by Dennis Crouch
The timing of a settlement is sometimes really important for patentees — especially if a court is about to find your patent invalid.
Slightly complex story: In Cardpool v. Plastic Jungle, the district court ruled on summary judgment that Cardpool’s gift-card-exchange patent claims invalid under 35 U.S.C. 101 and dismissed the case with prejudice. U.S. Patent No. 7,494,048. That decision was initially affirmed by the Federal Circuit in a R.36 Judgment Without Opinion. Shortly thereafter, however, the USPTO issued a reexamination certificate finding the claims (as amended in reexam) patentable (of course, the PTO did not consider eligibility but only novelty and nonobviousness).
The timing of the reexamination certificate gave Cardpool the opportunity to request rehearing from the Federal Circuit. The appellate court agreed and vacated its prior summary affirmance (although not the district court’s opinion) and remanded to the district court to consider the impact of the reexamination changes.
The parties apparently came to some agreement and thus on remand the parties jointly moved for the district court to vacate its invalidity judgment since the claims had been amended and since the PTO certificate issued before the appellate mandate. See Fresenius USA, Inc. v. Baxter Int’l, Inc., 721 F.3d 1330, 1346 (Fed. Cir. 2013).
However, the district court rejected the plea for vacatur — finding that the PTO decision does not “displace a district court judgment” and that it would be “against the public interest” to allow a patentee to overcome an invalidity judgment simply by “amending its invalid claims.”
No Vacation: Now, on appeal again, the Federal Circuit has affirmed the lower court ruling that vacatur is not necessary or proper:
The Supreme Court counsels that “vacatur must be decreed for those judgments whose review is . . . ‘prevented through happenstance’—that is to say, where a controversy presented for review has ‘become moot due to circumstances unattributable to any of the parties.’” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 23 (1994).
Here, the mootness is due to amendments made by the patentee. As such, the appellate court refused to vacate the district court judgment.
= = = = =
Res Judicata: What is unclear here is the level of claim & issue preclusion that will apply going forward when Cardpool asserts the patent against some third party. Claim 1 was found invalid by a final judgment. However, Claim 1 has now been amended. Could Cardpool sue Plastic Jungle (or its assigns) on the revised Claim 1? Could Cardpool sue an unrelated alleged infringer? Writing for the majority, Judge Newman suggests (but does not hold) that Cardpool will be able to do so:
On the facts and procedures of this case, the issue of validity of the reexamined claims remains to be addressed in any future proceeding. In the initial proceeding the original claims were adjudicated only on the ground of subject matter eligibility under section 101. As in Aspex, the effect of a prior judgment rendered on specific issues as applied to the original claims, depends on the facts and issues of the reexamination, and invokes equity as well as law.
I pulled-up the reexamined claims and found that they were extensively amended to require that the method be computer-implemented using a processor, computer program, data requests, validation process by the processor, etc. I would be truly surprised, if these amendments are sufficient to overcome the Alice Corp. test for eligibility (as implemented).
GENETIC TECHNOLOGIES LIMITED v. MERIAL L.L.C. (CAFC 2016)
Hooray! GTG’s junk patent finally tanked as ineligible.
Congrats to the Merial team for cutting through the incredible b.s. that GTG has been flinging at everyone for years. Virtually anyone who knows anything about patent law and genomics understood that this claim was pure unadulterated crxp. Good riddance.
1. A method for detection of at least one coding region allele of a multi-allelic genetic locus comprising:
a) amplifying genomic DNA with a primer pair that spans a non-coding region sequence, said primer pair defining a DNA sequence which is in genetic linkage with said genetic locus and contains a sufficient number of non-coding region sequence nucleotides to produce an amplified DNA
sequence characteristic of said allele; and
b) analyzing the amplified DNA sequence to detect the allele.
Duck down—drive by!!!
[85 year old hobo/clown slowly lurches by on rusted tricycle, impotently slinging mud]
Everyone okay? No one got hit by the mud, did they?
