Federal Circuit Bites Back against USITC Expansion into Electronic Importation

By Dennis Crouch

In ClearCorrect v. ITC and Align Tech, the Federal Circuit reversed the ITC’s prior determination – holding instead that the Commission’s jurisdiction over the importation of “articles that infringe” does not extend to the “electronic transmission of digital data”. Rather, the court holds that the Section 337 of the Tariff Act is limited to “material things” as used in common parlance (i.e., beyond an “electron’s invariant mass” that may be associated with a digital transmission).

The opinion by the court was filed by Chief Judge Prost, although not strictly a majority opinion. Judge O’Malley joined in the holding that the ITC lacks jurisdiction over the case, but wrote a concurring opinion that differed as to issues of administrative law deference. Judge Newman wrote in dissent – arguing that the decision guts the future of Section 337 cases.

This is a 3D printer case involving teeth aligners. In this case, the accused infringer’s has a four-step process:

  1. Make a physical model of a US patient’s teeth;
  2. Use a 3D scanner to digitally recreate the patient’s initial tooth arrangement;
  3. Transmit the digital file to Pakistan where workers digitally determine a final tooth placement and generate the set of sequential aligners (digital files) to reach that result;
  4. Transmit the digital files of the aligners to the US; and
  5. Print the aligners out with a 3D printer and given to the patients.

Align alleged violation based upon a set of seven different patents, including U.S. Patent No. 6,217,325.

19 U.S.C. § 1337(a)(1)(B) provides the USITC with authority to take action against the the “importation … of articles that (i) infringe a valid and enforceable U.S. patent.” The only importation here was the set of digital 3d blueprints, but the USITC found that a digital article counts as an article and thus within the ambit of USITC authority.

The three opinions can roughly be characterized as follows:

Chief Judge Prost: Since Congress delegated authority to the USITC to resolve any ambiguity in Section 337, then the court must give deference to agency interpretations. However, there is no ambiguity about the definition of “articles” in that it should be interpreted to mean “material things” – and thus no reason to move to Chevron step two. Still, under a step-two analysis, the agency’s interpretation is unreasonable and not a permissible construction.

Judge O’Malley: This is an attempt by the USITC to regulate the Internet – an area over which it has no authority and thus need not be given deference.

Judge Newman: The ITC is designed to regulate unfair competition coming from foreign sources – that is what is going on here and should be within the agency’s authority.

= = = = =

The case had potential major importance in the copyright realm. The ITC also has jurisdiction to act against importation of articles that infringe US copyrights. Allowing the ITC to take action against digital importers would create a heyday for copyright owners going after foreign streamers – especially because the USITC procedures are designed to handle the situation where the defendant is abroad.

= = = = =

One thing to keep in mind is that the USITC’s jurisdiction is entirely duplicative of the federal district courts – it is simply an alternative (friendly) jurisdiction when the accused infringement involves the importation of articles. Here, the parallel lawsuit against ClearCorrect is still pending in the Southern District of Texas. That case has been stayed since 2012 pending the outcome of the USITC investigation.

180 thoughts on “Federal Circuit Bites Back against USITC Expansion into Electronic Importation

  1. 15

    Ned Said:

    “Thus a manufacture is vendible article, not being machinery.”

    To which I say, signals are vendible (Blu-Ray disks, HBO) and I would argue that they are not machinery.

      1. 15.1.1

        Ned,

        Your reply is simply not sufficient by any measure.

        So let me repeat what I last left you with:

        Ned,

        You keep on saying “vendible” as if that help you.

        It does not.

        AND PLEASE – your attempt at being coy as to what is not included is shameful.

        Useful Arts – as I have told you a gazilion times.

        1. 15.1.2.1

          Les, you play word games.

          Lets see:

          Signals are things
          Things are articles
          Signals are articles

          That is your proof?

          The premise is wrong. Withing the law, an article is a physical object. In contrast, while a signal may be physical, it is hardly an object.

          1. 15.1.2.1.1

            Premise?

            Ned, it is abundantly clear that you are the one playing word games here.

            No matter the ITC mandate, the patent mandate is clear.

            Except to those who wish to insert their “philosophy” to over ride the plain fact that software is a manufacture solely intended as a machine component.

            Solely.

            Show me someone who denies this reality, and I will show you someone who does not understand what software is.

          2. 15.1.2.1.2

            ” Withing the law, an article is a physical object.”

            I have seen this allegation before. But never any citation. Sometimes people or courts refer to physical articles. However, I have only seen that when someone is trying to spin the meaning of some earlier writing.

            For example, see this summary of Bilski (which is congruent with my recollection of the actual ruling) from Wikipedia:

            “Second, the court turned to transformation of articles from one thing or state to another. What is an “article”? Benson had made it clear that tanning hides, smelting ores, and vulcanizing rubber were all instances of transforming articles. This corresponded to the transformation test as the PTO and some amici curiae articulated it: one physical substance is transformed into a second physical substance. But what of electronic signals and electronically manipulated data? Or even more abstract constructs such as legal obligations, which the Bilski case involved? No Supreme Court precedents addressed such entities.

            Some Federal Circuit decisions, however, had held some transformations of signals and data patent-eligible. For example, the Abele decision approved a dependent claim to a method transforming X-ray attenuation data produced in a X-Y field by an X-ray tomographic scanner to an image of body organs and bones —”

            Data is an article…..

            link to en.wikipedia.org

              1. 15.1.2.1.2.2.1

                Don’t confuse discussion of “What is an “article”? ” with discussion of methods and apparatuses.

                1. “Just that you cited cases involving methods and apparatus to support your view on manufactures.”

                  No Ned. I cited a case discussing the meaning of “article” to support my view of “article.”

            1. 15.1.2.1.2.3

              Les, from your post, ” Abele decision approved a dependent claim to a method transforming X-ray attenuation data…”

          3. 15.1.2.1.3

            Word games Ned? I’m pretty sure that’s week one from Logic 101.

            Anyway, my position is slightly different:

            Article means thing.

            A signal is a thing.
            A bit is a thing.

            Signals and bits are articles.

            1. 15.1.2.1.3.1

              A bit is value.

              A signal is information unless limited to something physical, like an Electromagnetic wave. But when so limited, a signal comprises a state of the electromagnetic wave.

              An article is a physical object.

              1. 15.1.2.1.3.1.1

                No Ned. An article is a thing. Signals are things. Bits are things. Even the court in Bilski understood that. Transformation of x-ray DATA is transformation of an article sufficient to satisfy the machine or transformation test.

                1. Transformation of x-ray DATA is transformation of an article sufficient to satisfy the machine or transformation test.

                2. Ned,

                  As I pointed out (way below at post 1.1.4), here is a paragraph from the good Professor’s write-up:

                  The case had potential major importance in the copyright realm. The ITC also has jurisdiction to act against importation of articles that infringe US copyrights. Allowing the ITC to take action against digital importers would create a heyday for copyright owners going after foreign streamers – especially because the USITC procedures are designed to handle the situation where the defendant is abroad.

                  IF – for argument’s sake, we take your view of “articles” as being ONLY the “hard goods” type of thing, why then are there not an ample number of bootleg/p1rates setting up just off shores (in international waters even) and engaging in the (rather profitable) business of shipping in the “bits”….?

                  Do you “all of a sudden” take a different view for copyright “articles”…?

                3. anon, there are ways to deal with pirates on the high seas. We would merely have to further define piracy on the high seas to include copyright piracy — closing the loop so-to-speak, between the colloquial and the legal.

                  Once copyright piracy practiced on the high seas was high seas piracy, the remedy is criminal. The navy is called in, the pirates arrested or shot as they attempt escape, and then imprisoned for the rest of their lives.

