The Supreme Court has greatly simplified the patent docket by denying certiorari in 10+ cases. Gone are GEA Process (IPR termination decision), Amphastar (scope of 271.e safe harbor) , Commil (appellate disregard of factual evidence), MacDermid (obvious combination), Jericho (Abstract Idea) , Trading Technologies (mandamus challenging CBM initiation), Tobinick (interference), Neev (arbitrator autonomy), Genetic Tech (eligibility), Essociate (eligibility), Dreissen, and Pactiv (ex parte reexamination procedure). Notably, all of the eligibility petitions have been denied.
The constitutional challenges of MCM and Cooper are the only cases that particularly survived the Court’s latest culling. Those cases have been relisted for consideration at the next conference (October 7). However, there is some chance that the court is simply waiting for Square’s responsive brief due October 12. Meanwhile, on October 11, the court will hear oral arguments in Samsung v. Apple.
The second oral arguments re 101 in the wake of McRo today. McRo was not discussed by the panel at all.
link to courtlistener.com
The “highlight” of the arguments, I suppose, was that Judge Newman again revealed the habitual willful ignorance engaged in by certain judges on the CAFC. She asserts with absolutely no basis (because there can be no basis) that 15 years ago “technology did not exist” to combine basic, generically stated and functionally claimed logical steps and computers. That wasn’t the case 15 years ago, and it wasn’t the case 50 years ago.
There is a gigantic legal gulf between between “technical problems” and “commercially feasibility”. The fact that, at the time of the patent filing, “nobody” had built a computer that could, e.g., handle a million requests per minute from different computers, doesn’t mean that computers couldn’t communicate with one another. The lack of a commercially popular computerized platform to use for shipping stuff was not a “technical problem” that logicians were incapable of addressing. It was an investor vision problem. The solution to this latter problem is not to grant a million functional junky logic claims on, e.g., “translate this data with a translator, in this context, on a computer.”
The patentee managed to liken his claims to Enfish, McRo and BASCOM in the space of thirty seconds. Nobody could have predicted that! The response from the panel was pretty much all crickets, except for Newman’s desperate coddling.
Here’s the claim:
1. A system for creating
booking requests pertaining to information relating to the transport of a container, said information including at least one of a carrier name, departure date, departure time, departure location, arrival date, arrival time, arrival location, origin, and destination, [<– content descriptive junk]
the system comprising:
a plurality of entities registered [LOL] with the system, each entity having a computer storage, each of the entities configured to communicate with users over a first communication pathway
to establish a shipping rate pertaining to the shipment of containers using a given entity and generate a contract reference [<–more content descriptive junk]; and
a server at a second entity that is configured to
[take a deep breath before inhaling this toxic g@rbage]
receive information from said computer storage of said plurality of entities over a second communication pathway and provide a computer user interface for display on a user's computer over a third communication pathway, the computer user interface including a field configured to receive the contract reference, said server configured to receive from a user over the third communication pathway an electronic booking request including the information relating to the transport of a container, said server including a storage configured to store templates of electronic booking requests and provide one of said templates based on a search of templates performed by said user, said electronic booking request received over the third communication pathway having been created from one of said stored templates,
said server further configured to transmit said electronic booking request including the contract reference to at least a first entity of said plurality of entities over the second communication pathway, wherein the contract reference pertains to the established shipping rate between at least the first entity and the user.
Does anybody see in this claim the “technical solution” to this sooper dooper “technical” problem of translating data from different computers? Me neither. I see the term “configured to do this thing” over and over and over but I don’t see the structure of this magical “configuration”. Guess what’s in the spec? “Rectangle 105 translates stuff”.
Maybe the super secret sauce to eligibility is “shipping.” Because that changes everything. Shipping data is totally different from other types of data that needs to be “translated”.
Great job by the defendant’s attorney here, by the way. He made a couple of pointless admissions but he did a great job responding to Newman’s “born yesterday” shpeel.
GT Nexus, Inc. v. INTTRA, Inc.