Who was that, why, the junki-est, tro-lliest creature you’ll ever see . . .
the junki-est, tro-lliest creature you’ll ever see
That would be GTL and their mascot.
Good riddance! I wonder if the grifters will give the money back?
LOLOLOLOLOLOL
Just kidding.
MM, reading between the lines, only step B was new?
Ned,
Legitimately valid (and not to mention eligible) claims can fully be made of elements, NONE of which are new in their own right.
Why is this simple and fundamental understanding seemingly beyond your ken?
Eligibility (even still) is NOT determined on a parsed element basis.
anon, are you intending to raise a strawman?
Not at all, Ned.
You do know the difference between a strawman, and the natural extension of your very own logic that shows just how faulty that logic is, right?
You keep on posting as if some single part of a claim must be new.
That is just not so.
If you don’t like where the logic leads, I suggest that you change your logic.
MM, I read the opinion, but it raises questions.
Strike step B.
We are left with Step A, and everything there seems to be a physical process, with some things functionally defined. For example, “which is in genetic linkage.” That certainly seems to define structure by its function.
Dyk’s opinion skate right up to the problem with the claim and then just jumps over the problem to a conclusion.
“The sole function of the
“primer pair defining a DNA sequence which is in genetic
linkage with [a multi-allelic] genetic locus” is to amplify a
sequence of non-coding DNA in linkage disequilibrium
with a sequence of coding DNA of interest. ’179 patent
col. 59 ll. 60–62. “The method comprises amplifying
genomic DNA with a primer pair that spans an intron
sequence and defines a DNA sequence in genetic linkage
with an allele to be detected.” Id. at col. 4 ll. 37–39. The
claim is directed to a natural law—the principle that
certain non-coding and coding sequences are in linkage
disequilibrium with one another.”
I think this might be an example where the breadth of the claim might be its problem, but I am not sure.
I do think, however, that claim step A is new. Unless there is a functional claiming problem, I don’t see a 101 issue here.
Ned, there are four important facts to understand here.
1) The inventor of this junk did not discover “linkage disequilibrium” which is just a fancy way of saying that some pairs of DNA sequences located at distant positions on a chromosome are inherited at frequencies that differ from what would one predict mathematically.
2) The inventor of this junk did not discover PCR.
3) It was known that if a pair of sequences exhibit linkage disequilibrium that the knowledge could be used to determine the likelihood of one of those sequences from the presence (or absence) of the other.
4) Nobody — absolutely nobody — ever taught or even suggested that PCR would not work on a sequence merely because that sequence is in linkage disequilibrium with another sequence. The method simply does not care about the abstract label people assign to it (just as it does not care if the sequence is “correlated with breast cancer” or “derived from a fetus”).
Now, given those facts, do I need to walk you through the 101 analysis or can you handle it from here? Let me know. I’m happy to help out. I first analyzed this junk over a decade ago. The patentees are some genuine s-c-umbags. They’re also incredibly rich so nobody should feel sorry for them.
Of course we know some people can’t help themselves when it comes to expressing their deep l0ve for the worst abusers in the system.
Interesting post – let’s translate:
1) protons exist.
2) electrons exist
3) protons exist (this point 3) is nothing more than point 1) restated)
4) electrons exist (this point 4) is nothing more than point 2) restated)
Now given those facts, does this mean that ALL configurations of protons and electrons must be INELIGIBLE?
(and just for jakes – neutrons can be analogized to the ALLOWED optional ability to have parts of a claim written in language that is not “objective physical terms.”)
“Of course we know some people can’t help themselves when it comes to expressing their deep l0ve for the worst abusers in the system”
Funny how things that do not align with the desired Ends of Malcolm’s are portrayed simply as “aligning with worst abusers” when the TRUE worst abuser of ANY system is the one who vap1dly “advocates” with an “Ends justify the Means” mentality, and who simply refuses to even consider the means being used – which of course is paramount in an inte11ectually honest LEGAL discussion.
