Today the Supreme Court heard combined oral arguments in the willful infringement cases of:
- Halo Electronics, Inc. v. Pulse Electronics, Inc., et al. (14-1513); and
- Stryker Corporation, et al. v. Zimmer, Inc., et al. (14-1520)
- Read the transcript.
Jeffrey Wall argued on behalf of the patentee-petitioners who argued that the Federal Circuit’s limits on awarding enhanced damages is unduly rigid – especially following the Supreme Court’s Octane Fitness determination. The U.S. Government has supported the petitioners in this case and presented Assistant to the Solicitor Roman Martinez to argue as amicus curiae. Carter Phillips argued on behalf of the defendant-respondents.
Wall’s approach was to highlight the general nature of the the statute, which merely states that “the court may increase the damages up to three times the amount found or assessed.” That general statute should be contrasted with the Federal Circuit’s rule that requires separate proof of both objective and subjective willful behavior. Rather, Wall argued that we should “go back to doing a totality [of the circumstances] inquiry . . . [applying] the principles that historically guided your exercise of discretion.” Wall also pointed to the what he sees as an important factor in the analysis: that “a patent lawyer can virtually always come up with some non-frivolous defense in litigation” and, that fact makes is virtually impossible to prove that the infringement was objectively reckless. The U.S. Government agreed that the objectively reasonable defense “creates an arbitrary loophole that allows some of the most egregious infringers to escape enhanced damages.”
MR. MARTINEZ: So recklessness, everyone agrees, is an objective inquiry. And in every other area of law where courts are conducting an objective inquiry, what you what you’re supposed to do is you’re supposed to take a reasonable man, and you put him in the the actual person who is accused of wrongdoing, in his shoes. And you take what that actual person knew, and you figure out whether a reasonable man in that person’s shoes would have thought that there was a very high risk that the conduct at issue was unlawful.
And what the Federal Circuit does is not that. What they are essentially doing is taking the reasonable man and giving him the benefit of omniscience, giving him the benefit of hindsight and saying, what facts do we know at the time of trial? And now that we know these facts at the time of trial, . . .
JUSTICE BREYER: I didn’t think they were doing that. I thought what they were doing was saying, we are not going to allow punitive damages in a case where the patent is so weak.
. . . .
MR. MARTINEZ: I think it’s possible to imagine let me let me make it concrete.
Imagine a case in which there’s intentional violation or a reckless violation based on the facts known at the time. And later the … infringer is sued, and he hires a law firm that scours the world, and they find the library in Germany that has a Ph.D. dissertation that has some [publication] that arguably anticipated the invention at issue. So that’s a new fact. It wasn’t in anyone’s head. No one was aware of it at the time the infringement occurred. And maybe that law firm then puts together a reasonable but wrong theory under which the patent is invalid in light of that prior art. We think that’s a case in which the the conduct was culpable at the time of of infringement, and we think that’s a case that would warrant enhanced damages.
. . .
MR. PHILLIPS: We’re not talking about a situation here where it’s obvious when something is infringed. There are thousands of patents, hundreds of thousands of patents. There are lots of entities creating new products every day, new services,
. . . .
MR. WALL: [W]e and the PTO and many of Respondents’ amici recognize, the system as it currently stands is out of balance. And we have tried, and I believe we have succeeded, in crafting an approach that balances the Court’s concerns with the need to respect the rights of patentees, including small companies like Halo.
Justice Breyer offered some concern for software companies being accused of infringing weak patents:
MR. WALL: Justice Breyer, the sky didn’t fall for a century and a half, and it’s not going to fall if you reverse the Federal Circuit’s framework, just as it didn’t fall after Octane and Highmark in the fees context.
JUSTICE BREYER: It hasn’t fallen? Go look at the market shares of the different companies that are seriously involved in software. . . . I think it’s unfortunate that Congress hasn’t passed a special regime for those kinds of patents, but they haven’t.
. . .
MR. PHILLIPS: This is not a classic copying case. I mean, in a lot of ways this case comes down to sort of trolls versus pirates in terms of how you want to analyze it.
. . . .
JUSTICE SOTOMAYOR: Mr. Phillips, there’s a whole lot of worry articulated by Justice Breyer and reflected in your briefs about protecting innovation.But there’s not a whole lot of worry about protecting the patent owner. I can’t forget that historically enhanced damages were automatic, and they were automatic because of a policy judgment that owning a patent entitled you to not have people infringe willfully or not willfully. And I accept that at some point there was a different judgment made that that goodfaith infringers should be treated differently than other infringers, willful infringers.
