If you thought Alice v CLS Bank lacked a useful analytic structure

wait until you read Aereo.

By Jason Rantanen

American Broadcasting Cos., Inc. v. Aereo, Inc. (2014) Download ABC v Aereo

This morning the Supreme Court issued the much-awaited opinion in American Broadcasting Cos. v. Aereo, in which a 6-3 majority concluded that Aereo’s subscription television service, which uses thousands of small antennas and other equipment housed in a warehouse, violates the petitioners’ exclusive rights to perform their copyrighted works publicly within the meaning of the Transmit Clause.  Writing for the majority, Justice Breyer eschewed formal distinctions, instead reasoning that if it’s basically the same as a duck, it’s a duck:

In other cases involving different kinds of service or technology providers, a user’s involvement in the operation of the provider’s equipment and selection of the content transmitted may well bear on whether the provider performs within the meaning of the Act.  But the many similarities between Aereo and cable companies, considered in light of Congress’ basic purposes in amending the Copyright Act, convince us that this difference is not critical here.  We conclude that Aereo is not just an equipment supplier and that Aereo “perform[s].”

Much of the critiques and discussion immediately following the release of the opnion focused on the difficulty in applying this “looks-like-cable-TV” rule to the vast ecosystem of current and emerging content access, distribution and dissemination technologies.  These criticisms mirror points made by Justice Scalia in dissent (who used the “looks-like-cable-TV” term):

III. Guilt By Resemblence

The Court’s conclusion that Aereo performs boils down to the following syllogism: (1) Congress amended the Act to overrule our decisions holding that cable systems do not perform when they retransmit over-the-air broadcasts; (2) Aereo looks a lot like a cable system; therefore (3) Aereo performs.  [] That reasoning suffers from a trio of defects

(Internal citation omitted).

While Aereo unquestionably has profound implications for the technology sector generally, for patent law purposes it offers another insight into how the Judges might approach the issue of claim construction that is currently being briefed in Teva v. SandozAereo involved a question of statutory interpretation – itself undeniably a question of law.  Here, the majority adopted a legislative history/legislative intent/legislative purpose that resulted in something akin to the “essence” of the statute being what was really important.  The dissent would have applied a much more formal textualist approach in ascertaining its scope.  It is the first of these two approaches that seems to me to be strikingly similar to how the Court has approached patent claims in recent opinions when directly confronted with substantive issues in cases such as KSR, Bilski, and Alice.  If the Court does embrace a more purposivist approach to claim construction in Teva, it would be dramatically alter the landscape of patent claims even more than its decisions on substantive doctrines such as nonobviousness and patentable subject matter.

Of course, the question presented in Teva is nominally only about the question of whether deference to district courts on issues of claim construction is appropriate, not about claim construction philosophies generally.  That said, it seems to me that it will be difficult for the Court to avoid interjecting its views on claim construction into whatever opinion it issues on deference.

32 thoughts on “If you thought Alice v CLS Bank lacked a useful analytic structure

  1. As usual, the dissent has the better reasoning. Justice Breyer – is just a danger to himself and others – deciding what he ‘feels’ is right and just – and then backfilling a purported legal rational. What a monumental ego, to think you have it all figured out.

    Scailia’s reference to the close decision in the Sony case is incisive.

    Reply
    1. See my post below at 5.1.1.1.1 – which runs along a similar line of thought.

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  2. If the Court does embrace a more purposivist approach to claim construction in Teva, it would be dramatically alter the landscape of patent claims even more than its decisions on substantive doctrines such as nonobviousness and patentable subject matter.

    Don’t hold your breath. This is the same Court that, in the last five years, has created an expansive and nebulous judicial exception to patentability based on the word “useful” in 35 USC 101, the clear purpose of which was uniformly expansive (as a reaction to similar antics by the pre-1952 Supreme Court in creating a “flash of genius” patentability standard).