Maybe that person should spend less time throwing out ad hominem and trying to diminish the FACT of his “ends justify the means” mantras, and spend more time actually addressing the substantive points of law….
Now given those facts, does this mean that ALL configurations of protons and electrons must be INELIGIBLE?
Bold, caps, and italics! Wow. Deep, impressive stuff! All in service of a kindergarten-size strawman that makes most sense when you hum the l00ney t00ns theme while you read it.
Even the professional shills at PatDocs are going to have to swallow hard to defend this junk. Thank goodness they’ve been practicing for years.
Nice diversion and LACK of response with your (typical) focus on form instead of substance, with the meme of “defend claim” thrown in to boot for yet another different blog…
How is your “transparency challenge” coming along with the good doctor over at PatentDocs?
Yeah, thought so.
And there is no strawman when I take your logic and show where it leads.
And of course, you knew that too, eh pumpkin?
Hooray! Far less money going into genetic research! Cancer will be with us for far longer! Yippee!
Hooray! Far less money going into the pockets of this tr0ll whose ridiculous junk claims created needless liability for thousands of companies
Fixed for accuracy.
Maybe you want to say something deep about the Wright Brothers, Les? That’s usually a big winner for you.
Hooray! It will be more difficult if not impossible for people to protect their investments in genetic and medical research! Investment in research will dry up. Cancer, diabetes, AIDs, Multiple Sclerosis, Muscular Dis-trophy, will be with us for far longer! Yippee!
It will be more difficult
Oh noes! Cry me a river for our poor, poor, tortured investor class. Whatever will they do???
Investment in research will dry up
LOL
Sure it will.
Just like “KSR killed patents.”
You people never cease to amuse.
KSR is only rarely applied/enforced.
As you gleefully illustrate every day (even several times a day), Alice is being applied….
Perhaps instead of rolling your eyes, you could explain why someone would now invest in genetic research, seeing as how the courts are ruling that the result of such research is not protect-able and can be practiced by all those that did not make the investment?
That’s not included on his short script.
Because you can’t make money in this world without a patent.
REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON VISION CARE
link to cafc.uscourts.gov
New trial ordered under Rule 60(b)(3) b/c of expert perjury applying the law of the 11th Circuit.
Rule 60(b)(3):
Dyk dissented, saying that the patent owner (movant) could not show the result would have been different but for the fraud. The reason the patent owner lost was it failed to produce evidence, other that the testimony of an expert witness who himself was guilty of perjury, on an issue of infringement unaffected by the fraud by the defense.
Also, the rule literally requires fraud by the “party.” According to Judge Dyk, majority erred when it eliminated the requirement to show that a party or its counsel knew of the fraud.
It’s unclear why this is such a difficult topic for so many patent attorneys but let’s refresh everybody’s memory: computers that store data, remotely or not, and that can generate (with a sensor), receive and send data, wirelessly or not, are really, really, really, really old. Since the beginning of digital computers, it’s been absolutely obvious as a conceptual matter that any object can be “computerized” to the extent that the object can be modified to comprise a computer that receives data into a digital form for storage (remotely or not), or modified to transmit data to such a computer.
Historians can quibble about the exact dates but it’s safe to say all this was common knowledge at least a few years before 1980. The grown ups will remember that we sent people to outer space, even the moon. We sent robots to Mars. Yes, computers were involved. Pictures were taken. Audio was recorded. Communications were made, back and forth. Data was collected, classified and stored.
And yet here we are in 2016 and the existence of a portable electronic box comprising a “phone” (basically an audio receiver and a transmitter) and a camera (WOW!) and a computer continues to be perceived as some kind of miraculous object that poofed into existence in 2000, absolutely shocking the scientific community who previously had never even contemplated such a thing. Civilized people simply didn’t contemplate such things. Civilized people never thought about a camera phone because they were too busy sending computerized robots to remotely photograph interesting stuff on Mars. But a camera *and* a phone *and* a computer? Please.