Judges: Newman, Lourie, & Dyk
This might end up as an actual opinion with a worthless Newman dissent (unless she decides it’s not worth it). But INTRTA’s patents will remain tanked.
Relist Watch
John Elwood reviews Monday’s relisted cases.
link to scotusblog.com
These next relists show that commentators who were grumbling that the divided court was just going to take a bunch of patent cases were all dead wrong. No, that’s not it. It shows they were totally right! The petitioners in both MCM Portfolio LLC v. Hewlett-Packard Co., 15-1130, and Cooper v. Lee, 15-955, are patent owners questioning the constitutionality of a proceeding called inter partes review. Established in 2011, IPR is a new, adversarial, adjudicatory proceeding that allows third parties to challenge the validity of granted patents before a panel of administrative judges (the Patent Trial and Appeal Board) rather than an Article III court. The Federal Circuit rejected petitioners’ arguments that the IPR violates Article III (because it vests the judicial power outside the judicial branch) and the Seventh Amendment (because it permits the government to extinguish valuable and vested private property rights without a jury trial). MCM (supported by eight amicus briefs) seeks to challenge both of those holdings; Carl Cooper (supported by two amicus briefs) raises only the Article III issue. The issues are necessarily splitless, because the Federal Circuit has exclusive jurisdiction over PTAB cases, but it is obviously important to an enormous slice of the economy.
The first 101 case argued since McRo and IV v. Symantec was heard yesterday. The case is Concaten, Inc. v. AmeriTrak Fleet Solutions, LLC (16-1112)
Panel: Lourie, Dyk, & O’Malley
District court decision here: link to docs.justia.com
You can listen to the oral arguments here: link to courtlistener.com
The claims are directed to receiving information using pre-existing technology and then “automatically” “processing” that information and returning some information back. The super dooper “innovative” context (yes, there’s always a context!) is “snowplows.”
The patentee’s primary argument boiled down to: “But this data is snowplow data.”
Let’s repeat that argument so it can sink it: “But this data is snowplow data.”
This is our patent system, f0lks.
There was, of course, a pre-emption argument but it fell on deaf ears. The argument was “You could send data back and forth between snowplow and a server without infringing our claim, therefore no pre-emption.” [crickets]
This will end up as Rule 36 affirmation of the District Court’s finding of ineligibility, probably to be published on Friday.
PB getting rid of patents for “programmed computers” would be devastating.
It would be “devastating” to a swath of patent litigators and patent prosecutors but pretty much nobody else.
Patent on software aren’t needed to promote “better software.” And they never were.
They definitely are needed, however, to keep the junk patent litigation and junk patent prosecution gravy train rolling. 101 and IPRs is why patent litigation is slowing down. And that’s why the howls from the same self-interested group of attorneys are getting more and more shrill.
All this was predicted by the way.
…and what is it with you and your ego that you feel that it is “ok” to reply out of the comment stream just so that your post is “on top”….?
Are you really that insecure in the strength (?) of your “arguments”?
It has nothing to do with my “ego”, “anon.”
Your statements are being highlighted. If you’re ashamed of them, don’t make them.
Where in the world would you get this “if you are ashamed” B$…?
Just more of the same old tired Malcolm spin…
Yay ecosystem
If you “jumping to the top” has nothing to do with your ego, why then do you do it so excessively?
You do know that it is extremely unhelpful to any actual dialogue, right?
Are you that self-centered so as to not care to put your comments in the normal order?
Whatever reason can you have for your excessive “look-at-me look-at-me” posting at the top of the page? It cannot be laziness, because you actually have to do more work to scroll outside of the comment you are responding to and all the way to the bottom of the page in order to post on top.
(this appears to be another item – like the DISQUS “extra” security that the use of Occam’s razor cuts like a knife)
MM, are you familiar with microcode?
