Comments on the “Real Name” Experiment

By Jason Rantanen

I’ve created this post so that folks can comment on the “real names only” rule that I’m applying in the Interpretation-Construction Distinction threads.  I’ll continue to delete posts under pseudonyms in that thread.

As a point of clarification: Your “real name” is the name that you would use when filling out documents that include the language “under penalty of perjury.”

And a second clarification: I’m only applying this rule to this series of posts.  It is *not* a general policy change.

 

409 thoughts on “Comments on the “Real Name” Experiment

  1. 37

    “Real names only” should be necessary for anyone who posts prolifically. Allow the occasional passerby to post anonymously. That said, overall, non-anonymity would elevate the level of discussion in these forums.

    Really, though, the only way to have a blog on the Internet with high quality commentary is to police the comments, and that takes time. Remove offensive posts, ban people who cast insults or use (or simulate) offensive language, insert some editorial comments from the moderator, such as “please, keep this discussion on topic”, issue warnings, or outright remove entire threads of discussion that are bickering or are essentially repeats of prior remarks, allow readers to flag posts for moderator review, etc. A lot of blogs have comment sections that allow one to “collapse” entire threads … see Disqus, which has many of these features. Until something is done to shape these discussions and curtail abuses, Patently-O will continue to be mostly an excellent source for patent law updates with spotty quality of debate, which is too bad.

    1. 37.1

      I wonder why Disqus was abandoned?

      I wonder if it had anything to do with the fact that it was easy to see which poster said exactly what (unless of course, maximum privacy mode was selected).

      See 36.1.1 for related musings.

      Let me also add, as a reminder, that I have always been willing to live by any posting rules that I see enforced. Objective clear rules enforced equally is really the only way to go.

  2. 36

    Seriously, just read through this nonsense. MM is the root cause of the problem. He has accounted for like 1/2 of all posts on patentlyo and is clearly being paid to do so.

    He repeated posts the latest policy positions of the anti-patent movement, he regularly engages in name calling, sock puppetry use, blasting, etc.

    Just verify that he isn’t paid to blog on here and all will be well. Most telling is that he won’t take me up on the offer to not respond to each other’s posts.

    And yes I am limiting these type of comments to this thread of posts. But, note that wherever I post on this blog that MM follows with harassment.

      1. 36.1.1

        There is an interesting and somewhat counter-intuitive point that can be brought up here, and it regards another brief experiment for posting under the Disqus system.

        During the time that that system was in use, very very very few people opted for the maximum privacy settings – which provided for far more than just simple anonymity. It provided that your history of comments on this blog alone could not be directly tracked.

        I note this because every single one of the very small group of highest privacy settings posters were also regulars that have come out as anti-software and anti-business method patent people.

        I asked (and was never answered) why that level of privacy was desired.

        Anyone want to hazard a guess to fill in the void?

      2. 36.1.2

        A little OT, but Night Writer, what do you think of this:

        finance.yahoo.com/news/big-data-knows-youre-going-130331790.html

        1. 36.1.2.1

          I think this is going to be commonplace in 10 years. I think that computers are going to start managing people. My guess is that most people will be working for a computer as a direct supervisor within 20 years. I also think that J. Ginsburg statement that the patent system wasn’t meant for these type of inventions that of organizing human behavior was and is perhaps the most ignorant thing I have ever heard from an educated person. It is frightening that the justices are so removed from reality. Or that they would try to hold that a machine that does their job is “abstract.” Just bizarre. Epic in how strange it is.

          1. 36.1.2.1.1

            “My guess is that most people will be working for a computer as a direct supervisor within 20 years.”

            Lulz. I’ll barely work for my current boss as is. Working for a computer appears a lot less likely than human level AI becoming commonplace. At least to me.

        2. 36.1.2.2

          There have been some excellent science fiction novels about how computers are going to be used to manage people.

    1. 36.2

      There is some truth to that, but I would add: don’t feed a troll. Ignoring one can be effective.

      1. 36.2.1

        Eight years and running says otherwise.

        L O N G before I started posting here, the exact same problems ran rampant.

        See patentlyo.com/patent/2007/06/patentlyo_comme.html/comment-page-2

          1. 36.2.1.1.1

            Interestingly, that’s not the only glitch with the archives.

            I have the link to the post with the posting “rules” (in which, for example, it states that posts are to be of a personal nature), but that particular post does not show up in the “by the month” archive look-up tool at the bottom of the blog (the direct link to a typical “terms of use” was removed awhile back).

            Further, there are a number of past oddities that reinforce a perception (and note that I am saying only that it is a perception) that Malcolm has special privileges and leeway on this site (for example, prior to a software change that broadly enabled the function, Malcolm was able to provide an internal link to a specific comment. As another example, Malcolm’s posts skated through a filter and my direct copy of his exact post was detained. Lastly, limitations on postings ‘offered’ on a non-symmetric basis have been “justified” by a vague reference to history, while notations to certain other history have been inexplicably ignored.

            I can only think back to the sage words of Anon2 – this is not an objective forum.

            1. 36.2.1.1.1.1

              >Malcolm’s posts skated through a filter and my direct copy of his exact post was detained.

              Well that’s weird. But, my guess is that MM is a massive trouble maker, but that Dennis likes him because he has kept the comments section active through thick and thin. You know that in many ways having a paid poster use your site is not all bad.

  3. 35

    This is a great question and I really appreciate the attempt to improve comments here! However, I don’t think policing or real names are really the best solutions (besides obvious policing attempts to curb spam).

    The best solution would be to limit the number of comments per user per post. For example, three to five comments per person ber post (e.b., based on email address). If they really have that much to say, they should write an article.

    This would encourage robust debate available with anonymity while reducing the often ugly back and forth that I get annoyed with here. In fact, I generally don’t read comments much here because I get sick of the vendettas and immaturity that occupies 80% of the comment section. There are a few specific commenters that hate each other. I have seen huge and pointless back and forth arguments between some (I will not list screen names, we all know who you are). I am not interested in their hate for each other. I would be willing to skip through some of those if they weren’t so numerous.

    I will say that I do often appreciate the input of the top commenters, but I think that if they are limited in how many posts, they may think them out a bit better and not fall into some of the low quality commenting that I often see. If you really have that much to say, write a nice article and try to get it posted or published.

    1. 35.1

      One thing that promotes is making really big posts – trying to get everything into it all at once…

      And then being unable to respond to replies afterwards.

      1. 35.1.1

        Yes, that is a bit of a worry. But if you put the number at 5 or so, you get a number of more detailed, thought out comments, and then one big one… All joking aside, the number of one-line comments is a bit annoying. Say something and let it stand, don’t take sixty posts to say it. Or say it over and over.

        Another option would be to at least reduce root posts (not replies) and automatically leave reply branches unexpanded…

    2. 35.2

      You know, from my perspective, here I have an open offer not to respond to MM’s post if he doesn’t respond to mine. He won’t do it. He has a post below that basically says that he feels it is his duty to respond to my posts and that he feels that my arguments are so poor that he has the right to be abusive.

      Now tell me who is the source of the problems.

      And, again, a simple verification that someone is not a paid blogger would solve this problem.

      I ask you: if Google is the number one contributor to Congress, then what is the likelihood that they are not paying people to blog? Answer from any modern marketing person: ZERO.

  4. 34

    tl;dr: Please keep the commenting rules the way they are.

    I never post but read many of the comments from the articles that are interesting to me. Please don’t require real names. Although the comments can devolve into a form of crassness usually reserved for middle school locker rooms, the analyses in the comments are invaluable, and I believe a loss of anonymity will lead to a loss of depth of treatment. Those of us who rely on keeping clients happy are justifiably worried about attaching our real names to our comments. Statements that are not controversial now have a way of becoming controversial years later.

    As for filtering the comments before allowing them to post, although the theory is sound, its application often leads loss of readership and vigorous debate. People just lose interest when the comments are not posted quickly. A “good” example of active moderation is Redline. Although relatively new, it is not a hot bed of debate like its sister site, Above the Law (which, incidentally, has its share of crass comments).

    In the legal profession, we need vigorous debate to develop the law. Sometimes that means exposure to ideas that make us feel icky, but that icky feeling is not any reason to stop the debate or even to impede it. Clearly the First Amendment does not apply to this private blog, but the ideals behind free speech are just as true here as in the public forum. We cannot truly find an optimal solution to the problems of today without debating the relative merits of as many ideas as possible, rejecting those riddled with nonsense and adopting and refining those truly worthy of development.

  5. 33

    “[Responding to zombie arguments and/or debunked myths] doesn’t need to be done with personal insults. But it needs to be done. ”

    How about letting D make that call?

    D created a blog with a comments section (the only kind of blog that matters, as far as I can tell). People are going to comment and people should comment, both in response to the originating posts and to other comments, particularly when the posts or the comments includes a statement or argument that is either nonsensical on its face or that can be easily shown to be logically incorrect.

    The problem here is not excessive comments in response to zombie arguments. The problem is the zombie arguments (and the inevitable ad hominems backing them up) and the tiny handful of commenters who insist on making them either because (1) they are hear to troll or because (2) nobody has ever explained to them why the statements are nothing more than self-serving slogans (or worse: because some “expert” elsewhere has been preaching those slogans to them).

    Among the zombie arguments that we have seen trotted out here (and elswhere) endlessly: (1) if you disagree with me about patent expansionist position X, then you must be an Examiner or a thief; (2) every patent creates a job; (3) critics of patent expansionism are thieves, communists, anti-business or anti-american; (4) critics of patent expansionism are paid for by [insert company here]; (5) critics of patent expansionism don’t understand technology, law or business; (6) scholars are especially prone to espousing communist positions; (7) all processes are eligible for patenting; (8) all manufactures are eligible for patenting; (9) all improvements to eligible subject matter are eligible for patenting; (10) you can’t dissect claims for any reason, but especially for subject matter eligibility reasons; (11) obviousness can take care of all the patents that are being found ineligible today.

    These arguments are the intellectual equivalent of the “arguments” that “there is no evidence that humans evolved from apes” and “evolution is a myth created by communist scientists.” And yet we see them promulgated over and over again by (allegedly) college educated lawyers. Why? Because there’s other competing “information sources” out there that are still pumping people up with the nonsense, and — most importantly –because they don’t have any better arguments.

    The idea that one becomes “a bigger man” by giving a free pass to the zombie arguments is barely worth addressing. Nevertheless, I just addressed it. It took me two minutes and now I’m going to return to my oatmeal.

    1. 33.1

      “The idea that one becomes “a bigger man” by giving a free pass to the zombie arguments is barely worth addressing. ”

      The idea isn’t that you become a bigger man, it’s that you already are the bigger man and you will be willing to show that to the world through your actions.

      I understand all of your reasons for addressing them brosef, but the fact is that as of today most of their talking points are already without the “legal support” (aka judicial pronouncements) that they were leaning on 5 years ago. Thus, the influence of their comments is practically nil without you creating a ruckus on top of their comment. That is to say, at this point they’re just flappin they gums. So just let them for awhile just as an experiment if nothing else.

      And again, D can banzor them anytime he pleases.

      1. 33.1.1

        6, I read your words and found them to make good sense. I suspect that, as of now, goodwill remains with MM. having regard to your powerful point about the recent caselaw, it might be that, from now on, the most potent anti-zombie procedure is simply to ignore their postings.

        MM is often very funny though. I should hate to lose that ornament to this blog.

        6, there is something I want to ask you, about the Chiang claim construction stuff. I can’t ask it on the closed threads. So, if I may:

        Chiang’s “Ladders of Abstraction” Paper 8that he invites us to read) gives as an example a claim to a method of treating AIDS with X-radiation. The specification recites in full enabling detail one such method (which for the sake of the example, we must assume, I suppose, is effective). Chiang postulates verious levels of abstraction in the independent claim, which might (for example) read:

        A: A treatment for AIDS
        B: Method of treating AIDS, with radiation.
        C: Method of treating AIDS, with X-rays
        D: Method of treating AIDS, with daily doses of X-radiation
        E: Method ………with (dosage level and frequency specified)

        Chiang writes about vagueness in the claim, and over-broadness, but to me this is making a mountain out of a molehill. I suppose that is what academics like to do but I think they and Supreme Courts should do the opposite, namely simplify issues, not make them more complex than necessary.

        For me, there is an easier way, as follows. Can this easier way be utilised, inside the USPTO?

        The specification of a patent application virtually always enables a technical problem to be solved (even if only to provide a mere alternative to a prior art product, process or apparatus). It enables one mathematical point within the balloon defined by the peripheral claim. As one ramps up the level of abstractness in the claim, it changes, from being a definition of that solution to a mere statement of the problem to be solved. A solution is a patentable invention. A mere statement of a problem to be solved is not.

        Now, at the EPO, the Examiner uses Art 84 EPC (clarity of the claim) to get to the right answer. In the USPTO it would be a 112 issue.

        The EPO Examiner observes that, according to the specification, the only enabled way to solve the problem is to use daily doses of X-rays (with dosage in a given range). There is no teaching in the specification that makes it plausible, that outside this range any effect is achieved. To the contrary. It appears from the overall teaching in the specification that the dosage specified is the only way so far discovered, how to achieve the effect. The independent claim becomes “clear” only when it recites those features which, in combination solve the problem ie deliver the effect. Any claim that omits these features, while holding itself out as a definition of “the invention” is disingenuous and in fact in contradiction to the teaching of the specification, as to what the invention is. So its presence renders the specification and claims, as a whole, unclear.

        Looking at it this way, none of claims A,B,C above is allowable under Art 84, EPC.

        Such an approach saves you having to tell the Applicant that his claim is vague or over-broad. With the EPO approach, the Applicant is the author of his own misfortune, so not best placed to rage at the iniquity of the Examiner or the law.

        And the inventor can understand the objection too. For me, we all have a duty to make patent law easily comprehensible to inventors and businesspeople, to help them become fans of our patent system and see the goodness and commonsense in it.

        Your thoughts?

        1. 33.1.1.1

          “Chiang’s “Ladders of Abstraction” Paper”

          Yeah I read a tiny bit. Figured I might read the rest later. He has some insights but at least so far he doesn’t seem to have come across the most fundamental insight regarding that topic. Specifically that letting abstraction rum rampant in the claiming of actual inventions in the actual useful arts is what led to the current conundrum in the law. Then you have people saying “if it is ok over there, then why not over here as well?”. Truth is, it never should have been ok “over there” in the first place. But lax oversight, coupled with some conscious policy decisions, permitted it over the years.

          On to your questions tho.

          ” Chiang postulates verious levels of abstraction in the independent claim,”

          First allow me to jump in with what I see as a crucial correction for you and Chiang. he calls this “abstraction” but it is really just “generalization” in his example. He isn’t really doing much “abstracting”. Generalization is legit. Abstracting, not so much and is especially vulnerable to going off the rails.

          “So its presence renders the specification and claims, as a whole, unclear.”

          You’re asking if we should try to utilize the approach of rejecting the claim under 112 2nd (or maybe 1st) for being “unclear”?

          If that’s the question, no I don’t think that that will fly under Nautilus. One of ordinary skill is quite aware of what the claims A B C mean, that is to say, they’re clear.

          “And the inventor can understand the objection too. ”

          Somehow I don’t think they will.

          In any event, rejecting most of his hypo should be addressable with 112 1st enablement even though that section has been so abused by the courts as to be entirely too toothless as of late at the office stage due to lack of evidence against the applicant. Which of course is stupid, the applicant should be the one having to provide evidence of his broader enablement in such situations. And yeah yeah, sometimes a scope of enablement rejection goes out ok, but sometimes they’re real arses about it and office personnel are not trained with it.

          A gets knocked out ez with 112 enablement. B and C likely require scope of enablement rejections that might be hard for examiners in those arts to enunciate and find properly. What we really need to combat B and C is more recognition of scope of enablement rejections in the office.

          1. 33.1.1.1.1

            What we need for a complete picture here (for the ladders of abstraction discussion) is for three additional ‘experts’ to join the fray.

            What say you, RandomExaminer, DanH/Leopold, and Ned?

          2. 33.1.1.1.2

            Thanks 6. Yes “scope of enablement” would work.

            At the EPO, the notion “has Applicant made it plausible” has a lot of traction. But then, under Europe’s civil law system, EPO Examiners have more leeway, to assert themselves as a person “skilled in the art” and erect a prima facie case, whereupon the burden switches to Applicant, positively to demonstrate (as by evidence) that the Examiner’s prima facie case is not well-founded. Once you had learned the ropes, you would enjoy writing Office Actions at the EPO, and would scare the (brown stuff) out of many of them.

            1. 33.1.1.1.2.1

              Further replies to you 6.

              I do not say that the claim, as such, is lacking clarity. Rather, i say that the document is unclear, the one that comprises the description and the claim and in which the claims are to be read in the light of the decription. If they contradict each other, the doc is unclear even if, each taken alone, the claim by itself is clear and the description, taken in isolation, is clear.

              You say that generalisation is OK. Up to a point, yes it is. That is the skill of the patent attorney, to take it to that point. The skill of the courts is different: it is to tell us all how to identify that point, where the claim ceases to define a solution and instead simply announces a research project to be undertaken, to solve a specific problem.

              Scope of enablement? OK, it could work, but only when the PTO is given the power to hold to its line. The way I see it, you can’t object till you have evidence. At least in the computer-implemented arts, Applicant just tells you that for a competent programmer the necessary code is obvious, so the wide claim is enabled, across its full width. What can you do then? Back down? What else can you do?

              1. 33.1.1.1.2.1.1

                “Scope of enablement? OK, it could work, but only when the PTO is given the power to hold to its line.”

                We have that power, we just don’t use it often, preferring to only use it as a last resort or when we have good evidence against them. But then, we don’t really need to use it all that often either.

                “The way I see it, you can’t object till you have evidence. ”

                Right, it is very rare when we’d make one without evidence. They have to be going waayyyy beyond what is reasonably enabled to get hit without evidence against them.

                “At least in the computer-implemented arts, Applicant just tells you that for a competent programmer the necessary code is obvious, so the wide claim is enabled, across its full width. What can you do then? Back down? What else can you do?”

                Nothing, that’s why there is such a problem in the “computer-implemented” “arts” such as they are. Think on it max, all “programming” is is “typing” in almost all modern applications. If practically the whole “art” is just “typing” then of course you’re going to get absurdly broad patents if you allow them, and doubly so if you let them use functional language. But they get around this little fact by quite a bit of sleight of hand.

                1. Thanks again, 6. One quibble. It is not right, to say “of course” the result is the allowance of “absurdly broad” claims. No inevitability about it, at least at the EPO.

                  I hope you agree that the issue is not with “broad claims” as such. Sometimes the inventor’s contribution to the art is so ground-breaking that an extremely broad claim is only fair. The problem is when they are “absurdly” broad. Why does anybody think “Absurd!” when they see some broad claims but not others?

                  The EPO has various tools to deal with this particular absurdity, of which “scope of enablement” is only one, and Art 84 clarity is another.

                  The tool I particularly like is Art 56 obviousness. At the EPO, the only sort of non-obviousness that counts towards patentability is non-obviousness of the solution to an objective problem in a technical field. Solving as non-technical business or accountancy problem doesn’t “count”, doesn’t carry any patentable weight. This is what eliminates the absurdly broad claims.

                  Now that the appeal courts in the USA are increasingly telling us that they are tying patentability to the solution of a technical problem, I imagine that the USPTO treatment of obviousness, guided by the courts, might, in the fullness of time, come closer to the way the EPO does obviousness, thereby returning the patent system to its intended role, promoting the progress of the useful arts and not getting in the way of progress anywhere else.

                  This thread is about to drop off the list of current threads, so we should stop now. It has been fun though.

                2. “I hope you agree that the issue is not with “broad claims” as such. Sometimes the inventor’s contribution to the art is so ground-breaking that an extremely broad claim is only fair”

                  That depends on whether or not the inventor’s contribution to the art is “ground-breaking” typing or something other than typing which might be inventive in the useful arts.

                  “Why does anybody think “Absurd!” when they see some broad claims but not others?”

                  I usually think “absurd” when I see a claim going well beyond the bounds of what was enabled by the inventor. As in, specifically by the inventor. Or outside the scope of enablement. And occasionally in light of anticipatory art known already to myself. But that’s just me.

