Preliminary Injunctions against Non-Parties

This is an interesting case on several levels. The most important portion appears to be something of an afterthought in the opinion. This seeming afterthought gives district courts authority to issue a preliminary injunction to block non-parties from distributing products believed to be infringing (and sourced from a defendant). And further, the opinion holds that non-party has no right to appeal the preliminary injunction decision even after being named as a defendant.

By Dennis Crouch

Aevoe v. AE Tech (Fed. Cir. 2013)

The usual process of appellate procedure is that interlocutory decisions by a district court judge are not appealable. Rather, the losing party must ordinarily wait until a final judgment ends the lawsuit before filing an appeal. This is an often frustrating rule – especially when the future appeal involves a questionable court decision early in the litigation.

One exception to the appellate final-judgment rule involves interlocutory judgments on motions for injunctive relief. The appellate jurisdictional statute provides for immediate jurisdiction over appeals from the "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions". 28 U.S.C. § 1292(a)(1).

In this case, Aevoe sued AE Tech in January 2012 and immediately moved for a preliminary injunction to stop AE Tech's sales of allegedly infringing touch-screen protectors. U.S. Patent No. 8,044,942. The court quickly granted the motion for preliminary relief and, although AE Tech had a right to immediately appeal that decision, it failed to file its notice of appeal within the 30 day deadline found in the Federal Rules of Appellate Procedure. Fed. R. App. Proc. 4(a)(1).

In May 2012, AE Tech indicated that it had redesigned its products and had begun to sell them once again. However, on motion, the district court found that the new products represented a failed attempt to design around the patents with only "trivial" and "nonfunctional" design changes and that the new product was not colorably different from the enjoined products and consequently held AE Tech in contempt. At that point, the district court also changed the language of the preliminary injunction order to add language blocking enjoining "colorable imitations" of the patent and to particularly call-out the redesigned product. AE Tech immediately appealed that change in the preliminary injunction as well as the contempt order.

On appeal, the Federal Circuit has dismissed the case – finding that it lacks appellate jurisdiction since (1) the minor change to the preliminary injunction order does not account as a decision "modifying" the order; (2) AE Tech had waived it right to appeal the original order; and (3) contempt decisions regarding preliminary injunctions are not immediately appealable.

The court's basic point here is that the new product line here was already covered by the original injunction language and it is not a "modification" of the injunction to particularly call-out that fact in the language of the injunction grant.

Put simply, whether "colorable imitations" were explicitly mentioned in the injunction language or not, such imitations fell within its scope; the district court was obligated to apply the colorable differences test in the contempt proceeding. Thus, the legal relationship between the parties was in no way altered by the court's changes to the injunction language. Neither the … addition of the "colorable imitation" language nor the explicit description of the actual redesign amount to a modification of the preliminary injunction upon which this court could predicate jurisdiction. . . .

The result here is that the lower court's opinion was one "interpreting an injunction" rather than "modifying an injunction" Since the jurisdictional statute (1292) does not provide for immediate appeals based upon a lower court interpretation or minor clarification.

Because the district court did not substantively modify the January 2012 injunction, AE Tech's appeal derives from a contempt order which is not an appealable interlocutory order. Because the contempt order is not appealable under 28 U.S.C. § 1292(a), this court does not have jurisdiction over AE Tech's appeal.

Enjoining a Non-Party: One issue in the case is that one defendant (S&F) was not joined as a defendant until March of 2012. The appellate court found that it was "beyond debate" that S&F was also "within the express language of the original injunction" since it applied to any party who had notice of the injunction and S&F had been put on notice. A critical feature of the opinion is the conclusion that S&F was in cahoots with AE Tech and thus could be enjoined under FED. R. CIV. P. 65(d)(2)(C) and avoid the ordinary rule that non-parties are not subject to court injunctions. Rule 65(d) allows injunctions against non-parties "who are in active concert or participation" with an enjoined party.

To be clear, the relationship between the original defendant (AE Tech) and prior non-party (S&F) appears to be that S&F was the sole distributer of AE Tech products retail market. The court writes:

AE Tech sold its allegedly infringing products directly to the S&F Defendants for distribution who, in turn, sold the AE Tech products in the marketplace. At the time of those transactions, the S&F Defendants had notice of the injunction, had been apprised of which products were enjoined, and informed Aevoe that they obtained the barred products solely from AE Tech. The S&F Defendants did not obtain the redesigned product from any entity other than AE Tech and AE Tech did not distribute those products through any other entity. Accordingly, by virtue of their distribution agreement, the S&F Defendants were "privies" of AE Tech, did not act independently of AE Tech, and were, thus, subject to the original injunction.