“anon” This concurrence is more than just wrong
Exactly what’s wrong about it? Other than you don’t like the conclusion.
it is repugnant and a breach of the role of the judge in applying the statutory law as written by Congress. The rest of the court should not sit idly by and let this frolic go unpunished,
Well, I guarantee you nothing is going to happen to Mayer. Maybe you should call your Congressional representative. Let us know how that goes.
What’s wrong with it?
Everything.
It is factually incorrect, legally incorrect and totally based on the anti-software patent propaganda.
Other than your feelings, can you point to some specific statements that are wrong? Or are you waiting for your mentor to provide you with a script?
getting rid of patents for “programmed computers” would be devastating.
Like this isn’t “propaganda.”
Also, I’m always happy to talk about the “factual correctness” of treating functionally claimed data massaging methods and flowcharts as physical structures if you’re up for that.
Lol – you and your 0bsess10n with “objective physical structure” is not bleeding over into another argument not of my making (you never did answer me about your attempt to make Ned of all people one of my “cohorts”)
“Go figure Folks”
Still waiting for you to identify all the specific incorrect statements that Mayer has made in his concurrence.
C’mon, man. You’re all about the substance and not the “drive by”. Step up.
Each of his sound bytes that reflect the anti-software propaganda machine.
Software is like a language….
Heck, as I said – everything he had to say.
I could be “all about the substance” for you – and still am – but the list of points is already present in his concurrence.
If you have a specific one out of the entire list that you want to discuss in particular, just let me know which one and I would be happy to discuss it with you.
Each of his sound bytes that reflect the anti-software propaganda machine.
That’s not evidence for your statement, that’s just a restatement of your opinion.
Software is like a language….
This is a fact. It’s why skilled artisans (and everyone else) refers all the time to different software languages. Or did you think that was just a coincidence?
as I said – everything he had to say.
This is all you got? Seriously? Wow. Thank goodness you’re not all about just spewing insults without substance to back you up. You’re totally not a hypocrite!
And I’m so mean for pointing this out. Right, Dennis?
Evidence for my statement…?
You are desperately reaching.
Are your p00r p00r widdle feelings hurt from your CRPfest smackdown this morning?
Get a puppy.
Evidence for my statement…? You are desperately reaching.
There’s no “desperation” whatsover on my part. You’re the one who said Kevin Collins was clueless about “the Art” (whatever that means), not me.
You were asked to provide some basis for statement. Thus far you have failed miserably in that regard.
But maybe Dennis disagrees! Dennis, what do you think? Am I being too “mean” here asking for Mr. Highhorse to back up his insult of Kevin Collins? Let everyone know.
Or you can just delete this thread and we’ll pretend that “anon” really is a saintlike actor entitled to smear everyone with impunity while he claims the high ground for himself.
Tough choices.
Oh, I see I got “anon”s baseless insults of Judge Mayer mixed up with his baseless insults of Kevin Collins. My bad!
Just swap the names. Same difference.
Your frenetic-ism says otherwise, Malcolm.
LOL “same difference”
Excpet for the fact that you so routinely engage in
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that you missed the fact of just what you happened to be accusing me of.
It’s rather disturbing that you don;t even realize your modus operandi and when you flub that up. You just keep on steaming out the CRP.
As for the “insult” of Collins – I already answered you that such simply was not an insult. You have jumped and twisted things now into requiring some basis for something that does not exist.
Must be that frenetic-ism….
😉
Everything as “all I got”….
LOL – you want more than everything…?
How desperate are you ?
you want more than everything
Merely asserting that “everything supports my insult of Kevin Collins” doesn’t make it so. Kinda strange that I have to point that out, but there you go.
What do you think, Dennis? Am I being too “mean” to “anon” here?
And yet again – you assume that something was an insult that wasn’t and are pouting something fierce about it.
Your p00r p00r widdle feelings must be soooo bruised from your CRPfest being flushed.
Your “fact” about software languages is exactly like your “logic” of the Big Box of Protons, Neutrons and Electrons.
And yet, you stumble and bumble on and on, not “getting” it.
