68 thoughts on “Live Stream Now

  1. 9

    Vicor v. Synqor (Fed Cir 2015)

    Unanimous panel reverses PTAB’s finding in an IPR that asserted claims are neither anticipated or obvious (the Examiner got it right).

    Of particular interest is the PTAB’s failure to consider the alternative embodiments covered by the claim (one of which was disclosed in the prior art). It should go without saying but the prior art does not need to disclose all of the alternative embodiments covered by a claim in order to anticipate the claim — it only needs to disclose one of those embodiments.

    Particularly in method claims or pseudo-method claims (e.g., information processing “device” claims) examiners and the PTAB need to be trained to quickly identify the minimum number of acts that would be infringing and evaluate patentability (and eligibility) based on those acts.

    1. 9.1

      MM, haven’t read the case yet, but if a claim covers X and Y, and Y is in the prior art, the claim IS anticipated.

  2. 8

    Interesting claim construction case today: Enzo v. Applera (reversing district court construction and thereby providing the defendant with a non-infringement argument)

    Prost and Linn find that the limitation “wherein A represents at least one component of a signalling moiety” requires, as a matter of grammar/linguistics, that X comprises at least two components. (the patentee should have used the phrase “wherein A represents a signalling moiety or at least one component of such a moiety”).

    Newman dissented but her dissent focuses erroneously on the phrase “at least one”, which misses the point.

    1. 8.1

      Malcolm, the first thing I noticed when I pulled the opinion up was this:


      John Wilkes Booth
      Lee Harvey Oswald
      Osama bin Laden


          Why do we use three full names to identify people who are notorious for one reason or another? I read a NY Times piece on that some time ago. But the phenomena was noted and discussed.

          Perhaps the Times itself began the practice.


            Just as an aside, at the time, LBJ was known by that acronym or by his full name Lyndon Baines Johnson. Ditto Kennedy – JFK or John Fitzgerald Kennedy.


            Why do we use three full names to identify people who are notorious for one reason or another?

            I always assumed it was to minimize the chances that the “infamous” person would be confused with someone sharing only the same first and last name.

            By the way, “bin” isn’t Osama bin Laden’s middle name …

    2. 8.2

      Malcolm, Enzo was embarrassed at oral argument when the court repeatedly asked counsel to identify anywhere in the specification that a single component moiety was used for signaling. Counsel identified nothing other than that the highly discredited radioactive labels, which was not their invention.

      Enzo attempted to rely on expert testimony which the district court relied upon itself. But the Federal Circuit held that this testimony, even if subject to review for clear error, was insufficient to overcome the intrinsic evidence to the contrary.

      I am not sure why Newman would insist that a claim be interpreted in a manner that is NOT supported in the specification unless there was no alternative, reasonable construction. She cites only this from the district court:

      “[T]he expert evidence indicates that Example 9
      could involve direct detection.”

      Could? And that is all? That is NOT written description support in my book.

  3. 7

    link to washingtonpost.com

    For residents of the United States — and indeed, the entire Northern Hemisphere — the impact could be more dire. If Antarctica loses volumes of ice that would translate into major contributions to sea level rise, that rise would not be distributed evenly around the globe. …. For the United States, the amount of sea level rise could be 25 percent or more than the global average….

    These processes generally are expected to play out over hundreds of years or more… The problem, then, is more the world we’re leaving to our children and grandchildren — because once such a gigantic geophysical process begins, it’s hard to see how it comes to a halt.

    Cyborgs can swim, can’t they? As long as we have patents on cyborgs, I don’t see a big problem here.

    1. 7.1

      But then if we live by Gingsburg a patent on a method of getting humans to reduce their output of hydrocarbons would be ineligible for patentability.

      Think about it as the ocean rises above your up-turned nose.

  4. 6

    Robot Stoll wrote a column about Gingsburg and the PTO’s statement of organizing human behavior as being a crave of 101. I was working on a 101 rejection this weekend and the following occurred to me as I watched Boyhood when the boy talked about how we are becoming cyborgs.

    What occurred to me is that what is so strange about this alleged exclusion is that it is based on a target domain. It is really an argument of “useful” saying that we aren’t going to include technology that organizes human behavior as useful.

