Patently-O Bits and Bytes by Dennis Crouch

 

 

86 thoughts on “Patently-O Bits and Bytes by Dennis Crouch

  1. Has everyone read the recent CAFC opinion in Suffolk v. AOL/Google? You know the one where the patent trll with the jxnky computer-implemented claim gets tanked on Summary Judgment and then tanked again in a short CAFC opinion. In a just world, Suffolk would be given the corporate electric chair in the form of sanctions so harsh they would pierce into the holdings of the slimeballs who own the business. But if ever there was a case with facts worthy of sanctions, it’s this one.

    Highlights? Perhaps the anticipation of the claim by kids on Usenet. Or maybe the embarassing attempt to pretend that archived Internet files aren’t “printed matter.” Or the transparent failed efforts to selectively read limitations from the specification into the claim.

    Oh, I almost forgot: the opinion was written by Chief You-know-who. I wonder if he learned anything about all the sooper dooper “complicated technology” required to, e.g., shove some “targeted” information in your face. Surely there must have been some really impressive flow charts in the specification. Did I just say “flow chart”? How silly of meant. I meant “electronic structure essence” charts.

    1. In a just world, Suffolk would be given the corporate electric chair in the form of sanctions so harsh

      Oh king of AOOTWMD – be careful of what you ask for – especially if you are an attorney and it is determined that your habitual transgressions on this advocacy platform of a modern social media are held to be actual ethical violations – as then even Prof Crouch – if under ethical regulations of an attorney would then may find himself needing to inform your bar or your persistent untruthfullness.

    2. Not that many patent suit defendants are so lucky as to get a thorough and fast S.J. of invalidity in view of prior art, especially in a software-internet patent case like this, and especially from a respected Judge like Ellis of the Eastern District of Virginia. A Fed. Cir. sustained S.J. of invalidity in view of prior art is not common, notwithstanding the one sustained in KSR. The odds are very much better in an IPR.

        1. Just one?

          How about all of them.

          Clearly, Ned, you need to qualify your question, as the moment you give me a single judge I can guarantee you that I can find someone that has been in that judge’s court that does not respect that judge.

    3. “Perhaps the anticipation of the claim by kids on Usenet.”

      lulz.

      “Or maybe the embarassing attempt to pretend that archived Internet files aren’t “printed matter.””

      Double lulz.

      “Or the transparent failed efforts to selectively read limitations from the specification into the claim.”

      Always have to do a bit of that.

      “Did I just say “flow chart”? How silly of meant. I meant “electronic structure essence” charts.”

      Lulz.

        1. Not that I’m aware of but I don’t examine that sort of nonsense so I’m not boned up on all their usual searching mechanisms.

      1. Given the malleability of “archived records,” and the propensity of pure CRP existing on the internet, an archived Internet file is not conclusive proof sufficient of its own accord for legal purposes.

        Reminds me of 6 as the chick going out with a french model:

        link to youtube.com

  2. Saying someone does a good job counts as a “scandal” at the Federal Circuit? If only we applied that kind of standard to ALL government agencies.

    1. Saying someone does a good job counts as a “scandal” at the Federal Circuit?

      “Look at that little piece of ice floating in the ocean. It sort of looks like the top of a mountain. Let’s get a closer look at that cute little piece of floating ice!”

      1. Hmm, the conversation on closer looks and (lack thereof) disappears… I guess flinging p00p is a-ok.

        C’est la vie.

  3. Patents had fallen into disuse before creation of the Fed. Cir. The court’s pro-patent bias is largely responsible for the patent resurgence.

    1. Mr. Buckley, “Disuse?”

      Hardly.

      But the patent bar was concerned that some circuits were hostile.

  4. Re: Anon – “Those post-grant options with a voluntary surrender of the patent have been distinguished – you are aware of that, right?”

