By Jason Rantanen
Today, the Supreme Court granted certiorari on one of the questions presented in Commil v. Cisco. (The order). The question presented:
(1) Whether the Federal Circuit erred in holding that a defendant’s belief that a patent is invalid is a defense to induced infringement under 35 U.S.C. § 271(b);
Commil’s brief also presented a second question that the Court did not take:
(2) whether the Federal Circuit erred in holding that Global-Tech Appliances, Inc. v. SEB S.A. required retrial on the issue of intent under 35 U.S.C. § 271(b) where the jury (A) found the defendant had actual knowledge of the patent and (B) was instructed that “[i]nducing third-party infringement cannot occur unintentionally.”
Further discussion:
[…] jurisprudence. Jason Rantanen wrote more here. The case also has interesting links with Commil v. Cisco that is now pending before the Supreme […]
The few on-topic comments on this thread seem to have gotten buried. Commil seems like an easy reversal. The law of indirect infringement has been around for a very long time, but somehow, in 2013, the Federal Circuit discovers this new facet of it for the first time…? Unlikely. Most defendants probably believe in good faith that any patent asserted against them is invalid. I’m curious what the amicus lineup will be at the merits stage.
Yes, satirist, how will the amici line up?
Let me predict.
The AIPLA (nominally patent attorneys) IPO (nominally patent owners) will both line up in favor of the big infringer. This will tell you just how much those two organizations have been subverted.
Mayer from the dissent: The idea of having a “store within a store” was in widespread use well before the dawn of e-commerce.
When was the “dawn of e-commerce”?
I’d place it right about that time that electricity could be used to communicate information. I’m going to go waaaaaay out on a limb here and guess that sometime in the 19th century someone conducted some business using electricity.
How many patent applicants tried to claim the use of old technology to communicate information related to commerce between, say, 1875 and 1985? Compare those numbers to the numbers between 1985 and the present.
What happened? The Internet was “more imporant” than the telegraph, the phone or TV or radio? Or did something else happen?
Here’s what happened: some short-sighted judges 0pened the gates and the lowest forms of innovators rushed in to grab the cash and seek their rent payments from whoever was most compliant. And the Federal Circuit cheered them on and for a while there was nobody around to question what was happening.
That changed. And now we have a blog where some absurd stooge who sees his entitlements being taken away is puffing himself up and threatening people with “ethical violations” because, in the stooges own words, “the emperor has no clothes.”
The “software patenting” industry is going to grow up and they are going to need to do it quickly. Will someone step up and “articulate” something remotely reasonable that works for everybody? If not, then reap the whirlwhind because there is much more to come and the best arguments — all of them — lead to one conclusion: information processing patents are biting the dust.
Personally, I’d prefer to just rip the band-aid off and get it over with. But we have to let wealthy entitled people down gently, after all. They’re very serious and important. How do we know that? Because they tell us so!
How exactly is calling for attorneys to merely behave according to ethical rules ‘threatening?’
Unless of course, you know, you are violating those ethical rules…
Mayer is a loon. All those who agree with everything he says can’t be far behind. A store within a store may be well known, but not one that could automatically “morph” into looking like the particular main store it is in.
There looks to be an actual invention wrapped up in these claims, and (wow) it was actually held to be eligible! Imagine that! I’ve said before that one day some “good” claims (better than Bilski, Mayo and Alice which I admit all had terrible claims) will find their way to the S.Ct and the anti-software gallery here may be in for a surprise. I agree that “information” itself shouldn’t be eligible for patenting, but how is this claim the patenting of information?
I tried to articulate a reasonable test for you MM a long time ago, but I guess it got buried without comment. I don’t have the patience to dig it up now. At least I tried.
pleather: I’ve said before that one day some “good” claims (better than Bilski, Mayo and Alice which I admit all had terrible claims) will find their way to the S.Ct and the anti-software gallery here may be in for a surprise.
You believe that this is a “good” claim? If so, what is the key difference between this “good” claim and the claims that were tanked in Alice and Ultramercial (not to mention ABL, Bingo Management Joketime, and a whole host of similarly ineligible claims that were dead on arrival)?
I agree that “information” itself shouldn’t be eligible for patenting, but how is this claim the patenting of information?
Because other than the idea of this “new” information (“it looks like you’re in the old store!”) being”automatically” transmitted and displayed there is nothing else remotely “inventive” in the claim.
Again: what is the point of the Internet (the invention of which had nothing at all to do with these “innovators”)?