    I suspect this is going to the fear of Gingburg and her lowly likes of computers controlling human behavior. Read in this context, this is really an extraordinary statement by Gingburg of judicial activism. Actually, epic. This may be one of the greatest attempts at judicial activism in the history of the US.

    1. 6.1

      And note the purpose of the judicial activism. Gingburg attempt is really epic and must be termed the new Luddite movement.

    2. 6.3

      Let me make sure I have your argument straight. A unanimous Court strikes down the claims in Alice, and a concurring opinion by Justice Sotomayor quotes Stevens to the effect that methods of organizing human activities are not patentable, all because Justice Ginsburg is afraid of cyborgs?

      1. 6.3.1

        I think my friend Occam would not jump to a comparison of the full unanimous Court decision, but instead would focus on the (shrinking) minority group’s views.

        Stevens lost his position as majority writer in Bilski and was joined by those that even President Clinton (in his released presidential papers) labeled as judicial activists.

        Not surprisingly, the minority concurrence in Alice, a view that obviously (but worth stressing here) did NOT enjoy the unanimity of the Court, is the view of those identitied as judicial activists.

        Now, I do realize that it is fun to poke fun at Night Wrighter who tends to Blue Sky is Falling tones, but that poking should not cloud the real issue that the Court can be readily seen to have judicial activism quite active on patent law matters.


          And, anon, I would remind you that my predictions to date have pretty much come true.

          I don’t see an end to this anytime soon as long as Google bucks are behind the destruction it will continue.


          Non-responsive. You haven’t explained what any of this has to do with Justice Ginsburg’s (alleged) fear of cyborgs.

          Your pal is on a real tear today – on another thread he’s libeling business owners, while over here he’s apparently accusing an esteemed Supreme Court Justice of manipulating concurring opinions and Patent Office policy because of a fear of cyborgs.


            You know DanH, the games of MM make you look like an immature illiterate child. They don’t shame me in anyway, but make you look like a high school student skipping class and standing on the corner making fun of others.


            It is far more easier for DanH to make a smarmy quip without actually thinking about the issues that such artwork as Boyhood (or others like I Robot or the Terminator series reflect on AI innovation concerns, but that has always been DanH/Leopold’s tendency – to stick his foot in his mouth in such pompous manner, then to retreat when it is pointed out that he is more than a bit off-kilter.


              And it’s obviously far more easier for you to simply insult me and “Leopold” than to explain what your “friend Occam” and Clinton’s presidential papers have to do with cyborgs.


                Ah, but at least my insults are directly on point.

                And why the quizzical not about “Leopold”…? Clearly we both know that was a former pseudonym of yours.

      2. 6.3.2

        Tell us DanH what this supposed exclusion of organizing human behavior is all about?

        A field of exclusion no matter the technology. Really.

      3. 6.3.3

        But, DanH, basically yes. It is a way of trying to exclude technology from human behavior. It is really quite a remarkable attempt at judicial activism.

      4. 6.3.4

        >What occurred to me is that what is so strange about this alleged exclusion is that it is based on a target domain. It is really an argument of “useful” saying that we aren’t going to include technology that organizes human behavior as useful.

        What about that is not clear to you DanH? Pretty direct statement of why it is a different type of exclusion.


          That part was perfectly clear, Night. Wrong, but clear. The unclear part was where you started raving about “Gingburg and her lowly likes” and their (alleged) fear of cyborgs.


            Motivation for the attempt at the field of use judicial exception.

            Seriously, DanH, you don’t find a field of use attempt odd.


              We do have a law forbidding claims “directed to or encompassing a human organism”.

              Maybe you can define “cyborg” in a meaningful way so we can tell how serious you are about this sooper dooper relevant topic. I humbly submit to you that to the extent “cyborgs” represent some sort of future evolution of humankind, there will be a few concerns about patenting them (not unlike the concerns that exist now which prevent the patenting of “improved” human organisms).

              Maybe you can go the extra mile and explain to everyone why cyborgs should be allowed to be claimed in purely functional terms. That would be fun.


                purely functional terms

                How about that Vast Middle Ground of claims NOT “purely” functional claiming…?