                  “Now that the appeal courts in the USA are increasingly telling us that they are tying patentability to the solution of a technical problem, I imagine that the USPTO treatment of obviousness, guided by the courts, might, in the fullness of time, come closer to the way the EPO does obviousness, thereby returning the patent system to its intended role, promoting the progress of the useful arts and not getting in the way of progress anywhere else.”

                  We will see.

                3. The exchange here, while pleasant and cordial (as would be expected from those sharing the same bubble), exemplifies several repeated fallacies that are propagated in such like-minded discussions.

                  Let me politely then add a note:

                  1) there is a non-US sovereign abdication. Comparison effects are one thing – glossing over actual differences is quite another. Even under our recent Court rulings, business methods have not been ruled as outside of the Useful Arts (3, the new 4, is still not 5)

                  Both 6 and MaxDrei use a de facto definition that such are outside of the Useful Arts as a foundation to their views. Clearly, when your foundation is so flawed, the edifice you build will not stand.

                  2) lack of respect for separation of powers and the limits of the judiciary in writing patent law. As covered by Prof. Hricik on the ethics side of the blog (in part), certain people appear to be needed (often) to be reminded that US patent law is by design statutory law with strict limits as to the use of common law development. Pre-1952, congress had invited the judiciary to help write that law by punting on the defining of the word “invention.” As has been shown, Congress changed the game in 1952 by choosing to eliminate this authority to the courts and setting up a new section of law – choosing obviousness in place of invention.

                  There is NO legally authorized manner for the judiciary to (now explicitly) write and insert an additional word (i.e. ‘technological’) to the words of Congress.

                  3) discussions on breadth can be – and must be – separated from discussions of 101. It is disingenuous to import that which is a 112 discussion into a 101 discussion. The Court itself said this in Prometheus explicitly. To say one thing (as to not to do something) and yet turn around and do the very thing under a different name is the very defintion of duplicitous.

                  4) the aim for “cordiality” can mask these types of deeply flawed discussions, and the fact that these points here have been made several times in the past to both participants (and yet so eagerly ignored by both) also should serve as a sign that the ‘experiment’ here is f@tally flawed.

        2. 33.1.1.2

          My thoughts are in the filter I guess we’ll see if they pop up or if I have to repost without “g e n e r a l i z a t i o n”.

        3. 33.1.1.3

          My thoughts Max are that you are as culpable as MM for his behavior. He consistently support him, and I think that MM has captured your attitude in this post. You somehow believe that MM has the right to become abusive or post 10’s of posts if he judges the merits of the arguments to be not high enough.

      2. 33.1.2

        This is some really ridiculous stuff MM and 6 are posting. 1) 101 is currently not anywhere near settled. 2) The opinions expressed by me are also expressed by dist. court judges, many practicing patent attorneys, and some retired Fed. Cir. judges.

        And MM is saying what? That he has evaluated the arguments and since he believes them to not have merit that he may then become rude and as obnoxious as he wants, ’cause, ’cause.

        And let’s not forget that MM is currently blowing about as much smoke as he can to avoid having to be verified as not a paid blogger.

        Really, the nonsense of MM and 6’s posts are just ridiculous.

        1. 33.1.2.1

          “This is some really ridiculous stuff MM and 6 are posting. 1) 101 is currently not anywhere near settled. 2) The opinions expressed by me are also expressed by dist. court judges, many practicing patent attorneys, and some retired Fed. Cir. judges.”

          I can agree with 1) but that’s because it is only likely to become more strict on ya as time goes forward. Not less. The 101 cases that just happened will not be overturned in our lifetimes bro and nothing short of overturning them or a new statute is going to loosen them up. The supremes have already shown willingness to set the Federal circuit straight should they step out of line. You can continue to talk about the subject all you like, in terms of governance your discussion will have zero impact at this stage. Sorry. This is real life and that’s how that works.

          And re 2) I’m sure they are. It’s too bad that those folks are likewise in the same boat as yourself. Your positions had their day in court. Now it’s time to move on. That’s how governance works bro.

          “And MM is saying what? That he has evaluated the arguments and since he believes them to not have merit that he may then become rude and as obnoxious as he wants, ’cause, ’cause.”

          I don’t think that’s what he is saying. He’s simply saying he should be allowed to post after you and clean up your mess. Your getting his goad isn’t usually directly addressed by him in the manner you just stated it supposedly was.

          “And let’s not forget that MM is currently blowing about as much smoke as he can to avoid having to be verified as not a paid blogger.”

          Ummmm, okaaaaaaay. Right. Newsflash, ain’t nobody but you give two shts about his being paid or not. I know you’re the most important person evar in your mind, but on here you’re somewhat less so.

          1. 33.1.2.1.1

            >>Your getting his goad isn’t usually directly addressed by him in the manner you just stated it supposedly was.

            This is the part that is most offensive. Really? MM has this special status where he is allowed to have his “goad” gotten and then this justifies his behavior and the support of this gang of friendlies. Sorry no special status for MM.

            >Your positions had their day in court. Now it’s time to move on.

            Certainly I do recognize the new cases. And have moved on to responding to the new decisions from proposing responses. Do you really think you understand the state of 101 better than me? Or that I am not entitled to my opinions? The law does not work that way. 101 is not settled law. 101 is very active and I am sure the judicial activist would just love for everyone to roll over and give up.

            Fact is from a legal perspective, MM’s argument to “move on” is ridiculous. One does not “move on” (roll over) in a fluid area of the law.

            Frankly, 6, I can’t even think of your arguments without laughing because they are so absurd. And the fact that MM has you guys repeating them is ludicrous. 101 is a fluid area of the law. No one is going to “move on” anytime soon. 101 will be contentious for years to come. You should read what some of the district court judges have said about the SCOTUS. Worse than anything I write.
            Or read what Chisum has written about Benson. Fact is that there are many people that are highly respected that say that the current state of 101 is madness. And, 6, again, law does not work like “move on.” A contentious area of the law like 101 will remain contentious probably for our life time. I am afraid that the zeitgeist of the judicial activist have mucked with patent law and now we are stuck with this mess created by Stern and Lemley.

            MM’s attempt to use this as a justification for bad behavior should not stand and should be seen as just silly tro ll behavior. The fact is that after watching this blog for 10 years there is no doubt in my mind that the problems would be solved by reining in MM. The fact that he believes he has a special status where he is allowed to have a “goad” that if gotten entitles him to become abusive is reason enough.

            1. 33.1.2.1.1.1

              “This is the part that is most offensive. Really? MM has this special status where he is allowed to have his “goad” gotten and then this justifies his behavior and the support of this gang of friendlies. Sorry no special status for MM.”

              I didn’t say he gets special status. I said he has yet to address that topic in the manner you keep on ascribing to him as having already addressed the topic.

              And to be clear, I’m not excusing him going all crazy on a few threads of late here. You all need to cool it a bit. This be the new tomorrow after all, and even though we aren’t rid of anon entirely yet we still need to do better.

              But MM does have some decent analysis he posts on a variety of topics in addition to his fighting. You on the other hand rarely seem to post on anything other than to fight or spread a certain position which we all already know.

              “Certainly I do recognize the new cases. ”

              I’m glad to hear you say that. Though I’m not sure they have really sunk into your soul just yet. From the rest of your post you don’t seem to be getting it.

              101 was never “contentious” within the last 50+ years. The only thing that was ever “contentious” was the federal circuit’s meddling in it. Now that is over. Kaput. Ended. That is what ended. The meddling. By the CAFC. Now 101 gets to go back to being not contentious again because the meddling is over. That meddling isn’t going to resume in our lifetimes and the supremes aren’t going to about ship. And that is what you don’t understand.

              Of course there will be contentious cases, but that is a different matter.

              “The fact that he believes he has a special status where he is allowed to have a “goad” that if gotten entitles him to become abusive is reason enough.”

              Careful brosef I remember you going all apoplectic, positively bat sht insane, for awhile around a year ago. And at the time you were all “o it’s ok”.

              1. 33.1.2.1.1.1.1

                >101 was never “contentious” within the last 50+ years. The >only thing that was ever “contentious” was the federal >circuit’s meddling in it

                This is factually wrong. Benson was all about 101. The 1952 Patent Act stretching back a bit more was about 101 too without explicating getting rid of “flash of genius.”

                1. “Benson was all about 101.”

                  Of course it was “all about 101”. And it was resolved under the uncontroversial law of 101 at the time. And that law hasn’t changed one bit in 50 years.

                  “The 1952 Patent Act stretching back a bit more was about 101 too without explicating getting rid of “flash of genius.””

                  Right, they dropped 103 out of 101 and got rid of the req for “invention” as it was understood in the day (requiring flash o genius).

              2. 33.1.2.1.1.1.3

                and even though we aren’t rid of anon entirely

                So much for that fake politeness…

          2. 33.1.2.1.2

            >>ain’t nobody but you give two shts about his being paid or not.

            People should. 1) it is a policy of this blog that forbids paid bloggers. 2) If you were educated about the modern tactics of paid bloggers, you would care. They pollute a blog with policy statements repeated over and over again, and just like MM’s posts typically engage in abusive behavior to obfuscate issues.

            I saw this recently when I blogged about the vapor cigarettes. Wow, it was clear that the tobacco companies had paid bloggers that came after me. I post a short two paragraph post and was blasted for it. (Basically, I said we know nicotine is addictive so why in the world are we allowing kids to use these things.)

            1. 33.1.2.1.2.1

              Maybe you’re right that they “should” (i.e. are obliged to be). But they aren’t. They “should” care about the elections of the government. But they aren’t. We’ve got more important things to care about. Like counts, money women, etc.

              You been vaping much? Or are you just doing work on them?

              “Basically, I said we know nicotine is addictive so why in the world are we allowing kids to use these things.”

              I thought they were regulating the use of the nicotine additives and all that? I mean, I know nicotine in and of itself doesn’t hurt people much iirc. It’s the additives and smoke from cigs that hurts people.

              To be sure, you could get “blasted” for posting that a few times in smoker’s areas. Even with no paid people. Don’t get too paranoid old timer. Sometimes people just like to get on the interbuts and show they arse.

              1. 33.1.2.1.2.1.1

                Bah, Marbury v Madison was just a row over a silly little Justice of the Peace commission – why could not those parties “just move one”…

                One fallacy (just move one / just accept it / come up with a fall back position) dutifully exposed.

                You are welcome.

                1. Not after the initial decision 6 (that’s kind of the point)

                  Plus, you need to visit again the Hricik side of the blog and the several posts which show just how often the Supremes get it wrong.

                2. You are missing the point.

                  Justice does not stop being sought if the court (or Court) is wrong.

                  What would you tell Mr. Scott?

                3. “What would you tell Mr. Scott?”

                  That depends on what he asked me. And when he asked me. But a good response as a lawlyer post decision might be to offer him some options. His “legal” option in the realm of “legal actions” appears to be to petition congress. Not file yet another lawsuit and hope the supremes change their minds.

                  A slightly less “legal action” minded option for Mr. Scott might be to simply wait 3 months until he is freed and then die a year or so later. That option appears to have worked out for him fairly well as it was probably faster than yet another lawsuit and freed him before he died.

                  So I will tell you, like I would tell him, in terms of legal actions to take, you petition congress. Probably best to start with your rep, and work your way to members of the judiciary committee. Or you can wait three months and die a year later.

                4. In effect, 6 advocates a lay down and die approach.

                  No thanks.

                  (and yes 6, as I have mentioned in the past, I do contact both my House and Senate representatives – thanks. I also avail myself of public forums; and will continue to do so)

                5. “In effect, 6 advocates a lay down and die approach.

                  No thanks.”

                  Brosef, how is contacting congress “laying down and dying”? I contacted Goodlatte and got some of his constituents to do the same. Now look who’s writing bills up ins of the congress. You could do that as well. IF you were able to persuade people.

                6. Read my 6:21 post again 6 – especially the part in the parentheticals.

                  By the way, have you seen the latest Rob Lowe satellite versus cable commercials? They are quite humorous.

  6. 32

    This obviously got missed in the shuffle below as anon did not answer the question below, so I will repeat it here:

    “Are you currently licensed to practice law in at least one state, anon?”

    1. 32.1

      Lost in the shuffle… or just merely lost?

      What is the point of your question?

      (btw, the answer is yes, I am currently licensed to practice law in at least one state)

  7. 31

    This thread is like Dante’s inferno dei superbi. Compare it to the threads with the real-name policy and the difference is striking. The ratio of wheat-to-chaff in the real-name threads is at least three orders of magnitude higher.

    1. 31.1

      Greg, I think that you missed the stated purpose of this particular thread. Prof. Rantanen stated “I’ve created this post so that folks can comment on the ‘real names only’ rule

      Let me ask a clarifying question: are you gauging your wheat-to-chaff ratio on the “Real Name” experiment or on the Chiang/Hrdy-Picozzi/Solum topic?

    2. 31.2

      Yeah, I am almost resolved to the fact that maybe real names is a better policy if the blog owner is not going to spend a good deal of time policing.

      1. 31.3.1

        The point is well taken. Obviously the real-name only threads have gotten much less commentary. On the other hand, I am not sure how much of that is a function of the real-names policy, and how much is a function of the less controversial nature of the topic. Obviously the pseudonymous commentary on the real-name threads has moved over to the neighboring threads, and even those threads have not gotten a lot of comments on the subject of the Chiang article. In any event, as others have already noted, the quantity/quality trade off in the real-name threads is not such a bad thing.

        1. 31.3.1.1

          as others have already noted, the quantity/quality trade off in the real-name threads is not such a bad thing.

          Not to be contrarian, but not all others have held to this, and from a quick impression, there is no overwhelming majority one way or the other, and no conclusion (including yours) is warranted.

        2. 31.3.1.2

          “On the other hand, I am not sure how much of that is a function of the real-names policy”

          It’s an experiment that’s been run a few times now here and elsewhere. It is.

    3. 31.4

      “The ratio of wheat-to-chaff in the real-name threads is at least three orders of magnitude higher.”

      Yes, ratio high, numbers abysmal.

  8. 30

    So, again I will make the offer that below. MM’s response is that he must respond because people will say things about him that are lies in our posts. OK. I won’t mention you. I am sure he is going to expand “MM” into a category and say he must defend the judicial activist and their cause. Seriously, Dennis read this these posts below. MM is obviously the root cause of the problems on this board.

    Still MM the offer stands.

    >>>>>>>>>>>>>>>>>>>>>>>>>>
    You know maybe one simple rule would solve over 1/2 the problem. Forbid anon from responding to MM, and MM from responding to anon. I’d be happy to be included in that deal with MM (and if you threw in jesse, I’d be in hog heaven.)

    You can see below that MM will not take this deal with me because of ……, well, you can try to figure that out yourself.

    1. 30.1

      I also suggest a less stringent requirement that at least the poster (if they are frequent ) be verified as a non-paid poster.

      This seems to be a very minimal requirement, which I think would eliminate most of the problems on this board.

    2. 30.2

      Below is MM’s response to me regarding not responding to each other’s posts.

      >>>>>>>>>>>>>
      Why on earth would I make a “deal” with a shameless pile of lying sh t like you?

      All I’d be doing is giving you free reign to smear people like me who disagree with you with completely fabricated horseshirt, just like you did in this thread.

      Why in the world would I do that?

    3. 30.3

      NWPA, remember this?

      “NWPA – I have never seen any evidence that any of the the posters are being paid directly to post comments. That said, most of the patent law professionals who post on this board have a strong vested interested in various aspects of the patent system.

      I would ask you to refrain from accusing individuals from being paid bloggers unless you are able to present actual evidence of such.”

      Dennis Crouch – September 11, 2014

      – and your response –

      “Fair enough, although I would contend that spending greater than 3 hours a day blogging on this site is at least circumstantial evidence particularly when they blog on other sites as well. But, apparently you have higher evidentiary standards.”

      NWPA (Night Writer Patent Attorney) – Sept. 11, 2014

      You have already been asked to knock off the paid blogger accusations.

      Get back on track with taking your meds and stop filling this blog with nonsense.

      1. 30.3.1

        Can we likewise have evidence from Malcolm for his accusations of “bottom feeder grifters” and the like…?

        (or any of the countless spin-mischaracterizations…?)

        1. 30.3.1.1

          his accusations of “bottom feeder grifters”

          Accusations? More like “the evidence is right in front of your face and here’s what it means”.

          You can’t remove discussion of “bottom feeders” and grifters from the patent system because (1) they exist and (2) they are both a symptom and a cause of many widely recognized problems with the patent system.

          You see how that works, “anon”?

          Again: Dennis knows this. Jason knows it. David knows it. Anybody who practices patent law knows it. Non-lawyers know it. Everybody knows it.

          There’s a big difference between discussing such people, their behavior, and (most importantly) the legal/circumstantial situations in which they thrive versus some commenter’s paranoid, baseless (and most likely hypocritical) obsession with “people being paid to post comments here.”

          Ask a friend to hold your hand and help you if you can’t understand this simple stuff, “anon.”

          All that said, even if I completely remove the terms “bottom feeding” and “grifting” from my lexicon, you’re not going to keep me (or anyone) else from discussing the fact that certain patent lawyers (like certain lawyers in any other field) are going to do whatever it takes to take advantage of whatever loopholes exist to extract cash from everybody else while contributing the least amount possible to the larger system.

          Your obsession (and you’re not the only one) with removing recognition of this fact from the discussion of patent law that only makes you look like a defender of the worst behaviors. This has already been pointed out to you. But please keep it up. I mean, it really is your problem (and the problem of anyone like you continually, ritually plies the More Patents, All the Time, Easier to Enforce script).

          1. 30.3.1.1.1

            (Let’s try again – s igh) – you missed the point Malcolm – as not unexpected when it comes to applying ‘rules’ uniformly.

            Your Be lieb system notwithstanding, law here can be discussed without your (rather dupl1citous) edge-of-grain-field-when-employing-poor-rhetorical-t001s manner of posting. You really do not have to mischaracterize law, mischaracterize facts, and spin and mischaracterize what others say in their posts to express your own opinions.

            And yes, all of the moderators and readers know this.

            You sir are not the one to point fingers when it comes to ob sessions.

            Lastly, if you truly understood patents and the patent system, you would recognize that “More Patents, All the Time, Easier to Enforceis a good and proper thing, as that would mean that the patent office is fulfilling its mandate. And yes, I do mean that granting these patents means granting them when they meet the law (the law as written by Congress). Nothing I have EVER posted is contrary to this.

            But we have seen how much of a ‘friend’ you are to the patent system, haven’t we?

            1. 30.3.1.1.1.1

              if you truly understood patents and the patent system, you would recognize that “More Patents, All the Time, Easier to Enforce” is a good and proper thing

              Like I’ve said before: the true believers just can’t help themselves. It always leaks out.

              This is the same nxtball who told us just all just yesterday that people who oppose software patents and business method patents are equivalent to people who believe in a flat earth.

              we have seen how much of a ‘friend’ you are to the patent system, haven’t we?

              Oh, lookie! Pocket Socrates is back with more of his deep wisdom.

              Too funny.

              1. 30.3.1.1.1.1.1

                Be careful of what you consider “leaking out” as your anti-patent views are on full display (more patents means more Quid Pro Quo and you have yet to show any reasonable position why this is not a good thing).

          2. 30.3.1.1.2

            Just curious, if “Everybody knows it”, then why do you repeat it so often??? Seems kind of pointless to me, unless one just derives personal satisfaction from restating it.

      2. 30.3.2

        >>Get back on track with taking your meds and stop filling this blog with nonsense.

        So throw mud at me to ask me to stop throwing mud?

        And I believe in response to Dennis the evidence is that MM has spent 40 hours a week blogging on this blog and other blogs for 10 years. And, the point of this thread is to discuss ways of lessening the noise. I think asking for proof that a regular blogger is not paid to blog is reasonable and in line with the policies of this blog.

        1. 30.3.2.1

          that isnt what Dennis meant by “actual evidence” and you know it. if that was good enough, he wouldnt have requested that you stop in the first place, as you have repeated this accusation and its supporting “evidence” (blogs X number of hours a day) for a long long long time now.

          good grief you need help. get help. please.

          1. 30.3.2.1.1

            I think that is real evidence and I think a discussion of excluding paid bloggers is appropriate for this post regarding whether or not to use real names.

