Federal Circuit Splits on Venue Transfer Issues

By Dennis Crouch

In re Apple Inc. (Fed. Cir. 2014); In re Barnes & Noble (Fed. Cir. 2014)

In a pair of decisions, the Federal Circuit has denied two different petitions for writ of mandamus that sought appellate oversight in the transfer motions. Both cases involved identical split panels with Judges Reyna and Prost in the majority (denying mandamus) and Judge Newman in dissent. Over the past several years, a number of § 1404 transfer petitions have been filed at the Federal Circuit following the court’s 2008 TS Tech decision. See, In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008).

In both cases here, the majority found that the movant had failed to “meet its exacting burden to demonstrate that the district court was clearly and indisputably incorrect in concluding that the case should not have been transferred” by the District Court judge.

Judge Newman’s dissents are interesting she writes in Apple:

The plaintiff, Core Wireless Licensing, S.A.R.L., is a Luxembourg company having one employee. Core Wireless maintains a wholly-owned subsidiary, Core Wireless USA, a Texas corporation with 6 employees who live in or near Plano, Texas. Core Wireless USA’s employees manage Core Wireless’s patent portfolio, including any licensing agreements deriving therefrom. Neither Core Wireless nor Core Wireless USA makes, uses, or sells the patented subject matter in Texas or elsewhere.

The accused products are versions of Apple Incorporated’s iPhone and cellular iPad products. Apple has been headquartered in Cupertino, California since 1976. Apple’s management and primary research and development facilities are also located in Cupertino where Apple employs over 13,000 people. The record also states that the research, design, and development of the accused products took place in Cupertino and that virtually all Apple business documents and records relating to the research, design, development, marketing strategy, and product revenue for the accused products are located in or near Cupertino. Additionally, Apple has stated that its foreseeable witnesses with knowledge of the research, design, and development of the accused products reside or work in or near Cupertino.

Refusal to transfer this case should be reversed, and the writ of mandamus should issue to account for the extreme imbalance of convenience as between California and Texas.

My colleagues defend the district court’s conclusion that it was unable to evaluate the convenience of witnesses in its transfer analysis because Apple failed to name its witnesses. The district court has greatly mischaracterized Apple’s proffered evidence. Apple may not have identified specific witnesses or singled out individual documents; however, the evidence proffered makes it clear that all relevant Apple witnesses and documents are located in the Northern District of California. The evidence also shows that the suppliers of the accused components are located in California—Qualcomm Incorporated is based in San Diego and Intel Corporation is based in Santa Clara. Under a proper transfer analysis, these facts lead to only one conclusion—this case should be transferred to the Northern District of California.

This case is analogous to In re Genentech, 566 F.3d 1338 (Fed. Cir. 2009). In that case, we granted a petition for a writ of mandamus directing the court to transfer the case to the Northern District of California because the Eastern District of Texas had no meaningful connection to the litigation. Such is the case here, as nothing else ties this case to Texas.

In Genentech we observed that there were “a substantial number of witnesses with material and relevant information residing in either the transferee venue or the state of California who will be unnecessarily inconvenienced in having to travel to Texas to testify.” 566 F.3d at 1348. We further noted that two of the three parties were headquartered in the Northern District of California or had facilities in San Diego, California, realizing that this would greatly reduce any transportation of documents related to the accused products. Id. We also explained that the Northern District of California would have the authority to compel many witnesses to appear at trial if necessary. Id. The similarities between the facts of this case and Genentech are striking.

In Genentech we also explained that “[i]n patent infringement, the bulk of the relevant evidence usually comes from the accused infringer. Consequently, the place where the defendant’s documents are kept weighs in favor of transfer to that location.” Id. at 1345 (quotation marks omitted) (citation omitted). There is nothing to suggest to the contrary in this case.

Finally, I am struck by how heavily the local interest factor favors the Northern District of California. Apple is a robust company that supports the local economy of Cupertino, California, employing over 13,000 people. Core Wireless, on the other hand, is a non-United States corporation with one employee that exists solely to license its patent portfolio. To carry out this task, Core Wireless employs 6 people through a subsidiary in Plano, Texas. Apple’s impact on the local economy in the Northern District of California is clearly much greater than that of Core Wireless in the Eastern District of Texas.

Thus, although transfer is within the sound discretion of the district court, “in a case featuring most witnesses and evidence closer to the transferee venue with few or no convenience factors favoring the venue chosen by the plaintiff, the trial court should grant a motion to transfer.” In re Nintendo Co., 589 F.3d 1194, 1198 (Fed. Cir. 2009). This is such a case. From my colleagues’ denial of the petition, I must, respectfully, dissent.

Judge Newman’s dissent in B&N is similar:

Until just prior to filing this and 19 other pending infringement suits in the same forum, the plaintiff B.E. Technology, LLC was not registered to do business in the state of Tennessee. The company is run and operated by the patent owner out of his home. The plaintiff has no other employees, and does not make, use or sell the patented subject matter in Tennessee or elsewhere.

The defendant Barnes & Noble has a large office in Palo Alto, California, where it employs over 400 people. The record states that Barnes & Noble employees that are most knowledgeable about the design, development, and operation of the accused product work in Palo Alto. The record also states that substantially all of the documents relating to the development, design, and components of the accused product are located in Barnes & Noble’s Palo Alto office, including documents relating to device and component specifications, design drawings, contracts with key commodity suppliers and software development plans.

Although Barnes & Noble’s accused product is sold nationwide, the Barnes & Noble evidence relevant to this litigation is located in Northern California. Refusal to transfer this case should be reversed, and the writ of mandamus should issue to account for the extreme imbalance of convenience as between California and Tennessee. Although the sole employee of the plaintiff may live in Tennessee, we are required to consider not only the connection of the parties with the plaintiff’s choice of forum, but also whether the disparity of convenience is so marked as to outweigh the plaintiff’s traditional right to choose the forum. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981) (noting that “the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient,” and thus “a foreign plaintiff’s choice deserves less deference.”).

Transferring this case would not simply shift the burden of inconvenience to B.E. Like the district court, my colleagues ignore the likelihood that a substantial number of witnesses, including non-party witnesses with relevant and material information regarding the prior art, are located in the Northern District of California, while only one witness is in the Western District of Tennessee. Thus, the convenience of two venues at issue in this case is simply not comparable. Moreover, all of Barnes & Noble’s evidence relating to the accused product is located in the Northern District of California, making it easier and more convenient to try this case in the transferee venue. See In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009) (“‘In patent infringement cases, the bulk of the relevant evidence usually comes from the accused infringer. Consequently, the place where the defendant’s documents are kept weighs in favor of transfer to that location.'” (citation omitted)).