This decision appears to fall roughly in line with the Supreme Court's decision in Golden State Bottling Co., v. NLRB, 414 U.S. 168 (1973) where the court wrote that Rule 65(d) was a codification of common law that allowed injunctions against a non-party "bona fide purchaser, acquiring, with knowledge that the wrong remains unremedied."

142 thoughts on “Preliminary Injunctions against Non-Parties

  1. 142

    The name gives context

    What the H311 does that mean Ned? How is that any different than the name of ‘software’ gives context?

    Seriously Ned – you need to approach this with a lot more intlelectual honesty, as you are really flubbing badly here.

  2. 140

    Sorry Ned, but you are not correct. The problem here is that you are running away from answering my questions.

    Stop running.

  3. 136


    Do you require bullets to be claimed in context of the particular gun that shoots them?

    Do you require rivets to be claimed in context of the particular riveting mechanism that deforms them?

    Do you require tires to be claimed in context of the particular car that they will mounted on?

  4. 135


    Stop your merry-go-roound and your fallacioous attempt to equate software with “1.”

    I have answered this assertion repeatedly. You show pure dishonesty by pursuing it like it means anything.


  5. 134


    You are moving the goalposts now. Whoever limited software to ‘object code?’

    And you STILL have not addressed the fact that software IS copyrightable.

    Stop running.

  6. 131

    anon, the copyrightability of software has nothing to do with whether the code was compiled or not.  The law was written in a way that drew into question whether object code was copyrightable because one could not, from the object code, determine what the programmer wrote.  I know of no cases where this point was actually decided.  Do you?  How can one tell if someone else is copying copyrightable source code (submitted to congress as required by registration) when one has object code and there is no reliable 1-to-1 relationship?


  7. 130

    Once again, Ned – you choose to focus your attention on a non-useful art and NOT address the particular thing I have asked you to address time and time again.

    The point clearly is not whether other things have structure – the point is that copyright does not innur until you have some structure. Once you acknolwedge that point, THEN we can discuss the fact that software is written to DO things and DOING things clearly falls under the purview of patent law.

    This does not in any way diminish the fact that software ALSO can be written with style and expressive lements – and it is those different aspects of software that can gain copyright protection – once the software is committed to a structure.

    Clearly, this strikes yet another blow against the anti-software patent desire to ues the mental steps doctrine as a weapon for their agenda.

    Please stop running.

  8. 128

    It depends on what the machine does

    Ned – before you even get there you need to realize (and acknowledge) that the machine was a new machine.

    (and that includes realizing – and acknowledging – WHY it was a new machine)

    LOL – system? Still trying that fallacy? You know the answer: rivets, tires and bullets – each need some other ‘system’ to actually ‘do’ anything.

  9. 126


    No, it does not.  It depends on what the machine does — even in Alappat, where the claims were found eligible because they were to a rasterizer of a graphics unit of a display.  The Alappat machine did something in context of a system.

  10. 125

    Software consists of 1’s and 0’s.  Depending on the media, apparatus alters the state of the media in a particular, algorithmic order that can be read to restore, using a reverse algorithm, the original sequence of 1’s and 0’s.  PRML is one such algorithm.  There are a variety of RLL codes used.  The media states are magnetically altered, or physically altered using lasers. 
    Do you need more detail.   I have a large amount of experience in CD-ROM and related technology, as well as with magnetic recording of all types.


  11. 124

    If copyright requires structure, then a poem by Blake, pen to paper, has structure.  What structure?  Patterns that are human recognizable….
    But, what does this prove, anon?  When one claims that software is eligible because it has copyrightable structure, one can also claim that Blake’s poems are eligible because they too have structure.
    But this cannot be the case as everyone agrees that poems are not eligible.  Therefor, there is something seriously amiss in your resort to copyright to support your position.
    anon, identify the structure in the following:
    “Neither a borrower nor a lender be; 
    For loan oft loses both itself and friend, 
    And borrowing dulls the edge of husbandry. 
    This above all: to thine own self be true, 
    And it must follow, as the night the day, 
    Thou canst not then be false to any man.”


  12. 123

    programmed computer without more

    LOL – I have addressed this fallacy many times Ned:

    A box of rivets sitting on a shelf
    Tires sitting alone in a warehouse
    Bullets resting in the chamber of a gun

  13. 122

    What. Do. They. Do?

    The great lawyer answer: It depends.

    It depends on the newly created machine and its configuration – See Alappat.

  14. 121

    Sorry Ned, NOTHING vague or partial about what I am telling you.

    You have not answered any of my questions, and yet want to ask more.

    Answer my questions first.

    Stop running.

  15. 120


    “IF” software has no structure, THEN how are programs actually transfered to a CRM?

    WHAT is on a CRM that is DIFFERENT than what is on a second CRM with different software encoded?

  16. 118

    Night, I see I answered your first of two posts, not your second.

    Re: Your second: Two CDs, having different structures. One causes the machine to play one song and the other a different song.

