Half-Billion Dollar Verdict Against Apple

Mansion-sized patent jury verdicts have been slow, but are not forgotten. Yesterday a jury awarded $500 million to the patent holder Smartflash LLC.  The jury also found that that the infringement was willful.

JuryVerdictAppleThe three patents at issue are U.S. Patent Nos. 7,334,720 (claim 13); 8,118,221 (claim 32); and 8,336,772 (claims 26 and 32) and cover managed data-access systems.


134 thoughts on “Half-Billion Dollar Verdict Against Apple

  1. 13

    “fairly and resonably compensate infringment” the question asked.
    Half a billion, that is more than 500 times the full Nobel price, more than 25 times the salary of GE CEO…

  2. 11

    All-in hold ’em in Tyler, Texas. Apple maybe the king of brands, but its record in litigation makes it the court fool.

  3. 10

    Look at Claim 26 (dependent on and including Claim 25) of the `772 patent. A very well written, complete and logical expression of the invention in 598 words. Who says fully complete and wordy claims are not both broad and valuable?

    I would love to see the exhibits introduced at trial demonstrating infringement.

    1. 10.1

      Joe, 25/26 takes the better of two full columns.

      One wonders why “concise” appears only in 112(a). Regardless, this claim is hardly “particular;” nor is it “distinct,” and certainly, not to the “point.”

      Reminds me of the story where a representative of an aggrieved nation petitioned the Spartan Senate for their support. The representative’s speech went on for some time. At its close, the Spartans conferred, then told the representative could not grant the request because the speech was too long and as a result the 2nd half of the speech made no sense because no one could remember what the 1st half the speech was about. But they invited the representative to try again the next day.

      The next day this representative took up his position in front of the Spartan Senate it was given permission to speak. Addressing the Senate, the representative said, “Please help.” The Spartan Senate again conferred, and then gave in their reply as follows: “Granted.”


              Dear “Skippie”

              You quite miss the rip at Ned’s own lengthy explanation resulting in his error and additional correcting post.

              Lighten up Francis.

                1. It is said that copying is a form of flattery…

                  That, and the known fact that you my friend don’t have much of an imagination (from several of out other “jousts” with you routinely coming out with the short end of the stick) – truth be told, it is probably a bit of both.

                2. It took you four days to come up with that meaningless drivel…?

                  How very sad.

                  You have no future in satire. I suggest that you stick to funny gifs.

  4. 8

    When your website is made up of poorly stretched and cropped stock images, and your only product description uses words like “inter alia” and “including, but not limited to,” you’re probably a troll

    1. 8.1

      “The essence of the innovation lay in the inventive digital memory system”


      The essence of the innovation is “hey let’s sit around and dream up some rules for monetizing information.”

      1. 8.1.1

        Do we have to keep hearing the latest judicial activism idea that maybe the Google judges on the Fed. Cir. will believe that information processing is the same as information.

        This is an example of why you are a bad actor. You confuse the issues just like Lemley. Rather than honest analysis we get intentional obfuscation.


          maybe the Google judges on the Fed. Cir. will believe that information processing is the same as information.

          It’s called “logic.”

          But go ahead and argue that logic is one of the “useful arts.”

          Comparing stuff to see if it’s “sufficient”.

          Deep, man. Really deep. Sooper dooper techno and progress promoting. But wait — it’s “customer data” so let’s pretend that it’s really special.


            Why the quotes around logic?

            You do know the difference between math and applied math, right?

            Oh wait, you think that Diehr was wrongly decided…

            And I am sure that you still don’t recognize that ALL engineering is just this same thing of applied logic that you would seek to deny patent protection to, that you don’t recognize that your arguments are NOT anti-software patent, but just anti-patent.

            The ladders of abstraction are used in ALL art fields.

            Your “quoted” logic is used in ALL art fields.

            You mouth (without substance) a distinction in your curse-ade against software that is just not there.

            Put your money where your mouth is Malcolm and abstain from all innovation that you would deny patent protection to.

            If as you would “have it,” that no “real” utility is affected, then you should easily be able to carry on, even as you abstain from the utility that you give up.

            But we both know that you won’t do that, that you won’t back up your words with the actions that would prove your “dedication” to your cause.

            No surprise really.


              Your “quoted” logic is used in ALL art fields.

              Yes, logic is used in all art fields. That’s a major part of the problem.

              What was your point?

                1. Talk about coddling…

                  I would LOVE to see an objective analysis as to why that comment fails to meet some unidentified standard while Malcolm’s “bottom feeder” comments are allowed to run amuck.

