The Chart below is an update of one I published earlier this year. The new chart adds in a couple of extra cases that I had previously not included and also takes account of the Supreme Court’s spate of decisions this term, including Alice v. CLS Bank (subject matter eligibility); Nautilus v. Biosig (indefiniteness); Limelight v. Akamai (divided infringement for inducement); Highmark v. Allcare (attorney fee awards in exceptional cases); Octane Fitness v. Icon Health & Fitness (attorney fee awards in exceptional cases); and Medtronic v. Boston Scientific (burden of proving infringement always falls on patentee even in licensee DJ actions). Readers should also note that the decade of 2010’s is not yet ½ completed and the Court has already granted writ of certiorari in one pending action: Teva v. Sandoz (standard of appellate review for factual findings that serve as the underpinnings for claim construction). We can expect that the trend will continue over the next several years with special focus on the new rules and procedures stemming from the America Invents Act of 2011. Note – my list largely agrees with Prof Ouellette’s
[…] Dennis Crouch notes: “We can expect that the trend will continue over the next several years with special focus […]
[…] has published a graph of number of patent cases decided by SCOTUS in every decade since the 60’s. It looks like […]
[…] patentlyo.com, Dennis Crouch presents a graphic showing the number of patent cases decided by the Supreme Court […]
Note – my list largely agrees with Prof Ouellette’s
Ouellette, gentille Ouellette,
Ouellette, je te plumerai.
Another way to think about this is that the SCOTUS is siding with big business and deciding to decimate the patent system and doing so by enforcing their common law over the 1952 Statute. They took out the Sherman Anti-Trust Act, etc.
Consider TSM. Is TSM really unconstitutional? That should be the standard that the SCOTUS applies to review of the Fed. Cir. The Fed. Cir. was set up to interpret the 1952 Patent Act and TSM is certainly not unconstitutional, but only against the common law of the SCOTUS.
The real problem is that the Fed. Cir. being so specialized has enabled special interests to stack the court so that we didn’t get the strong voices on the court to sort through this and stand up for the court. Instead we got — by and large– mediocre minds that are willing to let the axe fly in exchange for their appointment and salary for life.
TSM does avoid hindsight. But, is obviousness even the right test to the exclusion of others? Hotchkiss was not about obviousness at all, but about a substitution of materials without any change in function. There really was no advancement in the useful arts.
103: obviousness is what the 1952 says should be used.
So, again, we have Ned brining in pre-1952 case law.
And, Ned are you telling me that you don’t think that a TSM could be found regarding the substitution of the materials and the benefit of the substitution? (which you conveniently left out of your post.)
Night, if 103 asks the wrong question, we will get the wrong answer.
Tell me, Night, why would the substitution of clay in the doorknob of the house is case without any mechanical change be obvious to one of ordinary skill in the art? Consider that clay knobs were old.
Ned, the point of my post was that TSM was a valid statutory interpretation of 103. I don’t need to be schooled in Hotchkiss.
I understand that TSM is not perfect. The point is that TSM is an interpretation that was objective and leant itself to objectively measuring the quality of examination. It was a good interpretation for administrating our patent system of 100’s of thousands of patent applications a year.
Now, please, if you are going to respond address my point. I understand that TSM will miss some things that would be caught under Graham.
Well, TSM is an excellent test. Add to that some objective “functional” improvement test, then we perhaps have all that we need. If there is TSM or if there is no functional improvement, then the claim is not patentable under 103.
Ned,
Not every innovation is a “functional improvement” in the linear sense.
We want to pave a parking lot, not a road.
You call me a jerk and then ignore my post and try to give me a lesson in Hotchkiss? Think Ned. Read my post and then respond with comprehending what I wrote. Under the framework I suggest, you should have said that you believe it is unconstitutional due to Hotchkiss.
Is that what you think? Do you think TSM is unconstitutional? An argument can be made that it is. By saying the SCOTUS can define invention and that TSM is then not an invention. But, that is taking a very heavy hand when there are 600K applications to examine a year.
Night, TSM is an excellent test. Objective, based on evidence. That, plus some requirement for functional improvement is all that we need.
You miss the point that NWPA makes as to the “authority” involved and your stepping back prior to 1952 in order to salvage your position from a proper legal authority standpoint.
In doing so, you disregard what happened in 1952 and why Congress reacted to the courts as they did.
You invite a repetition of history, and then you will wonder how it came to be so. Open your eyes.
“Night, if 103 asks the wrong question, we will get the wrong answer.”
Sorry Ned – Congress reacted to the way the judiciary was mucking things up with “invention”**
That is the reality that you need to come to grips with. You have had 62 years to do so.
** – and Myriad other terms of the same ilk.
If the patented product in Hotchkiss was no better than the prior art, as Ned contends, what harm would there have been in keeping the public from using it? And why did the alleged infringer insist on using it instead of the prior art, when the result was he got sued?
The better way to look at it would be to strengthen patent rights and enforce a stronger doctrine of equivalents.
After all – if that were the case, then the Hotchkiss patent would not have been granted over the prior art.
