Mansion-sized patent jury verdicts have been slow, but are not forgotten. Yesterday a jury awarded $500 million to the patent holder Smartflash LLC. The jury also found that that the infringement was willful.
The three patents at issue are U.S. Patent Nos. 7,334,720 (claim 13); 8,118,221 (claim 32); and 8,336,772 (claims 26 and 32) and cover managed data-access systems.
“fairly and resonably compensate infringment” the question asked.
Half a billion, that is more than 500 times the full Nobel price, more than 25 times the salary of GE CEO…
How Apple lost $533 million to an 8th-grade dropout patent troll
link to fortune.com
All-in hold ’em in Tyler, Texas. Apple maybe the king of brands, but its record in litigation makes it the court fool.
Look at Claim 26 (dependent on and including Claim 25) of the `772 patent. A very well written, complete and logical expression of the invention in 598 words. Who says fully complete and wordy claims are not both broad and valuable?
I would love to see the exhibits introduced at trial demonstrating infringement.
Joe, 25/26 takes the better of two full columns.
One wonders why “concise” appears only in 112(a). Regardless, this claim is hardly “particular;” nor is it “distinct,” and certainly, not to the “point.”
Reminds me of the story where a representative of an aggrieved nation petitioned the Spartan Senate for their support. The representative’s speech went on for some time. At its close, the Spartans conferred, then told the representative could not grant the request because the speech was too long and as a result the 2nd half of the speech made no sense because no one could remember what the 1st half the speech was about. But they invited the representative to try again the next day.
The next day this representative took up his position in front of the Spartan Senate it was given permission to speak. Addressing the Senate, the representative said, “Please help.” The Spartan Senate again conferred, and then gave in their reply as follows: “Granted.”
should be “they could not grant”
Huh?
Huh back at ya.
Dear “Skippie”
You quite miss the rip at Ned’s own lengthy explanation resulting in his error and additional correcting post.
Lighten up Francis.
Lovely AOOTWaD…
It is said that copying is a form of flattery…
That, and the known fact that you my friend don’t have much of an imagination (from several of out other “jousts” with you routinely coming out with the short end of the stick) – truth be told, it is probably a bit of both.
It took you four days to come up with that meaningless drivel…?
How very sad.
You have no future in satire. I suggest that you stick to funny gifs.
And like that, another nail in the coffin of the expansive-software-patent position.
I will give you 532,900,000 reasons why you got your “scoreboard” taunt wrong (yet again).
When your website is made up of poorly stretched and cropped stock images, and your only product description uses words like “inter alia” and “including, but not limited to,” you’re probably a troll
“The essence of the innovation lay in the inventive digital memory system”
LOL
The essence of the innovation is “hey let’s sit around and dream up some rules for monetizing information.”
Do we have to keep hearing the latest judicial activism idea that maybe the Google judges on the Fed. Cir. will believe that information processing is the same as information.
This is an example of why you are a bad actor. You confuse the issues just like Lemley. Rather than honest analysis we get intentional obfuscation.
maybe the Google judges on the Fed. Cir. will believe that information processing is the same as information.
It’s called “logic.”
But go ahead and argue that logic is one of the “useful arts.”
Comparing stuff to see if it’s “sufficient”.
Deep, man. Really deep. Sooper dooper techno and progress promoting. But wait — it’s “customer data” so let’s pretend that it’s really special.
Why the quotes around logic?
You do know the difference between math and applied math, right?
Oh wait, you think that Diehr was wrongly decided…
And I am sure that you still don’t recognize that ALL engineering is just this same thing of applied logic that you would seek to deny patent protection to, that you don’t recognize that your arguments are NOT anti-software patent, but just anti-patent.
The ladders of abstraction are used in ALL art fields.
Your “quoted” logic is used in ALL art fields.
You mouth (without substance) a distinction in your curse-ade against software that is just not there.
Put your money where your mouth is Malcolm and abstain from all innovation that you would deny patent protection to.
If as you would “have it,” that no “real” utility is affected, then you should easily be able to carry on, even as you abstain from the utility that you give up.
But we both know that you won’t do that, that you won’t back up your words with the actions that would prove your “dedication” to your cause.
No surprise really.
Your “quoted” logic is used in ALL art fields.
Yes, logic is used in all art fields. That’s a major part of the problem.
What was your point?