    Night, again you fail to grasp that a computer affixed to a sound card affixed to speakers is

    DOING something.

    In such a context, the programmed computer can do something differently depending on the programming.

    No one has argued to the contrary.

    The dividing point between you and reality is your insistence that a computer is new when it only processes information, and does nada with it except let it vanish into the unknown when the power is off. A computer, to be useful, must be doing something


    Every example you have ever given is something physical. When so limited, we agree.

    But you do not limit yourself, now do you?

  17. 117

    anon, you constantly stay up there in that cloud of vague words and partially quoted holdings. When we ask you to tell us what you are talking about by giving an example, or making distinctions, you run away and hide.

    Can you please slow down your hot coal dance for just one moment and describe what it is that a “configured” computer does that is useful? After all, this configured computer is simply that, a calculator. It is not required by our assumptions to be part of a larger system or apparatus. It does not operate displays or other peripheral equipment. It simply calculates.

    At the end of the day, it has a number, a result. That number is in a register. Turn off the computer and the number vanishes.

    So, when you say, configured computer, just how is such a machine useful at all to do anything?

    When you get off your high horse and deign to acknowledge those around you, you might notice that the SC has already addressed the programmed computer in context of a larger system: Diehr.

    So, tell us, Anon, how is a programmed computer useful sans any larger system or use to which the computer is applied?

  18. 116

    anon, my 02:27 responds to your assertion at 10:26 that computers with software DO something. What do they DO anon.

    What. Do. They. Do?

    Generate heat? √

    Operate or communicate with other apparatus? Not by default. They simply sit there generating heat if all they do is execute a program that calculates.

    A programmed computer without more only generates heat and is not useful in a patentable sense.

  19. 115

    Still running and hiding, anon? It is not me, but you, who contends that software has structure. All I am asking from you is to describe that structure.

    If you concede that software has no structure, then say so.

  20. 114

    Really Ned – once again you simply avoid the fact that I have presented:

    Using a program (once a machine is configured with the software) and actually changing the machine by adding the software in the first place are two very different things.

    As to business methods, do you have a legal argument about them not being patent eligible?

    Don’t accuse me of having an agenda, if that merely mean that I am following the law as it stands today – right now.

  21. 112

    Ned – it is not hiding when I have asked you point blank to stop with the fallacy of “software =’1′”

    You have yet to address the copyright notion of fixed in a tangible media for software.

    It is you that is running – I asked you about this copyright notion long before your fallacy of ‘1.’

    Stop playing games and start being intellectually honest.

  22. 109


    Not really, anon. When pressed, you programmed-computers-are-eligible types talk about the magic of a programmed computer — it can operate a car, fly an airplane — move, do, or manipulate other things  — like drawn on a display as in Alappat.  In this you want to justify a claim to a programmed computer that does none of this, but only calculates numbers. 
    We see your game.
    And, we understand what you are trying to do — patent business method software.
    Speaking of agendas…….. 

  23. 108

    Nice meltdown

    Hardly. Just an ordinary response to a n*tj*b who accuses me dozens of times every year of being prejudiced against blacks because I allegedly made some comment (when?) that the n*tj*b refuses to identify. Meanwhile, the n*tj*b uses the term more often than anyone else on the blog but that’s okay, apparently, because … I once made a joke about his beloved President Ronnie.

  24. 107

    Night, Software is code an code consists 1’s and 0’s when compiled for use in a computer. The 1’s and 0’s do NOT have structure. They have VALUES.

    Can you tell us the difference between structure and value?

    Next question, we were once assured that Saddam, who had used chemical weapons on his own people, still had those weapons. We found out later we were sold a bill of goods by anti-Saddam schemers. Today, AQ is doing the same thing, it appears. Using captured weapons to frame Assad. Are we going to be fooled again?

  25. 106

    “fixed in any tangible medium of expression”

    A monk writes the software onto a parchment. It is on a tangible medium. The text comprises a series of instructions in code. One of the instructions includes the literal, “1.”

    Please describe the structure of the “1.”

    We wait anon. You cannot hide forever.

  26. 105

    It’s not difficult to see why you are having difficulty understanding the impropriety of your use

    That’s because I have no idea what you are talking about, psych0.

    let’s hear you go on about appropriate postings.

    Look, you f*king psych0path: you brough this baloney “racist” sh*t up. You bring it up all the time. That’s the only reason we’re talking about it. Are you trying to justify your s0ci0path behavior by referencing a joke I made about a dead president five (?) years ago? Seriously?

    Jeebus f*king cripes you are a miserable t 0 0 l.

  27. 104

    You miss all kinds of answer, Malcolm.

    That’s your specialty: CRP, ignore the valid counterpoints and answers, run away, return and use the same CRP again.

    You’ve been doing that for years.

