An Open Letter from Judge Rader

June 30, 2014 is Judge Rader’s final day on the bench. Judge Rader has – and I suspect will remain – a lightning rod for both criticism and support. What I love is that his continued focus is on the law and what we can do to improve its function. Judge Rader forwarded the following letter to his Federal Circuit colleagues and gave me permission to distribute its contents to Patently-O readers.

My Dear Colleagues (for the last time I presume to call you “colleagues”),

Over three and a half decades ago, I sat across from Howard Markey, Chief Judge of the Court of Customs and Patent Appeals, in my Senate Judiciary Committee office. In a meeting I recall with stunning clarity, he showed me the vision of a court dedicated to the uniformity, consistency, and strength of vital areas of commercial law to be entrusted to the new Federal Circuit. Inspired by his dreams, I set out to work vigorously for the enactment of the Federal Courts Improvement Act of 1981. To this day, I regret that I allowed judges from the Ninth Circuit to dissuade me from offering an amendment to include copyright and trademark cases within the jurisdiction of the Federal Circuit. To this day, however, I rejoice that I obeyed Chief Judge Markey’s request that I hear cases every month without a break as a circuit judge.

Less than a decade after that first meeting with Chief Judge Markey, after two years as a trial judge, I took a seat on the court that I had helped to create. You can imagine my feelings of awe as I took a seat on the bench beside the legends, Howard Markey, Giles Rich, and Daniel Friedman. As the years passed, I delighted to recount both in my own private deliberations and in public events the great wisdom I absorbed from those masters of the judicial office.

Time flies on wings of lightning. Before you can comprehend, many of you will be delighted to recount both in your own private deliberations and in public events the great wisdom you absorbed at the feet of the legends, Polly Newman, Alan Lourie, and Bill Bryson. Yet another page will turn and some of our current law clerks and interns will occupy judge’s chairs and recount both in their own private deliberations and in public events the great wisdom of the legends, Evan Wallach, Ray Chen, and Todd Hughes.

With the passing of each judicial generation, I hope that the Federal Circuit perpetually renews Markey’ s vision of a judicial institution unlike any other in the world. To no other court does a nation, let alone the most powerful economic nation in the world, entrust legal decisions that shape world trade, innovation, and core commercial policies. Yet I can vigorously attest that this vast responsibility could not rest in more secure and capable hands. At some distant point in the future, I hope to sit again across from Howard Markey; I will assure him that his vision has been realized. . . and sustained!

Now in a few minutes, I will start my car and ascend the ramp to H Street for the last time. At the top of the ramp, I will step out of my car for a moment to embrace my law clerks. With that embrace, I wish to symbolically embrace and commend the greatest bar in the world. No practicing lawyers anywhere in the world contribute more to the competent jurisprudence of their court than the lawyers who make up the Federal Circuit bar. Just as legendary judges pass perpetually the torch to new judges, so too Don Dunner, Bill Lee, Seth Waxman and others have set standards of excellence that will be matched by newer attorneys who will become themselves legends of reason and persuasion.

Then, there at the top of the ramp, I will slap a “high five” to the security officers on duty at the gate. With that salute, I wish to symbolically honor and recognize the entire staff of the Federal Circuit — the Administrative Services personnel under Dale Bosley, the Technical officers under Mona Harrington, the Library staff under Pat McDermott, the General Counsels under Doug Steere, the Clerk’s office and the entire staff led so marvelously by Circuit Executive Admiral Dan O’Toole. No court staff anywhere can exceed these incomparable professionals who, as much as any judge, have contributed to the superb reputation that the Federal Circuit will carry into coming decades.

With eyes misted over with magnificent memories, I will then turn my gaze to the horizon. I will hope to find new ways to contribute to the uniformity, efficiency, and predictability of the law. No matter what opportunities I receive in my next legal “life,” I know that no honor can ever exceed the opportunity that I had to contribute to the United States Court of Appeals for the Federal Circuit. Thank you, brothers and sisters, for the vast honor of sitting at your side. God save this honorable court!

Your friend for life, rrr

116 thoughts on “An Open Letter from Judge Rader

  1. As a young patent attorney in the ’60’s I believed in the patent system. Now, not so much. Justice Douglas hated patents but venerated copyrights. (Perhaps, because he published books and received royalties.)

    Without Judge Rader, who will define the term, “reasonable certainty,” in a manner reasonably favorable to the inventor? I am not aware of a Markman hearing where the defendant did not challenge every operable term in a claim. Is “reasonable uncertainty,” the new hallmark of an invalid claim?

    The current system is truly a mess and I have great reservation in recommending that a client file a patent application. Riddle me this, is a box with a handle indefinite?

    1. Rick, I can only hope the Supreme Court addresses this issue in the upcoming case on claim construction and findings of fact. They said in Markman that the jury should not decide disputes about claim construction, but should still decide infringement. But is this the same when the patent is challenged for invalidity? Can an accused infringer introduce evidence of his paid (unbiased?) expert to opine that the claim terms are not reasonably certain to one of ordinary skill, and not have the jury decide that issue which so depends on credibility?

      As you know from the jury trials you have conducted, the testimony of experts on paper may appear to be close. But in court, when they testify, the truth becomes apparent. The insincere expert comes across like a used car salesman selling a known lemon. Juries can spot this. And when the validity of the patent hangs in the balance, and not just the issue of infringement, we should let the jury decide.

      1. I believe the Supreme Court in Nautilus at least recognized that we draft claims to those skilled in the art.

    2. “Riddle me this, is a box with a handle indefinite?”

      Only if the person filing the claim on such is paranoid.

  2. That open letter was smarmy and tactless. If Rader was like that as a chief judge, he may not have had many allies on the court.

    1. You think his writing is smarmy and tactless?

      You should check your own – you preach about finger wagging and yet you wag your finger.

      You preach about holding and dicta, yet blindly (and badly) obfuscate the two.

      You preach about statutory construction and the importance of the statutory classes, then spin pure B$ that aligns with your agenda, but that is clearly not supported by ANY reasonable view of the statutory text, the congressional record, Frederico’s personal commentaries, the Cornell Law website notes – nothing but badly garbled Ned-IMHO-law twistings.