                  I see that truth is no defense here. There’s nothing like editorial viewpoint discrimation to remove any ISP immunity, eh?


          Much like those using the terms “abstract” or “technological.”

          Did I say “much like“…?

          How about “exactly like.”

    2. 8.3

      Add when the technology is only patent documents expect there will be old flow charts with new words to follow. (We do hand it to them for not hiding them under a rock though.)

      On that note, ref. the Markman (under Documents). Hey EDT made up terms don’t have “plain and ordinary meanings”, that’s just real nonce-ence.

      1. 8.3.1

        Add when the technology is only patent documents expect there will be old flow charts with new words to follow.

        Pretty sure that river was crossed twenty years ago.


          …because “old box” magically has all future improvements “already in there,” eh Malcolm?

          s i g h – still not paying attention to all the words of 35 USC 101, I see; still knowingly NOT giving full credit to known controlling law and the exceptions to the judicial doctrine of printed matter, I see; still not recognizing the fundamental basics that software is defined to be a machine component and a manufacture in its own right, equivalent (and note this expressly is not “exactly the same as”) to hardware and equivalent to firmware, I see…

  5. 7

    I have a procedural question re 101. Is 101 purely a legal issue for the court to decide or is it mixed where a jury can hear the issues as well? There doesn’t appear to be any cases on point here. It would be interesting to argue 101 in front of a jury. If the courts and patent litigators can’t get it right, how the hell could a jury?

    The only thing I found on point was this article: link to law360.com

    1. 7.1

      Well Gary, per the unlimited power of the “Gist/Abstract” sword, Gisting means that you do not have to pay attention to actual claim terms, so there is no need to delve into facts.

      Pure law here (and unlimited power to make things up, since “Abstract” need not be defined prior to wielding the Sword).

    2. 7.2

      Gary, the only way in my book that 101 can be a matter of law is if there are no issues of fact.

      Since the dividing line between eligible or ineligible often depends on the presences of something ineligible, like math, but on whether there is novelty in the eligible (the computer system or e.g. “molding process”) or as transformed by the application of the ineligible, I don’t know how one can resolve the issue as a matter of law unless it is conceded that everything technological is old and that the abstract does not modify the old to transform it into a new state or thing.



          Shall I again remind you that what you “posit” is not controlling law (as even Prof. Crouch has called this to your attention).

          Let’s not start that merry go round, eh?


            Anon, let’s start with Hotel Security, then move to Mayo then Alice.

            Hotel Security is fairly limited to business methods, but the mode of analysis of claims that have mixed subject matter, the eligible with the ineligible, has been adopted by the Supreme Court in both Mayo and Alice.

            The only question is whether, seriously, a novel business method can be patentable where it is claimed with old and generic apparatus, and where the novel business method does not transform that apparatus into a new state or thing. The Supreme Court is not willing to foreclose the possibility as a matter of law. But, as a practical matter. can you give me one example of a patentable business method? The Supreme Court repeatedly ask counsel for any examples during oral argument in Alice and was not given one. Not one. Not by anybody.

            Step to the plate now, anon. Answer the Supreme Court.


              Start with the admonition Prof. Crouch gave you concerning Hotel Security.

              Then revisit my lessons for you (vast and numerous as they are)


                The only problem is that Hotel Security was the foundational case that was followed by all for nearly 100 years. It was cited and argued in Steven “Dissent” in Bilski. It is a crying shame that the en banc Federal Circuit did not simply overrule State Street Bank and restore Hotel Security. We would not then have had the Supreme Court running amok in Bilski.

                But all’s well that ends well.

                1. Ned, have you ever actually analyzed Stevens concurrence in Bilski? (I think it was actually a concurrence technically.)

                  It is not rationally based. It essentially says patents weren’t meant for this sort of thing ’cause. There are no reasons given that are actually factual issues that could be debated. It is just page after page of ’causes.

                  It is the worst type of reasoning possible–no reasoning. It is on the same level as religion. Stevens is essentially saying “I believe these should not be eligible for patentability because the patent system wasn’t meant for these type of inventions.” That is the sum total of the argument.

                2. Night Writer,

                  Ned wants to use what is effectively a dissent (yes it is technically a concurrence, but it has been noted that this view is why Justice Stevens lost his majority writing slot) to “resurrect” and blow out of proportion a lower court case into some controlling law position that the case simply does not have (and he has been told this by none other than Prof. Crouch).

                  Ned is engaging in the very worst Judicial Activism of over-reading Supreme dicta to meld law into his desired end state.

                  The means he engages in simply don’t matter as along as he reaches his ends.