            1. 30.3.2.1.1.1

              dennis has requested that you stop this behavior and you refuse. is there better “evidence” for you to be banned?

              when it happens, start talking to someone qualified to help you.

              1. 30.3.2.1.1.1.1

                Lots of things that Prof. Crouch has indicated to be stopped have not stopped.

                Might you yourself take a moment and consider which ones you should be stopping? I can think of several…

        2. 30.3.2.2

          asking for proof that a regular blogger is not paid to blog is reasonable

          Mental midgetry at its finest.

      3. 30.3.3

        And I find really telling that MM can say things like “shameless pile of lying sh t like you?” regularly to me (and he is the one that starts this name calling) and yet is not punished for it.

        1. 30.3.3.1

          Whether or not the moderators want to do anything about it, there certainly is a perception problem created when Malcolm is allowed to run rampant – eight years and running.

          The notes from others on the recent “ecosystem” thread pointing this systemic and long running blight just have to be painful. Clearly, the common denominator throughout wave after wave after wave of acrimony is Malcolm.

          What’s up with that?

          1. 30.3.3.1.1

            There is no doubt about it. Malcolm starts the name calling and abusive behavior. He has with many different people over a 10 year period.

            What I find very telling is that on other blogs I see the paid bloggers behaving very much like MM. Repeated policy statements being made. Blasting with lots of posts to obfuscate issues when they are clearly wrong. Attempts to bait people into personal attacks to lessen the impact of arguments.

            I am keeping these comments to this post regarding anonymous posts to respect Dennis’s rules.

            1. 30.3.4.1.1.1

              most state bars offer an attorney help/intervention line for substance abuse and psychological problems.

              may I recommend that you contact yours for a referral?

              if you post your state, i will look up the appropriate service for you. that’s a deal you can count on.

            2. 30.3.4.1.1.2

              i fear that you dont realize how impaired you sound. for the sake of your clients, please get help.

              that deal in still on the table. post your state and i will look up the attorney help line and post it back.

              you aren’t alone. just get the help you need to get back on track.

              1. 30.3.4.1.1.2.1

                I think MM that your desperate attempts to squelch a call to ban paid bloggers by simply verifying that regular bloggers are not paid bloggers is further evidence that you are a paid blogger.

                Certainly if someone said I was a paid blogger it would not upset me so. And I would be happy to offer evidence to Dennis that I am not. Here, we have you MM doing what?

                1. i know you probably cant hear me in there, but I am not MM.

                  i hope you realize that more than one person who reads this blog is tired of your cr@ziness.

                  what state do you practice in?

  9. 29

    So… By my count, our top posters have the following replies to their name as of right now:

    anon – 56
    MM – 51
    NWPA (Night Writer) – 39

    I do find it funny that anon has mentioned “shouting down” further down this thread.

    This does not include any of the alternate aliases that anon has been known to use.

    1. 29.1

      To make the count more accurate:

      Anon, which additional aliases have you used in this thread?

      1. 29.1.1

        A number of points “Shouting down…?”:

        I use only one alias and have voluntarily done so for the last two years. Aside from yourself and the “alllowercasecaps” poster, the only known user of multiple aliases is Malcolm (albeit he uses his army of aliases over at PatentDocs).

        My count is high – not because of shouting down, but because I actually engage in dialogue, and do so with multiple people.

        You also miss the point I made about shouting down. On the internet and especially in this forum, shouting down occurs when a valid counterpoint is completely ignored and the same “point” is made in a monologue style across many threads.

        Thank you for attempting to pay attention – now just pay attention to the content of what I say instead of being transfixed by the red cape of “anon says.”

        1. 29.1.1.1

          “albeit he uses his army of aliases over at PatentDocs”

          There isn’t even enough total replies at PatentDocs for there to be too many in this “army”.

          “valid counterpoint is completely ignored”

          Said Ken Ham regarding his hypothesis that all the dinosaurs died in “the flood”.

    2. 29.2

      Dear Shouting, anon’s “shouting down” remark is indeed funny but by no means the funniest of which anon is capable.

      This is the man who fancies himself as a bullying tutor to us all, who always chooses not to explain his thinking, deeming it part of our education that we must learn to look up the answer rather than him handing it to us on a plate. In that vein, he incessantly exhorts others to “Think man, think”. One wonders with sadness what horrors he was made to suffer, during his own upbringing.

      Sad, but funny too. See, for example, how he responds (at 28.1.1.3) to the comment (28.1.1.1.1) that what he writes is liable to contain “gibberish”. Read there his proof that there is nothing in his writings that is less than fully understandable. You just have to try to understand it, he endlessly asserts.

      His proof? First, his mate Night has been known to pipe up, that he has found something of meaning in one of anon’s utterances. Second, what he writes cannot help but make sense because Dennis has told us that bloggers don’t always follow the strict rules of grammar.

      So there! anon continues with his delusion, that anybody who finds his postings incoherent is choosing deliberately to misunderstand his pearls of wisdom and brilliant insights. Incomprehensible for anon, that anybody could regret his presence here (even if we set aside his endlessly patronising “Think man, think” exhortation to us all) .

      Once again, I am assailed by the thought that “anon” is not human but is instead an AI experiment, a sort of “bot” with a memory that contains all writings on patent law, and an algorithm to pull references from that memory. Imagine that some human experimenter, somewhere in the world, with our help in these threads, is using us all in a Turing test.

      It is naive to suppose that any attempt to starve anon of replies will make the anon phenomenon go away. How about instead, replies to his postings that make us all laugh. Laughter is usually the best medicine.

      Malcolm, you are the funniest of the power users. How about that for a new plan? Suppose for example that “anon” is indeed a Turing AI experiment; treat him accordingly. You have repeatedly said he is beyond parody, and I have agreed with you, but I wonder whether that is really so.

      And lastly; anon, don’t take any of this personally. You do realise, don’t you, that I’m only joking.

      1. 29.2.1

        anon’s ‘shouting down’ remark is indeed funny… that I’m only joking.

        You see MaxDrei, you miss the point of my comment then seek to deride it.

        The joke then is you and your ‘here to learn,” as you are not here to learn, but rather you are here to reinforce that which you already believe.

        You have stated that you post “to provoke,” and yet find fault that my posts induce ‘raucousness.’ Hmm, could it be that your posts which are meant to provoke are so easily dispatched as trite and b@nal has you seeking retribution? How often have you run away from questions posed to you about your “provoking” posts? How often has your own lack of legal knowledge and logic been exposed (and you have no AI machine to fall back on…?)…? Now you take issue with the sometimes Socratic nature of my posts? Buddy, what do you think law school is based on? This style should be welcomed by legal types eager to learn, not derided as only you and the small circle crowd have done.

          1. 29.2.1.1.1

            Your empty and meaningless “folks” reply aside, are you really saying that the Socratic method is not a staple of the how law is taught…?

            Even for you, this tr011ing is rather b@nal.

            1. 29.2.1.1.1.1

              e you really saying that the Socratic method is not a staple of the how law is taught…?

              “Lookie mommy I’m a law perfesser!”

              Too funny.

              1. 29.2.1.1.1.1.1

                MM, seriously, I laughed out loud, at your “Lookie…” comment immediately above. I’m sure I wasn’t the only one. Hilarious. Just what I was thinking but failed to put into words. I was right though, that one can get a long way with humour.

                anon, have you realised it yet? You are not, repeat not, a law professor. Even to hold a conversation, you need to be able to communicate, and you can’t.

                Do you see it now? Is that why you appear here, as “anon”? But here too, even when anonymous, you are making an exhibition of yourself. It’s embarrassing. Go away.

                Malcolm, upthread, at 33, you write of the need to resist the zombies. I see that now. I hope Dennis and Jason do too. Power to your elbow.

                1. Because you and your ilk say so…?

                  LOL – no thanks.

                  Like Malcolm, you yourself are in no position to point the type of fingers your are attempting to point.

                  I am ‘glad’ you found humor where you did, but even gladder that you are f00lish enough to exhort the blight here, reducing to shambles your pretense of civility.

                  Great job.

                2. reducing to shambles your pretense of civility.

                  I’m so sorry to hear about your pretense of civility being reduced to shambles, Max.

                  Tough break.

                  LOL

  10. 28

    You know maybe one simple rule would solve over 1/2 the problem. Forbid anon from responding to MM, and MM from responding to anon. I’d be happy to be included in that deal with MM (and if you threw in jesse, I’d be in hog heaven.)

    You can see below that MM will not take this deal with me because of ……, well, you can try to figure that out yourself.

    1. 28.1

      “You know maybe one simple rule would solve over 1/2 the problem. Forbid anon from responding to MM, and MM from responding to anon. I’d be happy to be included in that deal with MM (and if you threw in jesse, I’d be in hog heaven.)”

      Yep.

      1. 28.1.1

        Nope.

        Both recent and ‘ancient’ history tell a different story. Sure, at least one particular person (Malcolm) is a common denominator throughout), but the results were the same – without my presence at all.

        Just last year I chose to abstain completely from a technical hi-jacked and raucous thread. Over two hundred posts featuring the same old CRP from you know who.

        Eight years ago (and six years ago, and ….) others ran into the same problem featuring – you guessed it – the same particular person pulling his same old CRP.

        Get a clue guys.

        1. 28.1.1.1

          “but the results were the same – without my presence at all.”

          Really? I thought I saw a marked lessening of posts by MM. Still quite a few admittedly, but it looked like it was many many many less and he was much less confrontational. Occasionally NPWA would get his goad, or some other random person, but not often.

          “Just last year I chose to abstain completely from a technical hi-jacked and raucous thread. ”

          I’m not sure what you mean by a “technical hi-jacked” and raucous thread. I also didn’t notice you restraining yourself from such posts, instead I only noted your complete absence for awhile. And boy was it relatively peaceful.

          1. 28.1.1.1.1

            I see it like you 6. Exactly. Much less “raucous” when anon absents himself.

            I too have no idea what “technical hi-jacked” means.

            What is so sad about anon is his fixed belief that what he writes is easily understood. So when we say we cannot extract any meaning from his gibberish, he doesn’t believe that we are telling the truth. He knows what he means. That alone proves that we are not telling the truth. He tells himself that his ability to communicate is just fine; that we are dissemblers, one and all.

            And anon is very special. Can you (Night perhaps) name any other contributer to this blog, other than anon, that is told by the crowd, over and over, that they are forever writing gibberish?

            1. 28.1.1.1.1.1

              Max you must be kidding. Please show us a couple of examples of gibberish from anon? I’d say that anon’s opinions align pretty closely with the patent attorneys that I know and have known. And I have worked as an attorney at an AM LAW 50 firm and one of the most respected intellectual property boutique in the country. It is usually ranked in the top 3.

              So, please. Be real.

              1. 28.1.1.1.1.1.1

                “I’d say that anon’s opinions”

                Max isn’t really talking about his “opinions”. He’s talking about his writing.

            2. 28.1.1.1.1.2

              And note —again you defending MM—that MM is the one that refuses to make a deal to not respond to each other’s posts. And yet you are aligning with MM. Max, Max, Max, shame on you.

              1. 28.1.1.1.1.2.1

                MM is the one that refuses to make a deal to not respond to each other’s posts.

                Why on earth would I make a “deal” with a shameless pile of lying sh t like you?

                All I’d be doing is giving you free reign to smear people like me who disagree with you with completely fabricated horseshirt, just like you did in this thread.

                Why in the world would I do that?

                I had this conversation already with Dennis. I agreed not to launch unprovoked harsh attacks on you and your fellow software patent worshippers (not that you don’t deserve it). I never agreed not to respond to idiocy of the sort that you and your crew project here on a daily basis, and I never will agree to anything like that.

                What happened after that agreement? You kept opening your piehole and, along with your bff “anon”, the two of you kept right on personally insulting everyone who disagreed with you about the awesomeness of software patents as ignorant or worse. And then you spew out the same pithy, pointless, nonsequitur-laden talking points and pretend that anyone who doesn’t immediately genuflect before them is braindead, even while the courts are pulling the rug out from under you.

                Again: Dennis knows this. Jason knows this. David knows this. And if they don’t know it, they’re blind.

                [shrugs]

                1. “Why on earth would I make a “deal” with a shameless pile of lying sh t like you?”

                  Oh come on MM. It’s a small price to pay to have peace in our times (as anon would say lol).

                  It isn’t like you wouldn’t be free to post your own free standing comments.

                  “All I’d be doing is giving you free reign to smear people like me who disagree with you with completely fabricated horseshirt, just like you did in this thread.”

                  Perhaps you’d like to also include in the deal that they not be making fun of such folks and you lay off making fun of folks like themselves?

                  “I had this conversation already with Dennis. I agreed not to launch unprovoked harsh attacks on you and your fellow software patent worshippers (not that you don’t deserve it). I never agreed not to respond to idiocy of the sort that you and your crew project here on a daily basis, and I never will agree to anything like that.”

                  Come on man, just let them flap they gums.

                2. 6: Perhaps you’d like to also include in the deal that they not be making fun of such folks and you lay off making fun of folks like themselves?

                  The major problems with that, 6, as has been demonstrated umpteen times already, is (1) we’re talking about two people who have demonstrated over and over again that they can’t help themselves; and (2) the larger crew of true believers is incapable of distinguishing between unpleasant facts they can’t change, one hand, and “being made fun of” on the other.

                  You’ve seen this with your own eyes. For cripes sake we’ve got “anon” in this very thread asserting that opposition to business method or software patents is the “equivalent” of believing that the earth is flat! You think a person who says such things is capable of adhering to some “deal” about civilized discourse?

                  Please give everyone a break. Besides, as we all know, Dennis tried to reign “anon” in. Within days the miserable git was right in the faces of commenters calling them ignorant of technology and the law because they didn’t immediately crumble before his Monte Hall experiment or his magic box of protons. I assume nothing need be said about NWPA.

                  Meanwhile, we had to watch the usual self-inflated “expert” defenders of the lowest form of innovation implode as their hands are held and they are gently, courteously walked through the oh-so-difficult-to-understand fundamentals of subject matter eligibility. As if Prometheus v. Mayo never happened, or they never heard of the case or what it was about (but meanwhile they pretend to know everything about obviousness, which is their answer to everything except when it isn’t).

                  This is the world we live in. It’s easy to fix it. And truly everybody would gain — including the defenders of software patents because there are some folks out there who can actually articulate their views and defend them without lapsing into incoherent garble or commie-bashing. At least I hope there are, for the sake of those would-be defenders. If not, then the curtain is going to close even more quickly than I might have otherwise guessed.

                3. “I had this conversation already with Dennis. I agreed not to launch unprovoked harsh attacks on you and your fellow software patent worshippers (not that you don’t deserve it). I never agreed not to respond to idiocy of the sort that you and your crew project here on a daily basis, and I never will agree to anything like that.”

                  Come on man, just let them flap they gums.

                  Again: why “let them flap” when it’s so easy to simply point out how nutty and wrong they are? Because some guy who would otherwise be flapping his gums in the same manner feels “more comfortable” doing so?

                  They can flap their gums about “the Royal Nine” and “it’s eligible because it’s a process!” all day long over at Quinn’s place. They can freely pretend that every day is 1952 again, and they can laugh and pat themselves on the back as Quinn squelches any attempt to question their beloved “facts” about the awesomeness of More Patents, All the Time, and Easier to Enforce.

                  Why give them the space here to behave like spoiled children? Why treat their debunked recycled scripts like some new crayon drawing that needs to be put on the refrigerator with a shiny star? “Letting them flap” just confuses them into thinking that they have a clue about what they are talking about.

                  Here’s a better plan: every time the zombie argument gets brought up, smack it down. It doesn’t need to be done with personal insults. But it needs to be done. Eventually they’ll be more and more marginalized and they’ll learn to stifle themselves. I’ve seen it happen before. Old people die eventually and, by and large, their stillborn self-serving baloney dies with them.

                4. “(1) we’re talking about two people who have demonstrated over and over again that they can’t help themselves;”

                  Alright then get them to agree to voluntarily accepted automatic ban (say a year?) if they are modded for this and were unable to help themselves.

                5. “why “let them flap” ”

                  At this point if for no other reason than to show you’re the bigger man. And because the overall back and forth gets out of hand.

                  “Why give them the space here to behave like spoiled children? ”

                  You can let D decide if he wants to give them that space or not bro. You don’t need to usurp that power from D its his blog. You’ll have space for your own views.

                  “It doesn’t need to be done with personal insults. But it needs to be done. ”

                  How about letting D make that call?

                6. >>pile of lying sh t like you?

                  MM you are so full of it. It is pretty clear that you post on here for money otherwise you wouldn’t have 40 hours a week for 10 years to post on this blog and all the other blogs you post on.

                  And your rationalization above is ridiculous. And, please, me the l iar? You just denied that you used to claim that software was a natural law! Ha! I used to tease you and say that I was going to go write some more natural laws by programming. For years I said this to you.

                  I have become convinced by your behavior in this thread that booting you is the only answer.

                7. “You just denied that you used to claim that software was a natural law! Ha! I used to tease you and say that I was going to go write some more natural laws by programming. ”

                  I do remember you stating such NWPA. Sad thing was that you were under a misapprehension the whole time.

                  As usual.

            3. 28.1.1.1.1.3

              “What is so sad about anon is his fixed belief that what he writes is easily understood. So when we say we cannot extract any meaning from his gibberish, he doesn’t believe that we are telling the truth. He knows what he means. That alone proves that we are not telling the truth. He tells himself that his ability to communicate is just fine; that we are dissemblers, one and all.”

              That’s what happens in mental disability bro. The guy behind Dilbert just made a comic about a similar topic.

              And no I cannot.

          2. 28.1.1.1.2

            6: Still quite a few admittedly, but it looked like it was many many many less and he was much less confrontational.

            Everybody commenting here for the first time gets the benefit of the doubt from me. That’s the deal.

            If you have an opinion that you can articulate and back up without engaging in personal attacks (including the innuendo that some folks believe passes as “civilized”) then by all means express it. Just be prepared to defend it, with integrity, because we aren’t in some patent worshippers’ echo chamber.

            But here’s what usually happens (and here’s exactly what did happen): zombie “arguments” that are not defensible (“obviousness can take care of this”) (“you can’t dissect claims during an eligibility analysis”) get crushed. Some people lack the maturity to handle that.

            Meanwhile, “anon” and NWPA and their fellow troll/stalkers continue personally insulting everybody who disagrees with them about the awesomeness of software patents or the importance of a fully weaponized subject matter eligibility requirement to a healthy patent system. That’s what happened in the past and that’s what’s going to continue to happen until these two trolls get the virtual smack across their mealy mouths.

            1. 28.1.1.1.2.1

              >NWPA and their fellow troll/stalkers continue personally insulting everybody who disagrees

              You MM have and I am sure will always be the king of the insult on this board. My fault is in allowing myself to be baited by your nonsense.

              1. 28.1.1.1.2.1.1

                You MM have and I am sure will always be the king of the insult on this board.

                So says the guy who equated proponents of patent reform with the “fundamentalist rapers and killers in Iraq.”

                Funny stuff. You couldn’t make it up if you tried.

        2. 28.1.1.3

          Let me correct the auto-correct typo:

          Replace the word “technical” with the word “typical.”

          And let me point out to MaxDrei that the “crowd” that uses the “gibberish” line of C R P are those choosing not to understand (you included). My points have been well understood and echoed in many other forums by many other people. Lastly let me share a specific quote from a rather well known blog meister:

          Thanks — Although if you read this blog regularly, you’ll know I often avoid the normal rules of grammar, spelling, and punctuation.
          – Dennis Crouch 3/18/2014

          1. 28.1.1.3.1

            My points have been well understood and echoed in many other forums by many other people.

            “Your points”?

            LOL

            1. 28.1.1.3.1.1

              Yes Malcolm, my points.

              As picked up by several authors over at PatentDocs (not just Dr. Noonan), and as picked up by Sherry Knowles.

              Oh wait, you eagerly denigrate those people too, because you feel they ‘deserve it.’

  11. 27

    I’m still using this thread to debate claim construction, because the topic interests me.

    How about applying all this fancy Chiang/Hrdy interpretation/construction stuff to the Chef America claim, the one that gave rise to the debate whether it is to be the dough or the oven that is at 400°F. Charcoal? Or edible bread?