And yes – there are languages for software, but software itself – as claimed and as understood by PHOSITA is not “like a language.”
Maybe you want to pay a litttlr more attention to the thing that you are “celebrating”….
Your “fact” about software languages is exactly like your “logic” of the Big Box of Protons, Neutrons and Electrons
Dennis, can you tell everyone what “anon” is talking about here?
It would make me sad if I were to suggest that he was just spouting gibberish. Because it’s probably just my fault for not understanding!
Can you help explain it to everyone? I’m sure you can, Dennis.
AH yes, the Vinnie Barbarino meme – always handy for the quick evasion…
Except not.
You are aware that i have explained the “Big Box” to you several times now, right?
You may not like the fact that I have crafted a clever phrase that epitomizes your “logic” and that you keep on walking straight into my invoking the phrase to tell you that you are using that p1ssp00r “logic” yet again, but that would be something enitrely within YOU to stop.
MCM/Cooper getting relisted is a pretty good sign that cert will get granted. That’s been the tradition of the Court over the past 2-3 terms. And this is the kind of case that generally piques their interest – separation of powers, Seventh Amendment, serious impact on the legal system.
If they grant cert and even abolish IPR we still have a stacked Federal Circuit that will continue to invalidate at a high rate. Alice will continue to be an issue. Seems like the NPEs created this anti-patent culture but innovators (start-ups) are being punished for it.
“Seems like the NPEs created this anti-patent culture”
Another Kool-Aid drinker…
Guess who coined the term “patent tr011” and more importantly, why.
Hint: it was Big Corp and it was not for the public’s benefit.
One HUGE (and to date, hugely successful) pr0paganda job.
Lol – “worst behavior” that just happens to be in the way of the truly Biggest G-g-g-grifters of Big Corp and in the way of the small guy…
Yeah Malcolm, it really is to see the duplicitous one here is you.
…s/b at the expense of the little guy…
It would be nice if the Supremes would take up these IPR [and inherently other PTO post-grant proceeding] constitutionality challenges.* If they do, there will then be no excuse for anyone continuing to fail to submit their various unconstitutionality arguments in amicus briefs, rather than merely endlessly repeating allegations without support on blog sites. Nor would there be any further excuse for the lack of IPL association and legal academic input.
* [However, as all the cert petition denials noted above demonstrate, cert petitions are 300 to one or worse long shots, much less federal statute unconstitutionality challenges.]
LOL – Paul, do you realize how badly your whining comes across?
Especially as you have not even bothered to engage in any of the Constitutional discussions (either attempting to belittle them, or say they were premature, or some other excuse that my large Vegas friend would end up cursing as my bet that you would not engage would win time and time again).
With all due respect, maybe you will stop your evasions and actually engage the discussions.
What first amendment problem is there in an individual filtering out viruses from digital data bound for the individual or with an individual subscribing for such a service? Moreover, what difference does it make that the method used to filter out a virus is patented or not?
That’s a nice question, Les.
But guess what? Finding some fact pattern that might lie on the margins doesn’t address the much larger issue of the reams of patents that are nowhere near the margins.
When you’ve acquired the maturity to discuss that issue, let everybody know. Or you can address it now. Are you ready to address it? Just say so and I’ll post a comment that’ll tee you up in the spotlight for everybody. Ready?
Malcolm asking when someone else will “find the maturity” to discuss something…
Sad.
Not waving anything away Malcolm.
It is just not the problem that you think it is, so the “0h n0es” calamity you want to engage in is simply off.
You assume that you are correct and that I therefore must be “missing something.”
All that we have though is that you are wrong yet again.
Your “thinking” and feelings simply are ungrounded.
But I am “happy” for you that you like to think of yourself in the plural. Is your latest rendition of “Scooby-Don’t” there with you?
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You still are the one focusing on form rather than substance.
You being wrong on the First Amendment issue does not change that.
Not in the least.
Marginal? My post at 3.2.1.1 is in the wrong thread is all. It was meant for the first amendment post of October 2 (The post directly below this one on the main page -post, not comment). In that post, my comment is directly on point and not marginal in any way.
