By Dennis Crouch
In re Apple Inc. (Fed. Cir. 2014); In re Barnes & Noble (Fed. Cir. 2014)
In a pair of decisions, the Federal Circuit has denied two different petitions for writ of mandamus that sought appellate oversight in the transfer motions. Both cases involved identical split panels with Judges Reyna and Prost in the majority (denying mandamus) and Judge Newman in dissent. Over the past several years, a number of § 1404 transfer petitions have been filed at the Federal Circuit following the court’s 2008 TS Tech decision. See, In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008).
In both cases here, the majority found that the movant had failed to “meet its exacting burden to demonstrate that the district court was clearly and indisputably incorrect in concluding that the case should not have been transferred” by the District Court judge.
Judge Newman’s dissents are interesting she writes in Apple:
The plaintiff, Core Wireless Licensing, S.A.R.L., is a Luxembourg company having one employee. Core Wireless maintains a wholly-owned subsidiary, Core Wireless USA, a Texas corporation with 6 employees who live in or near Plano, Texas. Core Wireless USA’s employees manage Core Wireless’s patent portfolio, including any licensing agreements deriving therefrom. Neither Core Wireless nor Core Wireless USA makes, uses, or sells the patented subject matter in Texas or elsewhere.
The accused products are versions of Apple Incorporated’s iPhone and cellular iPad products. Apple has been headquartered in Cupertino, California since 1976. Apple’s management and primary research and development facilities are also located in Cupertino where Apple employs over 13,000 people. The record also states that the research, design, and development of the accused products took place in Cupertino and that virtually all Apple business documents and records relating to the research, design, development, marketing strategy, and product revenue for the accused products are located in or near Cupertino. Additionally, Apple has stated that its foreseeable witnesses with knowledge of the research, design, and development of the accused products reside or work in or near Cupertino.
Refusal to transfer this case should be reversed, and the writ of mandamus should issue to account for the extreme imbalance of convenience as between California and Texas.
My colleagues defend the district court’s conclusion that it was unable to evaluate the convenience of witnesses in its transfer analysis because Apple failed to name its witnesses. The district court has greatly mischaracterized Apple’s proffered evidence. Apple may not have identified specific witnesses or singled out individual documents; however, the evidence proffered makes it clear that all relevant Apple witnesses and documents are located in the Northern District of California. The evidence also shows that the suppliers of the accused components are located in California—Qualcomm Incorporated is based in San Diego and Intel Corporation is based in Santa Clara. Under a proper transfer analysis, these facts lead to only one conclusion—this case should be transferred to the Northern District of California.
This case is analogous to In re Genentech, 566 F.3d 1338 (Fed. Cir. 2009). In that case, we granted a petition for a writ of mandamus directing the court to transfer the case to the Northern District of California because the Eastern District of Texas had no meaningful connection to the litigation. Such is the case here, as nothing else ties this case to Texas.
In Genentech we observed that there were “a substantial number of witnesses with material and relevant information residing in either the transferee venue or the state of California who will be unnecessarily inconvenienced in having to travel to Texas to testify.” 566 F.3d at 1348. We further noted that two of the three parties were headquartered in the Northern District of California or had facilities in San Diego, California, realizing that this would greatly reduce any transportation of documents related to the accused products. Id. We also explained that the Northern District of California would have the authority to compel many witnesses to appear at trial if necessary. Id. The similarities between the facts of this case and Genentech are striking.
In Genentech we also explained that “[i]n patent infringement, the bulk of the relevant evidence usually comes from the accused infringer. Consequently, the place where the defendant’s documents are kept weighs in favor of transfer to that location.” Id. at 1345 (quotation marks omitted) (citation omitted). There is nothing to suggest to the contrary in this case.
Finally, I am struck by how heavily the local interest factor favors the Northern District of California. Apple is a robust company that supports the local economy of Cupertino, California, employing over 13,000 people. Core Wireless, on the other hand, is a non-United States corporation with one employee that exists solely to license its patent portfolio. To carry out this task, Core Wireless employs 6 people through a subsidiary in Plano, Texas. Apple’s impact on the local economy in the Northern District of California is clearly much greater than that of Core Wireless in the Eastern District of Texas.
Thus, although transfer is within the sound discretion of the district court, “in a case featuring most witnesses and evidence closer to the transferee venue with few or no convenience factors favoring the venue chosen by the plaintiff, the trial court should grant a motion to transfer.” In re Nintendo Co., 589 F.3d 1194, 1198 (Fed. Cir. 2009). This is such a case. From my colleagues’ denial of the petition, I must, respectfully, dissent.
