by Dennis Crouch
The list below considers all of the U.S. Supreme Court patent cases decided during the past decade (Since January 2005) and ranks them according to the number of citations. Citation offers some insight into the influence of decisions, but is obviously limited for a number of reasons. Cases may be cited because of their importance in changing the doctrine (KSR, eBay) or simply as the court’s most recent statement of the law on an important issue (Microsoft v. i4i and KSR) or for a narrow procedural issue that applies in many cases (Unitherm). EBay’s high citation rate is also boosted because its principles have been applied broadly to injunctive relief across many areas of law. Some cases with low citation counts may also have major impacts. They may, for instance impact a small number of very important cases (Caraco) or perhaps they cause folks to change behavior so that the issue stops arising.
With this list we also have the timeline problem where older cases are more likely to be highly cited since there has been more opportunity for those cites. I Alice Corp to rise in the ranks Nautilus and Teva, on the other hand, may well flounder (based upon the Federal Circuit’s treatment of those cases thus far).
- KSR Intern. Co. v. Teleflex Inc., 550 U.S. 398 (2007) (obviousness)
- eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) (injunctive relief)
- MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) (challenging licensed patents)
- Global-Tech Appliances, Inc. v. SEB S.A., 131 S.Ct. 2060 (2011) (inducing infringement)
- Bilski v. Kappos, 561 U.S. 593 (2010) (subject matter eligibility)
- Microsoft Corp. v. i4i Ltd. Partnership, 131 S.Ct. 2238 (2011) (presumption of validity)
- Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006) (tying)
- Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617 (2008) (exhaustion)
- Microsoft Corp. v. AT & T Corp., 550 U.S. 437 (2007) (infringement by export of components)
- Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006) (post-verdict civil procedure requirements)
- Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S.Ct. 1289 (2012) (patent eligibility)
- Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635 (2009) (appellate jurisdiction)
- Merck KGaA v. Integra Lifesciences I, Ltd., 545 U.S. 193 (2005) (research exception to infringement)
- F.T.C. v. Actavis, Inc., 133 S.Ct. 2223 (2013) (competition law – drug settlements)
- Gunn v. Minton, 133 S.Ct. 1059 (2013) (federal jurisdiction over cases involving patent law)
- Lexmark Intern., Inc. v. Static Control Components, Inc., 134 S.Ct. 1377 (2014) (unfair competition based upon false infringement allegations)
- Nautilus, Inc. v. Biosig Instruments, Inc., 134 S.Ct. 2120 (2014) (indefiniteness)
- Already, LLC v. Nike, Inc., 133 S.Ct. 721 (2013) (standing after covenant not-to-sue)
- Board of Trustees of Leland Stanford Junior University v. Roche Molecular Systems, Inc., 131 S.Ct. 2188 (2011) (ownership under Bayh-Dole)
- Association for Molecular Pathology v. Myriad Genetics, Inc., 133 S.Ct. 2107 (2013) (subject matter eligibility)
- Alice Corp. Pty. Ltd. v. CLS Bank Intern., 134 S.Ct. 2347 (2014) (subject matter eligibility)
- Limelight Networks, Inc. v. Akamai Technologies, Inc., 134 S.Ct. 2111 (2014) (divided infringement)
- Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S, 132 S.Ct. 1670 (2012) (forcing correction of Orange Book listings)
KSR has actually rocketed to the position of most-cited Supreme Court patent case of all time followed by Markman (1996); U.S. Gypsom (1948) (antitrust-patent); Graham v. Deere (1966); and Warner-Jenkinson (1997).
Comments noting the MASS deletion of over 100 comments are hereby deemed “offensive” and not fitting the desired narrative and will be deleted.
WTF
(well that’s fun)
Is the Higgs Boson a product of nature? Can anyone prove that an Higgs Boson exists other than by an act of man?
What if claimed as follows?
1. Isolated Higgs Boson.
What about this?
2. Isolated, stabilized, Higgs Boson.
Who is the inventor? Higgs? Higgs when CERN produced one? CERN?
Should the publication of the idea of the Higgs Boson prevent a patent on the isolated, stabalized, Higgs Boson when one finally produces one?
I like my Higgs Bosons with a bit of cream and fresh strawberries on top. Hopefully the price will come down as production increases.
Ah!