Imagine that some creative skilled guy invents and claims a gas propelled vehicle. Wonderful. What would be the point of granting 500,000 patents over the next fifty years that protect the destinations and routes that you can drive on? To promote “better driving”?
Granting patents like this one and allowing them to be enforced serves just one purpose: putting money in the pockets of grifters and people who couldn’t do creative, productive work if their lives depended on it. There is no “progress in the useful arts” being promoted here, just as there is no “progress in the useful arts” being promoted by any one of a zillion equally ridiculous “Internet innovations” that anybody with half a brain and one lung can pump out all day.
“can pump out all day”
dabnit Gumby, we need something like a flash of genius to keep patents to the special group who can most afford them….
No, we need something like a “pond scum” test to keep patents out of the hands of those who feed on the bottom.
Oh wait … we actually have that test. We just need to apply it.
I am all ears Malcolm.
Please explain yourself.
What is this existing law to control patent ownership (keep VALID patents out of certain hands).
Try not to run away or change the subject.
Still waiting….
(But from another thread: “my views on patent eligibility are not dependent on whether a particular claim is owned by a patent troll”
What will be surprising is if an answer at all will be forthcoming, let alone one that addresses the point and avoids the inherent inconsistencies of Malcolm Spinfest.
Still waiting…
What are the chances that instead of dialogue we will see yet more of the same drive-by monologue from the self-appointed Field-of-Rye protector?
“The “software patenting” industry is going to grow up and they are going to need to do it quickly.”
You say this but right above we see that the CAFC continues to cheer the most abusive and exploitative abstract software business methods.
Supposed reformers Chen and Wallach have already been absorbed by the institution. The CAFC intends to overturn Alice first and soon Mayo. The Supremes will soon be exhausted. You don’t really see them granting very on DDR, do you? And when the Supremes acquiesce, there will be more and lower quality software patents than ever.
Returning jurisdiction to regional circuits is the most important reform and it’s not on the table.
The CAFC intends to overturn Alice first and soon Mayo.
That will never, ever happen. The spotlight is shining bright and it’s not going to get dim enough again for the roaches to take advantage.
The Supremes will soon be exhausted.
On the contrary, I think they’re just getting started.
there will be more and lower quality software patents than ever.
That’s pretty much impossible.
The CAFC intends to overturn Alice first and soon Mayo.
That’ll never, ever happen.
The Supremes will soon be exhausted.
Nope.
there will be more and lower quality software patents than ever.
That’s pretty much impossible.
you just watched them abandon credibility on Ultramercial twice with pure contempt for Supremes and their rulings. The CAFC is full of judges that will fall on their swords for privileged exploiters pretending to be inventors.
Prost, Dyk, Hughes, and Taranto is not a majority and not all reliable anyway. Obama’s new Farnandez is probably one of the bad ones so there’s no relief coming.
DDR just won and will probably collect big money for their ‘invention’ and be followed by other trolls.
I hope you are right about the Supremes’ appetite to clean the Augean stables, but you are far too optimistic thinking that it can’t get worse. Bad patents come from PTO on an exponential growth curve not slowed by Alice so far.
DDR Holdings v Hotels.com
From Judge Mayer’s dissent (is he “anti-patent” or just the voice of the lone judge on the panel who wasn’t born yesterday and who actually understands the Supreme Court’s opinions in Mayo and Alice (not to mention the CAFC’s own precedent):
DDR’s patents are long on obfuscation but short on substance. Indeed, much of what they disclose is so rudimentary that it borders on the comical. For example,
the patents explain that two web pages are likely to look alike if they are the same color, have the same page layout, and display the same logos. See ’572 patent col.14
ll.5–18. The recited computer limitations, moreover, are merely generic. The claims describe use of a “data store,” a “web page having a link,” and a “computer processor,” id. col.29 ll.1–13, all conventional elements long-used in ecommerce. Because DDR’s claims, like those at issue in Alice Corporation v. CLS Bank International, “simply instruct the practitioner to implement [an] abstract idea . . . on a generic computer,” they do not meet section 101….
The court concludes that the asserted claims of DDR’s ’399 patent fall within section 101 because “they do not merely recite the performance of some business practice known from the pre-Internet world along with the requirement to perform it on the Internet.” Ante at 20. This is incorrect.
It’s incorrect in multiple ways, in fact. First, legally it doesn’t matter if the otherwise ineligible business idea was from the “pre Internet world.” Second, the Internet is old and, for patent purposes, it’s ancient. That’s key. It’s time for Chen and Wallach and the entire field of Internet patent lovers to grow up already and stop pretending that we were all born yesterday.