The farcical adventure continued today at oral argument in TLI Communications LLC v. AV Automotive, L.L.C. The “innovation” in this case was classifying data for remote storage. Oh but wait! It was picture data. Totally different. Ok, not really. It’s just data. What was totally different is that it was picture data collected on a phone. That changes everything OMG!
link to cafc.uscourts.gov
Judge Hughes: “It does seem to me that the idea of … you have a camera phone and because it can’t store a lot of stuff and you can’t run to your computer in between storing 2 or 3 pictures the notion of being able to wirelessly transmit them without plugging it in may have been patent eligible.”
As described, the “notion” would surely be unpatentable as obvious in view of the reams of prior art describing remote servers and their utility so it’s a rather pointless invocation. Storing data (or anything else) in some available alternative space when a shortage is perceived is, conceptually, older than the human race.
More importantly, however, given the existence of wirelessly connected data storage/processing devices in the prior art, there is no eligible innovation to be made by limiting claims to the particular content of the stored data.
Consider: How about a patent on a “A truck with more storage space than prior art trucks”. Is that claim eligible? Skilled artisans can build it. And if your “truck” is smaller than the trucks in the prior art than it’s clearly not my claimed truck. Can I haz patent now? Cuz who doesn’t want a bigger truck (besides the Amish)?
Another exchange of note:
Judge Hughes (at 16:30): “I don’t find the classification stuff particularly eligible …”
Right. That’s because adding some “classification” scheme to old techn0logy is not patent eligible. Score one point for Judge Hughes! And watch a few thousand more “do it on a computer” patents flow down the junkhole. Buh-bye! And good riddance.
The affirmance of ineligibility will likely show up as a Rule 36 opinion on the CAFC website tomorrow or early next week at the latest.
MM, I wonder if you could post the claim under discussion so we might better understand the issues. I assume that the holding of the lower court was the claim was ineligible.
6038295 (critical date 1996)
link to google.com
17. A method for recording and administering digital images, comprising the steps of:
recording images using a digital pick up unit in a telephone unit,
storing the images recorded by the digital pick up unit in a digital form as digital images,
transmitting data including at least the digital images and classification information to a server, wherein said classification information is prescribable by a user of the telephone unit for allocation to the digital images,
receiving the data by the server,
extracting classification information which characterizes the digital images from the received data, and
storing the digital images in the server, said step of storing taking into consideration the classification information.
From the spec:
The present invention addresses the problem of a communicating and administering digital images by providing for recording, administration and archiving of digital images simply, fast and in such way that the information therefor may be easily tracked.
Yes, classifying stuff makes it easier to track the stuff. Wow.
Fyi, these guys sued pretty much everybody who makes a cell phone with a camera and undoubtedly they asked for millions of dollars.
Because “classify stuff.”
What a joke of a patent system.
MM, I agree, I have no idea how the PTO issues this kind of so-called improvement to technology that simply applies old and known techniques. This is where KSR would shine.
Yes, because “good argument” always conflates 101 with 103, eh Ned?
It’s almost like Congress never acted in 1952….
(Once again, the Ends match for Ned, so there is no need to cast a critical eye towards exactly what Means were used to get to those Ends…)
“good argument” always conflates 101 with 103
A standard 103 analysis can certainly be a legitimate part of a 101 analysis.
But it doesn’t always have to be. That’s particularly true where (1) the non-abstract elements in the claim are admitted to be in the prior art, exactly as set forth in the claim and/or (2) the non-abstract elements not admitted to be in the prior art are known by eight year olds to be in the prior art and function in the claim exactly as they were designed to function in the prior art (e.g., remote servers for storing data).
Judges don’t need to act like f00ls just because patentees are acting like f00ls.
Can certainly be a part…?
Maybe you missed the point (not sure how) about conflating 103 and 101…
This might be where you should pay attention to what I actually write regarding the historical perspective of what (and why) Congress did what they did in 1952
Maybe you missed the point (not sure how) about conflating 103 and 101…
Maybe nobody cares what you think about anything?
