by Dennis Crouch
In a letter mailed on April 7, 2015, I joined with the Electronic Frontier Foundation (EFF) in calling on the U.S. Court of Appeals for the Federal Circuit to re-institute free public access to orders issued by the court.
Following former Chief Judge Rader’s resignation in 2014, the Federal Circuit stopped providing free public access the the vast majority of court orders. These orders are still accessible through PACER, but that system is difficult and costly to use.
Although the court’s most substantive work is usually found in published opinions. Court orders can be substantive and important and the letter provides a few examples:
For example, an order involving ongoing royalties in cases involving Apple and VirnetX was not chosen for publication on the site, despite the high interest in the proceedings the case has generated, and the impact the order could have on the publicly traded companies. Another order barred Facebook from asserting invalidity defenses on appeal for procedural reasons – a matter of public interest because it could educate litigants about how to preserve issues on appeal, and because Facebook is a public company. Even in cases where the Court seeks public participation, it has not chosen to put relevant orders up on its website for public access. On December 30, the Court granted a petition for en banc rehearing of SCA Hygiene Products v. First Quality Baby Products, No. 2013-1564, announcing on its website that it invited amicus curiae briefs in the case. Rather than posting the order on its website, the Court instead directed interested parties to view the order on PACER. Because the case is sufficiently important to merit an announcement on the Court’s website, it was dismaying that the order was not selected for public access on the website.
The change that we propose is simple and fully within the Court’s power — we know this because the court was previously providing free public access to these documents as standard operating procedure. My hope is that the Court will hear our respectful requests and make this appropriate change.
Michael Barclay and Vera Ranieri from EFF have also written on the topic in the EFF Deep Links Blog.
Something still smells in Aspen:
Oplus Trolling, Ltd. v. Vizio/Sears (Fed Cir; April 10, 2015) “precedential”
Prost, Moore, O’Malley
Held (Moore): Judge Pfaelzer abused discretion in denying attorney fees for exceedingly poor behavior by the Niro firm.
After detailing the serious misconduct and concluding that the case was exceptional, the explanation the court gave for denying fees was that the “case has been fraught with delays and avoidance tactics to some degree on both sides.” Id. at 16. The court did not specify the delays or tactics and, at oral argument, counsel for Oplus was unable to articulate delays that were substantiated in the record, let alone actions that would warrant the court’s denial….
Oplus argues fees are not warranted because Vizio did not promptly move for summary judgment. We see no unusual delay in this record. That Vizio did not move for summary judgment at the outset of litigation does not absolve counsel’s uncontested litigation misconduct nor could it justify refusal to award fees after summary judgment was filed.
Presumably this is the same Judge Pfaelzer who has been extending a glad hand to other patentees wielding computer-implemented junk.
I am reminded of this: link to en.wikipedia.org
I’m reminded of your nutsanity from the previous thread on this case where you refused to acknowledge that Niro is a bottom-feeding t00l.
NOT Indulging your tangents is never “nutsanity.”
Maybe you should try sticking to the actual LEGAL topics…
Automated Merchandising Systems v. Lee
AMS has four patents in re-exam, put there after a challenge requested by a defendant, Crane Co, that was sued by AMS. A consent judgment was entered in their patent lawsuit, dismissing the infringement suit and stipulating that the patents were valid. The PTO denied AMS’ request to terminate the re-examinations and AMS filed a suit in district court alleging violation of the APA, 5 USC Sect. 104. The district court refused to stop the PTO proceedings.
Federal Circuit: The refusal to stop the re-examinations is not a “final agency action” under the APA, 5 U.S.C. § 704. If the patents are invalidated on re-exam, that’s the proper time to appeal.
Sample patent at issue: 6,384,402, where the innovation is (apparently) the use, in a vending machine, of a “broad plane” of electromagnetic radiation instead of the narrower beams in the prior art to detect a successful vending event.
Reply Brief filed. link to alliacense.com
Issues: Constitutionality of IPRs; constitutionality of 314(d) if construed to bar appeals of statutory jurisdiction of IPRs.
Ned – well done.