                  Now, the next time you take a cruise, tell your daughter not to commit copyright piracy on the high seas lest she go to jail.

                  link to en.wikipedia.org

                4. Ned,

                  You quite missed the point here: that “article” as you would have it, creates and REWARDS such new pirates….

                  Since such operations are not “really” dealing with “articles.”

  2. 14

    I think the Chief Judge did an admirable job of statutory construction … looking at the big picture and construing the statute as a whole to make it consistent.

    Which brings me to Achates.

    How this same jurist could have written both opinions is inexplicable.

    To review, the court held that 314(d) barred appeals of 315(b) decisions from an appeal of a final decision. 314(d) expressly bars appeals of institution decisions made under “this section.” The court held, based on St. Jude, that this barred appeals of 315(b) decisions from a final decision despite 315(b) not being within 314.

    The court did not discuss or apparently even consider the structure of 314 as a whole or the IPR chapter as a whole. 314(a) requires that there be no institution unless the petition demonstrates a reasonable likelihood of success with respect to patentability. 315 bars institutions under a variety of circumstances related to patent infringement or validity lawsuits.

    But 314 itself declares that institution decisions are made “under this chapter.” 314(b). This is entirely inconsistent with the idea that the 314(d) bar on appeals extends beyond 314 to include decisions made under 315.

    But the Chief wrote Achates. One begins to wonder if there is one Chief for one case and a different Chief for a different case, depending on factors that are not discussed.

    1. 14.2

      315(b) appeal not a mandamus, dismissed.

      “CLICK-TO-CALL TECHNOLOGIES, LP v. ORACLE CORPORATION
      link to cafc.uscourts.gov

      “Second, although CTC claims that it has petitioned
      for mandamus relief, there is no mandamus petition
      pending before us. There are three conditions that must
      be met before a writ of mandamus can issue: (1) the
      petitioner must “have no other adequate means to attain”
      the desired relief;” (2) the petitioner must demonstrate a
      “clear and indisputable” right to the writ; and (3) the
      court “must be satisfied that the writ is appropriate under
      the circumstances.” Cheney v. United States Dist. Court,
      542 U.S. 367, 380-81 (2004) (internal citations and quotation
      marks omitted). In its reply brief, CTC argues in the
      alternative that it “has a clear and indisputable right to
      issuance of a writ of mandamus because the Board ignored
      the plain language of § 315(b) by exercising jurisdiction
      over this case.” Appellant Reply Br. 11. We conclude that CTC’s cursory allegations in the alternative
      are insufficient to permit the court to meaningfully consider
      the issue at this time.

      For the foregoing reasons, we dismiss CTC’s appeal
      for lack of jurisdiction.”

      Does anyone see what is afoot here yet? A systematic denial of justice.

  3. 13

    Maybe Director Lee can take the two minutes to improve “patent quality” by informing Examiners that every claim reciting only the following steps is obvious:

    1. Gather information about a thing.
    2. Determine if thing can be improved
    3. Use logic to “automatically” determine what needs to be done
    4. Transmit information (e.g., 3-D printer file or any other information) embodying the determination in 3.

    Of course, adding a step 5 reciting “actually improving the thing according to said information” doesn’t affect the conclusion.

    I wonder how much generic junk of this sort has already been granted. My guess is quite a bit.

    1. 13.1

      MM, “Obvious?” Well, if KSR stands for anything, there has to be a functional improvement in something otherwise eligible for the subject matter not to be obvious.

      But, if the claimed subject matter does not improve a machine, manufacture or a composition, or involve a process for making one of these, or using one of these to produce a new or improved physical result, are not we talking about 101?

      1. 13.1.1

        in something otherwise eligible

        That’s not the law, Ned.

        Further, your attempt here at defining process is ALSO not the law.

        Same C R P, yet another thread.

    2. 13.2

      Your arrogance knows no bounds.

      In a world that knows only metal/wire braces, why would the claimed method have been obvious? Simply because you declare it so?

      1. 13.2.1

        In a world that knows only metal/wire braces

        People were using catgut to close gaps in teeth thousands of years ago so it’s likely that your “world” never existed. Also this:

        link to archwired.com

        “As far back as 1945, orthodontists realized that a sequence of removable plastic appliances could move teeth toward a predetermined result. Some orthodontists even made simple plastic “aligner trays” in their offices for minor adjustments.”

        Throw in 3-D imaging technology (known to be capable and useful for imaging anything), the use of logic as understood by skilled dentists, and any well-known technology capable of manufacturing a simple apparatus (e.g., robotics, 3-D printing) and that’s it.

        It isn’t “inventing” to take someone else’s apparatus, e.g., a 3-D printer, and say “3-D print this”. Nor does folding in some baloney about “identify a thing that needs repair or replacement and then 3-D print it.” Nor does folding in some baloney about “take a picture of that broken thing and use logic to figure out what you need to fix it.” Nor does folding in baloney about “transmitting information that you figured out with logic.”

        It’s the inability (I’m being generous here) of our PTO to see through the mindless games being played by free-riding patent applicants that’s pretty much fubar’d the patent system for everybody. There’s an easy way to take a giant step towards fixing the system but it’s not clear that humankind can abide the shrieking and mewling of the aggrieved “stakeholders” (aka The Most Important People Ever) when that step is taken.

          1. 13.2.1.1.2

            Woah. They should have a dozen patents on that. It’s amazing. All those items printed from nothing but whipped cream!

      2. 13.2.2

        In terms of the actual idea of using different “plates” (or whatever these are called) and being able to manufacture them, that I believe was a stroke of genius well deserving of patents. MM just doesn’t like anything that gets transmitted, anything done with computers, anything on the Internet, etc.

        1. 13.2.2.1

          I believe was a stroke of genius

          Tell everyone who the “genius” was who “invented” the idea of using a sequential series of devices to straighten teeth. Surely he/she is immortalized in the Orthodontics Hall of Fame.

          MM just doesn’t like anything that gets transmitted, anything done with computers, anything on the Internet, etc.

          It’s not about “liking.” It’s about recognizing systemwide incompetence when you see it. The popular alternative, of course, is to pretend that electronic signals and connected computers were “invented” in 1990 and it took ten years after that for “genius” patent attorneys at their annual Christmas party to figure out their utility.

  4. 11

    Can you support that with some citation or analysis? This is the first I’ve heard of what would be a significant change in the law, if it were correct.

  5. 10

    It’s actually amusing to see folks here making arguments against this decision that depend entirely on the even worse decisions that directly led to proliferation of junk patents like the one asserted here.

    Ridiculous nonsense like people suggesting that the ITC “seize signals” or seize dentist’s computers or answering machines because of some patent-ineligible information stored on them is just one of the many reasons that information and logic patents need to be expunged from our system system with extreme prejudice.

  6. 9

    So Align cannot use the ITC to stop the importation of the single missing process step, but under Akamai, ClearCorrect could be found to be a 271(a) direct infringer by outsourcing under contract the missing method step, and receiving the results back to complete the patented method. As such, with Akamai, Align has non-ITC actions against ClearCorrect that it may not have believed it had under the pre-Akamai narrowly interpreted single entity rule.

    1. 9.1

      Lloyd, ClearConnect LLC was deemed to be a direct infringer.

      This case is not so much about providing a remedy against ClearConnect, but about whether the ITC was granted authority by Congress to regulate the Internet.

      1. 9.2.1

        MM, you are one of the few voices of reason here.

        It is possible to import an article necessary to performing a process step.

        But that article cannot be a signal.

        Traditionally, in rem jurisdiction, has been over “things.”

        Also for all the talk about science here, no mention of quantum mechanics, which is curious. You cannot seize an electron because you can’t know where it is at a given time.

        1. 9.2.1.1

          You’re focus is on what kind of container the articles are sent in, rather than the fact that the articles are sent.

