Avid ID v. Crystal Import: En Banc Request Denied On Issue of Inequitable Conduct by Non-Inventor CEO

By Dennis Crouch

In Avid ID, the Federal Circuit denied Avid's motion for en banc rehearing on the issue of whether inequitable conduct exists when the non-inventor, non-attorney CEO of a company applying for a patent failed to submit information to the USPTO about pre-filing but non-invalidating trade-show exhibit of a prior version of the patented product. Judge Newman dissented.   

* * *

Avid Identification Systems v. Crystal Import Corp. (Fed. Cir. 2010).

In its original decision in this case, the Federal Circuit held that the president of Avid ID Systems was "substantially involved" with the prosecution of the asserted patent and therefore was subject to the duty of disclosure. The court went on to find that the president had failed that duty by failing to advise the PTO of a trade-show demonstration that occurred more than one-year before the patent application was filed. The inequitable conduct decision was important to the case because the trade-show demonstration of a prior product did not leave the patent invalid under the statutory bar of 102(b)/103(a).   

Avid requested rehearing en banc and that its case join with the pending TheraSense en banc case or, in the alternative, to stay the rehearing decision until after Therasense is decided. The Federal Circuit has denied Avid's motion for rehearing en banc.

Judge Newman dissented from the rehearing denial and would have stayed the case to await changes in the law of inequitable conduct:

The law as applied in Avid is subject to conflicting precedent, a conflict whose resolution is reasonably likely to alter the result. Thus it is prudent, and just, to hold Avid’s petition while the law is clarified. The court today has declined to do so, rendering the subject patent permanently unenforceable, although the patent was found valid on the same prior art that is the basis for its unenforceability.

. . .

This court held that Dr. Stoddard’s demonstration during the Livestock Committee trade show of what the panel calls “some of Avid’s technology,” and Avid calls a “precursor product,” was material to patentability and that Dr. Stoddard was required to assure that the patent examiner was informed. According to the panel opinion, the district court “found that the precursor product, while not invalidating, reflected the closest prior art, and thus was highly material to patentability.” Avid Identification Sys., Inc. v. Crystal Import Corp., 603 F.3d 967, 973 (Fed. Cir. 2010)(“Avid II”). While “closest prior art” has been discussed in the context of whether certain information is cumulative of that already presented to an examiner, see, e.g., AstraZeneca Pharms. LP v. Teva Pharms. USA, 583 F.3d 766, 773-75 (Fed. Cir. 2009), it has never been the law that information is “highly material” simply because it is “closest.” It is not disputed that whatever was demonstrated was not an invalidating disclosure of the patented invention, and not a sale or offer to sell the patented invention, for the jury found that the demonstration at the Livestock Committee was not invalidating. See Avid I, 2007 WL 2901415, at *1.

Dr. Stoddard, who is the president of Avid, is a veterinarian whose principal occupation is running an animal hospital; he is not an electronics engineer and not a chip designer and not an inventor of the patented device and not a lawyer. See Avid II, 603 F.3d at 970. On the undisputed fact that the challenged information is not invalidating, the court’s holding of inequitable conduct is sufficiently questionable to warrant a stay until this court resolves the larger issues before us, including the en banc Order’s query: “Should a finding of materiality require that but for the alleged misconduct, one or more claims would not have issued?” Order, 2010 WL 1655391, at *1. It is at least possible that the court will answer this question in the affirmative. Although I do not venture to guess how Therasense will fare overall, it is not unreasonable to expect that it may affect the Avid decision.

The Avid panel applied the former Rule 56 standard of materiality as stated in J.P. Stevens & Co. v. Lex Tex Ltd., 747 F.2d 1553, 1559 (Fed. Cir. 1984), although this standard was abandoned by the PTO in 1992. The information here criticized does not appear to violate the current Rule 56 standard, and Dr. Stoddard is not within the cadre upon whom is placed the obligation of understanding the patent law, as Judge Linn explained in his dissent. I must, respectfully, dissent from the court’s refusal to stay this appeal in view of the en banc proceeding in Therasense.

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172 thoughts on “Avid ID v. Crystal Import: En Banc Request Denied On Issue of Inequitable Conduct by Non-Inventor CEO

  1. 172

    Money Talks–I think we’re all aware that patent cases are federal–my digression was just to give background to Max, who is Euro (I think Deutsch). Just to let him know that people in the U.S. have considered his point to have some validity, even though it has never been adopted at the federal level.

    Cy Nical–I probably read that case in Con Law ~4 years ago in law school, but forgot the issue you raise. Thanks for the heads-up, I’ll check it out. Justice Thomas has written a number of interesting takes on the Fourteenth Amendment, not least of which was his concurrence in the McDonald gun case this past term.

  2. 169

    smash, are you familiar with Justice Thomas’ concuring opinion in ELK GROVE UNIFIED SCHOOL DISTRICT et al. v. NEWDOW, the (in)famous Pledge of Allegiance case? As you may recall, the Supreme Court generally punted on the substantive issues, holding that the plaintiff lacked standing to challenge the compulsory pledge policy at issue. However, in what I recall to be a little-remarked opinion, Justice Thomas explained why he believed that the Establishment Clause was not applicable to the States under the 14th Amendment, while the Free Exercise Clause was. An interesting opinion, and a seldom discussed aspect of the 14th Amendment.

  3. 168

    And which States’ laws would apply in the instant point of a federal question (or was it forgotten that Patents are items in the federal realm)?

  4. 167

    Good answer Smash. Thanks. I see that, even if the Constitutional USD 20 were to be raised to today’s money worth, it would not shut out any of today’s patent actions then.

  5. 166

    “PPPS. 20 dollars in 1787. How much is that, in today’s money?

    Posted by: MaxDrei | Jul 22, 2010 at 08:19 AM”

    Best estimation method I’m aware of compares prices of common, stock articles in terms of ounces of gold. Turns out, for instance, a decent mens’ suit or a pound of ground beef have remained remarkably fixed in price over more than a century, if prices are measured in gold. Don’t have the hard data at my fingertips, but based on much greater U.S. price stability throughout the 19th century, and the then-extant official price of $20.67 per troy ounce, compared with today’s price around $1,200 per ounce, I guess $20 in 1787 is approximately worth $1,200 and certainly at least $1,000 if you like round figures. (Obviously all dollars are U.S. in this context.)

    In a strange quirk of U.S. Constitutional law, the Seventh Amendment right to jury trial is one of the few provisions of the Bill of Rights held not applicable to the States through incorporation by the Fourteenth Amendment. (Digression–the Fourteenth Amendment, adopted at gunpoint in the aftermath of the War Between the States, 1861-65, much later was interpreted by SCOTUS as “incorporating” the Bill of Rights of the U.S. Constitution against the separate U.S. states.)

    This quirk left states to apply their own constitutional jury trial provisions in civil cases. Many of them have raised the minimum dollar amount to reflect your point. In Maryland, where I live and practice, for instance, Article 23 of the Declaration of Rights states in relevant part:

    “The right of trial by Jury of all issues of fact in civil proceedings in the several Courts of Law in this State, where the amount in controversy exceeds the sum of $10,000, shall be inviolably preserved.”

  6. 165

    Ken, thanks. I am thinking about attending the AIPLA annual meeting. Other than that, I hang out in Silicon Valley.

  7. 164

    I do not believe that you have the intellectual capacity to grasp the nuances of patent practice to realize the veracity of my position.

    So now you’re a socialist and an elitist?

  8. 163

    My witty comments are being blocked. Suffice to say that I welcome the edification for all readers your explanation as to why all of sudden your “corps has a duty” is not a capitulation to Anon’s recitation of Rule 3.71(a).

  9. 162

    Pong I do not believe that you have the intellectual capacity to grasp the nuances of patent practice to realize the veracity of my position. Far be it for me to overcome what years of exposure to education failed to achieve with respect to your intellectual acumen.

  10. 161

    Kenny,

    Well we will just have to place your opinion next to Ned’s IMHO-Law opinion. Right there on the shelf of irrelevancy.

    Can you esplain how Anon was wrong in the rule that he quoted? (I noticed he one-upped ya as you merely quoted the MPEP and he quoted the CFR). Ya don’t have to worry abouts me tellin ya that you overcharge your clients, as long as you believe that you are giving thema repeated valuable service and don’t have any ethical dilemmas about it. In fact, your clients probably think that they are something special getting all that personal attention.

    Funny tho – being wrong and all how you still changed your story and now say Corps have a duty under 1.56 – wasn’t that the starting point of you being wrong with Anon?

  11. 160

    Ping pong those facts are not sufficient in my opinion. By the way Anon was wrong.

  12. 159

    then the knowledge of every agent of that Corporation must be analyzed for materiality?

    Why would company agents have materiality? Seems pretty amateurish to me.

    “They have the duty pursuant 1.56, as does the Corporation”

    Thank you Kenny – I sees that you have learned from Anon, who had to beat you up pretty severely with the actual rule of 37 CFR § 3.71(a)? regarding your O-so-amatuer: “Each time an assignee seeks to take action in the case the assignee must prove ownership. The inventor is always presumed to be the owner.

    I still have chuckles over that from a self professed non-amateur.

    Still more chuckles:

    It must be more than the fact that he is an Officer of the company and that he participated in the prosecution.

    No – that about do it. Right there with your Rule knowledge. What was that word you be eating? – absurd?

    One last chuckle for the night: “I saw none of this in this case” – look closer Sunshine at the case facts:

    Avid is a small, closely held company that designs and markets biocompatible radio frequency identification chips for implantation in animals. Avid markets its chips to pet owners as a way of increasing the chances that an estranged companion animal will be identified and reunited with its family. Avid markets devices for reading its chips to animal hospitals and shelters.

    Avid’s founder and president, veterinarian Dr. Hannis Stoddard, testified that he decided to form the Avid corporation after visiting an animal shelter to reclaim his own lost dog. He explained that most animals at the shelter were clearly lost pets, but there was no way to find their homes. Dr. Stoddard made it his mission to implement a better system of dealing with the identification and processing of recovered animals.

    Dr. Stoddard demonstrated some of Avid’s technology at a U.S. Livestock Committee trade show in around April of 1990.

    A few days before the patent application was filed, the inventors assigned their rights to Avid. Dr. Stoddard signed the small entity status affidavit filed with the patent.

    Ida say that was personally as well as Officer-like involvement bucko. How do your words taste?

    You wanta meet Ned? why not make it a dinner date – ya each can bring your comments about me.

  13. 157

    Ken, the consequences of the welfare state were known. We already had the example of Indian reservations. Nixon made it an issue in ’68 and called for integration and affirmative action, not welfare, as the long term solution. He won the election and began an aggressive affirmative action program with quotas and timetables designed primarily to integrate unions in the South. But the Dems always held sway in Congress. Nixon was unable to undo the welfare state.

    But back to Jim Crow Johnson. So long as the black man was kept under the iron boot of Jim Crow, the democrats actively resisted all forms of integration. But, once blacks got their rights as a result of Brown v. Board (Earl Warren, Republican chief) and Eisenhower’s use of troops to enforce, blacks now could attend white schools, ride on white busses; eat in white restaurants and the whole nine yards, the fabric of Jim Crow was rent asunder. Something had to be done, and it was.