But I don’t know that that swung things so far the other way that it can only be that, if you come up with something, any defense whatsoever in the litigation that’s not frivolous, that that gets you out of enhanced damages.
Some of the conversation focused on the replacement test:
JUSTICE SOTOMAYOR: It can’t be that they can give enhanced penalties on whim.
MR. WALL: That’s right.
JUSTICE SOTOMAYOR: All right? So if it’s not whim, what is it? How do we articulate a test that protects what Justice Breyer is concerned about, which I think is a legitimate concern, but doesn’t entrench a position that just favors you?
MR. WALL: We think the statute was invoked for various purposes, not just to punish infringement. . . . [W]hat the parties are really debating is the nature of the infringement. That needs to be intentional or reckless based on the facts as they were known to the infringer. . . . the strength of the notice . . . Reed factors . . .
JUSTICE SOTOMAYOR: I Don’t want to adopt that test. How do I articulate this in a more generalized way?
MR. WALL: I think what you would say is that in judging whether a reasonable person would have thought that there was a really high risk, you’ve got to take account of both the strength of the notice, what kind of notice were they on of the patent, and what would have been commercially reasonable in the industry as it exists. And I think that those factors and those limitations are going to take account of the vast bulk of what Justice Breyer and what Respondents are are concerned about.
. . . .
MR. PHILLIPS: [Good luck finding] tort cases in which the eggshell plaintiff gets punitive damages because the defendant overreacted.
In addition to the elements of the test, the court is also addressing the standards of proof and review.
JUSTICE GINSBURG: Can we at least peel off the clear and convincing evidence that seems to come out of nowhere and the standard of de novo review rather than abuse of discretion?
MR. PHILLIPS: I would desperately ask you not to take out de novo review because we’re talking about an objective standard; it’s really almost it’s essentially a question of law. The issue is, is there an objectively reasonable basis for what’s been done here? [and clear and convincing evidence standard is dicta to this case]
. . . .
JUSTICE GINSBURG: You care about de novo review in the Federal Circuit rather than testing the district court’s determination for abuse of discretion.
A substantial amount of example-time focused on “copying”, which Mr. Wall identified as the “typical” case and the extent that enhanced damages should be limited to “willful” behavior.
For this case, it appears likely that the majority will overrule Seagate but the question remains open as to what will be the replacement rule.
OT, but hey at 200 comments, who is going to mind….
Greg Aharonian has been somewhat quite of late – but let’s loose in his email today.
That email is absolutely scathing and captures and reflects plenty of the anti-patent, anti-software patent “logic” that (and just for DanH) the sAmeones love to peddle here in their inte11ectually dishonest windmill chases.
Worth getting on his email list for.
Greg changed this to reflect the Court, but it applies to certain posters here who like to think in vacuums….
link to dilbert.com
😉
This just in – people who profited from a previously broken system don’t want the rules that should have always been in place (pre-Alice, etc.) enforced.
It’s why nobody should listen to patent attorneys about what the patent system should look like.
That’s not really true. As long as the patent system exists, someone will make a profit. The problem currently from my perspective is that Alice made it much more difficult to determine what is and what is not patentable. I often look at claims now and have no idea whether they’re patentable or not under Alice. And the PTO seems to be the same, as I see claims I think could have Alice rejections on them but do not and claims that should not have Alice rejections on them but do. I’ve had basically the same claims allowed under Alice and rejected under Alice by two different Examiners. Why? Because no one can figure out what Alice says.
If the Supreme Court wants to say that software (or data processing or whatever) is not patentable (whatever “software” is considered to be), they should come out and say that. They shouldn’t couch it in opaque language that makes no sense even after reading it 10 times.
Let’s face it: The Court made up rules to try to get rid of patent tr olls. Meanwhile, they just made it more difficult for others to determine what can and cannot be patented.
“That’s not really true. As long as the patent system exists, someone will make a profit.”
Well, that’s a vague statement. But yes, the question is who should make a profit. And the answer is that people who should make a profit are people who promote progress in the useful arts and sciences, as per the Constitution.
But you don’t think that under the system pre-Alice (and maybe currently, even), that people who didn’t promote progress in the arts and sciences were able to profit by getting claims that covered things they did not invent?
“by getting claims that covered things they did not invent?”
Different question of law, friend.