      1. 7.2.2

        From a logical standpoint, Ned’s analysis here seems correct – all of the interesting (and controversial) eligibility decisions rely upon important factual conclusions as support. However, the Supreme Court’s approach has been to made determinations of these seeming factual issues as if they were questions of law.


          However, the Supreme Court’s approach has been to made determinations of these seeming factual issues as if they were questions of law.

          Or admitted. Or beyond reasonable dispute.

  6. 6

    We have been blasted with bizzarro generalizations by MM. Nothing much particularized to this case. Just the same old, same old. Claims are terrible ’cause I said so. Information processing doesn’t do anything. (MM still has never answered what he is paid for. Hint: it is information processing).


      1. 6.1.2

        Entitled to a patent unless…………

        How about you tell us why it shouldn’t be eligible. And please try to use real prior art and not generalize to “junk” like MM, and try not to fabricate reduction rules like it is “information,” when it is really an information processing machine.


          Does he get to use the “Gist/(and undefined) Abstract” sword, or should he supply an actual legal argument?


          Night – the negatively stated “entitled to a patent unless” language comes from 35 U.S.C. 102. Section 101 looks to place more of a responsibility on the patentee by stating postively that a patent is available if certain conditions are met.


            And per the actual words of Congress, what are those conditions?

            Oh yes, there are two:

            1) fit into a statutory category;


            2) have the proper utility.

            Those are – and are meant to be – a wide open welcoming gate.

            One which has been replaced with razor wire.


              Oh yes, there are two:1) fit into a statutory category; and 2) have the proper utility.

              Please tell everyone what you believe “proper utility” means.

              Then tell everyone which incredibly useful processes are not eligible according to your theory and why.

              Those are – and are meant to be – a wide open welcoming gate. One which has been replaced with razor wire.

              …said the plague-infested elephant.


          NWPA: try not to fabricate reduction rules like it is “information,” when it is really an information processing machine.

          “Fabricate reduction rules”? It’s just the application of basic logic.

          Computers are old.

          Using computers to process information is old (that’s what computers do).

          Rules are ineligible subject matter.

          You can’t protect “rules” merely by couching them in some otherwise unpatentable (i.e., old) technology (e.g., a computer system capable of receiving an input and applying a rule to determine how to respond to the input <=== really, really, really old technology).

          This is not "fabricated reduction". It's straightforward logic.

          You don't like where the logic leads? That's fine. You're entitled to not like it. But the logic doesn't care whether you like it or not.

          The entire claim here is premised on the ridiculous fiction that information relating to an "amount of payment" represents some sort of technological advance over a computer that was "merely" capable of processing …. any kind of information that you told it to process. That's just one of a zillion ridiculous fictions upon which your house of cards has been built.

          And for the record: you raised the same objections before and after Prometheus v. Mayo which presented a very similar issue (protecting "new" information that was couched in an old and otherwise unpatentable data gathering method).


            MM>>capable of processing …. any kind of information that you told it to process.

            MM this is just ridiculous. This is your old argument that the lowly Justice Stevens presented to us that you merely write on a piece of paper what you want the computer to do and then give it to a clerk with a pizza and he/she will get it done.

            If you believe this, then you need to please stop blogging on technology issues.


          The problem Night is this: whether a claim is directed to patentable subject matter is an issue that is foundational. If congress wanted to exclude patentable subject matter from determination either by the PTO or by the courts, it would have to say so in so many words, and not leave it up to an ambiguity.

          But, if congress were to actually do that … the relevant statute would be unconstitutional as it would lead to patenting of subject matter beyond the scope of possibility allowed by the constitution.

  7. 5

    So after all the time and fees, this case is going to the Fed Circuit, where they will start all over again? Can the Fed Circuit apply the 101 argument if they want to, even if Apple does not ask them to? When will we see one of these that does not involve software?

    The Supreme Court was too cute by half with Alice, maybe it was not the perfect case. Maybe this one will be. Until they say flat out that written instructions that don’t result in physical transformations are not patent eligible, the system will remain FUBAR. And that’s EXACTLY what it is.

    1. 5.1

      Result in physical transformations…

      Mr. Snyder, the Coury already has told you that directly.

      See Bilski: MoT not required.

      1. 5.1.1

        See Bilski: MoT not required.

        I seem to recall that Bilski’s claim was ineligible. I also seem to recall that you had difficulty reaching that conclusion yourself. Same with the claims in Prometheus v. Mayo. And Alice. And Ultramercial. And to this day you seem to have great difficulty with subject matter eligibility issues. And we all know why that is.