    It is tragic that the blacks think their continued poverty is something that Republicans did to them. All they have to do is look to their Democrat masters to find out why they are consigned to the ghetto with no way out.

    Back to Brown v. Board, that was the work of Earl Warren, a Republican, who forced the court into an united opinion based on this argument:

    “Warren convened a meeting of the justices, and presented to them the simple argument that the only reason to sustain segregation was an honest belief in the inferiority of Negroes. Warren further submitted that the Court must overrule Plessy to maintain its legitimacy as an institution of liberty, and it must do so unanimously to avoid massive Southern resistance. He began to build a unanimous opinion.”

    link to en.wikipedia.org

    Republicans freed the slaves and Republican ended Jim Crow. Had Nixon a Republican congress, he would have ended defacto segregation as well.

    But little do we know of this history today, as all we hear from are the like of IANAE and Malcolm who really don’t seem to care about history.

  14. 156

    Race is not that importat. What I want to know is why deBeers gets to have a monopoly on diamonds and the Rothchilds, Morgans and Rockerfellers have a monopoly on money. It is these monoplies that must be terminated. The argument over race is merely a distraction set up to further these monopolies. Jackson was right, as was Kennedy. The Federal Reserve bank must end. How many people of the non-white race have you seen running Western Civilization’s money supply. Why don’t we start there is ending racism. Then we could get trickle-down affirmative action.

  15. 155

    Very good comment about Johnson Ned. I was often puzzled by the welfare state, because the people operating within it would always want to ensure that they have people to service in order to achieve job security. In other words, the welfare state, as designed promotes keeping people in poverty. I believe you hit the nail on the head. Perhaps it was Johnson’s intent to maintain segregation under the guise of ending it.

  16. 154

    Ping pong your logic borders on the absurd. So if a Corporation Acts in a matter before the USPTO then the knowledge of every agent of that Corporation must be analyzed for materiality? That is absolutely insane.
    Now the Corporate Form is treated as a person. However, a Corpration cannot represent itself before a court or the USPTO. It must be represented by an agent. That would be the attorney/agent of record. They have the duty pursuant 1.56, as does the Corporation. As the CEO is not a registered practitioner or an inventor, and not the Coproation (remember the Corporation is a separate entity) I ask you again, how is it that the CEO has a duty pursuant to 1.56? It must be more than the fact that he is an Officer of the company and that he participated in the prosecution. In fact, the only justification I can see for imputing the duty of disclosure upon the CEO is that he was acting in his official capacity as CEO and not merely in his own self interest, i.e., he was curious. If the duty pursuant to 1.56 is merely because he is an officer of the company and participated in the prosecution what one is doing is one of two things: 1) completely ignoring the corporate veil: or 2) holding the corporation liable for all information contained by its agents to determine the materiality of the same.

    Now let’s say it is within the CEO’s job description to assist with the prosecution of patents . . . well then that makes him an agent of the corporation for which the duty pursuant to 37 CFR 1.56 should apply. However, it should be up to the Corporation and not the courts to determine the function of the agents of a corporation. In other words, a business entity should be able to arrange its internal affairs as it sees fit. In my opinion the court has reached too far in and imposed a liability upon an individual in contravention to the 13th Amendment by ingoring the Corporate Form. The Federal Circuit opinion does violence to so many areas of law to reach a result that it would take a law review article to clearly articulate why this opinion should be depublished and/or rescinded and/or overturned by a higher court. I have touched only upon the areas that I think people who read this blog with the time alloted could quickly grasp. However, there are several areas that are problematic. Once you start messing around with internal operations of a corporation all sorts of issues must be considered. I saw none of this in this case.

  17. 153

    Kenny,about that 13th Amendment issue:

    Yeah – the company that the CEO heads has not put themselves under the rules of the PTO cause they have nothing to do with patent application’s prosecution. Nothing whatsoever.

    O wait – they do have something to do with the prosecution cause they have claimed the right to prosecute the application. Well in that case, Kenny, you be full of Sheepdip.

  18. 152

    Excerpt from Nixon’s acceptance speech:

    “And this brings me to the clearest choice among the great issues of this campaign.

    For the past five years we have been deluged by Government programs for the unemployed, programs for the cities, programs for the poor, and we have reaped from these programs an ugly harvest of frustrations, violence and failure across the land. And now our opponents will be offering more of the same – more billions for Government jobs, Government housing, Government welfare. I say it’s time to quit pouring billions of dollars into programs that have failed in the United States of America.

    To put it bluntly, we’re on the wrong road and it’s time to take a new road to progress.

    Again we turn to the American Revolution for our answers. The war on poverty didn’t begin five years ago in this country, it began when this country began.

    It’s been the most successful war on poverty in the history of nations. There’s more wealth in America today, more broadly shared than in any nation in the world.

    We are a great nation. And we must never forget how we became great.

    America is a great nation today, not because of what government did for people, but because of what people did for themselves over 190 years in this country.

    And so it is time to apply the lessons of the American Revolution to our present problems.

    Let us increase the wealth of America so we can provide more generously for the aged and for the needy and for all those who cannot help themselves.

    But for those who are able to help themselves, what we need are not more millions on welfare rolls but more millions on payrolls in the United States of America.

    Instead of Government jobs and Government housing and Government welfare, let Government use its tax and credit policies to enlist in this battle the greatest engine of progress ever developed in the history of man-American private enterprise.

    Let us enlist in this great cause the millions of Americans in volunteer organizations who will bring a dedication to this task that no amount of money can ever buy.

    And let us build bridges, my friends, build bridges to human dignity across that gulf that separates black America from white America.

    Black Americans – no more than white Americans – do not want more Government programs which perpetuate dependency. They don’t want to be a colony in a nation. They want the pride and the self-respect and the dignity that can only come if they have an equal chance to own their own homes, to own their own businesses, to be managers and executives as well as workers, to have a piece of the action in the exciting ventures of private enterprise.

    I pledge to you tonight that we shall have new programs which will provide that equal chance. We make great history tonight. We do not fire a shot heard round the world, but we shall light the lamp of hope in millions of homes across this world in which there is no hope today.

    And that great light shining out from America will again become a beacon of hope for all those in the world who seek freedom and opportunity.”

  19. 150

    allow gay marriage with the proviso that they cannot automatically be considered to be a “nuclear” family for the purpose of adopting kids.

    Do you think we should do the same for black people? AFAIK most black people do not disagree with it. But I haven’t asked a whole lot of them. I prefer not to visit that part of town.

  20. 149

    On gay rights my position is simply this: allow gay marriage with the proviso that they cannot automatically be considered to be a “nuclear” family for the purpose of adopting kids. The central argument of anti-gay marriage folks is just this: that kids should be raised in nuclear families. AFAIK, most gays do not disagree with this.

  21. 148

    And, just to make this clear: Tea Party people think Dems are anti-white. What I am saying here is that Dems are anti-black.

  22. 147

    Mooney, “it” is everything that maintains the ghetto.

    One more point: vouchers. Now most people think the Dems oppose vouchers to maintain union schools. But it is also necessary so that the poor blacks stay put in the ghetto and not be allowed in the pristine hallways of the schools of rich white folk.

    Add it to the evidence and the pattern becomes overwhelming that Dems intend blacks to stay segregated.

    Besides, at the time (1967-8) everyone knew what the welfare state was intended to do. Put the blacks on reservations just like the Native Americans. Put them there, keep them there and ignore them except when you need their votes.

    Yes Malcolm, when we know the effects of government policies, and yet we still maintain them, you could accurately state that we intend the effects.

    Turning the page, Malcolm, to planned parenthold. It was established by an avowed racist, a woman named Sanger, in order to reduce and eliminate inferior peoples. The primary target were black folk. Sanger spoke at KKK ralies and was one of their heroes. She remains a hero to Hillary Clinton.

    Now, what was Roe v. Wade all about? Allowing the poor to have abortions. That’s what. (Justice Ginsberg recently acknowledged this.) Now, who are the poor? Yeah that’s right. The blacks.

    And so on and so on and so on.

    Yeah the Dems are not racists. But they certainly know how to segregate. It is not an accident that a Southerner, Johnson, came up with the welfare state even as separate-but-equal was being dismantled.

  23. 146

    What is more telling is whether you are a socialist.

    I’m more curious about whether you’re a socialist. You support the 13th Amendment, which clearly weakens private property rights and distorts the free market economy, while giving free benefits to people who apparently couldn’t be bothered to get paying jobs.

    See, “socialism” is the new Republican buzzword for cooperation, basic civil rights, basic government services, and any regulation of the free market economy. As long as you’re using the word in that sense, I’ll proudly call myself a socialist.

  24. 145

    Whether or not you are a socialist largely irrelevant.

    Fixed.

    I don’t care what political philosphy you like, this country says that as long as you obey the laws, you can believe what you want.

    Another reason the US sets the Gold standards.

  25. 144

    Whether or not you are inane is largely irrelevant. What is more telling is whether you are a socialist.

  26. 143

    You know it just dawned on me, IANAE, you mispelled your monikor: INANE.

    You know, it just dawned on me that you misspelled “moniker”. And “misspelled”. And “suddenly”.

    It just dawned on you? Really? People have been calling me “INANE” pretty much since I got here.

    Lucky for you I’m unarmed, or that could have gotten embarrassing for you in a hurry.

  27. 142

    Ned, your 12:08 post contains so much ridiculous b.s. that I am not going to bother with all of it. No surprise that you are reciting the tea party line about who the “real” racists are (Democrats! Of course!). But this part takes the cake:

    Now some may argue that this was an unintended consequence of the welfare state state created by Democrats. I would argue in contrast that it was intended and intentional and the reason that the Democrats want to maintain it is to keep the blacks segregated.

    Can you elaborate? What is “it” exactly? Unemployment benefits? Food stamps? Social security? What? And you are proposing that Democrats (including many black congresspeople??) support such measures because they want to “keep blacks segregated”? If there is “no residual issue of civil rights today” (LOL), then why do Democrats want to “keep blacks segregated”?

    Looney tunes, man.

    There is no residual issue of civil rights in America today except perhaps for gay rights.

    Of course the fact that the party which is plainly and most vehemently opposed to equal rights for gays is the Republican party … but that’s just a coincidence, right, and has nothing to do with the fact that it’s the same tolerant white people whose heads are exploding because we have a black President (remember when McCain had to kick his own constituents in the teeth because they couldn’t keep their traps shut during his campaign)? Remember the grown white openly racist McCain supporters weeping because “America was changing”? This actually happened. There’s a movie about these people, Ned. Rather than dig a hole trying to defend them, better to dissociate yourself from them in a clear way becuase they are trying to take over the Republican Party.

    Unless of course you don’t really care.

  28. 141

    You know it just dawned on me, IANAE, you mispelled your monikor: INANE. The guilt has overcome me for I suddently realize I have been having a battle of wits with an unarmed man.

    Q.E.D.
    that’s latin.

  29. 140

    Ned: I would even argue that Democratic Party today continues to favor segregation. It supports welfare without a requirement for work. Now exactly what happens when a family can live in government housing, eat government food, etc.? They live in a ghetto, separate and apart from society.