Our previous transfer cases well illustrate that the plaintiff’s choice of forum here should be accorded minimal deference. In analogous circumstances to this case, this court in In re Nintendo Co., 589 F.3d 1194 (Fed. Cir. 2009) and In re Hoffmann-La Roche, 587 F.3d 1333 (Fed. Cir. 2009) ordered transfer from the plaintiff’s chosen forum based on “a stark contrast in relevance, convenience, and fairness between the two venues.” Nintendo, 589 F.3d at 1198; Hoffmann-La Roche, 587 F.3d at 1336; see also In re Genentech, 566 F.3d 1338 (Fed. Cir. 2009). More recently, in In re Microsoft Corp., 630 F.3d 1361, 1364 (Fed. Cir. 2011) and In re Zimmer Holdings, Inc., 609 F.3d 1378, 1381 (Fed. Cir. 2010) we rejected the attempts of plaintiffs that do not practice their patents to rely on mere artifacts of litigation.

The reasons for transfer of the present case are just as compelling as for this precedent. Consistency of judicial ruling is no less important in procedural and discretionary matters than in questions of substantive law. See United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C.J.) (“But a motion to [the court’s] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.”); see also Van Dusen v. Barrack, 376 U.S. 612, 643 (1964) (“The matters to be weighed in assessing convenience and fairness are prevasively shaped by the contours of the applicable laws.”).

The fact that the transfer decision is within the sound discretion of the district court does not mean that applicable legal principles may be ignored. See Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005). Consistency and objectivity are essential. Accordingly, “in a case featuring most witnesses and evidence closer to the transferee venue with few or no convenience factors favoring the venue chosen by the plaintiff, the trial court should grant a motion to transfer.” Nintendo, 589 F.3d at 1198; see also Reese v. CNH Am. LLC, 574 F.3d 315, 320 (6th Cir. 2009) (stating that the court would reverse a district court’s balance of the transfer considerations upon a finding of a clear abuse of discretion). This is such a case. From my colleagues’ denial of the petition, I must, respectfully, dissent.

144 thoughts on “Federal Circuit Splits on Venue Transfer Issues

  1. Well it looks like the PTO went ahead and implemented the completely made up in the minds of the PTO administrators “factors” test for natural phenom and lawls of nature exceptions. They’re basically just copying their old script from abstract ideas. I don’t really see how this affects the actual law we’re supposed to be implementing though.

      1. “I am not really shocked.”

        Perhaps you’d be good enough to tell us all how pto “guidelines” affect the law that we’re supposed to be implementing.

          1. “LOL – yet again 6 wants someone else to do his job.”

            My job doesn’t involve pto guidelines affecting the law we’re supposed to be implementing. At least that’s what your old pal NAL, an officer of the court, used to go on and on about. I mean, maybe she’s a liar, maybe she isn’t. But it’s you saying that.

            1. It is your job to understand the guidelines.

              Do you?

              Of course, understanding the guidelines does in fact mean that you should understand the law so that you could tell (or not) whether the guidelines should be followed.

              No one ever said your job was easy. But it is still your job.

            2. “It is your job to understand the guidelines.”

              I understand the “guidelines” ya re re. I also understand that they are guidelines. I also understand that guidelines don’t affect the law we’re supposed to be implementing.

  2. Alice argues the “abstract ideas” exception is limited to “fundamental truths” (math) that are necessarily available to all.

    CLS Bank argues that patents on business methods and trade, they call “fundamental economic concepts,” must be available for all.

    Both agree that patenting fundamental concepts that must be available for all is what the decision here must turn on.

    There case is going directly to the heart of the matter it appears.

      1. The court does not have to decide that question. They do not have to rule broadly, just on economic methods, aka, business methods.

        The Steven minority almost had Scalia last time. This time, I think he joins.

        While I think the claims here are going down 9-0, we might have a 5-4 split on the reasoning.

        1. On what basis, Ned, given Congress explicit words both pre- and post-Bilski (and Bilski itself) could you even begin to support this view of yours?

          You would still require a re-writing of explicit words of Congress to put into effect your illegitimate attack on business methods.

            1. Ned, a question met with a question:

              Do you realize that your “disembodied” question is a thin (sheepskin) covering for the point already shared by the Supreme Court (that point being:
              Bilski: MoT not necessary.
              Prometheus: MoT not sufficient)?

    1. Well I haven’t seen them argue thusly but I hope you’re correct in that the case will get to the meat of the matter. Because that is where Alice is most likely to lose.

    2. And just when you think you have seen everything, along comes the ACLU brief. While I appreciate that “ideas” are subject to 1st Amendment protection, I didn’t know that economic practices at the concept level were protected speech. I struggle to see the connection.

      link to patently.wpengine.com

    3. And now for another view, the view advanced by Stevens in Bilski: Useful Arts.

      link to americanbar.org

      Tony Dutra, editor of BNA, argues that the search for when enough has been added to an abstract idea to become patent eligible is elusive and is otherwise not the right question. The problem here, he argues, is that a business method is not within the useful arts.

      The brief on the whole is excellent.

    4. RichRelevance argues that the lower courts have been asking the wrong question when a computer, system or article is claimed, whether the computer implementation is “meaningful.” The brief argues that such a focus allows one to patent an abstract idea: any computer, any software, any way, while teaching nothing specific.

      The brief also argues that a robust 101 is critical to provide an earlier end to costly litigation over ineligible patents.

      1. robust 101 is critical to provide an earlier end to costly litigation over ineligible patents

        Nothing new there: the desire for an Atom Bomb of denying just patents. Right from the Infringers’ Handbook – page 1.

  3. It’s weird that I am in total agreement with Judge Newman; normally I don’t find myself in that position.

    I think most people underestimate the role of forum shopping in creating the kinds of distortions that have damaged the prestige and efficacy of our patent system. As an IP litigator of almost 20 years, I’d trade almost every proposed substantive “reform” measure bandied about in Congress over the past several years (including meaningful statutory damages reform) for a mandatory venue statute that restores the original meaning of 28 USC 1400(b). That would do more to curb the filing of unwarranted troll suits than anything that’s being proposed.

    1. Lode_Runer, one it was a rush to the circuit least friendly to patents or most friendly, depending. Today, it is to the forum with the most experienced patent judges or swiftest docket, or the least, depending.

      Also, concentrating related cases in one forum, if not the same case, has to be good for the patent system, not bad.

      National uniformity? That was not the only reason for the creation of the Federal Circuit. The movers and shakers wanted one court, in Washington, that they could stock with their fellows. One such was already on the CCPA, a man of the bar, a mover and shaker.

