Apple v. Samsung – Appeal Number XXXIII

by Dennis Crouch

Without substantive opinion or dissent, the Federal Circuit has denied Samsung’s en banc request — setting up a last-ditch and low-probability effort for Supreme Court review.   Decision: SamsungEnBancDenial.

In its latest decision (October 2015) the appellate court summarily dismissed Samsung’s appeal — refusing to even hear Samsung’s collateral estoppel arguments associated with the PTO’s final decision in a parallel ex parte reexamination.  According my LexisNexis search, this is at least the 33rd Federal Circuit opinion stemming from the Apple-Samsung Patent Wars — all within the past four years.


60 thoughts on “Apple v. Samsung – Appeal Number XXXIII

  1. 8

    There is an important lesson not being learned in regards to the manufacture in its own right of software (which is unmistakable in being solely an item manufactured to be a machine component).

    Dust being kicked up as to “permanence” (while losing sight of the fact that when you shut off your machine and restart it, you still have the software there).

    I invite another look at the (admittedly limited) analogy of interchangeable machine parts in the Eli Whitney story, with the lesson to be learned that software – as it must be understood by anyone being inte11ectually honest – being equivalent to (note, yet again, this just does not require being “the SAME as”) hardware and being equivalent to firmware (yes, Ned, your artificial distinction means nothing):

    link to

    1. 8.2


      Here we go again.

      Re “the manufacture in its own right of software“:

      … Allvoice conceded that these claims were limited to software instructions without any hardware limitations. In the absence of such limitations, the claims as written fail to recite a manufacture, or any other statutorily recognized invention.

      Re “which is unmistakable in being solely an item manufactured to be a machine component“:

      You are mistaken. There are a great many examples of code demonstrating what not to do (e.g., infinite recursion, data type mis-matches, etc.). Such code is authored with the expectation that the reader will not attempt to execute it.

      Re “software . . . being equivalent to . . . hardware and being equivalent to firmware“:

      You keep pounding on this Church-Turing logical equivalence. You do realize that a human with a pile of rocks is also “equivalent” to the elements of your list?

      Does this mean that you hold that a human organizing piles of rocks is a patentable “machine”?

      1. 8.2.1

        Here we go again, again right back at you:

        Allvoice is distinguished and just does not mean what you (continue to) think it means.


          Right, because there are so many ways to interpret “. . . instructions, data, or information alone, absent a tangible medium, is not a manufacture.”

          You like to pretend that software isn’t software until it’s machine-readable, which is the only way you can distinguish Allvoice. If you were actually willing to listen to “anyone being inte11ectually honest”, you just might end up disavowed of that fallacy.


            I do not pretend anything.

            It is you that has the difficulty with the plain facts of reality, as well as having difficulty with the plain philosophy of MathS.

            You just come up short from both angles.


              “anon” It is you that has the difficulty with the plain facts of reality, as well as having difficulty with the plain philosophy of MathS.

              Thank goodness “anon” never insults people’s intelligence just because they disagree with him.



                I insult people’s intelligence because of what they do.

                That it happens to coincide with disagreeing with me, well, that’s just the world turning.

  2. 6

    It’s a shame Apple single handedly ruined our patent system. Hopefully the Supreme Court picks this up as they rightfully should to put an end to all the trivial and invalid patents Apple was issued.

      1. 6.1.1


        Syrian descent necessitates a link to some form of “terrorism”…

        Do you realize how offensive your comment is, Reiner?

    1. 6.2

      Eric, trivial? Why in the fricking world is Samsung fighting so hard against an injunction?

      I think you jest about triviality.

      Reminds me of the recent thread about the monkey and the selfie. The defendant tried to turn the whole thing into a joke suggesting that Congress had especially to provide that a nonhuman actor be provided standing to sue when in point of fact all that is required is that the registered copyright owner bring suit. Certainly the registered copyright owner has standing.