DDR’s claims do, in fact, simply take a well-known and widely-applied business practice and apply it using a generic computer and the Internet. The idea of having a “store within a store” was in widespread use well before the dawn of e-commerce.
Indeed. This has to be explained to people? By a team of experts and attorneys? At a cost of hundreds of thousands of dollars not to mention the wasted time?
Indeed, any doubt as to whether the claimed system is merely an Internet iteration of an established business practice is laid to rest by the fact that one of the named inventors acknowledged that the innovative aspect of his claimed invention was “[t]aking something that worked in the real world and doing it on the Internet.”
Appeal this decision and watch these claims melt like grilled cheese on molten lava. What an incredible joke.
You know what’s old? Really really old?
Electrons, protons and neutrons (as well as the natural law that binds them).
Guess what?
Configurations of old stuff, even really really old stuff may yet be patent eligible.
You should check out this thing called law.
anon, is your argument that describing a tangible item by saying it is an arrangement of protons, neutrons and electronics would be valid?
Sorry Random, but my comment apparently does not survive the one-way streets editorial controls.
Funny that, given what does survive…
…eight years and running.
“anon” Sorry Random, but my comment apparently does not survive the one-way streets editorial controls.
He asked you a yes or no question. Did your answer include either of those two words?
Maybe start from there and work outwards.
Malcolm’s feeble reply here is doubly funny.
First, no one – and I do mean no one – has run away (not just given an answer without a verbatim ‘yes’ or ‘no,’ but run away without an answer at all) than Malcolm.
Second, the self anointed king of the (worthless and easily design around) picture claim wants an answer with an explicit ‘yes’ or ‘no.’
Way too funny.
And for the record, my answer was that my argument was geared to something far more decisive than the option listed in his question.
Malcolm’s feeble reply here is doubly funny.
Still waiting for an answer, hypocrite.
Still waiting…?
Try reading the response (you can even jump to the part “for the record…”).
Maybe it’s time for you to grow up and realize that others have differing opinions, those others not being limited to a few anonymous commentators on the internet but – shockingly – district court and Federal Circuit judges. Repeating the same thing over and over again having a few parrots caw along with you doesn’t make what you say canon. As much as you’d like to believe otherwise, software patents in certain forms are here to stay for now, at least until SCOTUS decides to kill them all off with a bright line test (but don’t hold your breath, since they explicitly said that’s not the case in Alice).
software patents in certain forms are here to stay for now,
The question is: what are these “certain forms”, how long is “now” going to last, and why are these “certain forms” worthy of patent protection whereas the claims in Alice and Ultramercial weren’t?
If you or your clients are relying on this case as some sort of important bulwark to “protect” ridiculous “innovation” that is unworthy of a patent system, I highly suggest you think a bit harder about the issues that were ignored by the majority in this case and the shoes that are going to continue to drop on silly claims (and silly decisions) like this one. I give this “precedential” case less than half a year, if that, before it’s completely expunged or rendered moot by some other far more reaonsable (and correct) decision.
“and why are these “certain forms” worthy of patent protection whereas the claims in…”
Why is that even a question from you Malcolm, given that you are on record as holding that ALL software patents should be banned?
You seem to be sending mixed signals…
MM (and myself) have repeatedly asked how we can craft a reasonable patent system that protects some software patents while avoiding the silliness of the old regime.
For whatever reason, no one who wants software patents, literally no one, seems interested in that discussion. It is kind of annoying honestly and, in my opinion, makes software patent supporters seem obstinate in the face of (numerous) 9-0s.
Stomp on the gas pedal.
Yes, there is a very good reason NOT to acquiesce.
Your naïveté remains ‘charming,’ go – but you really do need to learn how to see the big picture.
Stomp on the gas pedal.
This is the part where “anon” apparently believes that when software patents are removed from the system that we’ll all suddenly see how awesome and serious “anon” and his crew really are. Congress will turn the clock back to 1952 and then we’ll see enter the platinum age of Sooper Dooper Awesome Software Patenting without any restrictions!
These guys have openly discussed this “strategy.”
They’re very serious people, after all.
What is your odd obsession with this “so serious” line…?
You sound really cheesy using it like it has any “special effect” other than calling attention to yourself and your own “standing at the edge of the field of rye, saving everyone from “grifters“.
Yes, I realize that you just don’t care (eight years and running), but you might just try a little harder faking it.