    1. What VOLUNTARY surrender of a patent [other than in a reissue] are you referring to? Certainly not in any adverse decisions in any adverse party reexaminations, any interference initiated by an adverse party, or any AIA post grant proceeding other than a supplemental reexamination. Furthermore, a terminal disclaimer, as in the case on point, is not a voluntary surrender of a patent. The patent is still fully in force [un-surrendered] for suing for patent infringements within the number of prior years allowed by the statute.

  5. Moderation logic seems to include a “reply to” flag (notwithstanding Ned’s troubles)

    Criminy the moderation flag is active…

    Plainly pathet1c here is Malcolm dissembling and trying to hide his comment under a 99.9% stumbler-first-time blogger position.

    Take a little ownership of your comment Malcolm – clearly you know – or should have known – better.

  6. Timothy Lee seems to have his own agenda. “The revelation has forced Rader step down as the court’s chief effective this Thursday.” Lee takes a lot of literary license in making this statement.

    1. It appears that “having one’s own agenda” and the application of intellectually dishonest spin have a lot in common.

      The operative misuse of the term “forced” seems to be one of an attempt to negate the chosen action and the nobility of that choice.

      Is there any coincidence that both Mr. Lee and those regular commentators on these boards who would attempt to negate the nobility of the action are also of like mind when it comes to an anti-software patent agenda?

      1. the nobility of the action

        Yes, let’s all bow down before the awesomeness of the compromised judge with the childish, hypocritical views about subject matter ineligibility.

        Give it a freaking rest already.

        1. Brush away your ad hominem, and there is nothing of substance to your comment.

          Try again to say something of value, Malcolm.

  7. >>>PTAB Again Oversteps with Broadest Reasonable Construction.

    This is the only item in this post worth looking at. Man, what a lot of mileage the anti’s are trying to get out of one innocent email that is unrelated to their judicial activism goals.

      1. You misunderstand what he is saying, ‘brosef.’

        The emphasis is not on a scandal, or even “how scandals work,” but rather, the identity of who is attempting to work the scandal and to what ends those attempts are being employed for.

  8. David Hricik: All I know is that [Rader] is a good friend of mine

    Does anybody remember when Hricik first revealed to readers of this blog that he was “good friends” with Judge Rader? Somehow I must have missed it, or I forgot about it.

    Of course that “good friendship” would never impact any of Hricik’s super objective legal analysis — that goes without saying!

    I’m just curious about the timing.

    Jason and Dennis: are either of you “good friends” with any of the Federal Circuit or Supreme Court Justices?

    The times certainly are changing (and have changed) more rapidly than some of the old timers seem to realize. In the old days we might have taken it for granted that journalists and their subjects in Washington DC were stuffing quails into each other’s mouths when they weren’t mixing cocktails for each other “on vacation in Martha’s vineyard.” We still often see a lot of disturbingly close relationships between establishment media employees and the politicians they occasionally report on (e.g., Andrea Mitchell and her husband Allen Greenspan spring to mind) but “good friendships” are not something that the typical reader assumes exists when he’s reading, e.g., a blog that regularly reports on and critiques the decisions of a small number of judges and Justices.

    1. You do know (or should know) that Prof. Hricik took a year long sabbatical from posting on his side of this blog to clerk for the (former Chief) Judge, right?

      Or did you miss that with your typical myopic focus on saving the children running through the field of patent rye?

      1. You do know (or should know) that Prof. Hricik took a year long sabbatical from posting on his side of this blog to clerk for the (former Chief) Judge, right?

        Totally forgot about that. Why would I remember that? Should I be impressed or something? (I’m not).

        Regardless, that relationship now seems a bit ironic, isn’t it?

        Oh wait: you don’t “get” irony. Never mind.

        The bottom line is that each time you are reporting your views on an individual with whom you have a “good friendship”, it’s a good idea (ethical, even) to disclose tht relationship to your readers.

        I hope Dennis and Jason, at least, understand this.

        1. Why should you remember it?

          Because it is a well known and material fact with immediate bearing on the discussion. (and yes, anyone who habits this blog on a regular basis can be said to have knowledge of that relationship (in other words, it is de facto disclosed).

