Trolls vs Pirates: Halo/Stryker Oral Arguments

Today the Supreme Court heard combined oral arguments in the willful infringement cases of:

  • Halo Electronics, Inc. v. Pulse Electronics, Inc., et al. (14-1513); and
  • Stryker Corporation, et al. v. Zimmer, Inc., et al. (14-1520)
  • Read the transcript.

Jeffrey Wall argued on behalf of the patentee-petitioners who argued that the Federal Circuit’s limits on awarding enhanced damages is unduly rigid – especially following the Supreme Court’s Octane Fitness determination.  The U.S. Government has supported the petitioners in this case and presented Assistant to the Solicitor Roman Martinez to argue as amicus curiae.  Carter Phillips argued on behalf of the defendant-respondents.

Wall’s approach was to highlight the general nature of the the statute, which merely states that “the court may increase the damages up to three times the amount found or assessed.” That general statute should be contrasted with the Federal Circuit’s rule that requires separate proof of both objective and subjective willful behavior.  Rather, Wall argued that we should “go back to doing a totality [of the circumstances] inquiry . . . [applying] the principles that historically guided your exercise of discretion.”  Wall also pointed to the what he sees as an important factor in the analysis: that “a patent lawyer can virtually always come up with some non-frivolous defense in litigation” and, that fact makes is virtually impossible to prove that the infringement was objectively reckless.  The U.S. Government agreed that the objectively reasonable defense “creates an arbitrary loophole that allows some of the most egregious infringers to escape enhanced damages.”

MR. MARTINEZ: So recklessness, everyone agrees, is an objective inquiry. And in every other area of law where courts are conducting an objective inquiry, what you ­­ what you’re supposed to do is you’re supposed to take a reasonable man, and you put him in the ­­ the actual person who is accused of wrongdoing, in his shoes. And you take what that actual person knew, and you figure out whether a reasonable man in that person’s shoes would have thought that there was a very high risk that the conduct at issue was unlawful.

And what the Federal Circuit does is not that. What they are essentially doing is taking the reasonable man and giving him the benefit of omniscience, giving him the benefit of hindsight and saying, what facts do we know at the time of trial? And now that we know these facts at the time of trial, . . .

JUSTICE BREYER: I didn’t think they were doing that. I thought what they were doing was saying, we are not going to allow punitive damages in a case where the patent is so weak.

. . . .

MR. MARTINEZ: I think it’s possible to imagine ­­let me ­­ let me make it concrete.

Imagine a case in which there’s intentional violation or a reckless violation based on the facts known at the time. And later the ­… infringer is sued, and he hires a law firm that scours the world, and they find the library in Germany that has a Ph.D. dissertation that has some [publication] that arguably anticipated the invention at issue. So that’s a new fact. It wasn’t in anyone’s head. No one was aware of it at the time the infringement occurred. And maybe that law firm then puts together a reasonable but wrong theory under which the patent is invalid in light of that prior art. We think that’s a case in which the ­­ the conduct was culpable at the time of ­­ of infringement, and we think that’s a case that would warrant enhanced damages.

. . .

MR. PHILLIPS: We’re not talking about a situation here where it’s obvious when something is infringed. There are thousands of patents, hundreds of thousands of patents. There are lots of entities creating new products every day, new services,

. . . .

MR. WALL: [W]e and the PTO and many of Respondents’ amici recognize, the system as it currently stands is out of balance. And we have tried, and I believe we have succeeded, in crafting an approach that balances the Court’s concerns with the need to respect the rights of patentees, including small companies like Halo.

Justice Breyer offered some concern for software companies being accused of infringing weak patents:

MR. WALL: Justice Breyer, the sky didn’t fall for a century and a half, and it’s not going to fall if you reverse the Federal Circuit’s framework, just as it didn’t fall after Octane and Highmark in the fees context.

JUSTICE BREYER: It hasn’t fallen? Go look at the market shares of the different companies that are seriously involved in software. . . . I think it’s unfortunate that Congress hasn’t passed a special regime for those kinds of patents, but they haven’t.

. . .

MR. PHILLIPS: This is not a classic copying case. I mean, in a lot of ways this case comes down to sort of trolls versus pirates in terms of how you want to analyze it.

. . . .

JUSTICE SOTOMAYOR: Mr. Phillips, there’s a whole lot of worry articulated by Justice Breyer and reflected in your briefs about protecting innovation.But there’s not a whole lot of worry about protecting the patent owner. I can’t  forget that historically enhanced damages were automatic, and they were automatic because of a policy judgment that owning a patent entitled you to not have  people infringe willfully or not willfully. And I accept that at some point there was a different judgment made that ­­ that good­faith infringers should be treated differently than other infringers, willful infringers.

But I don’t know that that swung things so far the other way that it can only be that, if you come up with something, any defense whatsoever in the litigation that’s not frivolous, that that gets you out of enhanced damages.

Some of the conversation focused on the replacement test:

JUSTICE SOTOMAYOR: It can’t be that they can give enhanced penalties on whim.

MR. WALL: That’s right.

JUSTICE SOTOMAYOR: All right? So if it’s not whim, what is it? How do we articulate a test that protects what Justice Breyer is concerned about, which I think is a legitimate concern, but doesn’t entrench a position that just favors you?

MR. WALL: We think the statute was invoked for various purposes, not just to punish infringement. . . . [W]hat the parties are really debating is the nature of the infringement. That needs to be intentional or reckless based on the facts as they were known to the infringer. . . . the strength of the notice . . . Reed factors . . .

JUSTICE SOTOMAYOR: I Don’t want to adopt that test. How do I articulate this in a more generalized way?

MR. WALL: I think what you would say is that in judging whether a reasonable person would have thought that there was a really high risk, you’ve got to take account of both the strength of the notice, what kind of notice were they on of the patent, and what would have been commercially reasonable in the industry as it exists. And I think that ­­ those factors and those limitations are going to take account of the vast bulk of what Justice Breyer and what Respondents are are concerned about.

. . . .

MR. PHILLIPS: [Good luck finding] tort cases in which the eggshell plaintiff gets punitive damages because the defendant overreacted.

In addition to the elements of the test, the court is also addressing the standards of proof and review.

JUSTICE GINSBURG: Can we at least peel off the clear and convincing evidence that seems to come out of nowhere and the standard of de novo review rather than abuse of discretion?

MR. PHILLIPS: I would desperately ask you not to take out de novo review because we’re talking about an objective standard; it’s really almost ­­ it’s essentially a question of law. The issue is, is there an objectively reasonable basis for what’s been done here? [and clear and convincing evidence standard is dicta to this case]

. . . .

JUSTICE GINSBURG: You ­­ care about de novo review in the Federal Circuit rather than testing the district court’s determination for abuse of discretion.

A substantial amount of example-time focused on “copying”, which Mr. Wall identified as the “typical” case and the extent that enhanced damages should be limited to “willful” behavior.

For this case, it appears likely that the majority will overrule Seagate but the question remains open as to what will be the replacement rule.

 

 

 

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

284 thoughts on “Trolls vs Pirates: Halo/Stryker Oral Arguments

  1. OT, but hey at 200 comments, who is going to mind….

    Greg Aharonian has been somewhat quite of late – but let’s loose in his email today.

    That email is absolutely scathing and captures and reflects plenty of the anti-patent, anti-software patent “logic” that (and just for DanH) the sAmeones love to peddle here in their inte11ectually dishonest windmill chases.

    Worth getting on his email list for.

    1. This just in – people who profited from a previously broken system don’t want the rules that should have always been in place (pre-Alice, etc.) enforced.

      It’s why nobody should listen to patent attorneys about what the patent system should look like.

      1. That’s not really true. As long as the patent system exists, someone will make a profit. The problem currently from my perspective is that Alice made it much more difficult to determine what is and what is not patentable. I often look at claims now and have no idea whether they’re patentable or not under Alice. And the PTO seems to be the same, as I see claims I think could have Alice rejections on them but do not and claims that should not have Alice rejections on them but do. I’ve had basically the same claims allowed under Alice and rejected under Alice by two different Examiners. Why? Because no one can figure out what Alice says.

        If the Supreme Court wants to say that software (or data processing or whatever) is not patentable (whatever “software” is considered to be), they should come out and say that. They shouldn’t couch it in opaque language that makes no sense even after reading it 10 times.

        Let’s face it: The Court made up rules to try to get rid of patent tr olls. Meanwhile, they just made it more difficult for others to determine what can and cannot be patented.

        1. “That’s not really true. As long as the patent system exists, someone will make a profit.”

          Well, that’s a vague statement. But yes, the question is who should make a profit. And the answer is that people who should make a profit are people who promote progress in the useful arts and sciences, as per the Constitution.

          But you don’t think that under the system pre-Alice (and maybe currently, even), that people who didn’t promote progress in the arts and sciences were able to profit by getting claims that covered things they did not invent?

          1. by getting claims that covered things they did not invent?

            Different question of law, friend.

            It comes down to having the proper means to arrive at whatever ends that you want to arrive at.

                1. “anon” I have to wonder whether you understand the full impact of that problem.

                  In any event, we can all rest assured he understands far more than you do.

                  Oh, and by the way: Greg Aharonian called. He wants to know if you’ll do his laundry in addition to the boot shining.

                  1. There is zero reason to believe that he understands the full impact.

                    You have a problem with Greg’s point of view?

                    (lulz)

                2. Indeed I do; one of the largest impacts of that problem is that patents that should never have been granted were granted, with disastrous economic results.

                  Part of this is because of erroneous, rigid tests laid out by courts that are easy to circumvent, which, although they have been overturned, are still over relied upon.

                  Part of this is because of the examination process. Examiners should be finders of facts, who then apply those facts. Not keyword searchers with no relevant experience in their area of examination who string together rejections using rigid TSM rationales to build up to the claimed invention, bit by bit.

                  1. Nope – all of your “part of’s” are only in one direction.

                    The full impact also goes in the other direction, friend.

                  2. So, people are going to tank good patents by just declaring them to be abstract, because there is no objective test laid out?

        2. Patent Bob, if your problem with Alice is “abstract,” the problem is really with Bilski and what the court there meant. Even as observed by Stevens in dissent, no one knew precisely why the claims in that case where held to be ineligible. Thus no one had a clue as to what abstract meant.

          1. I agree Ned, but MM does not. Does abstraction exist without a mind to apprehend it? To me, it does not.

            Context also matters. There is a difference between a thing being wholly abstract by its nature or a partial abstraction described in abstract terms, even if they may both be intangible. Mere intangibility cannot mean total abstraction for legal purposes.

            The judicial exception for abstract ideas should reflect that difference.

            1. Martin Snyder: There is a difference between a thing being wholly abstract by its nature or a partial abstraction described in abstract terms, even if they may both be intangible.

              Tell everyone what the difference is, Martin. Use a simple example with two intangibles to make your point. As it stands, it reads like gibberish.

              The judicial exception for abstract ideas should reflect that difference.

              Because you say so?