1. Marinated Higgs Boson.
That seems like exactly the same issue as the element Americium, except the patent on that actually issued with this claim:
1. Element 95.
See US 3156523.
Thoughts? I don’t know if it’s possible to determine whether Element 95 definitively does (or does not) exist anywhere else in the universe.
Good morning! We have something interesting here today: a mid-90’s software patent that SHOULD be patent-eligible based on the MoT test. I saw it in a daily litigation report this AM.
US6050348
What claims are involved?
Here is claim 6:
For the sake of argument, let us assume that everything in this claim is old and old in combination, with the point of novelty the use of the computer to control the motor. What we have here seems obvious because using a computer to control something cannot be an invention even at the date of this patent.
As to 101, where is the ineligible subject matter?
I’m not exactly an expert in this art, but I have a hard time believing this claim is novel, even in the 90s.
If there is a 101 issue, I’d suspect it lies in that the applicant attempted to distinguish their claims over the prior art based on the information transferred.
“Drill string rotational information” or “down hole tool orientation information.”
If they got a patent on that distinction, that seems like a possible 101 problem to me.
How they got the patent is irrelevant. Novelty is irrelevant (re-read Diehr, the Court goes into the novelty issue at length).
Huh?
Novelty is irrelevant? To what? Eligibility? That wasn’t my point. It is certainly relevant to whether this is an enforceable patent.
Determining which parts of a claim and which parts are old is certainly relevant to 101, though of course this isn’t strictly novel. Usually, what is going on is that the “novel” aspect of this claim is ineligible subject matter.
Diehr is the case I would cite if I were you too, I guess. But there are a lot more (9-0) recent cases that suggest your reliance on Diehr is misplaced. Read Alice and Mayo.
Go,
Be aware of the fallacy of the “mere aggregation claim” as somehow something “more” when it comes to 101 arguments.
This in particular is a weakness of yours when it comes to patent law and your cheerleading of what you “feel” should be law.
The key word at least from Prometheus was integration – and the tendency to discount the Diehr admonition against dissection is often overblown and in fact is NOT the law, even as re-written by the Court.
Also be aware of your tendency to think that “portion of claim being eligible or ineligible” has any foundation. This is an offshoot of the dissection mode which only the unsophisticated and easily confused abide in.
“Novelty is irrelevant? To what? Eligibility? That wasn’t my point.”
“Determining which parts of a claim and which parts are old is certainly relevant to 101.”
Hilarious. Do you realize you contradicted yourself in two consecutive sentences?
oh man,
I wish you’d use a consistent moniker. That said, I was making a point in my first post and a different point in my second post. Pretty simple.
What bad faith.
“consistent monitor” does not help with the “bad faith” issue.
Look at who you cheerlead to see that.
Look at who you cheerlead to see that.
99% of the habitual moniker-swapping sockpuppets who post here are coming from one or two people who truly love them some bottom feeding computer implemented junk patents.
That’s always been the case and we all know why.
Or have you forgotten, “anon”, that you were the primary abuser here for many years until Dennis outed you?
Now wait for “anon” to tell a sweet fable about how some guy on some other blog “does the same thing”. It’s a great one, folks!
What I remember MM is you accusing me daily of using sockpuppets. But, then Dennis confirmed that I did not use sockpuppets. You never acknowledged this or apologized.
Even worse is his own duplicitous actions of constantly whining about sockpuppets as “the worst thing ever,” his prevaricating about his own use (not a flat denial per se, but rather “rarely” and “not recently,” and then compounding that by pretending that his rampant use at Dr. Noonan’s site is merely some “fable,” while it is beyond evident that he engages in the very behavior he seeks to decry – and he does so more recently and at a higher volume than most any regular here in this ecosystem.
Small potatoes perhaps, but clearly a pattern of repeat offense indicating indifference to the obligation invoked by Prof. Crouch for honesty and being forthright.
Nine years and running. Same one, not merely some one.
Actually, MM also posted under my name too and admitted it during the great sockpuppet era.
I’m not exactly an expert in this art, but I have a hard time believing this claim is novel, even in the 90s.
Impressive. Now I understand why some of you guys have so much time to comment here. It only takes you a few seconds to invalidate a claim like this, where mere mortals have previously spent months and countless dollars in failed attempts to do so.