          Neither you, nor anyone else, has addressed the hypos comparing a CD physically imported with a CD physically configured by a foreign-source signal. Let’s try a fourth time and see if _anyone_ can provide an answer.

          Suppose I head north for a few hours, and one foot south of the Canadian border I set up a CD stamper (and just for kicks, right next to a U.S. Customs station). My buddy one foot north of border connects a wire from Canada to my CD stamper. Firm F in China sends a signal through that wire to my CD stamper, which uses content of the signal to stamp a thousand copies of a CD, which infringes a U.S. patent. Firm F also ships a thousand copies of the CD across the same border where they are inspected at the Customs station. The content of stamped and shipped CDs are identical and infringe the same U.S. patent.

          I’m just offering a CD-stamping service. I don’t monitor what my stamping machine stamps or who buys the fabricated CDs. It’s an open service for anyone to pay for and stamp their own CDs. So let’s suppose I have no infringement liability, just like the ignorant shipping service has no liability for delivering the imported CDs.

          For what practical reason should Customs to be able to seize the shipped CDs, but not the stamped CDs? Both sets of CDs are in the same situation that section 337 is intended to address.

          There’s more. My CD business is so successful I set up a 3D-printing service. Firm F transmits the model for a patented shoe-horn which is printed by the 3D printer. I have no clue, I just let people pay to use my 3D printer from overseas. Firm F and I count dollars and juggle dictionaries. Customs twiddles its thumbs. The patentee waits 5 years for a tenuous infringement action to work its way through the federal courts.

          Not that it’s relevant, and maybe I’m old fashioned, but opting to enable this kind of activity seems a bit … un-patriotic.

          1. 9.2.1.1.1

            Neither you, nor anyone else, has addressed the hypos

            Here’s some advice for you and your clients: take your CD patent and line your birdcage with it.

          2. 9.2.1.1.2

            1) customs can seize the wire that you laid across the border under Suprema

            2) why are you even set up right near the customs station? Seems like you are rigging the hypo to get the answer you want.

            1. 9.2.1.1.2.1

              1) Then change it to a microwave radio link.

              2) That is the purpose of a hypo. It’s proof by example. If an example fits the rule and the result is absurd, then the rule is absurd.

              1. 9.2.1.1.2.1.1

                Yea but an absurd premise makes for an absurd result as well. I’ll improve your hypo.

                Instead of a radio link there is one person on one side of the border with a computer and somebody on the other side of the border with another computer. Person a emails an

                1. “Lawya”

                  Your flippant posts lack – even by my permissive standards.

                  Here, you seek to “improve” but absolutely F A I L to do so.

                  Elsewhere, you question the physics, but then exhibit a surprising lack of understanding of even basic physics (the uncertainty principle applies to exact knowledge of either location or speed, and exact knowledge of neither is required in the macroscopic world that would pertain.

                  Hey, I don’t mind your irreverence, but try to provide a cogent piece while being irreverent.

                2. Whoops didn’t finish. Was typing on phone.

                  Instead of a radio link there is one person on one side of the border with a computer and somebody on the other side of the border with another computer.

                  1) Person A on Canadian side emails a song illegally to person B on the US side. Person B downloads it.

                  2) A mails B an illegally burnt CD. Customs seizes it.

                  The difference is jurisdiction. Again, customs has ‘in rem’ jurisdiction’

                  Where does customs get its jurisdiction from in example 1?

                3. Anon. The point is that customs has “in rem” jurisdiction and that you cannot seize an electron because you can’t even identify its location in space at a given time.

                  I don’t quite understand what is irreverent or flippant about that.

                4. I do “get” the point you want to make about “in rem.”

                  The point though is that your errors shine through regardless.

  7. 8

    US patent law does not deal with electromagnetic transmission logically or consistently.

    link to vjolt.net

    Are solitons manufactures? They are predicted mathematically but do not occur “naturally”.

    link to en.wikipedia.org

    Usually legal issues associated with transmission of information across international borders is a matter for the ITU and the international telecommunications regime.

    1. 8.1

      JM: US patent law does not deal with electromagnetic transmission logically or consistently.

      Electronic transmissions themselves are not eligible for patenting. There’s nothing “illogical” about that. Start from that fundamental fact about the system and work outwards and you’ll discover that the US patent system is relatively consistent (at least when compared to, e.g., its treatment of patents on logic).

      1. 8.1.1

        You did not read the article. The original Morse decision rejected a claim directed to the concept of electromagnetic transmission of information. The PTO has expanded that decision to reject patent claims directed to objects that are arguably manufactures.

        Note that Maxwell’s Equations had not even been discovered when Morse was decided and that classical electromagnetic theory in comparison with quantum field theory is itself a very deficient understanding of the physical phenomena, about which the PTO and the US Courts make some extremely ignorant and false assertions.

        Please read the article to which I linked. It is quite thorough on the inadequacy of the treatment of electromagnetic phenomena is US patent law.

        link to vjolt.net

        1. 8.1.1.1

          What do Maxwell’s equations have to do with legal decision making in practice?

          Electronic transmissions are not patent eligible for policy reasons. The law is not a science.

          1. 8.1.1.1.1

            Please read O’Reilly v. Morse 56 U.S. 62 (1853), 35 U.S. Code § 101, and In re Nuijten, 500 F.3d 1346, 84 USPQ2d 1495 (Fed. Cir. 2007) along with Patentable Subject Matter and explain how CAFC is rejecting patentability of electromagnetic transmissions for matters of policy and not for matters of misunderstood physics.

            Also explain whether solitons, which are certainly a lot more palpable and non-transitory than a good number of patent-eligible materials, should have been patent-eligible when they were first manufactured.

            1. 8.1.1.1.1.1

              JM: CAFC is rejecting patentability of electromagnetic transmissions for matters of policy

              So. What.

              explain whether solitons, which are certainly a lot more palpable and non-transitory than a good number of patent-eligible materials, should have been patent-eligible when they were first manufactured./i>

              And people complain that I have too much time on my hands.

              1. 8.1.1.1.1.1.1

                The time on your hands is not the complaint.

                It is the spew that you indulge yourself in with that time – THAT is the complaint.

            2. 8.1.1.1.1.2

              Although couched at a 101 case, Morse is probably better considered a 112 case under mean plus function limited to the structure of the specification case – post codification of 112.

              1. 8.1.1.1.1.2.1

                IWT, perhaps the Supremes are couching Morse in 101 to avoid 112(f). They

                really, really, really, really, really, and one more time, really

                want claims expressed so broadly as to encompass all future methods, means or ways of achieving the invention declared

                I N V A L I D.

                Hallibuton was (and is) no joke to the Supreme Court because Halliburton simply reiterated Morse.

                1. Halliburton was abrogated Ned.

                  If indeed the Supremes are “scrivining” and trying to land what they want (NOTE: not what Congress wants), then even more reason for Congress to remove patent appeals from the Supreme Court (since patent appeals are NOT a matter of original jurisdiction, the power to do so is fully – and rightfully within the constitutional powers of Congress to do so).

                  You keep on missing the fact that the constitutional doctrine of separation of powers applies equally to the judicial branch when that branch oversteps its delegated authority.

                  Funny how you never want to address that important constitutional doctrine.

              1. 8.1.1.1.1.3.1

                while signals are made, they are not manufactures.

                With what inte11ectually honest argument do you support THAT claim, Ned?

                You do not have one – because there is none.

              2. 8.1.1.1.1.3.2

                Radio signals are manufactured by signal factories we call transmitters. What arbitrary and capricious reasoning are you applying that leads you to conclude that nevertheless they are not manufactures?