    In the UK, to get to the ambit of the claim, the Supreme Court (bound by the Art 69 Protocol to give the inventor a “fair” scope of protection for the contribution to the art) asks the notional reader of the patent the test question “What was the writer of the claim using the language of the claim to mean?”. Not difficult to answer. Even if it is the oven, at least the surface of the dough will be at the temperature the oven is set at. Inconceivable, that a court in Europe would hold that, to meet the requirements of the claim, even the heart of the dough brick must reach 400°F (and thereby be rendered down into charcoal).

    Suppose that the Chef America case had not been litigated but that, instead, you have to opine on whether (in the USA) it covers baking process Y, what your client wants to do. How do you decide whether the claim covers it or not? Is there a way?

    1. 27.1

      Unfortunately Max, in the USA, there are no rules. Judges do pretty much whatever they want. I did a markman hearing brief where it was crystal clear that there was phe that would mean we did not infringe. Language like element x does not mean y, and we did y. The judge just ignored our arguments. The client is then left with appealing to the Fed. Cir. and waiting 18 months or settling and getting this nightmare of litigation over with. The client in this case settled.

      And I think this ties back to Alice. I think that when federal dist. judges see that the SCOTUS doesn’t care about the laws that it is a signal to the district court judges that they also can just use result orientated reasoning rather than fairly applying our laws.

      1. 27.1.1

        Unfortunately Max, in the USA, there are no rules. Judges do pretty much whatever they want.

        In fact, Max, in the USA where I live, there are claim construction rules (they were set forth pretty clearly by the CAFC in its en banc Philips opinion), most judges and attorneys follow those rules, and in most cases the resulting claim construction accords pretty well with the interpretation that any reasonable person — and certainly a reasonable patent attorney — would have expected. The cases usually settle soon afterwards.

        The Chef America case presents a special set of facts where the alleged invention was simply claimed incorrectly. You ask: As to the Chef claim, who in the technical field would even see an ambiguity, much less come to the same view as the Federal Circuit panel, what the claim means?

        But the claim ‘means’ just what it says. The question you perhaps wish could be asked is: “what would a skilled artisan think that the drafter of the claim truly intended to write when he/she wrote the incorrect steps.” That’s sort of approach to claim interpretation is also known as “rewriting the claim to save the patent because … [insert your policy here].”

        If a skilled person in the technical field is told to follow the instructions that are presented in the Chef America claim for a five minute heating time and a 850 degree temperature, the skilled person will end up with a piece of charcoal. That’s not the skilled person’s fault. On the contrary, the skilled person is just following the steps that were written. The Chef America claims aren’t “ambiguous.” They are worthless.

        1. 27.1.1.1

          So, how many Markman hearings have you been involved with to be making this characterization?

        2. 27.1.1.2

          Malcolm many thanks indeed, for giving me an explanation why American patent attorneys recoil in horror from the English test question “For the PHOSITA reader, what was the Patentee using the language of the claim to mean?”

          That is NOT seen in England as rewriting the claim to save the patent. The counterpoint in English law, the other side of the equation, is that the patentee is to be assumed to have chosen his words carefully and deliberately, and will be held to them.

          Perhaps it is the Protocol on the Interpretation of Article 69, EPC which explains the trans-Atlantic difference here. Mandatory on courts, it requires the judge to “balance” fair protection for the inventor with reasonable legal certainty for those looking at the business end of the patent gun. Is there, for you, another balance more important than that one?

          Question for you, MM. Suppose the convection oven is at a steady 850°. You put in it a large lump of dough at room temperature. You bake your large loaf of bread. At what temperature is the outside surface of the crust of the loaf, when the loaf is just baked. Might it also be at oven temperature, 850°? But the baked loaf is still delicious. Where does the claim say that you must go on baking, on and on, till 100% of the dough has attained a temperature of 850°?

          Further, since when is it that you have to take the enabling disclosure from the claim? I thought it was the description that one looked to, for that.

          Lastly, was it somebody else, or was it you, some years ago, who gave it as your opinion here, that the Chef America decision was the worst piece of junk in years to be handed down by the Federal Circuit?

          See, readers, I’m having a nice discussion here with arch-villain MM, even though I disagree with him. It hasn’t turned rancorous yet, has it. We don’t have to wonder why, do we?

          1. 27.1.1.2.1

            That you wish to draw attention to a “no raucous here” exchange and yet in other places state that you post here in order to provoke only proves my point MaxDrei.

            Thank you for that.

            (are you still wondering? Still ignoring the content of my points even as you [jokingly] seek to deride them?)

          2. 27.1.1.2.2

            MD: Suppose the convection oven is at a steady 850°. You put in it a large lump of dough at room temperature. You bake your large loaf of bread. At what temperature is the outside surface of the crust of the loaf, when the loaf is just baked. Might it also be at oven temperature, 850°? But the baked loaf is still delicious.

            I’m an amateur baker. I’ve made cookies, pies, bread, lasagna, macaroni and cheese. That kind of thing. I don’t know that it’s possible to make a “delicious” piece of bread where the surface has reached 850 degrees for any length of time. I’m thinking it’s going to taste kind of bitter from the carbonized surface. Might some find that “delicious”? I suppose. Some people (me included) like their marshmallows charred on the outside. But marshmallows and bread are really different foods.

            Where does the claim say that you must go on baking, on and on, till 100% of the dough has attained a temperature of 850°?

            It doesn’t say that. But a reasonable construction of the claim as it was written (<-key) is that a substantial portion and not one infinitesimally small part of it is heated to that temperature. Likewise if a claim recited "liquify said broccoli" presumably a skilled chef would understand that doesn't include "liquifying one molecule of the brocolli".

            Further, since when is it that you have to take the enabling disclosure from the claim? I thought it was the description that one looked to, for that.

            It’s true that the evidence that the inventor has described a method that can be successfully implemented without undue experimentation does not need to appear in the claim. And on its face the claim does not need to be “self-enabling” (e.g., terms in the claim should be read in light of the teaching in the specification). But more importantly I don’t see where I suggested otherwise. The Chef America claim wasn’t invalidated for lack of enablement. It simply wasn’t infringed by the accused infringer.

            Lastly, was it somebody else, or was it you, some years ago, who gave it as your opinion here, that the Chef America decision was the worst piece of junk in years to be handed down by the Federal Circuit?

            I seem to recall being favorably disposed to the decision because it was a recognition of the primary importance of the words used in the claim and, implicitly, an acknowledgment that if one has a choice about who to hire to draft some patent claims, the wiser choice is to pick the writer who can spot potential problems before they occur. I might have criticized some other aspect of the case at some point but off the top of my head I don’t remember any specifics.

            1. 27.1.1.2.2.1

              Fair comment. Thanks. I was just thinking that the physics dictates that the dough surface must be at oven temperatuitre even while the dough bulk is at some lower temperature. You know, like sticking a thermometer probe into the middle of the large lump of meat in the oven. Just because the surface is at oven temperature doesn’t mean that the workpiece is spoiled.

              We shall have to agree to differ. But I remain of the view that it is somehow perverse to construe the claim as a recipe for a lump of charcoal. Is that really how the PHOSITA, kept out of the sphere of influence of lawyers, would naturally construe the claim? I still think not.

              I agree with you, that it should be encouraged, that patent applications are written by attorneys with a suitable technical background. Engineers shouldn’t be writing chem/bio, and vice versa. What we as drafters write should be appetising enough to be eagerly reviewed, easily understood, and enthusiastically endorsed, by the named inventors. efforts to obfuscate should be vigorously discouraged by the judges. In the Chef case, the claim drafting was careless, I admit, but the sanction was, for me, disproportionate.

              1. 27.1.1.2.2.1.1

                Max, I agree that it’s a harsh result.

                But Chef America could have avoided the result in any number of ways. Claim drafting errors happen all the time. Skilled patent attorneys and patent agents help clients fix those mistakes by relying on the rules set forth in the system.

    2. 27.2

      But if you want the basics of claim construction the easiest thing to do is to pick up a patent law book and read the chapter on claim construction. That will give you all the big cases. Moore has a book published that has a decent chapter on claim construction.

    3. 27.3

      While I hear what you’re saying Max I think you’re ignoring the facts of chef Merica. They blatantly had a problem in the explicitly language of the claim but purposefully chose not to ask the office for a certificate of correction or whatever because it really was a lawlyer screw up. I still wonder if there was some mal-practice there or if anything happened.

      1. 27.3.1

        Thanks 6. I cite Chef America when I need a test claim that exposes how easy it is for lawyers to indulge the instinct that their training imbues in them, to search for and find ambiguity where, in reality, none exists. As we all know, the notional reader of a patent is not a lawyer or a philologist but a person of ordinary skill in the relevant technical field that is, an engineer or a scientist striving to extract real intended meaning from the text. As to the Chef claim, who in the technical field would even see an ambiguity, much less come to the same view as the Federal Circuit panel, what the claim means? Not one such PHOSITA, I submit.

        I want to set aside the particular circumstances of that case and simply test how any particular vaunted method of construing a claim fares, when tasked with construing a test claim like the Chef claim.

  12. 26

    Chiang: there is a deeper disagreement: Implicit in Hrdy and Picozzi’s [H/P’s] con-law-is-different argument seems to be the contention that disagreements about § 112 are not based on beliefs about desirable policy but instead are narrow, mundane, and legalistic debates unencumbered by ideological priors. I think this contention is flawed

    It seems to me this is an oversimplification of H/P’s contention. I think they’re contention is that (1) the Patent Act provides a statutory framework that does, in fact (some of the time, at least), put limits on what arguments can be used to justify a particular claim construction and (2) such a statutory framework doesn’t exist when construing the meaning of terms in the Constitution.

    their evidence is more consistent with an alternative hypothesis, namely that judges show a consistent pattern across several doctrinally-distinct issues—claim construction, § 112(a), § 112(b)—because they are influenced by their underlying beliefs about desirable policy (specifically, beliefs about desirable patent scope) in all of them. Judges who favor broad patents tend to construe claims broadly and read § 112 narrowly; judges who favor narrow patents tend to do the opposite.

    This doesn’t seem right. Why would a judge have a belief about “desirable claim scope” in general? Why would a judge favor “broad patents”? Is it because patents with broad scope are more likely to be invalidated? Or does Chiang presume that judges aren’t aware of this fact?

    Rather than proving that patent law is not like con law, I submit that the Hrdy and Picozzi’s evidence tends to show that it is.

    The argument linking this “evidence” to this conclusion remains opaque (to me, anyway). In large part that’s because it’s not clear to me what the term “like con law” means to the author of the statement.

    1. 26.2

      “Why would a judge have a belief about “desirable claim scope” in general?”

      It’s because of the split on 112 WD req that you and me IDed about a year ago or more. Ultimately it’s based on policy or psuedo-policy positions imo. TJ appears to concur. But since we can’t post on their threads I guess we’ll never know.

      “Is it because patents with broad scope are more likely to be invalidated?”

      Nah. It’s because some people think you must construe the claims in line just, or at least more so, with the language of the claim (these are the “broad readers”) and others think that 112 (a) requires us to look to what the actual thing (that is the “actual invention”) that was invented to determine what the claim really means ivo of the spec.

      “The argument linking this “evidence” to this conclusion remains opaque (to me, anyway).”

      He didn’t present the evidence very well but I have to agree with TJ on that one. He went over what he meant by “like con law” in the paper prior to that quoted part you quoted. It means that they’re fundamentally linking their policy positions to their positions on how to do claim analysis. Just like the con law people insert their “textual” or “anti-textual” policy positions on how to read the constitution into their decision making.

    2. 26.3

      6: He went over what he meant by “like con law” in the paper prior to that quoted part you quoted. It means that they’re fundamentally linking their policy positions to their positions on how to do claim analysis. Just like the con law people insert their “textual” or “anti-textual” policy positions on how to read the constitution into their decision making.

      I guess I was assuming that Chiang’s “argument” (whatever it’s about) wasn’t just warmed-over legal realism. It’s pretty well established that whatever “policy positions” are held by “the con law people” (at least the so-called “textualists”), that they are perfectly happy to chuck those positions by the wayside whenever some other more deeply held “position” (e.g., the love for one’s mother or the love for one’s deity) is at issue.

      That’s why I am questioning Chiang’s statement that certain judges have a “desire” for “broader claims.” I don’t think that’s accurate (or at least there’s no proof of that of which I’m aware). I do think certain judges (nobody particular in mind) may have a “desire” that certain patentees in certain circumstances win their case, regardless of the “linguistic” shortcomings of the patentee’s claims (whether the claims are too broad or too narrow). But that’s an entirely different proposition (and one that nobody is disputing, as far as I can tell).

      others think that 112 (a) requires us to look to what the actual thing (that is the “actual invention”) that was invented to determine what the claim really means ivo of the spec.

      Again, no doubt about that. There’s also little doubt that this “approach” completely nullifies the entire point of claims, which in turn necessarily renders the concept of “claim construction” a moot issue. The process of “claim construction” then becomes something more similar to what we’d call “claim drafting.” If the primary judicial focus is properly on the “actual invention disclosed in the specification” (a terrible idea, IMHO) as opposed to the invention that is claimed, then everyone should include in their claim set a claim to “the earth and everything in it.” Every once in a while that claim is bound to sail through the patent office and what a glorious day that would be for the patentee. What is the “actual scope” of that claim? Apparently it would depend on the judge’s “position” about how to interpret claims. But here on earth I’m not aware of any claim construction case that has approached anything near that level of absurdity (yet) and that’s because, whatever the judge’s “position” about what sort of claims are “desirable”, they all seem to breathe quite a bit of oxygen before presenting their “legal” analysis and conclusion. Even the few cases that go off the rails are usually accompanied by a dissent that prevents the holding from being taken too seriously.

      This is certainly a discussion we’ve had before (“we” being the entire blog). But Chiang is looking for something more … conceptual …. I think.

      1. 26.3.1

        Yeah you and he are pretty much on the same page as far as I can tell, you’re just getting caught up in his supar-intellectual language he’s trying to use to dress up his base point. The base point is the same one we’ve been making here except he takes a neutral position on which way is “correct” iirc. He just wants to take that point and then argue that this conflict is the source of major claim construction issues in the patent system rather than “linquistic ambiguity” by its lonesome. This is probably just his and the other author’s way of introducing our old conversations into academia after those guys read our convos on PO and then dressed them up all proper like.

        To an extent I agree with his argument that this is a major contributing factor, at least in court. However I don’t know if it dwarfs base linquistic ambiguity, since I see quite a bit of that (there’s a lot of claims set to fail Nautilus 112 2nd imo for base linquistic ambiguity). Likewise at the “patent office” level/stage, the major contributing factor is without a doubt complete ignorance of how to analyze claims according to either of the methods mentioned or in fact any other method than “hur this is what I think it say, o lookie here b a spekification”. Helping people at that level understand what is going on will be hugely valuable to the system as a whole.

        You can also see my other comments on a few threads up if you want.

        1. 26.3.1.1

          I’m grateful to MM and 6 for debating this topic on an “open” thread.

          The practical reality for a patent attorney like me is to answer the question posed by a client “If I do X will I infringe claim Y”. Investors and business innovators need to know, to know early, and to know without having to go to the Federal Circuit to find out. In Europe, however, I can help them.

          Being based in Europe, it never occurred to me that the answer in the USA depends on whether you get a judge who favours broad patents or one who favours narrow patents. I can understand a judge who is more willing than another, to stretch a claim in order to do justice between the parties in an individual case. But this is different, isn’t it? Call me naive, but I had no idea that your judges possessed such individual subjective views and predispositions, or that they had the confidence and freedom to exercise them systemically, regardless of the equities.

          I’m ridiculed for posting that I’m here to learn but, really, I am.

          1. 26.3.1.1.1

            It is nice that MM is behaving after breaking bad below, but Max try discern his different behaviors.

          2. 26.3.1.1.2

            np max. But it isn’t like it’s something that’s explicit or that judges are “going wild” on. It just shines through some of the opinions that you read. Them giving the justifications that they do for their constructions points directly to the conclusion.

  13. 25

    NWPA: MM, you have called me the N word, you have posted under my pseudonym

    I’m sure that never happened. But please provide your evidence so we can all have a laugh together.

    And just so there’s no confusion: I’ve got your greatest hits archived on my computer for all time, along with the greatest hits and massive blunders of all the major patent blogs.

    Long ago I found it very useful and informative to keep track of what The Most Important People Ever said about patents and patent law and especially subject matter eligibility. It’s sort of a hobby of mine. It’s not only entertaining but also informative, in the same way that it’s always interesting to see what The Most Important People Ever said about other “turning points” in history (e.g., civil rights, gay rights, the Iraq War) and how being spectactularly wrong on major issues often has no bearing on the willingness of people to continue to look to those “experts” for “advice”, or the willingness of those “experts” to pretend that people need to pay attention to them.

    1. 25.1

      >I have offered to not respond to your posts if you don’t respond to mine. >This seems to be a good solution to me and yet you have never responded to >this repeated offer.

      You notice that MM left off this part.

      1. 25.1.1

        I have offered to not respond to your posts

        I welcome responses to my comment. It’d be nice if the responses weren’t some recycled hogwash that you scraped from the curb, or the sort of ad hominems you’d expect to find being tossed about on some far right wing second amendment blog, or some inane assertion that all opinions have equal merit.

        don’t respond to mine.This seems to be a good solution to me

        That’s because we all know that you and your fellow software patent lovers want complete freedom to spout your self-serving nonsense, your insults, and your paranoia-fueled speculation 24 hours a day without anybody questioning you. And somehow one blog solely devoted to that isn’t enough for you. Do we need to wonder why that is the case? In 2015?

  14. 24

    anon: There IS debate on Quinn’s blog … just not the type of debate that includes mischaracterization of law, of facts, and of what others post.

    Meanwhile, anybody who knows how to read can revisit the “debate” about Prometheus on Quinn’s blog where they will discover that the great Quinn mischaracterized the facts and the law ad nauseum and, to the extent his knowledge and understanding of either was rightfully challenged, he responded in his trademark manner.

    Would it be difficult to argue that IP Watchdog is the source of more misinformation and worthless (if not harmful) propaganda about patent law than any other source on the Internet and probably in the history of patent law? I don’t think so.

    I’m pretty sure it’s not this blog that was responsible for the zombie army of patent worshippers who *continue* to show up here to recite their ridiculous nonsense about “no claim dissection!” or “103 not 101!” years after the fallacy and inherent contradictions of those bankrupt propositions were exposed. I’m happy to be corrected on that point, however (and also happy to explain the basics to any youngsters who are still confused).

    1. 24.1

      There is this gem:

      “Is administering a drug a “natural law”? No. Is performing a blood test a “natural law”? No. Is determining whether to increase or decrease medication a “natural law”? No. THEN THE CLAIM POSSESSES PATENT ELIGIBLE SUBJECT MATTER!

      You want to say that because something is not new or is obvious then it is not patent eligible subject matter. That, sir, makes you as ignorant as the Supreme Court Justices!

      Please educate yourself before commenting in the future. I prefer to have a far higher standard of substantive dialogue on [WEBSITE].”

      1. 24.1.1

        “Is administering a drug a “natural law”?

        Right. There was no drug administration step required by the claims at issue. That was admitted by the patentee at trial.

        This fact, along with the fact that the data gathering step (the only physical transforming step in the claim) was old, were fundamental to understanding why the case went to the Supreme Court and why it was a 9-0 slam dunk that will never, ever be reversed.

        How many times do you suppose these basic facts were admittted and their import acknowledged by Quinn or his sycophants, before and after the case? Pretty sure the answer is zero. Now flip that around and ask how many times those facts were obscured or mischaracterized before and after the case by the same crew? Pretty sure the answer is in the thousands.

        But, hey, he’s a super serious guy and that blog is filled with deep insights by very wealthy and deeply invested people who must be super smart and thoughtful because, hey, they’re super wealthy (<–a joke that I'm sure needs explaining for some). He's not an admitted "patent apologist" or anything like that. All blogs should strive to achieve the awesomeness achieved there, especially this one.

      2. 24.1.2

        In Prometheus the SCOTUS said it was a natural law exception, so here he was just showing that nothing in the claim is a natural law.