There is a real problem in the disparity of wanting weak patents – weak patents serve as (necessarily) weak prior art. Strong patents serve as (necessarily) strong prior art.
It is counter-intuitive, but the answer to the lament from the anti-patent crowd is actually to make patents stronger. Patents only have a limited time – then they belong to the commons. If the “left” recognized this as building the commons (instead of their intense focus on patents as creating a personal property), academia (harbinger of the left) would be singing a different tune. The problem is that they cannot get over their phobia of any personal property outside the control of the ‘commune.’
TSM does more than just avoid hindsight. It provides an objective test. An examiner’s work can be checked by others looking for that TSM, for example.
TSM was moving things forward. Now we have the ’cause test.
And the fact is that TSM was starting to tighten the screws to the examiners. The examiners had to learn the art in the unit so as not to miss a TSM.
Now it is ’cause baby I feel it is so. Why? ‘Cause, ’cause, and more ’cause baby.
Advancement….
Beware the canards of those who would think that advancement is linear and straightforward.
Methinks, that many need to brush up on understanding how innovation actually happens in the real world.
The clown show never ends with billy and night wiper. Still crying over KSR? Get a flipping life, l o s er s.
Wipe away the ad hominem and (once again) there is no point in your post Malcolm.
Try again to say something meaningful.
“Those situations, to many in tech, highlight the absurdity of a patent system that seems to reflexively rubber-stamp the most trivial applications.”
That’s just the entitlement program at work. That’s how it was designed.
“The tech community, adds George Washington University professor John Whealan, himself a deputy G e n eral Counsel for Intellectual Property Law at the USPTO from 2001-2008, “has, with all due respect, become an anti-patent community. It wants what it wants, and it doesn’t want to compromise.””
Look Mr. ponytail himself stops by to tell us all how anti-patent the tech world is.
“‘Why in the world would you appoint someone to run an agency who would be vehemently opposed to your reforms for it?’”
A good question.
I wonder just how popular Judge Rich of State Street Bank and Alappat is in Silicon Valley or on Wall Street? Or for that matter, Judge Rader, who never saw programmed computer patent he did not like? What about Judge Newman of Nautilus? Indefinite claims? Who gives a sh!t?
But in the halls of the patent bar lobby groups, these folks remain heroes.
Times they are a changin’.
Your bias is peeking through again…
Where is the Whealan quote?
Off-topic article in today’s Washington Post about why the USPTO has no director.
Thanks for the link.
As long as we get a Director who was on the record speaking in clear understanding terms about the issues presented by Prometheus v. Mayo, we’ll be in good shape.
Someone who was incapable of understanding the case or who refused to acknowledge the issues presented has no business practicing patent law, much less Directing the USPTO.
Yes, as mor0n Milly (MM) says we need someone that thinks that information processing methods are natural laws. They should also believe that information can be represented without structure. Wouldn’t be bad either if they believed that iron was required for real Milly structure.
You know, Night, you are a real jerk.
Really? And posting nonsensical factual and legal analysis everyday for a buck is not being a jerk?
And, Ned, anon is right about you. You turn a blind eye towards MM’s tirades. But, let’s face it, your entire lot is so demented and unethical that any dealings with you is not going to be civil.
Night, MM will always engage one in serious discussion even if he disagrees with you. If you are having a problem communicating with him, I might suggest it could be because of something you are doing, the way you argue, etc. In fact, I am sure of it.
MM and I do not agree across the board — but on the most important issues, we do agree.
“the way you argue”
Ned – you quite miss the point – repeated often – of what needs to change here. Malcolm is indeed the poster child of all that is wrong, and you do in fact ignore this.
Ask yourself – who (by far) has had more posts expunged for the way the posts “argued” than all others combined?
That would be Malcolm.
Ned, I am reasonable with Mor0n Milly (MM). Is MM upset with me? Is that your concern Ned?
From those that (largely) align with Ned’s perspectives and agendas, it is called “swagger” – from those whose views do not align, it is “jerk.”
Wake up Ned – take a step back and see the entire picture, and how your lack of objective treatment lessens (not increases) your persuasiveness.
Billy and Night Wiper will protect the universe from the “ra pers and kil lers” who disagree with them about the awesomess of “non-linear” improvements in methods of shoving an ad in your face.
The greatest Merkin heroes evah!!
LOL.
More pointless and empty ad hominem from Malcolm.
@tta boy
Ned,
Your umbrage is far too one-sided.
” “It really just feels like a tax on innovation,” said Althea Erickson, Etsy’s policy director.”
Of course it “feels that way” because that is what it is in its essence. A tax that results from an entitlement program setup by the government to promote the progress of the useful arts.
“Those situations, to many in tech, highlight the absurdity of a patent system that seems to reflexively rubber-stamp the most trivial applications.”
That’s just the entitlement program at work. That’s how it was designed.
Clearly, Accept-Accept-Accept is just as wrong as Reject-Reject-Reject.
But 6, your mindless mumbling of “entitlement program as if there was no such thing as Quid Pro Quo really diminishes whatever point that you are trying to make.
You may relish the role you play as blog jester, but you might want to consider a different role if you ever want anyone to take you seriously.
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