      You preach about not wanting to be badgered, but refuse to take seriously any comments that detract from your Ned-IMHO-views and proceed to carpet bomb that same faulty position dozens of times over and over and over again.

      The pile of glass shards from where you cast your stones cuts you to ribbons, and you seem blithely unaware.

      1. anon, the fact that you and I disagree on some issues does not mean that you are right and I am wrong. I support my arguments with case law. At times, you do also.

        However, when we disagree on a particular proposition or what a case holds, you never really engage, either with me or with anybody else. Your sum total of argument is to simply say the people you disagree with are wrong.

        1. Ned,

          The fact that I am right on the particular issues shows up in your refusing to even address the points that I raise.

          Each of my criticisms above relate to the shenanigans that you pull in order to avoid addressing the issues I raise and bringing our discussions to their logical conclusions.

          You “support” your arguments with errant case law – your version of case law – there is a huge difference.

          It is quite disingenuous to have you now pull a AOOTWMD and accuse my of not engaging, while you continue to run away from the points that I engage with.

          1. anon, in matters of opinion, there is no right. In matters of what a case holds, really depends on the facts — which you consistently refuse to discuss.

            When a court rules on a position you advocate, I then have and will acknowledge then that you had it right.

            By the way, anon, what is your view on Phil Johnson, the next director?

            1. Merely labeling something “opinion” really does not mix all that well with law.

              You tend to want to get bogged down on facts – the notion of Rule of Law is above that, Ned.

              Case in point is your over-reliance on the Royal Nine, and your refusal to see that it is not they who rightfully get to write the law is reflected in your comment “When a court rules

              Up your game, man.

  3. Judge Rader should have read the code of conduct a little more carefully. There are only a few canons about a page long…

    Code of Conduct for United States Judges

    Canon 2(B): A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness.

    Commentary 2B: … A judge should avoid lending the prestige of judicial office to advance the private interests of the judge or others. For example, a judge should not use the judge’s judicial position or title to gain advantage in litigation involving a friend or a member of the judge’s family. In contracts for publication of a judge’s writings, a judge should retain control over the advertising to avoid exploitation of the judge’s office.

    1. Judge Rader’s shout-out to his pals Dunner, Lee, and Waxman suggests that he still doesn’t understand how he got into this situation in the first place. Either that or he is intentionally giving a rhetorical finger to his critics.

      Just how much is an endorsement from the former Chief Judge worth to an appellate practice group?

      1. “Judge Rader’s shout-out to his pals Dunner, Lee, and Waxman suggests that he still doesn’t understand how he got into this situation in the first place. Either that or he is intentionally giving a rhetorical finger to his critics.”

        I thought about that myself, but I figured if he’s getting pushed out then so be it.

        1. Yeah, the code of conduct probably doesn’t even apply on your last day, right?

          Where is Dave “Ethics” Hricik, by the way? We haven’t heard from him on this topic.

            1. It seems to me that the relevant facts are right up there in the “open letter,” but I certainly understand that you really can’t/shouldn’t talk about it.

              From what I can tell, Judge Rader would make a truly wonderful friend. I wonder, however, whether the qualities that make him a good friend contribute to an apparent blind spot with regards to avoiding an appearance of impropriety. Given his gushing tribute to his friends, I can’t blame anyone who ever appeared before Judge Rader opposite one of these “legends” for wondering whether he or she ever received a fair shot. I’m certainly not saying that Judge Rader ever failed to be impartial, but his lack of judgment on this issue suggests to me that his resignation is a good thing for the court.

              There may well be aspects of this that I’m not appreciating, so I’m truly interested to hear an opposing viewpoint on this issue.

              1. “There may well be aspects of this that I’m not appreciating, so I’m truly interested to hear an opposing viewpoint on this issue.”

                You’re not likely to get one save perhaps on the part about impartiality. I’ve had my doubts for some time now ever since I read some of the travesties of “reason” that are some of the higher profile cases he decided in years gone by. Though he certainly is not alone in prickling the hairs on my neck with regards to the fair shot.

                Fact is also though that the patent bar is very much so cozy with the fed. circ. and I’m surprised that there isn’t more public outcry about that (in so far as this might just now be being uncovered or reported).

                There are quite a few things in patent land that lends itself to the appearance of impropriety, it’s just that the whole field hasn’t been big enough to garner enough attention until not long ago. So it is hard for me to come down on the one instance while turning a blind eye to all the others.

    2. Judge Rader should have read the code of conduct a little more carefully. There are only a few canons about a page long…
      Not that I agree with what Rader did, however, let’s remember that certain “Canons” include the phrases “shall” or “must” and others contain the phrase “should.”

      I have had to explain to Examiners, on many occasions, the difference as it applies to the MPEP. Should doesn’t mean shall.

      1. While you make a solid point, Oh no, I would still find fault with the ‘transgression’ here – but barely nominal fault and certainly no harm from that fault.

        Unlike the previous transgression, the context of the judge leaving office – verily on his actual way out – removes the concern that the judge will be acting in ANY untowards manner going forward.

        Does it call into question whether he gave ‘fair shakes’ to all before him?

        I say they nay – read the comment again – it is a platitude to recognized excellent performance and not to persons regardless of recognized excellent performance.

        I would daresay that someone trying to make a mountain out of this molehill should be evaluated themselves for ulterior motives.

        1. Most of those are very good points, anon. I’m not buying Oh no’s suggestion that a judge gets a free pass on those canons that use the word “should,” however.

          Once again, I’m not suggesting that Judge Radar ever acted with any conscious bias. (We all have unconscious biases, of course.) I am saying, however, that repeated public endorsements of his friends while still on the bench, even if the second occasion was on his last day, suggests a surprising lack of judgment.

          In the words of a great philosopher, “That’s all I have to say about that.”

          1. I “get” what you are saying about “lack of judgment” but fully distinguish the last day actions.

            I see more weight in your “give them the finger” notion.

        2. Rader, in his last writing as judge, used the prestige of the office that helped private individuals. Incredibly unprofessional. Law firms are very competitive and want important clients… and what will this letter do but help some law firms above others? So, yes, this has implications going forward.

          Is it as detrimental as writing the letter that led to his resignation? No. But it is hard to match that catastrophe.