Judge Newman’s dissent in B&N is similar:
Until just prior to filing this and 19 other pending infringement suits in the same forum, the plaintiff B.E. Technology, LLC was not registered to do business in the state of Tennessee. The company is run and operated by the patent owner out of his home. The plaintiff has no other employees, and does not make, use or sell the patented subject matter in Tennessee or elsewhere.
The defendant Barnes & Noble has a large office in Palo Alto, California, where it employs over 400 people. The record states that Barnes & Noble employees that are most knowledgeable about the design, development, and operation of the accused product work in Palo Alto. The record also states that substantially all of the documents relating to the development, design, and components of the accused product are located in Barnes & Noble’s Palo Alto office, including documents relating to device and component specifications, design drawings, contracts with key commodity suppliers and software development plans.
Although Barnes & Noble’s accused product is sold nationwide, the Barnes & Noble evidence relevant to this litigation is located in Northern California. Refusal to transfer this case should be reversed, and the writ of mandamus should issue to account for the extreme imbalance of convenience as between California and Tennessee. Although the sole employee of the plaintiff may live in Tennessee, we are required to consider not only the connection of the parties with the plaintiff’s choice of forum, but also whether the disparity of convenience is so marked as to outweigh the plaintiff’s traditional right to choose the forum. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981) (noting that “the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient,” and thus “a foreign plaintiff’s choice deserves less deference.”).
Transferring this case would not simply shift the burden of inconvenience to B.E. Like the district court, my colleagues ignore the likelihood that a substantial number of witnesses, including non-party witnesses with relevant and material information regarding the prior art, are located in the Northern District of California, while only one witness is in the Western District of Tennessee. Thus, the convenience of two venues at issue in this case is simply not comparable. Moreover, all of Barnes & Noble’s evidence relating to the accused product is located in the Northern District of California, making it easier and more convenient to try this case in the transferee venue. See In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009) (“‘In patent infringement cases, the bulk of the relevant evidence usually comes from the accused infringer. Consequently, the place where the defendant’s documents are kept weighs in favor of transfer to that location.'” (citation omitted)).
Our previous transfer cases well illustrate that the plaintiff’s choice of forum here should be accorded minimal deference. In analogous circumstances to this case, this court in In re Nintendo Co., 589 F.3d 1194 (Fed. Cir. 2009) and In re Hoffmann-La Roche, 587 F.3d 1333 (Fed. Cir. 2009) ordered transfer from the plaintiff’s chosen forum based on “a stark contrast in relevance, convenience, and fairness between the two venues.” Nintendo, 589 F.3d at 1198; Hoffmann-La Roche, 587 F.3d at 1336; see also In re Genentech, 566 F.3d 1338 (Fed. Cir. 2009). More recently, in In re Microsoft Corp., 630 F.3d 1361, 1364 (Fed. Cir. 2011) and In re Zimmer Holdings, Inc., 609 F.3d 1378, 1381 (Fed. Cir. 2010) we rejected the attempts of plaintiffs that do not practice their patents to rely on mere artifacts of litigation.
The reasons for transfer of the present case are just as compelling as for this precedent. Consistency of judicial ruling is no less important in procedural and discretionary matters than in questions of substantive law. See United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C.J.) (“But a motion to [the court’s] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.”); see also Van Dusen v. Barrack, 376 U.S. 612, 643 (1964) (“The matters to be weighed in assessing convenience and fairness are prevasively shaped by the contours of the applicable laws.”).
The fact that the transfer decision is within the sound discretion of the district court does not mean that applicable legal principles may be ignored. See Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005). Consistency and objectivity are essential. Accordingly, “in a case featuring most witnesses and evidence closer to the transferee venue with few or no convenience factors favoring the venue chosen by the plaintiff, the trial court should grant a motion to transfer.” Nintendo, 589 F.3d at 1198; see also Reese v. CNH Am. LLC, 574 F.3d 315, 320 (6th Cir. 2009) (stating that the court would reverse a district court’s balance of the transfer considerations upon a finding of a clear abuse of discretion). This is such a case. From my colleagues’ denial of the petition, I must, respectfully, dissent.
Well it looks like the PTO went ahead and implemented the completely made up in the minds of the PTO administrators “factors” test for natural phenom and lawls of nature exceptions. They’re basically just copying their old script from abstract ideas. I don’t really see how this affects the actual law we’re supposed to be implementing though.