      5. 6.3.5

        DanH, If Night is not recounting a nightmare of his, the I am beginning to wonder as well.


            Night, I read his piece.

            The term was coined by Dyk, I believe, and is vague and indefinite just as Stoll contends.


              Below is where it gets strange. It is really an attempt at a field of use limitation for patents.

              It is so ordered.
              Justice SOTOMAYOR, with whom Justice GINSBURG and Justice BREYER join, concurring.
              I adhere to the view that any “claim that merely describes a method of doing business does not qualify as a `process’ under § 101.” Bilski v. Kappos, 561 U.S. 593, 614, 130 S.Ct. 3218, 177 L.Ed.2d 792 (2010) (Stevens, J., concurring in judgment); see also In re Bilski, 545 F.3d 943, 972 (C.A.Fed.2008) (Dyk, J., concurring) (“There is no suggestion in any of th[e] early [English] consideration of process patents that processes for organizing human activity were or ever had been patentable”). As in Bilski, however, I further believe that the method claims at issue are drawn to an abstract idea. Cf. 561 U.S., at 2361*2361 619, 130 S.Ct. 3218 (opinion of Stevens, J.). I therefore join the opinion of the Court.


                Ah Justice Sotomayor, my biggest miss and disappointment in that decision.

                I had really thought that she would have matured and would have been able to throw of the influence of her mentor Justice Stevens.

                It is of course a view I had before I learned of the released President Clinton papers that had indicated that her, Justice Ginsburg, and Justice Breyer were considered the most judicially activist members of the Court.

                Suffice to say (see both 6.5.1 and 6.6.2), anyone wanting to invoke authority into the words of the “3, the new 4, which is still not 5,” has an uphill battle to gain legitimacy.

                1. Just imagine how weird it is that the PTO has picked up on this phrase and puts it in most 101 rejections.

                  “for organizing human activity”

                  It has the stench of Google and Lee.

    3. 6.4

      I can’t wait for the next Supreme Court appointment hearings.

      “Are you anti-cyborg or not? Please just answer the question.”

      The important thing, of course, is that we have patents on improved cyborgs. Otherwise we might have to wait forever for someone to invent a cyborg that vibrates when its time for me to get out of bed and make a lithium smoothie for its breakfast.

    4. 6.5

      Night, not “carve.” NOT.

      Here is the quote from the concurrence:

      …any “claim that merely describes a method of doing business does not qualify as a `process’ under § 101.”

      1. 6.5.1


        Is that the same concurrence of the “3, the new 4, is still not 5″…?

        The same concurrence that represents the diminishing echo of Justice Stevens desire to explicitly re-write the objective words of Congress?



          I still get a chuckle every time I see you attempt to advance a Separation of Powers argument between the Executive and Judicial Branches and in the same thread exhibit a complete disregard for the Separation of Powers between the Legislative and the Judicial Branches.

          The absolute ascendency you ascribe to the Judicial Branch, and the Supreme Court in particular, is rather oddly – but no less starkly – displayed with your views and attempted elevations of Court dicta (and less than dicta).


            Yes Ned – rewrite.

            I did not stutter.

            (and I would invite you to the archives on the Prof. Hricik side of the blog, as he has more than once noted the distinction between interpretation and writing.

            Let’s not pretend that the Court has not been active in attempting to rewrite patent law, shall we?
            Once again, the adage fits: reading a map is not the same as writing the map.


              “reading a map is not the same as writing the map”

              A Judicial Exception is Rich.

              Coined it, carry on…

      2. 6.5.2

        The term was “coined” by Dyk in Bilski. Stoll opined that it was vague. Indeed, it is vague.

    5. 6.6


      Do you believe the US patent system should have any limits on subject matter eligibility at all? Not just under 101, but philosophically.

      1. 6.6.1

        Of course go Arthur, but I don’t believe the SCOTUS should be misusing their judicial power to write legislation and muck up the patent system.

      2. 6.6.2

        A better question for you, Go:

        Do you think the Court should inject its own philosophically based limits on subject matter eligibility into 35 USC 101, thereby violating the Sepration of Powers doctrine and engaging in writing patent law, an authority expressly given to a single different branch of the government in the express words of the Constituion?