    I believe you’re referring to the phenomenon of rich white Republicans taking their money and moving to gated communities while the ethnic folk have no choice but to live separate and apart from them in poverty.

    Give the poor government housing in a gated community, and watch how fast the white people move away again.

    the 13th Amendment ends an institution that is the epitome of socialism: slavery.

    I wonder if the abolitionists of the day were asked silly and biased questions like “why do you oppose strong personal property rights?” and “if I can’t spend my money on slaves, won’t I lose my incentive to excel?”

    In conclusion, any patent with fewer than 13 amendments is clearly invalid.

  30. 139

    Avid’s patent still unenforceable.

    Yes Malcolm and as I have been trying to make patently clear, in my opinion, the rationale for that has a great deal more to do with the economic philosophy of the authors of the opinion than any justification that could be found in equity or law: because in my opinion there is not justification for imposing a duty upon the CEO in equity and law, especially when the 13th Amendment is considered. More to the point, to ignore the 13th Amendment is to be a socialist, because the 13th Amendment ends an institution that is the epitome of socialism: slavery. There I have connected the dots.
    In short every single act in the United States must be measured against the prohibition of the 13th Amendment. Remember it is the only amendment that applies to both private and public conduct. Why is it constantly ignored? I already answered that question.

  31. 138

    IANAE, I clearly suggested once before that times have changed. No main party supports segregation and denial of equal rights to blacks. That era is over.

    The issues that divide the parties today are mainly economic and to some degree social. There is no residual issue of civil rights in America today except perhaps for gay rights.

    What I object to is labeling Republicans as racist when the party has never in its history supported racism, but has consistently supported civil rights. The only party that ever supported slavery and segregation is a Democratic Party. I would even argue that Democratic Party today continues to favor segregation. It supports welfare without a requirement for work. Now exactly what happens when a family can live in government housing, eat government food, etc.? They live in a ghetto, separate and apart from society. Now some may argue that this was an unintended consequence of the welfare state state created by Democrats. I would argue in contrast that it was intended and intentional and the reason that the Democrats want to maintain it is to keep the blacks segregated.

    Did you know for example that this very issue was argued in the 1968 presidential campaign. Nixon argued that the problem with welfare was that it would lead to segregation. He rather wanted to promote integration as the way forward which was why he came up with affirmative action. However the Democrats controlled Congress and he could not reverse the welfare state that they had created.

  32. 136

    So, IANAE, just to be clear, in your opinion the South today is racist and not just patriotic, anti-socialist, pro-life, low tax, small government types?

    Just to be clear, Ned, in your opinion it’s the South as a whole that has changed and not the ideologies of the Democratic and Republican parties?

    And I’m starting to tire of the implication that disagreeing with conservatives somehow makes one unpatriotic. Disagreeing with conservatives is one of the founding principles of this country, which is why it was the very first civil right amended into the Constitution.

    The only explanation for their allegiance to a party who believes in economic freedom, business, anti-unionism, anti-socialism, pro-life, and small government is race?

    It was your only explanation when they voted Democrat. I don’t mind if you say it’s my only explanation when they vote Republican, but I note for your reference that many of those issues do appeal to the same demographic.

  33. 135

    So, IANAE, just to be clear, in your opinion the South today is racist and not just patriotic, anti-socialist, pro-life, low tax, small government types? The only explanation for their allegiance to a party who believes in economic freedom, business, anti-unionism, anti-socialism, pro-life, and small government is race?

    Nice.

  34. 134

    6: Isolated, of course. Oh wait, is that your natural state?

    Well played, 6. Well played.

    Max: In that the US Constitution takes all power from one King George and gives it to the many People in the USA, it is the mother of all “socialist” tracts, isn’t it?

    You mean that whole bit about the taxpayers controlling the means of tax production? Doesn’t sound remotely socialist to me.

  35. 133

    they are also the party of Lincoln,

    They have the same name as the party of Lincoln. I think it’s been long enough now that they shouldn’t be entitled to reach back to Lincoln as a symbol of their racial tolerance.

    during the era of Jim Crow where the Democrat-run South kept the blacks enslaved even though they were nominally free.

    How has the South been voting lately?

    IANAE, you really do not understand how free enterprise works. It takes government power to enslave workers.

    No, free enterprise does a pretty decent job of it. I guess you’ve never worked for a railroad or a textile mill during the industrial revolution. Or, say, Wal-Mart.

    Workers who are truly free can leave an oppressive master.

    Black people who felt oppressed by slavery could just up and leave for more tolerant places. That was easy to do, right? I assume there are lots of companies these days that would gladly pay their unskilled and fungible workers quite well out of the goodness of their heart-analogues.

    Laws that support this, by preventing black listing and the like, benefit the worker.

    Ah, I see. It takes government power to prevent the enslavement of workers by free enterprise.

    laws that allow unions to artificially drive up labor costs beyond what a free market would pay,

    I’ve always been puzzled at how conservatives don’t see unions as part of the free market. A union is a group of individuals who, when they get together, have legitimate economic power that they collectively exercise. Nobody ever complains that a corporation is unfair because it has more market power (and now, political power) than an individual. Nobody ever complains that the army is unfair because a bunch of people band together to buy weapons none of them can individually afford and kill more enemy combatants than they’d be able to kill individually. All that cooperation sounds pretty socialist to me.

  36. 132

    This is absolutely beautiful. Now, that you are all in the right frame of mind, when you read an opinion on IC from any District Court pay close attention to the reasoning and you will be able to identify socialists from non-socialist on our Federal Benches.

  37. 131

    MaxDrei you are so confused in your understanding of governmental and economic structures that I it becomes difficult to straighten you out. Firstly, it is my quote that you are addressing not Ned’s. Secondly, you assertion of the U.S. being socialist begins with the premise that King George owned us in the first place. Well that is a premise that started the conflict. No man owns another. That is verboten.

    Assuming, arguendo, that you are correct, King George would not have been our owners, because contrary to the propaganda that is taught in school, King George was not an absolute rulers. If anything the King George weilded power pretty much in the fashion of our modern President. The King had a court and politically powerful people who he could not upset beyond a certain degree. Remember the Cromwellian revolt that ended with the beheading of a King. Well that was pretty much the Kenndey assination for the Royal Family of England. From then on the Kings knew they could go only so far and then off with their head. So you would be wrong to think that the King owned everything. Rather, the King was the authority under which the business interests of England justified the opression of our ancestors.

    With respect to socialism, that is directly related the to distribution of wealth in a society . . . not the structure of political power. It is interesting, however, that you recognize that democracy is inherently socialists, in its distribution of political power. This is exacly correct. The is the beauty of democracy. By distributing the power among the many, personal property and liberty are believed to be secured. This sets the stage for the tension in our country in which capitalism is exhaulted. Democracy does not require capitalism to survive. In fact, in the agrarian capitalism was not needed at all when a person supplied virtually all their needs themselves. In fact China has a capitalistic economy and a communist government. We see that capitalism thrives in China. Moreover, we see many capitalists wanting to adopt the China governmental structure because it advances capitalism. These individual are analogous to the ones in the 1930s, that wanted to adopt German socialism, now called fascism, in order to advance capitalism in the U.S.

    I would say this, however, I am not convinced that democracy and capitalism can co-exist absent a certain threshold of wealth in a culture. This is why we, in the U.S. are feeling incredible pressure on our institutions to be socialized.

  38. 130

    I did not mean to impugn that “over there” you are not individuals. If you took my comment that way, it is easy to see why you missed th epoint of my “big difference”. The difference is purely in the political philosophy arena.

    Your 20 dollar question was not answwered, not due to the ease or difficulty, but rather due to the lack of any point that the answer would provide. Any particular cost comparison would be lost in the extraneous factors of type of society and government rules of funding operations. The 20 dollar question simply isn’t worth answering.

  39. 129

    Thanks, ADD. I will look for Rich in Stevens.

    Lost me there, on your “big difference” but I’ll mull it over. Meanwhile, just to reassure you, over here we are individuals too you know.

    One view is that the 20 year monopoly is the price to be paid for the Progress that comes from the publication of an enabling disclosure of the invention. Another view is that the Progress comes from being forced to design around. Either way, a properly functioning patents system does Promote the Progress of Useful Arts. In that way, the individual inventor wins, but no more and no less than “The People” (individual or in aggregate) win.

    I guess my 20 dollar question is not so easy to answer without looking it up.

  40. 128

    and gives it to the many People in the USA, it is the mother of all “socialist” tracts, isn’t it?

    MaxDrei,

    The big difference is that in America, the giving to the many is the giving to the many “individuals” as opposed to the giving to the many “as a collective state” with the government in place of the collective state. I cannot stress the “as individuals” strongly enough.

    To your PS – you only reach half way there in your understanding. You need to reach both the Quid and the Quo. Yes, there is a collective as in the people as a whole are enriched, but there is also a non-collective individual, the inventor, that is equal to the collective. It is this individual exalted for his creativity and for which the “monopoly” is so deservedly and liberally rewarded with patent rights that must be recognized. Surprisingly, a source that richly supports this is the Rich reference cited in the Steven’s dissent (dressed as a concurrence) in the Bilski decision. Ironic it is that Stevens quotes the Rich article only in dicta for a point that Rich was not addressing and ignores the meat of the article of which Rich was discussing.

  41. 127

    Ned, you say:

    “It is the epitome of socialism. It takes all from one and gives to the many.”

    and it set me thinking. In that the US Constitution takes all power from one King George and gives it to the many People in the USA, it is the mother of all “socialist” tracts, isn’t it?

    And that’s even before I see that bit about taxing the individual, in order to provide the “general Welfare of the United States”. The Framers here were not talking about the welfare of the United States in the sense of the health of its rocks, soil and bodies of water, were they?

    But if they were talking about the “welfare” of US citizens, well that’s um socialist then, isn’t it?

    Don’t get me wrong. I’m not lecturing. Quite the reverse. I’m just curious.

    PS. How about the patent system contemplated in the Constitution. That too is driven by a socialist urge, isn’t it. It takes an invention from one and, in publishing it, gives it to the many, thereby to stimulate progress (for the many to enjoy) in useful arts.

    PPS: what’s this I see, about “Offenses against the Law of Nations”. So, there is such a thing as the “Law of Nations”. I had supposed you thought not.

    PPPS. 20 dollars in 1787. How much is that, in today’s money?

  42. 126

    I even envy you for your ability to design your blog so beautiful! I like it very much it is just my favorite style! Thanks a lot !

  43. 124

    “Workers who are truly free can leave an oppressive master. ”

    Hardly. Especially if there is nothing but oppressive masters in your area. You presume, without evidence, that there are non-oppressive masters or other opportunities in this situation, especially for a given worker.

  44. 123

    “But laws that allow unions to artificially drive up labor costs beyond what a free market would pay”

    Wait wut? I think you mean they artificially drive up labor costs beyond what a boss would pay. How much the customer would pay and how much the boss would pay are two distinct things.

    I lol this whole thread.

  45. 122

    But laws that allow unions to artificially drive up labor costs beyond what a free market would pay

    There’s that old “free market” being brought up again. What country are we talking about? Certainly not the U.S.

    Must be some other country. Which one?