              1. Yes, because I say so- that’s what a person means when they say something or other “should” be.

                I’ve made it clear that I think human consumption of information is THE test at eligibility. See these three examples, upon your request MM-

                A new, useful described method that represents an actual invention. It’s intangible. It was found abstract, so ineligible. In my opinion, it should not have been, because the phone switch gear is the consumer of the information:

                US 7,346,156 B1 “Methods and apparatuses for placing a telephone call”

                1. A method comprising: detecting an identity of a caller;

                receiving an assigned incoming telephone number;

                identifying a recipient associated with the assigned incoming telephone number and the identity; and

                connecting the caller and the recipient, wherein said caller has a plurality of assigned incoming telephone numbers to choose from, at least one of said plurality of assigned incoming telephone numbers being associated with said recipient, wherein each assigned incoming telephone number is associated with multiple recipient telephone numbers, a particular telephone number of a recipient being determined solely by a particular assigned incoming telephone number used by a particular identified caller and without input of further data by said caller, whereby said caller is not required to be within a particular network for making calls.

                Here is an old, useful method (keywords) . It’s intangible. It was found non-abstract, thus eligible, and should not have been. It should not have failed for mere intangibility, but for obviousness and anticipation.

                US 7,873,665 “Method for Digitally Labeling Websites”

                1. A method for multi-parameter digital labelling of Internet Websites, comprising:
                gathering of unambiguous, multi-parameter qualitative data concerning a single or a plurality of at least one of an Internet website, an Internet posting, their substantive contents, and their owner or creator;
                sourcing, from the owner or creator of said website or Internet posting, each said item of qualitative data referring to said website, said internet posting, or its substantive contents or its owner or creator;
                producing a plurality of digital labels for each said website or internet posting, wherein each digital label uniquely refers to and represents a particular item of qualitative information;
                wherein producing of digital labels further comprises encoding of the qualitative data in any digital form;
                domiciling of these multi-parameter digital labels on at least one of the same computer, the same computer network, and on several computers linked to each other;
                manipulation of the said multi-parameter digital labels comprising generation of a list of at least one of websites and Internet postings that match parameters stipulated by an entity conducting a search and represented in the digital labels according to at least one of the presence of, the absence of, the numerical or other value contained in, the numerical or other value not contained in, any one, all, and any configuration of the labels that have reference to one or more websites or Internet postings; and
                making available the effective use of these multi-parameter digital labels and the means for their manipulation, to the general public through the Internet.

                Here is a a method neither fully described, nor tangible, that was properly found to be ineligible. This was claimed at a level of an idea, not as a useful invention.

                8,271,974 “Cloud computing lifecycle management for N-tier applications”

                1. A method for managing a cloud computing environment for use by a software application comprising:
                determining a requested initial cloud environment based on user-defined provisioning information, where the requested initial cloud environment is not yet instantiated and is an N-tier computing environment;

                sending an initialization event based on the requested initial cloud environment, where the initialization event is configured to cause an initial cloud environment configuration to be made available to an application;

                sending application data that is configured to cause the application to begin execution in the initial cloud environment configuration;

                receiving monitoring environment data that represents a current cloud environment state;

                determining a requested adjusted cloud environment based on the monitoring environment data, where the requested adjusted cloud environment is an N-tier computing environment; and

                sending a cloud environment adjustment event based on the requested adjusted cloud environment, where the cloud environment adjustment event is configured to cause an adjusted cloud environment configuration to be made available to the application.

                For once MM, why don’t YOU try to find some rhyme or reason in these outcomes?

                1. For once MM, why don’t YOU try to find some rhyme or reason in these outcomes?

                  Mr. Snyder, are you expecting anything other than the standard short script reply from Malcolm? Some actual cognition and alignment with either the law or with your alternative view? Some actual structure of a system that does more than merely say “all software is per se ineligible” based on a mere feeling and lacking any touch with the reality of what software actually is (and not some hapless regurgitation that “software is logic,” “software is math,” or “software is no different than a book”)…?

                  Will you be disappointed by the absence of a meaningful reply from Malcolm?

                  (I suggest that you do not hold your breath)

        3. PB: I often look at claims now and have no idea whether they’re patentable or not under Alice.

          Maybe you should find a job that you’re competent at.

          1. …or at a minimum, one that does not cause severe cognitive dissonance because of your belief systems that patents as property or (gasp) enforcing those property rights are “bad.”

            😉

      2. It’s why nobody should listen to patent attorneys about what the patent system should look like.

        Your little hissy fit speaks for itself, as below you ask “You sure that you are a patent attorney?” – and apparently, you have already made up your (closed) mind about patent attorneys – with the kool-aid version that we are all G-g-g-grifters and such.

        It is no surprise to see the Malcolm Echoes here, as Malcolm (ironically) has set himself up as the Donald Trump of patent bashing.

        Saw a meme criticizing Mr. Trump’s quote of:
        I love the poorly educated

        and was immediately reminded of out sunglasses bespeckeld friend as well as others that carry a disdain for the terrain of patent law.

        The article by Asimov can be readily adapted to such echoes and those that “love” them:

        link to media.aphelis.net

        1. “Your little hissy fit speaks for itself”

          It’s ironic because if you read your comment, it’s pretty clear that you’re the one having a coniption.

          Is this meta-humor, are you really this stup1d?

          1. Is this meta-humor, are you really this stup1d?

            Neither.

            And I am simply not the one having a coniption. I clearly point out your predisposition and clearly point out that you fit a certain mindlessness type on law that you really just don’t care to understand.

            There is no irony as you would have it.

        2. “anon” Saw a meme criticizing Mr. Trump’s quote of:
          “I love the poorly educated”

          and was immediately reminded of out sunglasses bespeckeld friend as well as others that carry a disdain for the terrain of patent law.

          Because “anon”, NWPA and PB are so plainly the best and brightest that the legal profession has to offer.

          LOLOLOLOLOLOLOLOLOLLOLOLOLOLOL

  2. Just read these oral arguments and you know why the Senate doesn’t want to deal with an appointment now. The justices have decided they are the overlords to make laws. What we really need is to remove all eight of them and get new ones that want to apply laws and stick to the Constitution.

    1. So, this is not a one-way street. The politicians aren’t willing to follow the Constitution because the justices aren’t following the Constitution. My prediction is that things are going to get a lot worse.

      1. Aren’t following the constitution… ha.

        “To promote the Progress of Science and useful Arts…”

        Seems like the defenders of junk patents are the ones not following the Constitution. Junk patents do not promote the progress of science and the useful arts.

    2. Breyer >>We have decided to patent tens of thousands of software products and similar things where hardly anyone knows what the patent’s
      really about. A company that’s a startup, a small company, once it gets a
      letter, cannot afford to pay 10,000 to $100,000 for a letter from Counsel,
      and may be willing to run its chances. You start saying, little company,
      you must pay 10,000 to $100,000 to get a letter, lest you get willful
      damages against you should your bet be wrong.

      First, how in the world would Breyer know anything about what actually goes on with small companies or with patents? He doesn’t. This is pure fabrication from a completely ignorant person that is twisting around abstract ideas Google feed him.

      Second, the reality of small companies is that when they get such a letter it isn’t that hard for a technical person to read the patent and figure out if it is what they are doing. In fact, there has been a great learning curve where technical people are getting very good at reading patents.

      Third, more like 100’s of thousands. And, the people that work in those areas understand what the patent is about. I think our philosopher doesn’t realize that software and the other areas is more than a trillion dollar industry and growing rapidly.

      What is so strange about all this is that anyone that knows science and technology knows that computer science is one of the hardest fields if not the hardest field to study. And, they know that the problems of information processing are daunting with so many that are unsolved and if solve would revolutionize information processing.

      Yet, Breyer spouts off with no basis for any of his opinions, and yet is just so sure he understands everything. Please retire. Please. You are a detriment to this country.

      1. Breyer>>And when you have tens or hundreds of thousands of patents on software by other companies, that means we can’t break
        in.

        I work with software start-ups and don’t see this. I see people that think they have invented things that have been around a long time run into trouble. Breyer also forgets that patents expire. Breyer is just unbelievable the way he has this whole model of technology, innovation, and business that he is just so sure is right when he actually has zero experience and zero education that would provide a base for him to even form an opinion. Breyer has to be one of the worse minds that has even been on the SCOTUS.

        1. Anything that is odd about this is that the AIA made a patent 10 times more expensive to through an IPR. Yet Breyer is concerned about $10,000 to get a letter. Unbelievable. Patents are a cost to the system. But, Breyer has no way of evaluating the benefits. And no way of even remotely understanding them. Please retire Breyer.

          1. “Anything that is odd about this is that the AIA made a patent 10 times more expensive to through an IPR. Yet Breyer is concerned about $10,000 to get a letter. Unbelievable. Patents are a cost to the system. But, Breyer has no way of evaluating the benefits. And no way of even remotely understanding them. Please retire Breyer.”

            The sense of entitlement is strong in this one.

            1. …and there we have 6, trying yet again to be a smart arse with the play on words of “entitlement”….

              6 – even with your attempted negative spin, are you saying that that “sense” that you are commenting on is NOT proper under the law?

              Is it “bad” that “The sense of entitlement is strong in this one“….?

              Or is it “bad” that we have a Justice from the bench apparently attempting to deny what is rightfully due – “sense of entitlement” or not…?

              Maybe you want to try to speak to the underlying substantive point and not just play the F001….

              1. “6 – even with your attempted negative spin, are you saying that that “sense” that you are commenting on is NOT proper under the law?”

                Nah. I’m just pointing it out. It just seems to me like Breyer is legit worried about people sending out “demand letters” that spark 10k in initial defense being needed. That’s a lot of dough bro, especially times the thousands of demand letters sent out. Millions of dollars removed from start ups. For nothing but sheets of paper.

                “Or is it “bad” that we have a Justice from the bench apparently attempting to deny what is rightfully due – “sense of entitlement” or not…?”

                I don’t know that such is what he is doing.

                1. Nah. I’m just pointing it out.

                  Thank you Captain Obvious for “pointing out” what was directly said.

                  However, as I noted, your statement is more than just “pointing out” something as it is just not congruent with your own previous statements on entitlements.

                  Now that you have pointed it out, please go ahead and answer my questions to you, sine you still seem to “feel” “It just seems to me like Breyer is legit worried

                  You want “legit” on a decidedly anti-patent leaning – and directly against your OWN foundation for playing coy with “entitlement.”

                  Even if you “don’t know such” about Breyer’s leanings – you STILL have no small matter to explain how your own coy use of “entitlement” is directly at odds with your posts here.

                  Please square your contradictory comments (or feel free to just admit that you were just being an arse and shamelessly tr011ing Night Writer).

                  1. “anon” shamelessly tr011ing Night Writer

                    Aw, it’s so cute when the bffs stick up for each other.

                    Poor NWPA. He’s so thoughtful, gentlemanly and civilized. Why would anyone pick on him?

                  2. I don’t even know what you’re talking about. You seem to just be rambling on about something that exists solely in your mind brain that nobody else even knows about.