    1. Tarantula’s appointment illustrates this well. “I need someone to get those patents in line, but those pharma patents need to stay strong.” “Yes, Sir, I will do that. I have no qualms about holding all patents invalid except for the pharma patents, Sir. ” (Tarantula thinks to himself how easy it will be to kill off a system that he is completely ignorant of and never cared about before his lust for an appointment. How pesky, he thinks, it will be to have to learn something about science and innovation, but he thinks it doesn’t matter just hold everything invalid.)

    2. Obama wants to preserve patents for pharma and weaken all other patents.
      I know you have a very conservative slant (somewhat like Gene Quinn). However, remember who gave us Dudas and who gave us Kappos.

  4. Love him or hate him, he was a cool guy to have a drink with. First Mormon I ever met that drank.

      1. My experience is that a lot of Mormons enjoy a taste of fire water when they are pretty sure that their Mormon friends aren’t going to make a surprise appearance.

        They are human, after all.

  5. Don Dunner? It’s too bad the old archives of patently-o aren’t searchable.

    Give me a break. Rader comes off like a self-aggrandizing narcissist–and not just in this letter. It’s too bad the old archives of patently-o aren’t searchable.

    Randall Rader, the hero of his own life. If he was only half as good as he thinks he is, we wouldn’t be in the mess we are currently in.

    1. Oh…this is the best thing to happen since Paul Michel left the bench.

      Unfortunately, one of my maxims is in play: “No matter how bad you think a situation is, IT CAN ALWAYS GET WORSE.”

      Enter Taranto, and especially Sotomayor. It is mildly amusing to me that you people continue to play in this fetid cesspool.

      I am absolutely serious.

  6. Rich and Rader long fought the judicial exceptions to patentable subject matter — I think on the basis they were non statutory.

    There’s a right way to do that and a wrong way.

    The right way is to acknowledge that without the judicial exceptions the 1952 patent act created an absurd free-for-all that represented a far more radical change to patent law than any Supreme Court or Federal Circuit case ever did.

    The wrong way is to just stick your head and the sand and pretend that everything is cool because your friends are making a lot of money and, hey, just let lawyers be lawyers.

    Rader chose the latter way. That’s his legacy.

    1. far more radical change to patent law than any Supreme Court or Federal Circuit case ever did

      You still don’t get it that Congress is the branch of the government that can be “that radical” no matter what the judiciary “feels.”**

      ** see the legal discussion – apart from fee-fees that I have already pointed out.

      1. You still don’t get it that Congress is the branch of the government that can be “that radical” no matter what the judiciary “feels.”**

        I totally get that.

        But there is nothing in the Congressional or historical record that remotely suggests Congress was trying to be make the radical changes that you and Hricik and his disgraced boss think they made.

        But keep hacking away. It’s what you do best.

        1. nothing?

          Not so and I have shown the Congressional record, Frederico’s commentary and the Cornell Law links to back me up.

          You have shown nothing but ad hominem and your fee-fees.

          1. Not so and I have shown the Congressional record, Frederico’s commentary and the Cornell Law links to back me up.

            Complete and utter b.s.

            You’re a joke.

              1. ignore history

                Step up to the plate, Billy, and show everyone your evidence that Congress intended to allow applicants to protect mental processes.

                Or continue pretending that the issue that keeps smacking you in your weeping baby face doesn’t exist.

                Your choice.

              2. Asked and answered

                No, that never happened except in your feeble mind.

                Calling Professor Hricik! Your little sidekick is having another “ethical moment.” Can you please set him straight?

        2. But there is nothing in the Congressional or historical record that remotely suggests Congress was trying to be make the radical changes that you and Hricik and his disgraced boss think they made.
          If in doubt, check the statute. Does the statute limit patentable subject matter in the manner you think? No. As has been recognized thousands of times, the statute was expansively written. If Congress wanted to exclude certain subject matter (e.g., mental processes) they could have easily done so in 1952. They could have also easily done so in the latest patent reforms.

          I get that you dislike a lot of patentable subject matter. However, your personal likes and dislikes bore the heck out of me. At least Ned will cite case law (oftentimes inaccurately, but he does try) and 6 is humorous as the board fool. You, on the other hand, are the guy sitting in the corner of the bar constantly mumbling to himself how the world is all wrong and everybody is out to get you. Your shtick may seem interesting for the uninitiated, but hearing the same diatribe over and over and over again, year after year after year, gets old really fast.

          If I see a long post from you, I immediately skip over it as I know that it will add nothing new to the conversation.

          1. Dead nuts accurate Oh no.

            However, his playing the t001 can still yield some fun by pointing out just what a hypocrite he is.

            It still is a game to see if he ever will venture forth (again) into the the land of substantive comments on the merits. The last few times that he has attempted to do so, he has scorched his widdle fingers badly.

            That’s why he only pounds tables with “policy”/opinion and stays away from any discussion founded in actual law or fact. He is the poster child for how NOT to argue a legal position.

      2. “But there is nothing in the Congressional or historical record that remotely suggests Congress was trying to be make the radical changes that you and Hricik and his disgraced boss think they made.”

        You have to remember MM, anon has made up a fantastical story where there totally is. The story comes complete with evil incompetent judges out to get patents and exceed their authority. So to him, there totally is something in the record that indicates that. He will not let go of this Pseudologia fantastica sans confrontation irl. Apparently though he’d let it go if you confronted him irl.

            1. J,

              The citations have been many and plentiful. See the Congressional record from the 1952 Act. See Frederico’s commentaries. See the Cornell Law website and their notes (especially on 35 USC 103).

              Pay attention man, as I have provided abundant links in the past.

              1. The citations have been many and plentiful.

                No, the citations that prove that Congress intended to allow applicants t0 patent mental processes aren’t many and plentiful because they don’t exist.

                See the Congressional record from the 1952 Act. See Frederico’s commentaries.

                Just show us the cites that are directly on point? What exactly is the problem, Billy? If they don’t exist, then just admit it. Then put on your big boy pants and apologize for your sad charade.

                Or continue behaving like a certifiable l00nytunes. Your choice.

              2. except to

                LOL – that’s intended to be a joke, right?

                The ONLY thing you are willing to do is play your stale med-control line.