        If Bilksi had decribed his new information processing machine in structural terms that distinguished his machine from prior art machines on that basis his claims would almost surely never have reached the Supreme Court and certainly not on 101 grounds.

        But go ahead and tell everyone “anon”: is this claim eligible? Is it valid? How do you see this case ending? Share your expert opinion with everybody and, please, let’s have none of your usual featherweight “presumed valid” “analysis.” Use declarative sentences and give us your wonderful predictions.

        Or is this “technology” (LOL) too sophisticated for you? Let everybody know.


          Who the F cares about the claim – I’m sharing the Court’s holding – you know, the thing in law that gets applied to the next case.

    2. 5.2

      Martin, I am not certain, but I do not believe that Apple raised a 101 defense.

      Their press release spoke in terms of technology — that Apple invented first. This is not consistent with a complaint that the patents asserted against it were covering something other than technology.

      1. 5.2.2

        They did at the summary judgment stage. The Court’s order likened the claims to the ones found in DDR Holdings.

      2. 5.2.3

        That was the meaning of my question Ned- can the court do it sua sponte, and if so, would that be a denial of due process for the plaintiff? Or is due process inherent in the jurisdiction of the court if they see a plain matter of law that no argument from the plaintiff could alter?

        I’m happy to see this verdict because until the absurdities pile up to the Moon, written instructions to generic computers resulting in only further processed information will remain patent eligible, when they simply should not be….


          “I’m happy to see this verdict because until the absurdities pile up to the Moon”

          Exactly my thoughts.

          That’s why I’ve substantially stopped fighting the softiewafties after a point. The congress knows what is going on. It’s their entitlement program. It’s up to them to govern correctly and fix it or else their governing substitute the courts have to step in. I’ll just sit back and let their entitlement program screw the populace now that the congress has had the issue squarely put in front of them. Heck, even the president has been called in on this. If the congress likes this sort of thing going on then fine. If they don’t then fine. It’s time for them to make that call and adjust they lawing.


            or else their governing substitute the courts have to step in.

            Separation of Powers 6 – only ONE branch of the government was given the authority you identify here (and it was NOT the judiciary).

            Have you watched The Paper Chase yet? Heard the comment at the hour six minute mark yet? Informed yourself yet?


              I’m familiar with the separation o powers anon. But you aren’t. The one body has the responsibility to make laws in order to govern. The other body has the responsibility to see that justice ultimately occurs irl in order to govern. If justice ain’t happenin under dem laws by the one power, the other powers kick in.

              I know you have trouble understanding this whole balancing thing but that’s how separation o powers works.


                Not even remotely close 6.

                That’s like saying a Congressman (like Boehner) can himself say that Obama is not executing the laws “for Justice,” so Boehner is now going to do it.

                1. “That’s like saying a Congressman (like Boehner) can himself say that Obama is not executing the laws “for Justice,” so Boehner is now going to do it.”

                  That one’s a bit absurd. But at least you’re getting the general idea. They still have to use their powers. In Boehner’s case it would be like Boehner says that obama is not executing the laws so he uses the traditional power he has and rallies the congress to close up a purse or two (or the whole fin gov) or block a bunch of bills and send only bills he wants to send and the pressy doesn’t like. Boehner still cannot force the president to act, but he can use his ancilliary powers make the situation intolerable until he does. In the court’s case they use their traditional power of interpretation of laws sometimes. The courts cannot make the congress get their acts together and legislate but they can make things intolerable for the populace until the congress does, or they can provide a reprieve for the populace until the congress does. Tis up to them. Likewise, I can use my power to make the situation a tiny tiny bit more unbearable for the populace and add that much more to the pressure for congress to get on with governing.

                2. Move the goal posts back 6, as you are missing the point of the absurdity (that point being that one branch cannot unilaterally take onto itself the constitutionally designated role of another branch of the government).

                  I have explained that this does NOT mean that one branch cannot share its authority, even giving a representative example in patent law (35 USC 283) of just how that is done. No such authority for the courts exists in 35 USC 101.

                  I have also patiently pointed you to the Prof. Hricik side of the blog for you to educate yourself on the difference between interpretation and writing. It is quite evident that you still do not understand this distinction.


          Martin, according to Mr. Deller, 101 was raised and decided according to DDR holdings. He did not say whether it was the ED Tex holding or the Federal Circuit holding. But opinions both did not look at Alice as anything more than banning business methods. Both opinions neither looked at or even cared about whether the new “technology” being claimed was actually in the machine, or rather in something abstract. (It is quite apparent that the Federal Circuit still does not get it.)