  46. 121

    IANAE:

    “Unions favor the few at the expense of the many? More than, say, exploiting workers for pennies a day in awful working conditions to increase the profits for the owners of a company?”

    IANAE, you really do not understand how free enterprise works. It takes government power to enslave workers. You saw this in the Roman Empire, in Russia during its socialist phase, in Haiti, in Communist China, in Nazi Germany during the war; and indeed, in the US during the slave era and also during the era of Jim Crow where the Democrat-run South kept the blacks enslaved even though they were nominally free.

    Workers who are truly free can leave an oppressive master. Laws that support this, by preventing black listing and the like, benefit the worker.

    But laws that allow unions to artificially drive up labor costs beyond what a free market would pay, appropriate to themselves the wealth of the country — as labor costs are passed on to a business’s customers through price increases.

  47. 120

    Oh certainly so my friend. It is the epitome of socialism. It takes all from one and gives to the many.

  48. 119

    He smashed one of the dispicable socialist institutions in the history of the United States: Slavery

    Slavery was a socialist institution?

  49. 118

    I would look at the Volkswagen pay structure during the 1930s and 1940s. It is what made me weary of receiving stock as payment. I like my money up front.

    Volkswagen’s pay structure made you weary of receiving stock as payment? What did you do during your time at Volkswagen?

  50. 117

    And, may I remind you IANAE, that it was the Democrat party that was the party of slavery, who revolted both South and North against the black man, who ruled the South until civil rights was made the law of the land; who invented the KKK as its terrorist wing; who forced Jim Crow on a divided nation in 1878; whose most prominent presidents including Wilson and Roosevelt were open and notorious racists; who proudly calls the anti-Semite Jimmy Carter one of their own; whose former president Clinton just a few days ago defended Senator Byrd for being a leader of the KKK.

    I grew up in the North, but I saw a lot of racism in the 50s and 60s. ALL of it was from working class Democrats.

    To this day I do not understand just how the racist Democrat party was able to convince blacks that it was the Republican party that was the party of slavery, when it was they who were the racists in America.

  51. 116

    Ah, come on IANAE. Stop this about the Repubs being racist. They certainly are anti-communist, anti-socialist, anti-union, pro-tax cut, pro free enterprise; but they are also the party of Lincoln, the party who brought us the Civil Rights acts of the 1860s and 1957, the party who brought us the 13th and 14th Amendments, the party whose every platform from 1860 ’till the present day is pro-civil rights, the party who opposed slavery, Jim Crow and the party who sent the troops South to enforce Brown v. Board of education; the party who invented affirmative action in the ’50s and gave it teeth under Nixon; the party who united with Northern Democrats to pass the Civil Rights Act of 1964; the party that has a long an proud history of supporting civil rights and opposing slavery.

    To call this party racist is to rewrite history.

  52. 115

    Here ya go Ned: link to rexcurry.net

    By the way you may want to rethink that whole being for the working man thing with the Nazis. I would look at the Volkswagen pay structure during the 1930s and 1940s. It is what made me weary of receiving stock as payment. I like my money up front.

  53. 114

    Let us not forget that the first Republican President was Lincoln. He smashed one of the dispicable socialist institutions in the history of the United States: Slavery

  54. 113

    Republicans are simply non-racist Nazis.

    Wow. That truly hammers home just how racist the Nazis were.

  55. 112

    Excuse me for interrupting, but did someone just compare the status of US inventors to that of the Jews during the Holocaust?

    First they claimed the hedges, and I said nothing because they were abstract.

    Then they claimed the software, and I said nothing because it was not directed to a particular machine.

    Then they claimed the medical devices, and I said nothing because I was insured.

    Then they claimed the canola, and I said nothing because it wasn’t in my field.

    Then they claimed the genes, and I said nothing because they were isolated.

    Then they claimed me.

  56. 111

    Excuse me for interrupting, but did someone just compare the status of US inventors to that of the Jews during the Holocaust?

    No, I don’t think so. But we have learned that Republicans are simply non-racist Nazis. They’re for the common folk.

  57. 110

    Excuse me for interrupting, but did someone just compare the status of US inventors to that of the Jews during the Holocaust?

  58. 109

    It actually shows us that … unions hurt prosperity as a whole, favoring the few at the expense of the many.

    Unions favor the few at the expense of the many? More than, say, exploiting workers for pennies a day in awful working conditions to increase the profits for the owners of a company?

  59. 108

    Ken, Nazi r acism did not help Germany — ever. Had they not been so r acist, they may have gained the allegiance liberated Soviet peoples, for example, who could have helped them against partisans and the like that in the end helps k ill the Nazis. Further their r acism drew the ire of rest of the world who grew to h ate the Nazis. It is largely all that we can remember of them. Racists — to be h ated.

    True the Nazis started off as anti-capitalist socialists; but, in the end, they did a deal with German industry to suppress the more radical anti-capitalist elements of the party. Regardless of the deal with the industrialists, the Nazi power base remained centered on the worker and the common man, not on suppression of his interests.

    What happened in Germany showed us that one can be for the common folk without being a socialist and without favoring unions. It actually shows us that socialism and unions hurt prosperity as a whole, favoring the few at the expense of the many. Real wages for German workers rose across the board as the economy as a whole boomed.

  60. 107

    Oh, right. We don’t torture.

    You’re not being fair, IANAE. Ken suggested only that we don’t target people for execution and/or torture. Torturing people who just happen to fall into your clutches is different. At least in degree.

  61. 106

    IANAE Sunni muslims round up Shiite muslims and slaughter them and vice versa. Would you say that those two religious groups are opposites?

    No, I would not.

    Would you say they’re both communists? Or would you say that comparing one very abstract aspect of what a government does without any examination of the underlying motivation is a lousy basis for comparing ideologies?

    in my view a government that would be opposite to either the Nazi Socielists and the Soviet Socialists would not target people for execution and/or torture. … The 20th century United States government would be the opposite form of government.

    Oh, right. We don’t torture.

  62. 104

    Inspired by “Ping, despite your childish rhetoric“:

    Like a child you whisper softly to me
    You’re in control just like a child
    Now I’m dancing
    It’s like a dream, no end and no beginning
    You’re here with me, it’s like a dream
    Let the choir sing

  63. 103

    You know I really need to get back to work but this phrase by IANAE speaks loudly about his underlying thought processes-it disturbs me.

    “And the fact that both governments targeted completely different groups as enemies of their policies, for completely different reasons, is what you consider a “difference of degree”. Both governments had people they disliked, so their underlying ideologies were probably basically the same, right?”

    Yes IANAE that would be correct, because in my view a government that would be opposite to either the Nazi Socielists and the Soviet Socialists would not target people for execution and/or torture. Apparently, you do not even consider such a government as a choice, which is a sad statement on todays culture. The 20th century United States government would be the opposite form of government. That is probably why spurious codes in state laws were repealed, like the Calfornia Chinese Exclusion Acts. The U.S. wanted to be a country that was opposite to those of Nazi Germany and the Soviet Union and not merely different in degree.

  64. 102

    IANAE Sunni muslims round up Shiite muslims and slaughter them and vice versa. Would you say that those two religious groups are opposites? Here is a real test of the intellectual prowess, what is the difference between the Sunni and the Shiite ideology. I will give you a hint, it is one of degree not polarity LOL

  65. 101

    It is clear that in our society there are several classes of people that have been targeted as not being worthy of sharing the benefits of our society. The war against inventors based upon IC clearly, in my mind, makes them such a class. This is a war that started under Bush ’43 and continues today.

    Don’t you long for the good old days, when America only targeted the Japanese and communists? Wait, I guess America was a communist country back then too.

    Good thing we’ve smartened up since then, and now we’re targeting those wealthy independent inventors and Mexican vegetable-pickers. Once we take all their money we’ll be on the road to a speedy recovery for the remaining capitalists who clearly have no intention of getting their hands on other people’s money.

    As a side note, Einstein was at best agnostic.

    As a side note, it doesn’t matter how you self-identify if the Nazis say you’re a Jew.

  66. 100

    Ned I have to disagree with you on your points that “the racism of the Nazis had nothing to do with their economic recovery. If anything, it hurt Germany as many well-educated and wealthy Jews left the country.”

    Racism was the exact reason that the German people saw meteoric recovery. They decided which ethnic groups to remove and then confiscated their wealth and redistributed it to the acceptable ethnic groups. Some of those ethnic groups were very wealthy. Let us not forget that is was the world banking community that was funding both sides of the war, but that is a different story. Without confiscating the wealth of those ethnic groups Nazi Germany would have had a tough time of it. As for the exodus of smart people, suffice it to say that Germany had plenty of intelligent people. We used their technology to send men to the moon and many other systems. The smart bomb that we use today was invented by the Luftwaffe. Even infra-red technology was perfected by the Nazis during WWII. Our interstate system is based upon the Autobahn. I can go on, but it is most irrelevant as you get the point.

    Nonetheless, it could be said that this principle is alive in the U.S. I have seen tens of thousands of my fellow citizens cast out of their homes and living is abject poverty as a result of the bail out of the banksters. It is clear that in our society there are several classes of people that have been targeted as not being worthy of sharing the benefits of our society. The war against inventors based upon IC clearly, in my mind, makes them such a class. This is a war that started under Bush ’43 and continues today. It did, however, culminate is a resounding triumph for the American way of life when the socialists were stopped dead in the tracks in the Glaxo Smithkline case.

    Most assuredly some type of class warfare is why Communist China is doing so well. Chinese prison labor is well known source of many of the goods coming to our shores.

    As a side note, Einstein was at best agnostic. He didn’t believe in religion, but did believe in a God. Here is a quote “The word God is for me nothing more than the expression and product of human weakness, the Bible a collection of honorable, but still purely primitive, legends which are nevertheless pretty childish.”. Hardly the ideology of a religious man.

  67. 99

    This has to be one of the most educational threads we’ve had in a while. So far, I’ve learned that the Nazis were pretty cool (a lot like Republicans, apparently) except for that racism and war-mongering stuff. (“But the trains ran on time,” isn’t that the expression?) Plus, I’ve learned that refusing to pay workers (and/or mutilating them for fun and profits) is a socialist strategy, and that “economic socialism” is a capitalist’s dream, because you can’t lose! Great stuff!

  68. 98

    I would contest your assertion that Nazi Germany was the opposite of the Soviet Union.

    They rounded up and killed communists.

    Moreover, the term Nazi is based upon their name Nationalist Socialist German Workers Party. (Just in case you didn’t notice Socialist is the second word in their name)

    Just in case you didn’t notice, right-wing governments love putting fancy names on things. Look at No Child Left Behind that left every child behind, the Patriot Act that subverted fundamental American values, the American Dream Downpayment Assistance Act that laid the shaky foundations for so many American dreams, the Homeland Security Act that emboldened terrorists and didn’t make anybody any safer…

    It seems to reliably fool people like you.

    The Nazi socialists believed in removing from the population certain ethnic groups. (By they way remove is a euphemism for exterminate) The Soviets believed in removing from society certain economic classes.

    And the fact that both governments targeted completely different groups as enemies of their policies, for completely different reasons, is what you consider a “difference of degree”. Both governments had people they disliked, so their underlying ideologies were probably basically the same, right?