                  3. “Poor NWPA. He’s so thoughtful, gentlemanly and civilized. Why would anyone pick on him?”

                    I know right? And I thought I was pretty tame with NWPA. I was just pointing out that he seemed to have a very entitled attitude.

                  4. ^^^ because when Malcolm or one of the echoes does this, Prof. Crouch does not seem to mind….

                    Gee, no problem with that perception….

                    /off sardonic bemusement

          2. “But, Breyer has no way of evaluating the benefits. ”

            What benefits are there to patents that have claims so vague and abstract that you can’t even decipher what the patent covers?

            1. “What benefits are there to patents that have claims so vague and abstract that you can’t even decipher what the patent covers?”

              Money in NWPA’s pockets of course. And his clients. Obviously.

              1. Money in…

                LOL – another “just an observation” eh 6?

                No attempt to denigrate with the “G-g-grifters” theme…?

                You want to know what is really obvious with your comments?

        2. The “there is a patent and thus we cannot break in” is – at its core – applicable to ALL areas that patents cover, and is in truth an anti-patent statement.

          If mere “breaking-in” is to be exalted over what the Quid Pro Quo is intended to be (that is, to prevent “breaking-in” by providing the exclusive right in the first place), then what Justice Breyer is really advocating from the Bench is to strike that part of the Constitution that provides the Legislative Branch with the authority to set up the patent system ab initio.

          1. “The “there is a patent and thus we cannot break in” is – at its core – applicable to ALL areas that patents cover, and is in truth an anti-patent statement.”

            Yes somewhat that is true anon, but in other areas of patents you generally do not get that many patents that are quite so sweepingly broad as to cover an entire business plan, or tangentially impact business plans that aren’t even related to the patented invention but just use some piece of equipment (like a printer as in those printer troll letter writing demand cases) on the side. This issue of course is due to how business methods and software patents are being permitted to be written while the office clamps down on other arts. Though of late the office itself seems to be opening up the ol functional gates in other areas also, so shortly we might start seeing this same issue rear its head in other arts more and more.

          2. “If mere “breaking-in” is to be exalted over what the Quid Pro Quo is intended to be (that is, to prevent “breaking-in” by providing the exclusive right in the first place), then what Justice Breyer is really advocating from the Bench is to strike that part of the Constitution that provides the Legislative Branch with the authority to set up the patent system ab initio.”

            Anon, the court cannot allow legal interpretations that would lead to blatant injustice when there are perfectly good legal interpretations that do not lead to blatant injustice. I know you have a suuuuuper hard time understanding that the court is a part of the government (as in, the thing that governs the people and actually has to govern), but it is so. Sure, that might be because of your OCPD making you see things in black/white, but that’s just the way things are in the real world outside your mind brain whether your mind can properly process them or not.

    3. Night, a Supreme Court that ignores the words of a statute (Obamacare II), that makes things up to justify social engineering (right of privacy is there — so that we can rule on abortion and marriage), is a court that really is out of control . But because the Court is benefiting the liberal agenda when it does so, we hear not one peep from the left.

      But when it rules against business method patents, it suddenly is way out of control? The hypocrisy of the complainers is quite apparent.

      1. Ned,

        Your “Left” versus “Right” view and being anti-business method patent just does not reach.

        Here is why:

        BOTH the Left and the Right (gen erally – see caveat below) are against patents (including business method patents).

        The Left: is against any type of newly granted personal property.

        The Right is against anyone else’s personal property (that is not theirs) that can threaten their established power base.

        The caveat: Of course, this version of the Right is not fully synonymous with the political Right, but is more reflective of the monied and established Big Corp Right.

        If you can grasp this, then your “black and white” portrayal can be seen to be critically flawed.

      2. I agree Ned. Actually, if you want to watch a pivotal moment in the history of the USA, watch the Bork hearings lead by our current V.P. Biden. Bork goes into detail why the right of privacy is so problematic. But, the reason this is a pivotal moment in US history is that this was the last nominee that was honest in a hearing. After the Bork hearings all the nominees stonewalled or fabricated nonsense. So, yes, Biden is one of the great destroyers of our democracy.

        (But, it is ironic that you say these things and then don’t acknowledge that the “abstract” word of Alice is really another “right of privacy.”)

  3. Correct me if I am wrong, but no one on the Supreme Court or even among the attorneys arguing, talked about the problem caused by patenting “abstract” subject matter. They talked about software and business methods.

    Am I right?

      1. Ned, you are not right and have to be corrected.

        Leastwise as your typical windmill chase would have it.

        Below, PatentBob moves to talking about the Alice case, but Ned (at least it appears) is not talking about that case, but instead appears to be talking (on point) to the oral argument transcript of the Halo/Stryker arguments.

        In the Halo/Stryker transcript there is NO talk of business method patents.

        Period.

        In the Halo/Stryker transcript, the talk about software patents is limited. As I noted, even that talk indicates a desire to eliminate the concept of patents: the argument by Breyer has nothing to do with any particulars of the specified Art, and simply hews more to the “those without patents cannot break in” view. This is a truism about ALL patents. What Justice Breyer states thus is a statement about ALL patents.

        With a “friend of the patent system” like that, who needs enemies?

    1. The word “software” does not appear in Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (U.S. 2014). So, the Supreme Court did not “discuss” software in that case.

      1. “So, the Supreme Court did not “discuss” software in that case.”

        The whole case is about software numbskull. It is literally software that was accused of being infringing.

        1. You are too quick to use the label of “numbskull” and quite miss the point that PatentBob has made.

          Instead of reacting so quickly, T H I N K for a moment and realize what PatentBob’s post actually means, and ask yourself why did the Court actually refrain from even using the word “software.”

          Critical thinking 6 – it is an important skill to use in these conversations (instead of the dull-witted quick ad hominem from you while you miss the point under discussion)

          1. “You are too quick to use the label of “numbskull” and quite miss the point that PatentBob has made.”

            I know the “point” he made, and it’s a stu pid one because the whole case was about software.

            “and realize what PatentBob’s post actually means,”

            It means he’s an idio t. In the literal sense of the word.

            1. You still miss the point – it is clearly the contrast about what the case was about and the LACK of the Court in using direct words concerning what the case was about.

              You accuse of that which you persist in being yourself.

              Put your “mind” and effort in trying to explain why the Court would avoid using even once the very word that the case was about – instead of the stream of ad hominem and nothing else that issues from you.

  4. I predict 8-0 overturning CAFC, setting the standard as ‘exceptional’ and allowing district judges discretion, with abuse of discretion as the standard of review. They will do this to intuitively balance Sections 285 and 284 in concept and effect because even though the language is vague and different in both statues, the underlying intent of Congress was likely very similar in both sections to give judges discretion to respond to the facts of any given case on the key issues of fee awards and punitive damages, recognizing that IP torts a different species in the way actor’s perceptions of risk unfold with events.

    1. Some of the issues are: (1) whether a good faith belief that a patent is invalid is enough; (2) when can that good faith belief be documented.

      One odd thing is that they have this pirate vs. troll dichotomy. So according to the legislators like Roberts if you are a NPE and write a letter to someone you are a troll, which makes Tesla a troll.

      My guess right now, (didn’t really have time to form a full opinion) is that it will not exclude any type of evidence and be very much like Alice where the district judge has a wide discretion based on psychotic musings.

  5. Great write-up by Ronald Mann over at SCOTUSBlog, reaching a conclusion similar to the one reached by Dennis:

    link to scotusblog.com

    About the most that can be said is that the Court as a whole seems unlikely to affirm the Federal Circuit’s reasoning. My best guess would predict a somewhat split opinion – nothing new there in Supreme Court patent cases – that on the one hand commends the issue largely to the district court’s discretion but on the other offers some strong “guidance” responsive to the various concerns that Justices Breyer, Kagan, and Sotomayor pressed during the argument.

    1. I also hope that the likes of Night, who favor “information processing” patents not limited to improving technology, but to improving business methods, understand that the Court really understands the damage caused by State Street Bank, and the thinking of the Federal Circuit that lead us down THAT path. It is their thinking that is beyond the pale.

      I think most of the judges on the Federal Circuit understand that the Supreme Court is serious about “software patents.” If any Federal Circuit judges are bitter clingers to the Rich era, the oral argument here would be quite informative.

      1. the oral argument here would be quite informative.

        Those do not support the view as advanced by Malcolm, 6 and now Ned.

        LOL – yep, the selfsame sAme ones….

          1. As I have told you many times before, I do not rely on the State Street decision as understanding (and correctly applying) the more fundamental and historical nature of patent law gets me to my positions.

            I would suggest that you pay attention and not try (again) to force words (or cases) into my mouth and instead see how my position aligns with the underlying basics.

              1. Nice attempted spin six but you are wrong again – the better way of looking at it is that if you understand the basics then he won’t fall for the claptrap that you so readily fall for.

                There is no “skipping” on my end (with your implication that I am missing something)

                Try spending less time being a smart arse, as you miss the smart and only be the arse.

                  1. Youy do realize that you are doing the exact same thing that you are accusing me of, right 6?

                    And here 6 – I am flatly telling you that your attempted spinon what I said is just NOT correct.

                    Please feel free to say something of merit and attribute your ownership to what you say – but do NOT try to have my words mean something that I am point blank telling you that they do not mean.

                    Thanks.

                  2. “Youy do realize that you are doing the exact same thing that you are accusing me of, right 6?”

                    Sorry bra, your inability to understand the difference is part of the condition.

                  3. LOL – there you go again – doing yet another thing that you accuse me of.

                    Are you saying that you have the same “condition”…?

                    Oops.

            1. My understanding of State Street is that subject matter that fits 101 is patent eligible, and proof that it also performs a business method does not kill that eligibility.

              Where folks went wrong was interpreting SS as saying that being a business method, by itself, made it patent eligible.

              1. Silicone, SSB effectively held that a programmed computer is patentable subject matter even it produced only the improved price, and the business method exception was no more.

                1. and the business method exception was no more.

                  Please provide a proper citation for this “exception” as a matter of law….

                  1. …and your district court case from 1908 is NOT a proper citation – both Prof. Crouch and David Stein ripped you on that.

                2. Claim 1 of the patent in SSB reads:1. A data processing system for managing a financial services configuration of a portfolio established as a partnership, each partner being one of a plurality of funds, comprising: (a) computer processor means for processing data; (b) storage means for storing data on a storage medium; (c) first means for initializing the storage medium; (d) second means for processing data regarding assets in the portfolio and each of the funds from a previous day and data regarding increases or decreases in each of the funds, assets and for allocating the percentage share that each fund holds in the portfolio; (e) third means for processing data regarding daily incremental income, expenses, and net realized gain or loss for the portfolio and for allocating such data among each fund; (f) fourth means for processing data regarding daily net unrealized gain or loss for the portfolio and for allocating such data among each fund; and (g) fifth means for processing data regarding aggregate year-end income, expenses, and capital gain or loss for the portfolio and each of the funds.