“…I don’t really see…”
I am not really shocked.
“I am not really shocked.”
Perhaps you’d be good enough to tell us all how pto “guidelines” affect the law that we’re supposed to be implementing.
LOL – yet again 6 wants someone else to do his job.
“LOL – yet again 6 wants someone else to do his job.”
My job doesn’t involve pto guidelines affecting the law we’re supposed to be implementing. At least that’s what your old pal NAL, an officer of the court, used to go on and on about. I mean, maybe she’s a liar, maybe she isn’t. But it’s you saying that.
It is your job to understand the guidelines.
Do you?
Of course, understanding the guidelines does in fact mean that you should understand the law so that you could tell (or not) whether the guidelines should be followed.
No one ever said your job was easy. But it is still your job.
“It is your job to understand the guidelines.”
I understand the “guidelines” ya re re. I also understand that they are guidelines. I also understand that guidelines don’t affect the law we’re supposed to be implementing.
Alice argues the “abstract ideas” exception is limited to “fundamental truths” (math) that are necessarily available to all.
CLS Bank argues that patents on business methods and trade, they call “fundamental economic concepts,” must be available for all.
Both agree that patenting fundamental concepts that must be available for all is what the decision here must turn on.
There case is going directly to the heart of the matter it appears.
What is the top rung of a ladder?
How many rungs down should it be designated (arbitrarily) to be ‘off limits?’
The court does not have to decide that question. They do not have to rule broadly, just on economic methods, aka, business methods.
The Steven minority almost had Scalia last time. This time, I think he joins.
While I think the claims here are going down 9-0, we might have a 5-4 split on the reasoning.
On what basis, Ned, given Congress explicit words both pre- and post-Bilski (and Bilski itself) could you even begin to support this view of yours?
You would still require a re-writing of explicit words of Congress to put into effect your illegitimate attack on business methods.
anon, why, in your view, are disembodied concepts not eligible for patenting?
Ned, a question met with a question:
Do you realize that your “disembodied” question is a thin (sheepskin) covering for the point already shared by the Supreme Court (that point being:
Bilski: MoT not necessary.
Prometheus: MoT not sufficient)?
Or is this yet another question that will go unanswered, Ned?
Notice the court did not ask for the views of the government.
lulz.
Well I haven’t seen them argue thusly but I hope you’re correct in that the case will get to the meat of the matter. Because that is where Alice is most likely to lose.
And just when you think you have seen everything, along comes the ACLU brief. While I appreciate that “ideas” are subject to 1st Amendment protection, I didn’t know that economic practices at the concept level were protected speech. I struggle to see the connection.
link to patentlyo.com
Here is the link to the ACLU brief:
link to americanbar.org
Frankly, Ned, I think you are mad as bull dog in the midday sun.
Night, you approve of patents on business methods?
Ned,
Congress and the Court approve of patents on business methods.
actually, anon, the Software Freedom Law Center argues for the MOT as the only clear test. They argue that it is all but required by the 1st Amendment.
link to americanbar.org
And now for another view, the view advanced by Stevens in Bilski: Useful Arts.
link to americanbar.org
Tony Dutra, editor of BNA, argues that the search for when enough has been added to an abstract idea to become patent eligible is elusive and is otherwise not the right question. The problem here, he argues, is that a business method is not within the useful arts.
The brief on the whole is excellent.
I am not impressed by briefs that cannot even get the basics down right.
RichRelevance argues that the lower courts have been asking the wrong question when a computer, system or article is claimed, whether the computer implementation is “meaningful.” The brief argues that such a focus allows one to patent an abstract idea: any computer, any software, any way, while teaching nothing specific.
The brief also argues that a robust 101 is critical to provide an earlier end to costly litigation over ineligible patents.
“robust 101 is critical to provide an earlier end to costly litigation over ineligible patents”
Nothing new there: the desire for an Atom Bomb of denying just patents. Right from the Infringers’ Handbook – page 1.
It’s weird that I am in total agreement with Judge Newman; normally I don’t find myself in that position.
I think most people underestimate the role of forum shopping in creating the kinds of distortions that have damaged the prestige and efficacy of our patent system. As an IP litigator of almost 20 years, I’d trade almost every proposed substantive “reform” measure bandied about in Congress over the past several years (including meaningful statutory damages reform) for a mandatory venue statute that restores the original meaning of 28 USC 1400(b). That would do more to curb the filing of unwarranted troll suits than anything that’s being proposed.
