better be ‘straight’ about it”. I have no such ethical obligation or any other sort of obligation in this matter. We’re not all lawlyers here.

          24. “Think about why you waffle at that point 6 ”

            I’m not “waffling” at that point. This may in fact be the crux of your dispute between MM and even myself. You guys are officers of the court (maybe anyway), you bind yourselves to taking every little blathering of a judge as “dat law dat binds myself” or at least “law” that you must advise your clients of. Ordinary people do not do so and have no obligation to do so. The executive branch does not always do so and has no obligation to do so if they have reason not to. If you want to sit around and talk about things in the context of yourself being a lawlyer and binding yourself to taking blatherings of courts to be binding upon youself that is up to you, subjectively, to do. But you need not sit and pound your fist on the table that it is your “objective truth” or “controlling law” and tell us about such things. Such “law” only controls those that allow themselves to be controlled by it. Lawyers may feel so bound. Some judges may feel so bound. Other lawyers or judges may not, despite any such duty they may have that requires them to do so. Still other judges, say the USSC, has no obligation to feel controlled about the “law” under discussion right now, at all. And likewise, ordinary people, lawyers even perhaps when they’re not on duty and are just commenting on a blog, have no obligation to be so controlled. They are free to make their own arguments against such “law”, seek courts to change such and they can feel free to plot just that, along with indicating that such already is what the law truly is regardless of the blatherings of a court “binding” other courts or lawyers.

            Do you understand? Not everyone is “controlled” like lawyers are. They may have their own subjective opinions on what the law is. And they may seek such to be implemented in their own case. And courts can, upon a good showing, make just such a ruling.

            Seriously? How can you not know this?

          25. “As I have often said, Malcolm is welcome to have any opinion of the law as he wants and can post suggested changes to the law to make it as he would like it to be. The problem comes in how he presents his arguments – he twists what IS and is simply not intellectually honest.”

            But here’s what you’re not understanding, he may also feel free to present that as what the law actually is, regardless of what a court blathered about. You can act like he’s ethically bound or whatever, but he’s not. He’s not speaking as an officer of the court. He has no obligation to not speak that way re re.

            Je sus, how many years have you been beating your head against this small misunderstanding of his obligations? I can’t believe that it took this many years for us to diagnose the source of your tar dation and that it is this simple.

          26. 6 with yet another character suicide: “But I’m not. So I don’t.

            Yes 6, it is quite evident that you don’t. Maybe someday you will wake up and realize that you probably should, that is, if you ever want to actually win an argument or be correct as to what the law means.

            But if you want to continue endlessly marching up that hill and stepping over that cliff in your mindless lemming way, by all means continue to post as you do.

  7. Unbelievable:

    In the letter, Ray Niro’s letter Niro apologized for “the conduct of one of our young lawyers” and that “could be understood as being arrogant to and disrespectful to the Court.” Niro indicated he has “taken remedial action” and would monitor the lawyer’s conduct throughout the next year.

    The jokes on you, Judge Phaelzer. I’m sure Ray Niro will behave completely differently next time he’s instructed by one of his clients to assert a ridiculous junk patent against a company who doesn’t even infringe.

    [Phaelzer] found that the inconsistencies in Oplus position actually helped make the Summary Judgment decision easier – probably saving attorney fees.

    Wow. Talk about completely missing the point of fee shifting.

    Of course, I look forward to the usual radio silence from the “sanctions are the answer” crowd.

    Niro also indicated that – although not an excuse or justification – that the mother of the lawyer who had spoken harshly to the court had been critically ill on the day of the hearing and had died four days later.

    Is this some sort of insanity defense? I suppose Ray had a “bad day”, too, when he decided to assert this junk against a non-infringing company. Maybe his hamster died, or somebody keyed the side of his Corvette. What a pathetic excuse for an attorney.

    But this is what we’ve come to expect. This is who the trolls and their defenders are: shameless money-grubbing attorneys without an ounce of integrity.

    1. Yeah, Ray apologized for the attorney’s disrespectful “manner” before the Court, but certainly didn’t apologize for the repeated litigation misconduct that went on for many, many, months before this associate’s bad day.