                  The Fed.Cir. said
                  “[T]he transformation of data, representing discrete dollar amounts, by a machine through a series of mathematical calculations into a final share price, constitutes a practical application of a mathematical algorithm, formula, or calculation, because it produces “a useful, concrete and tangible result”—a final share price momentarily fixed for recording and reporting purposes and even accepted and relied upon by regulatory authorities and in subsequent trades.”

                  Thus, the claim was to a machine. The fact that the machine performed a business method did not disqualify it under section 101.

                  If you want to say the claimed invention was obvious and kill the patent that way, at least that is defensible. To say that a machine is not a machine is argle-bargle and applesauce.

                  1. Look at claims in Alice that were not even (properly) before the Court (having been stipulated as passing the category portion of 101 – machine) and likewise fell to being “abstract.”

                    Behold the power of the “Gist/Abstract” sword.

                  2. Silicone, Rich in Benson justified the claims because in his view a programmed computer was a specific machine that was eligible, and if so, a method of programming computer must also be eligible.

                    Reversed. Gottschalk v. Benson.

                    But Rich did it again in State Street Bank as if Benson did not exist.

                    And, if there were any doubts, Alice confirmed that simply reciting a computer does not make the method eligible, nor the machine special. To do so would elevate form over substance.

                  3. Ned,

                    Once again, you are over-reading the actual Supreme Court case of Benson, plus ig noring what happened after Benson – the pullbacks in Chakrabarty and especially Diehr (see Bilski).

                  4. Plus Ned – at point here was that there was more than just method claims in Alice and your “elevation” of form over substance actually has the reverse effect of the Supreme Court making an exception that swallows the rule and removes the words of Congress in that items clearly meeting the machine prong of the statutory category portion of 101 have effectively wiped out the statutory category portion of 101.

                    The statutory category portion of 101 is machine – NOT “special machine.”

      2. You mean the highly educated and competent Night? That one. What portion of the oral arguments do you believe support this view? And isn’t it interesting that the SCOTUS makes these policy comments when it isn’t there job? And they have no factual basis from which to be making these comments.

        Nice to see you take off your camouflage to reveal your judicial activist anti-patent skin Ned.

      3. Ned: the Court really understands the damage caused by State Street Bank, and the thinking of the Federal Circuit that lead us down THAT path.

        It’s a useful exercise to try to imagine what the US patent system would look like had KSR, Bilski, Mayo, Myriad and Alice been decided in favor of the patentees in those cases. The cessp00l would be overflowing and the hottest trending career in the country would be “patent insurance actuary” (probably also the hottest area of patenting …).

        1. Uh, maybe a better thought experience would be what would our hardware/software industry look like without patents going back to the 1980’s? A ce$$pool like the rest of the world is the answer. Instead, we have by a factor of 10 the best hardware/software industries in the world.

          Live in reality MM.

      4. If the Supreme Court is serious about software patents, why not simply say those patents are invalid? And what is a “software patent”? Remember, Tesla cars can now park themselves due to a SOFTWARE UPDATE:

        link to cbsnews.com

        That’s right, “software” apparently creates functionality. Yikes! Does this “improve technology”? The “technology” itself is physically unchanged, it’s just that the car can now park itself.

        You see how complex this issue is and why the Supreme Court can’t really weigh in, right? They themselves are clue less when it comes to technology.

          1. Based on your paper, you’ll probably say this is patentable (assuming it meets the other requirements of the patent laws, of course).

            But Ned is constantly harping on “software is bad” and implies that “software” has to create some type of “technology improvement” (and let’s ignore his take on “functional claiming”). But when you really look into what this means, it becomes unclear. What does it mean to create a “technology improvement” for a car that has not changed save for a software download. If the software download and execution causes a “technology improvement”, then that must mean that software causes this, to which Ned will never agree.

            And what is “software”? In the Tesla case, the functionality of the car is improved. Assuming the functionality is novel and not obvious, what has to be claimed? Does one have to claim the car? The “technology” that allows the car to park itself? What about the processor/engine control unit(s) configured to cause signal output sufficient enough to cause the car to park itself? The Alice case would have one believe that at least some type of “technology” has to be claimed (or perhaps the whole car — Alice is unclear), but why? It’s the software that provides this functionality, so why isn’t a claim directed to a processor configured to cause signal output sufficient enough to cause the car to park itself all you need to claim? Why do you have to add in technology, when it’s the software that provides this functionality? Without the software, the car can’t park itself.

            And to say that the Supreme Court has even considered these issues is ludi crous. The cases they’ve handled have been business methods with a little computer “stuff” thrown in there. There have been no cases that illustrate these problems. And the cases that have come even relatively close such as GOTTSCHALK v. BENSON are so poorly written and illogical to shed no light on this.

            I don’t have the answers to the questions I pose. Even I don’t know where the dividing line should be. But maybe the Supreme Court isn’t the body that should be deciding this. Maybe Congress should.

            1. Yup, the software should be eligible in IMO.

              However, “a claim directed to a processor configured to cause signal output” is not sufficient under Alice for 112 reasons, plus some 103 reasons. The real point of Alice should be that patentability can fail for a mix of reasons with intangible inventions. You can’t claim inventions, even intangible inventions, at the level of ideas.

              I think that claiming the specific algo(s) (and there will be many) would earn a patent, and if others wanted to accomplish the same thing they would have to either license it, or if a license was not available, engineer around the claimed algo(s).

              That’s how its supposed to work….

              1. I think that claiming the specific algo(s) (and there will be many)

                How many are in the PTO’s totally searchable database of prior art algorithmic “structures” right now, do you think?

            2. PB: What does it mean to create a “technology improvement” for a car that has not changed save for a software download.

              At a minimum, it means far, far, far, far more than conceiving of a giant class of programmable cars that are “configured” in a manner that “allows” the car to “use rules” to park itself.

              But wait! Protection for anything less than that giant class would be “worthless” to the Most Important People Ever whose awesome “innovations” are always being “copied”.

              I don’t have the answers to the questions I pose.

              You don’t have enough understanding of the issues to even ask a decent question, PB. I’m at least ten years ahead of you on this and the Supreme Court is at least five years ahead of you.

            3. PB: The Alice case would have one believe that at least some type of “technology” has to be claimed (or perhaps the whole car — Alice is unclear),

              1. A modified car, wherein the car can park itself, wherein the car is a Tesla.

              “Look, mom: no pre-emption!”

            4. You mention Ned, but let’s not forget Malcolm, who is on record as saying that software per se is just not eligible.

              I wonder if there is any “Zing!” left in that view….

                  1. I know it is just bizarre these statements. Also, a machine is representing information. They act as if information is stored in the ether. Spirit worlds…philosophy of 1900 is where Ned is.

                  2. The notion here that the “magic” is in the aether, or that somehow, equally magical, all future improvements to [Old Box] are somehow already “in there” is just the routine “Drive-by Monologue” of those who do not wish to engage on the merits of facts and reality and instead attempt to employ the internet style “shout down” by that monologuing.

                    One only has to look at the lack of engagement from those sAmeones to the counter points presented (for example, counterpoints like The Grand Hall experiment).

                    Alas, THAT is the ecosystem we do have here. The propaganda against software and business methods does not stop, so too, the posts that counter that propaganda do not stop.

                    Basic propositions of the particular art fields are routinely ig nored and fallacies are permitted to be put forth. Nothing will change here until the cause of the blight is addressed.

                    Happy Decade of Decadence.

                1. Further, your view of “perhaps written on a piece of pa[p]er” has been dec1mated any number of times.

                  Shall we visit the simple Set Theory explanation yet again and hold your hand through exactly why?

                2. Software is only information? What does that even mean? Software is actually instructions that are functionally related to the machine. Ned, a machine that represents information. Representing information takes space and energy and time.

                  You are one of the spirit thinkers…

                  1. A key point there Night Writer, that is routinely g nored: the functionally related, which has been set forth in many ways and at many times.

                    Even after Malcolm volunteered an admission against interests of knowing and understanding the law (the aspects of the exceptions to the judicial doctrine of printed matter), there remains pure propaganda from him and his Echoes to have software – ALL software – deemed ineligible per se and in toto.

            5. “What does it mean to create a “technology improvement” for a car that has not changed save for a software download.”

              A specific algorithm that solves a technological problem.

        1. PB: Tesla cars can now park themselves due to a SOFTWARE UPDATE

          Oh my goodness that changes EVERYTHING.

          LOL

          Maybe someday we’ll use computers to help navigate spaceships. Oh wait — that already happened, like, 50 years ago, before the patent system was completely wrecked by a bunch of grifting know-nothings.

          1. Malcolm thinks someone waves a magic wand and software “happens”. No clue as to the difficulties and complexity of dealing with signals in real-time.

            1. HPB Malcolm thinks someone waves a magic wand and software “happens”.

              Wrong. That’s how the patent system treats software, which is why it attracts some of the lowest level “innovators” and attorneys who ever walked the earth.

              the difficulties and complexity of dealing with signals in real-time.

              Yes, it’s sooooooo sooper “difficult and complex” that the PTO has granted reams of junk patent claims based on the mere presence of the term “real time” recited in the claim or buried in the specification.

              The software patent lovers never cease to amuse.

              1. Malcolm replies “Wrong. to HPB’s comment of Malcolm thinks someone waves a magic wand and software “happens”.

                And yet, Malcolm always runs away when called upon to discuss the patent doctrine of inherency as pertains to that selfsame change in [Old Box] that occurs when the manufacture of software is added to [Old Box.]. He does refuse to give any weight to that actual component and instead seems to continue to think that somehow ALL future innovation by way of software is “already in there.”

                If you are not calling this “magic,” Malcolm, what are you calling this phenomenal ability to have new capabilities in [Old Box]….?

                Wait, where are you running to….?

                1. selfsame

                  Check it out. It appears that “anon” has discovered another five cent word to add to his weird lexicon. Now we have to endure three months of reading it in every other comment until the next one shows up.

                  Malcolm always runs away

                  Nope. Still right here. Nobody cares about your “old box” silliness, “anon”. You might as well argue with a brick wall because there’s a better chance the brick wall will be interested in wasting its time on you.

                  1. Still off Malcolm.

                    The silliness in the [Old Box] scenario comes directly from you and your views of software.

                    Also – the running away is a metaphor for not engaging. To be sure, you are “right here,” but you are ONLY “right here” with your same OLD short script not engaging.

                    Maybe you want to try for a more meaningful way of being here…

                2. To be sure, you are “right here,” but you are ONLY “right here” with your same OLD short script not engaging.

                  Don’t you mean “your selfsAme OLD short script not engaging”?

                  1. DanH,

                    If you want to take that message, have at it. Though you have more direct messages directly at you that you need to handle first.

            2. “Malcolm thinks someone waves a magic wand and software “happens”. No clue as to the difficulties and complexity of dealing with signals in real-time.”

              Then the claims should reflect this complexity/technical problems that were solved in the form of specific algorithms to be eligible for patenting.

        2. PB: They themselves are clue less when it comes to technology.

          Pretty sure they all know how to “park a car.” Last time I checked, the idea is that you stop the car, turn off the engine, and put the parking break on.