      If any should doubt that the movers and shakers are running things in patent law, just look at the AIA.

      1. ” That was not the only reason for the creation of the Federal Circuit. ”

        According to Judge Newman the creation of the federal circuit was naught but an afterthought. A whisper of a notion, and indeed, one gone ultimately awry.

        1. 6, “awry?” Actually, it has seemed to work largely as intended. For one thing, it kept other circuits from weighing in on patent law. Part of the thinking here was to avoid the “real villain” in the minds of the movers and shakers, the Supreme Court, who used conflicts among the circuits to take cases.

          1. The Supreme Court’s ability to take any case – whether from the Circuit or from the CAFC is completely the same.

            Ned, you are doing that imagining thing again.

          2. “Actually, it has seemed to work largely as intended.”

            Sure Ned, they got some of the small stuff right, bravo. And they even managed to consolidate the issues. Bravo again. Now if they didn’t f up some of the biggies then we’d be all good.

            “minds of the movers and shakers”

            You keep talking about movers and shakers. Again, you might want to consult with Newman re all the supposed moving and supposed shaking.

            I mean, I’m just faithfully reproducing her take on the matter.

            1. I’m just faithfully reproducing her take

              LOL – 6, didn’t you just get done trying to NOT do what you are now saying that you are ‘faithfully’ doing?

              Which is it? Were you lying then, or are you lying now?

            2. “6, didn’t you just get done trying to NOT do what you are now saying that you are ‘faithfully’ doing?”

              Reproduce her take on the matter? Um no, I didn’t just get done “trying to NOT do” that. I explicitly did that. God dam you’re dmb.

  4. And people wonder why it seems the FCir has schizophrenia. Newman’s spot on. There was no valid reason to not transfer either case.

      1. I think it is on his policy sheet that he follows. “3. Try to keep the most visible post on the blog one that clearly supports the positions of the Policy Sheet.”

        1. Most people would not try to have the most visible look-at-me position when they have nothing intelligent to say, but Malcolm’s QQ-fest does not stick to that rationale.

            1. From the CLS brief:

              In this respect, the only real distinction between Bilski and this case is that the use of a computer in Bilski was implicit whereas here it is explicit. In Bilski, the applicant stated that “the practice of the invention will most likely involve both computers and modern telecommunications.” Bilski Pet. Br. 7;
              see also In re Bilski, 545 F.3d 943, 996 (Fed. Cir. 2008) (en banc) (Newman, J., dissenting) (“any practicable embodiment would be conducted with the aid of a machine—a programmed computer”). This Court nonetheless held that, just as narrowing a claim to one “field of use” such as particular “markets” could not render the claim eligible, neither could narrowing it “to a particular technological environment.” Bilski, 130 S. Ct. at 3230–31.

              Giving all computer-implemented inventions a categorical
              pass under Section 101 would thus require overruling
              or at least mortally wounding Bilski. As a matter of law, making explicit the use of a computer in the claims in Bilski, or for that matter adding pedestrian use of a computer to perform the correlations in Mayo, would not have changed the
              results in those cases. In each of them, a computer could have been used—and in Bilski would in practice have been used—to improve the speed and accuracy of the claimed process. Such a limitation, however, would not have cabined the foreclosure
              effect of the claims in either Bilski or Mayo, or changed the eligibility determination in those cases. The same is true here

              It all sounds so familiar. Read it and weep, patent txxbxggers. And yes there is much more to come that will make the softie woftie crowd cry.

            2. What is so odd about these anti’s like MM is that they believe they understand the inventions and they believe that they are simple.

              Both assumptions are very wrong. Imagine: internal reflection with fiber optic cable. Why that is so easy to understand and you are trying to claim the world. The claims are abstract.

              Fact is that any invention can be invalidated under the Lourie method. And, neither Lourie nor you MM understand information processing. Why doesn’t Lourie tell us all about the paper and pencil test and all about the Church-Turing Thesis, which the twit has doesn’t even have a clue what it is. I would bet that Lourie does not even possess the capacity to even frame the Church-Turing Thesis. It would take him years to begin to understand information processing. But, his psychotic ravings filled with words that have no meaning to him are quite impressive–not. An obvious unethical thug.

            3. I don’t remember Bilski reciting a database.

              LOL. “I don’t remember Bilski reciting drinking a cup of coffee before thinking a non-obvious thought.”

              Like I said: kindergarten-level thinking.

              You are going to lose this one, bigtime. And it’s going to leave a mark. Again.

            4. Fact is that any invention can be invalidated under the Lourie method.

              Guess what? Nobody believes your ridiculous “sky is falling” non-argument and nobody ever will.

              I’ve told you before and I’ll tell it to you again: start identifying a viable compromise position for patenting software, e.g., requiring the submission of working code that will confer the recited functionality upon an actual system or computer within one of the submitted claims. Then people will take you seriously.

              Otherwise you’re just shilling for bottom-feeders, like Alice. You know, losers. Bigtime, history-making losers like Prometheus and Bilski.

            5. MM I file patent applications for start-ups that have working software. The claims could easily be invalidated under the Lourie test because any claim can easily be invalidated under the Lourie test.

            6. any claim can easily be invalidated under the Lourie test.

              Under Lourie’s test, or under your imaginary strawman version of Lourie’s test?

              I don’t doubt that many junky software claims can be easily invalidated under “the Lourie test.” That’s a feature, not a bug.

              But a non-obvious, structurally-defined and useful article of manufacture? Those remain very eligible, thank you very much. Welcome to the world of grown-up patents.

            7. Ned, that is a ridiculous definition of eligibility.

              When will you learn that we are supposed to adapt to the inventions.

              Information processing is real invention. MM you should like a rust brain.

            8. Malcolm goofs with “I’ve told you before and I’ll tell it to you again: start identifying a viable compromise position for patenting software

              Why? because a working model has not been a legal requirement for more than one hundred years? because a working model at that level of detail has never been required?

              Here’s a compromise position: base your ‘policy’ in law and fact.

              Software is manufacture, a machine component.

              It is that simple.

            9. Ned, re: “I think is clearly eligible…

              You realize that you cannot have any consistent and self-standing rationale as to why this particular software patent could be valid and continue to run away from the legal logic that I have repeatedly asked you to address in Nazomi, right?

            10. a working model has not been a legal requirement for more than one hundred years

              *yawn*

              Nobody could have predicted the teabaggers would trot out the tired “nothing can change because we say so!” argument. Nice try, anyway.

              You wish to pretend that “software” is just like everything else. That’s a loser argument. Do you really need me to hold your hand and explain why?