    And that’s a fact.

  28. 102

    you might also want to recall that you defended 6’s use of the word

    I have no idea what the f*k you are talking about.

    Show everybody exactly what the f*k you are talking about, axxh0le.. It seems like the least you could do if you are going to accuse people of being “racist”.

    Or we can just play your s0ci0path game. You know how that game is played, right? That’s where we just get to make stuff up and smear people with made-up stuff because, hey, it’s all “equivalent” in your wacky little fantasy world.

    I don’t like software patents so … it’s okay to call me a racist based on something I allegedly said that you won’t reveal. I think Prometheus was correctly decided so … you get to endlessly accuse me of wanting to destroy the patent system for my own “selfish purposes”. Rince. Recycle. Repeat.

  29. 100

    Let’s get this straight.

    Dennis Crouch has a patent blog. On this blog in the comments there is a f*cking s0ci0path pr*k who calls himself “anon.” This f*cking s0ci0path pr*k who calls himself “anon” spent years here posting under multiple aliases, dozens of times of day, insulting anybody and everybody who “implicitly” disagreed with him about anything.

    Then he was busted for doing that. In reponse, this f*cking s0ci0path pr*k just doubled-down and continued the exact same behavior using his “anon” moniker. Among other bizarre insults and paranoiac fantasies, “anon” has chosen to accuse people of being prejudiced against blacks because at some point (when? who knows) they allegedly used the “N-word” in some context which the f*cking s0ci0path pr*ck refuses to identify.

    Meanwhile, the f*cking s0ci0path pr*ck uses the term himself probably once a week in his pathetic s0ci0path attempt to smear people as being “racist.”

    Dennis: exactly what the f*k is your attraction to this “anon” piece of sh*t?

  30. 98

    Wrong Malcolm

    Wrong about what, Tr0 llb0y? Wrong about this being an accurate reflection of your views:

    “Yes, MM, I do believe that mental processes should be eligible for patenting, provided that they are useful and meet the other criteria for patenting.”

    Let us know. Really not sure what your difficulty is. You want me to look something up rather than simply saying what you believe to be true? That’s odd. It’s as if you are unwilling to stand behind your beliefs, while you simultaneously insult peole endlessly when they express their own beliefs, even when they provide explanation for their beliefs. Your hypocritical behavior seems very likely to be grounded in shame of some sort.

    Is anyone else here aware of Tr0 llb0y ever answering the question that he claims to have answered numerous ties? Anyone? It’s entirely possible I missed it once. Did everyone else miss it too?

  31. 97

    You missed the part about your defending 6’s use of the term too.

    It’s not difficult to see why you are having difficulty understanding the impropriety of your use, as you saw no problem insulting first time posting cancer survivors, sons grieving over recently departed fathers and making jokes about obscene acts with dead presidents.

    But please, let’s hear you go on about appropriate postings.

  32. 93

    Not the three words, and most definitely not the reason why.

    Funny that you have such difficulties with this.

  33. 91

    >LOL – no, you have never said the magic three words: “anon is right,” nor have you ever acknowledged WHY I was right.

    You mean you aren’t sure who the blind squirrel is?

  34. 90

    I am not ashamed of my answer

    But you won’t answer. On a blog where you endlessly insult people for their lack of “intellectual honesty”, particularly when it comes to issues relating to patent eligibility and what sort of inventions should be protected by patents, you won’t tell people your opinion about a very simply and fundamental issue. I don’t know anyone else who is afraid to answer the question. Certainly nobody else who comments here is afraid to answer the question.

    A safe assumption is that your answer is “Yes, MM, I do believe that mental processes should be eligible for patenting, provided that they are useful and meet the other criteria for patenting.”

    Right? That’s what you believe, right?

    If you don’t believe that, just say so.

    What’s the problem, Tr0 llb0y? If the problem is not that you are ashamed, what makes you afraid to answer the question?

  35. 86

    “Liberal art scum”

    How racist/mysogynist of you.

    Wait, liberals are not equal to women.
    Wait, liberals are not equal to one race.

    Who are you arguing with?

  36. 85

    I am not ashamed of my answer – nice attempted twist.

    I am also not ashamed to point out (yet again) that you are attempting to obfuscate with your strawman here.

  37. 84

    Nice attempted spin,

    It’s hardly spin to point out to everyone (again) that you’re a s0ci0path who tr0lls this bl0g because you can’t get the prescription you need.

    You’re accusing me of being prejudiced against black people because … why? Apparently because I (allegedly) once used the “full term”, in some context that you won’t identify for us and nobody else seems to remember (I don’t), whereas you’ve used the “truncated” term probably hundreds of times since then.

    What exactly is your f*ing problem?

    And what the f*k is Dennis’ attraction to this f*king freak?

  38. 83

    I answered that question

    You think?