See link to patentlyo.com
Talk about coddling…
I would LOVE to see an objective analysis as to why that comment fails to meet some unidentified standard while Malcolm’s “bottom feeder” comments are allowed to run amuck.
I see that truth is no defense here. There’s nothing like editorial viewpoint discrimation to remove any ISP immunity, eh?
Derpentine, define Troll.
Why is it that no one using the term will define Troll?
Much like those using the terms “abstract” or “technological.”
Did I say “much like“…?
How about “exactly like.”
Add when the technology is only patent documents expect there will be old flow charts with new words to follow. (We do hand it to them for not hiding them under a rock though.)
On that note, ref. the Markman (under Documents). Hey EDT made up terms don’t have “plain and ordinary meanings”, that’s just real nonce-ence.
Add when the technology is only patent documents expect there will be old flow charts with new words to follow.
Pretty sure that river was crossed twenty years ago.
…because “old box” magically has all future improvements “already in there,” eh Malcolm?
s i g h – still not paying attention to all the words of 35 USC 101, I see; still knowingly NOT giving full credit to known controlling law and the exceptions to the judicial doctrine of printed matter, I see; still not recognizing the fundamental basics that software is defined to be a machine component and a manufacture in its own right, equivalent (and note this expressly is not “exactly the same as”) to hardware and equivalent to firmware, I see…
I have a procedural question re 101. Is 101 purely a legal issue for the court to decide or is it mixed where a jury can hear the issues as well? There doesn’t appear to be any cases on point here. It would be interesting to argue 101 in front of a jury. If the courts and patent litigators can’t get it right, how the hell could a jury?
The only thing I found on point was this article: link to law360.com
Well Gary, per the unlimited power of the “Gist/Abstract” sword, Gisting means that you do not have to pay attention to actual claim terms, so there is no need to delve into facts.
Pure law here (and unlimited power to make things up, since “Abstract” need not be defined prior to wielding the Sword).
Gary, the only way in my book that 101 can be a matter of law is if there are no issues of fact.
Since the dividing line between eligible or ineligible often depends on the presences of something ineligible, like math, but on whether there is novelty in the eligible (the computer system or e.g. “molding process”) or as transformed by the application of the ineligible, I don’t know how one can resolve the issue as a matter of law unless it is conceded that everything technological is old and that the abstract does not modify the old to transform it into a new state or thing.
Should does not depend on the presence of something ineligible.
Ned,
Shall I again remind you that what you “posit” is not controlling law (as even Prof. Crouch has called this to your attention).
Let’s not start that merry go round, eh?
Anon, let’s start with Hotel Security, then move to Mayo then Alice.
Hotel Security is fairly limited to business methods, but the mode of analysis of claims that have mixed subject matter, the eligible with the ineligible, has been adopted by the Supreme Court in both Mayo and Alice.
The only question is whether, seriously, a novel business method can be patentable where it is claimed with old and generic apparatus, and where the novel business method does not transform that apparatus into a new state or thing. The Supreme Court is not willing to foreclose the possibility as a matter of law. But, as a practical matter. can you give me one example of a patentable business method? The Supreme Court repeatedly ask counsel for any examples during oral argument in Alice and was not given one. Not one. Not by anybody.
Step to the plate now, anon. Answer the Supreme Court.
Start with the admonition Prof. Crouch gave you concerning Hotel Security.
Then revisit my lessons for you (vast and numerous as they are)
The only problem is that Hotel Security was the foundational case that was followed by all for nearly 100 years. It was cited and argued in Steven “Dissent” in Bilski. It is a crying shame that the en banc Federal Circuit did not simply overrule State Street Bank and restore Hotel Security. We would not then have had the Supreme Court running amok in Bilski.
But all’s well that ends well.
Ned, have you ever actually analyzed Stevens concurrence in Bilski? (I think it was actually a concurrence technically.)
It is not rationally based. It essentially says patents weren’t meant for this sort of thing ’cause. There are no reasons given that are actually factual issues that could be debated. It is just page after page of ’causes.
It is the worst type of reasoning possible–no reasoning. It is on the same level as religion. Stevens is essentially saying “I believe these should not be eligible for patentability because the patent system wasn’t meant for these type of inventions.” That is the sum total of the argument.