I’m not commenting on validity of this patent directly- the point of novelty MUST be the specific code that handles the drill string- something humans can do, but what a quality software program can do better to control a machine and thereby improve its function.
To me, the eligibility inquiry must locate the point of novelty. If the software only provides information, but not control; ineligible. That may be a finer point in many embodiments, but its the only way to avoid purely functional claims that can’t be adjudicated fairly. On a validity basis, if the patent does not recite the structure of the code that provides the improvement, but only the idea of using a computer to control a drill string, it should be invalid for lack of description.
“MUST be the specific code”
Absolutely and completely false.
Basics Mr. Snyder, basics.
To me as in your feelings about what the law should be or as in your reading of Alice/Mayo? If the former, identify it as such so you don’t confuse people. If the latter, that’s a gross misstatement of the law.
anon knows very well from my comments in recent months that my statements on eligibility are as I wish the law to be- pertinent to my opinion of how reforms should proceed- and not (usually) as the law may be today.
As to how the Supreme Court may rule in the future on the current statues as written, I think they can outlaw per se software patents under current law if they wanted to.
As to the way any particular case stacks up on the Alice standard, there is clearly range for judicial interpretation, as DDR and other recent cases have shown.
anon’s mischaracterization of inter alia my stance on software patents is part and parcel of the “everything is wonderful” view of the current mess. Its not wonderful and I am not an anti-patent ideologue. Im also not a lawyer, so I hardly expect to make expert insights to the finer points of patent law. I am knowledgeable about software and the key concepts around subject matter eligibility, which is where I focus my input on this blog.
Very much to the contrary, I am not the one engaging in mischaracterizations.
As I stated previously, you need to take better care in your posts to make sure you are expressing your opinions as to changes in law as that. You are not doing that.
Clearly.
Further, you continue to represent clear errors of law. For an immediate example, your statement of “think they can outlaw per se software patents under current law if they wanted to” is profoundly false from a legal perspective.
Blandly stating “I’m not a lawyer” simply does not excuse what you are saying, nor does it mean my posts – discussion actual law – means that I am “mischaracterizing” you.
“Further, you continue to represent clear errors of law. For an immediate example, your statement of “think they can outlaw per se software patents under current law if they wanted to” is profoundly false from a legal perspective”.
What?
If the Supreme Court decide that further processed information is abstract, period, it’s over for per se software patents without changing a word of current law.
Can you ever make a statement with a counter-point that equals more than “you are wrong” about this or that?
Some useful software patents should still be valid, providing we can distinguish between ‘information as content’ and ‘information as bytes’. Consider a software compression algorithm which reduces the storage space that ‘information as bytes’.
Consider a software compression algorithm which reduces the storage space that ‘information as bytes’.
What about it?
For example Patent 4558302. It describes the a ‘High speed data compression and decompression apparatus and method’. The invention is reduces the amount of storage (memory, disk etc ) needed to store data which has repeating sequences and describes how to accomplish it.
This is a software patent which makes a computer function better for all its tasks.
Most other software patents discussed here are processes which are improved by using a computer. They don’t make the computer function better, they add a new function to the computer.
By the way, that compression patent was actively licensed by Unisys in the mid-1990s because it forms the basis of the GIF image file format. As a result of that license activity, the PNG file format was developed as a patent-free replacement. Who says software patents don’t lead to innovation?
link to en.wikipedia.org
IBM had a patent on the same compression algorithm. The filing dates of both patents were virtually the same.
“Can you ever make a statement with a counter-point that equals more than “you are wrong” about this or that?”
Bro he has ocpd. look it up. Telling other people about how wrong they are is exactly what he loves most in life.
let us assume that everything in this claim is old and old in combination, with the point of novelty the use of the computer to control the motor. What we have here seems obvious because using a computer to control something cannot be an invention even at the date of this patent.
As to 101, where is the ineligible subject matter?
Like the Prometheus claims, it’s either obvious or its ineligible pretty much on its face.
It matters to the lovers of compuer-implemented junk because their junk is worth more if the amount of money it takes to establish that it’s junk is geater. Therefore, the lovers of computer-implemented junk prefer obviousness.
What they apparently don’t see coming is that the obviousness of computer-implemented junk like this is going to become much easier to establish going forward as a summary judgment matter as the world grows tired of the infinite and endless stream of “do it on a computer” crapola and the endless stream of inane “i was born yesterday plus super shiny compooter makes me smile” arguments in defense of such claims.