It comes down to having the proper means to arrive at whatever ends that you want to arrive at.
The means were already there. 101, 112, 102, 103.
They just weren’t being properly applied.
“They just weren’t being properly applied.”
I have to wonder whether you understand the full impact of that problem.
“anon” I have to wonder whether you understand the full impact of that problem.
In any event, we can all rest assured he understands far more than you do.
Oh, and by the way: Greg Aharonian called. He wants to know if you’ll do his laundry in addition to the boot shining.
There is zero reason to believe that he understands the full impact.
You have a problem with Greg’s point of view?
(lulz)
(maybe this is one of those “cohorts” thingies…)
What a putz.
Indeed I do; one of the largest impacts of that problem is that patents that should never have been granted were granted, with disastrous economic results.
Part of this is because of erroneous, rigid tests laid out by courts that are easy to circumvent, which, although they have been overturned, are still over relied upon.
Part of this is because of the examination process. Examiners should be finders of facts, who then apply those facts. Not keyword searchers with no relevant experience in their area of examination who string together rejections using rigid TSM rationales to build up to the claimed invention, bit by bit.
Nope – all of your “part of’s” are only in one direction.
The full impact also goes in the other direction, friend.
So, people are going to tank good patents by just declaring them to be abstract, because there is no objective test laid out?
Patent Bob, if your problem with Alice is “abstract,” the problem is really with Bilski and what the court there meant. Even as observed by Stevens in dissent, no one knew precisely why the claims in that case where held to be ineligible. Thus no one had a clue as to what abstract meant.
I agree Ned, but MM does not. Does abstraction exist without a mind to apprehend it? To me, it does not.
Context also matters. There is a difference between a thing being wholly abstract by its nature or a partial abstraction described in abstract terms, even if they may both be intangible. Mere intangibility cannot mean total abstraction for legal purposes.
The judicial exception for abstract ideas should reflect that difference.
Martin Snyder: There is a difference between a thing being wholly abstract by its nature or a partial abstraction described in abstract terms, even if they may both be intangible.
Tell everyone what the difference is, Martin. Use a simple example with two intangibles to make your point. As it stands, it reads like gibberish.
The judicial exception for abstract ideas should reflect that difference.
Because you say so?
Yes, because I say so- that’s what a person means when they say something or other “should” be.
I’ve made it clear that I think human consumption of information is THE test at eligibility. See these three examples, upon your request MM-
A new, useful described method that represents an actual invention. It’s intangible. It was found abstract, so ineligible. In my opinion, it should not have been, because the phone switch gear is the consumer of the information:
US 7,346,156 B1 “Methods and apparatuses for placing a telephone call”
1. A method comprising: detecting an identity of a caller;
receiving an assigned incoming telephone number;
identifying a recipient associated with the assigned incoming telephone number and the identity; and
connecting the caller and the recipient, wherein said caller has a plurality of assigned incoming telephone numbers to choose from, at least one of said plurality of assigned incoming telephone numbers being associated with said recipient, wherein each assigned incoming telephone number is associated with multiple recipient telephone numbers, a particular telephone number of a recipient being determined solely by a particular assigned incoming telephone number used by a particular identified caller and without input of further data by said caller, whereby said caller is not required to be within a particular network for making calls.
Here is an old, useful method (keywords) . It’s intangible. It was found non-abstract, thus eligible, and should not have been. It should not have failed for mere intangibility, but for obviousness and anticipation.
US 7,873,665 “Method for Digitally Labeling Websites”
1. A method for multi-parameter digital labelling of Internet Websites, comprising:
gathering of unambiguous, multi-parameter qualitative data concerning a single or a plurality of at least one of an Internet website, an Internet posting, their substantive contents, and their owner or creator;
sourcing, from the owner or creator of said website or Internet posting, each said item of qualitative data referring to said website, said internet posting, or its substantive contents or its owner or creator;
producing a plurality of digital labels for each said website or internet posting, wherein each digital label uniquely refers to and represents a particular item of qualitative information;
wherein producing of digital labels further comprises encoding of the qualitative data in any digital form;
domiciling of these multi-parameter digital labels on at least one of the same computer, the same computer network, and on several computers linked to each other;
manipulation of the said multi-parameter digital labels comprising generation of a list of at least one of websites and Internet postings that match parameters stipulated by an entity conducting a search and represented in the digital labels according to at least one of the presence of, the absence of, the numerical or other value contained in, the numerical or other value not contained in, any one, all, and any configuration of the labels that have reference to one or more websites or Internet postings; and
making available the effective use of these multi-parameter digital labels and the means for their manipulation, to the general public through the Internet.