              3. 8.1.1.1.1.3.3

                Whether the object is a new element, a new compound, or a new soliton, one is simply manufacturing a (relatively) stable superposition of wave functions (from the standpoint of quantum mechanics), a (relatively) stable superposition of quantum fields (from the standpoint of quantum field theory), or a (relatively) stable combination of quantum strings (from the standpoint of string theory).

                From the standpoint of physics, manufacturing a compound, an element, or a soliton is essentially the same operation, but one must qualify that a soliton can be predicted from classical electromagnetic field theory without resorting to non-classical physics theory.

                Classical physics does not explain stable elements or stable compounds. (Before the 20s chemists did a lot of hand-waving. They still do.)

                The quantum corrections to the classical theory of solitons were worked out in the 70s.

                link to insti.physics.sunysb.edu

                Patent law exists at the intersection of jurisprudence, natural science, mathematics, epistemology, linguistics, and engineering.

                Because Dolly Wu has a lot of the background necessary to discuss the issue of patents related to electromagnetic wave phenomena, her article, Patentable Subject Matter, is of interest in sorting out this topic, which has for the most part been completely botched by the court system and by the USPTO.

                1. What in the world does this baloney have to do with protecting “new” signals with patents?

                  Dolly Wu has a lot of the background necessary to discuss the issue of patents related to electromagnetic wave phenomena,

                  LOL.

                  Because electromagnetic waves is teh sooper dooper difficult! If only everyone Truly Understood them like Dolly Wu and Joachim Martillo we’d all be clamoring for patents on “new” signals! Riiiiiiight.

                2. Joachim, consider the whole discussion of ‘manufacture” in Curtis (’67), but particularly at Section 7 that begins,

                  “These cases show that the term” manufacture” has been
                  extended to include every object upon which art or skill can be exercised, so as to afford products fabricated by the hand of man, …”

                  and

                  Section 25, that begins, It has been stated, in a former
                  part of this chapter, that the term” manufacture” was used in the English statute 21 Jac. 1 to denote anything made by the hand of man; so that it embraces, in the English law, machinery, as well as substances or fabrics produced by art and industry.

                  Section 27, “Our statute, however, having .made an enumeration of the different classes of subjects which in England are held to be patentable, it is to be presumed that this term was used to describe one of these classes only, namely, fabrics or substances made by the art or industry of man, not being machinery.

                  FN. 2, “Perhaps the best general definition of the term .. manufacture,” as the subject of a patent, would be, any new combination of old materials, constituting a new
                  result or production, in the form of a vendible article, not being machinery.

                  Of course, in statutory construction, the meaning of the term as understood by those that crafted the language at the time of passage is the meaning that controls.

                  Thus a manufacture is vendible article, not being machinery.

                3. Here is a definition of manufacture from Johnson v. Johnston, 60 Fed. 618, 620 (C.C.W.D. Pa. 1894).

                  The term “manufacture,” as used in the patent law, has a very comprehensive sense, embracing whatever is made by the art or industry of man, not being a machine, a composition of matter, or a design.

                  This definition of manufacture seems to encompass (relatively) stable man-made superpositions of wave functions (if we refrain from treating photons as “matter”).

                  Or the PTO and the US Courts can just embrace de Broglie’s wave-particle duality as formulated in 1924 (!!!) and develop a more rational approach to compositions of photonic matter.

                  As Dolly Wu points out and asks,

                  Humans often create applications from natural matter, and such inventive manmade matter may generally receive a United States patent. For example, man-made, genetically engineered plants are matter, and they are patentable. Man-made chemicals are matter, and they are patentable — even chemicals that are undetected are patentable. Man-made, encoded electromagnetic signals are no less “matter.” Therefore, why should
                  they not also be patentable?

                4. J.M., Curtis would limit manufactures to objects of Arts, to products, to vendible articles.

                  The Johnson v. Johnston, 60 Fed. 618, 620 (C.C.W.D. Pa. 1894) definition of “anything made by man” would include contracts, legislation, works of authorship, abstract ideas and pure fantasy. Obviously there’s something incomplete about the Johnson definition. Curtis seems much more reliable.

                  Now if one could bottle a signal, perhaps we begin moving from the intangible to the tangible, things involving stable matter that can be physically seized, moved from one location to another by operation a man, weighed , measured, tested and destroyed if necessary.

                5. Ned,

                  You keep on saying “vendible” as if that help you.

                  It does not.

                  AND PLEASE – your attempt at being coy as to what is not included is shameful.

                  Useful Arts – as I have told you a gazilion times.

          1. 8.1.1.2.1

            I am not arguing that the ITC is the proper vehicle for dealing with international telecommunications issues.

            The international telecommunications regime is one of the few areas of international law that actually functions well.

            1. 8.1.1.2.1.1

              Are you arguing about anything or are you just complaining that the USPTO doesn’t grant enough quantum physics patents?

              If your issue is lack of competence in our patent system, then I look forward to your extensive comments deriding the PTO’s habit of treating the “structure” of a logic process or algorithm as if that “structure” is indistinguishable from the physical structure of a chemical compound.

              1. 8.1.1.2.1.1.1

                ^^^ because claims of the nature of a physical structure of a chemical compound are but ONE option under the law, and Malcolm somehow (again) wants to make an issue of optional claim formats….

                Or something.

          2. 8.1.1.2.2

            You do realize that such is done “billions upon billions”** of times every day, right?

            **Said in the best Carl Sagan tones

  8. 7

    ” However, there is no ambiguity about the definition of “articles” in that it should be interpreted to mean “material things” ”

    I agree that there is no ambiguity about the definition of articles.

    However, the definition of articles encompasses “things” and is not limited to material things.

    Here is what Miriam-Webster’s says about it:

    1
    a : a distinct often numbered section of a writing
    b : a separate clause
    c : a stipulation in a document (as a contract or a creed)
    d : a nonfictional prose composition usually forming an independent part of a publication (as a magazine)
    2
    : an item of business : matter- NOT Material
    3
    : any of a small set of words or affixes (as a, an, and the) used with nouns to limit or give definiteness to the application- NOT Material
    4
    : a member of a class of things; especially : an item of goods – thing NOT Material
    5
    : a thing or person of a particular and distinctive kind or class —thing NOT Material

    link to merriam-webster.com

    Here’s what a thing is:

    1
    a : a matter of concern : affair NOT Material, digital date is a matter of concern in this case

    b plural : state of affairs in general or within a specified or implied sphere NOT Material the state of teeth is a thing

    c : a particular state of affairs : situation NOT Material the state of teeth is a thing</b
    d : event, circumstance
    NOT Material these teeth are in terrible state</b
    2
    a : deed, act, accomplishment
    b : a product of work or activity
    NOT Material the “blue prints” of the teeth are a product of work or activity</b
    c : the aim of effort or activity
    3
    a : a separate and distinct individual quality, fact, idea, or usually entity
    NOT Material each bit is a separate and distinct individual idea or entity, at a minimum</b
    b : the concrete entity as distinguished from its appearances
    c : a spatial entity
    d : an inanimate object distinguished from a living being
    4
    a plural : possessions, effects
    b : whatever may be possessed or owned or be the object of a right
    NOT Material the digital data may be possessed or owned or be the object of a right</b
    c : an article of clothing
    d plural : equipment or utensils especially for a particular purpose
    5
    : an object or entity not precisely designated or capable of being designated
    6
    a : detail, point
    b : a material or substance of a specified kind
    7
    a : a spoken or written observation or point
    b : idea, notion
    NOT Material the idea represented by the “blue prints” </b
    c : a piece of news or information
    NOT Material the digital data is many pieces of information thing</b
    8
    : individual
    9
    : the proper or fashionable way of behaving, talking, or dressing —used with the
    10
    a : a mild obsession or phobia ; also : the object of such an obsession or phobia
    b : something (as an activity) that makes a strong appeal to the individual : forte, specialty

    link to merriam-webster.com

    This ruling is outrageous.