      One really nice trick – the court tells the plaintiff (represented by Niro) that it can’t have certain discovery, so Niro subpoenas another one of its clients, who had sued the defendant earlier, for documents of the plaintiff that were retained by the other client’s outside counsel. Oh wait, that other client’s outside counsel was Niro. So, as the judge put it, Niro effectively subpoenaed itself, so that it could violate the discovery order in the previous case and get access to documents that it was told it couldn’t have (but already did have). Neat, huh? Then when they were called on it, the Niro attorneys tell the judge that they were able to narrowly tailor the subpoena, because they knew what documents were there, but that they didn’t access the documents. Amazing.

      1. It’s obvious that plaintiff just wanted to go on a fishing expedition and try to get as much confidential information as possible into their hands and the hands of their patent attorneys. That was the purpose of the pathetically vague infringement contentions and their pathetic motion to compel.

        This is a huge part of the troll strategy and it’s one of the many reasons why PAEs present issues unique to PAEs. The PAE has nothing to hide because it literally has nothing except a rented office, a trash can, a website, a couple of sleazy attorneys and junk patents. If they can get confidential information about what their target company is doing or intends to do, then they can figure out what junk patent to wring out of the PTO or vacuum up from the hundreds of thousands of junk patents already out there.

        Gosh, it occurs to me that we recently discussed a similar example of discover abuse by another PAE. What a shocking coincidence. Maybe instead of the letter Niro should have just argued that “who cares about measly discovery abuse”? That seems like a popular choice among a certain grade of attorneys.

        Did everyone notice footnote 7 by the way? The patent txxbaggers just love to blow their little dog whistles:

        Oplus’ portrayal of this Court’s so-called “rogue” order are … examples of Oplus’ misinterpretations of the Court’s words.

        Too funny. Hey, Eric Guttag — maybe you and Ray can start some impeachment proceedings, huh? Clowns.

        There’s a lot more juice in the Order that wasn’t discussed by Dennis. Plaintiffs experts completely full of crxp? Check. Unilaterally filing a joint status report? Check. The whole thing is definitely worth a read.

        Even if the sanctions weren’t granted, the Order is rather merciless in its description of the, um, shortcomings of Big Ray Niro’s efforts here. And the best part: it’s with us forever on the Internet.

        Enjoy, Ray! And be sure to tell your little student associates that once these sorts of incidents get published and disseminated, they don’t go away. Ever.

        Oh, and in case anyone is confused, this is the same Ray Niro who is deeply loved over at Gene Quinn’s place.

        1. Oplus’ portrayal of this Court’s so-called “rogue” order are … examples of Oplus’ misinterpretations of the Court’s words.

          Yeah, that was amazing. How on earth can one think that it’s ever a good idea to criticize a judge’s order as “rogue,” to the very judge that issued the order?

          1. How on earth can one think that it’s ever a good idea to criticize a judge’s order as “rogue,” to the very judge that issued the order?

            If you’re a really arrogant, self-entitled individual and perhaps you harbor some backwards ideas about women, you might get it into your head that you could bully the judge into adopting your position. Something like HULK WANT BAD JUDGE TO OBEY HULK! probably sounds pretty good to a bunch of True Believers in an airless room.

          2. “Yeah, that was amazing. How on earth can one think that it’s ever a good idea to criticize a judge’s order as “rogue,” to the very judge that issued the order?”

            You wonder that, but I’ve had somewhat similar before myself.

            1. With all due respect, 6, you’re not a judge.

              Not that attorneys/agents should be disrespectful of examiners, but if the examiner’s analysis is bs then I will call the bs out. In those cases my response isn’t really for the examiner anyway.

    2. Well, it’s entertaining the the lawyers are crooks and incompetents who blame their tantrums on their families and their sensitive feelings.

      But that isn’t really important here. Defendants are forced to spend billions every year defending meritless and frivolous patent cases. Trolls and their attorneys are using the cost of such suits to build an industry of extortion against companies that can’t defend cases, even when the abusive nature of those cases is obvious to any PHOSITA.

      This case isn’t any worse than typical actions we see everywhere and there’s no reason Vizio shouldn’t be subject to the cost of litigation just as much as any other innocent accused on a ludicrous theory. This is a lot like special pleading for Vizio just because its unjust accusers are more fun to read about.

      Almost all the high profile cases are just as ridiculous as this one. The recent Apple v. Samsung, Microsoft v. Motorola, WildTangent, Alice, and NewEgg cases are no more or less silly on the merits.