        1. 24.1.2.1

          NWPA,

          Here’s the natural law:

          “wherein the level of 6-thioguanine less than about 230 pmol per 8×108 red blood cells indicates a need to increase the amount of said drug subsequently administered to said subject and

          wherein the level of 6-thioguanine greater than about 400 pmol per 8×108 red blood cells indicates a need to decrease the amount of said drug subsequently administered to said subject.”

          1. 24.1.2.1.1

            I think the natural law is

            ““wherein the level of [drug] less than about [amount] indicates a need to increase the amount of [drug]…. and wherein the level of [same drug] is greater than about [amount] indicates a need to decrease the amount of [same drug] subsequently administered to said subject.”

            As that applies to every drug.

          2. 24.1.2.1.2

            >>Is determining whether to increase or decrease medication a “natural law”? No

            Right and he argues that this part of the claim is not a natural law. Ergo it would be patent eligible presumably unless another exception is applied. So, the structure of his argument is sound.

            I agree with him that this is not a natural law, but I do see how some people can think it is a natural law. I don’t think that something this specific and that involves the interaction with man made pharmaceuticals is a natural law. But, that is an argument for another day…

            1. 24.1.2.1.2.1

              And notice to that “natural law” was meant to cover broad laws.

              The core of these arguments is whether 101 is needed to exclude inventions that are too broad. The author of the 1952 patent act said 101 is not needed. That when 101 is used to exclude inventions what happens is that “invention” gets twisted into 101 and then 102, 103, and 112 arguments are then being used in the 101 analysis. Alice part 2 is clearly a 103 analysis done by a judge in any way they feel like it thus overturning Graham.

              To my mind it is judicial activism at its worse that has expanded 101 into Alice.

              1. 24.1.2.1.2.1.1

                The core of these arguments is whether 101 is needed to exclude inventions that are too broad.

                False. Breadth is not the core.

                Eliminating claims that protect ineligible subject matter is “the core” concern of the eligibility requirement. It doesn’t matter how narrow the “law” or correlation or abstraction is that is being corrected. This fact is already recognized in the case law. Deal with it.

                1. From Mayo:

                  In any event, our cases have not distinguished among different laws of nature according to whether or not the principles they embody are sufficiently narrow. See, e.g., Flook, 437 U.S. 584, 98 S.Ct. 2522, 57 L.Ed.2d 451 (holding narrow mathematical formula unpatentable). And this is understandable. Courts and judges are not institutionally well suited to making the kinds of judgments needed to distinguish among different laws of nature. And so the cases have endorsed a bright-line prohibition against patenting laws of nature, mathematical formulas and the like, which serves as a somewhat more easily administered proxy for the underlying “building-block” concern.

                2. And there are many quotes about breadth. And what do you suppose is the core issue they have with natural laws? It is that they want it to be left open for others to use, which is a breadth issue.

                  I realize Go that there is another argument that goes to saying it is not an invention, but at the core is the justification not to allow something that others may need to use to be patented.

        2. 24.1.2.2

          In Prometheus the SCOTUS said it was a natural law exception

          Actually the SCOTUS referred to the protected subject matter as a “correlation” no less then twenty times. The term “natural law” was used only 18 times and most of those instances were references to prior case law or the term was used as being equivalent to the “correlation” or “natural phenomenon” recited in the claim.

          Nobody ever suggested that “administering a drug” was “a natural law”. Quinn was pounding a strawman because that’s one of his specialties. It’s not surprising. It’s what a lot of not-especially-intelligent people do when their back is up against a wall, especially if they are otherwise prone to dissembling.

          1. 24.1.2.2.1

            You have misrepresented me AGAIN. The exception used was natural law. Fact. The part of Quinn’s argument that said the correlation was not a natural law was the core of his argument. The other parts of his argument are there for completeness and emphasis. The structure of his argument is sound. Your attack on his argument is absurd.

            So, you appear to have created a fifth judicial exception the MM “correlation” exception. How nice for you.

            1. 24.1.2.2.1.1

              NWPA,

              While I know you disagree with the Supreme Court’s decision, their logic is not incredibly difficult to understand if you make the effort. Respectfully, I think your disagreement with the Court runs so high that it prevents you from attempting to understand their decisions.

              For example, let’s assume that a ‘correlation’ is different than a natural law or an abstract idea. If abstract ideas, laws of nature and abstract ideas are ineligible, it does not require much of a leap to conclude that a correlation is similarly ineligible. The point is that it doesn’t really matter which ‘category’ you put this sort of thing in, it is all ineligible.

              Of course, there might be some situations on the periphery that would pose difficult cases, but the claims in Mayo were very, very easy.

        3. 24.1.2.3

          In Prometheus the SCOTUS said it was a natural law exception

          Actually the SCOTUS referred to the protected subject matter as a “correlation” no less then twenty times. The term “natural law” was used only 18 times and most of those instances were references to prior case law or the term was used as being equivalent to the “correlation” or “natural phenomenon” recited in the claim.

          Nobody in the Prometheus case ever asserted that “administering a drug” was “a natural law”. Quinn was pounding a strawman because that’s one of his specialties. It’s not surprising. It’s what a lot of not-especially-intelligent people do when their back is up against a wall, especially if they are otherwise prone to dissembling.

      3. 24.1.3

        “Is administering a drug a “natural law”? No.

        It depends on where you look in nature.

        Animals will treat themselves for certain ailments. Such as the compulsive eating grass by some carnivores. Why? It makes them throw up things causing problems in their stomach. No problems, no eating grass. The amount eaten depends on how much and what kind of problems they have. There is also the fact that it contains trace amounts of vitamins. It may also help work as a laxative.

        link to petmd.com

        So yes, I think administering a drug could be considered a natural law.

        1. 24.1.3.1

          Interesting analysis, jesse …

          But way too subtle for the typical dues-paying member of the Mayo-nays Club.

          1. 24.1.3.1.1

            I know, as it happens a lot to people that don’t visit the real world occasionally.

            It helps that I have several cats… which is one of the reasons I happen to see the activity.

  15. 23

    NWPA: Max you and Ned are deeply offensive people.

    Remember, folks: this is from the guy who compared people who disagreed with him about patent reform to “jihadists” who “rape and kill people in Iraq.”

    But he’s not “offensive”! Nope. It’s Max and Ned who are offensive.

    And because we all know how short some of the memories are around here, I’ll just remind everyone that Max and Ned and I disagree about all kinds of stuff all the time. Yet somehow we manage to get along. Go figure …

    1. 23.1

      Get along…?

      Like Ned thinks 6 is an Einstein because he happens to align with Ned’s agenda…

      Your ‘getting along’ is NOT impressive.

      1. 23.1.1

        Your ‘getting along’ is NOT impressive.

        Says the best buddy and tireless defender of the guy who compared critics of the patent system to “rapers and killers”.

        Keep digging.

        1. 23.1.1.2

          MM, you have called me the N word, you have posted under my pseudonym, etc. Please stop the nonsense.

          I have offered to not respond to your posts if you don’t respond to mine. This seems to be a good solution to me and yet you have never responded to this repeated offer.

          1. 23.1.1.2.1

            you have called me the N word, you have posted under my pseudonym

            You gotta love the shameless lying.

            He’s your best and brighest, software patent lovers! Embrace him.

            1. 23.1.1.2.1.1

              Not necessary, as it would be a false equivalency (in the true use of that term) to equate all of the beliefs from one pro-software person to a different pro-software person.

              That Which Malcolm Does strikes again.

  16. 22

    Readers, see Comment #3 for reasons why an opinion-leading reader has ceased to follow the comments thread. She is by no means the only one. Let us take this seriously, for we all want this to continue to be the Leading Blog.

    Then go to MM’s 10.2.1 and anon’s rapid response at 10.2.1.1 and form your own opinion what is currently polluting this blog and, going forward, continuing to damage its prospects of attracting readers with something interesting to say.

    I have no idea though, what to do about the never-ending stream of pollution. The best I can come up with is what I said already, simply delete peremptorily anything which is deemed to be offensive, while adding nothing of substance. Never apologise, never explain. Just do it.

    I think the experience of seeing one’s posts deleted, over and over again, regardless what new pseudonym or IP address one uses, might be quite deflating, and educational, in that it imposes reality on the errant poster.

    The frustration lies in that it seems to be just one full-time poster who is endangering this blog by destroying its readership. Take him out, make an example of him, and the behaviour of other posters would improve markedly.

    Look at Gene Quinn’s blog. No pollution there. But why bother to go there when there’s no debate there? The trick is to foster the debate while shutting out the polluters. Gene Quinn hasn’t cracked it but perhaps Dennis will. I sure hope so.

    1. 22.1

      There IS debate on Quinn’s blog MaxDrei, just not the type of debate that includes mischaracterization of law, of facts, and of what others post.

      Yes, the usual pundits that inhabit this site won’t go there, or don’t last there with their usual bag of tricks, or haven’t you learned that?

    2. 22.2

      …as for “rapid” response and 10.2.1, perhaps the “dear readers” should first grasp 10.2, eh O-I-am-here-to-provoke-so-that-I-may-learn…

      …or is “provoking” only belonging to the domain of those with a pre-selected viewpoint…?

    3. 22.3

      I have offered numerous times to not respond to any of MM’s posts in return for him to not respond to mine. He will not take this deal. I have made the same offer to 6 and have asked jesse many, many times to not respond to my posts.

      Face it, the impetus for the noise on this blog is from the judicial activists that want to end software patents. Basic facts are disputed by the judicial activists. Everyone too should understand that the problem is bigger than this blog. Bill Moyers had a series on this problem where all arguments have become acceptable to present without the media taking a stand to insist on adherence to a basic set of facts or moral standards.

      So, as a simple example is it ok for MM to repeatedly deny that Mano says that software/hardware/firmware are equivalent? Is that an OK stance to take and why? Quinn says no and will ban you from taking that stance. Here on patentlyo many just deny this fact and even deny that portions of Mano have been posted on this site.

      And, frankly, Max, you credibility with me is very low. I have watched MM bait people for 10 years on this blog. I have asked him for almost 10 years not to respond to my posts. What I have noticed is that MM doesn’t like a post to stand that is against his agenda. He will bait anyone that posts anything against his agenda. Your credibility is really nonexistent Max because no decent person could read this blog and not notice that. I’d say that jesse and MM are about equivalent in their tactics of harassing people on this blog.

      1. 22.3.1

        And let’s face it. This does not end on this blog. Lemley claims software has no structure which outrageous.

      2. 22.3.2

        So, the big point is it is pretty naïve not to realize that what is going on here on this blog is really what is going on in the real world.

        But, I think any rational person would come to the conclusion that the MM’s on this blog are clearly backed by money (I mean 40 hours a week for 10 years?) and clearly are judicial activist.

      3. 22.3.3

        MM to repeatedly deny that Mano says that software/hardware/firmware are equivalent

        I’ve never denied that “Mano” said any such thing. I could care less what “Mano” says about anything.

        deny that portions of Mano have been posted on this site.

        I don’t recall anybody denying that “portions of Mano” have been posted here. Who cares about “Mano”?

        Most of us have our own brains and know how to use them. Go ahead and recite your silly script if it makes you and Quinn happy. But don’t expect everyone else to recite it along with you.

        [shrugs]

        1. 22.3.3.1

          Yes and please don’t expect me to accept that the earth revolves around the sun. There are alternative theories that say that the sun revolves around the earth.

          1. 22.3.3.1.1

            NWPA,

            Will you explain your position on this matter? I’ve never seen it spelled out fully. As I understand it, your position is something like:

            Because software, firmware and hardware can each be configured to perform similarly tasks (although that configuration would differ for each), they are ‘equivalent.’

            Because software, firmware and hardware are ‘equivalent,’ they should be treated identically under 101.

            Hardware is eligible under 101, if we treat software and hardware identically, then software is eligible under 101.

            Please point out if my understanding is correct.

            My problem with this position as I understand it, which I’ve believed we discussed, is that it conflates the language of a claim with the underlying ‘invention.’

            For example, let’s look at one of the ‘Top 10 Patents for 2014,’ 8880221. I don’t think anyone, anyone at all, thinks that an appropriate claimed robot is patent eligible.

            But looking at the claims, and I havn’t fully thought it through so I could be wrong about this, it seems more like they’re claiming the idea of ‘a robot that corrects itself in a fall,’ which of course would be ineligible. Here’s IC 1 for reference:
            1. A computer-implemented method for controlling a robot during a fall, the method comprising: receiving, by a robot controller, a detected state of the robot; determining based on the detected state that a fall of the robot is unavoidable; responsive to determining that the fall of the robot is unavoidable, determining a desired rotational velocity of the robot that would cause the robot to impact the ground with a predetermined target body segment making first contact with the ground given the detected state of the robot; generating a control signal to control motion of the robot during the fall based on the desired rotational velocity; and outputting the control signal to actuators of the robot to cause the robot to rotate based on the desired rotational velocity such that the predetermined target body segment makes first contact with the ground.

            I’d be interested in everyone’s take on this claim, as well.

            1. 22.3.3.1.1.2

              Go,

              Previously you had indicated that you were a relatively new attorney.

              The more you post the more I find myself doubting that.

              Here for example, while you remain ever polite, you make some seriously egregious mistakes (classifying Malcolm as a non-h@ter being a doozy), but to the point of this immediate exchange, you present a method claim while discussing the equivalence of software and hardware.

              You also ASSUME some type of de facto per se passing of 101, and attempt to use that subtlety as a tripping point. You are aware of course that that Court has found that meeting the statutory category of manufacture (e.g. Hardware), does NOT provide a per se passing of 101. Your choice of verbiage is also unnecessarily confusing – using identically in the phrase “if we treat software and hardware identically,” but that’s more of a minor nit given your claim class selection and the Per Se trap.

              (your Per Se trap is a separate discussion about what it means to pass 101, which includes NOT ONLY passing the statutory category aspect but the utility aspect as well. Given your proclivities – as indicated in other comments today – concerning an apparent belief that the Supreme Court is infallible (they are not), it is probably wise not to sidetrack in the fact that they have truly messed up 101 in their nose of wax addiction).

              1. 22.3.3.1.1.2.1

                You also ASSUME some type of de facto per se passing of 101

                There was no such assumption. Learn to read.

              2. 22.3.3.1.1.2.2

                I’m not trying to assume anything, I’m trying to figure out what your and NWPA’s argument is…

                If that’s not the argument, please let me know what it is! I don’t know why this is always so difficult…

              3. 22.3.3.1.1.2.3

                Literate adults will appreciate that Go Arthur was expressly attempting to paraphrase NWPA’s argument and not expressing his own opinion about the “per se eligibility” of anything.

                My god but you are a sad case.

                1. …so much for those “literate adults”

                  And Go, my reply is still valid with the Per Se trap (there is nothing “difficult” about defusing a Br1er Rabb1t style trap)

                  Malcolm – the attempted paraphrase missed for the reasons given – you need a third grader to help you understand that?

                2. my reply is still valid with the Per Se trap (there is nothing “difficult” about defusing a Br1er Rabb1t style trap)

                  Deep stuff from the illiterate master of the incoherent rant!

                  Please keep the hits coming. You can’t parody this stuff.

            2. 22.3.3.1.1.3

              I’d be interested in everyone’s take on this claim, as well.

              Junk.

              But watch NWPA and “anon” try to defend it.

              After all, robots are super cool.

              1. 22.3.3.1.1.3.1

                Anon,

                My opinion is that the mere fact that hardware and software can be configured to perform equivalent tasks does not confer per se eligibility to software. A position we probably share. Neither is hardware per se eligible, as you’ve pointed out. It all just depends on the claim.

                A claim reciting “computer hardware configured to perform intermediate settlement” is just as ineligible as “computer software configured to perform intermediate settlement.” And regarding your box of electrons and protons, “a compound, configured to cure cancer” would be ineligible as well. Probably.

                1. Part of the problem is that software itself can be considered a configuration for “computer hardware”.

            3. 22.3.3.1.1.4

              >Because software, firmware and hardware can each be >configured to perform similarly tasks (although that >configuration would differ for each), they are ‘equivalent.’

              This is essentially the point. I am saying that this starting point is science. That is absolutely accepted, and I have posted quotes from a well-respected computer architecture textbook that says about what you just said. MM has repeatedly denied this.

              1. 22.3.3.1.1.4.1

                …so much for those “literate adults”

                And Go, my reply is still valid with the Per Se trap (there is nothing “difficult” about defusing a Brier Rabbit style trap)

                1. Anon,

                  I’m only vaguely familiar with this rabbit, and I can see no relationship between this rabbit and clearly explaining one’s argument on a blog.

                  I’d ask you to explain the rabbit analogy, but I can guess where that’d lead ; )

                2. And yet again, let’s try again…

                  It is not the mere aspect of clearly explaining one’s argument that is involved in the analogy.

                  Clear explanations have been given (as I mentioned elsewhere, I suggest that you become familiar with the archives function).

                  The problem comes from the rampant and intentional mischaracterization of what others post, the incessant spin by certain factions (the most prominent one doing this being your id0l), and the nature of the C R P run away from valid counterpoints-C R P again drive-by monologue meme which is used to avoid true dialogue.

                  That being said, from your post at 22.3.3.1.1.4.2, it appears that you do accept the fact that software is equivalent to hardware and equivalent to firmware.

                  What then is your position of this fact’s legal implication?

              2. 22.3.3.1.1.4.2

                NWPA,

                Well, I think we agree on that point of fact, but disagree on its legal implications.

                1. Go Arthur: and then we could debate the issue. But if you deny that scientific fact, then there can be no debate. MM denies that scientific fact.

                2. Night Writer,

                  It is worse than just a mere denial of fact.

                  Malcolm actively seeks to obfuscate the discussion.

                  Witness the intentional conflation between “exactly the same as” and equivalency.

                  Only certain people ever inject the notion of “exactly the same as” into the discussion; yet that notion simply does not belong.

                  So why is this notion repeatedly attempted to be inserted? The only reason is for distraction and dissembling from the fact and legal implication that equivalency is determanitive – “exactly the same as” is just not needed for any part of the subject of the dialogue.

            4. 22.3.3.1.1.5

              Go Arthur, there is an implicit assumption that a circuit configured to perform math is always eligible. It normally is, of course, because a circuit operates on inputs and produces outputs.

              A circuit disconnected from inputs and outputs and which did nothing but calculate (as a programmed computer would do disconnected from any application) would not be useful in any sense other than generating heat.

              1. 22.3.3.1.1.5.1

                It also involves a lot more than just the mathematics.

                It requires sufficient power, but not too much or little power, signals with a sufficient power (again, not too much or too little), operate in a suitable temperature range…

                And conventionally, is also implementing a continuous function of math.

          2. 22.3.3.1.2

            NWPA: Yes and please don’t expect me to accept that the earth revolves around the sun. There are alternative theories that say that the sun revolves around the earth.

            Last time I checked you were the guy who was appealing to authority to make your super awesome point. That fact sorta pulls the rug out from under your lame attempt at humor here.

    4. 22.4

      And seriously Max you and Ned are deeply offensive people. No one could read this blog without noticing that MM responds to almost every post he disagrees with and baits people. You two watch his back while he does this so the two of you are just as guilty as MM. You two then are bait and harass everyone on this blog that posts something that MM does not agree with regarding the judicial activist’s agenda.

    5. 22.5

      anon, Night, I’m obliged to you. The way I see it, you make my point.

      Anybody else want to comment today? Perhaps to add something useful?

      Otherwise, you might well think that the replies thus far, from anon and Night, are best left undiluted.

      But, whatever, a Happy New Year to you, one and all.

      1. 22.5.1

        anon, Night, I’m obliged to you. The way I see it, you make my point.

        Of course you do – and it is with that mindset that your “here to learn” is such a pitiful joke.

      2. 22.5.2

        Max I think the person that just made the point is you. You are just as culpable as MM for baiting and harassing people. You don’t respond to the substance of my post because you have no response. You are guilty.

        And, the moderators of this blog should consider MM’s behavior. He exhibits many behaviors that indicate he is paid. One of those is that he does let any post go that doesn’t agree with his agenda. That sounds very much like part of a job description to respond on blogs to posts that do not agree with an agenda.