      I think the more interesting question is whether a monkey can be an author within the meaning of the copyright law. We are now verging on artificial intelligence and certainly artificial intelligences can create works of authorship. Who owns these works? The author or the owner of the author? Who owns an autonomous AI? Cogito, ergo sum?

      One does not necessarily own a monkey. What if a wild monkey creates a work of authorship. Who owns it?

      What about patents? Monkeys make tools. What if a monkey made a new tool. Could he be an inventor?

      All these are interesting questions that I think should be explored.

      1. 6.2.1

        The law (here) is for people, not wild animals or chattel.

        Volitional actions, such as the cognitive decision to bring suit, are necessarily limited to human action.


          Anon, while the law is “for people,” does the law say that monkeys cannot produce works of authorship? Clearly in the referenced thread, a monkey did create a selfie that would be copyrightable if created by a human being. Are you saying that the work is not a work of authorship because it was not created by a human being?

          Then who owns it? Can a human being that first discovers the selfie assume ownership of it? Does the owner of the monkey in question own the selfie and potentially a copyright in the work?

          I recall a similar discussion between you and me about wild animals not long ago.


            The answers you seek can come only AFTER the questions and ideas that I put on the table are recognized.

            Do you recognize the points that I make?
            Do you understand the points that I make?

            Do you acknowledge the domain of – and difference between – the law of man and the subservient nature of chattels of any kind – be it a chattel of a living thing, or a possession of a machine?

            To even approach your questions, a clear and unmistakable foundation needs to be recognized by all sides to the discussion.

            At this point, it is eminently not clear whether you have this foundational understanding.

            Can we establish your understanding at the onset of this dialogue?


              Well certainly anon.

              Was the copyright office was wrong in granting a registration to a monkey. The question is not whether a monkey can bring suit but whether the monkey is copyright owner in the first place.

              The law applies to a jurisdiction. Obviously, and I think this is obvious, animals are not subject to the law for any number of reasons, but primarily they can neither obey the law, nor are they subject to it.

              Can an animal own property? We could say it does, but in point of fact, the animal has no concept of property and could not understand that it owned anything.

              In contrast one can invest property in a trust, the title which is controlled by a trustee, for the benefit of an animal.

              But an animal cannot own anything.

              Thus I think we can agree with this: if an animal creates a work of authorship however that animal does, it either is the property of the animal’s owner. If the animal is on the land of an owner, that owner comes into ownership of the work created on his land. If the work is discovered in the public domain, perhaps the first to discover and to possess the work becomes the owner.

              So, can the initial owner of the work register it? Does it make any difference how he become the owner of the work?



                When it comes to copyright, “ownership” is not (necessarily, and often otherwise) synonymous with authorship.

                IF (and that’s a mighty big if), you “find” that non-humans can have authorship, then you do need to have a mechanism of transferring rights of authorship to the owner.

                There are nuanced differences (of course) between “ownership” as between a situation of an employer/employee and a situation of a chattel owner/chattel.

                Independent creation (by a living chattel) may indeed divest “owner of living chattel” of pure authorship.

                The situation under patent is of course also different then the situation under copyright.

                In patent, “authorship” loosely is analogous to “inventorship.”

                And this is why the area that you and Malcolm and the rest of the anti-software patent advocates refuse to engage is so important: the doctrine of inherency.

                You also (as noted below) ALSO continuously attempt to move the goalposts and insert non-legal “requirements” as to the nature of the manufacture known as software.

                You really do need to understand the basic lesson from the Grand Hall Experiment.

                There is NO “permanent attachment” legal requirement for a machine component to be attached to a larger system for that machine component to earn patent rights.

                You seem to (implicitly) fall back to some fallacy of “software is math” or “software is the thought of software” or “software is the mere execution of software” and you refuse to admit the foundational aspect of just what software really is.

                Until you treat these foundations with inte11ectual honesty, you will not be able to admit the truth of what I say, nor will you be able to have a meaningful conversation on this form of innovation.