                I get it – actually having a conversation on real points of law, using real facts (from this reality) just does not work out too well for you and your fee-fees, so you run away (as typical)>

                Except to

                Ahhh, that’s pretty funny if you think about it.

            2. J, anon has enough citations etc. that he can argue support his view to make his fantastic story (Pseudologia fantastica really) not completely outside the realm of possibility. That’s what characterizes the pseudologia fantastica as a phenomena. The problem is, nobody, or practically nobody, irl and in positions of power really believe his fantastical story is how things went down and that his interpretations of the citations are correct. Not to mention that it is pretty clear to any everyday lawyer off the street that he’s gone too far into the fantastic after reading his “citations” etc. It seems likely though that given his preoccupation with ethics that in his mind it’s totally true (regardless of what others think and regardless of how many other perfectly intelligent people tell him otherwise).

              link to en.wikipedia.org

              1. He’s just trying to help you get a grip.

                You do realize that you are always going to be on the losing end of this discussion, “anon”. Like, forever.

                It seems likely that in the back of your tiny mind you and your fellow “soldiers” are hoping for some civil war after which self-interested patent fundies like you get put in charge of everything. The odds of that happening are precisely zero. Just letting you know. You’d be better off hoping for an asteroid to hit the earth so we can have a total re-start.

                Mental processes will never be eligible for patent protection. Ever. Never were. Never will be.

              2. You want to try to focus on the real issues Malcolm?

                Try not to insert your Totally In The Mind stuff for which I take Les’s keys away from him.

                Focus, man – focus.

              3. The contempt is for your little silly med-control games, under the guise of “Gee, I’m trying to understand you” (which no one buys given your professed belieb system).

              4. “The contempt is for your little silly med-control games, under the guise of “Gee, I’m trying to understand you””

                Regardless of what specific action it is in response to it is still for me, and I’m trying to understand you. There is no doubt about that.

                Indeed, I’ve spent hours and hours trying to understand your behavior, since the conditions underlying such are very interesting. It almost makes me want to have become a psychologist.

              5. …only so much as it serves to enable your attempted control 6.

                You are that transparent.

                Take the log out of your own eye first, before you get so obsessed with any perceived mote in my eye.

              6. “…only so much as it serves to enable your attempted control 6.”

                Anon, be honest, what do you think I’m trying to “control” you into doing?

                Going to see a therapist like one time in your whole life for like an hour? Because sure, I’m applying social pressure for you to do so in an attempt to control you to get you to go.

                Or to simply get you to stop being an arse? Because that’s what exhibiting psychopathic symptoms or OCPD symptoms boils down to in everyday interactions. Because yes, there again, that is something I’m trying to apply social pressure to you to get you to stop. Though I know you cannot simply command that a mentally ill person be better regardless of whether or not he wants to or not. So I can assure you that we need to go back to the first thing I mentioned just above regarding a therapist.

              7. First I’d like to also note that psychopathy and OCPD are not mere motes brosef. Though they no doubt subjectively seem like such to the person with them. They are, compared to the “log” in my own eye, more like the empire state building than a mote. They are “for srs business” so to speak.

                Though next I’d like to take this opportunity to say that I cannot heal you brosef. I don’t have the skill. I can make you aware of what the symptoms are, and you can make conscious effort to not exhibit those symptoms by posting about x y and z (and that is a great start to be sure and you are to be commended) but there are underlying thought patterns that I do not possess the skill to treat. Based on your previous “equating” mere “wanting to be right” to “wanting to win” I don’t even have the skill to make you fully aware of what the symptoms themselves are, though I suppose in time I might achieve that. At least you’re starting to get the picture and that is truly commendable my hat is truly off to you in that respect.

                To truly be treated could take years and may never really work, especially with the psychopathy. For psychopathy it’s really in depth for treatment. It’s really a big problem because the brain literally is physically different in some respects. The treatment for OCPD is really more of them simply getting you to make a choice and that seems to be more easily achieved. Though it still is not really easy. But just making progress on the OCPD could make a world of difference for you man.

                Frankly my hat is off to myself for even getting you to understand even a little bit what the conditions are, and put the effort in to trying to modify your behaviors even a little bit. I’ve not been oblivious to the fact that you’ve restrained yourself from various behaviors. You’ve refrained admirably from telling others they’re wrong for the most part, though you did mention your being right at least once since we last talked a week ago. Though you may still be doing such irl I cannot say. Still, a mere once or twice in a week on PO is a vast improvement. Sure, you’re not perfect, but at that rate, you’re almost normal. If you were to work then on your rigidity regarding the right/wronging and only did the right/wronging like once a week, you’d practically pass for normal even if you weren’t actually quite there in your thoughts.

                Such modest progress in such a short period of time almost makes me want to have been a therapist.

                One other thing I will say though anon. Even if you are a lawyer you do not always have to be right. You don’t even have to win every case. Lord knows the id iots practicing before me are not always right. And they’re some of the best of the best (with honors). They even admit they were not right quite often. And they lose. But they also sometimes win. They even win sometimes when they’re not right. Sometimes they’re right and they still “lose” (occasionally that gets rectified later, sometimes not). Sometimes they win.

                You just give it your best shot brosef, then let the decisions fall where they may. Take it easy on yourself, ya know? And if your employer/client is an ar se hat about these sorts of things then find a new job. It’s a big ol world out there. Technical positions, legal positions, etc etc. Though I think you’d be pleasantly surprised how tolerating employers are so I doubt you’d have much trouble on that front.

              8. , I’m applying social pressure for you to do so

                LOL – gee 6, I thought “applying social pressure” was what you were all about in accusing me of doing – no here, you admit to that very thing…

                …hmm, there’s an acronym for that…

                Ah yes, AOOTWMD.

                t001

              9. “I thought “applying social pressure” was what you were all about in accusing me of doing”

                First I’d just like to say that it is wonderful to hear that you’re at least thinking about this!

                Second I’d like to say that this is precisely the juncture where being a trained professional would likely make all the difference because someone untrained like myself could jolly well f this up (and likely will)!