  9. 6

    Found it. Thanks’ Finnegan:

    The Federal Circuit then considered Decca Ltd. v. United States, 210 Ct. Cl. 546, 544 F.2d 1070 (1976), which it found to be more instructive than Deepsouth. Id. at 1315. In Decca, the U.S. Court of Claims held that a radio-navigation system with components located outside the United States is not within the United States for purposes of infringement, unless a control point or station of that system is located within the United States. Decca, 544 F.2d at 1082-83. The system in Decca included various transmitter stations, one located in Norway, for transmitting signals to receivers. Id. at 1077. The Court in Decca did not decide whether the system was “made” in the United States, but it determined that “use” of the patented invention occurs “wherever the signals are received and used in the manner claimed.” Id. at 1082-83. In finding infringement, the U.S. Court of Claims found persuasive the fact that the system was controlled from the United States and that “actual beneficial use” of the system was in the United States. Id. at 1083.

    Which is making the ‘control test’ and ‘actual beneficial use’ test for claimed infringing signals. IMHO, this would appear on more solid ground than a metaphysical discussion of the ‘article’ nature of the photon.

  10. 5

    Has anyone considered whether if this decision came out differently if there would be conflicts with the First Amendment? Just curious.

    1. 5.1

      Has anyone considered whether if this decision came out differently if there would be conflicts with the First Amendment?

      Yes. The conflicts are obvious to most people capable of thinking about something else besides “some sooper dooper important tech company might lose money!”

    2. 5.2

      Generally speaking, 1st amendment issues are baked into IP law, e.g., copyright’s fair use enables all the 1st amendment protection required; likewise for trademark law (defenses for using a trademarked term as comparison, etc); patent law protects speech by limiting when 271(b) and (c) can make an individual liable.

      In this case, the ITC had found that ClearCorrect Pakistan knew* of Algin’s patents, provided “a material or apparatus for use in practicing a patented process” [271(c)] and had the intent to do so.

      * I think they relied on the willful blindness doctrine, but I’ll have to check.

      I’m not sure what MM thinks is the obvious violation of the first amendment. Maybe he thinks software, because it is digital, gets more first amendment protection. But courts, generally, will continue to examine speech on the internet in the same manner as they do off the internet.

  11. 3

    “Articles” are only material things? Merriam Webster: “a piece of writing included with others in a newspaper, magazine, or other publication”. Is not a blueprint an article of sorts? A stretch? Maybe, but section 337 also mentions copyrighted works and masks. Would not transmission of copyrighted songs be an importation of the type for which enforcement is intended?

    As far as enforcement, the idea of seizing a signal is a red herring. Any transmission has to “land” somewhere. Does Customs operate at airports in the interior of the United States? How is seizing an article at an airport any different than seizing a server in Peoria that is importing, via transmission and storage, digital copies of copyrighted or patented information? Any digital information, to be of any value, must eventually be realized as a physical article. A server – or its storage – storing a blueprint or a song is an article, it seems to me. And whether that article materializes in a device after a transmission, or whether it is on a physical media being imported at a point/port of entry seems to be distinction without a difference.

    The decision, like others of the CAFC, focus on insignificant metaphysical distinctions between the “stuff” of 30 years ago, and the “stuff” of today. What should the law be concerned with, form, or function? Is the form of an infringing thing what section 337 is supposed to be about, or is it the importation of that thing that 337 is really about?

    1. 3.1

      H, a signal is broadcast from space. Every location in a hemisphere can receive the signal. How does one seize such a signal?

      I copyright a joke. A pirate puts it on the air, and it goes viral. How do I seize the joke?

      I think that this is why broadcasting in the US was free from the beginning. One could charge for broadcasting, or one could charge for receiving. We chose the former. The Euros chose the latter. But one could not control anything about a signal once it had been broadcast.

      1. 3.1.1

        Read my post. You don’t seize the signal, you seize the device it lands on. We don’t seize the airline companies and shipping companies that deliver articles to sea and air ports. Why do we need to “seize” the signal that delivers the digital article?

        The remark about the joke fails to distinguish between the abstract concept of your joke, and the copyrighted works that embody the joke, such as an audio or video recording.

        Also, because you can’t seize all digital imports, you shouldn’t all seizure when it is practical? That makes no sense. Would someone invest in an ITC action if they thought enforcement wasn’t possible.

        1. 3.1.1.1

          OK, but the ITC does not have jurisdiction to seize post-printing. That is why we have the courts.

        2. 3.1.1.2

          I actually worked on this case when I clerked for the ITC in law school. I had to go to the library of congress and dig up old dictionaries. I understand your perspective.

          I have since realized the error of my ways. I regret contributing to the ITCs assertion of jurisdiction over nearly every patent case.

          The ITCs jurisdiction is over unfair imports. How is a signal an import?

          Congress is negotiating the TPP right now. It could easily amend 337 to expand the ITC’s jurisdiction to signals. This case is relevant to these trade discussions.

          There are larger factors at play. The ITCs jurisdiction was already expanded in Suprema. The CAFC needed to draw the line somewhere.

          This was the case to do it.

          1. 3.1.1.2.1

            If the signal were on a floppy disk – and the disk were imported – would that change your view? In my hypo – each disk is marked with – made by infringing process – and imported for the sole purpose of creating a 3d print of the infringing process.

            1. 3.1.1.2.1.1

              Yes it would. That’s Suprema.

              Remember that the ITC has in rem jurisdiction at the border.

              You can say ( like Newman) that it shouldn’t make a difference, but it does.

              Congress didn’t anticipate this sort of issue, which is exactly the reason the ITC cannot unilaterally assert jurisdiction.

              1. 3.1.1.2.1.1.2

                Yes, i guess you are right – it’s about the in rem jurisdiction. But by that logic – jurisdiction over the in rem property – if directed to the article – would be the actual importer – DHL? But, i get your point.

          2. 3.1.1.2.2

            Full Definition of IMPORT
            transitive verb
            1
            a : to bear or convey as meaning or portent : signify
            b archaic : express, state
            c : imply
            2
            : to bring from a foreign or external source: as
            a : to bring (as merchandise) into a place or country from another country

            b : to transfer (as files or data) from one format to another usually within a new file

            link to merriam-webster.com

            …just sayin’

                1. Each of the separate numbered definitions are context specific.

                  You need to hand over your car keys as you attempt to ig nore the context, and make any one definition fit any of the other definitions out of context.

                  That is just not helpful.

                2. Yes. The definitions are context specific. What of it. Import means to bring from a foreign or external source. There is no indication that that meaning is not applicable to signals or information. What did I say that makes you think I’m overlooking context?

                3. The definitions are context specific. What of it.

                  asked and answered: “If you feel compelled to post some comment, kindly complete the thought.

                  When you take things out of context, it is not helpful.

                4. I didn’t take anything out of context.

                  When you make accusations without support it is not helpful.

                  By the way, who said I was trying to be helpful to you?

                5. Les, move the goalposts back.

                  By the way, who said I was trying to be helpful to you?

                  Drop the “to you,” as I never said that the helpfulness aspect was a function of me personally.

                  Likewise, while you may now claim “I didn’t take anything out of context.” – that is exactly what you DID do, and is exactly what my comment addresses.

                  Your “without support” is simply off. There is no need for any such “support” when it is clear on its face that you have ig nored the contextual aspects of each of the separate numbered definitions and you wish to hodge podge all of them together.

      2. 3.1.2

        Whats your point?

        One can’t do much about a bullet once it has been fired, but there are plenty of circumstances under which firing a bullet is illegal.

    2. 3.2

      “Is the form of an infringing thing what section 337 is supposed to be about, or is it the importation of that thing that 337 is really about?” Is an electronic transmission a thing?