    LOL – no, you have never said the magic three words: “anon is right,” nor have you ever acknowledged WHY I was right.

    30,000 plus mewling words – still not the right ones.

  39. 81

    Malcolm, I guess that even after 30,000 mewling QQ words you don’t have an argument in the Myriad case either.

    We sure know that you don’t have an intellectually honest answer to my question.

  40. 80

    who was right in Myriad and why?

    I answered that question, Tr0 llb0y: a blind squirrel found a rotten nut.

    It happens.

  41. 79

    Why are you dissembling on this and pretending that I have not answered you fully?

    Because I don’t recall ever seeing your answer. Does anyone recall Tr0 llb0y telling us whether he thinks that purely mental processes should be eligible for patenting? It’s a yes or no question. Can anyone show me (or anyone else) where Tr0 llb0y answered the question?

    A safe assumption is that your answer is “Yes, MM, I do believe that mental processes should be eligible for patenting, provided that they are useful and meet the other criteria for patenting.”

    Right? Just tell everybody. I’m not sure why you are ashamed of your answer.

  42. 78

    Is that your argument?

    LOL – no, of course not. I use that most excellent word: anthropomorphication.

    it’s not my argument

    You don’t have an argument. Well, one that is not intellectually honest, at least.

  43. 77

    You’ve referenced the term

    LOL – I have not (nor is there EVER reason to) use the full term – as you so callously did.

    Nice attempted spin, Malcolm.

  44. 75

    because the robot can “think” just like a human (per Malcolm), it is no longer a machine.

    Is that your argument? Because it’s not my argument.

  45. 74

    Malcolm, you want to claim to be able to use the “N” word in a non-racist manner,…

    It’s not difficult to do.

    You’ve referenced the term about 100 times more often than I ever have. Were you doing so in a racist manner?

    That’s why I’m asking you to show everyone the context of the comment you are referring to, you d*psh*t axxh0le.

  46. 72

    And I DO understand why you are purposefully kicking up dust and trying so very hard not to understand the basics here.

    Your third party interests are getting in the way of you having an intelelctually honest conversation. That is one driver for the blogs rules limiting posts to personal views.

    Further, you are still attempting to conflate using a program (once a machine is configured with the software) and actually changing the machine by adding the software in the first place.

    This has been pointed out to you several times now.

  47. 71

    Michael, I think you’re missing the point. Is the critical aspect of the holding “privity” or “notice?” Or do we have to show both, even though historically, judgments are binding on those in privity without notice. Is there something different about an injunction? Is there something particular about the Rule?

  48. 70

    Ned – you are still being obtuse.

    Address ‘fixed in a tangible medium’ please.

    And please, stop the fallacy attempts at ‘1’.

  49. 69

    Anon, copyright protects one for making copies of the copyrighted work. Thus the monk in the cloister cannot sit there and scribe onto parchment a copy of somebody else's software when it is protected by copyright.

    Now, assume that the monk writes a "1" on the piece of parchment. Describe the structure of the "1."

  50. 68

    Anon, a computer calculating a number from a number is doing nothing useful. Attached to another machine where the output of the computer is used to do something useful, you change the situation entirely.

    For the life of me I do not understand why you refuse to see the difference?


  51. 67

     anon, how can you tell whether a computer is doing nothing or computing a mathematical algorithm if the computer just sits there generating heat?


  52. 66

    “MM that is progress in your first paragraph. 7 years ago you did not understand that. And, what you an the SCOTUS and the lightweight filth on the fed. cir. Lourie do is mix up instructions on a machine for accomplishing useful work with human thought.”

    I’m not really sure that it was MM that mixed them up, seems more like it was patent drafters that mixed them up, and then MM noticed that was what they were doing.

  53. 65

    “6, you know that those “functional claims” are not functional claims, but are claims to a set of solutions to one of PHOSITA.”

    So then, they’re not using functional language rather than describing what is technically going on inside of a computer regarding moving of bits etc?

  54. 64

    Liberal art scum

    How racist/mysogynist of you.

    Wait, liberals are not equal to women.
    Wait, liberals are not equal to one race.

    Oh noes, how do I get to the borderline? I know, let’s call Malcolm, if anyone can spin this, it is he.

    Oh Malcolm, help us help us.

  55. 63

    just because they disagree with him

    LOL – No Malcolm, that is a blatant 1ie.

    It is not just because we may disagree. It is in how you disagree – you feel it is perfectly ok to employ spin and obfuscate, to misrepresent facts, misrepresent law, misrepresent what others post. It is because you vacuously employ your accuse-others-of-that-which-you-do rhetoric. It is that you do in fact post without intellectual honesty.

    But here’s a chance for you find your nuts: who was right in Myriad and why?

    LOL – just as I thought.

  56. 62




    The computer is just a machine.