          I’d love to see some of the junky “park a robot car with a comp00ter” claims that are out there. Can you provide some for us, PB?

          Probably Google has some. Do you suppose they are more ridiculous than Google’s junky “signal to a person that they are in the path of a robot car … with a comp00ter” claims? It’s hard to imagine how that could be possible. Maybe they are just equally ridiculous and junky. That seems highly possible.

          1. Pretty sure they all know how to “park a car.”

            Great – now move the goal posts back to a machine doing that without the person.

            Hey DanH – your snark about anthropomorphication misses again here with your favorite person to cheerlead.

            1. “anon” now move the goal posts back to a machine doing that without the person.

              Right, let’s move the goalpost to your imaginary fantasy world where nobody knows how to park a car, and where programmable robots that use logic to process signals and guide their actions don’t exist.

              Then let’s shrink that goalpost down to the size of a matchbox.

              Oh lookie! You just kicked a field goal!

              Good boy.

              1. LOL – Hey DanH – Malcolm messed up on anthropomorphication in back to back responses.

                You seem to be able to follow the bold and capital A’s but when your smarminess F A I Ls you seem rather absent.

                😉

                1. LOL – Hey anon – you used the non-existent word anthropomorphication in back-to-back responses.

                  You seem to be able to follow the bold and capital A’s but when your smarminess F A I Ls you seem rather absent.

                  I’m doing the best I can, anon. You don’t really expect me to respond to every bit of nonsense you write, do you?

                  1. The word is not non-existent.

                    Sure, it may be nonstandard, but there is a known standard word that exists and is close enough in spelling that we BOTH know what I am talking about when I use my own coined word.

                    And please – the “nonsense” that you would be responding to is not mine (nice attempted spin) – but would be the direct nonsense of your cheerlead icon that shows that you own smarminess towards me is also nonsense.

                    Your reply is a F A I L on all fronts, son.

                    You, 6, and Malcolm really need to focus on being smart as opposed to being smart arses.

            2. “Great – now move the goal posts back to a machine doing that without the person.”

              Or you could just claim it in such an abstract manner that the claims encompass any solution. Then you don’t actually have to do any real work and can still make bank.

              You’re conflating solving a problem with having claims that reflect solving a problem. You sure you’re a patent attorney?

              1. …and you are conflating different reasons for any one claim to F A I L with what the topic here is: 101.

                The one not wanting to “have to do any real work” is you.

        3. PB, your argument here is the typical strawman.

          Math.

          Business methods.

          It is what the process does that is the key. Is it a process that makes a machine, manufacture, composition, or a physical signal, or a machine process that produces a new physical result? If it is not one of these, but rather produces the improved number, then there is a problem.

          1. So here we have Ned espousing non-science again. You think that an “improved number” can be determined by a machine with no physical process. You are either intellectually dishonest or ignorant. (Yes Ned believes in magic. Information is transformed with no physical process–it’s magic.) You know Ned, to people that actually understand physics and information technology your views are an offense against our society.

            Information processing requires time, space, and energy. The conservation of information is the most important law of physics.

              1. Kind of telling that you would ridicule someone for pointing out the underlying science in a patent law discussion. I think coursera plans on offering a course on how to be a paid blogger MM.

            1. The conservation of information is the most important law of physics.

              I bet that impresses people at parties, Night. But “most important” in what sense? Conservation of information means something at the scale of the entire universe, but it’s unobservable, at least to ordinary mortals, and has no relevance at all to whether information processing claims are patentable.

          2. You ever consider Ned that you and your ilk are the reason there are so many problem in this country? You are misrepresenting reality and science to the SCOTUS just like Richard Stern did to generate the Benson bile.

            Frankly, my personal opinion is that you have violated your ethical duties to our profession by presenting intellectual dishonest positions. I don’t think the justices would be spouting their nonsense if it weren’t for the likes of you.

            1. Night, reality as in how the universe works?

              Night, I am talking about law, mainly. However, I know enough physics to know that you do not know what you are talking about even there. Information is conserved? Yeah? So what? All that means is that entropy is reversible. What has that have to do with patentable subject matter? You have never made that link.

              1. Ned, what? It means that it takes energy, space, and time to transform the represented information. It means it is a real physical process to transform the information. That is what it means.

                1. In pieces because the filter is being hyper active….

                  Do not forget Night Writer to stress the point of anthropomorphication and that this physical processing in these types of claims just are not TOTALLY within the human mind.

                  There are those that are only too eager to obfuscate the discussion and cloud the fact that the claims are just not directed to things TOTALLY within the human mind, that wish to parse claims, and not re-integrate them back together as needs to be done.

                  1. There are those who wish to bas Tard ize the old doctrine of Menta1 Steps and remove ANYTHING that might serve as a replacement of the human mind (that is in fact NOT a human mind) from the protections of patent law.

                    You have of course drawn the fitting analogy to the plain fact that replacements of other human endeavors are not questioned for fitness with the protection of patent law: whether that other human endeavor be simply “digging” or “reaping” or any of a countless other human things. But when it comes to the art field of software and computers – machines and manufactures for machines – it is only with too much eagerness the obfuscations are unleashed, and the purposeful lack of clarity pursued. Somehow, when it comes to this particular art field, the notion that claims are to be read from the perspective of a Person Having Ordinary Skill In The Art vanishes and we have the (perpetual) attempts to NOT employ understanding of the Art.

                    Wouldn’t it be wonderful if the “ec(h)0system” actually aimed for clarity and understanding instead of permitting (and at times creating the perception of advocating) the opposite?

                2. Night, if expending energy was all that was necessary to make subject matter patentable, then one can patent the new and improved method of making babies.

                3. Everyone accepts “it takes energy, space, and time to transform the represented information” but nobody cares because it is irrelevant to what the law is NWPA.

                  “It means it is a real physical process to transform the information”

                  Of course it is NWPA, nobody argues that it isn’t. What people argue is that you tend to whoopsie, leave that out of the claim so as to expand its coverage (so that the claim isn’t gar b age and useless to catch any infringers). And you generally do so by abstracting all of the physical process out of the claim.

                  part 1

                  1. then surely it’d proba bly be pa tent eli gible, but any clai ms in the app would also get limi ted dow n into w or thles sne ss.

                  2. Exacting picture claims are a lovely option 6.

                    Maybe you can help Malcolm with understanding that such is just an option under the law as written by Congress.

                  3. You can’t use that “option” if you accidentally, whoopsie, leave the “real physical process” part out and you thus run afoul of 101.

                  4. “You appear to not understand what the meaning of the word “optional” means 6.”

                    Anon you can’t exercise this “option” in so far as it leads you to break the law.

                    You have the “optional” ability to swing your arm. That “optional” ability ends when you punch someone in the face, in the view of the law.

                    It’s the same thing when you violate 101 via exercising that “optional” format. Even if we presume that it is legit optional.

                  5. You are just not paying attention to the conversation 6.

                    Malcolm’s bogus view is that there is NO option.

                    It is his contention that that the ONLY legal view is his view.

                    That is just not what option means – under ANY view of the law.

                    Try to keep up, son.

                  6. “Malcolm’s bogus view is that there is NO option.”

                    I already know about that, jac ar se. And he’s probably right, but granting arguendo that you’re right, you still only get to exercise it to the extent it doesn’t lead you into ineligibility (punching someone in the face). Your inability to understand why this is so, and why it happens so very often, is core to your issue with the actual 101 law right now (other than the ultimate outcome).

                    The only one that can’t keep up is you. You constantly pretend that you brought up things “in this discussion” which in fact you didn’t bring up, and you’re just dredging up from the past. Plus, MM hasn’t even spoken to this sub-sub-sub part of this discussion in this sub-sub-sub thread of comments, you don’t have to get all obsessed with him in every comment.

                  7. And he’s probably right,

                    LOL – thanks for making my point, 6 – he cannot be right as that just does not fit into what the meaning of the word “optional” is.

                    Stop and think about it.

                  8. …and your attempt to spin and blame me is also simply wrong. I am not the one dredging anything up, as it is Malcolm who continuously attempts to peddle his schlock and it is he that makes it an issue by presenting his view as if the option was the only “true” legal path.

                    It just is not.

                  9. “LOL – thanks for making my point, 6 – he cannot be right as that just does not fit into what the meaning of the word “optional” is.”

                    That’s irrelevant, as it isn’t even what I’m talking about in this thread id iot.

                  10. That’s irrelevant, as it isn’t even what I’m talking about in this thread id iot.

                    It is expressly relevant as that is precisely what YOU AND I are discussing in the immediate exchange.

                    An insult from you when you should be saying “you are right anon” – only makes you look like an arse.

          3. Ned – you want to talk about strawmen – and you make the silly mistake of trying to substitute math for software.

            Software is not math.

            Can you obtain a copyright on math? (and please – we’ve had enough goalpost moving, so please do nto try to move the goalpost and talk about a book of math – in which the copyright adheres NOT to the math itself)

            1. anon, “Software is not math.”

              So you even know what an ALU is?

              Software when executed comprise execution of instruction in an ALU. Now what is an ALU?

              1. Further Ned, using “your” logic, given that ALL engineering uses math equations – do you Belieb that ALL engineering IS math?

                I notice that you did not (still) answer the question on copyrighting math.

                Your “selective” participation in these discussions says FAR MORE than your actual words.

                1. Ugh. There is a difference between what a programmed computer does when it is physically part of a larger machine, and what software is. Software is a compilation of instructions. Instructions are for an ALU.

                  Now what is an ALU? Do you even know that?

                  1. And yet again Ned – the execution of software – your “for” the ALU is NOT software.

                    Software is a manufacture by the hand of man expressly built to be a machine component.

                    For some reason (hint: your desired philosophical ends) you do not seem capable of understanding this basic fact.

              2. anon, software are comprised of what, pray tell. When one claims software, we say something about their execution on a what?

                Why, a computer. And a computer has what at its core? An ALU. And what is an ALU?

                1. Are you trying the vapid “comprised of” line again?

                  Tell me about my big box of protons, neutrons, and electrons Ned – then see the “logic” that you are trying to foist here.

                2. Or shall we ride the Merry Go Round again Ned and have you tell me how much the Morse “space” weighs.

                  You seem to have no trouble going down to the “component comprising” except when it is shown just how silly your logic is, then all of sudden you get quiet.

                  Again.

                3. hey anon, you want to try something that will give you a taste of what it is like trying to have a conversation with you?

                  Take a picture of Alfred E. Neuman, pin it to a wall, and then try to have a meaningful conversation with it.

                  1. Very bizarre post coming from you Ned – as you are one that so often runs away from actual dialogues when your Windmill chases are threatened.

                  2. Ned,

                    A meaningful conversation is not defined as your hardware-oriented business model monologue.

                    You want a meaningful dialogue?

                    Then accept the basic considerations of this particular Art field and address the counter points presented to you in an inte11ectually honest manner.

                    It is you that have been playing the “What, me worry?” role on the wall.