    I guess that explains why all these “socialist” Nazi policies culminated in war against their Soviet “brethren”.

  69. 97

    Pretty much everybody who is vocal against patents these days is being purely capitalist about it. They believe they would personally be richer or more successful (i.e. have more personal property rights) without patents getting in their way. “cuse me while I sneeze . . . ah choobull $hit”

    Yes, yes, yes. Those pesky personal property rights keep getting in the way of prosperity. Very, very interesting ideology. You know what also gets in the way of personal wealth and affluence, perhaps having to pay the workers. Perhaps if the workers can do with less than personal wealth of the capitalist would increase. At least that is what the Krupp family believed-one of the most powerful industrial families in Germany link to en.wikipedia.org

    Of course if the workers won’t work without pay what is a good capitalist to do: King Leopold of Belgium had an idea: link to en.wikipedia.org . . . mutilate their bodies (you can think of this as an expedited way of showing the workers they don’t have health care . . . why wait until they are old and sick . . . give them a reason to need it and don’t provide it)

    But returning to Nazi Germany, I would contest your assertion that Nazi Germany was the opposite of the Soviet Union. Moreover, the term Nazi is based upon their name Nationalist Socialist German Workers Party. (Just in case you didn’t notice Socialist is the second word in their name) The is a dearth of history you have been taught in school about the development of Nazi Germany. The Cold War has much to do with this. The fact is that the Soviet Union embraced the fledgling Nazi party in the 1920s. The Nazis also embraced the Soviet Union as a brethren socialist state. It was not until the elections of the 1920s that the Nazis realized that they had to distance themselves from the socialist ideology of the Soviet Union. However, the difference between the two ideologies was one of degree-not polarity. The Nazi socialists believed in removing from the population certain ethnic groups. (By they way remove is a euphemism for exterminate) The Soviets believed in removing from society certain economic classes. However, both had the common goal of accumulating to the state the wealth and resources of private citizens and removing from the population vasts members found not worthy of sharing the property of the state. In addition both achieved the goal of merging the merchant class with the state. They were not opposite ideologies by any stretch of the imagination.

    The socialist agenda of the current ruling class of the United States is most interesting. It is an economic socialism: the privatization of profits is maintained; however, losses are socialized. If you think about it, I would say that the true architect of modern U.S. socialism is the Courts of the United States. For this is an ideology that finds itself deeply entrenched in tort law whereby the losses are attributed to the party in the best position to absorb the loss. Unfortunatley for most of U.S. it is the U.S. taxpayer.

  70. 96

    In a way true, in a way not true.

    Certainly the racism of the Nazis had nothing to do with their economic recovery. If anything, it hurt Germany as many well-educated and wealthy Jews left the country. Einstein among them.

    The warmongering occurred long after the German economic recovery was well underway. That was not the reason for the economic recovery.

    What the Nazis did to is ban communism, arrest the Communists and put them in concentration camps, suppress unions, fix both wages and prices, forbade employers to lay off workers without government, kept taxes low while massively increasing government spending, built the autobahns, the VW, vacations for the common man, provided radios in every home.

    Now some of this does sound like the policies advocated by the Republican Party. Some of it does not. But what is very true is that racism and war mongering had very little to do with why the German economy took off. Rather it had a lot to do with suppressing communism, unions, controlling wages, keeping taxes low while increasing government spending on infrastructure, and bringing the people autobahns, VW’s, radios and vacations.

    Iit was about the common folk and jobs.

  71. 95

    the fact remains that if one is anti-patent, one is against personal property rights,

    Oh, just like Bill Gates. He hates all those personal property capitalist things like successful businesses, ambition, and personal wealth. What a big fat socialist he is.

    Pretty much everybody who is vocal against patents these days is being purely capitalist about it. They believe they would personally be richer or more successful (i.e. have more personal property rights) without patents getting in their way.

    Being against other people’s property rights because you want all the property for yourself is capitalist. It’s only socialist if you’re also against your own.

    the socialist agenda of Germany in the 1930s and 1940s

    You’re aware that Nazi Germany was the exact opposite of socialism, right? They were the first economy to emerge from the Great Depression, and they eventually brought the rest of the world with them. They did it with core Republican-type values like racism and a big army for fighting pointless unwinnable wars.

    the health care reform

    I remember all that fraud on the public during the health care debate. People were spreading all kinds of lies, like death panels and how America already had the best health care in the world. I’m glad that was one fraud that didn’t succeed.

  72. 94

    Ping, despite your childish rhetoric the fact remains that if one is anti-patent, one is against personal property rights, which, in my book is a hallmark of a socialist. All one needs to do is study the socialist agenda of Germany in the 1930s and 1940s and the socialist agenda of the Soviet Union from the 1930s to the 1950s to understand that the loss of propery rights under such a regime is the least of our worries. The movement of couching a socialist ideology under the guise of stopping fraud using equitable principles is a fraud in itself. However, it is a fraud upon the public . . . aparrently defrauding the public has no consequence. Just look at the Banksters, BP, the health care reform and the list goes on.

  73. 93

    a valid patent?

    What is the point of holding an invalid patent unenforceable?

    Had the intent would be to receive an invalid patent,

    The intent was clearly to receive a patent by not letting the examiner see some art that someone involved in the prosecution of the application thought he’d rather the examiner didn’t see before allowing the patent.

    That doesn’t strike you as a bad thing, irrespective of the ultimate validity of the patent?

    But the intention to receive a valid patent is legal.

    Yes, intending to receive a valid patent is legal. Intending to kill someone is also legal. It’s how you act on it that matters.

  74. 92

    the diligent inventors get the shaft

    They weren’t too diligent Kenny if they prosecuted as sloppily as we are to ASSume. Now mind you if they hired a couple of sharp lawyer folk – well they be sitting pretty no matter what happened down the road. If they be NPE, we strike a deal accordingly. If they be Empire building we strike a different deal.

    C’mon Kenny – a trap has got ta have a few branches covering the snare. Try to pay attention to Malcolm’s traps – they have plenty of branches and will capture all kinds of small varmits.

  75. 91

    LOL’s at Kenny – a poor man’s Malcolm.

    It is presumed” – No Kenny, you mean it is ASSumed.

    Sigh, yet another blogger who has no experience in making deals.

    At least my pal Cy recognizes what Kenny ASSumes – wtg Cy!

  76. 90

    It short this is a great incentive for inventors not to collaborate with companies-an outcome that runs against many of the patent laws recently enacted by Congress.

    It sounds more like a great incentive for inventors not to let their licensees get substantially invoved in prosecution.

  77. 89

    It is presumed that the company took part in the prosecution. However, the knowledge of the company that might be material is unbeknownst to the inventors. It short this is a great incentive for inventors not to collaborate with companies-an outcome that runs against many of the patent laws recently enacted by Congress.

  78. 88

    So Company A acquires a license to the patent and withholds information from the USPTO. Now the patent gets litigated and is suddenly held invalid. Why? Because the company did not disclose its internal information.

    Sorry, Mr. Brooks, I must have missed the part where Company A was substantially involved in the prosecution of the patent. Did you leave that fact out?

  79. 87

    This is the conduct that this decision sanctions. Couple of happy go lucky inventors go to company A with a great idea. Diligent are the inventors, so they did not disclose the idea until the patent was filed covering the same. Company A wants to make a product embodying the invention; however, Company A has information that they know an Examiner may want to see, e.g., Company internal research. Mind you this information does not render the claims unpatentable; however, a reasonable examiner may consider the information material. So Company A acquires a license to the patent and withholds information from the USPTO. Now the patent gets litigated and is suddenly held invalid. Why? Because the company did not disclose its internal information So what happens in this scenario, the diligent inventors get the shaft and Company gets to continue manufacturing the product embodying the claimed features and now, without having to pay a royalty. Some would call this a win-win situation whereby the free market is fostered by destroying monopoly and in furtherance of a socialist agenda by destroying personal property rights. I, however, would call it theft. However, this type of theft is just like the banksters theft . . . you know you’re getting ripped-off, unfortunately the Government will not vindicate your lost rights.

  80. 85

    IANAE, “withholding” with an “intent to deceive” to receive

    [drumroll please; the curtains part, revealing a]

    a valid patent? (The jury held the patent not valid.)

    Had the intent would be to receive an invalid patent, I would potentially agree with this decision. But the intention to receive a valid patent is legal.

    It seems to me the intention must be to obtain something that one has not legal right to obtain.

  81. 84

    The Feds now seem to equate intent not to disclose (or having no reasonable excuse not to disclose) with an intent to deceive.

    From the panel opinion: “Avid does not dispute on appeal that Dr. Stoddard withheld the information with specific intent to deceive the PTO for the purposes of obtaining a patent.”

    So, it is remarkably easy to carry the burden of proof of IC if a reference is arguably closer than other references. That, in fact, is the holding in the present case.

    That is indeed the holding in the present case, but it could be one of those sliding scale analyses where more/clearer intent to deceive means a lower threshold for materiality. Being the closest prior art is probably the lowest possible standard of per se materiality, but it’s still not a complete absence of materiality. Withholding art with intent to deceive is also probative of materiality.

    There’s also this little gem in the panel decision: “We have often held that a reasonable examiner may find a particular piece of information important to a determination of patentability, even if that piece of information does not actually invalidate the patent.” You’d think a major constitutional blunder like that would merit a rehearing en banc.

  82. 83

    TINLA, JNOV’s require both a pre-jury motion, a post jury motion and a jury verdict that is unsupportable per se, not just that the court disagrees with it.

    IC, in contrast is totally at the discretion of the court. True, it must be based on evidence, but the threshold for materiality and intent is so low as to be illusory. The court can “fix” the verdict using IC if he disagrees with it.

  83. 82

    Smash: “To Ned: I think you understate the requirements for IC, among which are an intent to deceive the PTO.”

    The Feds now seem to equate intent not to disclose (or having no reasonable excuse not to disclose) with an intent to deceive. What this amounts to is that a finding of materiality of a reference will almost always lead to a successful charge of IC when knowledge of the reference is proven.

    So, it is remarkably easy to carry the burden of proof of IC if a reference is arguably closer than
    other references. That, in fact, is the holding in the present case. The reference was closer (but with no showing of what critical elements it had or was missing) and there was intent not to disclose. That was all that was needed to overturn the jury.

  84. 81

    It is every single american who has sufferred injury because they have been denied a fundamental right to self defense.

    How unusual, since the Second Amendment only exists to protect the fundamental right to self defense against one’s government. That’s what the framers were so upset about – the oppressive government telling people what to do. That’s also who everybody was shooting at, at the time.

    And in case you didn’t notice, the government currently has bigger guns than they’ll let you have.

    Still, it amuses me to think of a potential victim of civil violence asking his assailant to wait while he draws and loads his concealed musket. If that’s what the framers envisioned, they had great imaginations.

  85. 80

    That is why I like the Second Amendment case, McDonald. It is not the future gun owners that really interest me. It is every single american who has sufferred injury because they have been denied a fundamental right to self defense.

    Especially those poor kids who were abused by priests. If only they could have purchased weapons at the corner store, like the Framers intended, we wouldn’t have all these problems.