          That you make the comment you do and now admit to not knowing such an item paints you as either a doofus or a scheming 1iar.

          Nice choice for you.

          1. anyone who habits this blog on a regular basis can be said to have knowledge of that relationship

            (conveniently “spun-out” of Malcolm’s reply….)

          2. “anyone who habits this blog on a regular basis can be said to have knowledge of that relationship”

            Lulz. Perhaps “constructive knowledge”? I surely did not have “actual knowledge” of that relationship and I frequent this blog, though not Hricks.

          3. anyone who habits this blog on a regular basis can be said to have knowledge of that relationship

            That’s a ridiculous l i e, of course.

            But please keep digging, clown. It’s pretty funny to watch.

          4. That’s a ridiculous l i e, of course.

            LOL – like Malcolm trying to dissemble and hide himself as a 99.9% stumble-on-the-blog-for-the-first-time-Gee-he-didn’t-know ridiculousity.

            /face palm

          5. like Malcolm trying to dissemble and hide himself as a 99.9% stumble-on-the-blog-for-the-first-time-Gee-he-didn’t-know ridiculousity.

            Hey, creepazoid l i a r: I already said “I forgot.”

            Learn to read, dpsht.

          6. Your dissembling about some 99.9% person just does not fit your proffered weak@$$ excuse of “I forgot.”

            You still have not indicated your choice:
            A) doofus
            B) scheming 1iar
            C) both

            1. Your dissembling about some 99.9% person just does not fit your proffered weak@$$ excuse of “I forgot.”

              Uh … right. That’s because the 99.9% of other people aren’t me.

              How frackin’ clueless are you? Keep digging, creep.

            2. The point Malcolm was that you made a certain comment on a topic that you should have known better on.

              You then attempted to dissemble on the matter by drawing in a completely irrelevant fact that did not certain your lack of knowledge (or should have possessed knowledge).

              You then descended into your typical gamesmanship – evident for all to see – all the while trying to accuse someone else of either incompetence or malfeasance.

              Don’t you tire of being such an obvious schmuck?

            3. you made a certain comment on a topic that you should have known better on.

              Again: whether Jason or Dennis or Hricik clerked for Judge Patentpoopiepants or anybody else doesn’t really make a hill of beans of difference to me. Why would I remember such a thing? Why would anybody remember that unless they were immature hero-worshipping snotheads like you?

              And even if someone did clerk for a judge, there’s no reason to assume that person has a “good friendship” with the judge.

              But please do keep digging. It’s more fun than reading another boring rant about Winston Churchill and the 1952 patent act.

            4. immature hero-worshipping snotheads

              LOL – the AOOTWMD, responding to someone pointing out that evident facts pertinent to a discussion point should be responsibly treated – call that person names and pretend that a regular poster has no responsibility whatsoever of being informed about evident facts regarding a matter under discussion. (you retreating to your typical calling names of someone pointing out a mature practice is just so mature – /eye roll)

              Yes, Malcolm, you have a right to be as uninformed in your opinion as you want to be. Just as I have a right to point out how you are being uninformed, and how readily available that information is to someone such as yourself that is an active poster here (e.g. the ridiculousity of your attempted dissembling concerning someone who could be labelled a stumble-on-the-blog-for-the-first-time-Gee-he-didn’t-know).

              That relevant facts “don’t mean a hill of beans to you” is part of your problem. It becomes everyone’s problem when you insist on droning on regardless of your refusal to inform yourself.

              You still have not indicated your choice:
              A) doofus
              B) scheming 1iar
              C) both

            5. Malcolm asks “keep digging.”

              Interesting point to be found by ‘digging’ in the archives, showing Malcolm’s decrepit tendencies.

              He claims in the immediate thread to have “just forgot” about Prof. Hricik.