    2. It was a good write-up. But Mann stated in the pre-argument preview that the issue was well-briefed. A lot of good that did, apparently.

      I think that this is an indictment on the patent community, not so much on the Supreme Court. Our community is very bad at addressing the concerns of the Court in almost every patent case, which has led to several fractured opinions on patent law.

  6. From Mr. Wall: “Because on the other side of the parade of horribles … are the people who can infringe, knowing that they can discount by the probability that they’ll be found to have infringed in litigation with virtually no back-end penalty, even if they were a very bad infringer…”

    BINGO. So many companies say, in effect, “Why should I EVER pay for a license, regardless of the merits, when the worst that could possibly ever happen to me is that I might MAYBE someday be forced to pay approximately what the inventor is asking me for now?”

    1. This is exactly what companies do. Clients of mine have said this to me. I was a product manager at a large corporation and that was exactly our attitude. Basically, if we wanted it, we took it unless you had strong IP and were willing to back it up. That is reality. K Street has its own fantasy world of how things work and since the justices are so ignorant of science and innovation they will believe anything the Googles of the world tell them.

      (Please, next president. One justice that actually has a science background. Please. And thanks Obama for the Google judges with no science background to the one court in the country that should have judges with a science background)

      1. NWPA: if we wanted it, we took it unless you had strong IP and were willing to back it up. That is reality.

        And it always was.

        It’s a feature, not a bug.

        There’s another word for taking things that aren’t protected, by the way: it’s called “sharing”. Believe it or not, it’s not just for communists.

          1. Infringement by the big and monied is a feature…..?

            No, the “feature” is the ability of intelligent parties, big and small, to recognize that the cost of ignoring an unenforceable junk patent can be so small that inaction is perfectly justified.

            Likewise, it’s also a feature of the system that patentees, big and small, can recognize that the cost of attempting to enforce a junk patent can be great enough that it’s not worth doing.

            That’s how the system purges itself of both junk patents and the actors who feel compelled to “monetize” them. And there’s an incredible amount of purging to be done.

            The swamp dredging will continue, “anon”, whether you like it or not. And it’s going to continue for quite some time because the PTO is still granting junk like there’s no tomorrow.

            This isn’t a prediction. It’s a guarantee.

            1. So you are saying that the relative value of money controls whether the law should be followed….

              And you call others “G-g-g-grifters”…..?

              What a hypocrite.

    2. That’s what happens in every context (including the patent context) when the licensee is asking for way too much money.

      Maybe — just maybe — the typical patentee, particularly in the computer-implemented “arts”, needs to wrap his head around the concept that his latest junk patent acquisition might not be the answer to his yacht shortage problem.

      Of course you’re still going to be faced with the increasing number of good folks who don’t license junk patents on principle.

      Meanwhile, tons of valid patents continue to be licensed every day by reasonable people.

      1. That’s what happens in every context (including the patent context) when the licensee is asking for way too much money.

        LOL – are you sure that you are an attorney?

        You think it normal to violate the law if the asking price is too high…?

        How about this: you meet the asking price, or go without.

        If you don’t want to pay the asking price, and don’t want to go without, invent another way. (Gasp! Oh Noes!)

        Have you never heard of the carrot and stick approach?

        1. are you sure that you are an attorney?

          I am an attorney. Are you sure that you’re taking the meds that you so desperately need?

          How about this: you meet the asking price, or go without.

          How about this: take your junky “do it on a computer” patent and stick it where the sun doesn’t shine because if you assert it against me you will be paying my fees and sacntions.

            1. “anon” such the internet tough guy

              So says the little cl 0wn who just thumped his concave chest and proclaimed: “You meet the asking price, or go without.”

              1. LOL – there was NO chest thumping of the type that the “internet tough guy” meme fits for me, Malcolm.

                For you – yes, but not for me.

                Classic AccuseOthersOfThatWhichMalcolmDoes

        2. “anon” invent another way

          That’s kinda tricky when what is being claimed is the functionality rather than the specific structures responsible for the functionality.

          Thanks for playing, though.

            1. That “optional” claim format is causing the public concerns that Breyer is talking about you boob. And those public concerns are ultimately going to sink your battleship.

              1. LOL – take that up with Congress 6.

                The Constitution gave that branch the authority to write patent law, you “b00b,” and that is the battleship that you be trying to sink.

                Oops for you.

  7. >JUSTICE BREYER: It hasn’t fallen? Go look at the market shares of the different companies that are seriously involved in software. . . . I think it’s unfortunate that Congress hasn’t passed a special regime for those kinds of patents, but they haven’t.

    How is a justice qualified to making policy opinions like this? And, to even have the arrogance to think that he knows in anyway how to evaluate the effects these changes are having? The arrogance coupled with the ignorance is just unbelievable. Just unbelievable that a person in a fair debate would be decimated on these issues and if tasked to actually write down his understanding of the technology or the industry would not be able to write a paragraph that made any sense.

    Just so sad to see us go down the tubes because of people like this. And, reality–the US has a stronger software industry by a factor of 10 than any other country. The software industry grew-up under strong patent protection. The patent system —from someone that has been in software and patents for over 30 years–is one of the big reasons we are so strong in software —particularly the disclosure and ability of employees to move between companies that software has enabled.

    Please, please, educate yourself. You know Breyer is a charter member of the cult of the scientifically uneducated and proud of it.

    1. I actually think that’s a good policy decision. Let’s face it, lawyers are always behind in technology. During my last year in law school, I took some classes to finish my MSEE. In law school, almost none of the professors knew what email was (this was a while back); meanwhile, in engineering, everything was done via email and online.

      Even I’m amazed at the pace of technology. A mere five or so years ago, I had a flip phone. Now, I’m on my second smart phone, and that thing rules my life. I do pretty much everything with it. I recently got an Amazon Echo, which I can tell to turn off (or on) my lights and it happens. And the entire family talks to it and it understands. In a few short years, we’ll be able to have our cars drive us to work.

      When I started out, we did a lot of actual hardware circuits. The big thing in engineering was very large scale integrated circuit design. Now, we rarely do hardware and I doubt many companies do VLSI design, as the hardware now packs so many circuits on it and with such speed that everything can be done in software. Plus, what’s easier: a software update to get new functionality, or replacing hardware? All companies think the former and not the latter. Intel’s chips now have hardware acceleration for such things as encryption. That functionality is built in and no longer has to be done by special purpose chips.

      Plus, more and more is done in the “cloud”. Talk about being “abstract”, once you begin to assign resources such as processors, memory, other hardware and corresponding software dynamically to solve problems and create functionality, it’s hard to figure out what the “hardware” really is. This is how the Amazon Echo is able to understand spoken voice — all the processing is done in the cloud by specialized algorithms. Without that, the simple Echo itself could never have the processing power to do this. This is the way everything is going, like it or not. We can either put our heads in the sand or face up to this.

      So, from my perspective, perhaps Congress should take “software” patents (assuming one can define what these even are) and apply special rules to those? No countries — aside from maybe the EPO — know what to do with inventions that are primarily software (executed by hardware, of course). In China, the foreign agents there write “fake” circuitry (e.g., “determination unit”) so that figures look like hardware even if they’re really performed by software. Why? Just face the de vil head-on and figure out what should be done. Don’t make people jump through hoops to achieve this.

      I personally think Breyer is on the right track. If the justice system doesn’t really understand technology, maybe they shouldn’t be making rules about it? (Certainly, Alice is an indication they have no idea what they’re talking about.)

      1. What is odd about your statements patentbob is that there is a tone that there is some giant problem with patents for software/hardware. And yet the evidence is not there to support that claim. Google has spent a lot of money trying to convince people there is a problem, but the facts and the office of budget and management said there isn’t a problem. And, the USA has by far the best software industry by a factor of 10 that was formed by the patent system.

        That is reality. The fantasy is from K Street and Google that there are massive problems. (Let’s not forget Posner telling us that all an engineer needed was a pizza to do these inventions since they naturally just stay up all night and work.)

        Moreover, the underlying assumption in your post is that information processing is different than other inventive areas. I find that not to be true. Yes there have been massive advances, but there have been in other areas as well and the reality is that the information processing advances have accelerated innovation in all areas.

        So, underlying assumptions –not true. No difference in character and no giant problem. In fact great success story and now monopolistic international corporations don’t want patents and they are selling people a fantasy story that ignorant justices are buying.

        (And for the record I have a have a master’s degree in CS and have been in this game since the early 1980’s.)

      2. >>the “cloud”.

        Your entire conversation about the cloud is just strange. The fact is that hardware and software are equivalent. I can build hardware that is all hardware for any software and almost any hardware (other than a very bare minimum) can be built in software. So, for example, I can take a part of chip and build a little processor in it and turn that part of the chip into software. This has been the case for like 4 decades. You discussion of the voice recognition again is strange–people have been doing that for at least 3 decades. I did something like that 30 years ago in graduate school where portions of computation were shipped off to a super computer on the early internet.

        ANYONE that does real work in this area knows this. I written patent applications for real consumer devices that sell 10’s of million (and I have the product manager for a real consumer device that sold 10’s of millions). I have written patent application for real processing chips that are in your computer. I have written patent application for real AI applications, etc.

        I have to say patentbob there is something strange about you. You remind me of one of those people that never really understood science and technology and say strange things that don’t really add up.

      3. And patentbob try reality. Try to show some evidence that information processing patents are different. My experience tells me no they are not. I have worked with many different technologies including mechanical (one million plus equipment), biotech, hardware, chip manufacturing, software of all varieties, etc. I don’t see this difference in character that the judicial activist anti-patent crowd claim.

        Also, anyone that knows anything about the law should be seriously concerned about the snippets from the Soot-in-my-ear. She clearly doesn’t care about applying the law but fabricating her own private statutes. Disgusting.

        1. NWPA Try to show some evidence that information processing patents are different. My experience tells me no they are not.

          The funny thing is that NWPA is really the perfect representative for the typical software patent l0ver. He’s not an outlier. He’s the real deal.

          And that’s just one of the many reasons that patents on logic are going to continue to swirl down the tubes.

          1. You do know that software is not logic, right?

            Same old short script from you Malcolm.
            Same old lack of inte11ectual honesty.
            Same old “your feelings” without regard for reality.

            1. As I predicted some time ago, “anon”, you and your cohorts are going to get what you so richly deserve, i.e., the increasingly short end of the stick.

              In part that’s because all the facts are on my side. But the other part is because you and your cohorts are really some of the s c umm iest ign 0ramuses in the legal profession.

              1. Oh Noes – Malcolm comes back with his short and mindless ad homniem only of….

                (gasp)….

                “Cohorts”

                Says the guy that says if the money is right, you don’t need to follow the law…

          2. The funny thing is that NWPA is really the perfect representative for the typical software patent l0ver. He’s not an outlier. He’s the real deal.

            No he’s not. He’s an outlier.

      4. Yes PB, that’s why we need the bright line of human consumption of the information generated by software being the line that can’t be crossed. It’s fair, its simple, it works across the arts, and it does not impede actual engineering progress- rather than social engineering progress, which should not be a subject of the patent system.