No. Thanks.
one comment: de novo review in and of itself does not save the constitutionality of IPR. where the claim of patent validity is a private right, no admin agency can rule upon it with finality – irrespective of de novo review. instead, that agency can merely issue an advisory opinion where operating beyond the role as a true fact-finding adjunct. you seem to gloss over this.
no, I think that was a question reserved by the Supreme Court in Executive Benefits. See its fn. 4. The question goes no to “finality” but to lack of consent to the forum in the first place. That whole question is reserved.
Thus, even if Congress provided de novo review it may not be enough unless the only avenue to a final decision was through an Art. III court when the private right holder did not consent.
Paul Morgan, pay attention. Mr. No knows what he is talking about.
consent is a non-factor in the art III pub rights analysis. perhaps your case changes that.
seems to me that you as well as the Cooper / echarge guys are attempting to confront IPR while simultaneously sparing reexamination under Paltex. saps the power of your punches, IMHO. parsing reexam from IPR where underlying claim is patent validity in either scenario is logically disingenuous, and the gov will raise it.
No. We emphatically conclude that Patlex is overruled.
my point is more nuanced – you can conclude that patlex is overruled, and that patent validity – as a claim – is a private right, but without simultaneously acknowledging the ramifications for reexamination, some of your intellectual credibility is sacrificed.
it seemed to me you were attempting to walk this line with the discussion of de novo. I believe Cooper / eCharge attempted a similar distinction.
Dr. no, the District Court in Patlex upheld the constitutionality of re-examinations because of the availability of de novo review. Removing the public rights crutch does not necessarily invalidate reexaminations.
However, if reexaminations are not saved by the right of de novo review (repealed by the AIA), they are unconstitutional just as much as IPRs. McCormick Harvesting held that the patent office may not revoke or cancel a patent for any reason including government mistake. They must sue in court provided they have standing.
The bottom line, we do not defend the constitutionality of re-examinations outside the context of de novo review.
I am not familiar with any SCOTUS public rights rule of law cases establishing that (1) an admin officer may (2) rule on a common law / equitable / admiralty claim with finality, provided that (3) that resolved claim may be reviewed by an Art III court de novo.
instead, the SCOTUS has previously established that (1) an admin officer may (2) offer an non-binding advisory opinion on a common law / equitable / admiralty claim that is then (3) reviewed de novo.
an admin officer may only resolve issues related to her role as a fact finding adjunct. even then, de novo review is required.
Re: consent.
The voluntary choice of forum where the court remedy was available was critical in Schor. I have previously given you the quote from Stern v. Marshall.
schor did not establish consent as a means for addressing art III defects. though J. O’Connor mentioned that consent was one factor a court may consider when conducting its analysis, she also expressly noted: “when these Article III safeguard limitations are at issue, notions of consent and waiver cannot be dispositive because the limitations serve institutional interests that the parties cannot be expected to protect.” p. 851.
in any event, schor is somewhat of a lame duck case for reasons I have pointed out previously.
Stern was the closest thus far to ratify consent / waiver – however, there, only 4 of the 9 approved it.
Dr. No: ref. your post at 11:40 AM.
I agree. The SC has not gone that far.
But, consider an interference between a patent application and a patent. The patent can be revoked. But there is a right of de novo review.
I think the Supreme Court will look at this longstanding procedure with some respect.
You raise an interesting point – in the past, certain Justices have observed in dicta that “historical practices to the contrary” may permit resolution of a claim by the art I officer. However, that mode of reasoning has not received approval by the SCOTUS. Instead, the question is whether the claim at issue has an antecedent existing either at law or equity. This remains the public rights rule of law.
Reexam will go the way that IPR goes. They will likely live or die (in their current form) together.
I have been disappointed to see that the USPTO has been unable to present a coherent defense thus far. It is clear that AIA IPR was enacted without the benefit of a sep of powers due diligence. They are now scrambling to find what sticks.
Maybe too big to fail will save them; maybe it won’t.
No, you and I see it the same way about the government’s legal argument.
And, just look whose on the brief for the government? The DOJ, including some of their very best and brightest — the same people who have been writing the briefs in the recent patent cases at the Supreme Court.