    The demeanour of this Court was set in the 2000 case of Bush v. Gore: the Court will issue whatever decision it feels like on the case at bar, and will craft up a legal justification as an afterthought. No surprise that Scalia and Thomas, highly vocal and active in Alice, both joined the concurring opinion in Bush v. Gore: depending on their whims, they are by turns strict textualists, “purposivists,” and judicial activists.

    The primary purpose of the Court is to resolve legal inconsistency and circuit splits – to improve the coherence of federal law. Legal historians will have harsh words for this Court’s love of “smell tests.”

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    1. Judicial activism. Basically they determine the result and then back fill.

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    2. Alas Mr. Stein, there are those that adhere to their agenda so fervently that the history leading to the 1952 Act has been expunged from their world view, and a restoration of the Royal Nine to their pre-1952 thrones and the ability to stick their fingers into the 101 nose of wax is all-consuming.

      History repeats.

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      1. Alas Mr. Stein, there are those that adhere to their agenda so fervently that the history leading to the 1952 Act has been expunged from their world view, and a restoration of the Royal Nine to their pre-1952 thrones and the ability to stick their fingers into the 101 nose of wax is all-consuming.

        This guys fantasy world gets more and more convulated all the time. Hey, Kookoo McPatentpants — you forgot to mention Wilt Chamberlin. LOL.

        Reply
        1. Nothing “convoluted” at all about any of this Malcolm.

          You just need to pay more attention and spend less time spinning.

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  3. The broadcast digital signal is difficult to receive in many areas of this country. Until such time as the signal can be sufficiently received by antennas as it was intended to be — and remains free of charge — Aereo’s platform should be deemed fair use.

    Reply
    1. paul,

      I am not sure that the posture of the case reached a fair use defense (yet)…

      Reply
  4. Preliminary instructions to examiner re Alice are out.

    Spoiler: Basically the only change is that the same analysis that we were using solely for laws of nature (and perhaps natural phenom?) is now going to be used also for abstract ideas. (ha te to say I told you so a few years ago, but I totally told these guys so)

    In other words, they just feel like the supremes made clear that the same criteria apply all across the judicial exception categories and across all four stat categories of claims. As should have been obvious to anyone with a brain a couple of years ago.

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    1. 6, it should have been obvious since forever as math is non statutory, software is non statutory, business methods are non statutory, and Benson found the addition of a computer non enough.

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      1. Still carpet bombing in error, eh Ned?

        Tell me again of the STATUTORY defense to certain business methods – and the only logical result of Congress having this provision.

        Come man – plain and simple logic should suffice.

        Reply
        1. A simple and unassailable fact is greeted with the screams of silence.

          Why a defense to something so “obviously” not needing a defense?

          It appears that not only would Ned be willing to toss the doctrine of separation of powers away when it suits his agenda, he would be willing to dismantle our precious Rule of Law personally.

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  5. The majority opinion makes very little sense. The decision to retrieve copyrighted content is on the viewer. The viewer requests an antenna to be tuned to a specific over the air channel and what comes through that channel may or may not be copyrighted. Secondary liability would be an interesting and thought provoking discussion, but direct liability seems absurd. Am I missing something here?

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    1. Agreed. Scalia’s dissent is utterly brilliant. Breyer’s opinion puts a lot of passive services at risk.

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        1. The problem is education. These people have no science education and no critical thinking education that is tied to reality. They have disconnected psychotic thinking training and it shows.

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          1. NWPA, the problem is a shade different.

            Judicial activism of the sort running rampant is not so much a matter of a lack of education as it is a lack of appreciation of that lack of education and a forcing of a decision based on desired outcome instead of carefully deliberating on the merits. A good judge need not be expert on the matters before him, but absolutely must be cognizant of his own innate leanings – and absolutely must be able to control and neutralize that tendency to grabs the ends without proper means.

