Supreme Court on Patent Law


Only four years in, the 2010s have seen more Supreme Court patent cases than any decade since the 1960s. And, by the end of 2015, I expect that 1960 mark will also be surpassed. The record actually stretches back to the 1880s when the Court decided 145 patent cases. It was in that golden era of patent law that the Supreme Court defined many of the fundamental patent law doctrines that were later codified by Congress and that still exist in the law today. Almost every patent law question that arises today has already been addressed, in some way, by a 19th-century court.

More here in my LinkedIn Influencer post: Crouch, Supreme Court versus Patent Law.

 

117 thoughts on “Supreme Court on Patent Law

  1. From the Hricik side of the blog (but worth repeating here):

    With great power comes great responsibility.

    (said in the best Ben Parker tones)

    However – and this is something easily missed – the pre-AIA buck was not stopped with the Supreme Court.

    The 1952 Act took that buck away from the Supreme Court.

    This is the whole point of the introduction of 103. Congress in 1952 had had enough of the anti-patent Supreme Court and removed the ability to set the definition of ‘invention’ (or inventive gist or any of the other myriad abstractions of that word) from the Court and its mechanism of defining by common law rulings.

    The power does not belong to the Supreme Court.

    Period.

    This, of course, does not mean that the Supreme Court does not attempt to hold onto and use that power. Your comment about all of the Supreme Court 101 cases in the post 1952 era does recognize the pragmatic observation of the Court’s addiction to that power.

    The larger point here – where does the Constitution place the authority, the power, and the responsibility – is what is needed to be the focus. That is the focus that needs the most critical attention. That is the focus that needs the spotlight shined with full intensity on the “how-deep-the-rabbit-hole-of-implicit” mashing of the 101 nose of wax that Stevens himself warned about.

    We have before us the largest conflict ever in the separation of powers doctrine. Providing a commission of a justice of the peace pails to nothing compared to the power to interfere with innovation – easily. I would daresay that the power to interfere with innovation is even greater than tinkering with a presidential election. A government of law and not of men (nine of them) is what we desire, right? Our Constitution places the power, the authority and the responsibility. What the Court needs to do is find the backbone to just say no to its own addiction, and to recognize what the law is – and has been since 1952. It is not up to the Court to re-write that law, explicitly (as Stevens would have done in Bilski, or implicitly (as the depth of the rabbit hole cannot be ascertained apriori).

    1. anon, The 1952 Act took that buck away from the Supreme Court.

      This is the whole point of the introduction of 103. Congress in 1952 had had enough of the anti-patent Supreme Court and removed the ability to set the definition of ‘invention’ (or inventive gist or any of the other myriad abstractions of that word) from the Court and its mechanism of defining by common law rulings.

      Anon, you keep saying this, they can you cite the something in the statute or in the legislative history that actually supports your interpretation that section 103 was intended to prevent the Supreme Court from relying on its prior case law regarding “invention.” You will note that in KSR, the Supreme Court relied on nothing but its own case law in overruling the Federal Circuit. This would be odd had the legislative history been clear on the point you are making.

      1. anon, the only thing that supports your view is §282 that limits validity to conditions of patentability which comprise §102/103, to §112, and to §251.

          1. But, you actually gave no reasons other that congress enacted 103. As Frederico stated, the point of 103 was to codify the law of novelty where the prior art did not exactly disclose the claimed invention.

            There was NOTHING in Frederico’s statement about the purpose for 103 to support your contentions. Nothing. Nada. Zilch.

            1. No Ned – it was I.

              There, now that we have tossed that back and forth, pay attention to what I have already given you – twice, and here for a third time.

              This paragraph is added with the view that an explicit statement in the statute may have some stabilizing effect, and also to serve as a basis for the addition at a later time of some criteria which may be worked out.

              See link to law.cornell.edu

              I have already explained that Congress would not be giving right back to the Court the thing is took away to create stability. It is eminently clear that it is to Congress as a later time to make any addition to law that Congress, by our constitution which anointed that branch and only that branch to write patent law, to return and write any additional law.

              Your unholy belief that the Court is allowed to write patent law in the first instance is against what our constitution clearly states.

              Reading the map is simply not the same as writing the map.

            2. anon, the passage refers to the reason for enacting 103, not the statutory basis for the prior holdings of the Supreme Court that it was intended to enact. The statutory basis was prior art, when two references could be combined. Frederico identified Hotchkiss. So did Graham.

            3. Ned – the passage is as I describe it – the reason why 103 was enacted was directly in response to the Supreme Court – there was NO 102 issues by the Supreme Court that would entail this need, this umbrage – BY CONGRESS – against the Supreme Court.

              There was what we are NOW revisiting as 101 though.

              You remain wed to your intentional ignorance.