The grown-ups know that there is a big difference between (1) this “conflation” silliness you spew on about and (2) the fact that an analysis of the prior art is absolutely essential for identifying eligibility problems in certain forms of claims (e.g., claims which recite non-abstract elements in addition to abstract elements).
Grow up, “anon.” When you grow up, we’ll let you sit at the big boys table. We might even give a crxp about what you think.
Or you can keep sxcking your thumb and mewling vapid slogans that demonstrate you’re just an ign0rant s chlub, stuck in the past.
Your choice.
“anon: [Night Writer’s] approach is too nuanced
ROTFLMAO
I mean … LOLOLOLOLOLOLOLOL!!
Funniest. Comment. Ever.
Admonishing me to “grow up” when you are the least grown up commentator on these boards is beyond ironic.
Malcolm being Malcolm…
Well, MM, classifying information is as old as the hills. Other than that, there is nothing new.
MM, I should have said, nothing else that was potentially new.
I just don’t understand why MM you don’t just post random letters for your pay.
He does post random letters, in as much as no one reads what he says. When’s the last time you read something MM has said? Once you get the gist of what his argument is, that’s what his argument is every single time. It’s a broken record. You’ve seen one post, you’ve seen them all. And there’s no arguing against what he says, as he simply ignores you and/or deni grates you.
Absolutely true PatentBob. Part of my point too was that if information processing is so meaningless why is he paid for it and why is the exact content of his processed information that he is paid for (his posts) so important.
The other thing about MM’s posts is this objective structure nonsense. How does he suppose that his/her brain differs from other posters such as anon? Is not objective structure? Just bizarre. Is MM’s information processed in the ether by spirits or is it processed by a physical brain? If by a physical brain, then there must be objective physical differences between his/her brain and anon’s brain.
That might be the dumbest analogy I’ve ever seen. My arm differs from your arm, but you don’t think they are identical for patent purposes?
You think patents are appropriate for any immaterial differences that can be identified between two items?
You are a card Night.
Oh Martin. Exasperating is what you are. First, “immaterial differences” should be dealt with by 102/103/112 and not 101. Immaterial differences in patent law means that the two items do not have a different function and something has been added to the claim that does not change its functionality. For example, wherein the bike is red for a patent on a net set of gears.
Second, you think that a brain that can fly an F-15 and a brain that can’t only have immaterial differences? Not true because the functionality of the brains is different. There is a functional difference.
I strongly suggest you read a real patent law case book.
You are exactly wrong Night. The brain that is “configured” to fly the F-15 does not differ from the brain that cannot fly an F-15.
The configuring of those brains is beyond the scope of the patent system, and always should be. If it were not, the patent system would subsume virtually all other law- and I know patent maximalists may actually think all we need is patent law to govern ourselves anyway….
Oops – Mr. Snyder engaged in anthropomorphication and did not realize that one of those two items was NOT human, but a machine that is expressly provided to be governed by patent law.
Silly Mr. Snyder.
Sometimes I wonder if you can actually read anon.
Who wrote this?
“Second, you think that a brain that can fly an F-15 and a brain that can’t only have immaterial differences? Not true because the functionality of the brains is different. There is a functional difference.”
Its a multiple choice question. See if you can get it right.
a) night
b) night
c) night
d) night
Did you answer correctly?
Mr. Snyder,
Your “wonderment” is misguided. You make the mistake in your way of thinking of Night Writer use of a human person brain example.
His sole purpose in using that example is to try to make the point that even for the realm of a person’s brain, there is underlying physical (real world) differences between different utilities.
I HAVE commented to him in the past that his approach is too nuanced for those that cannot be bothered with the basics of the patent terrain to begin with.