          Link to Fed. Cir. link to scholar.google.com

          Link to ED Texas. link to scholar.google.com


            Ned – it was the Fed. Cir. holding of DDR Holdings.

            The Court held that the claims were directed to an abstract idea (Step 1 of Alice), however the claims contained meaningful limitations that transform the abstract idea into a patent-eligible invention (Step 2 of Alice).

            Quotes from the Order:

            “As in DDR Holdings, the patents here do not simply apply a known business practice from the pre-Internet world to computers or the Internet.”

            “The patents claim methods and systems designed to prevent such easy and unauthorized reproduction and access while allowing the access to be nearly instantaneous and the storage to be permanent. The patents also address the unique problem of controlling a user’s access to data that the user already possesses by tracking use data and restricting access according to use rules.”

            “Instead the claims solve problems faced by digital content providers in the Internet Era and “improve the functioning of the computer itself” by providing protection for proprietary digital content.”

            “The claims do not “recite a commonplace business method aimed at processing business information, applying a known business process to the technological environment of the Internet,” or collecting, recognizing, and storing data on a generic computer as did the claims in those cases. See id. Thus, the claimed methods and systems are patent-eligible under § 101.”


              Thanks Gary.

              Still, the novelty must be in something technical. I have no idea just from reading the quoted passage what that was — the words themselves being little more that Witch Doctor incantation.


              The patents also address the unique problem of controlling a user’s access to data that the user already possesses by tracking use data and restricting access according to use rules.”

              There is nothing new or patent-worthy about using rules to control access to data or tracking users use of that data. And it doesn’t matter who “owns” the data because “ownership” is an abstraction.

              For the perpetually confused: limitations about “ownership” and similar abstractions can’t be used to confer patentability or patent eligiblity to otherwise unpatentable or ineligible claims. It’d be like trying to patent a “new” method of processing natural gas by taking the old method and tacking on “wherein said natural gas is owned by a company name Xynox” or “wherein said natural gas is owned by a government agency.”

              Such claims don’t promote progress in the “useful arts” or any technology. The promote grifting and the creation of a class of bottom feeding attorneys who couldn’t identify a bona fide technology if you belted them across the face with it.


          Regarding due process, the Federal Circuit does this all the time — raising substantive issues sua sponte, and deciding cases without giving the losing party the time of day.

          I had long talks with litigators with some experience of this from the Federal Circuit. They observed that the Federal Circuit was prone to rough justice — it is an aspect of deciding cases as a matter of law.

          Well 101 is a legal issue that can be decided on the pleadings. This is the kind of issue that they can raise sua sponte — but hopefully, they would at least allow the parties to brief the issue. But they can decide the issue on the record if they so choose where the issue was litigated and decided below.


            Quite clearly Ned (and nonetheless still needs to be said, given your history of selectiveness), that same Rough Justice can be applied by the a Royal Nine with even more roughness (since that King has even more expensive clothiers to make even more invisible raiments).

            At least the CAFC was actually chartered to bring clarity to patent law – as opposed to the unchartered chaos rendered by the Royal Muckrakers.

    3. 5.3

      Martin: the law of conservation of information is the most important law in physics. It takes time, space, and energy to transform information. Information processing transforms represented information.

      What we consider most human about ourselves is our ability to process information.

      Why do you n*t jobs always act like nothing has occurred when information has been processed? Just fruity.

      1. 5.3.1

        What happens when information is a processed, exactly?

        When it happens in the human mind, it’s an idea, and ideas are not patent eligible. When it happens in an artificial mind, it’s still an idea.

        What is fruity is the insane results of trying to fit hundreds of years of fine- tuned jurisprudence built around THINGS to regulate the expressions of IDEAS, in the minds of men, or in the minds of machines.

        Software that spits out some physical manifestation like a drug? Please, patent away. Software that spits out more information? Can’t ever be fairly adjudicated as being copied or equivocated because there are myriad ways to express ideas, and reasonable people will disagree about them.

        What is fruity is to ignore the destruction all around and keep talking about NEW MACHINES.

        DDR Holdings is going to be one of the more damaging rulings- and from a panel yet. It took nothing to basically overturn Alice. The Supreme Court is going to have to go to the wall on this no matter how they try to avoid it. Sooner or later….


            Jack, there does seem something wrong in the Fed. Cir.’s analysis. It would be amazing if this went to the Supreme Court once again.

  8. 4

    These sorts of cases raise a lot of concerns for me. Such as:

    Where is 101 in this deliberation?

    Who the frak are the jurors stating such preposterous things? How are they being pushed into saying such things?

    Finally, I think I should be in the rule reception business.