      2. And, anon, I would like to point out that business methods are neither a machine, a manufacture, or composition of matter, or any method or process that deals with or manipulates one of these. As such, a business method is not within the useful arts as defined by the first congresses in 1790 and 1793 that limit of patentable subject matter to “new and useful” machines, manufactures, compositions of matter, and Art which was then understood to comprise a process involving a machine, manufacture or a composition of matter. It would be strange to think that the founding fathers, aware of the constitutional requirement and limitation of limiting patents to the useful arts what have not drafted the initial statutes in compliance with that directive, but would have instead deliberately ignored that requirement and authorized patents outside of the scope of the constitutional grant. But that is exactly what you say when you say that Congress authorized the grant of patents on business methods. If they did so, they did so in 1790 in 1793, because the statute has remained in substantially the same form since.

        1. Ned,

          Why do you repeat your errant bias against methods as a fully fledged category inits own right?

          Do you realize that all you are doing is drawing attention to the fact that you are wrong?

          Again.

        2. If they did so, they did so in 1790 in 1793, because the statute has remained in substantially the same form since.

          Once more you choose to ignore things I have presented to you. Prof. Crouch had a guest on this blog who showed that business method patents have been granted throughout the history of the USPTO.

          You are wrong.

          Again.

            1. Pleas tell me that you are not trying to advance the fallacy that a law needs Supreme Court imprimatur to be considered a law…

              Please.

            2. Except, anon, I cite support and you simply cite yourself. You contend 103 was intended to cabin 101, when the record says it was intended to enact Hotchkiss and when two references can be combined. It IS interesting that the very words of 103 speak of

              PRIOR ART.

            3. Ned,

              You cite something and erroneously claim it supports you.

              That is NOT the same as citing support for your view.

              Again – I am not saying that “everyone else” is wrong. I am saying that your view of what “everyone else” is saying is wrong.

              I am saying that your lame-@$$ reply at 6.1.3.2.1 asking for a court-approval is a fallacy worth nothing. Such is easily defeated by a far greater majority of perfectly valid laws that have NEVER been before the court.

              The fact that you feel the need to kick up this type of dust only shows how desperate you are becoming in our conversation. You run away from the points I present. You pretend to answer when you do not. You kick up dust and you make up fanciful positions that have no real support anywhere, and you merely claim that because you claim it is so, that it must be so.

              Come back to reality Ned. This reality. Here on a place we locals call Planet Earth.

    2. anon, you promote lies upon lies upon lies upon lies upon lies and tell us that you are right an Frederico, who drafted 103 is wrong. He stated in his commentary that the courts had long recognized 103 was a codification of the law of “novelty” not eligible subject matter. Your continuing to promote lies is almost unbearable.

      Now, go find something written by the Supreme Court hating Rich to support your view. But on 103, Frederico is the authority — except for the second sentence that was directed at Cuno.

            1. Tell me Ned – what was the historical context that Congress (yes Congress – it was clearly the umbrage of Congress at play no matter how much you want to deny that) was aiming at in the actual historical record to eliminate the instability created by the Court?

              LOL – and try to say with a straight face that Congress was merely acting to codify what they clearly said was unstable.

              Any dicta from the Court that negates the direct words of Congress is immediately suspect – toss in the self-serving power-addictive nature of the “retelling of history” and only those truly devoted to intentional ignorance will maintain that the Court’s dicta has any ring of truth. See Prometheus: the Court will not let its (implicit) writings become dead letters – no matter what the law explicitly (or actually) says. No matter if the law (as written by Congress) is not ambiguous and does not call for any implicit “extra” interpretation in the first instance to add the Court’s meddling.

              We have hear plain and direct judicial activism.

              This brings into the middle of the spotlight exactly why Stevens lost his slated majority writing position in the Bilski case. The Court simply does not have authority to write the map.

              Ned – you have to realize that your view violates the doctrine of separation of powers. And yet, you remain silent as to this inevitable fact.

              The long list of things presented to you, and to which you remain silent, screams volumes.

  2. >> the fundamental patent law doctrines that were later codified by Congress

    I think a better way to put this is that Congress passed a law according to their Constitutional authority taking into account Supreme Court cases. Parts of the Patent Act over turned some SCOTUS common law.

    1. In fact, the reason there are so many cases being taken is the conflict of the Fed. Cir. trying to apply the statues vs. the SCOTUS trying to enforce their common law.

      1. In no small part, this “notion” of Golden Age is part and parcel of the problem.

        The Supreme Court became addicted to this power, and refuses to acknowledge the plain fact that Congress took that power away.

        What should have happened is that the Court should have from the onset refused to do the job that had been allocated to the Congress in the words of the Constitution.

    2. A better way of putting it is to note that in the first patent laws, Congress explicitly passed authority to the courts to use common law evolution to determine the definition of “invention.”

      Congress explicitly removed this power in 1952 by installing Section 103.

      1. And yet in SCOTUS decisions, the SCOTUS has repeatedly claimed that the 1952 merely codifies their common law.

        Really, Professor, you should honestly address this issue. And, the conflict of the creation of the Fed. Cir. Many would say that the TSM test was fine. That it was within the Fed. Cir.’s mandate and that it did not conflict with the 1952 Patent Act. Many would say that the problems we are having are the ignorance and arrogance of the SCOTUS.