    And then tell us

    Asked and answered – many times now. Why are you dissembling on this and pretending that I have not answered you fully?

  57. 61

    LOL – because the robot can “think” just like a human (per Malcolm), it is no longer a machine.


  58. 58

    LOL – so Malcolm, you want to claim to be able to use the “N” word in a non-racist manner,…

    …because you say so.

    How very Carroll of you.

  59. 57

    That is the odd part of all this is that so much of what the anti’s do is exploit the ignorance of the arrogant clogged minds of the judges.

    What hope have we when they bring in a new batch of non-science trained, non-patent trained judges that will not understand any of this and will be making judgments based on the flavor of the argument. Liberal art scum.

  60. 56

    LB, then read Stevens dissent in Bilski. The big picture is that he is equating types of thing not meant for patentability (i.e. methods that people use) with methods for solutions to real problems that are implemented with instructions to a machine.

    He is mixing up instructions to a machine with what goes on in its arrogant clogged brain.

  61. 55

    6, you know that those “functional claims” are not functional claims, but are claims to a set of solutions to one of PHOSITA.

  62. 54

    MM that is progress in your first paragraph. 7 years ago you did not understand that. And, what you an the SCOTUS and the lightweight filth on the fed. cir. Lourie do is mix up instructions on a machine for accomplishing useful work with human thought.

  63. 53

    LB your credibility is not enhanced by making wild accusations of comments being racist/misogynist. Just typical filth from your side. You guys will stoop to anything. Obviously, Soot-in-my-ear refers to the fact that she is arrogant to the point that she can’t hear. Stevens, Lemley, Posner, and Lourie get the same treatment.

  64. 52

    you cannot garner an ivy league education on connection s alone

    What the …?

    the real world of innovation and invention

    So real. So world-ish. And so very exclusive.


  65. 51

    You made you bed, Malcolm, doused yourself in kerosene, lit the match, and now burn in it.

    That’s heavy, man.

  66. 49

    It is in the archives Malcolm

    The issue, dear Tr0 llb0y, is exactly “what” is in the archives and exactly what point you’re trying to make. You seem to be suggesting I harbor some racial prejudice with respect to black people …?!

    Or not. Just let everybody know what you’re thinking. Or we can discuss why you have to wear the electronic bracelet around your ankle. Because that’s “in the archies”, too, for as long as you want to play your psych0 s0ci0path game.

  67. 48

    Q: what do you have with a stand-alone computer with all the hardware and no software?

    A1: a paperweight.
    A2: a (rather inefficient) heat source.,

    Like a ten fingered robot without any instructions telling it how to play the piano.

  68. 47

    He does like to follow me around and jeer me with little substance.

    Many of us enjoy following you around and jeering you with little substance, NWPA.

    In part, it’s because we fear the hard truth of diamond scimitars in your eloquent arguments. But mostly it’s because George Soros pays us a lot of money to rip on both you and patents.

  69. 46

    By the way, certain people may choose to turn a blind eye, but when you routinely say things like

      “Maybe Tr0 llb0y will go f*k himself again.”
      “your tr0lling axxh0lery”

    don’t have a lot of credibility and the use of the racial ‘N’ word has no redeeming context from you.

    You made you bed, Malcolm, doused yourself in kerosene, lit the match, and now burn in it.

  70. 45

    Perhaps you, like Malcolm, think that machines really do think…

    I think that machines can process information. I think that human beings can process information. I think that the “logic” used by computers to process information and the logic used by humans to process information is often indistinguishable (hence the use of many of the same terms to describe human thought processes and computer processing steps). This is particularly true when “thinking” comprises one or more steps such as (1) receiving information; (2) storing some or all of the information; (3) organizing or processing some or all of the information; and(4) transmitting some or all of the processed/organized and/or unprocessed/unorganized information to others.

    Why don’t you discuss what you mean when you say “think”, Tr0 llb0y?

    And then tell us whether you “think” that purely mental processes should be eligible for patenting. Tr0 llb0y never answer that yes-or-no question. Must be a bug in the program. Or maybe he’s just been programmed not to have that discussion. He loves talking about 101 but he really doesn’t want to talk about his own opinion as to whether purely mental processes should be eligible for patenting. Nope. Tr0 llb0y would rather accuse other people (!) of “intellectual dishonesty”, just because they disagree with him. That’s what he does. That’s his speciality.

  71. 43

    Leopold’s posts … at least suspicious

    Hey, patent teabxggers: don’t forget to check under your beds tonite!


  72. 42

    Tr0 llb0y: there have been two known posters who have used the racist “N” word

    Please show everybody the racist manner(s) in which that word was invoked by those “two known posters.”

    Otherwise please S T F U with your tr0lling axxh0lery.