  86. 79

    Unconstitutional under the 7th amendment? Don’t judges get to issue JNOVs anyway if they don’t like the jury verdict? Or are you saying that the plaintiff patentee is the “defendant” in the invalidity action and that setting aside the jury’s “acquittal” regarding invalidity would violate the rule against double jeopardy?

  87. 78

    To IANAE: What do Markman hearings have to do with IC?

    Absolutely nothing, but every last word of Ned’s complaint about inequitable conduct could apply equally well to Markman hearings.

  88. 77

    To IANAE: What do Markman hearings have to do with IC?

    To Ned: I think you understate the requirements for IC, among which are an intent to deceive the PTO. I agree, however, to the extent that it is too easy for an accused infringer to prove IC. I hope but do not expect the CAFC to straighten things out in TheraSense.

  89. 76

    This is BS; and it allows a court to essentially hang a patent owner at the nearest yardarm the if the court doesn’t like the cut of his jib. It allows a court to essentially nullify a jury verdict to the extent that the court disagrees that the patent is valid. What we have here is a rule that is unfair and unjust, and allows nearly unfettered judicial tyranny to impose verdicts which theoretically is unconstitutional under the seventh amendment.

    I know! We need to abolish these unfair BS Markman hearings!

    I mean, what?

  90. 75

    Smash mouth said: “So in sum I think the purpose of IC is to deter fraud by patent applicants, agents, and attorneys by severely punishing them. Although the punishment is a little blunt, because some of the malefactors may escape punishment–”

    If inequitable conduct was limited to “fraud” where the patent attorneys and/or applicants willfully lied to the PTO, I would be very pleased to visit all sorts of punishment on everyone involved in the fraud — to and including litigation attorneys who bring suit on a case involving fraud on the patent office. Fraud on the patent office should be considered equivalent to a crime of moral to turpitude. It should be consider a per se disbarment offense both in the PTO and state bars– so much so that accused attorneys should be allowed the right to testify in court on their own behalfs and/or take the Fifth Amendment.

    But what we have here is a requirement to disclose information “important to a reasonable examiner.” This is not an objective standard. This is BS; and it allows a court to essentially hang a patent owner at the nearest yardarm the if the court doesn’t like the cut of his jib. It allows a court to essentially nullify a jury verdict to the extent that the court disagrees that the patent is valid. What we have here is a rule that is unfair and unjust, and allows nearly unfettered judicial tyranny to impose verdicts which theoretically is unconstitutional under the seventh amendment.

  91. 74

    What would the practical effect be on the owners of those patents if the Theresense case retroactively makes a substantial number of those unenforeceability rulings invalid?

    The practical effect would be that those patentees would feel sad that they didn’t hire better lawyers and file more appeals.

    It is every single american who has sufferred injury because they have been denied a fundamental right to self defense.

    If only everybody had guns, the shooting of innocent Americans would stop. That is, until we get corporate “gun trolls” that have lots of guns but no bodies for people to shoot back at.

  92. 73

    I don’t think so ping. Anon has played the game of moving the issue being discussed when I started citing official information supporting my argument. That is, and always will be, a tacit admission that he has lost. What I do find very interesting is that the more cogent and strong the arguments that Ned and I proffer in support of the flaw in the logic supporting the current IC law the more personal the attacks become.
    I know with absolute certainty that Ned and I are correct on the legal theory. However, legal theories are not really what is at issue here.
    Considering that judicial opinions are retroactive, were the Federal Circuit to follow the line of reasoning set forth by Ned and I then what would be the cost to the Federal Government. Billions of dollars of patents have been rendered unenforceable based upon the current IC philosophy. What would the practical effect be on the owners of those patents if the Theresense case retroactively makes a substantial number of those unenforeceability rulings invalid?
    That is why I like the Second Amendment case, McDonald. It is not the future gun owners that really interest me. It is every single american who has sufferred injury because they have been denied a fundamental right to self defense. It is those civil cases that interest me. For that is the practical effect of broad sweeping judicial opinions . . . they often give rist to civil actions for situations that occurred in the past.

    The Federal Circuit must choose its reasoning very carefully in its opinions.

  93. 72

    Anon Now let’s throw a little policy into the mix: Malcolm says “inequitable conduct doctrine is about punishing those who disobey the PTO’s rules with respect to disclosure of material information. So let’s look at the facts and rule – How bizarre, they are still the same.

    You’re not making sense, Anon. According to your “analysis,” a patentee should be punished because a licensee withheld material information for the sole purpose of creating an inequitable conduct issue during litigation of an otherwise valid patent.

    And the proposed “policy” goal to be achieved by rendering the patent unenforceable: the patentee should draft a better license? LOL.

    Anyone in the peanut gallery care to hold Anon’s hand here? Or is it the case that he/she is flying solo? It appears to be the latter.

  94. 71

    “I respectfully disagree. ”

    No need to be respectful with Mooney, the sentiment will certainly not be reciprocated.

  95. 70

    I don’t want to take the time to explain

    translation: “I’m wrong and I can’t come up with any type of plausible cover story.”

    Is that “nuanced” enough? LOL ya Kenny.

    Had to check and sure enough – Kenny’s in the 3’s. No surprise really given Kenny’s siding with ‘ol Ned on the enforce/invalid position.

    Dontcha old timers realize that when you keep on making blatent mistakes that its time to hang it up?

  96. 69

    “Just to be clear: inequitable conduct doctrine is about punishing those who disobey the PTO’s rules with respect to disclosure of material information. The goal of the doctrine is to increase the number of participants who follow the rules and prevent rights from being asserted those who obtained those rights without following the rules. That is the “policy” I’m referring to. So again I ask Anon: what policy goal is achieved by rendering the patent in my hypo unenforceable?

    Posted by: Malcolm Mooney | Jul 19, 2010 at 08:12 PM”

    I respectfully disagree. I think this conflates means and ends. The purpose of the rules is to assist the examiner by helping ensure that the best, most relevant prior art and other material information is known by the examiner, with the end goal that issued patents actually are, to the greatest extent feasible under time and cost constraints, valid. This protects the public generally, and economic competitors of the patent owner, specifically.

    I think we glean a clue to the purpose of IC from its precursor, fraud on the patent office. This suggests that IC is a form of “fraud-lite,” i.e., fraud with some elements subtracted (e.g., reasonable reliance — although you might contend the PTO rules effectively set up a regime where the examiner MAY reasonably rely on the applicant’s/prosecutor’s representations). This is consistent with the required quantum of proof, which is the same as that required to prove common law fraud.

    So in sum I think the purpose of IC is to deter fraud by patent applicants, agents, and attorneys by severely punishing them. Although the punishment is a little blunt, because some of the malefactors may escape punishment–but that happens in any legal regime. And of course others argue that some of those punished don’t deserve the nuclear sanction of an unenforceable patent.

    It often will happen that violating PTO rules can lead to a finding of IC, but that’s only because the rules are intended to prevent the bad behavior that IC is intended to punish. IOW, the goal of the doctrine is to deter fraud and malfeasance by applicants (broadly defined), with the ultimate goal that thereby it is more likely than otherwise that issued patents are valid and thus do not unfairly rob the public.

  97. 68

    Anon I don’t want to take the time to explain the nuances of patent practice to you. Best o’luck toyou in the future.

  98. 67

    Reexamination exists to weed out the truly invalid patents.

    You’re confusing invalid patents with people doing bad things again.

    They’re different. We want to weed out invalid patents and we also want to weed out people doing bad things.

    Sure, the current system is broken, but the obvious fix is for the courts to start penalizing baseless pleadings (a decidedly un-American approach), and for the courts to start requiring applicants to exercise professional discretion in the number of references they disclose (which would not sit well with patent attorneys like NWPA who find thinking about 103 too hard).

  99. 66

    IANAE: The Feds need to look to the Supreme Court and the law of unclean hands. Not to the attempts at legislation by the executive branch.

    Almost everyone recognizes the current IC regime is broken. Only the most extreme thinks what we have is doing anything to help patent validity even while it drives up costs across the board. Reexamination exists to weed out the truly invalid patents.

    What did Goldwater say? “Extremism in the pursuit of justice is no vice?” He was wrong.

  100. 65

    but IF THEY DO, it MEANS that the PTO does not have now and NEVER had the power to legislate any duty of disclosure.

    And what would be the practical effect of that?

    why must it obey the 1977 version?

    Why can’t it choose to adopt the 1977 version? The 1977 version sounds a lot like what a duty of disclosure should be. All we need is the testimony of a reasonable examiner, but there’s probably one of those standing right next to the person of ordinary skill in the art.

  101. 64

    Mooney:

      “‘But the PTO cannot impose duties on you beyond what the statutes require and what equity would recognize as unclean hands.'”

      “It’s been a while since I’ve had the opportunity to ask this but how did it feel to beat that strawman? Did the straw make sort of a satisfying crinkly sound when you pounded it?”

    See the post above directed to your boss.

    Now, Malcolm, please explain this to me: if the PTO can legislate, how is it that the Feds can ignore and can continue to ignore the 1992 rule 56?

    And, arguendo, if it can ignore the 1992 version, why must it obey the 1977 version?

  102. 63

    IANAE, yes. They can choose to ignore the new rule, but IF THEY DO, it MEANS that the PTO does not have now and NEVER had the power to legislate any duty of disclosure. THIS should require an entire reset of the whole “duty of disclosure” regime flowing from the first Rule 56.

  103. 62

    Kenneth,

    What is interesting is that an inventor can file the Terminal Disclaimer even though the application has been assigned.

    What part of Rule 37 CFR § 3.71(a)’s “to the exclusion of either the inventive entity, or the assignee(s) previously entitled to conduct prosecution” do you not understand?

  104. 60

    “Pedantic Douche”

    Mooney, I can think of no better moniker for you… except perhaps with a “bag” thrown in.

  105. 58

    Anon you appear to having difficulty with abstract thought processes. Let me draw pictures, shall we say-metaphorically speaking of course. If an assignee files a documents at the beginning of the case, let’s say the Power of Attorney and then the issue arises concerning a Terminal Disclaimer. A practice which many of my colleagues undertake is to have the assignee file the Terminal Disclaimer, instead of the practitioner. In order for the Assignee to file the Terminal Disclaimer, ownership must be proved, again. It matters not that the assignee has already made a filing in the case. What is interesting is that an inventor can file the Terminal Disclaimer even though the application has been assigned. However, if the practitioner does not represent the inventor, but the assignee, this can prove problematic, especially were the assignee to subsequently disagree with the filing of the Terminal Disclaimer. The same situation can arise were the practitioner to file the Terminal Disclaimer under their own signature. However, by having the assignee file the Terminal Disclaimer with the USPTO it become clear that the assignee agrees with the filing of the same. The only issue that remains from a malpractice concern is whether the practitioner provided sufficient information to the assignee’s representatve so that the assignee could understand the consequences of the filing of the Terminal Disclaimer.

    So there you have it Anon. If you file a Terminal Disclaimer with the Assignee’s signature and fail to demonstrate ownership using 3.73(b), then the Terminal Disclaimer will be returned. However, this is the least of a practitioner’s concern. What is more important is to avoid malpractice by surrending term without having evidence that the Assignee agreed to the surrender of term.