Lode_Runer, one it was a rush to the circuit least friendly to patents or most friendly, depending. Today, it is to the forum with the most experienced patent judges or swiftest docket, or the least, depending.
Also, concentrating related cases in one forum, if not the same case, has to be good for the patent system, not bad.
National uniformity? That was not the only reason for the creation of the Federal Circuit. The movers and shakers wanted one court, in Washington, that they could stock with their fellows. One such was already on the CCPA, a man of the bar, a mover and shaker.
If any should doubt that the movers and shakers are running things in patent law, just look at the AIA.
” That was not the only reason for the creation of the Federal Circuit. ”
According to Judge Newman the creation of the federal circuit was naught but an afterthought. A whisper of a notion, and indeed, one gone ultimately awry.
One very wrong interpretation 6.
6, “awry?” Actually, it has seemed to work largely as intended. For one thing, it kept other circuits from weighing in on patent law. Part of the thinking here was to avoid the “real villain” in the minds of the movers and shakers, the Supreme Court, who used conflicts among the circuits to take cases.
The Supreme Court’s ability to take any case – whether from the Circuit or from the CAFC is completely the same.
Ned, you are doing that imagining thing again.
“Actually, it has seemed to work largely as intended.”
Sure Ned, they got some of the small stuff right, bravo. And they even managed to consolidate the issues. Bravo again. Now if they didn’t f up some of the biggies then we’d be all good.
“minds of the movers and shakers”
You keep talking about movers and shakers. Again, you might want to consult with Newman re all the supposed moving and supposed shaking.
I mean, I’m just faithfully reproducing her take on the matter.
“I’m just faithfully reproducing her take”
LOL – 6, didn’t you just get done trying to NOT do what you are now saying that you are ‘faithfully’ doing?
Which is it? Were you lying then, or are you lying now?
“6, didn’t you just get done trying to NOT do what you are now saying that you are ‘faithfully’ doing?”
Reproduce her take on the matter? Um no, I didn’t just get done “trying to NOT do” that. I explicitly did that. God dam you’re dmb.
And people wonder why it seems the FCir has schizophrenia. Newman’s spot on. There was no valid reason to not transfer either case.
MM, policy of blasting us with long posts of claims that he doesn’t like. Really annoying.
ssshhh – that’s his field of rye next to the cliff in his mind.
I think it is on his policy sheet that he follows. “3. Try to keep the most visible post on the blog one that clearly supports the positions of the Policy Sheet.”
Most people would not try to have the most visible look-at-me position when they have nothing intelligent to say, but Malcolm’s QQ-fest does not stick to that rationale.
Shorter anon and NWPA: “We love this claim! Our script says so.”
Shorter Malcolm: “QQ“
From the CLS brief:
In this respect, the only real distinction between Bilski and this case is that the use of a computer in Bilski was implicit whereas here it is explicit. In Bilski, the applicant stated that “the practice of the invention will most likely involve both computers and modern telecommunications.” Bilski Pet. Br. 7;
see also In re Bilski, 545 F.3d 943, 996 (Fed. Cir. 2008) (en banc) (Newman, J., dissenting) (“any practicable embodiment would be conducted with the aid of a machine—a programmed computer”). This Court nonetheless held that, just as narrowing a claim to one “field of use” such as particular “markets” could not render the claim eligible, neither could narrowing it “to a particular technological environment.” Bilski, 130 S. Ct. at 3230–31.
Giving all computer-implemented inventions a categorical
pass under Section 101 would thus require overruling
or at least mortally wounding Bilski. As a matter of law, making explicit the use of a computer in the claims in Bilski, or for that matter adding pedestrian use of a computer to perform the correlations in Mayo, would not have changed the
results in those cases. In each of them, a computer could have been used—and in Bilski would in practice have been used—to improve the speed and accuracy of the claimed process. Such a limitation, however, would not have cabined the foreclosure
effect of the claims in either Bilski or Mayo, or changed the eligibility determination in those cases. The same is true here
It all sounds so familiar. Read it and weep, patent txxbxggers. And yes there is much more to come that will make the softie woftie crowd cry.
I don’t remember Bilski reciting a database.
What is so odd about these anti’s like MM is that they believe they understand the inventions and they believe that they are simple.
Both assumptions are very wrong. Imagine: internal reflection with fiber optic cable. Why that is so easy to understand and you are trying to claim the world. The claims are abstract.