        1. 22.5.2.2

          the moderators of this blog should consider MM’s behavior. He exhibits many behaviors that indicate he is paid.

          I am being paid. But I’m not being paid to comment here, you ridiculously paranoid goofball.

          Again: you are the best representative for the software patent lovers that people like me could ever dream of. Keep it up!

          And a special message to all your “friends” out there: by all means never suggest that NWPA shut his trap. He’s really very effective! And serious. Yes, he’s very serious. Just like y’all are.

      3. 22.5.3

        And Max again you are deeply offensive. Respond to my repeated requests from MM not to respond to my posts in return for me not responding to his.

        Again, you ignore reality, so you are guilty.

      4. 22.5.4

        And one final point: be real! This is a blog about patent law. Patent law has changed. I have posted links to the Washington Post that published an article about how patent law has become political. I have posted an article on the front page of the Financial Times that Google is the number one contributor to Congress second only to Goldman Sachs. Google has a clear agenda to weaken the patent system.

        This is a large part of patent law now. We are getting many appointments to the Fed. Cir. from people with no science background, directors who have little to no experience in prosecution to run the PTO which is primarily about prosecution, along with patent judges that have been described as “death squads” by the former CJ of the Federal Circuit. We have the chief architect of Alice —Lemley– continuing to publish in the vanity press articles that devise new ways to end software patents.

        On patentlyo there was a job posting for paid bloggers to blog against software patents.

        Let’s be real about this. All of this is now part of our world and isn’t going away.

        1. 22.5.4.1

          I forgot to add that Lemley has posted on his start-up website about getting rid of software patents using the functional game of removing one skilled in the art.

          And that the new trade secret law provides for causes of action against employees in California. There have been articles published that say this is very disturbing and likely Google has a hand in this.

        2. 22.5.4.2

          patent law has become political.

          Oh noes!

          Patent law was so much more fun before all those darn people became more aware of it.

            1. 22.5.4.2.1.1

              NWPA Total mischaracterization of what I said.

              What you “said” was a complete joke except for the punch line, which I provided.

              Take your silly temper tantrums over to Puppydog’s Patent Corner where you’ll be coddled and cherished along with all the other infants.

    6. 22.6

      “The frustration lies in that it seems to be just one full-time poster who is endangering this blog by destroying its readership. Take him out, make an example of him, and the behaviour of other posters would improve markedly.”

      It doesn’t even have to be permanently.

      1. 22.6.1

        The funny thing 6 is that one person has been posting in the same “style” with the same complaints from many others for eight years and running – per the captured historical records – and WELL before I have been putting his nose into his CRP.

        Need a hint as to whom the perp is?

        1. 22.6.1.1

          “The funny thing 6 is that one person has been posting in the same “style” with the same complaints from many others for eight years and running”

          To be sure anon I understand what you guys are btching about but I don’t see it as legit to btch about that. You can complain all you like, but it won’t make your complaints necessarily legit. He goes a bit overboard on occasion. The proper person to complain to, politely, in that instance is him.

          You could likely adopt a different tact and get him to voluntarily calm down on the board if all you truly care about is getting him to calm down his posting. Of course if that isn’t what you truly care about, and instead you desire something else (cough control) then that likely won’t help you much. Not to mention that it is often you and a few others that incite him into going overboard in the first instance.

          The man simply doesn’t have much of an appreciation for “flat earth” views and is incited when they are constantly pushed into his face. Or even having someone repeatedly “offer” a “discourse” or “conversation” on the merits of flat earth theory (or the patent law equivalent). It’s like Ken Ham all the time asking Richard Dawkins for a “debate”. Eventually the man who knows something is tired of trying to educate the other through “discussion” where the other isn’t there to learn. And he will get incited by the other constantly bringing it up.

          1. 22.6.1.1.1

            Two things 6:

            You have the anti-flat Earth thing arse backwards, as being anti-software patent and anti-business method patent are the equivalent of thinking flat earth.

            All this med-line stuff of yours is just you trying to control me. You have the doctor/patient roles all screwed up. I get that the notion of the Earth not being flat sends you into a tizzy and all, but you jump right past trying to complain (politely) to the person whom you perceive to be threatening your flat Earth Belieb system. You go directly into projecting your ills onto that person.

            And yes, this HAS been brought -politely even – directly to the attention of the affected person before.

            Get well soon.

            1. 22.6.1.1.1.1

              “You have the anti-flat Earth thing arse backwards, as being anti-software patent and anti-business method patent are the equivalent of thinking flat earth.”

              I know that’s your position. But you don’t have to always bring it up brosef (this is the part you can’t stand). We’re on opposite sides of that particular discussion to such an extent that each side thinks the other is the flat earther. And MM is opposite you as well. Just like Ken Ham, you’re welcome to hold your views and keep on living. And just like with Ken Ham there is an objective view outside of our conflict (which the USSC just got done laying down). Likewise like Mr. Ham just know that when you repeatedly offer them for “discussion” with a man of learning then you will likely incite him.

              We already understand your position, you don’t have to bring it up in response every time. And neither does MM to you. Neither do I (note I have withheld doing this myself a lot of late).

              “All this med-line stuff of yours is just you trying to control me. ”

              Yes anon, to an extent it is. As I’ve explained before, I would very much like “to control” you into the loving embrace of a trained professional.

              “but you jump right past trying to complain (politely) to the person whom you perceive to be threatening your flat Earth Belieb system.”

              Brosef, I only “jump right past” some topic or complaining to you on to telling you about your condition when you’re having a flare up. Otherwise I usually stay on topic. Esp of late. Check my posts.

              “You go directly into projecting your ills onto that person.”

              Keep on beliebin’ bro.

              “Get well soon.”

              You’re too funny bro. Really, you are.

          2. 22.6.1.1.2

            Not to mention that it is often you and a few others that incite him into going overboard in the first instance.

            And “anon” and NWPA know this.

            So does Dennis. So does Jason. And so does David. And so does everyone else with half a brain.

            My gosh right here in this thread you got NWPA accusing me first of calling him a “n—–” and then accusing me of saying stuff about Lemley that I never said. Meanwhile, NWPA’s BFF “anon” looks the other way as usual and tries to pretend that he’s the Last Honest Man on Earth.

            And then to ice the cake, “anon” offers this: being anti-software patent and anti-business method patent are the equivalent of thinking flat earth

            Deep compelling stuff from the master! Quinn must be so proud of his li’l boy. Lick them buttons clean, “anon.” Yummy.

      2. 22.6.2

        MaxDrei’s post at 22 is like the Three Stooges.

        You have MaxDrei bumbling about with an implication towards a certain person when all the while a different person (the second stooge, Malcolm) should be the object given his excessively long history – which absolutely negates MaxDrei’s “I think the experience… might be quite deflating, and educational, in that it imposes reality on the errant poster” since Malcolm simply does not feel ANY rules apply to him and has shown that he cannot be educated.

        The third stooge is 6 who cheers on the other two and quite misses the not-so-nuanced “control” aspect that MaxDrei espouses (imposes reality). What 6, no “control” jests when someone else suggests “control?”

        The irony of course is that the poster with BY FAR the most posts simply expunged or in MaxDrei’s words “simply delete[d] peremptorily… Never apologize, never explain. Just do it” is the very person Go lauds and whom MaxDrie ‘seconds’ in MaxDrei’s post at 18.1.2.1.

        None other than Malcolm.

        A big helping of self-FAIL all around for these three.

        1. 22.6.2.1

          “What 6, no “control” jests when someone else suggests “control?””

          Sorry bro, I’d only get on them when they show signs of being preoccupied with controlling their environ like people with OCPD. If they do start showing such signs and additional symptoms of OCPD I will be sure to inform them. They would likely be glad to have someone make them aware of what is occurring and change their behavior. That’s because that’s what normal people would do. And I wouldn’t have to tell them twice.

          And to be sure, I generally don’t mean to be “jesting” with you when discussing your issues and how they affect the board. Sure, sometimes they’re so blatant that they’re funny but I don’t generally endeavor to turn them into jest.

  17. 20

    Well, based on today’s frantic display, one thing is now abundantly clear – the commentariat’s man of the hour MM / anon does in fact get paid to post here. Depending on how Crouch reconfigures the blog, our fan favorite may just be out of a job.

    I wonder how he’ll phrase this WE on his resume?

    Oh, the drama!

    1. 20.1

      Dear smallcapsmonikerofthe moment,

      You should be more than aware that I am not Malcolm. Please see post 13.2.1.1.3 below, the linked “ecosystem” post and the historical post referenced on that post to try to grasp what is going on here.

      Thanks.

    2. 20.2

      “man of the hour MM / anon”

      That would be hilarious if true.

      “Oh, the drama!”

      And that’s what brings the masses. The humanity.

  18. 19

    Jason – I like the real name policy. I’m a patent lawyer that skims through patentlyo 2-3 times per month.

    Generally, the comments seem to have a low signal-noise ratio, and I suspect the “real name” policy will go a long way towards reducing the noise.

  19. 18

    After 24 hours you have just 9 comments on the actual post. Maybe those comments and the post itself are of high enough quality to carry the day. With respect, I don’t think so. I think a piddling 9 comments in 24 hours may be an all time low record for PO. (Some stats here, Dennis??) But I recognize that hits are not everything.

    Personally, I think this little experiment pretty much tells you where PO will end up it your rule is generalized — toilet.

    OTOH, at the moment you have 6x more comments (anonymous) about the comments rule than you have about the actual post.

    So, you can either go the PC route and require a passport, bar card, or some other form of picture ID in order to post here, in which case the blog withers away, Mooney goes back to writing children’s books and intergalactic travel guides, and 6 goes back to work entering 101 rejections that won’t stand up on appeal, or you can tolerate liberal, sometimes raucous, discussion and continue as the leading patent law blog.

    This is not a Woody Allen type of dilemma. The way forward is clear.

    1. 18.1

      What is does it remove the ability of anonymous fools to use Patently-O as a soapbox to epouse their views (“Milly” and “Math” come to mind) by posting the majority of threads AND responses in any particular topic. I, for one, am glad to see this. Let MM start his own blog if he wants to dominate a discussion – why let him “cash in” on the popularity of Dennis’ blog in order to espouse his nonsense?

      1. 18.1.1

        Milly’s Math (any believe this is a newbie?): Let MM start his own blog if he wants to dominate a discussion

        Just like I’m “dominating the discussion” here, right? Pretty funny stuff.

        Meanwhile we’ve got the usual two cornblowers spewing out deep insights here like “the inverted dark heart sitting on that spike is a spade” and “professors with tenure … have no idea anymore what it is like in the real world” while comparing themselves to “the child who points out that the Emporer is indeed naked”.

        I’m still laughing at the results of Dennis’ “experiment”. Reemember that one? MM will stop using those “bad words” that are sooooooo offensive … and then what? Billy’s going to stop engaging in innuendo and immediately labeling everyone who disagrees him about pretty much anything (but especially software patents) as being ignorant of the law, technology or worse? That certainly didn’t happen. NWPA is going to stop accusing people of and immediately labeling everyone who disagree with him about the awesomeness of software patents as being ignorant of the law, technology or worse as being paid shills? That didn’t happen either.

        Nope. We all know what did happen, though. A bunch of “new” characters introduced themselves and doubled-down on the usual script, apparently with the bizarre expectation that they wouldn’t be questioned about it.

        At the end of the day, Jason, just accept the fact: there are some deeply invested people out there who love patents — especially software patents — and they are always going to demand that they have the right to insult people who disagree with them. The fact that they already have a blog on the Internet where they are free to do that (indeed — encouraged to do so) doesn’t matter to them. What matters is that there is an “important” patent blog out there where their views (i.e., “anybody who questions the awesomeness of patents, especially software patents, is an idi t”) are not being given sufficient, fawning unyielding attention. And that’s the problem that, in their mind, needs to be “fixed.”

        So fix it, Jason! Go right ahead.

      2. 18.1.2

        MM certainly doesn’t need my help…

        But given that he’s been called out a couple of times on this thread (and apparently in emails to the operators of the website), I want to throw my 2 cents in.

        MM’s comments are among the most thoughtful and articulate that get posted on this blog and his remarks are one of the main reason I bother reading the comments at all. He’s one of the few posters that will stake out a clear position, explain it and vigorously defend it (those last two being the most important).

        Sorry for the post and feel free to delete it, I just wanted to make sure the non-haters were spoken for.

        That is all.

          1. 18.1.2.1.1

            Dittos.

            Often, the only posts I read are MM’s for the very reason that they are the only posts worth reading.

            1. 18.1.2.1.1.1

              the only posts worth reading

              Conclusive proof that the experiment of signing posts with a real name is absolutely meaningless.

              Seriously, does anyone need anything else?

        1. 18.1.2.2

          “vigorously defend it”

          Yeah, as in post literally 50% or more of the threads AND responses in particular topics/post.

          MM drowns everyone out because he apparently has either the time and/or is getting paid to be vocal on a subject. The rest of the world (by and large) has more to do in a day the refute all his “points.” Would you be happy if the town council meeting let the guy closest to the microphone respond to every comment, simply because he was able to do so? It’d be a ridiculous waste of everyone’s time, and give the impression that a side chosen by the verbose lunatic was supported by a larger percentage of the audience than reality.

          MM is afraid of losing his soapbox. Why DC would allow Patently-O’s comments to be dominated by MM, I have no idea. MM is the reason I left P-O for a while, and the reason I’ll probably be gone again soon.

          1. 18.1.2.2.1

            MM is the reason I left P-O for a while, and the reason I’ll probably be gone again soon.

            And we’ll all have a big sad because …

            Remind us, please.

            1. 18.1.2.2.1.2

              Because, the truth is, while 100% of the people would be ambivalent if I never return, fully 3/4s (and 99% of the non TechDirt crowd) would be overjoyed if you left.

              QED. Anything else ya need to know, son?

              1. 18.1.2.2.1.2.1

                “Because, the truth is, while 100% of the people would be ambivalent if I never return, fully 3/4s (and 99% of the non TechDirt crowd) would be overjoyed if you left.”

                You think that fully 3/4 of the readership is that invested in biz methods/software?

                1. No. But seemingly every thread even tangentially related to software brings out the crazy, which annoys everyone involved.

                2. every thread even tangentially related to software brings out the crazy, which annoys everyone involved

                  Question: does “the crazy” include the comments by people who have been arguing for years that information-processing patents raise subject matter eligibility issues because (1) information is abstract and (2) information processing is something that people routinely do in their heads or with the assistance of conventional information processing devices (e.g., pens/paper, calculators, computers)?

                  I ask because comments by such people don’t annoy “everyone.” On the contrary, those many comments over the years have led — directly or indirectly — to significant and welcome changes in the application of the patent laws.

                  Does that latter fact “annoy” people? Of course it does. Whose problem is that, exactly?

                3. I see what you did there – you hid all changes (future improvements) to a machine into a lump sum present item of the first machine. You need to do better than that, as your “old box” without changes does not – and cannot – have the actual capabilities of the augmented and changed “configured” machine.

                  In order to “just use” the capability, you first must reconfigure and change the machine.

                  The legal concept that you are (purposefully) missing here is inherency.

                  Sure, if your “old box” inherently already has the claimed capability (without additional change), then the proper argument against patentability (note: not patent eligibility) may be reached.

                  Please stop the obfuscatory tactics and try to discuss this in an intellectually honest manner.

                  Thanks.

                4. Actually, anon,

                  That “machine” did have all the capability before the change. It was just not configured to use that “capability”.

                  “In order to “just use” the capability, you first must reconfigure and change the machine” still has to be done… Even if all the reconfiguration and change is to turn on a flashlight with fresh batteries included…

                  So now you have a “new” flashlight???

                5. I think MM makes a good point that this is a movement of judicial activism led by Lemley and that they are about obscuring the facts and misrepresenting the law. And, they have won some big gains.

                  But, then MM denied for years that Google was pouring money into these issues or that there was a big effort to bifurcate the patent laws, etc.

                6. jesse,

                  You are objectively and factually wrong about what you say here regarding inherency.

                  Welcome to my big box of electrons, protons, and neutrons, that EXACTLY uses the same logic that you want to use.

                7. NWPA: I think MM makes a good point that this is a movement of judicial activism led by Lemley and that they are about obscuring the facts and misrepresenting the law

                  I never made that point, you sad malignant cr e ep.

                8. You should study some math.

                  The instruction cycle specifically.

                  The CPU can only do what it was designed to do.

                  If some software changes that – it will be a new development – and usually would be called “magic”.

                  No software can change the CPU capabilities. Not even microcode/firmware can do that – as microcode itself is interpreted by the CPU.

                9. study some math… instruction cycle

                  You think a mode of operation of a computer and code is math…?

                  That’s beyond Tegmark (if that was possible).

                  Woefully lost you are jesse.

          2. 18.1.2.2.2

            One more thing – MM thinks his analysis is flawless, his conclusions are the only legally correct conclusion, and he’s a champion of the TD crowd. Step forward with pride MM – let all your supporters know who you are, so they can revere and worship you appropriately. You’ve responded in the other threads calling out your terrible language, insulting demeanor, etc., that you’re proud of your stance, of all the things you said. About how different companies would offer you a job if you just picked up the phone, etc. Prove it!

            Or, more likely, run away like you always do. When it’s time to put up or back down, I smh knowing there’s no put up coming . . . Lol

            1. 18.1.2.2.2.1

              MM thinks his analysis is flawless

              Um … which “analysis” would that be, “Milly”?

              This grieving commenter doesn’t say. Anyone surprised?

              In case you’ve forgotten, “Milly,” you and your freshly washed sockpuppets are free to point out the “flaws” in my analyses each and every time you find them.

              It’d be nice if you do that (1) in English and (2) using assertive sentences and evidence.

              But if you want to just spew out some self-serving baloney because it makes you feel good that’s your problem. Why is it your problem?

              Because instead of ten sycophants high-fiving you like they’d do elsewhere, here there is a risk taht someone might actually point out what you’re doing. And let’s face it: that’s what really gets under your two cent jib. You want to be able to re-post your silly, transparent, self-serving lies (“103 works just as well as 101!”) and your incoherent meaningless scripts (“software is equivalent to hardware except where it isn’t!”) (“you can’t dissect claims!”) without anyone questioning you. It’s not enough that you have an entire blog solely and openly devoted to promulgating that nonsense and banning all dissent. No, you have to be able to spew it here, too, because otherwise “we’re going to revert to the iron age” or “innovation is going to stop” or some other such kindergarten-grade baloney.

              1. 18.1.2.2.2.1.1

                Nothing like a little rampant mischaracterization of positions, eh Malcolm?

                This is the kind of CRP that would get you sanctioned in a court filing my friend – the aim of this little ‘experiment’ is to simulate that which would be filed in a court – clearly you both miss that aim and (again) think that your “tactics” need not follow any basic level of decency.

                Eight years and running…

                1. Nothing like a little rampant mischaracterization of positions, eh Malcolm?

                  Nothing like completely failing to identify exactly what you believe has been mischaracterized, eh, “anon”?

                  This is the kind of CRP that would get you sanctioned in a court filing

                  Oh boy, here comes Mr. Ethics on his high white horse again! Nobody could have predicted. You better ask David to hold your hand.

                2. Well Malcolm, for starters let’s be clear on the difference between equivalence and “exactly the same as”…

                3. let’s be clear on the difference between equivalence and “exactly the same as”

                  Try to believe it, folks.

                4. Malcolm,

                  You do realize that your “folks” reply is meaningless and empty, right?

                  Or are you still pretending not to understand the difference between equivalent and “exactly the same as?”

                5. Anon,

                  This most recent post of yours speaks to an a recent conversation we had regarding ‘objective structure,’ and I’ll repeat a similar comment here.

                  If you want to make an argument, for example, that hardware/firmware/software are equivalent and that fact relates to the issue of patent eligibility, it is your obligation to explain your argument. I understand you’ve probably explained yourself before, but such is life.

                  It is just not realistic to expect everyone to follow your thought process unless you spell it out in plain language for everyone to follow.

                6. Sorry but no go Go – you ask me to merely accept the CRP-ignore the valid counterpoint and run away- CRP again gamesmanship and perpetually restate and step through the detailed expositions time and time again.

                  Your assertion that such is my responsibility is rejected.