Night Writer,
Ned wants to use what is effectively a dissent (yes it is technically a concurrence, but it has been noted that this view is why Justice Stevens lost his majority writing slot) to “resurrect” and blow out of proportion a lower court case into some controlling law position that the case simply does not have (and he has been told this by none other than Prof. Crouch).
Ned is engaging in the very worst Judicial Activism of over-reading Supreme dicta to meld law into his desired end state.
The means he engages in simply don’t matter as along as he reaches his ends.
From a logical standpoint, Ned’s analysis here seems correct – all of the interesting (and controversial) eligibility decisions rely upon important factual conclusions as support. However, the Supreme Court’s approach has been to made determinations of these seeming factual issues as if they were questions of law.
However, the Supreme Court’s approach has been to made determinations of these seeming factual issues as if they were questions of law.
Or admitted. Or beyond reasonable dispute.
We have been blasted with bizzarro generalizations by MM. Nothing much particularized to this case. Just the same old, same old. Claims are terrible ’cause I said so. Information processing doesn’t do anything. (MM still has never answered what he is paid for. Hint: it is information processing).
Etc….
Night,
I’d be interested in your take. Care to explain why you think these claims are eligible?
Mayhap because they have not been shown to be ineligible…
Entitled to a patent unless…………
How about you tell us why it shouldn’t be eligible. And please try to use real prior art and not generalize to “junk” like MM, and try not to fabricate reduction rules like it is “information,” when it is really an information processing machine.
Does he get to use the “Gist/(and undefined) Abstract” sword, or should he supply an actual legal argument?
Night – the negatively stated “entitled to a patent unless” language comes from 35 U.S.C. 102. Section 101 looks to place more of a responsibility on the patentee by stating postively that a patent is available if certain conditions are met.
And per the actual words of Congress, what are those conditions?
Oh yes, there are two:
1) fit into a statutory category;
and
2) have the proper utility.
Those are – and are meant to be – a wide open welcoming gate.
One which has been replaced with razor wire.
Oh yes, there are two:1) fit into a statutory category; and 2) have the proper utility.
Please tell everyone what you believe “proper utility” means.
Then tell everyone which incredibly useful processes are not eligible according to your theory and why.
Those are – and are meant to be – a wide open welcoming gate. One which has been replaced with razor wire.
…said the plague-infested elephant.
OK. It is an improvement of a machine that is useful as evidenced by the infringing use.
NWPA: try not to fabricate reduction rules like it is “information,” when it is really an information processing machine.
“Fabricate reduction rules”? It’s just the application of basic logic.
Computers are old.
Using computers to process information is old (that’s what computers do).
Rules are ineligible subject matter.
You can’t protect “rules” merely by couching them in some otherwise unpatentable (i.e., old) technology (e.g., a computer system capable of receiving an input and applying a rule to determine how to respond to the input <=== really, really, really old technology).
This is not "fabricated reduction". It's straightforward logic.
You don't like where the logic leads? That's fine. You're entitled to not like it. But the logic doesn't care whether you like it or not.
The entire claim here is premised on the ridiculous fiction that information relating to an "amount of payment" represents some sort of technological advance over a computer that was "merely" capable of processing …. any kind of information that you told it to process. That's just one of a zillion ridiculous fictions upon which your house of cards has been built.
And for the record: you raised the same objections before and after Prometheus v. Mayo which presented a very similar issue (protecting "new" information that was couched in an old and otherwise unpatentable data gathering method).
MM>>capable of processing …. any kind of information that you told it to process.
MM this is just ridiculous. This is your old argument that the lowly Justice Stevens presented to us that you merely write on a piece of paper what you want the computer to do and then give it to a clerk with a pizza and he/she will get it done.
If you believe this, then you need to please stop blogging on technology issues.
The problem Night is this: whether a claim is directed to patentable subject matter is an issue that is foundational. If congress wanted to exclude patentable subject matter from determination either by the PTO or by the courts, it would have to say so in so many words, and not leave it up to an ambiguity.
But, if congress were to actually do that … the relevant statute would be unconstitutional as it would lead to patenting of subject matter beyond the scope of possibility allowed by the constitution.
Don’t be ridiculous Ned.
So after all the time and fees, this case is going to the Fed Circuit, where they will start all over again? Can the Fed Circuit apply the 101 argument if they want to, even if Apple does not ask them to? When will we see one of these that does not involve software?