  73. 41

    Leopold: “borderline racist/misogynist comments about certain judges and justices

    Misogynist: h@tred of women?
    I don’t think that’s the word you mean.

    Racist: Sorry Leopold, don’t see this either. In fact, there have been two known posters who have used the racist “N” word – your beloved Malcolm was one, and I will give you 6 guesses as to the other (and they both belong to the little circle club).

    No, Leopold, I think that while over the top, NWPA’s rants tend strictly to the political and politically corrupt veins.

    And yes, you-know-who throws out more unrelated political rants than anyone – and I do mean anyone – on this board (your beloved).

    Funny, you never mention a word about that person’s ‘credibility.’ Perhaps it is because we both know that nothing can enhance that person’s ‘credibility.’

    And by the by, where are my answers?

  74. 40

    Actually, NWPA, I don’t think anthropomorphism has had the slightest impact on the Supreme Court’s 101 jurisprudence. And I don’t really mean to follow you around and jeer at you. But you probably ought to cool it with the borderline racist/misogynist comments about certain judges and justices. They don’t enhance your credibility.

  75. 38

    Q: what do you have with a stand-alone computer with all the hardware and no software?

    A1: a paperweight.
    A2: a (rather inefficient) heat source.

    Ned – you need to put aside your belief structure (and that of your third party benefactor) and face simple reality.

  76. 37

    As well, I would remind you of our many discussions of Alappat.

    Structure (change to the machine) was most definitely there.

    Stop your mistreatment of law and fact.

  77. 35

    LOL – really 6?

    “As you scroll up… I initiated the discussion>

    Reality check – this discussion thread started with NWPA and my reply to him: 5:06 and 9:03.

  78. 33

    The fact that you do not accept that it has no structure does not mean that it doesn’t. You probably also don’t believe in evolution.

  79. 31

    The two machines you mention are each part of a larger system.  And this is exactly where you have failed to go in the past, Night, acknowledging that computers that are coupled to large things can do things but computers that simply do math without more are not cannot do anything new.


  80. 30

    “LOL, 6 do you have any clue whatsoever?”

    Yes, scroll up, this discussion is about the supremes. It is this way because I initiated the discussion. You can feel free to discuss other things off by yourself somewhere in a corner ok?

  81. 29

    We’re talking about

    LOL, 6 do you have any clue whatsoever?

    Seriously, this has nothing at all to do with the “draftsman” and his craft.


    You haven’t answered my question: do you think machines think?

    There is nothing tricky about this question.

  82. 28

    We’re talking about the Supremes anon, what if they disagree with the federal circuit and MM and instead stick to their “stop bowing down to the draftsman” mantra/instruction?

  83. 27

    Or even, Ned, how two DVDs that according to you have the same structure cause a machine to behave very differently. How can two DVD with the same structure (and no difference in physical structure according to you) cause a machine to behave very differently.

    How is that possible?

  84. 26

    Ned, really? Please Ned explain to us how two machines with the same structure behave very differently. One driving a car and another diagnosing cancer. Please explain how machines with the same structure behave differently? Or how machines think?

  85. 24


    Stop with the fallacy arguments please.

    Software is not, and never has been “1.”

    By the way, you still have not answered me in regards to the critical point of software being able to obtain copyright protection. Explain to me, Ned, how fixed in a tangible medium fits into the discussion here.

    After that, perhaps we can obtain from you explanations long sought concerning other concepts you point blank refuse to entertain: anthropormorphication and the exceptions to the printed matter doctrine, for example.

    It is more than a little bit disingenuous of you to attempt a strawman ‘explain to me’ style post here, when you run from explaining things asked of you.

  86. 21

    Not at all 6. You are conflating things badly here. Further, even your circle-mate Malcolm has admitted that ‘configured to’ is structural language, and you need to re-read (like I suggested several times) the Alallapt case.

    You need to get out of your own way, 6.

  87. 20

    And maybe you want to discuss how that great word: anthropomorphication thrashes the anti-software position and destroys the attempted use of the mental steps doctrine.

    Perhaps you, like Malcolm, think that machines really do think…

    LOL – I await your (typical non-)answers.

  88. 18

    Tell us again


    who is this ‘us?’

    where are my answers?

    I answered you with particularity within an hour and a half, and it has been days since my questions to you.

    Finish what you started (or is that ‘too harsh‘ for you?).

  89. 17

    “albeit that intelligence is often subsumed by pursuit of philosophies)”

    He said as his intelligence was being subsumed by pursuit of a philosophy.

  90. 16

    I’m curious about one thing NWPA, since you seem so worried about anthropomorphication running rampant in the judiciary. Are you not similarly concerned by the patent bar’s attempts to turn purely technical processes like: “route a bit here, route a different bit there” into nonsense “functional language” only understood by humans, instead of simply laying forth the technical “information processing method”? Because if they did that, then I doubt that the judges would be so keen on anthropomorphizing, don’t you also doubt that?