You are certainly entitled to your opinion w/r/t what is “worthless” innovation and what isn’t. Just as everyone else is. You are certainly entitled to tell others they are wrong, just as they are you. But saying it again and again doesn’t make your opinion any more persuasive or correct.
I’m not sure why those who are pro-software patent protection wouldn’t be excited by this case. Your comment is bizarre. Everyone has been waiting for the Federal Circuit to clarity what is patentable under Alice. This panel did.
What of the issues ignored by the panel in Ultramercial? Not one mention of preemption, which Alice identified as the overarching concern of the abstract idea exception?
Your comment is bizarre. Everyone has been waiting for the Federal Circuit to clarity what is patentable under Alice. This panel did. </i?
Really? What's the "clarification"? Do tell.
You are certainly entitled to tell others they are wrong, just as they are you. But saying it again and again doesn’t make your opinion any more persuasive or correct.
If only that was all that I was doing you might have a point.
You’ve noticed that a lot has changed since I (along with many others) began telling proponents of extreme patent expansion that “they are wrong”? Right? You have noticed that? Or has that escaped your attention?
It hasn’t escaped most people’s attention, I’ll tell you that much.
The Amish especially have been ‘Super Dooper’ excited.
others have differing opinions,
No doubt. There’s people who comment here who believe that information itself and mental processes should be eligible for patenting and would be if only the courts would follow “the law” (as they understand it). There’s people who believe you can protect information and otherwise ineligible subject matter simply by folding in some old “technology” that was patentable years ago but is now in the public domain. There’s people who think that “module” has a structural meaning.
Those people are wrong. They’ve been wrong for a long time. They’ll continue to be wrong.
Watch and see. And keep pretending that it’s all just about “differening opinions”.
“And keep pretending that it’s all just about ‘differening opinions’.”
That’s pretty funny as I keep on telling certain individuals (who nonetheless insist on mishcaracterizing my stance) that the issue with certain posters who routinely flog the truth with brazen disdain for law and facts is NOT about “differening opinions.” [sic]
We’re not talking about patenting mental processes or a new movie.
This panel proves a difference of opinion within the Federal Circuit. About 30% of post-Alice district court decisions w/r/t 101 declined to invalidate. There is certainly a difference of opinion among practitioners.
There is certainly a difference of opinion among practitioners.
That’s because some “practitioners” are paid to do and say anything and some judges are completely clueless.
We’re not talking about patenting mental processes
Right. Because using a “module” or a “computer” to “automatically determine” what information to provice in response to some other information is totally different than using a brain to “determine” something and respond to it. How do we know that? Because it’s sooper dooper techno and “skilled” to write “automatically determine”. And how do we know that? Because you say so and becuase everyone who disagrees with you is totally ignorant about computers or a communist.
or a new movie.
Because “a movie” is toooooootally different from other information displayed on a screen. It’s like the difference between apples and oranges. Well, maybe a lot more like the difference between a picture of an apple and a picture of an orange, drawn using the same medium. Hey, maybe we should patent displays based on the information being presented on the display? After all, that would allow so many more people to easily obtain patents. More jobs! What could possibly go wrong?
Brush aside the insults and there remains NO legal argument there Malcolm.
Stellar job for discussing, something, I guess.
(that just does not sound so good on the web site’s byline though)
You wouldn’t know an argument if it came up to you and slapped you across you’re flapping lips, “anon.”
Well Malcolm, since you NEVER use one, we can be sure that I will never learn what one looks like from you.
“We’re not talking about patenting mental processes or a new movie.”
Right we’re talking about patenting a website. Or, more to the point, using a website as a commerce platform for another vendor on the site while displaying their logo but still being on the site.
MM, why do you consider the following claimed steps to be directed to non statutory subject matter?
(b) a computer server at the outsource provider,
which computer server is coupled to the computer
store and programmed to:
(i) receive from the web browser of a computer
user a signal indicating activation of one of the links displayed by one of the first web pages;
(ii) automatically identify as the source page
the one of the first web pages on which the
link has been activated;
(iii) in response to identification of the source
page, automatically retrieve the stored data
corresponding to the source page; and
(iv) using the data retrieved, automatically
generate and transmit to the web browser a
second web page that displays: (A) information
associated with the commerce object
associated with the link that has been activated,
and (B) the plurality of visually perceptible
elements visually corresponding to
the source page.
Whether this might be obvious from the prior art Digital River web page is a different story.
I’ll take care of it for you.
Pure, unadulterated j*nk. No novel objective structure.