        1. Your bright line is simply untethered to the actual history and purpose of patents, Mr. Snyder.

          Bottom line is that all utility is human focused.

          1. Bottom line is that there is a bar on patenting “abstract ideas”

            Consumption of information by a human beings is the apotheosis of abstraction.

            The actual history of patents formed prior to the advent of information technology.

            1. Great – you missed the point that a patent claim can have an element of your “consumption of information by a human being” and NOT run afoul of this notion of “abstract” that you seem to want to use.

              Or have you not been paying attention to the discussion and differences between things TOTALLY in the mind, and the Vast Middle Ground?

              So please move that goal post back, thank you.

              As to the “actual history of patents formed prior to the advent of information technology” – you are AGAIN showing your ig norance and lack of appreciation for the terrain that you want to do battle in. ALL of the history of patents has to do with stepping from the past into the previous unknown. Your statement means only that you just don’t understand what you want to pontificate about.

              1. For about the seventh time, a claim can include steps that involve human consumption of information, but the construed result of a process can’t be human consumption of information.

                As to the history of patents; the bar of “abstract ideas” predated the conception of information inventions as they are understood today. Moses did not hand down the patent laws- they are expected to change somewhat as times change, like virtually every other statutes.

                1. Your “construed result” is g0bbedlyg00k.

                  You may be saying the same thing that I am saying, but your disdain for this area of law and lack of knowing the terrain make that “leap” one too blinded to make.

        2. This is a ridiculous statement Martin. As anon says all technology is tied to human behavior. A machine that a person operates to farm rather than manually farming isn’t changing the person’s brain?

          I told you before Martin that if you want to understand 101 and patents do not try to put meaning into what the justices say. Go from the bottom up of elements of a claim. It is very simple.

          1. “do not try to put meaning into what the justices say”. uh huh. That’s sound advice. Instead, focus on the fever dreams of ideological Internet commenters?

            If a person is the operator, i.e. directing the machine, that’s eligible in my view.

            Your wish to reject the Abstract Idea bar is no more nonsensical than my interpretation of it.

            Your “construed result” is g0bbedlyg00k. ? Sez you anon. That’s the proposal, and it seems logical within the words of Congress.

            The “terrain” is hardly what YOU define it to be and more than me, or maybe rather less so, because I have resources to put into the fight. I may even have my own lobbyist down there by next year.

            1. Your wish to reject the Abstract Idea bar is no more nonsensical than my interpretation of it.

              Simply not so.

              Sez you anon. That’s the proposal, and it seems logical within the words of Congress.

              Again – simply not so.

              The “terrain” is hardly what YOU define it to be and more than me, or maybe rather less so, because I have resources to put into the fight

              LOL – again – simply not so.

              You are again making the mistake and trying to make this as if the facts are so because I say so, when it is just the other way around: I am saying so because that is how the facts are.

              The fact that you think that “having money and putting in a lobbyist” means that you understand the terrain only proves my point even more.

              Seek first to understand, son. You are letting your emotions and your desired end state dictate what you are going to understand the external terrain to be. You are only going to run into mountains of granite and drive off of precipices with that mindset.

          2. As anon says all technology is tied to human behavior.

            It is more than that, Night Writer.

            Resisting the ploy of rephrasing US jurisprudence in terms of “technology,” one only has to look at the Useful Arts (which in our sovereign is the proper frame of reference and is larger than just “technology.”).

            What is that key ingredient in the Useful Arts?

            Utility.

            Utilty – at its core – to whom?

            consumption by a person.

            The notion of “technology qua technology” has been glommed onto without thinking of the larger context within which the patent world exists, without understanding the terrain of what the word “utility” fully embraces.

            Me. Snyder simply does not understand the core of Utility, and wants to repaint and redefine what that word means, as if his “interpretation” is the only “right” one out there.

            Mr. Snyder is trying to draw a line based solely on his personal feelings and his belief system. He personally is in the business of selling products/services that have a utilitarian aspect (I hope that he at least recognizes that). He is attempting this “re-definition” as if the entire patent system is in a vacuum, and he is self-blinded as to the terrain (that terrain just is not a vacuum). Was he recently smacked upside the head because he did not understand the patent terrain? Yup. He may not be at liberty to discuss the settlement (since he also recently shared that he is no longer engaged in that law suit), but sure as shoot, he is charging forward NOT with a basis of understanding what IS, but with a basis of his desired state of what he Beliebs “should be.”

            1. Consuming a steak is not abstract. Using a hole dug in the ground is abstract. Consuming a medicine is not abstract. Forging a metal object is not abstract. Being informed of something by a computer IS abstract.

              You want to pretend otherwise, its YOU who has no view of the terrain. Your beloved system is seen as illegitimate because it has gone where it should not have been allowed to go.

              I am pro-software patent. Not for my kind of software (although there are elements of my software that may be eligible in my view), but certainly not for information results that people use, in their minds.

              Your “vast middle ground” is a nonce coinage that means nothing to anyone but you and is useless as legal doctrine.

              My proposal is useful, logical, reasonable, supportive of the intent of the patent system, practical, and solves an immediate, genuine problem- that people massively disagree about software patents.

              1. Your “vast middle ground” is a nonce coinage that means nothing to anyone but you and is useless as legal doctrine.

                Eminently wrong – and thank you once again for proving my point.

                Also, you should know that it is not my coinage.

                Your proposal remains mired in the fact that you are attempting a battle on terrain that you simply refuse to recognize as not being a vacuum.

  8. Not one word that I can tell about “efficient infringement.”

    Recently I was researching the issue of the tort of intentional interference with contract. There are a lot of law review articles out there that heavily criticizes the doctrine because it interferes with the competing doctrine of efficient breach, where if the cost of the compliance with the contract is greater than the cost of breach, the party is advised to breach; and that should be encouraged under the law to the extent that the other side can be made whole with damages.

    The argument is being advanced by the infringer community and their scholarly supporters that concepts of efficient breach are to be ported into the patent law. In other words, if the costs litigation and of potential damages/on going royalties are lower than the costs of taking out a license, then one should not take out the license. The only way to stop this conduct, the willful breach, is either to multiply damages and provide attorneys fees to the patent owner, or provide for injunctions, reliable injunctions, to prevent this deliberate violation of the law.

    Are we not talking here about efficient breach/efficient infringement and whether or not denial of injunctions to patent owners effectively places the patent system into the efficient breach kind of system? We are there if the system does not also provide for enhanced damages and attorneys fees for willful misconduct.

    1. The interesting spin from the Bench is the thought of efficient breach working for the little guys.

      It was downright Orwellian.

    2. The other thing about this is that the companies that are pushing anti-patent positions are nearly monopolies. It is just so disheartening to have such an ignorant little man making the great decisions for our country.

      I would ask Breyer to do one exercise. Sit down and write on a piece of paper the basis for his opinions. Just an outline of an argument that includes the assumptions he is making. The publication of that paper would make Breyer a joke. I wonder if he even took logic in college.

    3. If an efficient breach requires both:

      A. cost (to “breacher”) of compliance would be greater than cost (to “breacher”) of breach; AND

      B. “breachee” is made whole with damages.

      Then denial of a right or option to obtain injunctions makes an “efficient breach kind of system” impossible as it negates the exclusive right, i.e. the choice to refuse to license (i.e. take money) and get an injunction.

      The forced taking of ownership rights by the State and substitution of money therewith is only making a party “whole” if the party were actually willing to accept money in exchange for not obtaining an injunction.

      However, in cases where this has not happened and clearly the party does not value the money more than the right of injunction, i.e. if they value the injunction more than any amount of money, then no amount of money can actually make them whole, no matter what the State, arbitrarily alleges.

    4. Efficient breach of contract.
      Efficient breach of patent, a form of intellectual property.

      To say that they are the same redefines property rights as simply a contract right.

      Let’s see where that goes:
      If a drunk wanders into your house and wants to sleep in your bed, all you get is damages.

      If you take your wife to a nice restaurant and she goes into the ladies room and removes her 5-carat diamond ring while she washes her hands and a bimbo waltzes off with it, all you get is damages.

      If 50 illegal immigrants move into Hillary’s house in Chappaqua, all she gets is damages.

      Cool!

      1. If 50 illegal immigrants move into Hillary’s house in Chappaqua, all she gets is damages.

        Thank goodness there’s no relationship between junk patent worship and rightwing id i0cy.

            1. Are you $urprised….?

              (think Citizen United and how the effect of not controlling money and Big Corp “as a voice” has all but drowned out all other voices)

  9. “I didn’t think they were doing that. I thought what they were doing was saying, we are not going to allow punitive damages in a case where the patent is so weak.”

    OH SNAP!

    “It hasn’t fallen? Go look at the market shares of the different companies that are seriously involved in software. . . . I think it’s unfortunate that Congress hasn’t passed a special regime for those kinds of patents, but they haven’t.”

    Oh snap again!

  10. “Care about the patent owner?” asks the justice? When last did anyone express concerns about that person?

    Infringers have a right to a day in court before they are found liable. They do not have a right to deliberately infringe a patent on the excuse that in their opinion it is invalid. They should be obligated to do something about that opinion before they are entitled to rely on it. Bring a DJ, IPR, reexamination, or whatever. Such a rule would promote the public interest as well by getting rid of bad patents.

    1. Ned: They should be obligated to do something about that opinion before they are entitled to rely on it.

      Why on earth should an “infringer” of a junk patent be obliged to do anything except ignore the patent?

      Let the patentee “bring it on” and face a genuine risk of fee shifting and sanctions.

      Such a rule would promote the public interest as well by getting rid of bad patents.

      There’s always going to be bad patents. The problem now — as recognized by the Supreme Court — is that there are waaaaaaaaay too many of them out sitting out there in the hands of grifting attorney “monetizers” who have never contributed anything to progress of any kind and who never will. Those people must be strongly discouraged from participation in the system if the system is ever going to be fixed.

      This ridiculous mythology that there are hordes of “copyists” out there “stealing” patented ideas from “little guys” because “they can get away with it” has had its day. It’s time to put it to bed and continue with the hard work of dredging the swamp.

      1. I half agree MM that there are too many patent speculators, or monetizers as you say.

        But I disagree that there are no copiers out there. There are plenty of large businesses that figure some small inventors who do not have the ability to bring a suit against them.

        1. J I disagree that there are no copiers out there.

          I disagree, too.

          The point is that (1) patentees who are being copied have a remedy and (2) the number of those patentees is microscopic compared to the number of junk patents being “monetized” by tr0lls.

          1. Reminds me, Ron Katznelson update on the bogus “Tr011” rhetoric should be out soon.

            Don’t let the lack of facts be inconvenient for you Malcolm.

      2. Why on earth should an “infringer” of a junk patent be obliged to do anything except ignore the patent?

        Seriously?

        This is supposedly a patent attorney trying to pretend that the presumption of validity for a granted patent – ANY granted patent is something that should be ig nored.

        This type of C R P is simply not helpful.