                Next though let me please beg of you some understanding in that when I point out potential similarities between recognized symptoms of established disease(s) I do not mean to “accuse” you anon. Even if I’m a bit of an ar se that day. Truly, having developed these conditions is largely beyond your deliberate control so far as I can tell. Nobody for instance wakes up in the morning one day when they’re 15 and decides to be a psychopath or to develop OCPD on purpose. Thus, you are pretty much just as much of a “victim” in this situation as are all the rest of the people affected by the behavior who are typically referred to as the victims. That is, in my book at least. Many other people don’t see it that way. Even so, just for example, I will refer to the traditional “victims” as the “victims” just for convention.

              10. But let’s discuss for a moment the distinction between interpersonal control in the context of OCPD and mere everyday social pressure.

                First everyday social pressure is simply pressure from one’s peers to behave in a manner similar or acceptable to them (or to a group for that matter). Note the part about “behave”. Behavior simply being one’s actions or reactions generally, though generally considered as divorced from the specifics of the situation.

                For example, in “billy punched suzy (an action) because he thought she took his toy”. The behavior is simply the punching. Not the punching specifically in response to the thinking about the toy taking.

                Now I want to make clear that you definitely do toss in some of this social pressure in your posts. You most certainly do. That however is not what anyone takes issue with. Well, they don’t take issue with it except for the comical manner in which you often attempt the social control by using little “psychopath ‘isms'” you’ve made up (self-fails, aootwmd etc.) and generally they can just laugh that off. For instance, nobody cares when you try to tell MM to not post like an ars ehole when he posts like an ars ehole (because he does on occasion), in fact many folks may well appreciate that social pressure being applied. Though when applied by you it will necessarily have a diminished result due to many factors beyond the scope of our discussion :(

                Let’s move on to what people do take issue with, your attempts at inter-personal control, so that we may contrast. Interpersonal control being control attempted in an inter-personal interaction (it can also happen in a relationship irl, but let’s set that aside). That is, in your case and on PO, you will quite often attempt control over what the other person says during the inter-personal interaction which goes beyond attempting control of merely the behavior itself. Generally by demanding the other party bend to your views or concede to one of your appeals to authority. Not simply presenting your views, and attempting to persuade (you ha te doing that). Instead, you just demand (usually implicitly rather than explicitly but sometimes explicitly) that the other party comply, generally even during the conversation itself.

                For instance, you have indicated explicitly that the reason you post in reply to many threads is simply to rebut other’s positions consistently and to “shove their little faces in dog do” or whatever, until they post with the content you desire. You don’t simply want them post in the manner you often desire (say MM not be ing an insufferable ar se that day) but with the content you desire (hardware =software = equivalent =yay!).

                And keep in mind, that even a bit of inter-personal control would be fine, or maybe “normal”. It is when there is a preoccupation with it that it becomes indicative of OCPD. (Preoccupation being blatantly and explicitly indicated by your assertion that you posted for years and years to shove their little doggy noses in it or whatever, and you totally did). In other words, you’re doing the same inter-personal control sht, all the time, perhaps even for years in inter-personal interactions.

                Contrast that preoccupation with interpersonal control with how the others are around you. They don’t really mind if you post your views, your own “content” so to speak. Especially if you just did so on occasion. They may mock you for what you have said being silly, self-serving or inquire about something etc, but they do not demand (explicitly or implicitly) that you conform what you say on your side of the conversation to what they want you to say before they will stop outright harassing you. Though they may try to persuade you they don’t demand you bend to them to have them stop messing with you. And they certainly do not indicate in any manner that they are preoccupied with attempting inter-personal control,

                Now, all that said, I’d like to commend you in that of late you have curtailed this particular behavior (the act of attempting inter-personal control) over the last few months as well as many of the other symptoms as I manage to point them out to you. And for that, I say Huzzah to you! And though I’m pretty sure that the thought has popped into your mind to engage in that behavior because you’re most likely still preoccupied with it, at least you’re curtailing the behavior that results from the preoccupation. I likely don’t have the expertise to treat those thoughts that preoccupy you, which are the real root of the condition. Even so, I must commend you on the way you have behaved, and if by some chance the preoccupation has left you as well, HUZZAH!

                Note also that my attempt to curtail the noted behavior through applying social pressure was a moderate success up until this point :) And I hope it continues and gets even better!

              11. But let’s discuss for a moment the distinction between interpersonal control in the context of OCPD and mere everyday social pressure.

                First everyday social pressure is simply pressure from one’s peers to behave in a manner similar or acceptable to them (or to a group for that matter). Note the part about “behave”. Behavior simply being one’s actions or reactions g e nerally, though g e nerally considered as divorced from the specifics of the situation.

                For example, in “billy punched suzy (an action) because he thought she took his toy”. The behavior is simply the punching. Not the punching specifically in response to the thinking about the toy taking.

                Now I want to make clear that you definitely do toss in some of this social pressure in your posts. You most certainly do. That however is not what anyone takes issue with. Well, they don’t take issue with it except for the comical manner in which you often attempt the social control by using little “psychopath ‘isms'” you’ve made up (self-fails, aootwmd etc.) and g e n erally they can just laugh that off. For instance, nobody cares when you try to tell MM to not post like an ars ehole when he posts like an ars ehole (because he does on occasion), in fact many folks may well appreciate that social pressure being applied. Though when applied by you it will necessarily have a diminished result due to many factors beyond the scope of our discussion :(

                Let’s move on to what people do take issue with, your attempts at inter-personal control, so that we may contrast. Interpersonal control being control attempted in an inter-personal interaction (it can also happen in a relationship irl, but let’s set that aside). That is, in your case and on PO, you will quite often attempt control over what the other person says during the inter-personal interaction which goes beyond attempting control of merely the behavior itself. G e nerally by demanding the other party bend to your views or concede to one of your appeals to authority. Not simply presenting your views, and attempting to persuade (you ha te doing that). Instead, you just demand (usually implicitly rather than explicitly but sometimes explicitly) that the other party comply, generally even during the conversation itself.

                For instance, you have indicated explicitly that the reason you post in reply to many threads is simply to rebut other’s positions consistently and to “shove their little faces in dog do” or whatever, until they post with the content you desire. You don’t simply want them post in the manner you often desire (say MM not be ing an insufferable ar se that day) but with the content you desire (hardware =software = equivalent =yay!).