  9. 3

    A troll wins a case in the Eastern District of Texas?

    Golly, I wonder what the case was about?

    managed data-access

    Oooh, lookie! “Managing” access to information! It must be some sooper dooper techno solution and not some functionally claimed garbage that protects all software performing the function.

    Or not.


    3. A data access terminal for retrieving data from a data supplier and providing the retrieved data to a data carrier, the terminal comprising:

    [old generic “technology” deleted]

    the code comprising:

    code to read payment data from the data carrier and to forward the payment data to a payment validation system;

    code to receive payment validation data from the payment validation system;

    code responsive to the payment validation data to retrieve data from the data supplier and to write the retrieved data into the data carrier; and

    code responsive to the payment validation data to receive at least one access rule from the data supplier and to write the at least one access rule into the data carrier, the at least one access rule specifying at least one condition for accessing the retrieved data written into the data carrier, the at least one condition being dependent upon the amount of payment associated with the payment data forwarded to the payment validation system.

    13. A data access terminal according to claim 3 integrated with … a personal computer…

    Wowee zowee, folks! These brilliant trolls “invented” an “access rule” that permits access to data depending on payment! But wait — it’s on a compooter! So everybody has to pretend we were born yesterday because coding is sooper dooper hard work, especially when it’s about a rocket science like “access rules.”

    Welcome to the broken patent system. It’s an incredible joke and, yes, Texas is very often close to the butt of that joke. Run, Jeb, run! Save us from Obama and his “secret” PTO! More awesome claims like this and $500 million jury verdicts for patent trolls! It’s what America wants and needs!

      1. 3.2.1

        Of course they are. They don’t want to help set precedent that could be used to decimate their own patent portfolio.

      2. 3.2.2

        “One does wonder if Apple is in anyway conflicted about 101?”

        I know right? If half a billion isn’t enough to make them take this garbage out with 101 one wonders what would be. 10 billion? A trillion?

      3. 3.2.3

        One does wonder if Apple is in anyway conflicted about 101

        There’s no question that their lawyers have been instructed to avoid making otherwise excellent arguments for fear that the arguments could erode Apple’s stockpile of equally repulsive garbage.

        That said, it’s not clear to me that the best arguments are even needed to get rid of ridiculous “conditional access rule” baloney like this.

        But this kind of basement level “innovation” is the future of the patent system. Dream up some “rule” that is indistinguishable from the rules that kids have been applying to their clubhouse meetings for the past 5,000 years, salt in some sooper dooper techno “do it on a compooter” lingo, and voila! $500 million dollar windfall for some bottom feeders in the good ol banana republic of Texas.

        Until this nonsense is expunged from the system, it’s only going to get sillier. Meanwhile the patent system is going to go right down the tubes and the same old tiny group of ultrawealthy speculators is going to stuff that cash in their pockets. Promoting technological progress? What an incredible joke.


          There’s no question that their lawyers have been instructed to avoid making otherwise excellent arguments for fear that the arguments could erode Apple’s stockpile of equally repulsive garbage.

          Any proof for that tinfoil hat accusation?

          Thought not.

          tiny group of ultra wealthy

          And yet again with the tired and trite meme that just does not hold up to Malcolm’s curse-ade against the form of innovation most accessible to the common man…

          Nope, no ridiculous and obviously irrational rants there…

          /off sardonic bemusement.


            the form of innovation most accessible to the common man

            Because “the common man” is a bottom feeding patent attorney Netflix subscriber who couldn’t program his way out of a cardboard box.


            tinfoil hat accusation

            Because it’s super dooper paranoid to believe that lawyers sometimes avoid making arguments that can adversely affect their client’s other interests.



              Let’s see your proof.

              Yeah, thought so.

              (and of course, you do know the ethics of admitting controlling law or when you are advancing a position that goes against controlling law, right chump?)


                You do realize, of course, that if their attorney(s) published a document outlining their tactical choices on making or not making certain arguments, that they would lose the attorney client privilege and possibly even work product doctrine protection… not to mention the client would be furious

                1. You do realize, of course, that Malcolm is not in that position and that your reply does not address the situation here, right?


          “Apple added that “we rely on the patent system to protect real innovation and this case is one more example of why we feel so strongly Congress should enact meaningful patent reform.””

          link to news.yahoo.com


            Technology Apple invented?

            Did they actually say that?

            What is the problem, that the plaintiff’s patent did not enable what was claimed? Or, was it that Apple invented first, as they claimed?

            Could Apple be asked whether it would support a repeal of “first-to-file.” They actually seem hot under the collar about this.