As to the crafters of IPRs, I think they just assumed there was no problem with constitutionality. The AIA became law in Sept. 2011. Stern v. Marshall came down June 23, 2011. There was no time to rethink IPRs, even if someone were paying attention. If there was a review over at the DOJ, it may have occurred prior to Stern v. Marshall.
On a going forward basis, it might be best to file IPRs in court, with a special referral to the PTO if trial is declared for their findings of fact and conclusions of law, or a special master’s report depending. The court can then determine whether any facts are disputed, and order a trial de novo if necessary — and to a jury if requested.
Congress might even set up a special court in DC for IPRs with limited jurisdiction — so as to eliminate counterclaims for infringement. In this way, we would get PTO expertise, if we still think that necessary in a revamp, plus expedited, low cost, validity trials.
And, Dr. No., do you think you yourself could have come up with something better than the DOJ?
The gov is in a difficult position, and I don’t envy them. They are tasked with attempting to explain how an antecedent claim with centuries of history at law or equity qualifies as a public right. Unless the law changes at the highest level, they have very little wiggle room.
What primarily disappoints me is their lack of coherent vision for the defense. The gov came out of the gates very aggressively in the Cooper / eCharge dispute, primarily premising its defense on Schor. Cooper / eCharge however, handled those arguments easily, and the gov has been scrambling ever since (in its final reply brief, it raised exhaustion for the first time). There is no consistent proposal from the gov as to what the law should be in order to preserve the IPR scheme.
The SCOTUS likes IPR and reexam. However, the Court may view this as something bigger than both of those mechanisms. Placing a common law / equitable claim like this before an Art I tribunal sets a dangerous precedent, and – to a degree – erodes the integrity of its own jurisdiction.
which reminds me – it seems like the SCOTUS is now begging for a TRADEMARKS and PUBLIC RIGHTS case after B&B.
for all the IP lawyers out there . . .
Happy landings on a chocolate bar.
See the sugar bowl
Do a tootsie roll
In a big bad devils food cake,
If you eat too much,
Oh, oh,
You’ll awake,
With a tummy ache.
(watch out for those icebergs)
The SCOTUS likes IPR and reexam. However, the Court may view this as something bigger than both of those mechanisms. Placing a common law / equitable claim like this before an Art I tribunal sets a dangerous precedent, and – to a degree – erodes the integrity of its own jurisdiction.
Bad news for an already broken patent system.
Things are going to get much worse for the patent extortionists before they get better, however, and that’s something we can all celebrate.
Malcolm,
Your script is inapposite here.
What point are you trying to make – to this conversation?
Feel free to use those short declarative sentences you are always on about (and do try to be on point).
Thanks.
Paul F. Morgan, have you read the reply brief yet? You should.
Dennis, if you are not going to post separately on the government brief and the MCM reply, may I suggest that you update the prior post on the MCM principal brief and allow further discussion there. The government brief and the MCM reply brief add a lot, primarily because the government brief expressly defends Patlex and its reasoning.
don’t hold your breath.
Dennis disagrees? Has he said so after reading the reply brief?
Vera: For those that want to do research on the law, PACER is cost prohibitive. It is difficult, if not impossible, to get bulk downloads at any sort of reasonable cost
Well, therein lies the rub.
You make all the information available so that people who want to, say, look at some recently published or filed court documents can do so at no cost. And then along comes Johnny Greed and his 5,000 identical twins who gum up the system by automatically downloading everything at once because “it’s free.” And then Johnny tries to “monetize” the information because that’s how Johnny Greed rolls.
Here’s the deal: let the professional downloaders “who want to do research on the law” subsidize the average person. Perfectly fair. Perfectly reasonable.
Why is it wrong for Johnny to monetize the information? Government works are not covered by . If Johnny can get it for free, then anyone can. Johnny may add value to the information by making it easier to find, parse, or understand. People may choose Johnny’s solution because of that added value (or may choose the free option). Johnny, like everyone else, paid taxes used to support the judiciary. Likely, people like Dennis would add value to the information without charging for that added value.
and link fail.
copyright.