              Hmm, isn’t that odd, given that a mere 28 hours previously, in a direct reply from me to his statement of “Until you or Hricik or anon any of the other faux-”principled” b.s. artists

              I stated:

              “Nice” to see Malcolm attempt to slander Prof. Hricik for his views on statutory construction. In Malcolm’s world, the ends of his crusade justify not only the means of violation of separation of powers and the judiciary writing the law that he wants (because of ‘policy’ or ‘opinion’ or some such table pounding), but also appear to justify Malcolm’s boorish rhetorical tactics on these boards.

              Hmmm, didn’t Hricik work with Judge Rader…? (and yes, the Malcolm/6-induced intimation should not go unnoticed)

              This exchange was at link to patentlyo.com

              And yet, a mere day before Malcolm was reminded of this tidbit.

              And he still attempted to dissemble and disparage in his posts.

            6. Perhaps it is a fantasy of mine that posts on these threads will be treated as actual discussion – the information shared and reflected upon, not purposefully ignored and a mere soapboxing of one view to the exclusion of others will be achieved.

              I guess that I am just that hopeful and optimistic type.

  9. I don’t understand the title above of “PTAB Again Oversteps with Broadest Reasonable Construction.” BRC by the Board is required by the Fed. Cir., and no objection to it was ever argued against or briefed until just before the final hearing in an [statutory time limited] IPR when the patent owner cleverly but very belatedly [isn't that a normal issue "waver" - raising a new issue that would require a new trial at that late date?] tried to switch claim construction to a “civil action” by filing a terminal disclaimer to make the patent expire before the final hearing. Where is there any PTAB “overstep” here?

    1. well, cry me a river on the PTAB complaining they’d have to do the the whole thing all over again… they can’t pretend they live in a vacuum and that other statutes may interplay with their jurisdiction and affect their ruling

      if they don’t like the current state of affairs, tell them to have Congress change it -but they are deluding themselves if they think this is not allowed

      1. The issue was not if if the disclaimer was allowable or that a timely disclaimer might have changed the BRC claim construction TEST. The issue is whether a disclaimer can be effective to change the claim scope test* when it is only filed and argued at the last minute in a proceeding for which Congress has set a statutory time limit.
        [But even in D.C. patent litigation, which has no time limits, I would love to be a fly on the wall to observe the Judge's reaction when you try to tell a Judge just before his or her final decision that he or she has to do the whole trial over again because you just filed a new paper raising a new issue.]

        *There is also no indication in this PTAB decision itself that the change from BRC to a narrower interpretation would have clearly changed the IPR final result. It would be interesting to see that argument, because unless they had provided sufficient evidence of record to support that, the change from BRC is irrelevant, and how could they win an appeal?

        1. I think the issue is larger than that curmudgeon.

          Think scope of power of a closely aligned Article Court (closely aligned with the direct agency and the apparent lack of objectivity when that agency also has a directive to promote policies).

          There is a larger administrative agency power issue in play (in and beyond the immediate case).

          1. Article Court

            should read

            Article I Court

            (you may also want to read up on the differences between Article I and Article III courts)

          2. I hope this does not represent more fantasy wishing that our present Supreme Court is going to declare all of the PTO post-grant systems [which Congress enacted three times] unconstitutional. [To make it much easier to sue on and collect settlements to avoid litigation costs on patents allowed with only brief and incomplete prior art searches?] Such a constitutional challenge was already made against reexaminations years ago, and failed even at the Fed. Cir.
            [Also note the many years of PTO interference proceedings removing claims from issued patents on prior art grounds [instead of inter-party priority], on which interference system the present post-grant systems are modeled to a considerable degree.]

            1. I hope this does not represent more fantasy wishing that our present Supreme Court is going to declare all of the PTO post-grant systems [which Congress enacted three times] unconstitutional.

              Keep hoping. TB’s other fantasy is that the Supreme Court is going to chuck all its 101 jurisprudence out the door and abstractions such as mental processes will be eligible for patenting (“because they’re processes!”). Somehow he believes that the issues we discuss here regularly will just disappear when that happens and, magically, we’ll suddenly see incredible “progress” in the the “art” of software writing.

              That’s how deep his head up his behind.