  91. 15

    how arrogant

    An easy trap – they are, after all,
    – more than modestly intelligent (you cannot garner an ivy league education on connection s alone – albeit that intelligence is often subsumed by pursuit of philosophies),
    – more than modestly wealthy,
    – more than modestly connected to those in politics and power (each not a bad thing in and of itself, mind you), and
    – more than modestly disconnected from the real world of innovation and invention (not recognizing one’s limitations is always a bad thing).

  92. 14

    You know, LB, if you were a decent fellow, you would come down hard on MM and his lot when they use anthropomorphism in trying to dismiss information processing methods from eligibility.

  93. 13

    I will be glad to LB as soon as you explain to us anthropomorphism and how it has negatively affected the ability of the SCOTUS justices to think properly about subject matter eligibility.

  94. 11

    Of course a large part of the problem seems to be how arrogant SCOTUS justices are. Just watch Soot-in-my-ear on 60 Minutes. It is hard to imagine a brain that is so full of itself learning a deep new concept.

  95. 10

    The thing is that Stevens refers to information processing as the type of thing not meant to be patented, but he does not get the leap that this may have been the case prior to information processing machines, but now, these methods are for use on a machine–and as such are not the type of thing “not meant to be patented”.

    It appears that non-scientific minds just can’t understand this.

  96. 9

    I have found the ideology of Stevens to be most fascinating.

    After all, it was he that warned that 101 can be too easily turned into a nose of wax. That he then attempted to do so himself – and failed – provides a chance to gain deep and critical insight into the topic of patent eligibility (as distinct from patentability).

    He attempted to bookend his patent-related career on the bench by violating his own warning. But to do so was simply too much, as his view would necessitate the actual voiding of the words of Congress.

    What is scary is that he had several justices willing to sign onto his views.

    I do believe that the judiciary needs to be insulated from the reactionary nature of public opinion. But the danger therein is a lack of accountability when the line is crossed into abject judicial activism. I think it grossly inefficient to rely on a large and often fractured by cross-purposes Congress to hold the judiciary to task for any overreaches.

    There is a clear indicator of impropriety when the judiciary is more concerned with its power of control than with the law. Contrast the recognition of Congress’ wide authority to Article 1 Section 8 Clause 8 in the Golan v Holder case with the power-craving sticky-fingeredness of the Court in Prometheus. Note the extremely fine and delicate word-smithing of the Court when it wields the “implicit” authority in order to keep its finger in the nose of patent law.

  97. 8

    You know, anon, I was thinking about your point of Anthropomorphism being at the core of objection of the anti’s. I think this is quite right. And, it is a good way to highlight Justice Stevens dissent in Bilski where he confuses the automation of information processing with patenting the information processing use by humans. Stevens objection is based on a mind that does not distinguish the automation of information processing from the information processing in his brain.

    Anyway, some on this board have questioned why we need judges with science backgrounds and here we have another example of the gross mistakes that are made by the non-scientific mind and, indeed, even the inability of their non-scientifically trained brains to be able to have a discussion about this issue.

    I think this is one of the key misconceptions that run throughout the SCOTUS’s jurisprudence regarding 101.

  98. 4

    From the cited Supreme Court decision:

    “Persons acquiring an interest in property that is a subject of litigation are bound by, or entitled to the benefit of, a subsequent judgment, despite a lack of knowledge. Restatement of Judgments § 89, and comment c (1942); see 1 J. Story, Equity Jurisprudence § 536 (14th ed.1918). This principle has not been limited to in rem or quasi in rem proceedings. Restatement of Judgments, supra, § 89, comment d; see ICC v Western N.Y. & P. R. Co., 82 F.192, 194 (WD Pa. 1897). We apply that principle here in order to effectuate the public policies of the Act.”

  99. 3

    For example, assume S&F had no knowledge of the injunction, but still was the sole distributor of the enjoined products. Are we to understand that if the patent owner were to join S & F, that they would have to relitigate the preliminary injunction motion in order for the preliminary junction to bind them even though they were in privity? I would hope not.

  100. 2

    I must say, I’m a little confused.

    1. A person who acquires property from another with notice of a defect is not a BFP with respect to that defect.

    2. A person who acquires property from another is in privity regardless of whether he has knowledge of the defect.

    Therefore it is unclear to me whether the enforceability of the injunction against a third-party is based upon the knowledge of the injunction or whether the injunction is enforceable based upon privity.

  101. 1

    []new product line here]…color is on a continuum frequency…
    How are scalar weights reconciled with scalar heights..
    I was just wondering what keeps the physical and material constituents together in an object?
    link to

    (color imitation only holds under “certain” respect which cannot be adequately defined under the weight of its own terminology,. unless the court can answer the question.

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