Fact is that any invention can be invalidated under the Lourie method. And, neither Lourie nor you MM understand information processing. Why doesn’t Lourie tell us all about the paper and pencil test and all about the Church-Turing Thesis, which the twit has doesn’t even have a clue what it is. I would bet that Lourie does not even possess the capacity to even frame the Church-Turing Thesis. It would take him years to begin to understand information processing. But, his psychotic ravings filled with words that have no meaning to him are quite impressive–not. An obvious unethical thug.
I don’t remember Bilski reciting a database.
LOL. “I don’t remember Bilski reciting drinking a cup of coffee before thinking a non-obvious thought.”
Like I said: kindergarten-level thinking.
You are going to lose this one, bigtime. And it’s going to leave a mark. Again.
Fact is that any invention can be invalidated under the Lourie method.
Guess what? Nobody believes your ridiculous “sky is falling” non-argument and nobody ever will.
I’ve told you before and I’ll tell it to you again: start identifying a viable compromise position for patenting software, e.g., requiring the submission of working code that will confer the recited functionality upon an actual system or computer within one of the submitted claims. Then people will take you seriously.
Otherwise you’re just shilling for bottom-feeders, like Alice. You know, losers. Bigtime, history-making losers like Prometheus and Bilski.
NWPA I would bet that Lourie does not even possess the capacity to even frame the Church-Turing Thesis.
*yawn*
MM I file patent applications for start-ups that have working software. The claims could easily be invalidated under the Lourie test because any claim can easily be invalidated under the Lourie test.
Night, check this, a case about software that I think is clearly eligible.
ANCORA TECHNOLOGIES, 2 INC. v. APPLE, INC.
link to cafc.uscourts.gov
any claim can easily be invalidated under the Lourie test.
Under Lourie’s test, or under your imaginary strawman version of Lourie’s test?
I don’t doubt that many junky software claims can be easily invalidated under “the Lourie test.” That’s a feature, not a bug.
But a non-obvious, structurally-defined and useful article of manufacture? Those remain very eligible, thank you very much. Welcome to the world of grown-up patents.
Ned, that is a ridiculous definition of eligibility.
When will you learn that we are supposed to adapt to the inventions.
Information processing is real invention. MM you should like a rust brain.
Malcolm goofs with “I’ve told you before and I’ll tell it to you again: start identifying a viable compromise position for patenting software”
Why? because a working model has not been a legal requirement for more than one hundred years? because a working model at that level of detail has never been required?
Here’s a compromise position: base your ‘policy’ in law and fact.
Software is manufacture, a machine component.
It is that simple.
Ned, re: “I think is clearly eligible…”
You realize that you cannot have any consistent and self-standing rationale as to why this particular software patent could be valid and continue to run away from the legal logic that I have repeatedly asked you to address in Nazomi, right?
a working model has not been a legal requirement for more than one hundred years
*yawn*
Nobody could have predicted the teabaggers would trot out the tired “nothing can change because we say so!” argument. Nice try, anyway.
You wish to pretend that “software” is just like everything else. That’s a loser argument. Do you really need me to hold your hand and explain why?
I have a better idea. Let’s wait for the Supreme Court’s hand to slap you across the face. That’s forty five fingers, most of them with rings. Ouch! It’s going to be fun.
correction: read “intelligently discussion” as either ‘intelligent discussions” or “intelligently discuss”
This format could really use an edit feature…
NWPA What is so odd about these anti’s like MM is that they believe they understand the inventions and they believe that they are simple.
The “invention” (if there is one) may in fact be incredibly complicated, as Rader (and other misguided souls) have suggested in their opinions.
But we’re talking about patent claims — a description of a method or article that the patentee will have the right to exclude others from using or making. And those claims are often very simple indeed.
That’s part of the problem. Why should anyone be entitled to hold an industry hostage based on a simple-minded description of some dreamt of functionality, devoid of distinguishing new structure, that will take other people years of work and many millions of dollars to implement? What policy goal is being promoted by such a system? The answer would appear to be the desire for a system that destroys itself, a system that rewards grift and a system that punishes work.
This point is very well made in CLS brief, among other positions that you’ll be reading about in detail when the Supreme Court adopts them as its own.
“when the Supreme Court adopts them as its own.”
Never mind the constitution or how law is supposed to work, or separation of powers or any of that “non-intelligent” stuff, there is a ‘policy’ reason why we should have new law written (implicitly, explicitly, WHATEVER) by an unaccountable few.
Yeah – that’s ‘intelligent.’ That is, until ‘the policy’ just happens not to coincide with the desired ends, and then (and then too late) will the fact that the ends do not justify the means seem to matter to those who trot out this type of ‘policy’ control.