Here is a a method neither fully described, nor tangible, that was properly found to be ineligible. This was claimed at a level of an idea, not as a useful invention.
8,271,974 “Cloud computing lifecycle management for N-tier applications”
1. A method for managing a cloud computing environment for use by a software application comprising:
determining a requested initial cloud environment based on user-defined provisioning information, where the requested initial cloud environment is not yet instantiated and is an N-tier computing environment;
sending an initialization event based on the requested initial cloud environment, where the initialization event is configured to cause an initial cloud environment configuration to be made available to an application;
sending application data that is configured to cause the application to begin execution in the initial cloud environment configuration;
receiving monitoring environment data that represents a current cloud environment state;
determining a requested adjusted cloud environment based on the monitoring environment data, where the requested adjusted cloud environment is an N-tier computing environment; and
sending a cloud environment adjustment event based on the requested adjusted cloud environment, where the cloud environment adjustment event is configured to cause an adjusted cloud environment configuration to be made available to the application.
For once MM, why don’t YOU try to find some rhyme or reason in these outcomes?
“For once MM, why don’t YOU try to find some rhyme or reason in these outcomes?”
Mr. Snyder, are you expecting anything other than the standard short script reply from Malcolm? Some actual cognition and alignment with either the law or with your alternative view? Some actual structure of a system that does more than merely say “all software is per se ineligible” based on a mere feeling and lacking any touch with the reality of what software actually is (and not some hapless regurgitation that “software is logic,” “software is math,” or “software is no different than a book”)…?
Will you be disappointed by the absence of a meaningful reply from Malcolm?
(I suggest that you do not hold your breath)
PB: I often look at claims now and have no idea whether they’re patentable or not under Alice.
Maybe you should find a job that you’re competent at.
…or at a minimum, one that does not cause severe cognitive dissonance because of your belief systems that patents as property or (gasp) enforcing those property rights are “bad.”
😉
“It’s why nobody should listen to patent attorneys about what the patent system should look like.”
Your little hissy fit speaks for itself, as below you ask “You sure that you are a patent attorney?” – and apparently, you have already made up your (closed) mind about patent attorneys – with the kool-aid version that we are all G-g-g-grifters and such.
It is no surprise to see the Malcolm Echoes here, as Malcolm (ironically) has set himself up as the Donald Trump of patent bashing.
Saw a meme criticizing Mr. Trump’s quote of:
“I love the poorly educated”
and was immediately reminded of out sunglasses bespeckeld friend as well as others that carry a disdain for the terrain of patent law.
The article by Asimov can be readily adapted to such echoes and those that “love” them:
link to media.aphelis.net
“Your little hissy fit speaks for itself”
It’s ironic because if you read your comment, it’s pretty clear that you’re the one having a coniption.
Is this meta-humor, are you really this stup1d?
“Is this meta-humor, are you really this stup1d?”
Neither.
And I am simply not the one having a coniption. I clearly point out your predisposition and clearly point out that you fit a certain mindlessness type on law that you really just don’t care to understand.
There is no irony as you would have it.
anonymous Is this meta-humor, are you really this stup1d?
He’s a clinical narcissist and incredibly st 00pit on top of that.
…and there is Malcolm and his AccuseOthersOfThatWhichMalcolmDoes – 10 years out in front and all.
“anon” Saw a meme criticizing Mr. Trump’s quote of:
“I love the poorly educated”
and was immediately reminded of out sunglasses bespeckeld friend as well as others that carry a disdain for the terrain of patent law.
Because “anon”, NWPA and PB are so plainly the best and brightest that the legal profession has to offer.
LOLOLOLOLOLOLOLOLOLLOLOLOLOLOL
Laugh as much as you want, Herr Trump of the Patent World.
Man, does that fit you!
Just read these oral arguments and you know why the Senate doesn’t want to deal with an appointment now. The justices have decided they are the overlords to make laws. What we really need is to remove all eight of them and get new ones that want to apply laws and stick to the Constitution.
So, this is not a one-way street. The politicians aren’t willing to follow the Constitution because the justices aren’t following the Constitution. My prediction is that things are going to get a lot worse.
Aren’t following the constitution… ha.