      Really, losing plaintiffs should pay all fees by the default rule in cases where patents are involved. The Goodlatte legislation is a good start.

      1. Your comments don’t comport with reality. The judge found that the claims were not baseless. So it’s not a “ludicrous theory”.

        How is it a “ridiculous case” when it has basis in the facts and law, as found by the judge?

        1. The judge found that the claims were not baseless.

          At least one patent was anticipated. Based on prior experience, I’m guessing that was a slam dunk.

          As best I can tell, there was no legitimate infringement case but something more like a hail mary indirect infringement argument of the sort that could be made by a computer method patent-wielding patentee against just about anybody who provides a computer-implemented service. That argument, as we know, was tanked on summary judgment.

          The reason the judge didn’t find it “baseless” is probably only because Niro managed to cite some case law that hasn’t been overturned yet.

      2. I think that sanctions are not applied to discovery abuses nearly enough; that’s what causes them. You can often gain an advantage by simply not complying with the rules of the court and making your opponent do crazy stuff like make motions to get orders to force you to do what the rules say you have to do. Magistrates hate those motions… instead of the party causing the trouble, LOL.

      3. even when the abusive nature of those cases is obvious to any PHOSITA

        Um, Owen, you are aware of the legal meaning of PHOSITA, right?

      4. Owen, “meritless and frivolous.”

        Are these two different things?

        Do you believe companies should be awarded attorneys fees in any case they win regardless of merit of the initial cause of action, regardless of the cause of action, regardless of the plaintiff?

        1. I was thinking along these lines when I wrote:

          Meritless – a claim which has no merit, no validity as an argument, no logical rationale

          Frivolous – extremely unlikely to have effective results, a case that has no significant chance of winning in court

          Yes, they are different. At the CAFC, for instance, utterly meritless cases are often successful.

          Do you believe companies should be awarded attorneys fees in any case they win regardless of merit of the initial cause of action, regardless of the cause of action, regardless of the plaintiff?

          And no, I don’t believe that. A rule about halfway between you write and what we have has been successful in reducing abusive litigation in the UK, though.

          What I suggest is that plaintiffs in patent cases only should be responsible for both sides’ attorney’s fees when they lose.

          Patent cases are characterized more than typical cases by very expensive and unpredictable litigation where plaintiffs can extract large settlements by the mere threat of litigation expense and risk. Patent cases also usually involve a special privilege to sue being sprung on innocent businesses that have not received any quid pro quo. Finally patent cases often place the burden on innocent defendants to correct improperly issued government privileges that should be the responsibility of the government and patentee to write and grant correctly from the beginning.

          Because of those conditions, it would benefit the system for plaintiffs to compensate successful defendants.

          1. Owen’s “in the UK” explains a lot.

            innocent businesses that have not received any quid pro quo

            What a joke. You are not innocent if you are guilty of patent infringement. You do know what strict liability means, right Owen? And why would you want Quid Pro Quo when you are the party who has not provided any Quo?

            Wow, I see why you cheerlead Malcolm all the time – you are clueless.

          2. Owen, let us take your post in small bites.

            If a plaintiff with a case that has merit on filing loses and has to pay the defendant’s attorneys fees, do you agree or disagree that the ability to pay the defendant’s attorneys fees becomes a significant factor in the decision to file in the first place particularly with respect to smaller companies and individuals who do not have a significant amount of money but do have an apparently meritorious cause of action?

            And, assuming that the small firm or individual simply cannot afford it the risk of loss and will not file a lawsuit even with a meritorious claim because they cannot afford to lose, what do you think the attitude of the wealthy will be when approached with a complaint by an individual or a small company?

            1. Ned,

              I am pretty sure that you would agree with me that the only reason why the ‘who‘ is important to be known is for the transgressor to be able to judge the enemy and make a business decision whether to trample the patent rights or ‘settle up.’ That is the only sense of the “competitive business” aim in the Office and White House promulgated laws (passing as rules).

              I provided the analogy from contract law of “efficient breach” and no one has yet offered a counter argument. At ‘worst,’ patent infringers will be made to pay a royalty (can you say compulsory license?) – at ‘best,’ they will just ignore the rights of others based on convenience.

              Justice Story is spinning in his grave at the latitude that the Infringers’ Rights groups have.