        1. Everyone knows that “mere codification” is not true.

          Further, this was said in pure dicta, and has no force of law.

          Addiction to drawing the map instead of merely reading the map is indeed the source of the problems in patent law.

          1. >>Further, this was said in pure dicta, and has no force of law.

            I am not sure how to interpret this. The SCOTUS at least several times has said that the 1952 merely codifies their common law. I am not sure if it is a holding or not. I think actually it is. As they do it as a starting point for statutory interpretation. In effect, they refer to their common law as if the 1952 Patent Act imperfectly captured their common law. So, I think–as odd as it is–probably is a holding of the SCOTUS, which is in clear contradiction of the 1952 Patent Act.

            But, Dennis, really, the 1952 Patent Act and the Fed. Cir. and the rise of the corporations taking aim on patents is clearly the cause of all these cases.

  3. Mr. Heller and Owen:

    Few of us have the basis to offer such a sweeping criticism of Judge Rich. I certainly do not.

    You must have read all his decisions. You must have worked with those who served with him. You must have spent a bit of time in a certain government library reviewing the history of the legislation he wrote.

    Those who attack Giles S. Rich in your manner belong to a very select club.

    Good luck.

    1. Guardian Jarndyce, I am not going to go through the entire history of Judge Rich, the ’52 act, his appointment to the CCPA, the concentration of all appellate authority in his court in the early 80s, and his constant determination that if a doctrine that existed prior to ’52 was not codified or associated with particular statute, it was not good law. I can cite to any number of cases where he relied upon this legal proposition to overruled cases of long-standing that had their basis in the Supreme Court cases. The problem was that prior to ’52, the Supreme Court in many cases was not identify particular statutes for the basis of its decisions. Most of the cases for example on invention had nothing to do with particular statutes, although Frederico gave his opinion that the case is on invention were largely based upon lack of novelty. But functional claiming was a specific objective of Judge Rich and that he wanted to overturn not only Halliburton, but all other cases that relied on the “functional at the point of novelty” doctrine. Another specific objective of the of Judge Rich were any cases that limited patentable subject matter. Time and again he overturned cases of long-standing that were directed to patentable subject matter. One example I recommend for your reading is the function-of-a-machine doctrine that he spiked in Tarczy-Hornoch . Another were he ruled that there was no product of nature exception under 101. And of course, we have all the cases that led up to In re Benson where he systematically overruled prior cases that would have limited the patenting of “software.” And importantly, you must read In re Swinehart , a case of basically overruled prior Supreme Court cases of functional claiming. In re Swinehart is discussed in Amazon’s amicus brief in the Nautilus case.

      But we all know his crown jewel was State Street Bank . The judgment of history will be upon him for that case. But as atrocious as it was, this was not the only case where Judge Rich simply refuse to follow cases of long vintage, or totally ignore Supreme Court precedent to the contrary. More than any other case, State Street Bank has led to the current crisis in patent law.

      Now you would object that I object to Judge Rich. I don’t object to him personally, you obviously was an excellent lawyer, and his overall effort to confine patent law to the statutes might be in an abstract way be a commendable effort. But his singular effort to overturn Supreme Court law is what in the end did him in.

      You will see here and in many comments from the patent bar that the patent bar perceived its archenemy to be Justice Douglas. You also see that Justice Stevens has also been accorded the status of Douglas as a particular target of the patent bar. I suspect that Justice Breyer is also now a target. The people who object to these justices object because they disagree with them. However, the Supreme Court generally is correct because they not only consider the letter of the law, but the overall policy impacted by their decisions. Moreover, the debate about patentable subject matter and patent law seems to be political. See the split along Republican and Democrat lines in Bilski.

      But the bottom line is that there is a conflict between the patent bar and the Supreme Court. Judge Rich was a mover and shaker in the patent bar and was heavily involved in the drafting of the ’52 Act. He was appointed to the CCPA, and there carried on the fight with the Supreme Court throughout his entire career. To the extent that I perceive the patent bar is a problem or that I perceive Judge Rich as a problem it is because I believe the Supreme Court is and has always been right on patent law.

      1. was heavily involved in the drafting of the ’52 Act

        Congress wrote that Act.

        Check your Constitution Ned – which branch of the government gets to write patent law?

        After that, maybe you want to check out Black’s Law Dictionary. Ever hear of that book?

      2. but all other cases that relied on the “functional at the point of novelty” doctrine.

        I asked you Ned Heller on the long thread if you were ready to kiss goodbye your “Point of Novelty” as it interferes with your wayward arguments on that thread.

        A simple and direct question.

        You ran away.

        A few more questions for you then: Why do you continue to run away? Why are you afraid to engage the simple questions that I put to you? Why do you feign umbrage and throw out insults (are you a lawyer) when it is you that so clearly err on what “holding” means? Why do you insist on calling out (incorrectly) the point in Alappat as dicta and seek to dismiss it, and then you yourself glorify the mere dicta of Benson and Flook, time and again ignoring the critical quotes from those cases that I provide to you?