      1. 3.2.1

        I’m disappointed that you don’t address the fact that an electronic transmission must eventually take the form of a physical article if it’s to be of any use to anyone. A signal that just floats in space or on wires is no concern to anyone.

        1. 3.2.1.1

          HPB: an electronic transmission must eventually take the form of a physical article if it’s to be of any use to anyone.

          For the reasons discussed by the majority, it makes a lot more sense for the patent system to focus on those useful physical articles instead of on the information that could be used to make them.

          That information has enormous utility and value is not a recent discovery. It’s a well-known fact that is as about as old as human civilization. It’s amazing that people forget this, especially people who should know better (because they weren’t born after 1993).

          What’s new is the abuse of the patent system by monied interests to control who gets to use publically available technology to send and receive information.

          1. 3.2.1.1.1

            The decision was not about the “patent system”, whatever that is. It was about interpretation of a statute. An interpretation of which reasonable minds can differ, as evidenced by the dissent and the original ITC decision. Nor was the decision about information. Technically, the decision was about whether an electromagnetic signal is a section 337 “article”. The patent holder wasn’t trying to stop “information”, it was trying to stop infringing products from being brought into existence in the U.S. by direct foreign activity.

            I’ll keep asking until you either answer or your non-reply shows you can’t: what practical difference is there between (a) a foreign entity shipping patented CDs into the U.S., and (b) a foreign entity sending a signal directly to a CD printing machine in the U.S. to cause the exact same CD to be produced? Let’s even assume that CD printing machine is right there in the Customs office here in Seattle. How is that on-the-spot printed CD practically different than the identical CD right next to it that was just unloaded from a ship?

            1. 3.2.1.1.1.1

              Sorry, didn’t see your post before I posted. I had that same question.

              I’ll keep asking until you either answer or your non-reply shows you can’t: what practical difference is there between (a) a foreign entity shipping patented CDs into the U.S., and (b) a foreign entity sending a signal directly to a CD printing machine in the U.S. to cause the exact same CD to be produced? Let’s even assume that CD printing machine is right there in the Customs office here in Seattle. How is that on-the-spot printed CD practically different than the identical CD right next to it that was just unloaded from a ship?

              1. 3.2.1.1.1.1.2

                “How is that on-the-spot printed CD practically different than the identical CD right next to it that was just unloaded from a ship?” __ The issue is legal differences–not practical differences. Obviously, importation and domestic manufacture both result in a patented article being in the US, but they are distinct acts of infringement.

                Suppose the information is stored on a server in the US for manufacture in Canada. Is that an act of infringement in the US?

                1. At a minimum the manufacture or importation of the server (including said stored information) is. The claim would have been to a non-transient storage medium, not specifically a CD, so the server or at least its hard drive or what have you would represent an act of infringement.

          2. 3.2.1.1.3

            “Information” does not make anything.

            You keep on forgetting an important part of the exceptions to the judicial doctrine of printed matter: the functionally related part.

            THAT’s the part that you seem to want to ig nore by dissembling ad infinitum.

            1. 3.2.1.1.3.1

              the functionally related part.

              Right — the self-serving part that is meaningless baloney created by judges who just knew they had to grant that patent. But hey: it’s patent-promoting judge-created baloney so your cherished “principles” get tossed to the gutter. Fun times.

              1. 3.2.1.1.3.1.1

                The only “self-serving” I see is your own selective versions of the law with the law as written by Congress having options.

                Your version here of “meaningless baloney created by judges” is itself meaningless, because as I explained to you with simple set theory, the retraction and restriction of a judge made doctrine recognizing that the doctrine itself was wrong (too extensive to begin with) is just NOT the same as a doctrine creating from scratch a coverage that the words of Congress provides.

                You are doing that dissembling thing again.

                And I am doing that busting you doing that dissembling thing again – again.

                PS – it is NOT “my” principles here – but you already knew that – as that is part and parcel of your very own volunteered admission against interests.

    3. 3.3

      Hierarchy,

      There seems to be some confusion about particle physics. From Newman’s Dissent, page 10: “Further, the particles and waveforms of electronics and photonics and electromagnetism are not intangible …”
      FN 1 mentions the Higgs Boson.

      If tangible means can be felt with the fingers, then electrons are intangible. However, they have mass as does the Higgs Boson. But, Pakistan does not send electrons. The information is carried by electromagnetic waves or mass-less photon equivalents. Via fiber optic cable, even the original photons do not arrive in Texas. These are absorbed by a series of repeaters which send out new photons. It is information at its most abstract as it crosses the boarder. But then, as you indicate, it can be stored by affecting physical changes in some sort of computer memory.

      This problem of statutory interpretation reminds me of similar problems with the Constitution. In this case, I agree with Newman’s judicial activism. In part, if her view prevailed, I doubt there would be a hue and cry in Congress.

      1. 3.3.1

        Yes. I’ll say again in another way, we should rightly expect our judiciary to be able to see the forest from the trees. Whether something can be perceived by human senses is irrelevant. Would a patented nano-particle too small to be seen with the human eye or felt by human touch not be an “article”? A patented gas with no smell or visible sign would not be an article? Do these judges think that the bounties of the digital arts are just smoke and mirrors? Why is there an action in the ITC? Because some someone’s money is at stake. Isn’t that what the ITC is all about?

        Should judicial decisions hinge on whether a subatomic particle has mass? These shouldn’t be the kinds of things judges consider. Human interests are what judges should be taking into account. How are U.S. citizens better off by disallowing ITC jurisdiction for this kind of situation?

        1. 3.3.1.1

          HPB: Why is there an action in the ITC? Because some someone’s money is at stake. Isn’t that what the ITC is all about?

          What in the world are you ranting about?

          Sorry but “because money” is not an excuse to blow a massive gaping hole in the system. You seem to be drinking from the software patent lovers kool aid bottle. That’s a recipe for pain.

          1. 3.3.1.1.1

            OK, I’ll hold your hand for you. In a decision close enough to get accepted by the CAFC and go 2-1, what things should guide the decision? The panel sided with the dictionary definition of “article” (a rather vague word, and the decision focuses on “material”, which electromagnetic energy most certainly is, massless or not). Or instead, should the panel have been concerned with how similar the activities and effects are to those intended to be addressed by section 337? The decision recognizes that a patented CD is an “article”. How are the _financial_ objectives of section 337 (preventing financial losses by U.S. patent holders) furthered by limiting ITC jurisdiction based on the means by which a foreign actor caused a patented CD (or its equivalent, a storage device) to enter (come into existence) in the United States?

            1. 3.3.1.1.1.1

              HPB: should the panel have been concerned with how similar the activities and effects are to those intended to be addressed by section 337?

              Again: Congress didn’t intend 337 to address the importation of information that might be used to infringe a patent.

              The decision recognizes that a patented CD is an “article”.

              A CD containing a picture of someone’s teeth is “an article” but — and this is extremely important — (1) that CD isn’t eligible for patenting and (2) the importation of that CD can not be enjoined merely because someone might use the information in a manner that competes with a US company. [note that i’m ignoring the inherent absurdity of any CD being patentable based on what the CD encodes; our patent system is broken but let’s not continue trashing it, please].

              How are the _financial_ objectives of section 337 (preventing financial losses by U.S. patent holders) furthered by limiting ITC jurisdiction based on the means by which a foreign actor caused a patented CD (or its equivalent, a storage device) to enter (come into existence) in the United States?

              Those “objectives” need not be “furthered” at all for the decision to be 100% correct. Congress didn’t say “further these objectives by any means necessary because US patent holders are The Most Important Ever”. And Congress is never ever going to say that. Hard to believe, I know, but it’s true.

