By Jason Rantanen
This morning the Supreme Court granted certiorari in Already, LLC dba Yums v. Nike, Inc., No. 11-982, an appeal carrying the potential for profound implications for patent law. The question presented asks:
Whether a federal district court is divested of Article III jurisdiction over a party’s challenge to the validity of a federally registered trademark if the registrant promises not to assert its mark against the party’s then-existing commercial activities.
The Petition focused on a split between the Second and Ninth Circuit, but similar disagreements have simmered in the Federal Circuit. Under controlling Federal Circuit precedent, it has long been the law that a patent holder can divest a federal court of Article III jurisdiction over the defendant's counterclaim for a declaratory judgment of patent invalidity by promising not to sue. See Super Sack Mfg. Corp. v. Chase Packaging Corp., 57 F.3d 1054, 1059-60 (Fed. Cir. 1995). A subsequent dissent by Judge Dyk, however, urged the abandonment of the Super Sack rule. See Benitec Australia, Ltd. v. Nucleonics, Inc., 497 F.3d 1340, 1350-55 (Fed. Cir. 2007) (Dyk, J., dissenting).
Should the Court agree with Petitioners, it thus would very likely spell the end of the so-called Super Sack covenant, making it harder for patent holders to withdraw their patents once placed into litigation.
Notes:
- Prior PatentlyO commentary on this case: https://patentlyo.com/patent/2012/04/supreme-court-looks-to-take-trademark-standing-case-following-covenant-not-to-sue.html
- Counsel for the parties is the same as in KSR v. Teleflex, with James Dabney and John Duffy representing the Petitioner and Tom Goldstein representing Respondent Nike.
- Professor Duffy provided me with copies of the parties briefs:
- The Second Circuit opinion: Nike, Inc. v. Already, LLC, 663 F.3d 89 (2nd Cir. 2011)(Lohier, J.)
He absolutely can make a particle? What planet have you been living on. The particles are made by smashing together other particles.
What is your definition of make?
More importantly the OP was highlighting the ludicrousness of MM’s opinions on what should and should not be patentable. So your rant is beside the point.
No matter how you feel about this rule I believe we can all agree that if Super Sack is overruled we will lose one of the more fun case names to cite.
If God made the Trees. Does that mean we can’t make a bookshelf?
The problem is Ode to NAL that nothing makes them go away. We have had the same set of trolls on this board for years. NAL humilitated MM over and over again. Many on here ignore the trolls. Nothing really works.
I suspect given the amount of time they spend on this board that the trolls aren’t real practicing people, but rather are being paid directly or in-directly for their posts.
Some, of course, are just narrow minded people that have no regard for the law or civilization.
But I do miss NAL. She was a marvelous person to have around. MM has been running rough shot over this board since she left. And the IANAE types consistently get away with nonsense.
“Man can’t make a particle. That would make man God!”
Also, man can’t create new species of plants or animals, or cure diseases.
“Merely combing particles that have already existed is not creating particles!!!!”
It is if it results in a new particle. Combining two atoms that have already existed can create a new atom, which would be perfectly patentable without naming “god” as an inventor.
Also, it’s painfully clear you have no idea what goes on in a particle accelerator. Do you think they somehow stick two protons together in a particular way and the combination magically looks like a Higgs? Do you think a Higgs has two protons inside?
“Are you suggesting that man cannot make matter from energy? ”
All matter is made up of particles.
Man can’t make a particle, PERIOD.
If you ( man ) didn’t make it.
You ( man) can’t get a patent on it.
That is the issue.
Now deal with it or be dealt with.
The choice is yours.
Are you suggesting that man cannot make matter from energy? If we can, are we gods? But we are not gods, are we? And, it therefor follows that if we cannot be gods, we cannot make matter, right? Thus, if someone claims to have made matter from energy, he is lying….
I understand your dogma.
And this! is the so-called "product of nature" exception? It denies that man can make that which god can and has already made, because that would make us gods and that cannot be.
You obviously have no idea what the “high rates of speed” are for.
The process is patentable. Just like any recipe.
“But again, the particles were merely discovered by man, and they were NOT created by man.”
You obviously have no idea what the “high rates of speed” are for.
“A patent on the boson would protect against others making bosons for a limited time.”
OMG! Stop this non sense. Man can’t make a particle. That would make man God!
If man can make a particle, then please tell me WHO made the first particle?
Merely combing particles that have already existed is not creating particles!!!!
If you don’t know physics then please use logic.
If you that fails try using common sense!