You don’t seem to be paying attention to anything but your feelings – elsewise, you would know that I have provided substantive points to the discussion.
But hey, you are just going to Tr011 on regardless.
Yay ecosystem!
Nice spin – follow the linked article on the First Amendment article.
Try to understand what you are looking for (not your usual posts of short script and ad hominem).
Lol – pay better attention when you read Malcolm – the linked article in the First Amendment article.
You looked for the wrong thing on the wrong thread.
You do realize of course that you are replying to me with Ned’s points, right?
…or do you think that Ned is now somehow one of my “cohorts”….?
The amicus briefs will come out in full force over this. The public/private rights doctrine is a morass for academics who struggle to articulate where the line is drawn. Likewise, the Seventh Amendment is similarly an area that is murky, particularly in the area of patent law. These are areas of constitutional law that are open questions, often in flux, and have a lot written about them over the years. There will be a lot of non-IP lawyers weighing in if they grant cert on the Article III issue alone.
What is your point, Malcolm?
More “Ends justify the Means” from Malcolm…
Point is this is the kind of case for a lot of scholarly amicus briefs about the constitutional issues rather than just industry ones about the relative merits of the IPR system.
Guest,
Thank you for that point.
However – and this is important for you to understand – such influence on the Court through the channel of (unsubstantiated and biased) academics is part and parcel of the broken scoreboard issue that has plagued many recent Court decisions.
Given that instead of double the ethical restraints as attorneys, this amici (especially from academia) have nearly zero effective ethical restraints.
At this level of influence, the problem of the Emperor wearing no clothes is very real.
You are probably right about that. One only has to look at these boards to realize that many (most?) practitioners know nothing or almost nothing about several of the relevant legal doctrines* (although, for better or worse, that does not stop us from opining on them as if we do).
* And then, when the few among us who do know something (e.g., Ned) try to opine, the post gets caught in the filter. Go figure.
Did that computer lip drawing rule case get petitioned? Did it get thrown out?
Federal Circuit Issued its opinion on 9/13/2016
Note: I don’t have access to Pacer at home, so I cannot see the docket.
Generally, a party can file a cert within 90 (with up to 60 days of extension) from entry of judgment in the lower court.
I provided the rules below.
Has there been a petition already?
Rule 13. Review on Certiorari: Time for Petitioning
1. Unless otherwise provided by law, a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court of appeals (including the United States Court of Appeals for the Armed Forces) is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment. A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review.
2. The Clerk will not file any petition for a writ of certiorari that is jurisdictionally out of time. See, e. g., 28 U. S. C. §2101(c).
3. The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice). But if a petition for rehearing is timely filed in the lower court by any party, or if the lower court appropriately entertains an untimely petition for rehearing or sua sponte considers rehearing, the time to file the petition for a writ of certiorari for all parties (whether or not they requested rehearing or joined in the petition for rehearing) runs from the date of the denial of rehearing or, if rehearing is granted, the subsequent entry of judgment.
and FRAP
Federal Rule of Appellate Procedure 36
Rule 36. Entry of Judgment; Notice
(a) Entry. A judgment is entered when it is noted on the docket. The clerk must
prepare, sign, and enter the judgment:
(1) after receiving the court’s opinion—but if settlement of the judgment’s form is
required, after final settlement; or
(2) if a judgment is rendered without an opinion, as the court instructs.
Thanks!
Assuming you meant McRO v. Bandai Namco, et al. the Fed. Cir. panel decision was only on 9/9/16. Too soon to tell if these defendants might request en banc review first and then file a cert petition, or file a cert petition. But judging just from the number of defendants in the important video animation business there would certainly appear to be ample financial reasons?
McRo is a disgraceful opinion, worse even the CAFC’s opinion in Mayo.
The repercussions are huge not just for the film industry but for everybody who uses programmed computers.