The Supreme Court was too cute by half with Alice, maybe it was not the perfect case. Maybe this one will be. Until they say flat out that written instructions that don’t result in physical transformations are not patent eligible, the system will remain FUBAR. And that’s EXACTLY what it is.
Result in physical transformations…
Mr. Snyder, the Coury already has told you that directly.
See Bilski: MoT not required.
See Bilski: MoT not required.
I seem to recall that Bilski’s claim was ineligible. I also seem to recall that you had difficulty reaching that conclusion yourself. Same with the claims in Prometheus v. Mayo. And Alice. And Ultramercial. And to this day you seem to have great difficulty with subject matter eligibility issues. And we all know why that is.
If Bilksi had decribed his new information processing machine in structural terms that distinguished his machine from prior art machines on that basis his claims would almost surely never have reached the Supreme Court and certainly not on 101 grounds.
But go ahead and tell everyone “anon”: is this claim eligible? Is it valid? How do you see this case ending? Share your expert opinion with everybody and, please, let’s have none of your usual featherweight “presumed valid” “analysis.” Use declarative sentences and give us your wonderful predictions.
Or is this “technology” (LOL) too sophisticated for you? Let everybody know.
Who the F cares about the claim – I’m sharing the Court’s holding – you know, the thing in law that gets applied to the next case.
Martin, I am not certain, but I do not believe that Apple raised a 101 defense.
Their press release spoke in terms of technology — that Apple invented first. This is not consistent with a complaint that the patents asserted against it were covering something other than technology.
See Malcolm’s tinfoil accusation below.
They did at the summary judgment stage. The Court’s order likened the claims to the ones found in DDR Holdings.
The Court’s order likened the claims to the ones found in DDR Holdings.
Hilarious.
That was the meaning of my question Ned- can the court do it sua sponte, and if so, would that be a denial of due process for the plaintiff? Or is due process inherent in the jurisdiction of the court if they see a plain matter of law that no argument from the plaintiff could alter?
I’m happy to see this verdict because until the absurdities pile up to the Moon, written instructions to generic computers resulting in only further processed information will remain patent eligible, when they simply should not be….
“I’m happy to see this verdict because until the absurdities pile up to the Moon”
Exactly my thoughts.
That’s why I’ve substantially stopped fighting the softiewafties after a point. The congress knows what is going on. It’s their entitlement program. It’s up to them to govern correctly and fix it or else their governing substitute the courts have to step in. I’ll just sit back and let their entitlement program screw the populace now that the congress has had the issue squarely put in front of them. Heck, even the president has been called in on this. If the congress likes this sort of thing going on then fine. If they don’t then fine. It’s time for them to make that call and adjust they lawing.
“or else their governing substitute the courts have to step in.”
Separation of Powers 6 – only ONE branch of the government was given the authority you identify here (and it was NOT the judiciary).
Have you watched The Paper Chase yet? Heard the comment at the hour six minute mark yet? Informed yourself yet?
I’m familiar with the separation o powers anon. But you aren’t. The one body has the responsibility to make laws in order to govern. The other body has the responsibility to see that justice ultimately occurs irl in order to govern. If justice ain’t happenin under dem laws by the one power, the other powers kick in.
I know you have trouble understanding this whole balancing thing but that’s how separation o powers works.
Not even remotely close 6.
That’s like saying a Congressman (like Boehner) can himself say that Obama is not executing the laws “for Justice,” so Boehner is now going to do it.
“That’s like saying a Congressman (like Boehner) can himself say that Obama is not executing the laws “for Justice,” so Boehner is now going to do it.”
That one’s a bit absurd. But at least you’re getting the general idea. They still have to use their powers. In Boehner’s case it would be like Boehner says that obama is not executing the laws so he uses the traditional power he has and rallies the congress to close up a purse or two (or the whole fin gov) or block a bunch of bills and send only bills he wants to send and the pressy doesn’t like. Boehner still cannot force the president to act, but he can use his ancilliary powers make the situation intolerable until he does. In the court’s case they use their traditional power of interpretation of laws sometimes. The courts cannot make the congress get their acts together and legislate but they can make things intolerable for the populace until the congress does, or they can provide a reprieve for the populace until the congress does. Tis up to them. Likewise, I can use my power to make the situation a tiny tiny bit more unbearable for the populace and add that much more to the pressure for congress to get on with governing.