      2. 6.2.2


        I have been wondering about that. Imagine in 20 years, Watson 10, with 2exp(10) (Moore’s Law still holding) = 1000 times the computing capacity, being asked (in natural language) to invent a better mousetrap and, having expeditiously “invented” one, being able to reduce it to practice with a connected 3D printer. Who should be named as the inventor?

        Imagine further that Watson 10 is available to persons of ordinary skill in some arts. With those as tools, everything becomes obvious except possibly identifying a problem. In response to the minuscule PTO allowance rate, applicants will hire a Watson since he/she (by then) will be much better at all aspects of searching, writing, claim drafting, and responding to Office actions. In response, the PTO will replace examiners with Watsons. Oh, well.



          It is worse than that, as you do not fully apply the necessary conclusions of such “logic.”

          That necessary conclusion being that an “entity” that can have such “standing” cannot at the same time be subject to being “owned” by another entity (slavery is illegal).

          The minute you elevate such things above the status of chattel in one regard, you necessarily elevate them across the board.

          There is a word I use that then comes into play here. For if you are indeed going to elevate machines to have the capability of “legal rights” (as your point clearly evinces that if animals, then machines of a certain type certainly follow), then that word of mine certainly becomes “at play.”

          That word…?

          Why anthropomorphication of course.

          If you** are going to purposefully ig nore the very real FACT that machines do not think – as that term is meant to distinguish between man and machine, in all of its historical glory, then you have a far FAR FAR more serious problem with ALL law – and not just patent law – on your hands.

          **the Royal You, of course.


          Troubled, interesting observation about the capabilities of computers. They seem to make us all more intelligent. With the computer we can do far more than we could do before, and this would seem the impact obviousness. If we can create some new kind of apparatus or process just by asking the computer to do so in describing the result we want, then every invention seems to be within the skill of the art.

          Imagine in court we are considering the obviousness of a particular invention. The accused infringer brings in Watson. They ask Watson to achieve a certain result. He does so, and he does so with the apparatus of the patent without any further prompting.

          Case closed.


            then every invention seems to be within the skill of the art.

            Perhaps Ned, you are a step closer to understanding why I persist in the “Big Box of Electrons, Protons, and Neutrons” extension of other people’s attempted logic (and the natural extension of THAT logic)….

            Take special care here to note the “logic” that would require treatment of the patent doctrine of inherency.

            It is a small – and subtle – “trick” to jump from the computer and the future capability that the machine component of software can bring to [Old Machine] and the lack of that selfsame future capability with the ASSumption that a computer without that actual programming change somehow “magically” must ALREADY have “in there” that untapped capability that only the addition of software provides.

            Push comes to shove Ned – and it all revolves around treating the topic with inte11ectual honesty.


              untapped capability that only the addition of software provides.

              Now tell everyone the part about how claims that recite the actual code which provides “untapped capabilities” to a real world computing device are “worthless”.

              That’s always pretty funny.


                You err on not addressing my actual post, Malcolm.

                Then you double down on mischaracterizing some “need” to have actual code in claims.

                Then you triple down with the “implication” to your usual banal “optional claim format being elevated to be the only true legal format.”

                Then you quadruple down with your not addressing the inherency doctrine, and the oft-put-to-you “tell me how [Old Box] somehow “magically” has ALL future innovation in the form of software “already in there.”

                Pretty funny…?

                Yes – just not how you think it to be (that laughter you here is not laughter with you).


              No doubt, anon, if we could agree that the programming was an integral part of a machine on a permanent basis so that users of the machine always encountered the program, we could begin to have some common ground here. But you continue to insist that you are talking about software and software is not part of the machine.



                Let me point out (again) that there is NO legal requirement anywhere for this “permanent basis” thing.

                As to your “integral part” portion, you should be aware (of course) that such IS met with software. Otherwise, software would NOT ACTUALLY work.