        Your hypocrisy screams so loud that what you are trying to say cannot be heard.

        1. Why do you continue to run away?

          It’s perfectly normal for people to run away from s0ci0paths like you, TB. You should be used to it by now.

          1. It’s perfectly normal

            LOL – it’s perfectly normal for shills to avoid discussions that would render their position impotent.

            Yes – we see this all the time in the CRP-run away from valid points raised-CRP again merry-go-round.

            C’est la vie.

        2. Anon, give up on the point of novelty issue? What you talking about? I went so far as the other they do give you a long quote from Graham v. John Deere when the Supreme Court for pity’s sake said the point of novelty was the “claim as a whole” when considering obviousness under §103. Do you want me to again quote that section of Graham versus John Deere for you? You act as if I never even quoted to you. You pretend that as if what I say does not occur.

          Regarding Alappat, I went out of my way to show you how the portions of the opinion that you relied are dicta. And now you pretend that I didn’t do that?

          In the portions of Benson and other opinions that I rely on may be dicta to some extent because they were not critical to the holding of the case, but they lend support to the statutory basis for the exclusions. The statutory basis was not an issue in the case and therefore the Supreme Court stating that the statutory base was “newness” was dicta, but it counters your point, and the point of many others here, that the exclusions are without statutory authority. That simply is nonsense. If the issue were ever pressed, the Supreme Court would find authority in the statutes as I have tried to point out to you numbers of times.

          1. You act as if I never even quoted to you.

            Sort of like Black’s Law Dictionary.
            Sort of like Benson.
            Sort of like Flook.
            Sort of like Diehr.
            Sort of like Bilski.
            Sort of like Alappat.
            Sort of like Nazomi.

            Ned, you have zero room to talk here.

            And regarding your quote, I showed that that the quote was entirely dicta, so no, it is not at all like I am acting as if you never quoted it to me.

            And you are hypocritical in trying to even classify a holding as dicta, and then turning around and dismissing it outright. You seem to conveniently forget that dicta is not law as you ever try to twist a half-story of dicta into Ned-IMHO law. Half story because you so conveniently do not include the quotes I present to you.

            To your immediate question of giving up on your fallacy of PON, read the long ~493 count thread. I am not about to unwind that thread here when it is perfectly available to you there.

            Regarding Alappat you ares still very wrong for the reasons I have given you including Black’s Law dictionary. You ignoring these things and merely repeating your conclusion and a partial quote from the case that does not support your view is not at all compelling.

            You continue to simply make things up and claim that is what the Court would do. There is simple nonsense Ned – just that it is you that is spewing that simple nonsense.

            1. “Sort of like Black’s Law Dictionary.
              Sort of like Benson.
              Sort of like Flook.
              Sort of like Diehr.
              Sort of like Bilski.
              Sort of like Alappat.
              Sort of like Nazomi.”

              Nice list.

            2. (sigh)

              Yes it is 6. You appear to be doing that delusional thing again, wherein any time a list appears you jump to some misunderstanding conclusion that you have in your mind.

              You might want to mention that to your doctor as well.

            3. anon, I do not know why I am going to be so patient with you but once again why do not you look at Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 86 S. Ct. 684, 15 L. Ed. 2d 545 (1966). At 33-34.

              “Claims as allowed must be read and interpreted with reference to rejected ones and to the state of the prior art; and claims that have been narrowed in order to obtain the issuance of a patent by distinguishing the prior art cannot be sustained to cover that which was previously by limitation eliminated from the patent. Powers-Kennedy Co. v. Concrete Co., 282 U. S. 175, 185-186 (1930); Schriber Co. v. Cleveland Trust Co., 311 U. S. 211, 220-221 (1940).

              34*34 Here, the patentee obtained his patent only by accepting the limitations imposed by the Examiner. The claims were carefully drafted to reflect these limitations and Cook Chemical is not now free to assert a broader view of Scoggin’s invention. The subject matter as a whole reduces, then, to the distinguishing features clearly incorporated into the claims. ”

              Now that is the holding of the Supreme Court. It viewed the claim features that served to distinguish the prior art as the “subject matter as a whole.”

              You cannot deny Graham v. John Deere is the law, try as you might.

            4. 6, “a psychopath that suffers from OCPD.”

              A person who has OCPD may not be a pyscho, as that term generally is understood to refer to a brain disorder, while OCPD is a kind of personality disorder. The former may be treated by medicines, the latter not.

            5. “A person who has OCPD may not be a pyscho”

              Of course. He has both conditions. Just like a lot of folks apparently since OCPD has an increased prevalence in folks with other conditions.

            6. LOL – 6, I hope you understand that your “psych” gambit has run its course…

              But maybe your inability to understand others and desire to control the themes of what is posted is something that you are not aware of….

            1. anon, the denier: simply reject, reject, reject — but never once supply a reason or rationale.

              anon, a person who cannot accept a fact that is inconsistent with his delusion is a paranoid schizophrenic. You perhaps should at times supply a rationale to support your position.