            2. anon, I am replying to your post where you said,

              “I am pretty sure that you would agree with me that the only reason why the ‘who‘ is important to be known is for the transgressor to be able to judge the enemy and make a business decision whether to trample the patent rights or ‘settle up.’ ”

              Exactly.

              I agree.

              Totally.

            3. The point of all of these rules/laws that are bought and paid for by the Google, IBM, Microsoft et. al. consortium is to increase the efficiency with which they can run over smaller players. They’re the ones buying all of the legislation and press, why wouldn’t they be tilting everything in their favor?

      1. “Really?”

        What’s that? Your radio appears to not be transmitting anon! Go ahead, give us an earful about sanctions being the answer!

        1. They are 6 – but they need to be applied.

          Somehow your radio receiver must have jammed and you missed my comment here about how I have already said as much in agreement with Chief Judge Rader.

          Pay attention before you post.

          1. “They are 6 – but they need to be applied.”

            Ok, so if that is so, and we are agreed that it is, and if the evidence indicates the judiciary is unwilling or deems itself unable to do so then what is the remedy for the situation? Legislative action directed solely to litigation misconduct?

            1. K, so now are you going go to all apoplectic spazoid spitting about the founders disliked litigation misconduct and how such is fundamentally erosive of property rights, calling anyone stating they don’t think legislative action is appropriate a nazi/rapist/racist etc. etc.? Or are you just not as passionate about solving real problems that everyone agrees are problems as opposed to problems that many other people think is a problem even though you don’t? Maybe you’re just not in the mood today?

            2. 6 mis-characterizes with “you going go to all apoplectic spazoid

              Nothing of the sort 6. My posts have been calm, but firm. Just because my posts are powerful and correct does not mean that you should get your undies in a bunch. Deal with the substantive points that I have made.

              If you can.

            3. Just because my posts are powerful

              Yeah, they’re really “powerful.” Maybe not quite as powerful as the meds you’re on, but still … really powerful. I was super impressed before by their power, but I’m even more impressed now that you reminded everyone of their awesome power.

              Please keep doing so. It makes you look super powerful. It doesn’t make you look at all like a narcissistic sociopath.

            4. “That – my friend – is an objective truth.”

              Be sure to capitalize the T in “truth” brosef.

              “but because the word is irrefutably correct when it comes to machines, manufactures and what Congress explicitly listed as patent-eligible subject matter. ”

              Well if that is so then you don’t need to drone on and on about it, or bold it, or set it off by itself. Just state it once and let that be that. Move onwards with your life and let the discussion move onwards. We’ve all heard your position, so you don’t have to tell us again and again.

              “Not one anti-software patent person yet has been able to refute the legal and factual nature of software as a man-made manufacture and machine component created for utilitarian purposes and thus falling directly into a patent eligible category.””

              Well except for all of them of course.

              “as power can come from might and oppression of others – but in the legal world, power comes from alignment with the actual law. I have that power all the time. And that is real power.”

              Power does not “come from” “alignment” with the actual law in the “legal world”. At best, the power “comes from”, or rather is “borrowed from” a judge’s power to use force or other means to have their declarations carried out or a threat to do the same. And if you think otherwise it is because you do not understand power, because you’ve never had any. I note you have a hard time pointing to any specific instances you’ve exercised your “power”. Though I can tell you that I’m in fact exercising mine as we chat.

              There is nothing bad about never having had any real power anon, most people don’t. And I sure as f didn’t ask for it.

            5. 6 (again) misses with “ Just state it once and let that be that

              I might – if you would stop dissembling and posting otherwise. Why the incessant posting otherwise 6? Goose and gander question right back at you.

              Like I said – you do have some power over the ‘droning” that you QQ about. Get the law right, and you won’t have to hear from me.

              Another 6 goof: “Well except for all of them of course.

              Oh really? Show me one instance of the anti-software patent people incorporating the valid points I have made into the discussion, and yet being able to prevail in their wayward views.

              It.
              Has.
              Not.
              Happened.
              Once.

              Lastly, your view of power is sadly immature. Compelling by force or threat of force is not the only power. I think that you were beaten up too often growing up as you seem to be stuck in this immature mindset.