                Eppur si muove.

                Grand Hall Experiment.

                Show me a person who thinks that software is not manufactured to be a machine component and I will show you a person who does not understand what software is.






            Comments limited to patent and trademark law:

            Our use of Watson conjured up the problems Xerox(R) had, so I checked Watson on the PTO’s TESS. IBM filed an intent to use application for a mark, “IBM WATSON,” one with a logo and one without, in June 2011. They did not disclaim use of the word WATSON aside from use as part of the mark. But AT&T filed in March 2011 for a mark, “AT&T WATSON,” for speech recognition software and related services with a first use in commerce in February 2004. There was a civil suit that settled with IBM narrowing its description of goods and services. Currently, IBM has until the end of the year to file a Statement of Use before it is registered. So, we are OK until then, I think (ignoring common law rights).

            Paraphrasing KSR, an invention is obvious if it solves a know market need by picking from a finite number of identifiable predictable solutions. In a Watson 10 Era, finite becomes very large and everything becomes predictable. With tools like Watson, persons of ordinary skill in the art will be able to mine big data and “fit the teachings … together like pieces of a puzzle,” quoting KSR. Courts will then be able to denigrate simple chemical and aerodynamic inventions as well as simple mechanical ones as they do now. Even pharmaceuticals will become obvious.

            Enough said.

  3. 5

    Steve Jobs in his prototypical eastern guru iconic hallucination, proving the mass universal sense at the nexus of technology and design, is allowed the elaborate fetish of Apploids throwing flowers on Job’s grave like a perpetual flame. Indeed, illustrating that vital sense was a kick, but more to the point of his pseudo-yogism, he chose to freeze iterations of progress at the $800. price point v the $80, point, taxing the glory to all as it were. “They Shoot Horses Don’t They”(1969) was another illustration of a business model born to tears, like dancing with marathons.

    1. 4.1

      The (better) reference (and not created by me) is the movie 2001: A Space Odyssey, released April 2, 1968 at the Uptown Theater

      1. 4.1.1

        Hey anon,

        I can go one better, but not with respect Apple’s technology: the waterbed, which someone tried to patent in the 60’s but which was anticipated by Heinlein in his sci-fi classic, Stranger in a Strange Land.

        There may to some interesting parallels too in Asimov’s Foundation and Empire series.



          There are elements in ALL good science fiction that engage the human mind.

          This is one reason why I push the dialogue with the sAmeones here that science fiction is not prior art, but may contain non-science fiction elements, of which the elements may be prior art – and push the naysayers to try to understand exactly why this must be so.


            I assume you are referring to the screens adjacent to the food trays. Those look to me to be screens built into the table, not anything like an Ipad. Why do you think they are Ipad like?

            Remember, HAL’s memory filled a small room. If Clark had envisioned Ipad levels of miniaturization, why would HALs memory require a room and why wouldn’t they have shown Dave picking up the “pad?”


                Yes, built into the table. Is there a fault in your AE35 unit?

                The ship is full of cathode ray tubes built into the tables and work stations. Those beside the food trays appear to be no different.

                1. They’re not built into the table bro. They have little parts that stick out over the edge of the table. It’s just an old movie and you can’t see the outlines well.

                2. Les,

                  You do need to be able to use just a little bit of reason here.

                  Look again at the short portion of the film captured in the link.

                  Several items speak against “being built in.”

                  The two astronauts are “differently handed.” One is left handed and the other right handed. The placement of the items on the table reflect this. This is clearly an exception, and would not likely be countenanced in any type of “being built in.”

                  The items themselves, lack symmetry in their placement on the table – along any of the dimensions of the table. They are simply differently placed:
                  – each has a different lateral “tilt” angle to the front edge of the table
                  – the items are placed at different “breaking lines” to the edge of the table; the right has a larger corner of overlap being off the table.

                  In a portion of the view as seen in the actual movie, the items are also not built in and flush, but are resting atop the table surface.