Man can’t make a particle. The ingredients, required, primarily other particles, were made by God/nature. Man can combine, split, and collide particles. And that is what the LHC was made to do. You can’t just observe particles like leaves blowing in the wind. The purpose of the LHC was to find/discover and observe particles theorized to exist. Man can name the particles. But man can no more make a particle than a farmer can make any crop. Colliding particles at high rates of speed may make it possible to observe particles that had previously been undetected. But again, the particles were merely discovered by man, and they were NOT created by man. So yes the researches did find them and yes they where just metaphorically lying around in nature. This is really rudimentary physics that any freshman in college should know. You have embarrassed yourself by stating such foolishness as if it were fact.
suckie the constant stream of points and law being made that says otherwise
There is definitely a “constant stream” coming from you, suckie, but it’s not a stream of “points and law”.
“1. A Higgs Boson.”
No worse than “Element 95”.
Then:
1. A Higgs Boson.
?
“more and more, these thread illustrate there really is no product of nature exception”
By “more and more” if you mean to say that clenching your eyes really tight, sticking your fingers in your ears and chanting “trolls, trolls, trolls,” while ignoring the constant stream of points and law being made that says otherwise, then sure, I guess there is really is no product of nature exception.
/off sarcasm.
“1. A boson.”
Bosons are both naturally occurring and well known. You’re looking at some right now.
Oh, one more thought. Would the following claim be execessive in length?
1. A boson.
IANAE, more and more, these thread illustrate there really is no product of nature exception. There is a prior art exception, period.
A patent on the boson would protect against others making bosons for a limited time. Small benefit in exchange for billions in R&D to make the first one.
“the physicist that found the new particle should be able to get a patent on it right?”
They didn’t find the Higgs, they made it. By combining a proton and an antiproton, kinda. It’s the first specimen ever confirmed to exist.
If they could be found lying around in nature, nobody would have put all that money into a giant particle accelerator that essentially has no other purpose.
If you want to apply a product of nature exception to the Higgs boson, you need to explain what exactly this exception entails. Because a Higgs boson has never been detected that did not owe its existence to the metaphorical hand of man.
“Please define “the commons” suckie.”
Please see AND READ the very post you provided for the Office guidance in the (fiery) light of Prometheus.
Well ..at least according to the theory of Ned and MM the physicist that found the new particle should be able to get a patent on it right? Especially since according to them there is no product of nature exception.
suckie figured out how you can avoid claiming the commons
Please define “the commons” suckie.
“This ridiculous non-sequitur was addressed weeks ago but suckie keeps trolling.”
Weren’t you told not to address things in your head since no one can make any sense of what goes on in there?
Weren’t you told it’s not opposite day and your use of ridiculous and non-sequitur does not apply?
Did you the reposting of my questions? Did you not see that someone even provided the dates tamp so that you would not lose your way?
Are you finally going to answer my simple questions?
Shill: “how you can avoid claiming the commons,”
You’d understand if you understood the difference between “having” and infringement. Still not answering, I see.
MM,
You have your hands already full not answering “the questions put to you,” and you really don’t want a piece of me, anyway.
Come back when you have filled the holes in your arguments and figured out how you can avoid claiming the commons, and then we can chat. We can even chat about this suckie fetish thing you got going on.
suckie The underlying question to the question on enforcement is how do you distinguish the claimed item from the item from nature which belongs to the commons.
This ridiculous non-sequitur was addressed weeks ago but suckie keeps trolling.
The best part is that the non-sequitur shows that suckie has the intellectual capacity (theoreticaly, anyway) to recognize the far more relevant issue which is the logical absurdity that results from the ill-defined “product of nature” tests that suckie has been throwing around here.
Seriously, suckie, if your starting position is that one can’t distinguish a “product of nature” (care to define the term, suckie? please oblige us) from a “man-made product”, then I guess all composition claims are unenforceable on your patent.
You say that I’m infringing? No, I’m not. I’m just selling “products of nature”. And you can’t prove that I’m not. After all, it’s impossible to distinguish “products of nature” from “man-made products.” So it goes in suckie’s world.
Then toss in the added twist that suckie has previously sought to define a “product of nature” as any composition that *could* be made “by nature”, whether in fact it is actually made “by nature” or not. Your novel box with an array of openings on one side? Those openings *could* be made by termites without the willful interference of man. So: not eligible for patenting.
Welcome to Suckie’s World. It’s a strange place. One could almost imagine living there except that it smells like suckie. Not good, especially on a hot afternoon.
You run smack into the tree while saying “Wow, look at the forest.”