Why is it wrong for Johnny to monetize the information?
I didn’t say it was “wrong.” I said it was “greedy”.
Johnny may add value
How nice for Johnny.
Johnny paid taxes
Right. And Johnny should expect to pay a bit more if he wants to use waaaaaaay more of that information than 99.999% of the rest of the taxpayers. Like I said: it’s fair and reasonable.
Or we can raise everybody’s taxes to support Johnny Greed and his ventures because Johnny Greed always “adds value.” Shall we take a vote?
Would you also say it is “greedy” to charge $0.10 per page for something that was previously free?
Would you also say it is “greedy” to charge $0.10 per page for something that was previously free?
It does seem excessive to me. Unless something has changed recently, PACER offers a certain number of free pages/month. Of course, depending on what you’re looking for, the free pages can get used up pretty quickly. If the system can be made to work with free downloads for everybody then by all means that’s where it should be heading.
There are ways a system could be designed that prevents it from being “gummed up” by bulk downloads, while still providing free public access to individual case files.
It’s easy enough to prevent bulk downloads: just make users use captcha or something similar, at least after exceeding a certain download threshold within a given amount of time. The EPO’s espacenet does it, and apparently it works, because the information from the EPO is still free. And if the EPO, which isn’t beholden to voters or taxpayers, can do it, the CAFC, which likewise isn’t beholden to voters or taxpayers but the funding of which is subject to Congressional approval, can do it.
Also note that some of the time, those repackagers of publicly-available info provide added value. For example, most US patent file histories since 2001 are available for free through PAIR, but the indexing is poor and the images are not searchable. There are times when it may be worthwhile to pay firm that repackages this information, if it provides the file history in a better-indexed, better-organized form, with searchable images. I assume that those repackagers do not go to the trouble of providing that added value in all cases – i.e., they don’t engage in bulk downloading – but only in those cases in which someone has indicated a willingness to pay for the service.
Look, if there is a demand for a product or service, there will be a provider.
The question really is this, would the government block Google or someone like Google from directly accessing court records and setting up an alternative, private, means of accessing court records?
Think US Post Office. Private firms compete in delivering packages and the US Postal Service is really unnecessary. But it remains as a government service and so long as it is there, they block private firms for truly competing across the board so as to maintain revenues and employment for the government service.
If Google were to come along and replace Pacer except for court filings, Pacer revenues would fall. I think that tells you why the government will block the likes of Google.
Ned: it remains as a government service and so long as it is there, they block private firms for truly competing
Those “private firms” do compete with the US Post Office, which provides excellent service for a decent price (at least that’s been my experience).
You are perfectly free to use UPS or FedEx or DHL or whatever. Somehow I doubt those guys would lower their prices if the Post Office were to be thrown under the bus.
Well, they cannot deliver all mail, and there are cases on point. I am sure the courts can and will block the likes of Google if it chose to do so.
That said, Google might look at this as an opportunity.
the private carriers cant deliver to po boxes, for example.
Ned Heller: The government cannot turn PACER over to Google unless one wants to view a lot of advertisements.
Thank you, Ned, for the free laughs.
Are you going to show me an ad now?
No, but Google would. How do you think they make money?
I just searched google scholar like 4 times for 4 things and didn’t get one ad. If they put it in scholar it looks like it’ll be fine.
Not to mention the extreme risks of missing an order- PACER or not….
link to patentlyo.com
Maybe the judiciary should emulate the executive who runs on a platform of transperancy…?
Oops – we see what happens there – as the executive has set back to back to back records for the LEAST transparent presidency….
As they say, politics as usual.
the executive has set back to back to back records for the LEAST transparent presidency….
That’s fascinating. How was this “transparency” measured and by whom?
Don’t have the link handy, but it was a rebuttable news source (FYI, not Fox or other anti-dem) and had to do with Freedom of Information Act requests and such.
If I find it, I will post it.
PBS/AP
link to pbs.org
Thanks Go.
For someone obsessed with “normalization”, there is a striking absence of any in that article and it would seem kind of important for making the claim that “this Presidency” is the “least transparent.”