            6. “I might – if you would stop dissembling and posting otherwise”

              No. 1 why do you keep using the word “dissembling” regarding me? I’m not concealing my true motives beliefs or hiding under a false appearance or anything of the sort. If you think otherwise, tell me what you think it is that I’m doing in dessembling fashion specifically. As to my “posting otherwise” mmm, I might “post otherwise” but at least I don’t just recycle my own comments and post the exact same thing. I just give my views on a specific new case or whatever that comes up on the blog. And what are you talking about “incessant posting otherwise”? When do I incessantly post “otherwise”? On what specifically? I don’t usually do that, its you and MM that sit around and just naysay each other. I give my view on a new case, sometimes I even note that the problem is with the courts having taken a different view on x.

              “Like I said – you do have some power over the ‘droning” that you QQ about. Get the law right, and you won’t have to hear from me.”

              Again, I get the law “right” for me, just as everyone does. Not for you. Got it? It’s subjective. What might be objective is what you, or lawyers, must feel bound by. I’m not a lawlyer, I have no need to feel so bound.

              “Show me one instance of the anti-software patent people incorporating the valid points I have made into the discussion, and yet being able to prevail in their wayward views.”

              I’ve “incorporated” the “valid points” you have “made” into the discussion here. And I “prevail” in my “wayward views” every single case that comes before me. I’ve even incorporated the “valid points” (or at least your arguments) into various cases that come before me. To date, I’m still prevailing in all of them. Though I do have quite a doosey coming up. It’s the first industrial software case I’m having to take care of. I’m kind of torn, should I give them a pass along the lines of the compromise I’ve noted elsewhere, or not? That is the question. And so far I’ve decided not to.

              “Lastly, your view of power is sadly immature.”

              That may be. But until you get some I’m afraid I’m not going to be able to take your word for it.

              “Compelling by force or threat of force is not the only power. ”

              You can also argue that there are forms of soft power, which I kind of feel is distinct from “power power”, real power, shall we say. Sure persuasion etc. are fine too. But that’s not what I’m talking about here.

              “I think that you were beaten up too often growing up as you seem to be stuck in this immature mindset.”

              For like the millionth time man, I was the bully. I was the ringleader many times in my youth. That’s why I have a passing familiarity with brute power. Now I mean, as an adult in the new “anti-bullying” society we have now I guess I can be a little ashamed, but not much, thems were different times.

  8. Here’s the ridiculous functionally claimed computer-implemented junk (nobody could have predicted) that’s now being asserted against by “Pragmatus Telecom” (related to the shell “Pragmatus AV” and likely controlled by Intellectroll Ventures) which employs one bottom-feeding attorney and a bottom-feeding patent agent (and probably some third party to maintain their website):

    US8438314

    1. An automated call distribution system comprising a server and a call center, the server providing network service to a customer terminal, with the server being operable to receive data provided by the customer upon selection of a remote help option provided from one or more pages downloadable to the customer terminal where the data provided to the server includes a contact channel through which the user of the customer terminal can be reached and an Internet Protocol (IP) address;

    the server being operable to receive the data and forward the data, including the contact channel and IP address, to the call center;

    the call center being operable to receive the data from the server and automatically establish communication between the call center and the user of the customer terminal through the contact channel specified in the received data and wherein the established communication is based at least in part on the IP address within the received data.

    Heckuva job, PTO.

    You can read more about these low-life money-grubbers here:

    link to patentexaminer.org

    1. Nobody could have predicted that you would vomit your personal anti-software patent crusade over another thread unrelated to that topic, digging up a post from circa 2011.

      You are a sad and venomous individual. It may very well be too late for you to seek help.

      1. digging up a post from circa 2011

        Less than three years ago, in fact. Has there been some material change in the way that Smegmatus Telecom operates?

        thread unrelated to that topic

        Uh … what? Dennis identified the patent in question in his post. Please put down your referee whistle, Junior. The dog whistle is so much more becoming, after all.

      2. This thread is unrelated to that topic? Because I thought this thread was related to the litigation and the litigation involves some softie waftie claims, as per usual in such instances.

        This case could be a poster child it seems to me.

    2. MM, that system claim was effectively a method claim. Method claims do not claim structure, but steps. Steps are described functionally.

      Most computer implemented inventions are of this variety — methods. The Alice majority treated them such regardless of claim form. I think this right.

Comments are closed.