Imagined product of nature exclusion? Oh, it is much more than “imagined.”
You need to rest after that long hike down thosw tower steps.
“Since the topic was enforcement, the question was already focused.”
Since the topic was enforcement, make out the facts for infringement. I think you’ll find them enlightening on the subject of your imagined “product of nature” exclusion.
Would I sue someone who was infringing? Yes. Do you know what infringing means? Let’s see.
LOLZ at the flailing troll.
Since the topic was enforcement, the question was already focused.
It appears that walking up and down those tower steps is taking the wind from you and preventing you from thinking straight.
Perhaps you should look into teaching a summer class to keep yourself occupied.
“You do realize that the the warehouse of nature exclusion is more than mere “have” or “hold,” right?”
Well then, wouldn’t a more focused question be in order? At least make out the fact of infringement before asking me whether I’d sue on the patent.
“Of course not. Merely having an item is not an act of infringement.”
Recycling your straw now IANAE? You do realize that the the warehouse of nature exclusion is more than mere “have” or “hold,” right?
I have already pointed this out to you. Your trolling is sub-par.
Shill: “You going to sue someone who has the item that happens to be from nature?”
Of course not. Merely having an item is not an act of infringement.
Would you like to rephrase your question?
Shill: “The underlying question to the question on enforcement is how do you distinguish the claimed item from the item from nature which belongs to the commons.”
Suppose you have a patent on something not found in nature, and it’s licensed to all but one of your market competitors. The market is flooded with them. How do you distinguish the infringing article made by the unlicensed competitor from the licensed article which belongs to the commons? As a practical matter, is the patent enforceable?
Back to the tower with you IANAE.
You going to sue someone who has the item that happens to be from nature?
The underlying question to the question on enforcement is how do you distinguish the claimed item from the item from nature which belongs to the commons.
You realize of course that you have effectively given someone a patent over nature, right?
“The question remains: how do you enforce?”
The answer remains: you identify a person who is infringing, and sue him.
What kind of answer is “Ditto?”
“Ditto” is Ned’s view of a substantive answer.
Completely meaningless, but that’s how Ned rolls.
“you sir are a abusive, would-be bully”
Perhaps, but The Source is a correct abusive, would-be bully.
Ned, you are going backwards and you are repeating arguments already defeated.
They didn’t work the first time around and they don’t work this time.
“you cannot ignore the plain meaning of decisions”
You are new here right? Ned’s speciality is ignoring portions of law that do not fit his agenda.
“This thread at Jun 28, 2012 at 03:34 PM”
Asked and unanswered.
Anytime you want to prove that you are not a “d–chebag and a troll”
Impossible. MM is a “d–chebag and a troll.”
“Please introduce whatever caveats you deem necessary to avoid this outcome, if you perceive the outcome to be undesirable. If you believe the outcome is desirable, please explain why”
Asked and answered.
“But the identical composition was equally indisputably ‘made by nature” afterwards’ ”
The question remains: how do you enforce?
“But the identical composition was equally indisputably ‘made by nature” afterwards‘ ”
The question remains: how do you enforce?
“I engage in substantive discussions and do my best to be respectful.”
Ned engages in substantive running away from questions and does his best to be respectful to his side of the GD war.
Fixed.
Because only method claims can invoke a 101 analysis, right?
[eyeroll]
Accidental production.
Fresh straw!
ALL,…
…except the most important ones like Chakrabarty, Benson, Flook, Diehr, Bilski, and Prometheus, that is.
Fix italics.
Fix italics.
italics fix.
Italics fix.
“7, water is not a law of nature, it is a composition of matter, per se patentable subject matter under 101. The problem is that water is known.”
Ned I have considered your points and addressed your evidence in a calm and courteous manner. In return you completely blew off everything I posted at Jul 02, 2012 at 08:46 PM and just repeated your original argument without providing any evidence or support for it. What arrogance! Now I know why people dislike you so much on this blog. What you have done is rude, disrespectful, and downright insulting. Just who the h e l l do you think you are?
100 times MM has posted on the Enhanced Damages and Supreme Court Grants Cert threads.
A full 90% of his posts contain inappropriate derogatory comments and slurs.
Ninety Percent.
Dennis Crouch, please do something.
Yes back then Patently O, was the leading and most respected blog on the internet. Filled with a diverse and healthy dialog among patent professionals and inventors. Court clerks and judges often read here and contributed in their own way.
Then Malcolm Mooney showed up. Followed by 6 and Ned Heller to complete the troll trifecta from h e ll. Collectively they make 90%, of the post and 99.9% of all personal attacks, and fallacious arguments. And the rest they say is history!