We have access to more realtime information about “this Presidency” compared to any other Presidency in the history of the planet. Where does that fit into the analysis?
And note: I’m not defending any of Obama’s FOIA denials. I’m sure some of them are bogus. I’m just questioning the conclusion.
To the best of the my knowledge, the Administration has not come close to issuing the kind of sweeping reprimands to its critics that, e.g., the Chimperor did while he was manufacturing propaganda to avenge his daddy.
“We have access to more realtime information about “this Presidency” compared to any other Presidency in the history of the planet. Where does that fit into the analysis?”
It doesn’t. That’s a complete non sequitur.
As is your bit about “normalization,” as the focus here is on this presidency’s declaration during campaigning and then this presidency’s doing the exact opposite once in power.
“I’m not defending”
That’s funny as it looks like that is exactly what you are trying to do (albeit, in your rather ham fisted way).
this presidency’s doing the exact opposite
“Exact opposite”? I’ve read a link to a “rebuttable news source” that makes some conclusory statements based on some raw numbers.
All I ‘m saying is that’s a strangely specific charge to make. It’d be nice to see some data to back it up. That data isn’t in the article.
“All I ‘m saying”
LOL – all that you are doing is flailing around trying to pretend that you are not defending a presidency that ran on a platform of “transperancy” while once in power did the exact opposite.
Lots of dust kicking from you and for what? Because you somehow want to paint their efforts as “virtuous” or somehow minimize that this is simply as I stated: politics as usual…?
Really?
It’s rather amazing how difficult it is for you to agree to ANY point I make, isn’t it?
you somehow want to paint their efforts as “virtuous”
Are you drinking again?
this is simply as I stated: politics as usual
What you stated was this: “[T]he executive has set back to back to back records for the LEAST transparent presidency….”
You still haven’t backed up this remarkable charge. And I’ve given up expecting that you will.
Amen, Dennis. I’ve never heard of a court charging a fee simply to view public records when you show up in-person. That would raise serious public access concerns: should we be charging an admission fee to see the work of our courts?
Why then is there any charge for PACER or its state court counterparts? Yes, of course it costs money to run electronic docket systems. But it also costs money to staff clerk’s offices and deal with in-person inspection requests. And it’s hardly free for government agencies to comply with Freedom of Information Act requests. Still, this is the price we do pay and should pay for governmental transparency.
All courts, and especially our most important court for resolving technology cases (the Federal Circuit), should wholeheartedly embrace free public access to court records.
Dennis, I would think Pacer revenues help fund the court system.
I thought PACER’s fees were supposed to be applied against the costs of operating PACER. It’s an obsolete system, when you consider that Google could do the same thing faster, better, with no restrictions on public access, and probably at no taxpayer expense.
But with ads and collection of all your data.
Google (Ads and collection of all your data) vs. U.S. Government (Collection of all your data and power to imprison you based on said data)
Let’s not go crazy here. When the data was previously free from the Govt, was there any collection of data? If not, then there wouldn’t be now.
As for Google, I’ve switched to Yahoo searching, as they supposedly do not track you. I do use Gmail, but I delete all my emails, and if I happen to use Google search, I delete all my searches. I don’t use Android. I constantly clear the cache in my browsers to prevent cookies from tracking me.
For anonymous searching, I recommend Duck Duck Go.
link to duckduckgo.com
ads and collection of all your data
Promote the progress!
Except when it’s not really progress at all but just the same old, same old “on a computer.”
Speaking of which, do you know what’s really, really cool? Drones.
You know what’s an improvement over a drone? A drone that collects data from your neighbor. That’s totally different from a drone that collects data because …. “neighbor”! Or so we are told over and over and again here by our absurd patent office and the courts that coddle “stakeholders” who beg for ownership over such things because (wait for it) …. “progress.”
Google doesn’t put ads on Google Patents or Google Scholar. It’s likely they wouldn’t put ads on “Google Justice” or whatever they’d call it. As for collecting your data, there are lots of ways around that for the paranoid.
APoTU. Why would Google then do anything for free unless it had a long term plan?