    By the way, the Assignment is only evidence of ownership. Recordation is only notice to a subsequent purchasers of the rights of the patent so that the subsequent purchaser cannot be said to be an innocent purchaser. It is analogous to the notice jursidictions with respect to Real Property Law. That is another issue and I don’t think that you are a lawyer so I won’t hurt your brain with that discussion.

  106. 57

    Ned: So, the PTO cannot by rule impose a duty on the public to disclose anything beyond what the statutes and the courts require.

    Oh, the courts can impose a duty on applicants now? And the courts have equitable jurisdiction?

    Great. So the courts can look at the old PTO rule, and say to themselves “that seems a reasonable thing to require applicants to disclose in the interests of equity”, and the courts can just as easily look at the new PTO rule, shrug their shoulders, and say “we liked the old rule better, and you can’t tell us what to do”.

    That’s consistent with your thesis, isn’t it, Ned?

  107. 56

    Newman is one of the few the justices on the CAFC that has a real grasp on the realities of the practice of patent law.

    Let’s hope she and Rader figure out a way for the Moore[ons] of the CAFC to use abstract to narrow 101.

  108. 55

    Malcolm,

    Your comments about “pedantic douche” and “projecting” must have been preemptive strikes, since the only one acting out here, calling people whom they don’t know names , being smarmy and a general A-hol;e is you. Maybe you were just born like that.

    I’ve taken the facts that you provided. I have applied the rule. Clearly, the match up between facts and rule is not so bizarre, is it?

    Now let’s throw a little policy into the mix: Malcolm says “inequitable conduct doctrine is about punishing those who disobey the PTO’s rules with respect to disclosure of material information. So let’s look at the facts and rule – How bizarre, they are still the same. Does the licensee fit both prongs of the rule? Yes. Is there something more to the rule that would keep the rule from being applied as I have done? No.

    Perhaps the policy driver here is for applicants to NOT cede control over an application to someone who would stand to gain by bad behavior. Maybe the policy lesson is that applicants should be more careful about what happens during prosecution because the consequences are clearly spelled out.

    As to what you perceive to be a Douche comment, it is not. Obviously you lack any experience putting deals together, otherwise you would be aware that any item is negotiable.

    Now with Kenneth C. Brooks, the irony and mistakes continue. Kenneth, you think that you are dealing with amateurs, and yet you believe that “Each time an assignee seeks to take action in the case the assignee must prove ownership. The inventor is always presumed to be the owner.” Your boorish manner prompts me not to cut you any slack – I asked you to re-read what I posted and like an amateur, you did not. You say that each time the assignee wants to act in the case (same assignee in a single case), you need to prove ownership. I say establishment of proper ownership need happen but once, and once of record, the assignee is involved in the prosecution of the application.

    Kenneth, you use the MPEP like an amateur – what does establishment (singular – not continual or repeated) of ownership mean? As I mentioned – the proper establishment has to happen but once, Note the verb tense and note that the section you yourself quote does not say that each time ownership must be established again. Establishing ownership happens at one time and that is enough.

    Since you have been registered almost 16 years, one might think that you might check the Rules and not just the MPEP. In fact, I would daresay that you should have checked the Rules, as in 37 CFR § 3.71(a) “Prosecution by assignee: Patents – conducting of prosecution. One or more assignees as defined in paragraph (b) of this section may, after becoming of record pursuant to paragraph (c) of this section, conduct prosecution of a national patent application or a reexamination proceeding to the exclusion of either the inventive entity, or the assignee(s) previously entitled to conduct prosecution.”

    That’s right Kenneth C. Brooks, an assignee becomes of record only once, and not as you stated “ Each time the assignee seeks to act it must file another 3.73(b) and support documents.

    If your clients read this blog, I would suggest to them that they seek refunds of any effort and filing fees that you have erroneously made them pay for any such multiple establishments and becomings of record. In fact, I would recommend that you offer to your overcharged clients a reimbursement instead of waiting for them to stumble across your ineptitude. That may be the professional thing to do. Amateurs, indeed.

  109. 54

    Newman is one of the few the justices on the CAFC that has a real grasp on the realities of the practice of patent law.

  110. 53

    But the PTO cannot impose duties on you beyond what the statutes require and what equity would recognize as unclean hands.

    It’s been a while since I’ve had the opportunity to ask this but how did it feel to beat that strawman? Did the straw make sort of a satisfying crinkly sound when you pounded it?

  111. 52

    No, actually Mooney, a violation of a rule has no effect. If the patent is valid, it is valid. If you cheated, the problem is “unclean hands.” But the PTO cannot impose duties on you beyond what the statutes require and what equity would recognize as unclean hands.

    So, the PTO cannot by rule impose a duty on the public to disclose anything beyond what the statutes and the courts require.

  112. 51

    However, no rule of any executive agency has any power over any citizen absent the citizen availing themselves of the executive ageny’s authority, i.e., participates in the activity over which the agency has authority. Herein lies the difference between Federal Law and Federal Code.

  113. 50

    The PTO has no substantive authority. Violation of its rules cannot have effect after the patent issues.

    Except for when violating PTO rules does have an effect, as is the case for violations of Rule 56, laches, etc.

    Thanks for playing, Ned.

  114. 49

    You boys better do your homework. I feel more confident than ever that I have been communicating with amateurs.

    MPEP 324

    (c) For patent matters only:

    (1) Establishment of ownership by the assignee must be submitted prior to, or at the same time as, the paper requesting or taking action is submitted.

    (2) If the submission under this section is by an assignee of less than the entire right, title and interest, such assignee must indicate the extent (by percentage) of its ownership interest, or the Office may refuse to accept the submission as an establishment of ownership.

  115. 48

    Mooney declares with utmost vehemence that IC is about ” punishing those who disobey the PTO’s rules with respect to disclosure of material information.”

    The PTO has no substantive authority. Violation of its rules cannot have effect after the patent issues. That, meine freunden, ist der law.

    But, since we all acknowledge that Rule 56 does have such an effect, it is per se ultra vires.

    The Fed. Cir. is now struggling with the change in the rule from ’77 to ’92. Just how can the PTO change the legal obligations of a patent applicant such that failure to follow them effectively renders a patent invalid (unenforceable) even if it is not invalid under the statutes? This should be impossible. But it happened. So the Feds. have to answer the question, did they get it wrong when it gave substantive effect to Rule 56 in 1977?

    Clearly it did.

  116. 47

    Just to be clear: inequitable conduct doctrine is about punishing those who disobey the PTO’s rules with respect to disclosure of material information. The goal of the doctrine is to increase the number of participants who follow the rules and prevent rights from being asserted those who obtained those rights without following the rules. That is the “policy” I’m referring to. So again I ask Anon: what policy goal is achieved by rendering the patent in my hypo unenforceable?

  117. 46

    And make sure that your answer is policy driven.

    Gee, reminds me of the other supposed Malcolm sockpuppet and the desire for policy drivers.

    This lets me be me in that special scholarly way of me quoting me:

    If the law is not on your side, argue the facts.

    If the facts are not on your side, argue the law.

    If you have neither law nor facts on your side, argue policy

  118. 45

    If my answers to your hypothetical were not enough, why do you want more answers?

    Your answers were bizarre so I thought you’d like to explain yourself. Again: what policy goal is achieved by rendering the patent in my hypo unenforceable?

    I think that you should explain yourself first

    I was born. There you are.

  119. 44

    I have had some actually substantive discussions with

    Ned, you forgot to announce “It’s opposite day!”

    Ned… forget… My how those words so easily go together.

  120. 43

    ping, actually, I have had some actually substantive discussions with Malcolm What I think is that he does not treat fools lightly. But I have listened to what he has to say because he normally has a good reason for saying it.

    Ditto 6.

  121. 42

    Anon,

    KCB has no clue about patent law and is not worth engaging.

    NWPA is right in that Malcolm runs this board as he sees fit. In fact, “Pedantic Douche, Esq.” is a rather high compliment and means that you have effectively neutralized one of Malcolm’s prized possessions – the trick hypothetical.

    Also, asking for a straight answer from Malcolm is like asking me for an answer – Homey don’t do that. Whle, I will offer observations from time to time, all you can expect from Malcolm is name calling and more questions. Get used to it.

  122. 41

    Kenneth C. Brooks,

    If you are filling out and filing a new 3.73(b) for each action following your initial filing of such a document, you are over-charging your clients and owe theme a refund. The chain of title only needs to be changed once per change of ownership. Your comment that “The presumption is maintained until rebutted. does not make sense. What do you think the filing of the 3.73(b) form and its supporting documents do?

    Malcolm,

    I answered your questions up to the time you decided that name-calling was all that you needed. If my answers to your hypothetical were not enough, why do you want more answers? I think that you should explain yourself first before a second round of questions are to be answered.

  123. 40

    >>Is that all that you got? Name calling and >>mere assertions that I am wrong – really? It >>is clear that you have never brokered a deal >>that involves intellectual property rights.

    Welcome to Mr. Mooney’s board.

  124. 39

    No Anon, you are incorrect. Each time an assignee seeks to take action in the case the assignee must prove ownership. The inventor is always presumed to be the owner. Each time the assignee seeks to act it must file another 3.73(b) and support documents. That is what I mean when I say you do not understand the system or the laws. The presumption is maintained until rebutted. However, if the assignee seeks to act again, the presumption is present and must be rebutted again.

  125. 38

    Is that all that you got?

    All I need, really.

    Name calling and mere assertions that I am wrong – really?

    You’re projecting. I asked you a couple of questions. Try answering them.

    It is clear that you have never brokered a deal that involves intellectual property rights.

    If you say so. Answer the questions. 9:39 pm. Upthread.

  126. 37

    Mr. Mooney,

    Is that all that you got? Name calling and mere assertions that I am wrong – really? It is clear that you have never brokered a deal that involves intellectual property rights. Try a little substantive reasoning with your ad hominem attacks.

    Kenneth C. Brooks – we are talking the same thing with form 3.73(b) and supporting documents. Once that happens, the corporation indeed is the patent owner and my position holds. Re-read what I have posted.

  127. 36

    Wonderful article,thanks for putting this together! “This is obviously one great post. Thanks for the valuable information and insights you have so provided here.

    Keep it up!”

  128. 35

    Anon you are wrong on so many levels that it is not worth discussing with you. Suffice it to say that the only way an assignee that is not an inventor can file docuemnts with the USPTO is by showing their ownership rights, i.e., the filing of a Form 3.73(b) with supporting documents. Inventors are presumed to be the owners of the patent, even if assigned. Thus, when a prosecutor files a paper with the USPTO and has not recieved a power of attorney from an assignee they are presumed to be acting on behalf of the inventor. This raises interesting ethical issues that are of no import on the issues we discuss.

  129. 34

    Thanks Ned Heller.

    As per usual Newman has the better of the position. Certainly to the limited point of law she is making.

    The slow creeping triumph of the administrative state uber allis.

    Brussels here we come.

  130. 33

    Oh, and I forgot to add, Anon: I think you’re miserably off base on the result. Do you understand what the purpose of IC is? What policy objective is achieved by punishing the patent owner under the circumstances I described?