                  I really don’t understand why you want to “fight” so hard to deny the point offered…

                3. 1. I am not fighting hard. I just don’t see what you see.

                  2. They look symetrically placed relative to the center line of the table.

                  3. The part that looks to be over the edge is a little door that appears to flip up to grant access to the controls, which are otherwise protected to allow the table to be used as a table when the screens are not in use (2001 is available now on Netflix, I took a closer look).

                  4. I don’t see the different tilt you claim to see.

                  5. Even if you perception is correct, the issue is whether there are rounded corners or not (the issue tin the Apple design patent). I can’t see a bezel (other than the table) and I sure cant see a bezel with rounded corners.

                4. … Also, why would they be walking around with Ipads? If they need information, they just ask HAL. HAL can see and hear them everywhere, that’s why they went into the pod and shut off the radio to try and have a private conversation. If they want to record information, they just tell HAL to record it. If they have Ipads, then why does Dave have a sketch pad of paper? Wouldn’t he be sketching using applepaint or something?

                  By the way…. Increment HAL by one letter in each position….

                5. …. and here is another clip showing a screen build into a desk…

                  link to

                  And I dare say, they didn’t even envision touch screens, else why would Frank have to say “Rook to King one” instead of just using his finger to move the piece.

                  If those are Ipads type devices on the dinner table, where’s the user input? Surely not those 10 or so buttons under the little flip up door… If its voice commands, then again I say, what do they need if for…. just tell it to HAL…

                6. Les,

                  Have you seen the Saturday Night Live skit? Nothing “veiled” here.

                  If you had, you would not have responded here as you have (unless, you really have no c1ue).

    1. 3.2

      State Street Bank, which held that there was no rule against business method patents, was decided in mid-1998. As those of us who were practicing them remember, it took about two years before the impact of the decision was widespread.

      The “impact of the decision”? Oh right: some activist judges drove a hole through the patent system and The Most Important People Ever (i.e., Bob and his friends who Truly Understand Innovation) still can’t figure out why nobody takes them seriously.

      1. 3.2.1


        Malcolm gloms onto the one part so obviously wrong (but wrong for a different reason, as business method patents were not from a “some activist judges drove a hole through the patent system” – since business method patents have been granted throughout the entire US patent system’s life span), and he misses the more interesting tidbit:

        a true test: a business method patent granted after Alice that overcame an Alice rejection. By my count, there are about 80 such patents thus far, and about another 90 that have been allowed. It will not be too long then before one of these patents is challenged under Section 101.


          a true test

          I’m not sure what that’s supposed to mean. Does anyone doubt that the PTO is granting ineligible patents post-Alice? The PTO’s own internal “guidelines” are inconsistent with Prometheus and Alice so they are guaranteed to get the wrong result. Of course many of those patents are going to be found ineligible when properly challenged.


            I’m not sure what that’s supposed to mean.

            Of course not, Mr. Barbarino.

            The PTO’s own internal “guidelines” are inconsistent with Prometheus and Alice so they are guaranteed to get the wrong result.

            Reminds of who exactly was the very first one to try to crow about the “great” take-away from the Office’s view on the Prometheus case with a link that was NOT what the person making the link thought that it was.

            Good times.


              Malcolm is the epitome of Jeremiah 5:21 (‘Hear now this, O foolish people, and without understanding; which have eyes, and see not; which have ears, and hear not’).

    1. 2.1

      651 B market capitalization source: google

      so 51% is what – 325 and change billion? Quite a pretty penny.

      But I also get what you are saying – must be one hell of a total on those legal fees.

      1. 2.1.1

        Yeah. I was being a little sarcastic in some regard. Just seems like a pretty hefty chunk of money between the damages owed and the legal fees racked up towards 33 appeals. Obviously not $300+ billion but you got the gist.

  4. 1

    I would just like to point out that Apple has only been thinking slightly different for years and years now.

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