              1. 3.3.1.1.1.1.1

                What is the point of conversing about the law with someone who doesn’t know it?

                z4 Techs., Inc., 507 F.3d at 1346;
                Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197 (Fed. Cir. 2010)

                Is there some decision overriding Beauregard that we’re not aware of? Where has a litigant successfully argued that a non-signal CRM claim was not patentable? I’ll be waiting.

                1. The Alice decision at the CAFC threw out the CRM claims. It was one of the few things a majority agreed on, 7-3.

                2. Lourie pointed out that “under § 101 we must look past drafting formalities and let the true substance of the claim guide our analysis.” The CRM was incidental to the mathematical procedure to which the claim was directed.

                  Beauregard Claims are certainly extremely important in a world where new innovative devices can be cost reduced after a few years to combinations of generic hardware and software programs — unless we want to force IP owners to protect their property via lawsuits arguing complex induced or contributory infringement.

                3. unless we want to force IP owners to protect their property via lawsuits arguing complex induced or contributory infringement.

                  Or you could just learn how to draft claims that are directly infringed.

                4. Is there some decision overriding Beauregard that we’re not aware of?

                  Well, Alice punched a pretty huge hole through a ton of them.

                  You may wish to set aside the fact that the Supreme Court has not had the opportunity to rule on the eligibility of a claim to an article whose sole distinction from the prior art is a functional description of the instructions carried on the article. But I’m not going to set that fact aside.

                  The important thing is that you keep taking your client’s money and writing those claims! Just keep taking that money and telling your client that everything is just beautiful. After all, that money is beautiful and who cares about anything else.

                5. HoPB: Is there some decision overriding Beauregard that we’re not aware of?

                  H, are you not aware that there is no Beauregard decision?

              2. 3.3.1.1.1.1.2

                I see how you dissembled there Malcolm:

                holding a picture

                You “forgot”** about the exceptions to the judicial doctrine of printed matter again.

                **not really forgot, because as we both know, you volunteered an admission against interests about that very subject.

                That only leave you attempting to muddy the water and prevaricate.

                Again.

                And you are busted.

                Again.

                And for some unknown reason, the ec(h)osystem is all fine and dandy with this quite obvious and deliberate prevarication.

            2. 3.3.1.1.1.2

              Hey HBP,

              You don’t need to “hold my hand,” I follow your explanation and it makes perfect sense to me, even though my technical background is in chemistry.

              BTW, next Monday we’re having a Judge’s Dinner hosted by our local IP law association here in the Queen City and O’Malley is our guest judge speaker for it. Would you like me to ask her about this case (if she will opine)?

              1. 3.3.1.1.1.2.1

                Ask her about the reference that produced (without realizing that it spoke against what he does here).

                The reference was about how advocates and academia should not be pressing the judicial branch to go above their authority and write statutory law.

                Ned produced a citation (behind a paywall) and I immediately asked him to join a dialogue on the full import of what he quoted.

                Sadly, as usual, Ned ran away, and has refused to speak of the matter (no matter how politely I inquire).

            3. 3.3.1.1.1.3

              The panel sided with the dictionary definition of “article” (a rather vague word

              It’s not “vague.”

      2. 3.3.2

        Troubled: In this case, I agree with Newman’s judicial activism. In part, if her view prevailed, I doubt there would be a hue and cry in Congress.

        LOL! Judicial activism on behalf of corporate interests at the expense of ordinary people has a tendency to work that way. Have you ever wondered why?

        More importantly, do you think there will be “hue and cry in Congress” to reverse the majority’s view by statute? I guarantee you that there isn’t.

        1. 3.3.2.1

          MM: “Judicial activism on behalf of corporate interests at the expense of ordinary people has a tendency to work that way. Have you ever wondered why?”

          I will admit that the patent deck is stacked against lone wolf inventors and small entities, but I assume you are upset by Big Corp., of which Agilant is an example with 12,000 employees. Quoting from their website, “Agilent was created when it spun off from Hewlett-Packard Company in 1999. Since then the company has won hundreds of awards for innovations and has earned even more patents for its inventions.”

          Would ordinary people be better off if Agilant stopped doing this?

          1. 3.3.2.1.1

            I assume you are upset by Big Corp., of which Agilant is an example with 12,000 employees.

            You assume wrong.

      3. 3.3.3

        If tangible means can be felt with the fingers, then electrons are intangible.

        Stick your fingers into a socket. Let me know what you feel.

        1. 3.3.3.1

          I know … right. That popcorn is popping in the microwave – due to some mystery intangible force. Stick your head in there and see if you can feel it. The CAFC – straw men arguments – are getting absurd.

    4. 3.4

      HPB: insignificant metaphysical distinctions between the “stuff” of 30 years ago, and the “stuff” of today.

      Information on signals is metaphysically identical to information on signals 100 years ago. In other words, it’s you (and the ITC and Newman) that is really missing the boat here and trying to make “distinctions” that are transparently b0gus.

      Is the form of an infringing thing what section 337 is supposed to be about

      There was no infringing “thing” imported in this case. In fact, the type of thing (information) that was imported will never be found to infringe any patent. Just a friendly reminder.

      But if Congress wanted to use 337 to prevent information from crossing the border on signals, they could simply have said so. Signals carrying information have been around for a long, long, long time.

      1. 3.4.1

        That confuses information with physical things that can be described in terms of the information they contain. Information per se is a mental abstraction. Almost any physical thing can be characterized in terms of the quality or amount of information it carries (even purely random noise can be characterized as having zero information). But, because a physical thing carries some information and can be described in terms of that information does not mean that the physical thing _is_ information. Which is all beside the point anyway.

        You ignored the main issue raised, which is that the means of importing is an insignificant red herring. The domain of the law is human interests and activities, not metaphysics. If teleportation were available, would it be acceptable to teleport patented articles into the United States? Because a thing enters the United States in a form that can’t practically be seized as it crosses the physical border, we should ignore the practical effect that in a few more microseconds that form will reconfigure a machine into an infringing one? Once the content of that importive signal is stored on a device, as it must be, that device is physically seizable (and is capable of undercutting the profits of the patent holder). You say information is not patentable, and I agree, but physical devices like disk/flash drives, ROM storing firmware, etc., continue to be patentable today, based on the nature of the bits that they are storing. If you’d like some examples of judgments based on so-called Beauregard claims, please don’t hesitate to ask.

        Here’s a hypothetical. A U.S. company builds MRI devices. They develop and patent novel and non-obvious software that turns the MRI machine into a much more effective device. They have the best MRI machines and the profits to show it. A foreign competitor can import the physical apparatus, the CPUs, the magnets, sensors, etc. But they can’t sell the brains of the MRI. So they build cheap knockoffs with no software. They ship them to the U.S., and they don’t infringe upon importation. Then, they allow U.S. customers to access their website and download the patented software and install it into the imported MRI device. How is this practically different than sending a patented CD through the mail to the U.S. for installation in the U.S.? The overseas copy of a patented article is directly caused by that entity to come into existence in the United States. What is the significance of the means of delivery? In both cases a foreign entity has directly brought into existence in the U.S. something that is infringing.

        Why don’t you take your remarks past the trivial and obvious stage. You’ve only restated the the reason for the decision at issue, which adds no _information_ to this discussion, since the decision is already encapsulated above by the good Professor? Where is your substantive addition of _information_? Do you have any analogies, or policy considerations, or relevant precedents to cite (like, for instance, the CAFC’s Supreme v. ITC decision this past August)? Do people come to the nation’s number one patent blog to find insightful and reasoned remarks, or to find repetition of the obvious, wrapped in cliched flourishes? Do you want to joust, or heckle?