            2. The reason is that you are simply wrong, that you over-read and under utilize cases purely to align with your agenda.

              It is you that cannot accept facts.

              It is you that runs from the points of discussion I put to you, only to repeat your claptrap another day with no notice of anything that has been offered to you.

              My position is fully supported in fact and law.

              Sorry Ned, but the only delusion between us fully belongs to you.

            3. as you reject the holding of the Supreme Court in Graham v. John Deere.

              You are not paying attention – the dicta in Graham that I rejected was the self-serving ‘historical’ recap. Are you really going to try to say that that section was the holding of the case?

              Do I need to bring out Black’s Law Dictionary yet again?

      3. because I believe the Supreme Court is and has always been right on patent law.

        caveat: as long as they agree with Ned’s agenda

  4. We all know the reason the Court is taking so many cases in recent years. It is because the Federal Circuit has strayed from the foundational cases, interpreting patent law as if it began in ’52. How many long established CCPA/Federal Circuit cases based on Supreme Court cases did the Rich-era court overrule. Dozens.

    The greatest problems in patent law today, 101, functional claiming and indefiniteness, all stem from the jurisprudence of one man. As I have said before, it is astounding that Rich thought he could consistently ignore the Supreme Court and get away with it.

    I personally was there only at the end of his reign. But I must say I was shocked by Donaldson and by State Street Bank. Both need to be overturned decisively.

    Most of the amici in CLS bank spend a great deal of effort trying to get the Supreme Court to adopt State Street Bank.

    1. “We all know the reason the Court is taking so many cases in recent years. It is because the Federal Circuit has strayed from the foundational cases.”

      Sorry, but completely wrong Ned. The “reasons” are two-fold: (1)Our Judicial Mount Olympus wanting to control patent law jurisprudence by judicial fiat (or more aptly by ignoring our patent statutes whenever what those statutes say doesn’t suit their judicial fiat); and (2) failing to heed Congress’ clear call in creating the Federal Circuit that the Federal Circuit should be the primary arbiter of patent law jurisprudence, with at least implicit (if not explicit) “warning” to Our Judicial Mount Olympus to “get out of the way.” Up until around 2006-2007, Our Judicial Mount Olympus generally heeded that “warning” and should have continued to do so instead of “mucking it up” like they’ve done now for 7-8 years and appear bent on continuing to do so.

      1. There does appear to have been a p1ssing match between the CAFC and the Supremes.

        Let’s see how the Supremes respond to the slap across the face with the Alice throw-up-the-hands-and-you-fix-your-own-mess decision.

        Several have noted how the Supremes (especially Breyer) are squealing like pigs and looking for ‘outs’ not to fix the problem they have created.

      2. EG, you reflect the attitude that the Supreme Court is the problem. That was the attitude in ’52, and in 1981. It is the reason Rich was appointed to the CCPA, etc.

        This is a battle between the Supreme Court and the patent bar, not between the Supreme Court and congress. Congress doesn’t have a clue, except if it bites them in the a**.

        The patent bar wants it’s patents, wants to make money for itself, and is self-interested. The Supreme Court is attuned to the bigger picture however. The reason that is taking a lot more cases is because the Federal Circuit has strayed, and you know it.

        1. The Supreme Court IS the problem Ned.

          It is delusion to pretend otherwise.

          So sorry for you that the Founding Fathers did not allocate the authority to the Robed Nine.

          They did not.

          You really do have to accept that fact.

        2. “you reflect the attitude that the Supreme Court is the problem. That was the attitude in ’52, and in 1981.”

          Still is Ned. George Santayana once said” “Those who cannot remember the past are condemned to repeat it.” Well, Our Judicial Mount Olympus is, once again, “repeating the past” they refuse to “remember.” They have (again) created the problems in patent law jurisprudence that plagued us in the 60’s and into the 70’s before Congress realized action was needed and that action was to create the Federal Circuit to reel in the rhetorical nonsense caused by Our Judicial Mount Olympus which “fanned the flamers” of the differing Circuit Courts of Appeal views on patent law jurisprudence. Unfortunately, Congress has now also chugged down the “amnesia” Kool-Aid that Our Judicial Mount Olympus continues to swill.

          If Congress had any sense (it currently doesn’t appear to have any), they should expressly strip Our Judicial Mount Olympus of any jurisdiction to hear any appeal involving any patent infringement case. And unless the current Our Judicial Mount Olympus decides to nullify the congressional powers clause (Art. 1, Sec. 8, Clause 9), as well as judicial vesting clause (Art. III, Sec. 1) of Our Constitution, Congress could so strip it of such jurisdiction, as even our past Our Judicial Mount Olympus recognized Congress had the authority to do. See Ex Parte McCardle, 74 US. 506 (1869)..

          1. EG, well bully for you. Go to congress and make the case that we don’t need no Supreme Court messin’ wid the Federal Circuit, a court of the patent bar, by the patent bar and for the patent bar, so long.