His point though is that there is NO “magic,” (quantum or otherwise) NO “witchcaraft,” NO “spirits from an ether world” that is the reason for different functionalities. Your sojourn over the side of a cliff with “First off, on a quantum level, there may not in fact *BE* a structural difference. Resonance or (mesomerism) means the only structural difference is the arrangement of the electrons, and since we cannot fix the location of an electron, only the probability of a location, we cannot say there is a “structural” difference between two states” is pure fantasy.
Your view is the view of the “logic” that ALL future inventions are somehow “magically” “already in there.”
There is a simple, simple example for you to grasp: three resistors.
Take three resistors.
Configure them in series.
Take the same three resistors.
Configure them in parallel.
Basic understanding of reality is that the first configuration IS a different structure from the second.
Your wanting to throw into the discussion the Heisenberg uncertainty principle of velocity/location is only evidence that you have NO C1UE of what you are talking about.
I am truly embarrassed FOR you.
But returning to Night Writer and his point: he is NOT making the classic mistake of anthropomorphication.
That mistake is to make NO difference between the human mind and the realms of what Congress has set up as statutory categories of patent eligibility.
Put simply, patent law as written by Congress fully embraces claims that may have elements that are themselves mental steps**. The prohibition is ONLY when you have a claim TOTALLY in the mind. I have pointed this out numerous times to those who wish to kick up dust and purposefully throw the discussion into obscurity. ANY attempt to move the goalposts and put claims TOTALLY in the human mind must be recognized as an inte11ectually dishonest tactic. Keep your eyes open and your wits about you. The mistake of anthropomorphication is related to the attempt to make the plainly patent eligible category into something TOTALLY in the human mind and thus – on that basis – not eligible.
Eligibility is simply something that is NOT rendered on a single claim element – ANY single claim element – divorced from the claim as a whole and taken ONLY as to that single claim element.
Just because there are others who so attempt to twist and manipulate law to their desired Ends, does NOT mean that you can be so cavalier about this basic patent foundation.
**I have also pointed out that the patent law doctrine of mental steps is being abused for these Ends-directed philosophical twistings, and invited the good professor Crouch to find an academic (even himself) to write a column on just what the patent law doctrine of mental steps is about, its historical generation and its lapse for being an incomplete and quite frankly LIMITED use doctrine.
He has steadfastly refused that invitation. Funny that, and how that refusal allows the continued MISrepresentations to be v0mited out again and again and again on these very pages. Once properly understood, the attempts to move claims TOTALLY in the mind can be seen for the mere propaganda that those truly vap1d posts that they are. Of course, that would mean that the good professor just might have to take steps to prevent (supposed) lawyers from using L 1 E S in their (continuous) advocacy efforts on this legal forum. Everyone know that THAT won’t happen. And that directly leads to the “pain” of innuendo and suppositions as to WHY that won’t happen. For ALL of the calls to make this forum a “better ecosystem,” Malcolm has run amuck for a full decade now.
Why is that?
The issue isn’t whether the “configuring” of the brains is eligible for patentability, but is there a structural difference between the two brains that causes the different functionality.
And the answer is yes there is structural difference. And there is a structural difference between a computer configured to fly an F-15 and a computer that can’t fly an F-15. That is scientific reality.
First off, on a quantum level, there may not in fact *BE* a structural difference. Resonance or (mesomerism) means the only structural difference is the arrangement of the electrons, and since we cannot fix the location of an electron, only the probability of a location, we cannot say there is a “structural” difference between two states. I know this stresses your mind, but relativity is real, and non structural.
But this is a patent blog, and the point that you are making is that a brain is an information processing machine, and the point you want to make is that when it’s doing its thing, there are physical changes QED patent eligibility.
Your point is wrong. It also leads to absurd results. Lets say I patent an F-15. You come along next week and patent the configuration of the machine needed to operate the F-15 and you won’t license it. You have just eliminated the value of my patent. That can’t be right.
The abstract ideas exception exists for a reason, and that reason is not that judges hate patents or software.
Another perfectly amiable response blocked…
W
T
F
Your patent on the F15 would block the second attempt (if your patent is enabled).