              I have a better idea. Let’s wait for the Supreme Court’s hand to slap you across the face. That’s forty five fingers, most of them with rings. Ouch! It’s going to be fun.

            11. correction: read “intelligently discussion” as either ‘intelligent discussions” or “intelligently discuss”

              This format could really use an edit feature…

            12. NWPA What is so odd about these anti’s like MM is that they believe they understand the inventions and they believe that they are simple.

              The “invention” (if there is one) may in fact be incredibly complicated, as Rader (and other misguided souls) have suggested in their opinions.

              But we’re talking about patent claims — a description of a method or article that the patentee will have the right to exclude others from using or making. And those claims are often very simple indeed.

              That’s part of the problem. Why should anyone be entitled to hold an industry hostage based on a simple-minded description of some dreamt of functionality, devoid of distinguishing new structure, that will take other people years of work and many millions of dollars to implement? What policy goal is being promoted by such a system? The answer would appear to be the desire for a system that destroys itself, a system that rewards grift and a system that punishes work.

              This point is very well made in CLS brief, among other positions that you’ll be reading about in detail when the Supreme Court adopts them as its own.

            13. when the Supreme Court adopts them as its own.

              Never mind the constitution or how law is supposed to work, or separation of powers or any of that “non-intelligent” stuff, there is a ‘policy’ reason why we should have new law written (implicitly, explicitly, WHATEVER) by an unaccountable few.

              Yeah – that’s ‘intelligent.’ That is, until ‘the policy’ just happens not to coincide with the desired ends, and then (and then too late) will the fact that the ends do not justify the means seem to matter to those who trot out this type of ‘policy’ control.

              Never mind law. Never mind facts. Never mind the man behind the curtain…

          1. Night, regarding “real” software, you might want to read the CLS brief.

            If you have been listening to me over the last few years, you know what the difference between real software and patents on business methods is:

            1) Real software operates on physical input or outputs; or
            2) modifies a computer by being part of it — fixed; and/or
            3) is claimed as part of a larger physical process or apparatus, or as a permanent improvement of a computer.

            One runs into trouble primarily if one claiming a business method or a claim to software where the inputs are not physical data, and/or the output are numbers that are not otherwise used for anything.

            In the words of Robert Redford’s guardian angel, “All is NOT lost.”

            1. Only Malcolm and Ned are lost with the transparent strawmen and complete disregard for law and fact.

              You said the exact same self-serving insulting garbage over and over again in the run-up to Prometheus.

              How’d that end up for you? Oh right: 9-0, never to be reversed. It left a big mark. It’s a gift that’s going to keep on giving, no matter how deep you and Gene Quinn stick your heads into the sand or scream at the sky.

            2. As I recall, you said the same type of “the end of Dhierbots” in Bilski.

              How’d that end up for you?

              As I recall, you said the same type of “Malcolm is right, because Malcolm says so” in Myriad” – refusing to understand what I told you and why I told you Myriad was going to be decided.

              How’d that end up for you?

              As for Prometheus, LOL – you have yet to square the decision without throwing your pet theory on a bonfire of Malcolm Fail.

              Yes, Malcolm, it svcks to be you.

            3. As for sticking your head into the sand, are you ready yet to answer the simple questions of law and fact that go to the heart of the software as patent eligible question yet? Or are you going to continue to dissemble and run away?

            4. And if you are going to be gung-ho for actaul models, will you be just as gung-ho for actual models for pharma patents – showing the full utility as claimed (and meeting all FDA requirements) at the time of filing?

              You do know how many items routinely fail to actually have the utility claimed and fail the FDA requirements, right?

            5. you have yet to square the decision without throwing your pet theory on a bonfire of Malcolm Fail.

              Word salad.

              One more time for you, extra slowly: you need much better arguments to justify the continued coddling of the softie woftie crowd.

              The door is closing. It has been closing steadily for some time.

              What is your compromise position? Others are working on formulating such positions. I’ve read them. What’s yours?

            6. Malcolm says too much while saying nothing with “ Others are working on formulating such positions. I’ve read them.

              Oh really? These items are ‘in work’ and you have been privy to read them? Who are they by? Vivika M? Robert? Francis? Maybe Friend(s) of the Court?

              LOL

              Word salad

              Another LOL – salad because Malcolm says so – a very Carroll spin to your inability to use your vaunted English skills to square Prometheus with the case it says is most on point and that it says is not changing, and yet you cannot even save your pet theory from your own self FAIL.

            7. “ Others are working on formulating such positions. I’ve read them. ”

              Oh really? These items are ‘in work’ and you have been privy to read them? Who are they by?

              Ned already provided you with a limk on one guy. Name ends with an “i”, as I recall. Tip of the iceberg.

              As most of us know, there are plenty of people out there happy to discuss this issue intelligently. We also know that you’re not one of them.

            8. More Malcolm self-FAIL with “As most of us know, there are plenty of people out there happy to discuss this issue intelligently. We also know that you’re not one of them.

              Says the guy who professes that intellectual honesty is not required in blog posts since this is not a court.

              Malcolm, when you spin intellectual dishonesty as ‘intelligently discussion,’ your already ZERO level of credibility will not improve.

              Put.
              The.
              Shovel.
              Down.

            9. correction: read “intelligently discussion” as either ‘intelligent discussions” or “intelligently discuss”

              This format could really use an edit feature…

    1. Sorry OT, but Dennis must be away and this came up–maybe you guys have already figured out about EFS and the AIA—but it just occurred to me. The inventors go to a meeting to discuss the invention publicly at 10 AM. The old rule was (or at least I was taught, back in the age before EFS) a provisional filed the same day protects absolute novelty (i.e., internationally as well as in the US). Now with EFS under the AIA, what happens the application is filed at 9:30 AM? Still okay, I think. But what if I file the application after the talk but before midnight the same day? Is the talk a prior disclosure even though it happened the same day? Also if the talk is on Monday and the application is filed using EFS on Sunday, is the filing date ‘really’ Sunday? I know there is the statement on the PTO website re the legal framework for EFS, but it must just be rulemaking and so of course subject to challenge as lacking statutory basis.

  5. US6628314

    Claim 11. A method of providing demographically-targeted advertising to a computer user, comprising the steps of:

    providing a server that is accessible via a computer network,

    permitting a computer user to access said server via said computer network,

    acquiring demographic information about the user, said demographic information including information specifically provided by the user in response to a request for said demographic information,

    providing the user with download access to computer software that, when run on a computer, displays advertising content, records computer usage information concerning the user’s utilization of the computer, and periodically requests additional advertising content,

    transferring a copy of said software to the computer in response to a download request by the user,

    providing a unique identifier to the computer, wherein said identifier uniquely identifies information sent over said computer network from the computer to said server,

    associating said unique identifier with demographic information in a database,

    selecting advertising content for transfer to the computer in accordance with the demographic information associated with said unique identifier;

    transferring said advertising content from said server to the computer for display by said program,

    periodically acquiring said unique identifier and said computer usage information recorded by said software from the computer via said computer network,

    and associating said computer usage information with said demographic information using said unique identifier.