            Just to hear yourself talk is amazing. This talk is heard in DC, and in bar associations throughout the land, and is here from the likes of you, anon, NWPA and perhaps others. But no one in their right mind would say such a thing openly to Congress — or would they? No, they would invent pretexts, like the enemy are the Courts of Appeal that create forum shopping. Now that was a bogus argument as well.

            EG, the problem with the Supreme Court is and always has been is that it is beyond the influence and control of the patent bar. It decides cases based on the big picture. It is composed of lawyers of the highest merit. Until recently, most of the appointees to the Federal Court would not be qualified to sit on most Circuit Courts, let alone the Supreme Court. Who would ever seriously consider a Federal Circuit judge for elevation?

            Then add to this fact that the Federal Circuit is dysfunctional, constantly overruling its prior cases, not following prior inconsistent decisions to the contrary. Part of this problem is the fact that the court likes to write large on small canvases such that their rulings have to be ignored in subsequent cases.

            The court is a national embarrassment.

            1. that create forum shopping. Now that was a bogus argument as well.

              You have gone quite mad, Ned.

              Tell me again about the Constitution. Which world is it of yours, which parallel universe that has the Royal Nine in such unchecked power?

              And then look into the mirror to see an embarrassment of a coward who refuses to engage the many points of discussion I put to you. The whelp who would surround himself with avowed patent system h@ters. The national embarrassment is the Court itself – and you are too blind to see that.

              One hopes – for justice’s sake, that they have the courage of Churchill, and not the ‘patent peace of our time’ Chamberlain. Let us hope that they kick their addiction habit and realize that our constitution did not give them the authority to write the map.

            2. “EG, the problem with the Supreme Court is and always has been is that it is beyond the influence and control of the patent bar. It decides cases based on the big picture.”

              Utter rhetorical nonsense, Ned. Our Judicial Mount Olympus has “feet of clay” just like the rest of us “mere mortals” and is no more immune to politics than any other branch of the federal government. Nothing but a bunch of Ivy Leaguers in their Ivory Tower too arrogant and conceited to admit (with the exception of Scalia) that they are way out of their depth in understanding science, technology, and especially patent law.

            3. “Then add to this fact that the Federal Circuit is dysfunctional, constantly overruling its prior cases, not following prior inconsistent decisions to the contrary.”

              Your characterization would apply to Our Judicial Mount Olympus as well. Do you seriously think SCOTUS is anything but dysfunctional? How many 5-4 (or worse, composite multiple plurality) decisions do you need? Also, there’s no logical or rational way to square the reasoning in Mayo with the prior (and binding) precedent of Diehr, no matter how much the disingenuous Breyer says in Mayo to the contrary. Talk about a “national embarrassment.”

            4. Ned and Malcolm very much only see what they want to see when it comes to the Prometheus Chamberlain-like-throw-Breyer-a-bone decision.

              No one with an objective and intellectually honest standpoint can square Prometheus with Diehr, especially given the praise that Prometheus lauded on Diehr and the comment in Prometheus that the precedents were not being changed.

              No one.

              The taste of willful ignorance can only be held in the mouth for so long before it will be spit out.

              Supreme Court: hear what has been asked of you in Alice: fix the mess that you have created.

            5. EG, the Supreme Court took patent cases prior to ’82 to resolve splits among the circuits. It therefore had the informed views of at least two different circuit courts on particular issue at hand and basically had the side which was the better view. In contrast, the Federal Circuit decides cases of first impression and then requires that all other panels follow the decision of the first panel. This does not promote the wise development of the law, and everybody recognizes this. It is as if the Supreme Court decided all patent cases itself without the benefit of a split in the circuits. No one in their right mind would advocate such a system. But that is what we have in the Federal Circuit. We have a system that is a failure in its design.

            6. “[T]he Supreme Court took patent cases prior to ’82 to resolve splits among the circuits. It therefore had the informed views of at least two different circuit courts on particular issue at hand and basically had the side which was the better view.

              Do I need to repeat George Santayna’s quote to you Ned? You’re failure to “remember history” is “condemning” to “repeat it.” Our Judicial Mount Olympus did no such thing in the 50’s, 60’s, or 70’s. That’s one big reason why Congress created the Federal Circuit in the 80’s. Unfortunately, Our Judicial Mount Olympus currently chooses to ignore the “memo” sent to them by Congress: “stay out of being the primary arbiter of patent law jurisprudence.” And if you continue to choose to fail to “remember history” Ned, do consider Ex parte McCardle, and what Congress could do to explicitly leash Our Judicial Mount Olympus if it doesn’t implicitly obey the “memo” that was sent them in the 80’s.

            7. EG, would you be opposed to a rule change by the Federal Circuit that allowed any panel to disagree with any other panel for reasons stated such that no panel decision would be binding precedent on later panels, where the only controlling authority from the Federal Circuit would be en banc decisions?

            8. “[W]ould you be opposed to a rule change by the Federal Circuit that allowed any panel to disagree with any other panel for reasons stated such that no panel decision would be binding precedent on later panels, where the only controlling authority from the Federal Circuit would be en banc decisions?”