“everybody who uses programmed computers” — you mean everyone then, since we all rely on such “computers” every day. Drive your car, you’re using a “programmed computer”. Turn the dial (if you still have one of those) on your thermostat, you’re using a “programmed computer”. By anything from Amazon, and you’re using too many “programmed computers” to count. I record TV, turn my lights on and off, cook food, refrigerate food, wash clothes, wash my dishes, use my LED lights, call or text people, read the news (including newspapers), etc., NONE of which would be possible today without “programmed computers”. So, getting rid of patents for “programmed computers” would be devastating.
I believe the thinking behind this is that the innovations in software will happen anyway and are not “worthy” of being awarded patent rights.
The problem of course with that thinking is that nothing in patent law supports such a “feeling”/opinion/philosophy/desire.
This is also the problem with the stated “ubiquity”/too many patents line of reasoning.
We have moved to a wholesale categorical removal of the presumption of validity (and what that means) based on nothin more than “feelings” rather than any actual law.
The fact of the matter that innovation has moved – and moved strongly – in the area of software is being used as the pretext that this type of innovation does not deserve protection.
The other assertions by Judge Mayer are simply not grounded in any factual basis.
This concurrence is more than just wrong – it is repugnant and a breach of the role of the judge in applying the statutory law as written by Congress.
The rest of the court should not sit idly by and let this frolic go unpunished, let alone unnoticed.
It’s not constitutional Dennis. There is a body of SCOTUS case law that says so. Make peace with what is coming.
Good points!
Glug glug, right anon?
Perms ban.
perma*
MM, the attitude of the socialist is that property is the root of all evil. There is no doubt in my mind that many in the United States have this attitude and perhaps even some on the Supreme Court. But I have faith that the Supreme Court as a whole is more concerned about the Constitution, and the Constitution does guarantee property owners due process, which at common law included not only procedural due process but also the right to a trial by jury; and the seventh amendment guarantees the right to a trial by jury, such as it existed at common law.
By statute, the Statute of Monopolies in 1624, patent validity was a matter be adjudged according to the common law. From 1753, England provided a direct action to revoke a patent for invalidity that was heard in the common law courts. There was, for every legal defense and cause of action, a right to a trial by jury for disputed facts.
Now you may think that the Constitution and legal rights bend to the will of the majority as represented by Congress. I think otherwise. I also think the Supreme Court thinks otherwise. That is why I believe the court will in fact take MCM Portfolio LLC v. Hewlett-Packard.
The issue here is a fundamental constitutional importance, especially in face of a growing administrative state administered by those of the socialist mind.
Ned,
You do realize that you are talking to one of those statist-socialists, right?
Anon, my perception of MM is that he is much more concerned with social issues.
Lol – like (only certain) G-g-g-grifters (but not those associated with the Dem party), right?
A couple of responses (for whatever little they are worth):
(1) I have to agree with anony that it looks increasingly likely to me that the Court will take these cases.
(2) I will be very disappointed if the Court actually bites on the separation of powers issue. That argument is a non-starter, although I would be delighted to see them shoot down the CAFC’s rather sketchy public rights reasoning. IPRs do not violate separation of powers, but not for the reasons that the CAFC concluded that they do not.
(3) Maybe there really is a VII amendment issue here. I would not know. If so, then I guess Congress needs to redraft the statute to provide for the appeal of the IPR decision to a court with a jury. If so, I hope that they also provide recourse to a specific specialty court that does nothing but IPR appeals, with an expedited docket. The whole point of the IPR is to be quick. I think that Congress would also need to make it a constructive infringement to petition for IPR, so as to provide the case-of-controversy necessary to permit any party who so desires to appeal to this district-court-with-quick-juries.
(4) Alternatively, I hope that the Court side-steps the issue by simply interpreting the statute in a constitutional-avoidance manner. In that scenario, IPR becomes something that creates collateral estoppel, so that the PTO does not itself invalidate the property right, but merely creates a context in which the first Art III court to handle an enforcement action after the IPR does the formal work of invalidating.