Never mind law. Never mind facts. Never mind the man behind the curtain…
Night, regarding “real” software, you might want to read the CLS brief.
If you have been listening to me over the last few years, you know what the difference between real software and patents on business methods is:
1) Real software operates on physical input or outputs; or
2) modifies a computer by being part of it — fixed; and/or
3) is claimed as part of a larger physical process or apparatus, or as a permanent improvement of a computer.
One runs into trouble primarily if one claiming a business method or a claim to software where the inputs are not physical data, and/or the output are numbers that are not otherwise used for anything.
In the words of Robert Redford’s guardian angel, “All is NOT lost.”
Only Malcolm and Ned are lost with the transparent strawmen and complete disregard for law and fact.
Only Malcolm and Ned are lost with the transparent strawmen and complete disregard for law and fact.
You said the exact same self-serving insulting garbage over and over again in the run-up to Prometheus.
How’d that end up for you? Oh right: 9-0, never to be reversed. It left a big mark. It’s a gift that’s going to keep on giving, no matter how deep you and Gene Quinn stick your heads into the sand or scream at the sky.
As I recall, you said the same type of “the end of Dhierbots” in Bilski.
“How’d that end up for you?”
As I recall, you said the same type of “Malcolm is right, because Malcolm says so” in Myriad” – refusing to understand what I told you and why I told you Myriad was going to be decided.
“How’d that end up for you?”
As for Prometheus, LOL – you have yet to square the decision without throwing your pet theory on a bonfire of Malcolm Fail.
Yes, Malcolm, it svcks to be you.
As for sticking your head into the sand, are you ready yet to answer the simple questions of law and fact that go to the heart of the software as patent eligible question yet? Or are you going to continue to dissemble and run away?
And if you are going to be gung-ho for actaul models, will you be just as gung-ho for actual models for pharma patents – showing the full utility as claimed (and meeting all FDA requirements) at the time of filing?
You do know how many items routinely fail to actually have the utility claimed and fail the FDA requirements, right?
you have yet to square the decision without throwing your pet theory on a bonfire of Malcolm Fail.
Word salad.
One more time for you, extra slowly: you need much better arguments to justify the continued coddling of the softie woftie crowd.
The door is closing. It has been closing steadily for some time.
What is your compromise position? Others are working on formulating such positions. I’ve read them. What’s yours?
Malcolm says too much while saying nothing with “ Others are working on formulating such positions. I’ve read them. ”
Oh really? These items are ‘in work’ and you have been privy to read them? Who are they by? Vivika M? Robert? Francis? Maybe Friend(s) of the Court?
LOL
“Word salad”
Another LOL – salad because Malcolm says so – a very Carroll spin to your inability to use your vaunted English skills to square Prometheus with the case it says is most on point and that it says is not changing, and yet you cannot even save your pet theory from your own self FAIL.
“ Others are working on formulating such positions. I’ve read them. ”
Oh really? These items are ‘in work’ and you have been privy to read them? Who are they by?
Ned already provided you with a limk on one guy. Name ends with an “i”, as I recall. Tip of the iceberg.
As most of us know, there are plenty of people out there happy to discuss this issue intelligently. We also know that you’re not one of them.
More Malcolm self-FAIL with “As most of us know, there are plenty of people out there happy to discuss this issue intelligently. We also know that you’re not one of them.”
Says the guy who professes that intellectual honesty is not required in blog posts since this is not a court.
Malcolm, when you spin intellectual dishonesty as ‘intelligently discussion,’ your already ZERO level of credibility will not improve.
Put.
The.
Shovel.
Down.
correction: read “intelligently discussion” as either ‘intelligent discussions” or “intelligently discuss”
This format could really use an edit feature…
Sorry OT, but Dennis must be away and this came up–maybe you guys have already figured out about EFS and the AIA—but it just occurred to me. The inventors go to a meeting to discuss the invention publicly at 10 AM. The old rule was (or at least I was taught, back in the age before EFS) a provisional filed the same day protects absolute novelty (i.e., internationally as well as in the US). Now with EFS under the AIA, what happens the application is filed at 9:30 AM? Still okay, I think. But what if I file the application after the talk but before midnight the same day? Is the talk a prior disclosure even though it happened the same day? Also if the talk is on Monday and the application is filed using EFS on Sunday, is the filing date ‘really’ Sunday? I know there is the statement on the PTO website re the legal framework for EFS, but it must just be rulemaking and so of course subject to challenge as lacking statutory basis.