            2. Somehow he believes that the issues we discuss here regularly will just disappear

              That’s some pretty odd spin – coming in reply from you to my wanting the Court to take notice of what is shared here, you have me wanting the Court to somehow NOT take notice…

              …couple that with the fact that your spin of “discuss” is that you merely want to get on your soapbox – and you refuse to discuss the issues as you perpetually refuse to acknowledge and integrate the valid counterpoints raised in discussions – you know, in an actual exchange of ideas or to use the exchange to reach a decision based on that exchange. Instead, what you are really after is the rather bland pursuit of shi11ing for a single viewpoint that would make the valid counterpoints raised simply disappear – the opposite of a discussion.

    2. Curmudgeon, indeed. The entire trial goes forward with a given claim construction. On the eve of oral argument, the patent owner, apparently represented by Robert Greene Sterne (what does he have in common with John Wilkes Booth and Lee Harvey Oswald?), attempted to file a terminal disclaimer which the patent owner contended required that the claim construction to switch from broadest reasonable interpretation to the construction of the courts. This tomfoolery was summarily rejected by the Board, and rightly so.

  10. Slightly off topic but for a bit n byte I have been working on a lot of CN apps here of late and boy let me tell you, they’re just a joy to work on. Typically they lead with a psuedu picture claim where what is most likely novel stands out like a sore thumb, and their english/spelling is typically worlds away better than JP apps. And while their inventions may seem sort of lame-o they aren’t that bad.

    I guess with a billy people standing around to pick from you just pick the best of the best with honors and you end up with some pretty good folks doing their patent work.

    1. I should also add that as of yet at least they don’t seem very technically sophisticated so that makes the app all that much more easily examined :)

      1. …because making things easier for the examiners should be the number one property of any innovation promotion system…

        /eye roll

  11. The problem with Timothy Lee’s article is that aren’t these patent lawyers (which the Fed Cir judges are allegedly cozing up to) the same ones representing defendants in patent infringement cases?

    1. R, I think the IPO and the AIPLA are two of the organizations that host the judges quite a bit. These two organization seem to me to be tools of the big company as in the past few years they have both been strongly anti-troll and pro-AIA, both positions that favor the big companies at the expense of the individual and startups. So, when judges attend these events, they get an extremely one-sided pitch.

    2. Tim Lee calls for abolition of the Federal Circuit every week and twice on Mondays, and marshals all sorts of bogus facts in support of his crusade. The only sadder thing is watching people following him

  12. Two points on the First Congress:

    1. First to invent was adopted.
    2. “Science and useful Arts” were treated as goals, not limits.

  13. and another bit: my pal Hal notes that tomorrow is day 700 since the last congressional oversight hearing on the shadow-run executive agency that is the patent office.

    Asleep at the switch matches asleep at the wheel…

      1. Reminds me of that old joke about hoping to pass away like my old uncle, quietly, in sleep, rather than kicking and screaming right to the end, like the passengers he had in his car at the time.

  14. Re Rader, the problem with the CAFC isn’t coziness, it’s exclusive jurisdiction over patent matters. Whereas the opinions of any other Federal Circuit court are routinely analyzed by the other Circuits, the CAFC’s opinions are not. They can issue an opinion and no peer court(s) will call them out for faulty reasoning, inconsistency, etc. Not good. While Fed Circs (not CAFC) all deal with each other’s opinions, not the CAFC. The only scrutiny they get is from the Supremes. Telling, isn’t it, that the rate of Certs for CAFC opinions is increasing.

    1. Roberts “dry remark” about the Federal Circuit showing unique reluctance to follow their opinions also should be noted by Congress.

      Regarding the original justification for the court, forum shopping, the copyright and trademark laws are also national rights, but there seems to be no real problem in allowing regional circuits develop the law. They do criticize each other, and this does help develop the law.