    1. 3.3

      They must have really sh*tty attorneys to lose such a slam dunk of a case. You should offer to represent Apple pro bono on appeal to the Fed. Circuit.

      1. 3.3.1

        They must have really sh*tty attorneys to lose such a slam dunk of a case.

        It’s a bunch of suits doing what they’re told to do by some obscenely rich guy who cares about “the corporation” and nothing else.

        And lest you forgot: this obnoxious troll has had more than few of its assertions shoved into the trash can after two seconds of analysis. In a sane world, SmartFlash LLC would be sanctioned out of its bottom feeding business.

        By the way: who are the real people behind this troll puppet? Anybody know? Where do they live? I can hardly wait to learn more about these “little guys”.


          Let’s first figure out who are the real people behind your never ending judicial activist / anti-patent propaganda machine.


          Your real colors are showing, friend. Anti-corporation, anti-rich? I’ve seen that agenda creeping into your posts over the last 6 months or so.

          Somewhat related, am I the only one who finds it hilarious that you of all people want to find the “real people behind this troll puppet”?


            am I the only one who finds it hilarious that you of all people want to find the “real people behind this troll puppet”

            Doubtful. There’s probably like five other people like you who can’t tell the difference between a blog comment and a $500 million dollar lawsuit based on a junk patent.

            But I’m sure you’re all totally cool people and not super entitled faux-libertarian rightwing freaks.

    2. 3.5

      So in other words MM, you have no real basis for your distain for the claims other than then your judicial activism calls for not liking any information processing claims.

      How about a real argument using 102/103/112 and prior art?

      1. 3.5.2

        How about a real argument using 102/103/112 and prior art?

        It’s always amusing when the cheerleaders for the worst patents ever jump up and down to defend the indefensible. It’s almost as if they believe that this troll is some really important and smart “innovator” and we should all be so grateful for its awesome “conributions” to the history of computer technology.

        In fact, as everybody knows, the troll is irrelevant tot he history of computer technology and is nothing but a leech with some bottom feeding patent attorneys for a brain. How many of this trolls inane assertions have already been decimated with “real arguments”? Does NWPA know or care? Nope. All NWPA cares about is keeping the merry-go-round spinnning. Wheeeee!

        Here’s your real argument: people have used payment-dependent access rules for many centuries. Doing it “on a computer”, whether or not that computer is divided into “terminals” and “data carriers” and “validators” adds nothing because all that other stuff is old.

        It’s no different than trying to claim a method of taking money to fix your car, “wherein the guy who takes the money is named Dirk Fingerpuller.” It’s new. It’s not obvious. It’s useful to somebody named Dirk Fingerpuller, at least. But it doesnt deserve a patent because it doesn’t promote anything except the filing of more junky patents by more bottom feeders.

        Eventually a majority of the Federal Circuit judges is going to recognize that the system has been hijacked. The sooner it happens, the better off we’ll all be.


            I don’t think your “electrons, protons, neutrons” argument, from what I can tell, makes much sense.

            Trying to claim an abstract idea (intermediate settlement, for example) by tying its implementation to an old, known computer just isn’t analogous to claiming a new physical arrangement of matter.

            If it is analogous, you have not explained why.

            However, just to be clear “An arrangement of electrons, protons and neutrons configured to create a first shadow account…etc” would be just as ineligible as the claims in Alice.


              Key words: “from what I can tell

              You still don’t grasp that any “old known computer” must first be changed and newly configured with the manufacture known as software in order for that ‘old box’ to have the new capability.

              You just can’t seem to help yourself get over the House fallacy – that somehow ALL future improvements to “old box” were magically somehow “already in there” with the very first computer.

              Hence the shortcut notation to “electrons, protons, and neutrons” is in reference to my big box of electrons, protons, and neutrons – said big box using the exact same ‘logic’ you are using – eviscerates entire categories of patent eligibility.

              You confuse your inability to understand and wish to incorrectly say that I have not explained.

              You also fall to the fallacy that what is claimed is an idea. Just not so.


                the shortcut notation

                Oh, there’s definitely a “shortcut” in your “argument”, “anon.” We agree about that much.

                the exact same ‘logic’ you are using

                Because you say so.

                Wake me up when you learn to articulate an argument in English with resorting to made up horseshirt that completely sidesteps the issue.

                any “old known computer” must first be changed and newly configured with the manufacture known as software

                Really? Wow. No kidding. It really is just like a big box of old electrons and protons! Therefore: functional claiming of otherwise ineligible logic is totally kosher.

                Great argument. Maybe not as awesome as the old “I can drop it on my foot” argument in defense of computer-implemented junk but still pretty awesome. Deep. Compelling.