Your stay at the Holiday Inn last night won’t cut it, Mr. Snyder.
Martin,
The point is that there is a structural difference between the two brains that produces the different functionality. The two computers also have structural differences that produce the different functionality.
Your response is off the wall.
anon, would you change you mind about that stay at the Holiday Inn if the stay included, for example, dinner with Jennifer Lawrence.
Ned,
The “Holiday Inn” is obviously a metaphor and a take-off of a series of commercials that the corporation ran a few years back.
It is abundantly clear that Mr. Snyder disregards key and basic understandings of patent law in order to promote his “alternative view.”
And it is just as clear that he simply does not care how off he is or why it is even important to know and understand these basic concepts.
He sees a different End and only wants to get to that End – no matter what Means are employed to get there. Even if that means that he personally will “write” patent law from scratch to fit his little world view – as if his (purposefully limited and biased) view is “good enough.”
Martin, the fact that you do not acknowledge that structural differences in a brain are the reason for the functionally different abilities of the brains means you are intellectually dishonest. This puts you in a category of an unethical person that is not worth my time.
NW is there a structural difference between the two brains that causes the different functionality.
Kinda irrelevant if you’re not claiming the novel structure.
But keep talking Mr. Brain Expert! I see your little lab helper “anon” is helping you out. I can’t wait to learn more about the structure of the human brain and how it relates to your views about subject matter eligibility, not to mention other areas of the law — because you’re totally consistent people, very serious, and not at all hypocritical.
LOLOLOLOLOLOL
“Kinda irrelevant if you’re not claiming the novel structure.”
Malcolm is once again trying to make an issue the optional claim format – as opposed to what claims – in the various optional forms actually cover..
Something about “grow up” would be particularly apt for someone who insists on subterfuge and obfuscation and attempts to portray an optional claim format as somehow being the only de facto legal claim format….
Here is a lovely one. How can the patent office put this stuff out and not face any sanction themselves?
How can a set of laws be so manipulated as to allow self-evident absurdity to occur?
Real people have to hire lawyers at ungodly expense to defend themselves from stuff like this, which is virtually indefensible because what human being could even understand what is “infringing”?
It appears to cover any networked server connecting to any network using the Internet. Or maybe not, who could tell?
US 8,694,657 B1 In the office 5,314 days, issued 2014.
671 claims, 188 independent.
1. A method of communicating via an Internet network by using a computer system including a controller computer and a database which serves as a repository of tokens for other programs to access, thereby affording information to each of a plurality of participator computers which are otherwise independent of each other, the method including:
affording some of the information to a first of the participator computers via the Internet network, responsive to an authenticated first user identity; and
affording some of the information to a second of the participator computers via the Internet network, responsive to an authenticated second user identity; and
determining whether the first user identity and the second user identity are able to form a group to send and to receive real-time communications; and
determining whether the first user identity is individually censored from receiving data in the communications, the data presenting at least one of a pointer, video, audio, a graphic, and multimedia by determining whether a respective at least one parameter corresponding to the first user identity has been determined by an other of the user identities;
if the user identities are able to form the group, forming the group and facilitating receiving the communications that are sent and not censored from the second participator computer to the first participator computer, wherein the receiving is in real time and via the Internet network, and wherein, for the communications which are received and which present an Internet URL, facilitating handling the Internet URL via the computer system so as to find content specified by the Internet URL and presenting the content at an output device of the first participator computer, and if the first user identity is censored from the receiving of the data, not allowing the data that is censored to be presented from the second participator computer to the output device.
What a [insert expletive of choice] mess. Talk about path-dependent processes…
Is it possible for you (Professor Couch) to set up an “All MM” section of this board? This way, MM might cease to post so many off-topic posts. Basically, every single blog entry has one or more posts from MM, which have nothing to do with the topic in the blog entry. Further, when there is a topic related to patents and software, MM obliterates the board with what is basically sp am. There is no “discussion” that occurs when one person can dominate so much.