                And keep in mind, that even a bit of inter-personal control would be fine, or maybe “normal”. It is when there is a preoccupation with it that it becomes indicative of OCPD. (Preoccupation being blatantly and explicitly indicated by your assertion that you posted for years and years to shove their little doggy noses in it or whatever, and the fact that you totally did do exactly that). In other words, you’re doing the same inter-personal control sht, all the time, perhaps even for years in inter-personal interactions.

                Contrast that preoccupation with interpersonal control with how the others are around you. They don’t really mind if you post your views, your own “content” so to speak. Especially if you just did so on occasion. They may mock you for what you have said being silly, self-serving or inquire about something etc, but they do not demand (explicitly or implicitly) that you conform what you say on your side of the conversation to what they want you to say before they will stop outright harassing you. Though they may try to persuade you they don’t demand you bend to them to have them stop messing with you. And they certainly do not indicate in any manner that they are preoccupied with attempting inter-personal control,

                Now, all that said, I’d like to commend you in that of late you have curtailed this particular behavior (the act of attempting inter-personal control) over the last few months as well as many of the other symptoms as I manage to point them out to you. And for that, I say Huzzah to you! And though I’m pretty sure that the thought has popped into your mind to engage in that behavior because you’re most likely still preoccupied with it, at least you’re curtailing the behavior that results from the preoccupation. I likely don’t have the expertise to treat those thoughts that preoccupy you, which are the real root of the condition. Even so, I must commend you on the way you have behaved, and if by some chance the preoccupation has left you as well, HUZZAH!

                Note also that my attempt to curtail the noted behavior through applying social pressure was a moderate success up until this point :) And I hope it continues and gets even better!

              12. omg I h ate this filter!

                But let’s discuss for a moment the distinction between interpersonal control in the context of OCPD and mere everyday social pressure.

                First everyday social pressure is simply pressure from one’s peers to behave in a manner similar or acceptable to them (or to a group for that matter). Note the part about “behave”. Behavior simply being one’s actions or reactions g e nerally, though g e nerally considered as divorced from the specifics of the situation.

                For example, in “billy punched suzy (an action) because he thought she took his toy”. The behavior is simply the punching. Not the punching specifically in response to the thinking about the toy taking.

                Now I want to make clear that you definitely do toss in some of this social pressure in your posts. You most certainly do. That however is not what anyone takes issue with. Well, they don’t take issue with it except for the comical manner in which you often attempt the social control by using little “psychopath ‘isms'” you’ve made up (self-fails, aootwmd etc.) and g e n erally they can just laugh that off. For instance, nobody cares when you try to tell MM to not post like an ars ehole when he posts like an ars ehole (because he does on occasion), in fact many folks may well appreciate that social pressure being applied. Though when applied by you it will necessarily have a diminished result due to many factors beyond the scope of our discussion :(

              13. Part 2.

                Let’s move on to what people do take issue with, your attempts at inter-personal control, so that we may contrast. Interpersonal control being control attempted in an inter-personal interaction (it can also happen in a relationship irl, but let’s set that aside). That is, in your case and on PO, you will quite often attempt control over what the other person says during the inter-personal interaction which goes beyond attempting control of merely the behavior itself. G e nerally by demanding the other party bend to your views or concede to one of your appeals to authority. Not simply presenting your views, and attempting to persuade (you ha te doing that). Instead, you just demand (usually implicitly rather than explicitly but sometimes explicitly) that the other party comply, generally even during the conversation itself.

                For instance, you have indicated explicitly that the reason you post in reply to many threads is simply to rebut other’s positions consistently and to “shove their little faces in dog do” or whatever, until they post with the content you desire. You don’t simply want them post in the manner you often desire (say MM not be ing an insufferable ar se that day) but with the content you desire (hardware =software = equivalent =yay!).

                And keep in mind, that even a bit of inter-personal control would be fine, or maybe “normal”. It is when there is a preoccupation with it that it becomes indicative of OCPD. (Preoccupation being blatantly and explicitly indicated by your assertion that you posted for years and years to shove their little doggy noses in it or whatever, and the fact that you totally did do exactly that). In other words, you’re doing the same inter-personal control sht, all the time, perhaps even for years in inter-personal interactions.

              14. Part 2.

                Let’s move on to what people do take issue with, your attempts at inter-personal control, so that we may contrast. Interpersonal control being control attempted in an inter-personal interaction (it can also happen in a relationship irl, but let’s set that aside). That is, in your case and on PO, you will quite often attempt control over what the other person says during the inter-personal interaction which goes beyond attempting control of merely the behavior itself. G e n e r a l l y by demanding the other party bend to your views or concede to one of your appeals to authority. Not simply presenting your views, and attempting to persuade (you ha te doing that). Instead, you just demand (usually implicitly rather than explicitly but sometimes explicitly) that the other party comply, g e n e r a l l y even during the conversation itself.

                For instance, you have indicated explicitly that the reason you post in reply to many threads is simply to rebut other’s positions consistently and to “shove their little faces in dog do” or whatever, until they post with the content you desire. You don’t simply want them post in the manner you often desire (say MM not be ing an insufferable ar se that day) but with the content you desire (hardware =software = equivalent =yay!).

                And keep in mind, that even a bit of inter-personal control would be fine, or maybe “normal”. It is when there is a preoccupation with it that it becomes indicative of OCPD. (Preoccupation being blatantly and explicitly indicated by your assertion that you posted for years and years to shove their little doggy noses in it or whatever, and the fact that you totally did do exactly that). In other words, you’re doing the same inter-personal control sht, all the time, perhaps even for years in inter-personal interactions.

                Contrast that preoccupation with interpersonal control with how the others are around you. They don’t really mind if you post your views, your own “content” so to speak. Especially if you just did so on occasion. They may mock you for what you have said being silly, self-serving or inquire about something etc, but they do not demand (explicitly or implicitly) that you conform what you say on your side of the conversation to what they want you to say before they will stop outright harassing you. Though they may try to persuade you they don’t demand you bend to them to have them stop messing with you. And they certainly do not indicate in any manner that they are preoccupied with attempting inter-personal control,

                Now, all that said, I’d like to commend you in that of late you have curtailed this particular behavior (the act of attempting inter-personal control) over the last few months as well as many of the other symptoms as I manage to point them out to you. And for that, I say Huzzah to you! And though I’m pretty sure that the thought has popped into your mind to engage in that behavior because you’re most likely still preoccupied with it, at least you’re curtailing the behavior that results from the preoccupation. I likely don’t have the expertise to treat those thoughts that preoccupy you, which are the real root of the condition. Even so, I must commend you on the way you have behaved, and if by some chance the preoccupation has left you as well, HUZZAH!