What is the abstract idea of this claim?
Is this patent actually being challenged under Alice? That will be a good test. This is a perfect example of something that should be patent-eligible: using a computer and to precisely control a device in a way that humans cannot. The patent says the state of the art involves operator guesswork (and I assume that’s correct), so the patent-eligible process of drilling a hole is improved via such computer control. I think Diehr is probably equivalent from an eligibility standpoint, but Diehr was decided before Alice.
However, I suspect the opposition would argue, under Alice, that (a) “drilling a hole” is an abstract idea and (b) using any generic computer with broadly-functional instructions like “rotate to a predetermined angle” is not sufficiently “something more.”
The fact that this is even a cognizable argument against eligibility is ridiculous. If you want to argue that it’s anticipated or obvious, fine, find the art or demonstrate what PHOSITA knew back then. But suggesting that this computer-controlled drilling device and/or method is not even eligible for patent protection is clearly counter to the intent of Congress and the Constitution.
Likewise, I suspect Diehr would also fail as ineligible under the Alice test.
If only patents were corned beef, we’d all be eating a delicious breakfast because the courts have made a marvelous hash of them. (Mmmm, now I have to run to the deli…)
I think you are correct. This is a 112 issue, 101 shouldn’t even be thought of when looking at this claim. Preventing claims like this from even getting in the door laughs in the face of SCOTUS’s own admonition that these exceptions should be narrowly tailored and applied judiciously to avoid over-exclusion. They way the test is applied now anything with a processor is being rejected.
Here’s a quote from a district court judge earlier this year, holding that a computerized poker-management system was not summarily invalid in view of Alice/101:
“True, it is difficult to understand the difference between (1) a claim “directed” to an abstract idea but saved by an “inventive concept,” and (2) a patent not “directed” to an abstract idea in the first
place, but that nonetheless can be said to “embody, use, reflect, rest upon, or apply” an abstract idea. Id. at 2354. But in patents, no less than all other areas of the law, Courts must do their best to follow Supreme Court rulings, no matter how unsatisfying.”
(Case 8:11-cv-00189-AG-RNB, Central District of California)
How unsatisfying that progress in the “poker management” arts is no longer going to be subject to patent protection! The poor judge must have crawled in bed and slept under his blankets for a week after tanking those super awesome patent claims.
Does anybody have a large glass I could borrow? I just filled mine up with tears.
Of laughter.
Learn to read, fool.
You go right ahead and cherish that case, sockie.
101 shouldn’t even be thought of when looking at this claim.
LOLOLOL
You can’t parody this stuff.
Rest assured: we are long, long past the point where any technological context can free a claim with information processing functionality from eligibility concerns.
And thers’ a great reason for that: information is ineligible for patenting. So is math. So is logic.
Eligibility concerns over “software” enabling functionality are never going away.
You’re welcome.
I just read about the litigation this morning, but I assume it will face a 101 challenge shortly.
This is exactly the example of where per se software (that results in further processed information for human use) vs. machine component software (that results in a physical effect in the world) should be the operative test (i.e. the MoT test) because such a test can be reasonably understood by all parties, can be more fairly adjudicated, can not as easily claimed functionally, and requires no “gisting” to identify what is “abstract” at the point of novelty.
Go ahead anon, pretend you don’t know what “should be” means.
Martin, I see no software claimed.
I am hard-pressed to understand how anyone would think claim 6 presents even the remotest hint that someone is trying to claim information processing in the abstract.
Ned, when he returns to work on Monday, you’ll see such a thought.
suspect the opposition would argue, under Alice, that (a) “drilling a hole” is an abstract idea and (b) using any generic computer with broadly-functional instructions like “rotate to a predetermined angle” is not sufficiently “something more.” The fact that this is even a cognizable argument against eligibility is ridiculous.
No, that’s not the argument and yes you are ridiculous. But wow — thanks for demonstrating how deeply confused you are about subject matter eligibility! Funny stuff.
Enlighten us, master!
The “abstraction” isn’t “drilling a hole.”
That’s the prior art (which nobody can patent, no matter how clever their attorney is).
The abstraction is “monitoring orientation”.