Simple Malcolm, because that is how Congress wrote the law.
Pay attention to how that works.
MM, the stroll down a little bit deeper then.
The displaying step is as follows:
“(iv) using the data retrieved, automatically
generate and transmit to the web browser a
second web page that displays: (A) information
associated with the commerce object
associated with the link that has been activated,
and (B) the plurality of visually perceptible
elements visually corresponding to
the source page.”
What I see here is two things that are displayed: A) information; and B) visually perceptible elements visually corresponding to the source page.
I would agree with you that if the only novelty in the claim were displaying information, that cannot be patentable subject matter. But displaying visually perceptible elements as something other than information. It actually requires some physicality, which seems to place it in the realm of patentable subject matter at least according to Benson.
Do you agree or disagree?
displaying visually perceptible elements as something other than information.
You’re joking, right?
But displaying visually perceptible elements as something other than information. It actually requires some physicality,
Writing words on a piece of paper “requires some physicality.”
But that “physicality” is utterly beside the point when the patentability of the claim hinges on the “new” information.
Do you have any idea, Ned, how many different “display this in response to this because … improvement for somebody!” claims I can come up with in one day? I’m pretty sure I can do at least two a minute.
This is the lowest form of innovation. These claims are a joke.
Again, Malcolm has appointed himself Queen and dictates what is “lowly” from what is not (with a blind eye to what is the singlets largest form of innovation in the modern world…)
“Bring back that Flash of Genius – that will save all the small children running through the fields of grain.”
MM, I agree that if the patentability depended upon new information, then the claim would be non statutory.
But the claim’s purported novelty is not the information, but its display with “B) visually perceptible elements visually corresponding to the source page.”
Thus the novelty seems to lie in the display of specific types of things associated with look and feel.
Take Alappat for a moment. The display was there improved through the use of a new anti-aliasing algorithm. This is not simply the display of information, but something that improves visibility of the display.
…and talking about signals, let’s not forget Arrhythmia, 958 F.2d 1053, (1992).
Interesting to note while re-reading that case that the presumption of validity (validity recognized as legal, as opposed to factual), also recognizing this same presumption extends to the legal aspect of eligibility…(note the rationale given)
“Whether or not the inducer has any belief that the patent is invalid is completely irrelevant to whether the direct infringer will infringe.”
True, but not irrelevant to whether the inducer [who is being sued, not the direct infringer] would have thought they could induce or continue to induce.
“If the accused inducer really believes the patent to be invalid, then the proper defense is to prove invalidity.”
But if the Sup. Ct. reverses here, would it not become irrelvant to do so?
Are you saying that the Court should rewrite another direct writing of Congress’s?
Paul, the problem with your implicit position is the innocent party here, the direct infringer, is liable for all damages, while the guilty party is home Scot free.
How is a direct infringer innocent?
Yes, ff the direct infringer was not so small an entity as to not be economically sued, a small customer, it might be sued.
Paul,
You are not saying that innocence is a function of “do you have enough money to make it worthwhile to be sued,” are you?
innocent or not, if demands letters keep getting sent down the food chain to the small fry (and i have little hope that they wont eventually be sent to individual consumers for “use” of patented articles) congress will end this game.
it has been argued that this is a sport of kings, but if the joe-schmoes of this country start to receive demand letters for a couple of thousand dollars because he used his cell phone/printer/scanner/camera etc, this will be a game for no one when congress is done with it.
You lost me when you left the conversation with the “not innocent”
OT, but interesting for obvious reasons:
link to abajournal.com
An Illinois patent lawyer accused of blogging with a reckless disregard for the truth is facing a proposed three-year suspension.
Yeah you might be familiar with this thing called “defamation”.
“which Denison described as “TEN PAGES of questionable behavior, corruption, misfeasance, malfeasance, perpetration of misdemeanors and felonies” in the case.”
So if you’re a lawlyer, you might want to lay off stating similar nonsense about your fellow lawlyers. But you don’t, and you may just get banned because of it.
Is that the guy who kept telling attorneys they could avoid learning about prior art sent to them by registered mail by instructing mailroom staff to screen such letters and throw them away if there was prior art inside?
They finally caught him?
Both you and 6 miss the point.
Not unexpected.
This should obviously serve as a caution to patently-o commentators.
Thanks – that’s why I posted it.
However those that need it most, those that think that rules are for other people, have already shown indifference to it.
those that need it most,
Tell everyone who you talking about and why, you broken cowardly p r ick.