                Note also that my attempt to curtail the noted behavior through applying social pressure was a moderate success up until this point :) And I hope it continues and gets even better!

              15. “…hmm, there’s an acronym for that…

                Ah yes, AOOTWMD.

                t001″

                There’s really no need for all this contempt for those that are attempting to understand you brosef. Really. There just is not.

              16. That is some seriously long winded B$ on “interpersonal control” and a rather lame attempt to differentiate the very behavior you just admitted to doing yourself.

                I am so glad that you are making such admissions, as my attempts to show you how lame your own med-control line of posts have been have resulted in your being more honest about your behavior and your own attempts at controlling the behavior of others

                LOL – sound familiar?

                Your game is obvious 6, and you really do blow at it.

              17. “That is some seriously long winded B$ on “interpersonal control” and a rather lame attempt to differentiate the very behavior you just admitted to doing yourself.”

                I quite agree anon. I’m not a trained professional so it is difficult to convey to you. Especially over the interbuts. Suffice to say people get paid big dollars to do what I’m attempting to do as an amateur for you right now.

                “Contempt?

                Says the flaming t ard thrower…

                Your passive/aggressive streak is showing again.”

                I quite agree again, except for the whole “passive/aggressive” nonsense since you’re not using the term as it is used in the art. Besides that I’m always aggressive against you, I simply take time out of my day to try to help you out with your obvious disability.

                Either way, it’s true, your mental condition or simply your comments often leads me to believe you’re simply a ta rd, and I call you that on the regular. And indeed it shows contempt for you on occasion as well. (Let’s set aside for the moment that sociopaths and OCPDers, or at least their behaviors, are indeed contemptable even if you’re cutting them slack for their mental disability) I should perhaps try to show more respect for your conditions but dude it’s fraking hard. People get paid big money to do that you know, and for good reason. Tell you what though, if you see a therapist just ONE TIME, for just one fcking hour, I’ll totally redouble my efforts. Even if you attempt to con them the whole time like the very best sociopathic psychopaths would. Cross my heart, swear to go d.

                Even so, every time I call you that though lately I check myself and see if I can understand you in any way are merely suffering from psychopathy or OCPD in the post I’m responding to. Occasionally I just can’t see that what you’re saying is the result of either of those two conditions. You may have a third on top of those two which I have yet to notice and perhaps I should take that into account. But I usually don’t try to ascribe various random behaviors to imaginary conditions that I cannot name as is your little routine. It could always be that you may simply be a ta rd about a lot of things (despite your subjective OCPD feelings otherwise). Many people are, don’t take it too harshly. It is no huge failing on your part to have that going on from time to time. You’re human despite your OCPD thoughts otherwise.

                “med-control line of posts ”

                I don’t really know what you mean by “med-control” since I have not been able to prescribe you medications. But yes, I can be totally up front with you about my behavior.

                I did like the flaming ta rd thrower tho lol! I may have to steal that from you! That’s a good one!

                “Your game is obvious 6″

                Literally anon, there is no “game” what so ever except to get you to go to a therapist. And perhaps to make the choice to let go of the OCPD. But the later is probably asking too much from mere online amateur therapy. Trying to treat psychopathy is WAYYYYYYY too complicated for this forum.

              18. “How many self-contradictions can you fit into one post 6?

                I stopped reading, by the way, after the third one.”

                There are no “self-contradictions” in that post re re. But I don’t expect you to be able to comprehend what was said. It’s all too meta for you. For you, the person trying to help you, and all their efforts therefor mean nothing.

                Fine, you know what? I’ll tell you what. I can just stop talking to you except to point out your OCPD or psychopathy. And then you can have fun with thinking about those situations ok? How’s that sound?

              19. .
                except to

                LOL – that’s intended to be a joke, right?

                The ONLY thing you are willing to do is play your stale med-control line.

                I get it – actually having a conversation on real points of law, using real facts (from this reality) just does not work out too well for you and your fee-fees, so you run away (as typical)>

                Except to…

                Ahhh, that’s pretty funny if you think about it.

              20. “LOL – that’s intended to be a joke, right?”

                Nah brosef. I’ll be “responding” to you only in so far as I’m pointing out your OCPD and psychopathy to others. As in just putting up a hazard sign.

                Sound good?

                “I get it – actually having a conversation on real points of law, using real facts (from this reality) just does not work out too well for you and your fee-fees, so you run away (as typical)>”

                I already addressed that in another thread just today. It’s amazing that you have convinced yourself that everyone that doesn’t want to have a conversation with you is simply afeared of “how things don’t work out well for them” and is “running away” or whatever your phrase of the day is.

                I’m not sure how much clearer I can make this for you. People are running away from your owning of truth, and right/wronging mainly, but also things like psuedologica fantastica etc. I’m included in this group since you’re obviously not interested in trying to reign yourself in on these fronts in earnest just yet and you’re surely not ready to see a professional.

                I mean seriously though, just as a simple factual matter, we’ve “conversed” on literally thousands of topics using “facts” and “lawl”, and things have worked out just fine for me (see all recent big 112 and 101 cases just as a couple of examples). I have literally no fear of discussing things with you. Innumerable “truth”s that you’ve owned have been shown to be “false” any number of times in the last 5 years. Indeed, with such evidence present such should be fairly easily found as a “fact”, even in your odd little crazy person mind. I simply don’t like to converse with you because of the things noted above. It’s that simple.

                So I mean, shouldn’t me just ignoring you work out just fine for you? All parties win! You’ll still be able to spout off whatever glib little jabs you want (as opposed to if I got you banzored until you seek treatment), and you can own your truth all you want, often by your lonesome. You’ll be able to tell everyone how wrong they are as well! Doesn’t that sound exciting? And I’ll just put up hazard signs for other commentators re your conditions from time to time when you flare up. That’s a good arrangement right?