Have you ever drilled a hole? I have and so have most people I know. Then again, we weren’t born yesterday. I know that’s not true of everybody, of course. In particular, I know it’s not true of a lot of people who comment here.
Anyway, when you drill a hole you not use your muscles and your drill but you also use information and logic. The logic helps you to orient the drill so you don’t drill into your foot or some other place where you don’t want the drill hole to go. The information helps you apply the logic.
Sensors collect information. That’s also in the prior art. Old stuff. Really, really old stuff. The more sensors you have the more information you have. That’s also really old stuff. Also really old is the understanding that sensors, in the abstract, can sense anything that is detectable by sensor (just like your eyes can see anything that is visible to your eyes). It’s “what sensors do.”
I could go one here but the point is that, absent some other innovation, the “using logic and information” to drill a hole “the way you want it to be drilled” is ineligible subject matter. If the only other innovation in this claim is the sensor and a computer configured to take the information and move the drill around, then you’ve got an Alice problem. Alice, you’ll remember, stands for the proposition that “computerization” of otherwise ineligible subject matter doesn’t cut it.
Note that you don’t have to like this analyis or where it leads you. But there’s nothing “ridiculous” about it, nor is it particularly confusing.
Please try harder to keep up! You can’t really drive the software patent train any further off the tracks than it already is. DDR Holdings is a joke.
The claim is directed to drilling a hole. If that’s not abstract then the claim has no eligibility problems because, even if “monitoring orientation” is abstract, you just reminded us that Diehr stands for the premise that “the mere presence of ineligible subject matter in a claim does not render a claim per se ineligible.”
If drilling a hole isn’t abstract then the Alice part 1 test fails, part 2 never gets invoked, and the claim is patent-eligible.
In the words of the immortal Homer Simpson:
DO’H!
If that’s not abstract then the claim has no eligibility problems because, even if “monitoring orientation” is abstract, you just reminded us that Diehr stands for the premise that “the mere presence of ineligible subject matter in a claim does not render a claim per se ineligible.” /i>
You can explain the concept of “one” to some people but 1+1=2 is somehow enormously difficult.
I’m glad you understand the holding of Diehr — congratulations! Some don’t even make it that far. Try to remember it.
Now you need to understand the other part of the analysis: a claim reciting ineligible subject matter isn’t rescued from ineligibility merely by reciting old technology (i.e., a drill with a sensor; an old method of gathering data to be analyzed; “a computer”).
Note: I am not asserting here that this claim is plainly ineligible (it might be; it might also be obvious). I am telling you what a proper eligibility argument looks like since you seem to have no clue about the law in that regard.
This statement from you, for example: “The claim is directed to drilling a hole. If that’s not abstract then the claim has no eligibility problems” is absolute nonsense and it was put to bed by the Supreme Court in Mayo. Give it up, already, mkay?
Thanks.
By the way, SlotGuy, you and “anon” make a really cute couple. I’m glad you are “joining forces” — surely you will both benefit from your alliance.
LOL
“The Court has long held that §101, which defines the subject matter eligible for patent protection, contains an implicit exception for ‘ “[l]aws of nature, natural phenomena, and abstract ideas.’ ” ” (Alice, slip op. at 1).
“Using this framework, the Court must first determine whether the claims at issue are directed to a patent-ineligible concept.” (Alice, citing Mayo, slip op. at 2)
The claim is directed toward directionally drilling a hole with a computer-controlled drill string. That is neither a law of nature nor a natural phenomenon. The only relevant eligibility criterion is whether it is an abstract idea.
“The “abstraction” isn’t “drilling a hole.””
(MM, above, post 14.2.3.2)
Here you admit that the subject matter to which the claim is directed is not an abstract idea, and I don’t think you’ll argue that it’s one of the other two ineligible exceptions. Therefore, the claim is not directed to an ineligible concept and the first part of the Mayo / Alice test fails. If the first part fails, the second part is not performed because the claim is already deemed eligible.
You suggested that my statement that the claim is eligible “is absolute nonsense and was put to bed by the Supreme Court in Mayo.” But there is no other eligibility test proposed in Mayo.
How do you defend your position, counsel?
One of Malcolm’s typical responses:
link to youtube.com
suspect Diehr would also fail as ineligible under the Alice test.
Diehr’s claim was a pile of crap that should never have been granted. It was ineligible or obvious.