    Remove the ancient concepts of “advertising content” matched to “demographic information” from this claim and it’s just conventional computer garbage.

    This is pure junk and the USPTO and the rest of the legal system should be ashamed of itself that this kind of garbage even gets filed. But rest assured, more of it is being filed and granted and asserted now than ever before. If anyone thinks what’s happening now is rotten, just imagine what it’s going to look like in 10 years if something big doesn’t change.

    1. “Alice maintains that, because a computer
      “necessarily exist[s] in the physical, rather than
      purely conceptual, realm,” a computer cannot itself
      be an abstract idea. Pet. Br. 39. There is no dispute
      that a programmed computer is a “machine” or that
      many computer-implemented claims, including
      Alice’s, are formally drawn to statutory subject
      matter. It does not follow, however, that all such
      claims are automatically patent-eligible, as Alice
      implies and some of its amici expressly contend.
      E.g., IBM Br. 5. Such an approach would blow a
      gaping hole in the judicial exception to Section 101:
      An applicant could write an eligible claim reciting “a
      computer system configured to” perform virtually
      any principle of the physical or social sciences,
      including economic concepts such as hedging and
      intermediated settlement.

      The question is not whether a computer is tangible,
      but whether—in the context of the particular
      patent claims asserted by Alice—computer implementation
      adds enough to confer eligibility. The
      plurality below properly answered that question in
      the negative.”

      Brief of CLS Bank, at 38. link to sblog.s3.amazonaws.com

      Thus, the strawman arguments of IBM and its fellow travelers are exposed.

      The CLS brief is a tour-de-force and utterly convincing.

      1. in the judicial exception

        Why, we cannot let the implicit writings of the few overpower the explicit writings of those actually chartered by the Constitution to write patent law, can we Ned?

        Do you mean brief, or manifesto?

        1. CLS argues, convincingly, that one cannot patent business methods or other such “trade” activity under the abstract idea exception. Patents covering such must do more than simply say, “compute it.”

          I predict a unanimous opinion reaffirming its prior cases and endorsing the methodology of Mayo: identify the abstract idea and then determine if enough has been added. According to the brief, one must read “abstract idea” to include more that math. It includes any business or trade method. Simply adding conventional or functionally claim computer elements is not sufficient. “Configured to” adds nothing unless something specific in the specification is set for as “corresponding structure.” Note the implicit rule of construction.

          1. Back on the (old) anti-business method Merry-Go- Round again.

            Really Ned?

            You are aware that the Court in Bilski said otherwise, right?
            You are aware that Congress, both before and after Bilski said otherwise, right?

            1. anon, according to the brief, the problem with the Bilski claims were that they covered a business or trade method.

              Not that the method was known.

              Not that the method was not implemented using a computer.

              They take Bilski, add Mayo, and come out with the an Abstract Sandwich.

          2. Ned, I congratulate you for daring to go where the Supreme Court will not, by defining “abstract” idea. Thank you. Got it. ANY business method or trade method is defined (by you) to be “abstract.”

            But those aren’t all, right? Stuff like first locating the medial axis of an object and then creating a hierarchy of bubbles on the medial axis are also abstract, right? Which is not a business or trade method.

            So the Patent Bar needs a little more help Ned. Business methods, gone. Trade methods, gone. Warmerdam-type claims, gone. What else are you categorically depriving patent protection for, so I will know how to counsel my clients?

            Also, let’s all write our Congressmen and change Section 101 to: “All ideas that Ned and his chorus define to be in “abstract” categories are not eligible for patenting. The rest of this section merely lists a few exceptions to the general exclusion against patenting modern technology in the United States”.

            1. modern technology

              LOL.

              “My bank can turn off Johnny’s credit card if I ask them too. Automatically!”

              So awesome.

              “I can save a list of movies I want a watch in electronic form.”

              Real cutting edge stuff there. Promote the progress!

              ROTFLMO

            2. Tour, have you read the brief yet?

              The brief makes a compelling case, in my view, as to why one cannot or should not patent business and trade methods. These, like laws of nature, are the basic tools of society that are too important for anyone to monopolize.

              The Supreme Court somewhat punted on this issue in Bilski when it refused to categorically exclude patents on business and trade. But I think this time they will come out an say why it is important not to grant patents in this area. I recommend you read the brief for more on this.

              The Supreme Court can address the issue raised by the claims in this case without addressing all software claims for all other applications. The Supreme Court tends to rule narrowly. This case can be decided simply by declaring that the business method before it is like that in Bilski, abstract and cannot be the subject of a patent. The question then becomes whether there is invention in the claim other than the business or trade method. Simply adding a generic reference to computer implementation is not enough.

          3. USPN 317,066 never should have issued. It boils down to covering moving stuff using wheels. Ancient abstract idea, makes no difference that it is tied to a machine.

            Also USPN 1. Covers the abstract idea of making potash, a well-known fertilizer needed for the business method of growing things to sell for money.

            1. USPN 317,066 never should have issued. It boils down to covering moving stuff using wheels.

              The teabaggers always happy to jump in with the strawman argument.

              Of course, what they’re really expressing is their belief that if they can’t get what they want, then nobody should get anything. Nyah nyah nyah!

              They are that pathetic. We saw the same whining with KSR and with Prometheus. Meanwhile, the applications keep flooding in and the patent keep being granted at record levels.

          4. Identify the abstract idea and then see if enough is added.

            Outside of abstract bizarro world of the SCOTUS that is on its face is absurd.

            Real machines. Real products being sold to real people. And, yet somehow they are “abstract.” Funny how the judges never attempt to write some claims that would be ok with them. Probably because they have absolutely no idea what they are talking about outside the bizzaro world of the abstract terms they float about.

            Kind of like how MM writes claims to inventions that are already known by him, but just can’t write a claim to what will be.

            1. Telephones are no longer “specific machines” (not that the patent eligible category is ‘specific machine’ – it is not – it is still merely ‘machine’…)

              Fast forward to 1984 and the ability to redefine reality in order to match the desired dogma.

              I am so glad that the founding fathers put their trust in writing patent law into the judiciary….

              Um, no wait…

            2. Night, but the inventors are not providing a specification for the invention claimed. They simply describe a business method and say compute it. There is nothing more in the spec, at least not in Alice v. CLS Bank.