      As I have noted before, the real impetus for the Federal Circuit was to merge it with the CCPA that was viewed as patent friendly by the bar, especially since Rich, a bar mover and shaker, was a leading member of that court. The effort paid off with decades of pro-patent rulings by a court whose judges were never criticized by their colleagues in other circuits, and who spent a lot of time being feted by the patent bar lobby groups. The result was entirely predictable and probably was predicted.

      1. History – now being ignored – patent law did NOT coalesce following how many years after the 1952 Act…?

        1. Listen, anon, I fully support the notion that the Court needs to ground its decisions in the statute — and this is particularly true of 101.

          Rader went beyond this — especially when he read “new” out of 101 in his opinion in Alice.

      2. Further, this impetus and ‘motive’ was that sanctioned by Congress – as is permitted under the constitution.

  15. “Activist/Journalist Timothy B Lee writes: After a scandal at America’s patent court, it’s time for reform.”

    Mhmmmm. Timely.

    “Mr. Rhodes: I can’t suggest what the Court might finally decide other than to say that — that, again, the circuit courts of appeal have uniformly applied this. They seem to be –

    Chief Justice Roberts: Well, they don’t have a choice, right? They can’t say, I don’t like the Supreme Court rule so I’m not going to apply it, other than the Federal Circuit.

    (Laughter in the court.)”

    Lulz.

    link to thepriorart.typepad.com

    1. I can’t think of another circuit court in history the United States that has been openly critical of the Supreme Court other than the Federal Circuit and the CCPA before it. Some years ago I was reading a law review article written circa 1950 about a Supreme Court case, where the author noted that the CCPA had declared that it was not going to follow the Supreme Court opinion.

      The battles of the CCPA, and in particular, Judge Rich, with the Supreme Court over various doctrines such as functionality, patentable subject matter, and the standard of invention are legendary. Rich went so far as to lecture the Supreme Court on the proper construction of the statutes in In re Bergey.

      The reason that the Supreme Court took KSR was that the Federal Circuit refused to follow its cases on obviousness. The reason that the Supreme Court has taken up the Nautilus case is that the Federal Circuit refuses to follow Supreme Court cases such as United Carbon . And of course, the reason that Supreme Court takes up cases like Prometheus and Alice is because the Federal Circuit simply refuses to get it.

      No other circuit court has his tendency to defy the Supreme Court. The animus against the Supreme Court is not confined to the CCPA and the Federal Circuit. It exists throughout the patent bar. One can see it’s manifestations here on this blog, with many identifying the Supreme Court as the problem, not the Federal Circuit.

      But the tail does not wag the dog. It is high time that Congress look at the problem seriously. And the problem is not the Supreme Court.

      1. Rich went so far as to lecture the Supreme Court on the proper construction of the statutes in In re Bergey.

        Your adulation of the Royal Nine – and deprecation of a man more knowledgeable about the law and the intent of the law than any other man that ever sat on the bench is remarkable in its backwardness.

        You continue to ignore where the blame for the mess of 101 jurisprudence rightfully belongs.

        The “animus” you see is heavily colored by the rose glasses you wear that reflects a highly selected and parsed view of the Supreme Court, not surprisingly aligned with your agenda against what the law – as written in 1952 – actually is.

        Quite contrary to your bias-steeped sentiments, the Supreme Court is the problem. And Congress already acted in reply to a judicial activist Court that earned the adage of “the only valid patent is one that has not yet appeared before us.”

        Your proselytizing f00ls no one Ned.

      2. “where the author noted that the CCPA had declared that it was not going to follow the Supreme Court opinion.”

        Lulz, what a tradition. No wonder patents are so messed up in terms of their jurisprudence.

        “And of course, the reason that Supreme Court takes up cases like Prometheus and Alice is because the Federal Circuit simply refuses to get it.”

        At some point people will begin to talk.

        “It exists throughout the patent bar. ”

        Well of course, the USSC is the one thing that stands between the patent bar and infinite power over the everythings new. Essentially, the entirety of the future, so long as they can predict it.

        1. and infinite power over the everythings new. Essentially, the entirety of the future, so long as they can predict it.

          That’s some pretty heady delusional stuff there 6.

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