“To promote the Progress of Science and useful Arts…”
Seems like the defenders of junk patents are the ones not following the Constitution. Junk patents do not promote the progress of science and the useful arts.
Breyer >>We have decided to patent tens of thousands of software products and similar things where hardly anyone knows what the patent’s
really about. A company that’s a startup, a small company, once it gets a
letter, cannot afford to pay 10,000 to $100,000 for a letter from Counsel,
and may be willing to run its chances. You start saying, little company,
you must pay 10,000 to $100,000 to get a letter, lest you get willful
damages against you should your bet be wrong.
First, how in the world would Breyer know anything about what actually goes on with small companies or with patents? He doesn’t. This is pure fabrication from a completely ignorant person that is twisting around abstract ideas Google feed him.
Second, the reality of small companies is that when they get such a letter it isn’t that hard for a technical person to read the patent and figure out if it is what they are doing. In fact, there has been a great learning curve where technical people are getting very good at reading patents.
Third, more like 100’s of thousands. And, the people that work in those areas understand what the patent is about. I think our philosopher doesn’t realize that software and the other areas is more than a trillion dollar industry and growing rapidly.
What is so strange about all this is that anyone that knows science and technology knows that computer science is one of the hardest fields if not the hardest field to study. And, they know that the problems of information processing are daunting with so many that are unsolved and if solve would revolutionize information processing.
Yet, Breyer spouts off with no basis for any of his opinions, and yet is just so sure he understands everything. Please retire. Please. You are a detriment to this country.
Breyer>>And when you have tens or hundreds of thousands of patents on software by other companies, that means we can’t break
in.
I work with software start-ups and don’t see this. I see people that think they have invented things that have been around a long time run into trouble. Breyer also forgets that patents expire. Breyer is just unbelievable the way he has this whole model of technology, innovation, and business that he is just so sure is right when he actually has zero experience and zero education that would provide a base for him to even form an opinion. Breyer has to be one of the worse minds that has even been on the SCOTUS.
Anything that is odd about this is that the AIA made a patent 10 times more expensive to through an IPR. Yet Breyer is concerned about $10,000 to get a letter. Unbelievable. Patents are a cost to the system. But, Breyer has no way of evaluating the benefits. And no way of even remotely understanding them. Please retire Breyer.
Breyer is even saying that strong software patents will help Google be a monopoly. Completely backwards.
Thus my Orwellian comment below….
Agreed. Breyer is just the worst – on every level.
“Anything that is odd about this is that the AIA made a patent 10 times more expensive to through an IPR. Yet Breyer is concerned about $10,000 to get a letter. Unbelievable. Patents are a cost to the system. But, Breyer has no way of evaluating the benefits. And no way of even remotely understanding them. Please retire Breyer.”
The sense of entitlement is strong in this one.
…and there we have 6, trying yet again to be a smart arse with the play on words of “entitlement”….
6 – even with your attempted negative spin, are you saying that that “sense” that you are commenting on is NOT proper under the law?
Is it “bad” that “The sense of entitlement is strong in this one“….?
Or is it “bad” that we have a Justice from the bench apparently attempting to deny what is rightfully due – “sense of entitlement” or not…?
Maybe you want to try to speak to the underlying substantive point and not just play the F001….
“6 – even with your attempted negative spin, are you saying that that “sense” that you are commenting on is NOT proper under the law?”
Nah. I’m just pointing it out. It just seems to me like Breyer is legit worried about people sending out “demand letters” that spark 10k in initial defense being needed. That’s a lot of dough bro, especially times the thousands of demand letters sent out. Millions of dollars removed from start ups. For nothing but sheets of paper.
“Or is it “bad” that we have a Justice from the bench apparently attempting to deny what is rightfully due – “sense of entitlement” or not…?”
I don’t know that such is what he is doing.
“Nah. I’m just pointing it out.”
Thank you Captain Obvious for “pointing out” what was directly said.
However, as I noted, your statement is more than just “pointing out” something as it is just not congruent with your own previous statements on entitlements.
Now that you have pointed it out, please go ahead and answer my questions to you, sine you still seem to “feel” “It just seems to me like Breyer is legit worried”
You want “legit” on a decidedly anti-patent leaning – and directly against your OWN foundation for playing coy with “entitlement.”
Even if you “don’t know such” about Breyer’s leanings – you STILL have no small matter to explain how your own coy use of “entitlement” is directly at odds with your posts here.