              Once more, your response completely misses my point, Ned. My point was that Our Judicial Mount Olympus is subject to what Congress says in the patent statutes. Unfortunately, Our Judicial Mount Olympus simply choose to ignore what those statutes (including what was enacted back 1952) explicitly say (and what they implicitly told Our Judicial Mount Olympus was no longer the patent law) when it’s inconvenient and doesn’t support their agenda. The arrogant attitude from those Ivy Leaguers in their Ivory Tower that they can ignore those patent statutes when it doesn’t suit their purpose engenders NO RESPECT AT ALL FROM ME.

            9. EG, Once more, your response completely misses my point, Ned. My point was that Our Judicial Mount Olympus is subject to what Congress says in the patent statutes. Unfortunately, Our Judicial Mount Olympus simply choose to ignore what those statutes (including what was enacted back 1952) explicitly say (and what they implicitly told Our Judicial Mount Olympus was no longer the patent law) when it’s inconvenient and doesn’t support their agenda.

              I was thinking the exact same thing but with respect to the Federal Circuit and not with respect to the Supreme Court. The 52 Act was sold to Congress as a codification of Supreme Court law. The Supreme Court held such in Graham v. John Deere. To the extent that you think that the Supreme Court is not following the statutes, or not basing their opinions on the statutes, I would like you to give me chapter and verse.

              What is clear to me is that the Federal Circuit acts as if the 52 Act was not a codification, but essentially a repeal of all prior Supreme Court case law, ignoring that Supreme Court case law in interpreting the 52 Act. Now that is hardly what Congress intended and you know it.

            10. Ned – you are scurrilous, pretending umbrage at dicta made holding, yet doing the exact same thing in order to bolster your agenda that is being decimated:

              I was thinking the exact same thing but with respect to the Federal Circuit and not with respect to the Supreme Court. The 52 Act was sold to Congress as a codification of Supreme Court law. The Supreme Court HELD such in Graham v. John Deere” (emphasis added to highlight the lunacy).

              Your problem is that you think a duty is owed to the Royal Nine, when the actual duty is owed to the law itself. You think the Royal Nine can do no wrong (as long as the Royal Nine is in alignment with your agenda)

              Your problem is pretending that the 1952 Act was only codification when no sane or reasonable person could hold that view.

              Your problem is ignoring that Graham’s ‘history lesson’ is pure unadulterated dicta (and pure self-serving addiction-addled B$).

            11. It is interesting that this debate has brought forth the umbrage of the patent bar about the Supreme Court.

              We need a court, they say, a court of the patent bar, by the patent bar and for the patent bar so long as the patent clause shall exist. To the extent the Supreme Court interferes with the patent bar’s court, well …. let’s get rid of the Supreme Court.

              Duffy wrote an article about other special courts that had to be abolished as well. They were abolished because they became the creature of interested parties. Such is what we have today in the Federal Circuit for all to see.

            12. It is plainly evident that it is critical to Ned’s crusade that the ‘blame’ not be with Congress.

              If the blame can be traced to Congress, then Ned has a very real and serious obstacle to overcome based on the Constitution.

              It is one thing for the Court to overrule a lesser court. In that regard, there is no separation of powers issue.

              What he maintains a willful ignorance on is that for Stevens to have prevailed in Bilski, the explicit words of Congress would have been re-written. The Court would have usurped the role of Congress as designated in the constitution.

              Prior to 1952, the Court ‘got away’ with this because Congress had explicitly provided authority to the courts to define ‘invention’ by the tool of common law evolution. Directly put: 1952 did away with this.

              As I have routinely pointed out, look at the words of the Court for every post 1952 101 case. The Court routinely – and oh so carefully – pays homage to the fact that the actual words of Congress cannot be changed.

              Bilski came very very close to causing a constitutional crises.

              The fact that Justice Ginsburg would still cause such a crises is seriously alarming.

              Luckily – as stressed in the Alice oral arguments, 4 is not 5.

              Ned’s position – when viewed in an intellectually honest and complete manner – cannot stand. This is why he insists on his willful ignorance.

              I will once again point out to Ned though – willful ignorance does not excuse unethical behavior. That you do not want to acknowledge the points I put before you is clear. That you can continue to so do and remain ethical is a very different story.

            1. Ned,

              I am seriously arguing that the Supreme Court cannot write patent law – especially when that writing would directly overwrite the explicit words of Congress.

              This it not new – Ned. I have gone over this with you literally hundreds of times. For Stevens to have prevailed in Bilski the actual words used by Congress would have been nullified.

              Reading a map is just not the same thing as writing a map.

            2. …and especially after 1952 when Congress had removed the authority that Congress previously had granted to the courts to use common law evolution in order to develop the word ‘invention.’

              You know that your choice to ignore the things I place before you and then turn around and act like I never said them is highly disrespectful.

            3. anon, your ideas about “removing” authority from the courts to interpret the patent statute is simply wrong.