                  At the bottom of every thread is an archives function. May I suggest that you become accustomed to its use.

          3. 18.1.2.2.3

            “Yeah, as in post literally 50% or more of the threads AND responses in particular topics/post.”

            He has been posting a bit much of late this year. He could chill a tad and I’m sure he’s aware.

            But then, I post quite a bit as well, though I’ve cut back myself.

        2. 18.1.2.3

          The idea that Malcolm is a ‘non-hater’ removes all credibility from your post, Go.

          Hey, I know the you hew to his viewpoint, but when you ignore reality of what he posts, you impugn (rightfully) your own credibility.

          Nothing you posted as any semblance to the reality of Malcolm’s posts.

          Nothing.

        3. 18.1.2.4

          If sandbox taunts and jejeune ridicule pass for “thoughtful and articulate” in your world pal – I don’t want to visit your world.

          1. 18.1.2.4.1

            I don’t want to visit your world.

            Then go somewhere else.

            If sandbox taunts and jejeune ridicule pass for “thoughtful and articulate”

            They don’t. Nice try, though.

      3. 18.1.3

        “why let him “cash in” on the popularity of Dennis’ blog in order to espouse his nonsense?”

        Um, he helped make it popular in the first place brosef.

        1. 18.1.3.1

          Not for me or anyone I know, he didn’t. We came here simply because it reports earlier than other means (such as the BNAs), not to mention it’s cheaper. I didn’t even realize there were comments for years.

          If anything, though, MM is the reason I’d like an “ignore” button. He/she/it tends to overwhelm the conversation, and any comment thread started by he/she/it devolves into name calling. Plus, if you read one posting by MM, you’ve pretty much read them all.

          1. 18.1.3.1.1

            PatentBob: MM is the reason I’d like an “ignore” button.

            How about you just scroll on by?

            We came here simply because it reports earlier than other means (such as the BNAs), not to mention it’s cheaper. I didn’t even realize there were comments for years.

            Then don’t read the comments. There’s your “ignore button.”

            He/she/it tends to overwhelm the conversation

            No doubt “the conversation” being referred to is the one about how the Supreme Court “has no clothes” and “doesn’t like patents or innovation”. Or maybe it’s “the conversation” about how “you can’t dissect claims, ever”. Or is it the one about how “103 is the right way and 101 is the wrong way because the Amish”? Or is it “the conversation” about how “Google bought the USPTO”?

            God forbid any of those “conversations” should be “overwhelmed”. After all, where could one go to have such a conversation with zero danger of anyone even daring to “overwhelm” it?

            if you read one posting by MM, you’ve pretty much read them all.

            Riiiiiiiiight.

    2. 18.2

      “After 24 hours you have just 9 comments on the actual post. Maybe those comments and the post itself are of high enough quality to carry the day. ”

      I know right?

    3. 18.3

      “So, you can either go the PC route and require a passport, bar card, or some other form of picture ID in order to post here, in which case the blog withers away, Mooney goes back to writing children’s books and intergalactic travel guides, and 6 goes back to work entering 101 rejections that won’t stand up on appeal, or you can tolerate liberal, sometimes raucous, discussion and continue as the leading patent law blog.

      This is not a Woody Allen type of dilemma. The way forward is clear.”

      I lulzed.

      So clear.

  20. 17

    Good comments, and lots to think about. Dennis handles the infrastructure, so I’ll talk with him about the feasibility of a “mute” button or an “up/down” system.

    1. 17.1

      I post occasionally on this site when a topic REALLY interests me and I have something to say or ask. I always post under my real name. I assume that anything I post will be discoverable. Sometimes I don’t enter discussions I would like to because they have been co-opted by the ranters, ravers, and folks who are only interested in personal attacks. To me, allowing these people to take over discussions on what otherwise would be a useful blog diminishes the reputation of the founder of the site and the moderator(s). I would appreciate some way to block or put these anonymous cowards aside. And, yes, I expect those posters to attack me vehemently. Don’t bother. I won’t read it.

      1. 17.1.1

        Alexandra Baran: I post occasionally on this site when a topic REALLY interests me and I have something to say

        You are a truly great person, Alexandra! I tried a couple search engines but I couldn’t find a single example of you posting a comment to this blog about anything, much less a comment where you “had something to say” that wasn’t already being said.

        I always post under my real name. I assume that anything I post will be discoverable.

        Thanks for sharing!

        Sometimes I don’t enter discussions I would like to because they have been co-opted by the ranters, ravers, and folks who are only interested in personal attacks.

        What about all the other times, Alexandra?

        You appear have something in common with quite a few of the other complainers in this thread about the comments: you’ve pretty much never commented here before about anything, not even to suggest that (for example) it’s a bit beyond the pale to insult people who love patents less than you do by comparing them to “communists,” “jihadists” or “the Gestapo” or other enablers of the Holocaust.

        I expect those posters to attack me vehemently.

        I’m pretty sure that’s not going to happen.

      2. 17.1.2

        Please define “occasionally on this site” as this is the very first time I am seeing your name here.

        1. 17.1.2.1

          I may have used my full name, Alexandra J. Baran, previously. Honestly, I cannot remember, because I do post only occasionally. I do post somewhat regularly on two LinkedIn sites for patent professionals where the arguments do not deteriorate into name calling as often as does this site. This fact is easy to verify if you are a LinkedIn member. The purpose of my post was to ask the moderators to get rid of the personal vitriol in some way so that productive argument could go forward.

          1. 17.1.2.1.1

            Alexandra,

            You did not answer my question and define what you mean by “occasionally.”

            I too have carried on dialogue on LinkedIn, but you do need to recognize the different nature of the forums.

            This site – for better or worse – is used as a soundbyte mechanism in an ideological war against patents. The dialogues on LinkedIn are not.

            As to “occasionally” I checked the archives for the past year and the single only post by anyone named “Baran” was a rather innocuous post by a Sandy Baran on 10/12/2014.

            As to your initial comment of “anonymous cowards,” I would refer you to doing some minimal research into this country’s hallowed use of pseudonymous and anonymous writings (you can start with the Federalist Papers, then continue with Poor Richards Alamanac).

      3. 17.1.3

        “I post occasionally on this site when a topic REALLY interests me and I have something to say or ask. ”

        And if the blog catered to people such as yourself the comments will be dead and practically nobody would read them anyway.

    2. 17.2

      Better yet, how about an “engage in an intellectually honest manner” or else hold button?

      Maybe you too need to look back at the eight years and running history…

  21. 16

    I post here only rarely and generally limit my comments to discussions clarifying substantive controlling law or improvements in statistical methodologies used in analyzing historical data. For the former purpose, since attorneys are required under Model Rule 3.3 to disclose to tribunals controlling law that may be adverse to clients’ interest, there can be no conflict in discussions of the law. Application of the law to particular fact patterns, on the other hand, might lead to conflicts.

    For those whose participation is targeted at advocating a change in the law, there may be benefit in anonymity, for reasons others have noted.

    1. 16.1

      That’s a pretty narrow view of the types of posts. There can be posts that are critical of legal opinions as being judicial activism or plainly wrong without a person agenda. I generally don’t like it when any judge doesn’t apply the law.

      1. 16.1.1

        You are correct. But since I choose not to participate in such discussions, I’ll leave the merits of anonymity therein to others to debate.

        1. 16.1.1.1

          This is NOT a debate on the merits of anonymity.

          This is merely a reflection on editorial control as to obtaining a certain “reflection” of ‘permissible’ thought.

          That inverted dark heart sitting on that spike is a spade.

  22. 15

    I’m sorry, but this smacks of laziness. Instead of denying people the job-protecting sanctuary of anonymous speech, you should be moderating the discussion thread based on (lack of) content. I know that’s a more challenging undertaking, but as others have noted, you will greatly diminish the willingness of people to participate in the discussion when the cost of entry is their career. And at that point, why even bother having comments in the first place?

    1. 15.1

      I think that is right and frankly –no disrespect intended–but typical of professors with tenure. They have no idea anymore what it is like in the real world. Clients and companies have many choices.

  23. 14

    The fact is that there are a lot of monsters out there that will get you if you criticize them. Lots of monsters with lots of power. No more client. No job. Etc. For example, for the professors on here, I’d bet some of your students criticize your views freely on this board, but if they had to use their real names probably wouldn’t post.

    How many litigators want to post criticisms of judges or USPTO patent judges? Be real. The world now is one where there are so many monsters that taking a stand on anything with your real name is dangerous.

    Is Lemley someone to fear? Google? Moore? Lee? I think so. Would criticizing Lee mean never working at Google? Probably. What about the companies that are involved in the litigation?

    And by criticizing I mean not personal attacks but being critical of the views and actions.

    I think there is a group of people that can get away with criticizing people freely. Those are typically people like professors that have a job for life. But, the number of people is really quite small.

    1. 14.1

      And as a reality check I was told by the managing partner that taking a stand on 101 would likely mean we lose clients.

      1. 14.1.1

        “And as a reality check I was told by the managing partner that taking a stand on 101 would likely mean we lose clients.”

        Taking a stand. What a joke.

        But your losing clients as a result of taking the stand you want to take is entirely appropriate social pressure for a functioning legal system.

        1. 14.1.1.1

          But your losing clients as a result of taking the stand you want to take is entirely appropriate social pressure for a functioning legal system

          Says the guy who is not willing to post in his real name because he would lose his job…

          That’s a bit of a jarring inconsistency there 6…

    2. 14.2

      Also, have you seen what some companies do before they hire you? They create massive files on you. So, so you really want everything that you have ever said on a blog to be in front of them to question you about? I think everyone would tend to be afraid of saying things that would jeopardize their possible employment and would probably just go silent.

      1. 14.2.1

        Agreed. Generally speaking, the law (especially this corner of it) is stocked with very conservative sorts of men and women who are afraid to make waves and who don’t approve when others do. Ditto the human resources types who are the gatekeepers to the lawyers who may do the actual hiring. In an era of search engines, posting any sort of opinion online that strays even ten percent from the preferred Party Line is about as safe as standing up in the Supreme Soviet during the Brezhnev years to challenge, well, anything. Which no one ever did. Twice.

        1. 14.2.1.1

          who are afraid to make waves and who don’t approve when others do.

          Hence the ‘patent peace for our time’ mindset and the reaction against me (a reaction that comes out NOT based in legal points, because we all know that my legal knowledge is superior).

          I have the law that I can pound.

          I have the facts that I can pound.

          Malcolm has his “policy/opinion” table.

  24. 13

    I like the intent, Jason, but I’m not sure that this is the best way to go about it. Many of us like to keep a very “clean” social media profile, with nothing controversial linked to our real names – and yes, for some clients, expressing an opinion on 101 may be considered controversial.

    I personally would rather see a moderation system – even a crowd-sourced one such as Slashdot’s. Moderation would quickly push the useless ad hominem posts below a filter threshold, while elevating good discussion. Having visitors browsing at a default threshold would allow the blog to present a good face, while not stifling discussion.

    Lacking that, an ignore system with the ability to mute certain individuals would at least make reading this blog more comfortable, and I suspect, deter said individuals as they lose their audience.

    1. 13.1

      I basically agree with this. The reality is that we do have clients and that many of us can’t express views one way or the other regarding political hot points.

      Funny, but the reality is that all that money that Google is pouring into the system also means that companies like Google don’t want you working for them if you are opposing their judicial activism agenda. There are many companies like Google on both sides of these issues both in the legal and political arena.

      One suggestion is like the NYTs. Moderate the discussions, but make it so that people can be promoted to post without moderation based on good behavior.

    2. 13.2

      Real names won’t work; you’ll end up with 5 to 10 people at most posting, but at least you’ll eliminate the MM/anon battles that gave rise to this experiment.

      Either heavily moderate or enable us to ignore particular posters.

      1. 13.2.1

        I have repeatedly given sound advice as to how best avoid the “MM/anon” battle.

        But your post propagates a logical error, as “the battle” has been present WELL BEFORE I joined it – the stain here has been present eight years and running.

        1. 13.2.1.1

          It will be 10 years in February. And the entire time MM has been battling with someone like he battles with anon. It has been non-stop. MM battles with someone who then leaves and someone else then starts battling MM.

          NAL I think was the first. She was excellent. At that time MM was arguing that software was a natural law.

          1. 13.2.1.1.2

            MM was arguing that software was a natural law.

            Where on earth do you come up with this nonsense? Any other completely made up l i es you want to share with everyone?

            For cripes sake, Jason, just axe this low-rent goofball and do everyone a favor.

            1. 13.2.1.1.2.1

              That is rich MM. You denying your formal position of calling it a natural law. You and your gang were humiliated by that attempt. I still can’t believe that abstract got traction, but I blame Rader for suggesting it in the en banc fiasco of Bilski and the MASSIVE money from Google that has flooded the halls of Congress.

              >>just axe this low-rent goofball and do everyone a favor.

              No you don’t call people names now do you.

              1. 13.2.1.1.2.1.1

                You denying your formal position of calling it a natural law.

                Like you denying your formal position of calling the moon a bottle cap. Whatever that means.

                But it’s really fun game! I can’t wait to see what other silliness you pull out of your behind. We’re all very impressed.

                You know who’s especially impressed? Tourbillion and PatentBob. They love you, man. Gosh it makes me cry just seeing the deep bonds between y’all.

                1. :)

                  I’ve taken to thinking of Night (and Anon for that matter) as creationists.

                  They frequently take things out of context to “prove” their position, or to ridicule people that happen to disagree with them. I find their “science” to not really be science.

                2. Yeah right jesse when you deny the equivalence of software/hardware/firmware.

                  My arguments are based on science and law.

          2. 13.2.1.1.3

            Night Writer,

            A scan of the early archives reveals that there was almost no commenting at all for the first two years of the blog (and certainly no commenting of any meaningful discussion).

            It was not until around the late July/early August 2006 timeframe that commenting was engaged in any meaningful manner.

            And yes, the blight was there right at the start of commenting.

            I have not found yet NAL’s first appearance, but the earliest that I have found so far was December 2008, nearly two and a half years after Malcolm.

            From the “ecosphere” post, we have learned that many others complained about Malcolm prior to NAL. The problem – a huge part of it at the least – is somehow Malcolm does not see himself as part of the problem (at all). He thinks that any (and all) posting rules are for anybody but him.

            See the post by PDS at September 10, 9:55 PM. (the post 19 series)

            Note the reply, as if PDS was talking about someone other than Malcolm.

            Note too the link by PDS to a (historical repeat) post of Prof. Crouch as of June 2, 2007 (again prior to NAL), directly implicating Malcolm.

            For people to pretend that this is somehow a new problem, or even to pretend that my refusing to be bullied by Malcolm’s long running tactics are part of the problem is beyond being rediculous.

            Patent attorneys (by and large) are perceptive people who can connect the dots.

            Time for some different experiments.

            1. 13.2.1.1.3.1

              “A scan of the early archives reveals that there was almost no commenting at all for the first two years of the blog (and certainly no commenting of any meaningful discussion).”

              A lot of those comments must have been baleted then I would think. Unless D started the blog in like 02′.

              “my refusing to be bullied by”

              You’re so cute when you’re “refusing to be bullied”.

              A regular ol’ Niles Crane.

            2. 13.2.1.1.3.2

              Patent attorneys (by and large) are perceptive people who can connect the dots

              I know Dennis can connect them. I saw him do it and I still have his emails.

        2. 13.2.1.2

          “I have repeatedly given sound advice as to how best avoid the “MM/anon” battle.”

          All we have to do is grant anon control!

          “NAL I think was the first. ”

          That’s impossible if your dates are correct. MM pre-dates NAL (I created her after all, I know when she spawned down to the hour). I haven’t been at the office 10 years yet so it can’t be 10 years in Feb with NAL being the first. Maybe 8 or 9. Likewise, if she was the first then someone wasn’t always here to battle with him. She got that ball started.

          “At that time MM was arguing that software was a natural law.”

          I’d like to see some quotes.

          1. 13.2.1.2.1

            Oh yeah, MM predated NAL, but I am pretty sure that she came into this in spring of 2005.

          2. 13.2.1.2.2

            “At that time MM was arguing that software was a natural law.”

            Oh goodness, don’t tell me you are denying this one too. After all this is one of the arguments in Benson and was also recently repeated in a NYT editorial.

          3. 13.2.1.2.3

            But what then was the date of NAL 6? It is possible I am remembering this wrong after all it was a long time ago.

            Certainly to my mind NAL was the best MM slayer.

          4. 13.2.1.2.4

            All we have to do is grant anon control!

            6,

            Your thinly veiled reference to “control” mirrors the post that was wiped out and f001s no one.

            It is NOT control that I seek, not have I ever sought, notwithstanding your incessant attempts to mischaracterize my calls for true respectful dialogue (as opposed to drive-by monologues).

            1. 13.2.1.2.4.1

              “Your thinly veiled reference to “control” mirrors the post that was wiped out and f001s no one.”

              Awww did you whiney to the mods about mean ol 6 pointing out your mental condition? Just get professional help bro, save the mods time and make us all happier.

              “It is NOT control that I seek,”

              Of course not, you simply demand that nobody be allowed to post in x manner. Aka “control” over the people wanting to post in x manner.

              Just let them monologue bro. Je sus. Everyone else is content with letting them. Why not you too? Are you “special” in some way? “Different”? Perhaps “not normal”? If the mean ol posters just sit around talking to themselves without anyone engaging them they’ll just be one more empty voice on your interbuts.

              1. 13.2.1.2.4.1.1

                I did not “whiny to the mods” 6, as my rebuttal that ripped you to shreds for the doosh that you are was also removed.

                Make no mistake – I can play (and best you) according to any set of ‘rules’ equally applied on this blog.

                1. “as my rebuttal that ripped you to shreds for the doosh that you are was also removed.”

                  O now I see why it was removed in the first place lol. I’m sure you tots ripped me to shreds bro.

                  “I can play (and best you) according to any set of ‘rules’ equally applied on this blog.”

                  Yep you sure are something special mr narcissism! And if this blog has been influencing people over the years you sure look like you’re totally “besting” me there lol! 9-0 how many times lately? What’s the 112 standard exactly? How’s the “no dissection” Diehr “rule” going? How long will it be before the USSC gets ahold of your beloved “exceptions to the PMD”? Remind me just how much you’ve been “besting” me bro. Give us some specifics, I’m in the mood for some lols. It looks to me like in a little over 8 years I’ve been helping to undo many decades of nonsense with the USSC calling several cases down to the knife’s point exactly how I predicted. But that’s just what I see, maybe you see it differently, tell me all about how you’re besting me and will be besting me!

            2. 13.2.1.2.4.2

              Anon,

              I agree to your appeal to ‘dialogue’ in general, but I don’t think we differ on what that means. Recall again our conversation regarding ‘objective structure.’

              You were, I believe, attempting to make the argument that no claim including the word ‘comprising’ has ‘objective structure.’ To counter what I believed your position to be, I provided an example of a claim that I believed had objective structure.

              In the ensuing comments, you never fully articulated your position. Instead, you made some fairly condescending remarks. All I was asking was for you to fully articulate your argument. That will help, I think.

              Again, not that you care, but I very much value your contribution to this blog. My opinion is that you’ve probably grown tired of typing out the same arguments over and over, which I understand (Maybe make a template? haha)

              1. 13.2.1.2.4.2.1

                Go,

                It was you that misread condescension where there was none and it was you that stopped the discussion as my counter point of structure lacking the entirety of structure remains on the table.

                An objective piece of the whole structure is very much akin to the fact that software is not something “totally in the mind,” and the repeated clarifications that I have given whenever Malcolm moves a discussion on functional language to a discussion of PURELY functionality.

                Perhaps your view of Malcolm would change (just a little) if you were to review the historical records that the blogs archived have (or my other posts this evening pointing out the background that you should be aware of). People WELL before me took the very same exceptions to the very same behavior from the very same people and the moderators here did JACK about it.

                1. software is not something “totally in the mind,”

                  Nobody ever said that it was.

                  Keep missing the point and keep pretending that we don’t notice you doing so. It’s really impressive and persuasive!

                2. Nobody ever said that it was

                  That’s not true at all. At least jesse among the slashdot/techdirt lemmings say that.

                  And while you try to be more subtle and may have not explicity said it, the archives are replete with your attempted goalpost moving conversations along that very line.