        I’ll leave with a quote from Cardozo, “The Nature of the Judicial Process”:

        “We go forward with our logic, with our analogies, with our philosophies, till we reach a certain point. At first, we have no trouble with the paths; they follow the same lines. Then they begin to diverge, and we must make a choice between them. History or custom or social utility or some compelling sentiment of justice or sometimes perhaps a semi-intuitive apprehension of the pervading spirit of our law, must come to the rescue of the anxious judge, and tell him where to go.”

        1. 3.4.1.2

          HPG: If teleportation were available

          It’s not. But the Internet is available. And it’s pretty useful, too, no thanks to people like you.

          Why don’t you take your remarks past the trivial and obvious stage.

          Why don’t you just cry a river for those folks who insist that patents on software are so “necessary” that everybody has to bend over backwards to accomodate their “needs”? Oh wait — you alread did.

          1. 3.4.1.2.1

            You won’t answer the question about teleportation (which has actually been done, but not in any useful way, yet). Taking the time to post a reply while ignoring the main point is a tacit concession.

            And, laws in general aren’t necessary. Homo sapiens arose without them. You oversimplify the matter.

            In the meantime, I’ll keep cranking out patents for software developers, and they’ll keep licensing them, and the courts will keep enforcing them (some of the time).

            1. 3.4.1.2.1.1

              HPB: Taking the time to post a reply while ignoring the main point is a tacit concession

              ROTFLMAO

              I’ll keep cranking out patents for software developers, and they’ll keep licensing them

              Yay for you!

          2. 3.4.1.2.2

            who insist that patents on software are so “necessary”

            …and yet again with the strawman of “but for”

            Malcolm, you are the ONLY one who advances that “so necessary” spiel.

            The only one.

            Please stop.

          3. 3.4.1.2.3

            “Why don’t you just cry a river for those folks who insist that patents on software”

            Exactly. The whole argument depends on the contradictory notion of patents on information. When that gets fixed, the problem goes away.

      2. 3.4.3

        You might want to rest that straw pounding of yours on “mere information,” given your reticence to actually acknowledge (again) the exceptions to the judicial doctrine on printed matter.

        You might have to actually engage in an inte11ectually honest dialogue.

  12. 2

    DC: I don’t think that the customs folks would have any qualms about seizing electronic transmissions.

    Will they transmit the signal back to me after the fine is paid?

  13. 1

    I think this is the real reason for the court’s holding.

    “This section permits
    the Commission to exclude “articles” from importation
    into the United States; however, it is difficult to see
    how one could physically stop electronic transmissions at
    the borders under the current statutory scheme. Furthermore,
    if articles included digital data, it would render
    the section’s use of the terms “forfeited” and “seized”
    hollow, as an electronic transmission cannot be “seized” or
    “forfeited.” By way of example, digital transmissions from
    satellites do not move through border crossings, nor can
    they be stopped at our borders via any enforcement mechanism
    contemplated in the statutory scheme. As Commissioner
    David S. Johanson points out in his dissent, an
    “exclusion order directed against electronic transmissions
    could not only have no effect within the context of Section
    337—it simply would make no sense as it would not be
    enforce[able].” Final Comm’n Op. Dissent at 6 (David S.
    Johanson, dissenting).”

    1. 1.1

      I don’t think that the customs folks would have any qualms about seizing electronic transmissions. ICE has seized hundreds of domain names under current law: link to ice.gov.

      And, with operating companies the ITC has additional enforcement mechanisms.

      1. 1.1.1

        A domain name itself is not an electronic transmission. I would classify it as an intangible property right, like a patent.

      2. 1.1.2

        Huh?

        Really, Dennis, you joke, right?

        Suppose I gave you a warrant to seize a broadcast of a signal that is broadcast from a location beyond your control. Everyone in the world can receive that broadcast. What would you or could you do?

        1. 1.1.2.2

          It’s not all about exclusion orders:

          (f) Cease and desist orders; civil penalty for violation of orders
          (1) In addition to, or in lieu of, taking action under subsection (d) or (e) of this section, the Commission may issue and cause to be served on any person violating this section, or believed to be violating this section, as the case may be, an order directing such person to cease and desist from engaging in the unfair methods or acts involved, unless after considering the effect of such order upon the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers, it finds that such order should not be issued. The Commission may at any time, upon such notice and in such manner as it deems proper, modify or revoke any such order, and, in the case of a revocation, may take action under subsection (d) or (e) of this section, as the case may be. If a temporary cease and desist order is issued in addition to, or in lieu of, an exclusion order under subsection (e) of this section, the Commission may require the complainant to post a bond, in an amount determined by the Commission to be sufficient to protect the respondent from any injury, as a prerequisite to the issuance of an order under this subsection. If the Commission later determines that the respondent has not violated the provisions of this section, the bond may be forfeited to the respondent. The Commission shall prescribe the terms and conditions under which the bonds may be forfeited under this paragraph.

          (2) Any person who violates an order issued by the Commission under paragraph (1) after it has become final shall forfeit and pay to the United States a civil penalty for each day on which an importation of articles, or their sale, occurs in violation of the order of not more than the greater of $100,000 or twice the domestic value of the articles entered or sold on such day in violation of the order. Such penalty shall accrue to the United States and may be recovered for the United States in a civil action brought by the Commission in the Federal District Court for the District of Columbia or for the district in which the violation occurs. In such actions, the United States district courts may issue mandatory injunctions incorporating the relief sought by the Commission as they deem appropriate in the enforcement of such final orders of the Commission.

          Aka up to $100k/day [or value of sales for that day] for refusing to end the signal – collectable in the DC district court [or where the violation occurs].

          Yeah, so personal jurisdiction to enter the civil penalty – and you go chasing the money that you can connect to the individuals. The DOJ does this all the time for Clean Water Act / Superfund cases / etc. The ITC can do the same thing.

          So if you want to operate in the United States without a court issuing contempt orders for failure to pay the civil penalty, I don’t see the option afforded you.

          Your red herring of someone posting items online [“broadcast by satellite”] is the same issue that copyright owners already deal with on internet distribution – getting a court of competent jurisdiction to respect their copyright and end the ability to distribute OR whack the person responsible. That is NOT what this case is about though because the individuals responsible are present.

          Your argument essentially boils down to: (1) someone could do this without being subject to US in personam jurisdiction [or they would, but a court threatening fines or contempt won’t matter to them]; (2) that someone cannot be stopped [absent going to their country or their server location]; (3) therefore, no ability to go after anyone.

        2. 1.1.2.4

          Well according to the Decca case – you would seize the product that was using the infringing signal. Does that help?

      3. 1.1.3

        Control of a domain name is a contract. ICE can demand that certain provisions of the contract be invoked. Presumably Judge Newman wants to rewrite the contract between the appellant’s banks and themselves to seize cash as an enforcement mechanism under a contempt ruling.

        Specifically, the ICANN is a US government quango that maintains a database of names and numbers and organizes clients’ access to that database. Some of the entries in the database give actual network addresses that your computer can use when you type google.com so as to find a computer that you might like to communicate with. ICE sends letters to ICANN and its partners and they change the database entries.

        There is no literal seizure involved. The only thing that happens is that a database entry on a computer owned by another government agency or partner is changed according to the existing contract and rules.

        Note that the Domain Name (DNS) database maintained by ICANN is in no way privileged or monopolized. You can do everything that ICANN does — even the software is open source. Your computer can easily be adjusted to use your personal copy of the database and you can tell everyone else in the world to use your database, too.

        People choose to use the US government organized database voluntarily because it’s good. There’s absolutely no coercion or force involved in ICE operations to ‘seize’ those database entries.

      4. 1.1.4

        I can see it now: set up just outside the territorial limit on the coast and send those non-infringing em waves full of Hollywood’s (and the music industry’s) best.

        How long do you think that would last?

Comments are closed.