              The patentees did not develop the method. Did not conduct it. Provided no software. Did nothing useful. Just filed a claim. That is it.

              As noted in the CLS Brief, this is the same thing as claiming whole continents when landing at a shore. The explorer cannot even describe that continent.

              In essence, these are claims to abstractions without support. There is no spec here telling anyone anything about any real invention, any real software, and any real hardware. Nothing. Just a raw claim to an unexplored continent.

            3. Ned: >>In essence, these are claims to abstractions without support.

              Here we enter bizarro world. I have read parts of the specification. It enables the claims, and I understand very well the metes and bounds of the invention from reading the specification and the claims. I am one skilled in the art of computer science. I was a programmer long ago and have a master’s degree in computer science.

              So, Ned, what you are writing is wrong. It is not how one skilled in the art would read the specification or the claims.

              Moreover, if it is true that they “did not invent anything” then go and find prior art and use 102 and 103. (Moreover, if it is true that the claims are not enabled then reject or invalidate it under 112).

            4. Night, the issue is not prior art.

              They describe a business method in the claim. They do not describe any specific software or hardware or anything else in the spec. The claim itself is self-sufficient.

              Under Morse, this is not an invention. This is an abstraction. This is like claiming an entire continent upon landing without ever being able to describe the continent. Let others explore the land. All THEY discover, is mine. Let them write the software and do the hard work. That is mine.

              One must contribute before one can receive. One does not just take.

            5. Ned, now you are saying that there invention is new. That there is no prior art. So, there goes 102 and 103. And, apparently you are giving up on 112 too. And, your assertion that they have invented nothing is on its face not true. The system they enable is quite possible for one skilled in the art to build.

              You still have LizardTech. Try not to live in bizarro world where abstractions rule without any correspondence to the real world.

              You seek the nuclear option of “abstract” to give judges and the PTO the ability to invalidate anything they don’t like. Considering that judges don’t understand the technology that is not a good idea.

            6. anon Telephones are no longer “specific machines”

              Nobody will be able to invent the telephone again! BOO HOO HOO HOO HOO!!!!!

              How sad for the patent system.

            7. MM writes claims to inventions that are already known by him, but just can’t write a claim to what will be.

              Been there, done that.

              1. A wearable computer device, where said whereable computer device is configured to receive directions to a movie, wherein said directions are sent to said computer device remotely upon a request from a wearer of said device, wherein said wearable computer device is further configured to transmit said directions to a receiver linked to a memory or processor of a robot car, wherein said robot car is owned or rented property of said wearer of said device.

              2. The device of claim 1, wherein said movie is being shown for the first time in the state in which said robot car is registered.

              Can I has patent now?

              I hope so because this is the exact kind of softie woftie junk that is filed and granted and asserted all the time. It’s just like Alice’s junk.

              Anybody can write such garbage. That’s why you see bottom-feeding patent attorneys getting in on the game. Like you.

            8. NWPA Well we all don’t have time to keep a post at the top of the blog like you.

              Says the guy with the post at the top of the blog.

              What. The. F.

            9. Malcolm misses badly with “Nobody will be able to invent…

              Patent eligibility versus patentability.

              There is a difference.

              Also, 35 USC 101: or any improvement thereof.

              These things make a difference Malcolm.

              Try to keep up.

            10. “Real machines. Real products being sold to real people. ”

              Nobody is concerned about the “real machines” or “real products being sold”. We’re concerned about the manner in which you go about claiming these “real machines” and “real products being sold”. Specifically we’re concerned about you directing your claims to abstract ideas rather than the specific “real machines” or “real products being sold”.

      2. What is missing from that statement is:

        What is the public policy for this “abstract idea” and is that public policy still valid?

      3. CLS gets it.

        What else is there to say? This stuff isn’t rocket science.

        In fact, it’s the furthest thing from any kind of science, which is exactly the point

        1. …because Useful Arts and Science are the same things…

          Um, wait, they are not. What exactly was that point again?

          /facepalm

      4. Ned The CLS brief is a tour-de-force and utterly convincing

        It’s the adults (CLS and the Supreme Court) versus the kindergartners (Alice and Rader). Who will win this battle? ;)

      5. “The CLS brief is a tour-de-force and utterly convincing.”

        You said it brosef. CLS done won this one hands down. I wish they’d have been a little more specific on the Diehr case re how the continuous monitoring led to the ability to auto-open when done but other than that, pretty perfect.

    2. MM, the real problem with these claims is that there is no invention. The Morse court observed that with an abstract idea, one did not need a specification. The expression of the idea in the claim was sufficient.

      Look at these business method or math claims. They recite an algorithm that is self-contained and self explanatory. Here is the algorithm. What else do you need? 1+ 1 = 2. Just how much of a spec does it take to describe that algorithm, or any other business method?

      Now they want to add, “Compute it,” as if that made all the difference. The computers claim are generic. Do we need a spec to describe what a computer is?

      The CLS brief made it clear that Alice had never conducted the business method claimed, nor written any software. Their spec is basically a repeat of the claim. Nothing is added. This has all the hallmarks of abstractness required by Morse.

      Selden, the great car inventor, did much the same. He never built a car. He attended a trade show. He there saw the Braydon engine and thought it would be useful in the long sought idea of a land locomotive. So that is what he claimed, but not the Braydon engine for the purpose that he saw at the show, but every gasoline engine for the purpose. For that invention, he provided no spec. Just claimed it.

  6. In Plano, Texas November 1, 2013 Chief Judge Randall R. Rader sang
    “The stars at night are clear and bright … Deep in the heart of Texas; Reminds me of the DISTRICT I love, the Eastern District, Texas!”

    You can decide if he is cajoling or applauding his audience when he later said:

    …“Another tool to facilitate efficiency is a balanced transfer policy. When litigation occurs in the most convenient and natural forum, the parties can generally attain enhanced efficiency and speed. In this connection, I commend ED Tex for its openness to find the most appropriate and efficient forum for many patent disputes. From my perspective, we are all in this battle against litigation abuse together. From that vantage point, we should not view a dispute as an entitlement of one district or one party’s choice, rather we should see the forum selection process as another global tool to achieve efficiency. In addition, given the strains on the resources of some district courts, like this one, increased transfers can even out the cases to receive the attention they deserve amidst crushing docket numbers.”…

    Keynote Speech

    *He wrote a pretty efficiently packed speech . Not relevant to this topic, but some parts of which can set you guys going at it for weeks! Questions like: Whether he is including the “judicial community” as “policymakers” in “urging…to reject (a particular) academic supposition-whether it comes from a high court or any other source…” Is he showing an anti-academic bias? Are smart phones really paradigms of patent system success. Was Gilles Rich was a hero. Will the courts actually will restore public confidence by curtailing litigation abuse. Does he discount the Legislative Branch?…

  7. Heaven forbid that there would be someone in “Podunk, Mississippi” that would actually have a legitimate patent or even a thought that the erudite and wise in California have not already had (in case you missed it, that was said with sarcasm). Substitute Indian, black, jew, woman, or other word of choice for whatever prejudice you have for the inference of someone in Podunk, Mississippi to see how offensive the presumption is.