7, water is not a law of nature, it is a composition of matter, per se patentable subject matter under 101.
The problem is that water is known.
It sounds like the blog was a much more cerebrally entertaining place back then.
I regret missing it.
Ned,
It is quite clear that the Supreme Court does not agree with you. Every decision since Chakrabarty, in one way or another indicates that Products of Nature fall into the Natural Phenomena exlcusion of patent eligible subject matter.
I’ve enjoyed your historical digging, but when you dig you cannot ignore the plain meaning of decisions over the last 30+ years.
I see no misrepresantations or strawmen by those taking opposing views to you Ned.
It sounds like you are whining over losing the argument more than anything else.
Also, I will jointhose that question your sticking up for MM. I don’t know how accurate the stat was that flashed, but a quick count places him at least at that 90% figure for abusive responses.
There is no earthly reason for anyone to post so relentlessly with such little taste and decorum.
I will also join in those who post that answers are expected. This is a blog for sharing points of view. The unwillingness to give answers and backing to the legal views does more damage to those who refuse to give the answers. Basically, if you don’t want to give answers, then you shouldn’t bother posting in the first place.
Just my opinion.
I’m not sure its the lack of engaging in substantive discussions per se, but rather, it is the lack of engaging in substantive discussions when counter points are raised.
Ned, you are very particular about the points you address. The ones you choose not to are some of the most interesting ones.
You tend to “play it safe” and only talk about “substantive things” with those who tend to agree with you (a bit of a yes-man syndrome).
It really does not do anything to sharpen the cause you seem to be fighting for. Quite in fact, it weakens it substantially. It looks like you have no answers for the tough questions, and you repeat your argument basis at every opportunity. It smacks of overcompensation.
What kind of answer is “Ditto?”
I think Mz. Nature struck that chord first with “Such would earn you a censure in a professional context.”
You quite miss the point NH,
Is this case about anticipation?
I KNOW that it is not.
Well, is there a real difference when a composition of matter is being claimed? If the product was unknown and only accidentally produced, would there be an anticipation?
The courts have required an enabling disclosure for there to be anticipation. If the accidental production by an unknown process resulting in a composition that no one recognized for what it was, is there anticipation?
I doubt it.
“Mr. 7, water is a concept?”
Yes, but since we are dealing with Funk Bro now “manifestation” is the best choice of words.
“manifestation |ˌmanəfəˈstā sh ən; -ˌfesˈtā sh ən|
noun
an event, action, or object that clearly shows or embodies something, esp. a theory or an abstract idea : the first obvious manifestations of global warming. See note at sign .”
Ultimately, water is water. Now if “heat of the sun, electricity, “part of the storehouse of knowledge of all men.” ….and “They are manifestations of laws of nature, free to all men and reserved exclusively to none.”
Then certainly water, should be right up there with heat, sun, electricity etc. They are all All products of nature.
The sun makes heat.
Lighting makes electricity.
Rain makes water.
Thus water is not patentable.
Which ends the debate.
I engage in substantive discussions and do my best to be respectful.
You normally do not do both at the same time.
No. Malcolm and 6 engage in serious, substantive discussions all the time. They too resent people who troll here. They too resent the constant misrepresentations and strawman arguments used by the troll. What do you expect them to do?
Mr. Simple, you can suggest that I do not engage in substantive discussions all day long. There might be one or two readers of Patently-O who just might disagree with you a tad.
Mz. Nature, I can only hope you take your belligerence to court some day and berate a judge you disagree with. I'd really like to see what happens next.
MM responds by saying in part: “It has not gone unnoticed that you failed to answer a critical question I asked you. Or more accurately, you provided a non-answer.”
I have to say that MM you are plainly off your rocker. The ACLU’s answers to your questions were cogent, clear, on point, and quite easily anticipated and deflated your position, step by step.If that’s an example of a non-answer, it’s the g-d best “non-answer” I’ve ever seen and one that would carry the decision for sure. Defines the terms accurately, sets the law and even plugs the right policy.
The explanation is done in full and easy to understands terms, outlining the issues and cuts through all of the malarky and legal-ese. As the post indicates, any third grader can easily understand the issue and more importantly, the legal reolution to the issue. You could not have a more thoughtful explanation.
Given further the legal edification of what Prometheus did in fact lay out by MMaNCIBTwAL at 11:43 AM, I really see no need for caveats and the outcome fully comports with law.
What more could you ask for?
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