Please square your contradictory comments (or feel free to just admit that you were just being an arse and shamelessly tr011ing Night Writer).
“anon” shamelessly tr011ing Night Writer
Aw, it’s so cute when the bffs stick up for each other.
Poor NWPA. He’s so thoughtful, gentlemanly and civilized. Why would anyone pick on him?
I don’t even know what you’re talking about. You seem to just be rambling on about something that exists solely in your mind brain that nobody else even knows about.
“Poor NWPA. He’s so thoughtful, gentlemanly and civilized. Why would anyone pick on him?”
I know right? And I thought I was pretty tame with NWPA. I was just pointing out that he seemed to have a very entitled attitude.
^^^ because when Malcolm or one of the echoes does this, Prof. Crouch does not seem to mind….
Gee, no problem with that perception….
/off sardonic bemusement
“But, Breyer has no way of evaluating the benefits. ”
What benefits are there to patents that have claims so vague and abstract that you can’t even decipher what the patent covers?
“What benefits are there to patents that have claims so vague and abstract that you can’t even decipher what the patent covers?”
Money in NWPA’s pockets of course. And his clients. Obviously.
“Money in…”
LOL – another “just an observation” eh 6?
No attempt to denigrate with the “G-g-grifters” theme…?
You want to know what is really obvious with your comments?
The “there is a patent and thus we cannot break in” is – at its core – applicable to ALL areas that patents cover, and is in truth an anti-patent statement.
If mere “breaking-in” is to be exalted over what the Quid Pro Quo is intended to be (that is, to prevent “breaking-in” by providing the exclusive right in the first place), then what Justice Breyer is really advocating from the Bench is to strike that part of the Constitution that provides the Legislative Branch with the authority to set up the patent system ab initio.
“The “there is a patent and thus we cannot break in” is – at its core – applicable to ALL areas that patents cover, and is in truth an anti-patent statement.”
Yes somewhat that is true anon, but in other areas of patents you generally do not get that many patents that are quite so sweepingly broad as to cover an entire business plan, or tangentially impact business plans that aren’t even related to the patented invention but just use some piece of equipment (like a printer as in those printer troll letter writing demand cases) on the side. This issue of course is due to how business methods and software patents are being permitted to be written while the office clamps down on other arts. Though of late the office itself seems to be opening up the ol functional gates in other areas also, so shortly we might start seeing this same issue rear its head in other arts more and more.
“If mere “breaking-in” is to be exalted over what the Quid Pro Quo is intended to be (that is, to prevent “breaking-in” by providing the exclusive right in the first place), then what Justice Breyer is really advocating from the Bench is to strike that part of the Constitution that provides the Legislative Branch with the authority to set up the patent system ab initio.”
Anon, the court cannot allow legal interpretations that would lead to blatant injustice when there are perfectly good legal interpretations that do not lead to blatant injustice. I know you have a suuuuuper hard time understanding that the court is a part of the government (as in, the thing that governs the people and actually has to govern), but it is so. Sure, that might be because of your OCPD making you see things in black/white, but that’s just the way things are in the real world outside your mind brain whether your mind can properly process them or not.
Night, a Supreme Court that ignores the words of a statute (Obamacare II), that makes things up to justify social engineering (right of privacy is there — so that we can rule on abortion and marriage), is a court that really is out of control . But because the Court is benefiting the liberal agenda when it does so, we hear not one peep from the left.
But when it rules against business method patents, it suddenly is way out of control? The hypocrisy of the complainers is quite apparent.
Ned,
Your “Left” versus “Right” view and being anti-business method patent just does not reach.
Here is why:
BOTH the Left and the Right (gen erally – see caveat below) are against patents (including business method patents).
The Left: is against any type of newly granted personal property.
The Right is against anyone else’s personal property (that is not theirs) that can threaten their established power base.
The caveat: Of course, this version of the Right is not fully synonymous with the political Right, but is more reflective of the monied and established Big Corp Right.
If you can grasp this, then your “black and white” portrayal can be seen to be critically flawed.
I agree Ned. Actually, if you want to watch a pivotal moment in the history of the USA, watch the Bork hearings lead by our current V.P. Biden. Bork goes into detail why the right of privacy is so problematic. But, the reason this is a pivotal moment in US history is that this was the last nominee that was honest in a hearing. After the Bork hearings all the nominees stonewalled or fabricated nonsense. So, yes, Biden is one of the great destroyers of our democracy.