    Second, if a person has a patent, why should they not presume it is an enforceable patent? Seems to me like most of the arguments here ought to be aimed at the patent office for granting bad patents. Patents that our colleagues (in both California and Mississippi) have argued and fought for. Would you not defend a patent for a client if that patent were being infringed?

    I do not know (and neither do you, I suspect) why the company in Tennessee was new to that state. Perhaps, a long standing resident of Tennessee formed a company to monetize his invention. Gee, I will bet that has never happened before or that any of us would not advise a client that had a patent in his/her name to form a company for personal protection and tax purposes.

    Many here carry the presumption that the large company should not be inconvenienced while the small company should be. If a start-up company barely has enough money to try to enforce the rights the PTO has granted to them in their patent, are you suggesting they should forgo justice simply because a large, infringing company does not want to be inconvenienced? I know justice is expensive and often slippery and difficult to obtain. Call me naive but I would like to think that justice is not for sale.

  8. I see references to the demeanour (swaggering) of litigants, as it varies from case to case. In a civil law jurisdiction, with no Binding Precedent, the court can please itself how it reacts to that demeanour, case by case.

    But the Federal Circuit is not in a civil law jurisdiction. Instead, it is in the Land of Binding Precedent. Given that fact, shouldn’t the court be more careful, what precedent it lays down, for that precedent will bind all future litigants, regardless of their demeanour, and however unfairly that precedent bites on those individual litigants.

    Looking in from outside, this insistence upon “evidence” to prove a fact that is as plain as daylight just makes the court absurd. Is it to be explained as, once again, a majority and dissent to oblige SCOTUS to lay down some commonsense? If so, I’m quite happy for Apple to carry the cost of having SCOTUS straighten out the law. Apple can afford it.

    In Europe there is a default that “Defendant plays at home”. Any trace of that thinking, I wonder, in the USA?

    1. With a not-zero level of trepidation (having asked previously like questions, only to be greeted with the hollow echo of silence), I ruminate out loud what MaxDrei, an avid advocate of the EP Problem-Solution approach thinks of the Timo Minssen missive, Assessing the Inventiveness of Bio-Pharmaceuticals Under the European and U.S. Patent Law, (Göteborg, Sweden: Ineko AB 2012).

      1. The Minssen PhD Thesis you mean, anon? 430 pages on the patentability of DNA inventions each side of the Atlantic, now reviewed by Wegner. Nothing to do with this thread, but thanks anyway for the feed

        Wegner quotes from KSR that the very existence of a known problem can provide a reason for combining the elements in the manner claimed. He thinks that this jurisprudence contradicts the EPO’s requirement to present the claimed technical feature combination as the solution to an objective technical problem. I, however, do not see any such contradiction. Does any other reader here?

        Where I see the difficulty is with inventors not getting to issue the subject matter that they deserve, simply because their patent attorney drafter was not practised in First to File drafting style.

        In First to File Country, obviousness is decided relative to a date (a Patent Office filing date) that is inherently posterior in time to the date on which the patent application is written. To keep the obviousness determination objective, the PHOSITA is deemed to know all the art, right up to the day before the PTO filing date.

        So, I think Prof. Wegner is simply using the Minssen Thesis to stir the pot. That’s fine with me.

        BTW, anon, I am not sure Minssen would be happy to have his excellent doctoral thesis termed a “missive”. I don’t understand why your apprehension of silence from me should give you feelings of “trepidation”. Why should my silence frighten you? You say you “ruminate out loud”, but your post is totally devoid of anything amounting to chewing the cud. You sure do have a very individual way with words.

          1. “Obviously”, anon? Are you sure of that? You might well be sure what is obvious and what is not, but whether anybody agrees with you on that must remain a mystery. That’s the great challenge of “obviously”; it’s just soooooo subjective (unless you take the EPO Approach, of course).

      1. Hey anon, I bet you’re especially fond of:

        h) The person or the person’s affiliate engaged in other conduct that the Attorney General by rule identifies as evidence of alleging, asserting or claiming an infringement in bad faith.

      2. “This 2014 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2014 Act takes effect on its passage”

        Man that’s hilarious. An emergency done happened!

      3. Does the doctrine of preemption extend to Oregon? Or maybe it does but it halts in west Portland, where the Intel offices are located.

  9. Can anybody explain why the Federal Circuit has to have exclusive jurisdiction over Mandamus’s from district courts on issues involving procedural issues that are governed exclusively according to the law of the local circuit court?

    1. Well, you could ask the exact same question for normal appeals too that are dealing with procedural issues. And even if the appeal is only related to non-patent claims, it still goes to the Federal Circuit (where patent claims were part of the complaint).

      1. The jurisdictional appeal in Microsoft v. Motorola where Microsoft sought an injunction requiring Motorola to sue Microsoft for patent infringement in Washington instead of Germany for German products was heard in the Ninth Circuit.

        It’s not a clear and universal rule that procedural issues in patent cases are appealed at the CAFC.

        link to essentialpatentblog.com

      2. May I suggest then that the Federal Circuit, out of courtesy, invite at least one circuit court judge of the otherwise applicable circuit court to sit in the panel that decided the mandamus? It would be interesting to see what would happen if he or she dissented.

        1. I believe only Chief Justice Roberts can make an inter-circuit designation like that. See 28 USC 291. From a Google search, it looks like there are procedures set up for this. Not sure if such designations would be proper as you suggest or of there has to be workload justifications, etc. It’s definitely an interesting idea though.

  10. In Apple, they defendant simply made no proof of witnesses and their location. Newman essentially argues for judicial notice to substitute for evidence.

    Who is right?

    All this really shows is that movants for transfer must actually prove up their case.

    I once was involved in a big trade secret case, the largest in all history ’til that time. The plaintiff asked to put an ex employee on ice based on “inevitable use and disclosure.” The problem was, they asked the court to assume the employee knew trade secrets.

    In the end, the court required the plaintiff to prove that there were trade secrets, that the employee knew them and that he would inevitably use them.

    Judicial notice is no substitute for proof.