        To anyone.

      3. MM, can an infringer simply ignore an issued patent?

        Consider this hypo: A patent owner is trying to license its patent to your company. You, as inside counsel, ask the appropriate techno people whether the technology is of interest. The answer you get is that it is extremely valuable, on the roadmap, but in the opinion of the techno folks, the patent is invalid because the techniques it claims are old and notoriously so. You, as inside counsel, ask for chapter and verse on this so-called prior art, but are stonewalled. You are instructed by Senior Management to blow off the patentee.

        Are techno people legally entitled to form an opinion on validity? Have they even read the file wrapper? Do they understand claims?

        As inside counsel, what are your duties to the company? Follow the dictates of management? Support management by finding good prior art? What?

      4. Whenever you say “junk patent”, you really could leave out the first word, since everyone who has ever passed through PatentlyO knows the two words are synonymous when they come from Malcolm.

      5. MM- Why on earth should an “infringer” of a junk patent be obliged to do anything except ignore the patent?

        No. To this point I think we are in agreement.

        The consequences of taking such a risk, however, is what we should be debating. Is it good public policy to allow one to self identify a “junk” patents? Should there be additional recompense if the assessment is incorrect? Let the court award triple damages more freely. If the patent is really junk, the risk is nominal. Conversely, if one is wrong and the patent is not junk, pay consequences. simple.

        1. If the patent is really junk, the risk is nominal. Conversely, if one is wrong and the patent is not junk, pay consequences. simple.

          Right, and “the consequences” for merely being “wrong” are that you pay the patent owner for the damages (the profits that were lost).

          If the degree of wrongness rises to a certain level (e.g., recklessness) then you can be forced to pay additionally, i.e., fees and punitive damages.

          All that makes sense.

          What doesn’t make any sense at all is facing treble damages simply because you practiced the claim of a patent that you believed was invalid but, for whatever reason, turns out not to be invalid. The reason a certain class of patentees desires this nonsensical approach is because it results in the instant overvaluation of their junk.

          1. How to you define “believe”? What test should be applied to determine whether the infringer’s belief was based upon valid and sound reasoning.

            The justices were trying to get counsel to propose a test, but counsel wanted to impart the facts that came out in trial as part of the analysis of the infrnger’s belief at the time the infrigner decided to infringe. I believe it should be a reasonableness standard that overcomes the presumption of validity by a with more than just a scintilla of evidence. I just haven’t decided how much evidence is necessary.

              1. Anon- i’m trying to define a test to determine whether 3x damages should be awarded. MM postulated that if one has “a reasonable enough belief” that the patent was invalid/not infringed, then 3x damages are not warranted. (I also think he believe that even if one doesn’t have a “reasonable enough belief” his policy position is not to enhance damages at all, but simply award lost profits.)

                I’m trying to determine what is “a reasonable belief” is against a backdrop that patents are (statutorily) presumed valid.

                I guess the point here is I wonder whether patent practitioners believe that courts should be even able to award “punative” damages to patent owners when infringers innocently/ignorantly/or blatantly infringe a patent.

                1. Hmmm,

                  Maybe take a page from the Copyright world and make infringement into a criminal offense….

                  LOL – just imagine the wailing then.

    2. Re: “Bring a DJ, IPR, reexamination, or whatever. Such a rule would promote the public interest as well by getting rid of bad patents.”
      Yes, and [other than DJs], far more efficiently, but, quite limited in what kind of defense can be raised. But I never thought I would hear even that here.

      Treble damages are indeed important, especially now, since they can be nearly as effective as an injunction by making further sales by infringers a money-losing proposition.

      But there is another and different problem. It is demonstrated by the large number of patent suits now ended by a summary judgment of non-infringement sustained by the Fed. Cir. for over-broad infringement assertions. How do you fix that problem? Attorney fee sanctions are only partially successful.

      1. Paul, on infringement, typically it is a contest of claim construction where both sides have an argument. Why? Claims are not drafted for clarity, but for apparent breadth through ambiguity and by the use of functional claiming.

        The Feds are largely the source of THIS problem. Hopefully, Nautilus will change things, but do not hold your breadth.

  11. I’m afraid the Court is going to make mistakes trying to make a replacement rule. I am hoping for a minimalist ruling: Fed. Cir. is too cumbersome, district court’s finding of willfulness is adequate to sustain the enhanced damages. But I think they will add some rules to limit the application of sec 284 despite its very flexible language.

    To me, I don’t see any viable replacement rule other than to grant district courts discretion to look at the totality of the circumstances.

    1. J. No rule is a good rule when we are talking about compensating the patent owner for willful violations of his patent. The closeness of the infringement case may and should be taken into account.

      1. I think Professor’s Crouch title is so perfect for this issue. We hate trolls, we hate pirates, how do we make a rule that punishes both when there is little guidance from the statute?

        1. To me, one solution is to bring back nominal damages. If you, Patent Troll, can’t show any harm to your business because of infringement, then you get “Nothing! Good day, sir!”

          Who says that reasonable royalty can’t be a dollar?… Ok, treble it, here is 3 dollars.

          1. I’d settle for the injunction instead of any monetary damages.

            That way, the infringer can make a fully (self) informed market decision of whether to respect the validated patent (no matter who owns it) or not.

            1. Ah, absolutely. That’s why the mandatory treble damages make sense it was a compromise.

              But there is a glaring weakness in my argument: why have it as compensation when equity is now readily available? Well, things change. I agree that equity might be sufficient, but say ongoing royalties is found to be an ultra vires use of the court’s power? Or, it becomes increasingly difficult to award lost profits? That’s when the flexibility of enhanced damages would be useful.

                1. Yes! and its there for the taking, anon. The statute doesn’t say you have to treble damages, it allows to increase damages up to three times the amount determined by the jury to ensure full compensation.

  12. I have not reviewed the briefs nor the oral argument, but something about the comparison to Octane Fitness bothers me. Attorney’s fees are compensatory — you had to spend money to litigate the case, you should be paid back if the other side’s position was “exceptional.”

    OTOH, Treble damages are usually thought of as punitive. If the court awarded X in damages, that should make you fully whole. Any claim to 3X has to be grounded in doing something egregious that requires punishment to deter you and others from repeating the bad deed. So I would think the standard should be pretty high — meaning the acts pretty bad — before enhanced damages are allowed.

    (The Trademark Act allows for treble damages if the Court finds the base award inadequate, but it has to still be compensatory, not punitive. Is that the model here? Nothing in the statute suggests that.)

    1. Tal,

      Would it change your mind that the treble damages provision is punitive if you agreed that the first use of the treble damages was in in 1793 as a substitute for equity?

      1. Equity is the use of the power of the court to remedy a problem, such as an injunction. In 1793, one of the issues of the day was the extent Federal Courts could grant equity.

        Congress was especially concerned with patents, so mandatory treble damages were a substitute.

        Courts had equity jurisdiction in patent cases in 1819. The treble damages changed from mandatory to optional (and it didn’t have to be three times the amount, that was the ceiling). The language of treble damages hasn’t really changed since.

        So, is this enough to convince you it serves both a compensatory purpose and a punitive purpose?

    2. Tal: OTOH, Treble damages are usually thought of as punitive.

      It definitely seemed from the arguments that this is how the Court thinks of them.

  13. If “software patents” are problematic, why doesn’t Congress step in and do something about that?

    News flash: Congress already “did something”. They created the CBM and the IPR post-grant review proceedings which you love so much.

    And, yes, there is more to come. Maybe they’ll wait until after the Supreme Court cuts the heart out of another huge class of computer-implemented junk, which is guaranteed to happen in the not-too-distant future.

    I’m going to go waaaay out on a limb and predict that the same folks railing against Alice today will join together and (1) proclaim that “no one” can understand that decision either; and (2) mercilessly deride whatever featherweight pseudo-patent “regime” that Congress manages to cobble together.

    1. The word “problematic” starts and ends on this page. It’s not in transcript, nor implied. Breyer wondered about a “special regime”, but did not elaborate or explain why. The only “problem” is a government agency that was lax in examination and slow to hire, as well as enroll, software engineers.

  14. Whoa! Justic Breyer actually has a clue:

    “JUSTICE BREYER: It hasn’t fallen? Go look at the market shares of the different companies that are seriously involved in software. . . . I think it’s unfortunate that Congress hasn’t passed a special regime for those kinds of patents, but they haven’t.”

    I agree with him. If “software patents” are problematic, why doesn’t Congress step in and do something about that? If anything the Alice decision has hurt rather than helped in that regard, since no one knows exactly what Alice says. That is, trying a shotgun approach like Alice also takes down valuable patents in other areas, not anticipated by the Court.

    1. PB: If “software patents” are problematic, why doesn’t Congress step in and do something about that?

      News flash: Congress already “did something”. They created the CBM and the IPR post-grant review proceedings which you love so much.

      And, yes, there is more to come. Maybe they’ll wait until after the Supreme Court cuts the heart out of another huge class of computer-implemented junk, which is guaranteed to happen in the not-too-distant future.

      I’m going to go waaaay out on a limb and predict that the same folks railing against Alice today will join together and (1) proclaim that “no one” can understand that decision either; and (2) mercilessly deride whatever featherweight pseudo-patent “regime” that Congress manages to cobble together.

      1. I would hazard a guess that the “gist” of the comment was more in line with a preventative and declarative “Software is not patent eligible” statement by Congress as opposed to any of the post grant mechanisms (which are not actually directly geared TO software – a point that I am sure that you are aware of).

        Perhaps no accident, but Congress acting (or re-acting) in a post-grant manner did not work too well for those who attempt to declare that business method patents are not eligible subject matter.

        A rather clear lack of response always happens when it is pointed out that Congress would not need ANY provision of defense (let alone a mere subset provision) concerning business methods – as they enacted – if in fact the eligibility at the onset was not there.

        One simply does not need a defense to something that is simply ineligible.

        Is it not amazing how difficult some people find connecting dots?

        😉

        1. the post grant mechanisms (which are not actually directly geared TO software

          And yet somehow those mechanisms are used regularly (predominantly?) to crush computer-implemented junk. Nobody could have predicted that!

          Yes, “anon”: you are a very serious person indeed.

          Is it not amazing how difficult some people find connecting dots?

          What’s “amazing” is your relentless desire to transparently project your obvious shortcomings onto other people.

          1. You are missing the point by trying (as usual) to spin what was posted.

            Less spin.
            More attempt by you to grasp the point.

            And please the rest of your post was nothing but hte usual baseless ad hominem and your classic AccuseOthersOfThatWhichMalcolmDoes.

            That short script of yours needs a rest.

    2. If “software patents” are problematic, why doesn’t Congress step in and do something about that?

      Many options Congress would have to step in and “do” something about software patents (or patents in any particular technological area) have been taken away by TRIPS, in that they can’t “do” a lot with respect to software patents without doing that same thing to other patents.

      1. Jane,

        Interesting point. I only skim read it but did not see a mention of business methods. I think CBMs get different treatment than IPRs. What is your take?

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