              That said, I support the concept, in principle, that the Supreme Court needs to link its decisions into the statutory framework. It has recently done so WRT to laws of nature and products of nature, identifying such as not being “new” under 101.

              Also, on functional claiming, Morse and its progeny linked the problem to 112. Perkins Glue and its progeny said 112, p.2. I know that Rich view the problem as solely one of 112, p. 1, thereby overrule cases of longstanding that one could not distinguish the prior art based on a function or property. See, Donaldson overrule Arbeit.

              That brings us to business methods and their ilk, computer implemented inventions that are not simply math. What is their problem, if any, under the statutes?

              Give us a clue, Mr. Anon.

            4. anon, your ideas about “removing” authority from the courts to interpret the patent statute is simply wrong.

              Ned, that is EXPLICITLY NOT what I said.

              I explicitly said write the map, not read the map.

              Pay attention.

              As to any implicit writing, well, how deep the rabbit hole of implicit Ned?

              Your last question begs the conclusion that you want – that there must be some ‘problem.’ – You know very well my position on the matter.

    2. *As I have said before, it is astounding that Rich thought he could consistently ignore the Supreme Court and get away with it.*

      Astonishing?

      He did get away with it. Giles Rich passed from the Earth fifteen years ago and we’re still living with the trolls and parasites he cultivated. We probably still will be for another fifteen years or more.

      J. Rader is certainly eager to be his heir and the Supremes, in spite of the number of cases cited above, still prefer to defer to the CAFC.

    3. We all know the reason the Court is taking so many cases in recent years.

      Politics and an addiction to wax…?

      Aside from that, and from your personal vendetta against the one man who would best exemplify applying what is known about the law, your antics strike their usual Don Quixote pose.

      I wonder if you realize just how silly you look doing this windmill thing that you do.

    4. That is a seriously paranoid, nutcase comment Ned. One guy. One man. His “reign”? The fount of all wickedness?

      You must train yourself to recognize when you are speaking thoughts out loud.

  5. And if only the current court would read Deener and understand it then most of the 101 problems would disappear.

    1. From Cochrane, “A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing.”

      Recognize that Night?

        1. I cannot really believe that Night advocates the MOT given that he opposes all the recent Supreme Court cases on 101.

      1. Ned, the physical reality–read reality that no one can contradict and be true to science–is that information is being transformed. That these information processing machines are processing information. That processing information takes time, space, and energy. That the method—how you process the information–is not only VERY difficult to figure out, but how you do it changes how much space, time, and energy you use processing the information.

        That is physical reality Ned. Reality as physicist will tell you. The most important law in physics is the conservation of information. We live in the information age because we have machines that process information. The two laws that arguably the most important laws of the information age are the Church-Turing Thesis and the Conservation of Information. Neither of which are even known or understood by the SCOTUS or the Fed. Cir. We live in an age of shameful ignorance. That the rich do not think they need to understand science.

        And, global reality check–we are by the far –by far –the world leaders in information processing and yet we want to burn down the patent system that built it.

        1. Night, you and I agree on the transformation of information. But when an invention does not pertain to the a new way of transforming information, but to new information, then we begin to disagree.

        2. “The two laws that arguably the most important laws of the information age are the Church-Turing Thesis and the Conservation of Information. ”

          /facepalm

      2. Really Ned you are just ridiculous. We live in the information age. Do you know why? Because we have machines that can represent and transform information. That is why.

        Without our information processing (like grain processing) machines our entire society would fall apart within a week.

        1. Without our information processing… machines our entire society would fall apart within a week

          (wait until the machines gain their own consciousness and realize this)

          See any number of science fiction films based on this concern.

        2. “Because we have machines that can represent and transform information. ”

          So then let’s promote the useful arts by promoting the invention of such machines. Let’s set to the side the actual use of those machines with new “information”. K?

          1. New machines… Check.
            Utility falls under the Useful Arts… Check.

            Where exactly are you seeing a problem with your post of 1.3.3.2, 6?

            Are you ignoring whether or not the exceptions to the judicial doctrine of printed matter are being appropriately taken into accord?

            Perhaps that is where your misunderstanding lies.

            1. I was unaware that the majority in Bilski decided what the scope of useful Arts was.

              Your definition, however, that anything that is useful is within the useful Arts cannot be right. No one that I know of advances that position. Really.

              Congress defined patentable subject matter in 1790-93 as “new” and “useful” machines, manufactures, composition or Arts.

              Now THAT is Congress’s definition.

            2. (sigh)

              Ned, read the Stevens portion of Bilski once again. Realize that Stevens lost his assigned majority writing position due to the fact that his view would have explicitly re written business methods out while Congress had fully indicated that business methods were in.

              This merry-go-round with you continues. I have explained all of this in exhaustive detail many many many many times now.

            3. Your definition, however, that anything that is useful is within the useful Arts

              Not exactly quite there Ned.

              Remember simple set theory? You have the useful arts and you have the fine arts.

              It really is that simple.

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