    1. All this really shows is that movants for transfer must actually prove up their case.

      Or it just shows that the Federal Circuit is capable of sticking his head deeply into the sand when it wants. From the majority opinion:

      Specifically, the court noted that it was unable to evaluate the convenience of witnesses in its transfer analysis because of Apple’s failure to identify willing witnesses who would need to travel to the Eastern District of Texas or any third party witnesses not subject to the compulsory process of that court. Similarly, in light of “Apple’s vague assertions and unknown relevance and
      location of potential sources,” the district court was unable
      to weigh the relative ease of access to sources of proof factor in its transfer analysis

      In other words, it wasn’t enough to simply state the facts: Apple has its primary place of business and thousands of employees in another state, the defendant has an empty janitor’s closet in Plano. The court wanted specific names and, I suppose, a description of exactly how many pieces of paper were California, the names and address every witness that Apple was sure it would need to testify, and the exact number of footsteps it was from the houses of each of those witnesses to the nearest airport. You know: proof. Not just some handwaving about the judge can look out his window and see for himself that the sky is blue. I mean, nobody has time for that.

      And of course after the District Court indicated that this was the sort of information it needed, it refused to allow Apple to amend its transfer motion.

      So now defendants can expect to pay even more money to transfer out of the banana republic where the patent cowboys never cry (except when their on the stand, of course).

      1. The refusal to all Apple to “supplement” may seem harsh. But, that’s life. The Apple attorneys uniformly seem to have a hard time proving their cases. Why, I wonder?

        But I can tell you that some big companies come into courts with a swagger that is off-putting. They think they own the world, an small fry district court judges need to pay attention when they talk. The courts are more than willing to put such folk in their place.

        1. some big companies come into courts with a swagger

          Seems to me it’s the plaintiffs in these cases that are coming into court with the swagger. And why not?

          They’ve got a patent, after all, and you’ve got a website. That means you need to come to East Texas or Podunk, Mississippi when they say so.

          Shall we take a look at the underlying claims in these cases? I’m especially curious about the Barnes & Noble suit. I bet there’s some really “high tech” stuff going on there.

        2. “The courts are more than willing to put such folk in their place.”

          By unfairly making them take care of the case there?

          Seriously? Vindictive much?

          Not to mention that it doesn’t seem to put the lawlyers in their place at all and I presume that they’re the ones doing the talking and are thus the ones you’re talking about coming in with a swagger.

    2. That’s quite a different circumstance, going to the ultimate merits, and not a 1404 motion to transfer.

      When all your employees that have anything to do with the accused product are in city X, it seems like it should be enough to state such. But, I guess in future cases, movants should explicitly name individuals and why they are relevant to the case. (I think that was good practice before these cases anyway.)

      1. I guess in future cases, movants should explicitly name individuals and why they are relevant to the case. (I think that was good practice before these cases anyway.)

        Good practice, for sure. Also a needlessly more costly one for defendants and another example of the inequitable nature of these troll suits, from the very beginning of the case.

        It’s a broken system.

  11. Poster children for a broken system.

    Good effort by Newman here, explaining why the denial of transfer in both cases is absurd.

    1. Hey Malcolm,

      I actually agree with you on this one. Like Newman says in both cases: why are these cases not being transferred out of the forum where the contacts (e.g., witnesses) are almost nonexistent to forums where the contacts (especially witnesses) are many. See, I’m not the iconoclast you think I am.

        1. Seriously, Ned? Do you really think Apple’s witnesses aren’t in N.D. California?

          I guess in the next case Apple will just have to list out in a declaration all the thousands of employees who worked on the iPhone or whatever is being accused and who live in Northern California.

          1. Anonymous, I see nothing in the record where Apple asked the court to take judicial notice that its witnesses in this case were in Cupertino? Even if Apple asked, I think such a request would properly be denied.

            1. Ned: I see nothing in the record where Apple asked the court to take judicial notice that its witnesses in this case were in Cupertino

              Here’s the record:

              The record also states that the research, design, and development of the accused products took place in Cupertino and that virtually all Apple business documents and records relating to the research, design, development, marketing strategy, and product revenue for the accused products are located in or near Cupertino. Additionally, Apple has stated that its foreseeable witnesses with knowledge of the research, design, and development of the accused products reside or work in or near Cupertino.

              So maybe Newman is lying? I doubt it.

              This is a ridiculous result and the Federal Circuit is begging to be smacked down by the Supreme Court. Why can’t they get their act together?

              All the district court and the Federal Circuit are achieving here is simply further enabling patent trolls. That’s it. Nothing here is being done in the interest of fairness or consistency.

              Until just prior to filing this and 19 other pending infringement suits in the same forum, the plaintiff B.E. Technology, LLC was not registered to do business in the state of Tennessee. The company is run and operated by the patent owner out of his home.

              Oh boy. This shmuck’s name is Martin Hoyle and his patents are “directed advertising” junk of the lowest order. Directing advertising is as old as commerce itself, of course, and it’s been known for millenia that the more information you have about a customer, the easier it is to target the customer with ads using that information. All Hoyle does is graft these ancient concepts onto old computer technology, along with a healthy coat of pointless jargon and lots of functional language.

              It’s a broken system. This is another poster child.

              US6628314

              Claim 11. A method of providing demographically-targeted advertising to a computer user, comprising the steps of:

              providing a server that is accessible via a computer network,

              permitting a computer user to access said server via said computer network,

              acquiring demographic information about the user, said demographic information including information specifically provided by the user in response to a request for said demographic information,

              providing the user with download access to computer software that, when run on a computer, displays advertising content, records computer usage information concerning the user’s utilization of the computer, and periodically requests additional advertising content,

              transferring a copy of said software to the computer in response to a download request by the user,

              providing a unique identifier to the computer, wherein said identifier uniquely identifies information sent over said computer network from the computer to said server,

              associating said unique identifier with demographic information in a database,

              selecting advertising content for transfer to the computer in accordance with the demographic information associated with said unique identifier;

              transferring said advertising content from said server to the computer for display by said program,

              periodically acquiring said unique identifier and said computer usage information recorded by said software from the computer via said computer network,

              and associating said computer usage information with said demographic information using said unique identifier.

              Pure unadulterated garbage. Heckuva job, PTO.

            2. “This is a ridiculous result and the Federal Circuit is begging to be smacked down by the Supreme Court. Why can’t they get their act together?”

              A question you have to ask yourself every passing year nowadays with those guys.

    2. Can’t believe I’m agreeing with MM. As repugnant as I find Apple et al.’s attempts to re-legislate the patent system in their favor, it’s hard not to have some sympathy for them after seeing cases like these two

Comments are closed.