              21. You “say” nah, but then you turn around and do the very thing I mention. That is: The ONLY thing you are willing to do is play your stale med-control line.

                I get it – actually having a conversation on real points of law, using real facts (from this reality) just does not work out too well for you and your fee-fees, so you run away (as typical)

              22. and in case you have not yet figured it out, “working out” is explicitly NOT having a post-whatever-dueling-soapboxes-methodology that you already have.

                That is explicitly why we have so much retread on these boards – the “CRP-run away from valid points raised-and CRP again” model does NOT work for anyone. Not sure why you don’t understand this.

              23. …you got me banzored?

                LOL – a little power trip now?

                Let’s take a little sharper look at “banzored,” shall we? It is well recognized that you and Malcolm are in the same “camp.” That you often bend over to protect him, and he the same for you (who could forget the “N” word debacle for you two?).

                Ask yourself, who – by far – has had more posts expunged (that is, “banzored”) than any one else – than ALL others combined?

                Hint: it’s not me.

                You are doing that ignore the log in your own eye thing again.

      1. Notice the resurfacing of the old gambit of asking for references already previously supplied multiple times, reminiscent of the attempts to trip people up by repeatedly asking them to state again and again their position (while notably not giving any backing whatsoever to their own position).

    2. MM, I have long disagreed with Rich and Rader tossing out the case law prior to ’52 as yesterday’s trash. It was not then the habit of courts to clearly identify statutory authority for their decisions. But to the extent those decisions were not inconsistent with the statutes, they should have been clearly associated with the statutes in post-’52 law.

      Functional claiming was a 112 problem clearly. Rich tossed the doctrine nevertheless.

      Laws of nature, products of nature, abstract ideas were clearly based in 101 and 112. Rich tried to force everything into 102/103.

      The “function of a machine” doctrine was clearly associated with the class definitions and the difference between a machine and a process. Rich trashed the doctrine.

      Rich trashed 112, p.2, in a series of case that ended in Donaldson.

      Rich made prior invention prior art for obviousness purposes. Who’d have thought? We had to rewrite 103 to control the damage.

      Then we have State Street Bank and the overruling of long established exclusion of business methods. A shining achievement.

      As a whole, Rich’s body of work was a one man revolution. We got functional claims. Indefinite claims. Claims on programmed computers that could effectively claim anything under the sun made by man regardless of 101 — and secret prior art that invalidates claims based on obviousness. Rich transformed the patent system into something the framers would never recognize. Had the framers been around to vote in congress, Rich would not have lasted long in his impeachment trial.

      Rader may not have been as bad as Rich, but he too had the attitude of ignoring case law prior to ’52. Thus we got the single-actor rule for method claims, and we got his consistent defiance of the Supreme Court in cases like Bilski, Prometheus and Ultramercial.

      That being said, I too believe that the courts need to find authority for the patent law in the statutes. Otherwise, where do they get their authority?

      1. But to the extent those decisions were not inconsistent with the statutes,

        If there is one thing worse than Ned’s ability to read case law, it is his ability to construe statutory law.

        Functional claiming… dead wrong (and shown so with his own favorite source Frederico).

        101/112 and 102/103 – bizzaro land whole cloth machinations by Ned (ignoring the fact of WHO ACTUALLY WROTE THE LAW).

        Continued vom1t on business methods – even in the face of the statutory logic before him (and his D.O.A. views).

        The anti-Rich rhetoric, when there was simply NO judge (ever) better positioned to interpret the intent of Congress than he.

        NONE.

        That being said, I too believe that the courts need to find authority for the patent law in the statutes. Otherwise, where do they get their authority?

        Downright laughable, given your penchant zeal for your crusade and you constant tossing aside that very statutory text for your blind pursuits

        Ned Heller – sublime in his wrongness.

    1. I noticed that as well.

      Why the oversight, Judge Rader? If I were Taranto, I would take offense. If Rader ran his court this way….

      1. He’s probably the one who least needs the encouragement. I’m sure he’ll use it as fuel, if anything.

      2. Probably because Taranto has shown himself to be an ignorant intellectually dishonest anti-patent scoundrel.

          1. The expert system case. He is trying to hold that implementing a human’s thought process on a machine is per se ineligible. Outrageous. About half of ph.d.s in cognitive science are about how to simulate human thought with computers. His opinion evinces such an ignorance for innovation, science, engineering, and patent law that he should resign. Take the cue from Rader. Resign with the explanation that “I’m an $diot. That’s for the bucks.”

  7. Well done Judge Rader. Outcome-driven law is political, always has been, always will be. You stood against the tide and attempted to develop a coherent set of rules to ensure litigation disputes were resolved on the legal merits, which gives predictability to the law.

    With the Federal Circuit as politicized as the Supreme Court (and joining them in promoting politicized tautological-driven rulings that cloud the law and foment disputes), your departure will be keenly felt.

    1. “Outcome-driven law is political,”

      And is kind of biased. Is that the kind of judges you want on the bench? Not a few comments down he was supposedly giving full and fair hearings. But I guess that was only for inventors eh?

  8. A voice of reason has left the building.

    Thank you Judge Rader, for your many years of excellent, intellectually-honest work and decisions … including giving full and fair hearings to independent inventors.

    You and your like-minded fellow Judges have been a bulwark against the self-serving drumbeat of the corporate giants and their government henchmen … sadly working hand-in-hand these days … to steal the rights and innovations of others for their own use.

    All the best in your future endeavors.

    You will be missed.

    1. Dittos.

      Rader will be remembered as a follower of Judge Rich who long advocated the ’52 Act as the codification of patent law. If a doctrine existed, it had to be statutory. With this basic sentiment, I agree.

      Rich and Rader long fought the judicial exceptions to patentable subject matter — I think on the basis they were non statutory. They were right in this fight, although I personally believe the doctrines are in fact statutorily based in 101. But there is no doubt that not basing the exceptions solidly in the words of 101 the Supreme Court has created a great deal of confusion.

      I wonder who will now take up the cause that Rich and Rader fought for for so long?

      That said, you were a strong advocate for a cause now seemingly gone with the wind. We will miss you, Judge Rader.

      1. “I wonder who will now take up the cause that Rich and Rader fought for for so long?”

        Hopefully nobody. Though I look forward to seeing some clumsy attempts.

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