Personally, I’d give up and get rid of the comment section. I see maybe one or two comments every few days that actually have good content. Otherwise, it’s MM (or fights between him/her/it and many others) and the comments are lacking in content.
It’s been a decade…
(perceptions, perceptions, perceptions)
> Personally, I’d give up and get rid of the comment section.
The latest Bits ‘n’ Bytes has eleven comments. Seven of them are MM.
I think the patent community has taken matters into its own hands here.
I disagree David.
There are still plenty of people only too eager to quaff the Kool-aid and attempt to give credence to a L I E repeated often enough. This is not about facts, law or actual history with those seeking to spew their rhetoric. This is about mere appearance of such. I would put to you that to do nothing is exactly what Malcolm would prefer.
NOT engaging and pointing out these fallacies and noting when propaganda is just that: propaganda, is like the adage of just a few good men remaining quiet, and allowing such pus to fester.
On res judicata, what is to prevent the patent owner from suing the same defendant on the same products with these new claims that did not exist at the time of the judgment?
I assume that res judicata does not apply to different patents not in suit against different products. But does res judicata not apply to the same products but different patents? Does one have to bring in the lawsuit all patents that might cover the products in suit lest one might be barred by res judicata?
Also, res judicata does not apply to the “same” products that were first manufactured after suit was filed. Certainly the same patent owner could sue the same defendant with respect to these same but later-manufactured products with respect to a patent that has new claims. Not only is validity different, but infringement is different.
Then we have Kessler.
If I were the patentee, I would simply file suit against the same defendant against all the products that might infringe.
I have trouble understanding how either branch of res judicata applies here.
For claim preclusion to apply, the Court has to conclude that you should have brought the new claims in the prior suit, and your failure to do so precludes them. But if for some reason you could not bring in the prior suit, then they cannot be precluded. Usually this occurs where one of the elements of the claim was not yet present. But here the new (amended) claims did not even exist at the time. So how could the patentee have brought them in the first suit?
For issue preclusion, the issue has to be exactly the same in both suits. In this case, the Court ruled one version of Claim 1 invalid. Then it was amended. Hard to see how the validity of Amended Claim 1 is exactly the same issue.
Agreed.
But as Dennis said, adding “do it on a computer” does not change the essence of ineligible subject matter that is otherwise ineligible. It would be nice if we actually could see the claims before and after the amendments.
His comment does NOT say that, Ned.
His comment addresses the application of the Supreme Court “Gist/Abstract” sword.
He makes NO comment on the parsing and attempting to find eligibility on a strictly element by element basis. He does not partake in your “essence” views. He does not – as you imply – state that the application is de facto correct.
There is NO “essence” to be had with the direct words and actions of Congress per the Act of 1952. Leastwise, the attempt to find “essence” in a single claim element and pronounce “eligibility” based on that distillation of essence of merely part of the claim.
Prof Crouch – do you need one of those “a-hole” tags for every time Malcolm descends into his “deep thinker / so important” meme?
Such C R P from Malcplm is just not necessary and the only purpose that Malcolm’s meme serves is to point out what an arse he is.
Yay Decade of Decadence!
an arse he is
Truly independent and super civilized thinkers like you come along only once every two thousand years or so, “anon.”
That’s how we all knew it was you behind all those s0ckpuppets. There couldn’t possibly be so many brilliant people in one place.
Non-responsive Malcolm (and lovely how you engage in sock puppets yourself at PatentDocs, thus you appear to yet again engage in your number one rhetoric of AccuseOthersOfThatWhichMalcolmDoes…
How did your “transparency” challenge from Doctor Noonan go?
Yeah – thought so.
What a schmuck.
Three things to note here. The amended patent claims are subject to “intervening rights,” this was an ex parte reexamination which has no estoppel to preclude new prior art or arguments in any later proceeding, and it could not consider 101 issues anyway.
How are any of those three things important to the eligibility question, Paul (which is what the end driver is going to be)?