                  There is no ‘missing the point’ in my posts, and your attempted mischaracterization is exactly the type of C R P that has been plaguing these boards well before I came along – eight years and running.

  25. 12

    Real name is David R. Chase — not the orchestra conductor, not the producer of the Sopranos, not the lawyer with the same middle initial, not any of the several other guys in New England with the same middle initial and approximately the same age, not the guy who borrowed Carburetors and Carburetion from the Jr. College library and didn’t return it, not the assistant math prof from Rice (where I got some degrees), and not one of the co-authors of RFC 937.

    I hope like heck none of these guys does anything to attract the ire of Homeland Security, and vice versa, I am sure.

    Sometimes fake names work better. If you were looking for me in any number of places online, dr2chase is (so far) unambiguous.

  26. 11

    I approve of your purpose, but not of the detail of the real-name rule.

    When posting anonymously, people write in a less careful style. You shouldn’t want that, and I suspect that is the motivation behind a real names policy.

    But please consider a different rule: “You must post under a name that can be easily traced back to the poster’s real-world identity.” Across the internet I am “jdaw1”, but it takes only a moment on a search engine to connect that to my real-world identity. That is surely enough to lessen the possibility of unpleasant posting.

  27. 10

    Here are some reasons why I am not ready to post under my own name:

    1. I’m here to learn, by provoking (as best I can) a debate. Whatever I provocatively say under my real name will be used against me. I’m not so much bothered that the NSA and GCHQ can read whatever they like, rather that my comments might prejudice individual readers against my firm. I’m not willing to take that risk.

    2. I am not a citizen of the USA. For readers therefore, I am an “alien”. Further, for my comments, I am routinely called out as “anti-American”. I don’t want that label hung round my neck in public. I have a family. As the world gets ever more aggressive and zenophobic, I don’t like the thought that such readers would then know who I am, and where I live.

    I see that my post under the “Interpretation” thread has been deleted. That I regret because I think my point, that back in 1973, as Europe was writing the EPC, it thoroughly discussed precisely this issue. I wanted answers, why the European solution that has been functioning in the courts of EPC-land since 1978 is not of any interest within the USA. But under my real name I know better than to suggest to Americans that Europe thought of something first. In my experience, it invites unpleasant responses.

    1. 10.1

      Hey Max,

      I disagree. I think the Europeans may have the best and most easily understood set of rules, especially for computer-implemented inventions. Compare “technical effect” with the unbelievably hard to understand and nebulous “Alice” rules of the US.

      In order to debate topics, one might have to take positions against our clients’ interests. We may not actually believe those positions. I do not want those positions to be attributed to me, when one might think they are my actual beliefs and they may or may not be.

      Personally, I have nothing stored in the cloud; I do not have a facebook account and never will; I use gmail, but I delete everything and keep very few emails there; I do not upload anything to the cloud that I’m not required to; I delete my search history constantly and have switched to Yahoo, which supposedly does not keep your search history. I delete my cookies religiously.

      In short, I value privacy over anything else.

    2. 10.2

      Here is a perfect example in which an ad hominem response would be a proper rhetorical use: MaxDrie’s invocation of “I’m here to learn” is such utter dross and is in such complete opposition to his actual non-learning and incessant EP über alles memes as to be something earning disdain.

      One (major) problem with this desire for civility is that sanitizing discussions for the sake of civility promotes duplicity (such as the “I’m here to learn” CRP).

      The overall problem – as I have stated in other words – is that certain people do NOT want to listen. Certain people want to be able to speak without anyone pointing out the foibles of the position advocated. Shushing the child who points out that the Emporer is indeed naked is the most obvious take-away from this little ‘experiment.’ Just look at the battle and comment count between this thread concerning ability to express and the substantive thread – currently at a 6 to 1 ratio…

      Bottom line folks: we are in an ideological war featuring patent law and what that law is allowed to protect. And to be somewhat trite (albeit perfectly accurate), all is fair in love and war.

      1. 10.2.1

        Here is a perfect example in which an ad hominem response would be a proper rhetorical use: MaxDrie’s invocation of “I’m here to learn” is such utter dross and is in such complete opposition to his actual non-learning and incessant EP über alles memes as to be something earning disdain.

        And here is a perfect example of “the crazy” that stalks MD and pretty much every other non-script-reciting commenter here, as previously noted by Dennis himself.

  28. 9

    How does one enforce such a rule? Anybody can make up a legitimate sounding name that is not real and speak through it. Then the guy who really does have that name will get all the credit for all the smart things that you say.

  29. 8

    Perhaps a limitation on the number of comments (2?) per post (by IP address) might elevate the quality / tone of the discourse.

    1. 8.1

      The main problem with that occurs when two or more commenters are behind the same IP number due to address translation.

      The main advantage to anonymity is that the speaker can’t easily have retaliation for what was spoken. It can be abused, but so can any freedom of speech.

      1. 8.1.1

        The idea was to preserve anonymity while simultaneously limiting the number of comments any one poster could make. Each poster gets an opening, a reply, and then it’s time to sit down.

        I rarely comment, but often read – it’s pretty clear that the comments are dominated by a handful of shrill posters preoccupied with one upmanship and/or last wordism. A cap would mute some of the more antagonistic posters while allowing others to more freely contribute.

        Of course, moderation of the comments would be a simple alternative. A review of this thread alone tells the story. . .

        1. 8.1.1.1

          You do miss an important aspect of the modern day Internet “shouting down”….

          The debate rages constanty, and seemingly over every thread. I have identified this as the CRP-run away from valid counterpoint-CRP again meme.

          Any attempt at limiting responses that does not take into account the repetition without regard of counterpoints raised necessarily fails to meet what you are attempting to correct.

          Like it or not people, propaganda really does work, and there is a kernel of truth to the adage: repeat something often enough and it becomes “the truth.”

          1. 8.1.1.1.1

            run away from valid counterpoint

            This is from the guy who enlisted forty sockpuppets a day to avoid addressing the fundamental facts and issues presented in Prometheus v. Mayo.

            What an incredible joke. But, hey, he knows a lot about propaganda! Anyone surprised?

  30. 7

    I come here to read the comments as much as I read the posts. While there are quite often some annoying comments from the same posters (won’t say who), it’s infinitely better than the other sites I’ve looked at.

    IPWatchdog, for example, only let’s people post who agree with the owner of the blog. While that’s his right, obviously, it makes for a useless thing to read if you are trying to understand what is going on with patents (not a law professional here). Even the vitriolic posts can often give you an insight into the mindset of others in the profession, so you can try to understand why they think some of the things they do (that to someone not in the industry sometimes sound silly at best, and dishonest at worst).

    I think requiring real names would negate a lot of that, even if it would get rid of the vitriol. There are better ways to handle that.

    $0.02

    1. 7.1

      “Even the vitriolic posts can often give you an insight into the mindset of others in the profession, so you can try to understand why they think some of the things they do (that to someone not in the industry sometimes sound silly at best, and dishonest at worst).”

      Amen to that brosef.

      Not just people not in the profession but also people new to the profession.

  31. 6

    A requirement for real names would likely do little but discourage people from commenting.

    Those who are concerned about what there current or future employer or clients may interpret their quickly turned phrase to mean years from now when associated with their name will stop posting.

    Those who have an ideological or commercial motivation to spam the same message repeatedly or who engage in inane behavior would likely continue, simply using a falser name if they felt it convenient to do so.

    A better way of sorting the comments (upthumbs, etc.), the ability to mute people who you find not to contribute anything, banning duplicate names (i.e. anon) and deleting spam comments would all go further I think to maintaining quality and volume.

  32. 5

    Speaking only for myself, I would not post about the office for obvious reasons if I had to use my real name. I understand why people would want it done, and that’s fine by me :)

    1. 5.1

      What are those ‘obvious’ reasons?

      ;-)

      If you only post what is “true” and “right,” why possibly could you be “afraid” of posting your real name?

      Of course, I ask only to exemplify one avenue to the venerable tradition of posting with anonymity or pseudonymity, but I think that you can figure out the point…

        1. 5.1.1.1

          Are you sure? A post awhile back indicates that the USPTO is one of the highest users of Patently-O Feedburner services (number one non law firm per the November 3 post), and since the actual identity is known by the good people here at this blog, (and given the apparent teleworking scandals of late), I find it difficult to believe that any examiners would be violating rules by posting here, and if so, that this blog would turn a blind eye to such rule breaking…

          Right?

          1. 5.1.1.1.1

            “Are you sure?”

            Yes.

            “and since the actual identity is known by the good people here at this blog, (and given the apparent teleworking scandals of late), I find it difficult to believe that any examiners would be violating rules by posting here”

            They aren’t violating the rules just because someone or several someones think they know who goes with what nym. The actual rule is along the lines that you aren’t to use a nym that ID’s you as an office personnel (either your real name or a nym saying “examiner”) so that people don’t get the impression you speak for the office (since you don’t).

            As to the people that break the rules by stating in their nym that they’re an examiner they probably just haven’t paid attention to the rules of the road. It isn’t really all that big of a deal if that rule is broken imo unless someone who works at the office is purporting outright to be speaking for the office in an official matter. Worst case you get a letter of slap on the wrist otherwise. The rules of the road aren’t really there to get people fired so much (barring pronz etc).

  33. 4

    Personally, I think we’d lose a lot if we required real names. As lawyers, we are in a service industry. Many people have opinions on the law but professionally are unable to express them because they would be inconsistent with the needs of their client. That is not an attack on how lawyers work, nor a criticism of the system. But it is a reality. A lawyer acts as a representative of their client and it is often not in the best interests of the client for the lawyer to express their personal viewpoint on the state of the law.

    For me, the best way to address some of the vitriol would be to have an up/down voting system (similar to websites like reddit, for example). Although it is not always successful, it often brings the most insightful comments to the top and hides those that add nothing to the conversation.

    1. 4.1

      Firstly, I cannot see any real risk associated with expressing an opinion as a lawyer on a legal topic. It doesn’t necessarily lead to a conflict of interest. If that were true, many judges who write books, law review articles and other pieces in the popular press would have to recuse themselves. They generally don’t.

      Secondly, the chances of a potential client finding out a lawyer’s opinion from a comment on a blog are probably very low. Not that it’s difficult to find it; but I’d think most clients wouldn’t engage in doing this type of research.

      I am pro this policy. At some point I used to post here, but the number of idiotic replies here began to deter me. Quality matters more than quantity, IMO.

      1. 4.1.1

        I could help but notice Igor, that you did not sign your post as would be indicated by the very rules that you say you are pro policy for… (not very ‘high quality’ of you)

      2. 4.1.2

        I am not referring to an ethical conflict. If anything, it would perhaps rise to a business conflict. But even that would be rare.

        What I am more referring to is the position of a lawyer as an advocate. Lawyers are asked to provide the best possible advice to their client given their client’s position. This often means not expressing personal/ideological viewpoints, and some people prefer to maintain the idea of not appearing ideologically motivated separate and apart from the client’s needs.

        1. 4.1.2.1

          Jane,

          Unlike the professor, you appear to recognize that anonymity/pseudonymity is for more than just “reprisal” purposes.

          Congrats.

          You would think (or at least hope) that this knowledge would have been looked into before the “use-the-real-name” experiment was stumbled into…

          I am sure my pal Anon2 would have something perfectly subtle and yet perfectly sublime to say at this point.

          Or maybe, perhaps, just something (painfully) clever.

  34. 3

    I think it is a useful experiment. I have stopped reading the comments on this site because of the frequent negativity and lack of substance, and I suspect that requiring real names will increase the average civility and value of the posted comments. As “go Arthur” suggests, it will probably also decrease the number of comments, but that’s not a bad thing if the average quality goes up.

    Perhaps a reasonable middle ground would be to have a presumption against comments posted under pseudonyms, but to allow them to stay if they seem to meaningfully contribute to the discussion (though that’s more work for Jason).

    There is value to anonymous speech in general; I’m just not sure those concerns have much weight in the comments section of a patent law blog.

    1. 3.1

      “As “go Arthur” suggests, it will probably also decrease the number of comments, but that’s not a bad thing if the average quality goes up”

      Ok, so let’s say the comments are down from 500 with 40-50 individuals taking part to let’s say 15 with 7 individuals taking part.

      Good trade?

    2. 3.2

      Readers, note carefully what the professor gives as her reason for ceasing to follow the Comments thread. It is not the “rough and tumble”. Academics are the ones who most enjoy that. Indeed, they live by it. It’s how they earn their daily crust.

      What turns Lisa off is the “negativity and lack of substance”. And by “negativity” I suspect she does not mean a negative view as to the fitness of business methods for patenting. The threads bore her. One can see why.

      So here’s my solution. Crouch’s Blogging Laws. No. 1: Any post which (in the absolute discretion of the blogmaster) is negative or lacks substance is liable to be deleted without warning.

      I see no correlation between “real name” and “has substance”. Some of the best “substance” comes from those writing under a nym. Restricting to real names will have no substance-enhancing effect and will shut out much that is of substance.

      It will however result in the threads becoming extremely short.

  35. 2

    Assuming the question is sincere, see this post.
    link to patentlyo.com

    To put it more simply, most of the anonymous commenters are prolific idiots and their comments tend to drown out and discourage the “good” comments. To be sure, some of the “good” comments are anonymous. But the hope, I assume, is that the policy will discourage mostly “bad” comments, even if it comes at the price at discouraging a few good ones from people who won’t post if they have to sign their names.

    I’ve got mixed feelings. I’m happy to try to post something constructive and sign my name to it… I just don’t like the idea that whatever it is will still be sitting there with my name on it 10 years from now. But given the current state of things on the blog’s comment section, this is a worthy experiment. The 4 or 5 characters who debate the same things endlessly are ruining it for the rest of us.

    1. 2.1

      ” The 4 or 5 characters who debate the same things endlessly are ruining it for the rest of us.”

      I for one have tried to curb my debating of the same things endlessly.

  36. 1

    What problem is this policy intended to address?

    As you may have noticed, there is considerably less discussion on the thread requiring a ‘real name’ than the one without the requirement.

    I think it will just discourage people from posting, I know I won’t.

    1. 1.1

      Good questions. Two specifically:

      1) Various folks have contacted me in the past to let me know that they don’t comment specifically because of the sometimes vitriolic commentary posted under pseudonyms. This is, in part, an exercise to test the possibility that there will might be new insights written by folks who are more reluctant to post in the regular threads.

      2) There is a related problem of lack of civility in the comments, particularly in the form of ad hominem attacks. It’s one thing to anonymously criticize authority when there is a fear of real and meaningful reprisal from that authority; it’s another to hurl insults at other folks while hiding under the cloak of anonymity. This experiment is designed to see whether the character of the discussion does, in fact, change.

      At least that’s my intent. But I’ll listen to other views as long as it doesn’t devolve into a shouting match.

      1. 1.1.1

        Generally, I agree with your two points, but I still don’t think it is a good idea.

        This is by far the most active/interesting patent blog on the internet. While some people might post more under your proposed policy, I think you’ll lose a lot more than you gain.

        Regarding personal attacks, I agree it is beyond silly, but I think it is the price you pay for having a vibrant discussion.

        Basically, I think you’ll end up with the comment section at IP watchdog if you implement this policy. Average of 3-5 comments. 10 comments on a good day.

      2. 1.1.2

        It will change, as many of us — like me — will not post at all. I simply refuse to use my real name.

        1. 1.1.2.1

          I’m only going to be enforcing it on these two or three posts; it is *not* a general policy. Even if both goals are met, there are far too many countervailing considerations for me to apply it every time I write a post. Let alone Dennis and David, who will do whatever they prefer on their posts.

      3. 1.1.3

        The “devolve into a shouting match” comes from the Drive-by Monologue model.

        If you want a true dialogue, then you are going to have enforce restrictions on those that merely post their (well-worn) monologues.

        (btw, this was exactly the same suggestion to Prof. Crouch some two years ago – it was ignored then, and then we all find out that certain individuals have been infecting “discussions” in the same excessive ad hominem style for more than eight years.

        Unless you are serious about curbing that, you won’t make any (sustainable) improvements.

        (and it also should be noted that satire and ad hominem “attacks” are NOT necessarily out of place – that such can be effective and proper modes of expression. It is error to think that de facto ALL as hominem is improper. For example, see link to scientificamerican.com

        1. 1.1.3.1

          Interesting article, a little litefor what I’d expect of SA. What do you think, on principle, of this quote from that article?
          Another illegitimate form of the ad hominem is the tu quoque, or “you, too” version, which is an attempt to discredit a person’s claims because the person has failed to follow his or her own advice.
          (We think it would have been better statedis perceived to not follow…)

          Is it that substance suffers adversarial arts reliant on denigration and willfully blind points of view? Anonymity is fair trade for actual and zealous discourse. Though if only to add a veil to propaganda … f— it, we all suffer enough of that.

      4. 1.1.4

        “?This is, in part, an exercise to test the possibility that there will might be new insights written by folks who are more reluctant to post in the regular threads.”

        They’ll post a few times then just trial off into obscurity and non-interest. Just like they do on other patent blogs. Everyone knows why this blog gets all the comments and the people that enable that lively talk.

        I think we’ve done rather well of late curbing the worst of the worst posting. I see no reason to go further.

        1. 1.1.4.1

          Everyone knows why this blog gets all the comments and the people that enable that lively talk

          Not to get too preachy, but 6 has a point (especially when one considers Revelations 3:15-16).

          To be ‘indifferent’ in needful matters is to be deserving of severe punishment…

          We are called to be zealous in service, not daintily or meekly having an ‘opinion,’ but too adverse to criticism to have it heard.

    2. 1.2

      go Arthur,

      Let me assure you that prominent members of the legal community are unwilling to post here primarily because of the abuse to which they are subjected by the anonymous posters.

      One cannot take a position or have an opinion on anything without provoking disagreement. This seems to be a fact of life in public discourse. Most people, however, still welcome a vigorous debate, so long as it does not degenerate into abusive behavior. But, there is little doubt that anonymity permits, even if it does not encourage, abusive posting. And, as we all know, if something CAN go wrong, it will go wrong.

      1. 1.2.1

        “Let me assure you that prominent members of the legal community are unwilling to post here primarily because of the abuse to which they are subjected by the anonymous posters.”

        Why don’t they post at IPwatchdog then? If they’re so desperate for an outlet myriad outlets are available without any fear of “abuse” in sight.

        And to be clear, it is rare that anyone here is “abusing” “prominent members” of the legal community. Saving perhaps NWPA on that one dude and perhaps also on Stern.

      2. 1.2.2

        Also, why don’t we see those big shots all gathered around to post on the “experimental” page?

        What? Are they all still on xmas vaca or something?

      3. 1.2.3

        Ned,

        If these people cannt handle a bit of sharp criticism (and the counterpoints that are put on the table for discussion), then do they really have any business at all advocating for legal policy positions? Are their feelings that brittle? their positions that non-defensible? Please, spare me the crocodile tears, as you are known to tell the objects of Malcolm’s vitriole to “just enjoy the swagger” – no Ned, this is yet again one of those myopic things that you see nothing wrong when things align with your views.

        1. 1.2.3.1

          anon, some people simply do not like the rough and tumble. Wouldn’t you like to hear from them too?

          1. 1.2.3.1.1

            I have no problem with ‘hearing from’ anyone Ned.

            I do have a problem with those knowingly getting the law wrong, maintaining incorrect views of law and facts, and being unwilling to listen to reason or address counterpoints to their views. The drive-by Monologuing thing just does not sit well with me, and you surely do not want to deny me my ability to voice my opinions (and corrections of law and fact), do you?

            This country – for better or worse – has a proud tradition of that “rough and tumble” and I refuse to go quietly into the night of someone’s Crybaby Veto.

            1. 1.2.3.1.1.1

              Not to put too fine a point on it, but a real-names policy would not require that you cease to voice your “opinions (and corrections of law and fact).” It would simply require that you use your real name when doing so. That is hardly a “crybaby veto.”

              1. 1.2.3.1.1.1.1

                You do put too fine a point on it.

                Keep in mind that the reason offered for the change is to dissuade criticism and you completely disregard the entire notion and fine history this country has for pseudonymous and anonymous criticism.

                Think the Federalist Papers.
                Think Poor Richard’s Almanac.
                Think.

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