            The ends NEVER justify the means – especially when one has the power at hand to grab the end regardless of means. To do otherwise is to succumb to the most pernicious and most dangerous tyranny possible in the legal world: self-deluded “justification” for ignoring the Rule of Law.

            Any student of the Rule of Law would be repulsed by the clear abdication of meritorious deliberation evidenced by the ends-driven results that this Court has committed to.

            Learned Hand spins in his grave.

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  6. Regarding the “textualist” nature of the dissent (Scalia, Alito and Thomas), I noted a bit of irony in footnote 6:

    Broadcasts accessible through the “watch” function are technically not live because Aereo’s servers take anywhere from a few seconds to a few minutes to begin transmitting data to a subscriber’s device. But the resulting delay is so brief that it cannot reasonably be classified as time shifting.

    A “few minutes” or even “seconds” can make a big difference in the value of the viewing experience, particularly if it’s a sports broadcast. Anyway, I thought it was interesting (but hardly surprising) to see this “technical” caveat coming up in the dissent.

    I doubt that the Supreme Court will expressly inject “purposivism” into the law regarding claim construction. On a certain level, the concept is always lurking right below the surface, e.g., we look at the claims themselves and the specification and the prosecution history to determine what the applicant/patentee “meant” when he/she chose certain words.

    the question presented in Teva is nominally only about the question of whether deference to district courts on issues of claim construction is appropriate

    I wonder if there will be a simple split-the-baby answer where it’s acknowedged that claim construction involves the resolution of certain facts, whereby the CAFC should defer to the facts determined by the district court (e.g., skilled artisans did not use the term Y to describe X as of the filing date; expert testimony to the contrary was unreliable) but need not give deference to the district court’s construction of the term (claim term Y includes X because [insert legal reasoning here]).

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    1. This one was a gimme. Had the SCOTUS held differently it would have meant serious economic harm to some large corporations in favor of a start-up. Not happening.

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    2. On a certain level, the concept is always lurking right below the surface, e.g., we look at the claims themselves and the specification and the prosecution history to determine what the applicant/patentee “meant” when he/she chose certain words.

      Tell that to Chef America, which had its patent on baking bread construed as baking bread to 400-850 degrees Fahrenheit because that’s what the claims read, rather than baking bread at this temperature range, which is what the specification read.

      Never mind that baking bread at this temperature range results in nice, fluffy bread, while baking bread to this temperature range results in totally inedible charcoal and ashes.

      No, in that case, what Chef America meant was held as irrelevant in view of what the claims read.

      There is no legal consistency as to whether what claims “mean” or what claims “state” takes precedence. The only consistent rule is: Which ruling hurts the patentee? That’s how the CAFC, and the Court, is more likely to decide.

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      1. Reasons to hate Patently-O’s forum:

        1) No “preview” button.

        2) No “edit” button.

        3) No “delete” button.

        4) No syntax checking (“hey, looks like you ended with an open anchor tag that covers a couple hundred words, do you want to fix that before posting?”)

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        1. It created an interesting splash of color, anyway. ;)

          Chef America is a fascinating case, indeed, for all that it says and for all that it does not say about the business of patent prosecution and enforcement.

          Was there ever a cert petition filed or did the patentee just give up? I assume the latter.

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          1. It created an interesting splash of color, anyway

            Translation: Oooooohhhhh Shiny

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  7. What particularly disturbs me about this ruling is, that combined with the recent EPA rulings, it seems the court is perfectly content to broaden laws to cover subject matter wholly uncontemplated by the enacting Congress, ostensibly because it doesn’t think the current one will fix its perceived defects in said law.

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    1. Once you breach that separation of powers doctrine (and Congress sits on its thumbs), it gets really easy to legislate from the bench.

      So far, the groundswell on an issue that far surpasses Marbury is barely a ripple.

      I have to wonder if even a decision regarding the President’s appointment power would be enough to awaken the sleeper.

      Reply
  8. If a group of ducks is out of control, does it matter if the flock of nine ducks wear black robes?

    Reply

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