(But, it is ironic that you say these things and then don’t acknowledge that the “abstract” word of Alice is really another “right of privacy.”)
Correct me if I am wrong, but no one on the Supreme Court or even among the attorneys arguing, talked about the problem caused by patenting “abstract” subject matter. They talked about software and business methods.
Am I right?
ur right.
Ned, you are not right and have to be corrected.
Leastwise as your typical windmill chase would have it.
Below, PatentBob moves to talking about the Alice case, but Ned (at least it appears) is not talking about that case, but instead appears to be talking (on point) to the oral argument transcript of the Halo/Stryker arguments.
In the Halo/Stryker transcript there is NO talk of business method patents.
Period.
In the Halo/Stryker transcript, the talk about software patents is limited. As I noted, even that talk indicates a desire to eliminate the concept of patents: the argument by Breyer has nothing to do with any particulars of the specified Art, and simply hews more to the “those without patents cannot break in” view. This is a truism about ALL patents. What Justice Breyer states thus is a statement about ALL patents.
With a “friend of the patent system” like that, who needs enemies?
The word “software” does not appear in Alice Corp. v. CLS Bank Int’l, 110 USPQ2d 1976 (U.S. 2014). So, the Supreme Court did not “discuss” software in that case.
“So, the Supreme Court did not “discuss” software in that case.”
The whole case is about software numbskull. It is literally software that was accused of being infringing.
You are too quick to use the label of “numbskull” and quite miss the point that PatentBob has made.
Instead of reacting so quickly, T H I N K for a moment and realize what PatentBob’s post actually means, and ask yourself why did the Court actually refrain from even using the word “software.”
Critical thinking 6 – it is an important skill to use in these conversations (instead of the dull-witted quick ad hominem from you while you miss the point under discussion)
“You are too quick to use the label of “numbskull” and quite miss the point that PatentBob has made.”
I know the “point” he made, and it’s a stu pid one because the whole case was about software.
“and realize what PatentBob’s post actually means,”
It means he’s an idio t. In the literal sense of the word.
You still miss the point – it is clearly the contrast about what the case was about and the LACK of the Court in using direct words concerning what the case was about.
You accuse of that which you persist in being yourself.
Put your “mind” and effort in trying to explain why the Court would avoid using even once the very word that the case was about – instead of the stream of ad hominem and nothing else that issues from you.
I predict 8-0 overturning CAFC, setting the standard as ‘exceptional’ and allowing district judges discretion, with abuse of discretion as the standard of review. They will do this to intuitively balance Sections 285 and 284 in concept and effect because even though the language is vague and different in both statues, the underlying intent of Congress was likely very similar in both sections to give judges discretion to respond to the facts of any given case on the key issues of fee awards and punitive damages, recognizing that IP torts a different species in the way actor’s perceptions of risk unfold with events.
Cool. A predication. Have to look at it to compete.
Some of the issues are: (1) whether a good faith belief that a patent is invalid is enough; (2) when can that good faith belief be documented.
One odd thing is that they have this pirate vs. troll dichotomy. So according to the legislators like Roberts if you are a NPE and write a letter to someone you are a troll, which makes Tesla a troll.
My guess right now, (didn’t really have time to form a full opinion) is that it will not exclude any type of evidence and be very much like Alice where the district judge has a wide discretion based on psychotic musings.
Great write-up by Ronald Mann over at SCOTUSBlog, reaching a conclusion similar to the one reached by Dennis:
link to scotusblog.com
About the most that can be said is that the Court as a whole seems unlikely to affirm the Federal Circuit’s reasoning. My best guess would predict a somewhat split opinion – nothing new there in Supreme Court patent cases – that on the one hand commends the issue largely to the district court’s discretion but on the other offers some strong “guidance” responsive to the various concerns that Justices Breyer, Kagan, and Sotomayor pressed during the argument.
I also hope that the likes of Night, who favor “information processing” patents not limited to improving technology, but to improving business methods, understand that the Court really understands the damage caused by State Street Bank, and the thinking of the Federal Circuit that lead us down THAT path. It is their thinking that is beyond the pale.
I think most of the judges on the Federal Circuit understand that the Supreme Court is serious about “software patents.” If any Federal Circuit judges are bitter clingers to the Rich era, the oral argument here would be quite informative.
“the oral argument here would be quite informative.”
Those do not support the view as advanced by Malcolm, 6 and now Ned.
LOL – yep, the selfsame sAme ones….