  131. 32

    Q5: “Would you license an application if you weren’t allowed to be involved in its prosecution??”

    A definite maybe, depending on the value/price trade-off of this item.

    I discovered Anon’s true identity: Pedantic Douche, Esq.

  132. 31

    Cy Nical, read Dairy Queen with the assumption that the materiality of a non disclosed reference is a common issue of fact between IC and Validity.

    Once you have, let’s discuss.

  133. 30

    TJ: “The Supreme Court has never held unenforceable any patent for failure to disclose anything.”

    Ned, that is just wrong. See Precision Instrument Mfg. Co. v. Automotive Co., 324 U.S. 806 (1945) (failure to disclose opposing party misconduct in interference proceeding leads to unenforceability).”

    True. But I have limited my remark consistently to one thing and one thing only: non disclosure of references. When one gets beyond that into active fraud, all bets are off.

  134. 29

    Malcolm,

    Thanks for the clarification.

    Now viewing the hypothetical and understanding that the signature is at least in more than a minor part dependent on the licensee (I am taking the somewhat nebulous “entitled to sign-off” phrase as requiring input and blocking power), I’ll offer my views on your four questions:

    Q1: “Is the following person a person under 1.56(c)(3) per se?

    A rather odd question, throwing a “per se” in with specific facts, so my answer is likewise a bit odd: No and Yes. No, in that an ordinary licensee, without more, is not a person falling under 1.56(c)(3), and Yes, given the base facts (as inherent), such a licensee is a person falling under 1.56(c)(3), given that the two prongs (association and substantive involvement) are both met.

    Q2: “What is the likely fate of a patent…?

    The likely fate of the patent is that the patent will be held unenforceable.

    Q3: “Does the fate change…?

    The fate does not change – as there is no modifier to the law based on the role of the perpetrator other than what is written (association and substantive involvement).

    Q4:”What if it is proven…?

    Still no change as such a condition has no impact under the law as written. This is not saying that the applicant/licensor would be foreclosed from pursuing other avenues for equitable relief (e.g. contract law and operating under bad faith).

    And your new question:

    Q5: “Would you license an application if you weren’t allowed to be involved in its prosecution??

    A definite maybe, depending on the value/price trade-off of this item.

  135. 28

    anon Prosecutor Mooney, you need to clarify your hypothetical.

    Given that we are to assume that no inventors associated with the licensee and given that the assignee’s agent did all the filing, how exactly was the licensee substantively involved in the prosecution?

    The terms of the license are such that the licensee must be consulted about prosecution strategy, is entitled to review and sign-off on papers filed with the office, etc. Not an unusual set-up. Would you license an application if you weren’t allowed to be involved in its prosecution??

  136. 27

    “The Supreme Court has never held unenforceable any patent for failure to disclose anything.”

    Ned, that is just wrong. See Precision Instrument Mfg. Co. v. Automotive Co., 324 U.S. 806 (1945) (failure to disclose opposing party misconduct in interference proceeding leads to unenforceability).

  137. 26

    Kenneth C. Brooks,

    I find it both amusing and ironic that you choose to correct me and do not know my background. I have worked intimately with C-level executives across a number of types of business organizations, from start-ups to multi-million dollar established companies.

    You start your post in error and continue in error. Do you not realize that corporations can have duties related to 37 CFR 1.56 and that your use of “human” in relation to who may file is misleading, as corporations can own both patents and applications. Further, once a complete assignment has been made, the corporation not only can, but must take part in the prosecution.

  138. 25

    the federal circuit also is getting pretty close to declaring different standards for fraud on the USPTO depending on whether you are prosecuting a trademark application under the lanham act (see bose corp., 2009: “knowingly intended”) or a patent application under the patent act (“should have known”- a negligence standard). Is that what Congress intended? doubt it.

  139. 24

    Anon you have no understanding of the corporate structure. The CEO operates as a representative of the corporate entity. The corporation has no duty pursuant to 37 CFR 1.56. Moreover, patents may be filed only by humans. Absent the filing of a 3.73(b) document in furtherance of prosecuting the patent application it cannot be said that the assignee took part in the prosecution.

  140. 23

    Malcolm,

    You could be right that we won’t need a Ouija board for Therasense (shudder). We’ll just have to see what happens.

  141. 22

    Now, mein herr, do you begin to get it?

    Oh, I get it, Ned. You’re denying that the courts have any equitable jurisdiction that extends beyond adjudication of compliance with rule 56. And you’re apparently saying that the Supreme Court’s discussion of the duty of candor is fully codified in the 1992 version of that rule. I agree completely that if we disregard the court’s inherent equitable powers, then the prevailing inequitable conduct jurisprudence is unconstitutional.

    How come Judge Newman doesn’t play the “unconstitutional” card? I happen to agree with you that the current law is screwed up, but not because it’s unconstitutional. Well, except for that 13th amendment problem. We simply can’t have anyone enslaving CEOs.

  142. 21

    You be the judge.

    Prosecutor Mooney, you need to clarify your hypothetical.

    Given that we are to assume that no inventors associated with the licensee and given that the assignee’s agent did all the filing, how exactly was the licensee substantively involved in the prosecution?

    @me
    It cannot be said…that the CEO agreed to the duty
    Yes, it can be said. The CEO is an officer of the company and the company agreed to the duty when it pursued the patent. When one decides to play the game, one invites oneself to play by the rules of the game.

  143. 19

    After reading the decision it is manifest that the Judges failed to entertain the constitutional limits of Congressional authority. Rule 1.56 can only apply to individuals upon whom have agreed to avail themselves of the regulations of the USPTO. This CEO clearly has not. This is a case that must go to the Supreme Court. I have never seen such an egegrious violation of one of the most sacrid rights held by the American people. The war that resulted in the Thirteenth Amendment was long and bloody. The U.S. sufferred more casualties in that war than all of the remaining wars in which we have fought. To assume that such a duty exists without entertaining the Constitutional boundaries of 37 CFR 1.56 as defined by the 13th Amendment in this case is a travesty.

  144. 18

    Alright gentlemen. Here is where I cash-in my chips. I draw your attention to the following text:

    Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
    Section 2. Congress shall have power to enforce this article by appropriate legislation.

    The operative word is involuntary servitude. How can the Federal Government impose a duty upon the CEO, without his agreement? The text is plain on its face . . . without an underlying conviction for a crime . . . they cannot. Without the duty being lawfully imposed there is authority for the Federal Courts to invalidate a patent.

    It cannot be said that my officious intermeddling that the CEO agreed to the duty, because the CEO has a fundamental First Amendment right to express his opinion upon material he has read.

    Can someone explain the authority under which Congress could impose a duty upon the CEO?

  145. 17

    One told me I could not have this and that. but the very well written ghost gave me what I wanted. I was elated. Why was I told otherwise NED! Elementery my dear Watson. I got what was real.But the BOSS wanted my real!

  146. 16

    If you looked at the Copyrights and what was in the Ghost NED you would get it. I had a very well written GHOST. BUT I DID NOT KNOW I HAD A GHOST!!!!!!!!!!!!!!!!!!!!!

  147. 15

    Cy Nical, Mein Gott in Himmel! We really have to take it slow here.

    1) The Supreme Court has never held unenforceable any patent for failure to disclose anything. They have held unenforceable patents for false swearing by inventors that they are an inventor when they knew they were not. See, US v. American Bell.

    2) The requirement of a oath is set forth in 35 USC 115.

    3) The Supreme Court has said that applicants have a duty of candor. This means they cannot misrepresent any fact or argue in a less than candid way.

    4) The PTO does not have substantive authority. However, in the 1977 Rule 56, it extended Bell holding and the duty of candor into a duty to disclose “material” information under the “important to a reasonable examiner standard.” This duty of disclosure has operated substantively and as such is ultra vires.

    5) Recognizing its error, the PTO changed the rule in ’92 to define “materiality” in terms of “patentability.” Patentability and validity mean essentially the same thing, one for the PTO, one for the courts.

    6) As Newman stated, under the new rule, a claim that is not invalid over art is not unpatentable over that same art thereby legally deciding that the art is not material under the ’92 standard.

    7) The Feds have never followed the new rule.

    8) Under Beacon Theaters, when equity and law have common issues, the law issues must be tried to the jury first. The issues common to IC and validity are materiality of references under Supreme Court authority, Section 115, and the ’92 Rule 56.

    9) The 7th Amendment also states that once an issue of fact is decided by a jury, it cannot be reconsidered by a court. But that is exactly what is done when a court decides a reference is material when a jury has decided it is not.

    Now, mein herr, do you begin to get it?

  148. 14

    Newman’s dissent and this quote is spot on: “As applied to Avid, it is grievously unjust to eradicate this patent on grounds that may soon be changed by the en banc court [in Therasense].” I guess it’s time to get out our Ouija boards.

    Given that Newman was the only one who dissented here, perhaps a Ouija board isn’t necessary to determine the outcome in Therasense.

  149. 13

    I thought, given the grant of rehearing en banc in Therasense which involves the same questions, including what is the standard for “materiality” for IC, that the Federal Circuit might have included Avid Identification, but all but Judge Newman thought otherwise.

    Newman’s dissent and this quote is spot on: “As applied to Avid, it is grievously unjust to eradicate this patent on grounds that may soon be changed by the en banc court [in Therasense].” I guess it’s time to get out our Ouija boards.

  150. 12

    You be the judge.

    Is the following a person a person under 1.56(c)(3) per se: a licensee who is subsantively involved with the prosecution of the licensed patent.

    If so, what is the likely fate of a patent under the following fact pattern: licensee withholds information that is the closest material and non-cumulative art without knowledge of patent assignee’s agent (who does all the filing); licensee terminates license some time after patent issues; assignee learns for first time of the withholding of information during litigation?

    Does the likely fate change if the defendant in the case is the former licensee? What if it is proven that the licensee withheld the information solely for the purpose of providing it with an unenforceability defense?

    Assume no inventors are associated with the licensee and that the patent is valid over the withheld information.

  151. 9

    D@mn, now I’ve made it worse. OK, in the preceding post, the phrase “I, ping, and countless others” does not mean “I (ping) and countless others.” Rather, it means “I and ping and countless others.” Furthermore, the last sentence means “Ping – I am sorry about that,” not “Sorry about that, (signed) ping.”

  152. 8

    I realize belatedly that I’ve now confirmed for the tinfoil hats that I, ping, and countless others are the same. Sorry about that, ping.

  153. 7

    ping, you really need an education.

    Maybe, Ned, but you may want to think a little harder about your “unconstitutional” theory.

    Non-obviousness is a legal conclusion, based on questions of fact, that goes to whether certain claimed subject matter is patentable.

    Unenforceability by virtue of inequitable conduct is a completely distinct equitable issue that has nothing to do with patentability.

    There is nothing remotely unconstituional about one legal (or equitable) conclusion “nullifying” the effect of another.

  154. 4

    Avid needs to petition the Supremes here and point out the potential unconstitutionality of the Fed. Cir.’s current IC jurisprudence regarding finding IC where a jury had held the claims not invalid over the reference. This amounts to jury nullification by a court.

  155. 2

    Jason, thanks for the quick post.

    All, I already made a few comments in the Leviton thread.

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