            “loaded” or not it is the better question.

            Your thinking it “loaded” is more a reflection that you recognize the faults in the actions of the Court, even if you don’t want to talk about them, eh?

  5. 5

    Of interested to anyone trying to appeal to the Federal Circuit, from a final written decision, erroneous assertions of IPR jurisdiction in violation of 35 USC 315(b): the Director has, in her docketing statement, this:

    “Whether, under In re Cuozzo Speed Techs. No. 14-1301, 2015 WL 448667 (Fed. Cir. February 4, 2015), this court lacks jurisdiction over MCMs claim that the agency erred instituting the inter partes review.”

    What makes this interesting in particular is that MCM has already petitioned via a writ of mandamus to review the 315(b) issue. That writ was denied in part based upon the argument by the Director that the 315(b) can only be appealed from a final written decision. Part of the argument then presented was that the entire IPR had to be completed within a year so that interlocutory appeals would disrupt the process.

    1. 5.1

      Wild speculation, but my guess is that the SCOTUS thinks patents are probably empowered by the commerce clause too so that all of this stuff about tying patents to property will fail.

      1. 5.1.1

        Well, Night, you do know the courts have to overrule Marbury v. Madison to sustain IPRs?

  6. 4

    That was a very entertaining introduction, Dennis!

    Missouri is lucky to have you and this “center”. Great for learning.

    Thanks for the stream!

  7. 3

    Why do you get on this blog everyday and whine about how incompetent inventors, companies, patent attorneys are?

    I apologize! I forgot this was blog was just an echo chamber where wannabe “inventors” and the patent attorneys who serve them are the most important people in the world and we all must genuflect before their infallible demands for More Patents, All the Time, and Easier to Enforce or we’ll return to the Iron Age.

    Wait a minute. I’m thinking of another blog, not this one. My bad.

  8. 2

    I watched some of it Dennis. Impressive. Very profession. I was particularly impressed with the Trademark presentation.

    1. 1.1

      Just made the point that established firms make incremental innovation, but new ventures are far more likely to make radical improvements that go in a new direction.

      1. 1.1.1

        You mean like that “new venture” “Apple”, which (basically) single-handedly changed the landscape of mobile communication and music?


            Most companies do not have such a leader.

            True of 99.999% of start-ups as well.

            It may be true that “most” “radical improvements” in technology come from “start-ups” (although I am unaware of any data demonstrating this oft-spouted claim) as opposed to “long-established large companies”. If that’s true, it’s likely to be true primarily because at any given time there are many more “start-ups” than “long-established large companies.”

            The vast majority of “start-ups”, in fact, are trendmongers who couldn’t innovate their way out of a paper bag but are nevertheless hoping to ride the tide and make a buck along the way. Some of them do make a buck before vanishing without leaving a trace; some of them don’t even get that far.

            Is this some sort of a “slam” on “start-ups” generally? Of course not. It’s just recognition of the fact that “start-ups” are just people who, for the most part, are trying to make money by selling stuff that most people don’t need — they’re not all precious snowflakes that deserve the gilded status and relentless fawning conferred upon them in some quarters.


              >>The vast majority of “start-ups”, in fact, are trendmongers who couldn’t innovate their way out of a paper bag

              Why do you get on this blog everyday and whine about how incompetent inventors, companies, patent attorneys are?

              Ridiculous behavior.


              True of 99.999% of start-ups as well.

              Actually, that statement is entirely incorrect, as studies have shown that the personality traits that Jobs had are almost universally applicable to all such start-up companies.


                studies have shown that the personality traits that Jobs had are almost universally applicable to all such start-up companies.

                Such yummy, yummy kool-aid being served up at the Church of Start-Up Worship.

                “studies have shown” <— beyond parody

                1. ???

                  Not seeing the basis for your ad hominem, Malcolm.

                  Are you doubting that there have been studies done of the personalities of those in executive positions of American business, including start-ups, and those traits that align with success of the same?

                  How any of this is “yummy, yummy kool-aid being served up at the Church of Start-Up Worship” is exceedingly unclear.

                  Maybe you want to try to make your point using those short declarative sentences you are always on about…

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