            You know, like electrons, protons and neutrons…

            As has been explained hundreds if not thousands of times already, you can’t get a patent on “chemical that [insert new function here] wherein chemical comprises electrons, protons and neutrons.”

            You have to actually do some skilled work and your claim has to describe the new chemical in structural detail that distinguishes it from the prior art in order to have a snowball’s chance in heck of getting out of the patent office, much less obtaining a $500 million verdict.

            Generally speaking, with respect to the grown up art the system long ago calibrated itself to the relevant level of skill in the art. In contrast, in the so-called “computer implemented arts”, there is a complete disconnect between the scope of the typical claim and the skill required to make a system that actually works to achieve the goals described in the patent. In large part, that’s because some self-interested short-sighted judges made up some self-serving nonsense about “the essence of electronic structure” to acccomodate patent attorneys who “wanted to get rich off the Internet”. In part, it’s also because those same judges and everybody else recognized that they couldn’t allow people to claim new “rules” or new “information ” per se without attracting too much unwanted attention to their schemes.

            But it’s all catching up to them now. They know it. We know it. It’s only a matter of time. Who’s going to be on the majority of the Federal Circuit who finally gathers up the courage to spell it all out for everyone? It’s nice to be on the right side of history, after all.


          Sure let’s just gist away all innovations. Why aren’t you driving a Model T Ford? Why not a stent that would make your eyes pop out? Etc.

          So, again, how about a real argument based on 102/103/112 and not a mud slinging judicial activist / anti-patent rant.



            Patents aren’t the same thing as innovations. One can be opposed to granting patents on all sorts of things and not be opposed to the thing itself.

            For example, I don’t think we should grant patents on newly discovered laws of nature. That said, I also think that discovery should be available to everyone and not patented. Those views are not contradictory.


            Patents aren’t the same thing as innovations.

            This has been explained to NWPA and other similarly confused people hundreds, if not thousands, of times already.

            Apparently it’s either too nuanced or it’s contradicted by one of the commandments in the Patent True Believer’s Bible.

            Millions of people innovate all the time, every day, in their businesses and in their homes, without recourse to the patent system. They come up with incredibly useful stuff and they never think for a second about patenting it or even looking to see if someone else patented it.

            There’s nothing wrong with that fact. On the conrary, a patent system that is ignored by nearly everybody in the country who innovates stuff is exactly what we’d expect of a sane, functioning patent system.

            Note that this is not an argument for abolishing the patent system. Not even close! But I know that if I don’t state this expressly then these brilliant super techno geniuses who love, love, LOVE patents will get confused. How do I know that? Experience. Lots of experience.


              Let’s just confuse the whole thing and spout nonsense again, eh MM?

              So, we get according to you all claims are garbage and innovations occur without patents. We know, a pizza is all a nerd needs to get the job done.


                just confuse the whole thing and spout nonsense


                He has “Experience. Lots of experience.

                Nine years now and running.

  10. 2

    These amounts of money are so far removed from anything in the experience of the average juror that they might as well be coming up with numbers at random.

      1. 2.1.1

        And why do you say that? Do you know what figures the jurors were given? Do you know what the education level of the juries are?

        You need to get out of the government for a while 6. You must be starting to push 40 and you have never had a real job.


          “Do you know what figures the jurors were given? ”

          No, that’s why I asked up thread about that sort of topic.

          “Do you know what the education level of the juries are?”

          Supposedly “lay”.

          “You need to get out of the government for a while 6. You must be starting to push 40 and you have never had a real job.”

          You’re right it would be good to get out of gov for awhile. But I’m nowhere near pushing 40. That said, I almost left gov this year.

          In any event, none of those things are relevant to the dollar amounts present here being well outside the experience of a random jury. Not one person on the average jury will have ever handled 1 milly much less 500 milly. Probably not even 100k save MAYBE to buy a house.


            Well, I have been blogging with you for 10 years and you were an examiner back then. So, you must be at least 32 barring early college graduation. And I think you said you had a job before the PTO, so I’d say you are about 35 or the tail end of turning 40.


              “so I’d say you are about 35 or the tail end of turning 40.”

              Well you’re mistaken. But overall not bad detective work. Not off by more than a decade!


          I mean, you really could have left that last part out. I normally enjoy trying to understand your take NW (even if I don’t always agree with it) but this type of comment really makes you look childish.

          But what do I know?

  11. 1

    I psychotically determine that all three patents are junk with junk claims based on my total ignorance of the technology and lack of understanding of hindsight.

    Oh wait, I am confused. That is MM’s role.

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