Holding Dierh’s claims up and pretending that some conflict with Alice works against Alice is pretty funny.
Sometimes the Supreme Court gets it wrong. Diehr got one thing right (the mere presence of ineligible subject matter in a claim does not render a claim per se ineligible) and that’s about it. The lovers of information processing junk have come up with all kinds of bizarre zombie interpretations of Diehr and, as a results, Diehr is being chipped away at steadily. All that will be left is that “one thing” I referred to above.
Watch and see.
Martin, Just checked. Locating the “rotation” sensor at the surface is the novel limitation.
Locating the “rotation” sensor at the surface is the novel limitation.
Ah, a structural limitation.
How quaint.
Locating a sensor here instead of there.
You can’t make this stuff up. Must be a sooper dooper serious guy here.
PROMOTE THE PROGRESS OF MOVING SENSORS AROUND FOLKS!
PROMOTE THE PROGRESS OF MOVING SENSORS AROUND FOLKS!
There might be a great argument for the non-obviousnes of the claimed location of the sensor. Do you know of one?
It is more than a bit odd to include all the information-processing limitations in the claim if the non-obviousness of the sensor location was worthy of a patent.
Perhaps the argument is “it cost too much money to put a bunch of sensors on a drill”. That’s aways a good one.
LOL
MM this one is quite a bit different from the run of the mill junk. The software doing the job is doing something no human could do, not only because it can do it faster, but because it can integrate more kinds of sensor data more accurately than a human, using more information about rocks, and tube properties, and brake system properties etc. than any human could know. The combination of the sensor in the hole (among many other sensors) and devising all the programming needed to actually make the drill go where its steered MAY be novel and non-obvious enough to confer patentability. In this particular case, I don’t think the patent discloses enough of the whole system to not be indefinite, but I do think its eligible under 101, again because philosophically I think the MoT test reflects the intent of the current statue. If this was just software that showed an operator where to steer, I would say not eligible. You gotta draw a line somewhere.
His line is processor + function = claim ineligible. Again, not the law’s line, as much as he wants it to be, but his line nevertheless.
Martin,
I agree with you general premise BUT:
None of what you described is in the claim. There’s just the slight of hand “determining” type phrases.
go I posted the patent as a type of computer implemented innovation which should pass the 101 test. I don’t think this particular patent discloses enough structure, but the possibility is there for similar types of inventions.
One of these days I will find one that is really unassailable. Kind of sad they are such rarities….
Of course, Martin is the prisoner that is not guilty.
Or maybe one of the 40%+ accused infringers cleared at the Fed Circuit or the 90% plus at IPR…..
And what of the prisoner who is actually, you know, not guilty? The sickos and nihilists around here are satisfied that to make an omelet you need to break some eggs…. the lack of concern for innocent small businesses shaken down for life-changing money over nothing is disgusting… and when the precious racket gets trimmed, they wail about rule of law…..
And yet, you are still the prisoner that claims not to be guilty.
Hmm… of these 23 cases, the patentee lost the vast majority of his/her/its argument at Scotus.
An not only that patentee lost, all subsequent patentees are hung with the adverse precedent.
Tell me they aren’t on an anti-patent vendetta.
Alice is definitely the flash of genius redux.
Silicone, they? What if the Court affirmed a holding adverse to the patent holder?
Regardless, the consensus view is that the Federal Circuit was far too friendly to patents in any number of ways, from obviousness to patentable subject matter.
To the extent that you do not truly understand this, then may I suggest that you are part of the problem, not part of the solution.
Consensus Ned?
Sorry, but no – you are merely engaging in your oft-repeated pattern of “you must be a genius when you align with my agenda” (as per the references to 6 as an Einstein when he posts something you like).
Quite to the contrary, it is your own devotion to the Supreme Court that blinds you (quite often) as to which body of the judiciary is most to blame for mucking up the STATUTORY body of patent law.
You sir – are part of the problem. And I would add, that this inability of yours to pick up on when the constitutional issue of violation of separation of powers arises, your position is greatly weakened.
Ned, who do you mean by “consensus?”
Consensus of
1. Citizens of the US?
2. purveyors of open-source licensing?
3. Chinese copiers?
4. Registered patent practitioners?
5. Ivory tower theoreticians?
6. Winos?
Somebody else?
>>6. Winos?
We all know that the only people that can understand Ned are winos.