Pending Supreme Court Patent Cases 2016 (April 18 Update)

by Dennis Crouch

Cuozzo: Prof Mann provides his preview of the April 25 oral arguments in Cuozzo v. Lee; and Cuozzo has filed its reply brief. Neither document address my the mootness concern regarding Cuozzo’s demand for an ordinary construction of claim terms rather than their broadest reasonable interpretation.  As far as I have seen, nothing in the record suggests that a change in claim interpretation standard would alter the PTO’s determination.

Following its April 15 Conference, the Supreme Court denied certiorari in a set of cases, including Vermont v. MPHJLimelight v. Akamai; Hemopet v. Hill’s Pet Nutrition; and Tas v. Beachy. In its April 1 Conference, the Court denied cert in Retirement Capital v. US Bancorp. That case had questioned whether subject matter eligibility under 35 U.S.C. § 101 is a ground specified as a condition for patentability under 35 U.S.C. § 282(b)(2).

The only patent cases surviving the April 15 conference are (1) Interval Licensing v. Lee that asks the same question as Cuozzo: Can the Patent and Trademark Office appropriately apply the “broadest reasonable interpretation” standard in construing patent claims in post-grant validity challenges?; and (2) Medinol v. Cordis that focuses on whether “the equitable defense of laches [may be used to] bar legal claims for damages that are timely under the express terms of the Patent Act.”   Medinol is conceptually linked to the SCA Hygiene case that also raises the laches issue. The court will consider both cases in its April 22 conference and may likely couple the decision to grant/deny.  The court is also scheduled to consider Cloud Satchel (abstract idea eligibility) and Globus Medical (appellate jurisdiction) at Friday’s conference. Neither of these cases offer much hope for the respective petitioner.

In Cooper v. Lee, the US Government filed its brief opposing certiorari. The government argues that Cooper’s Article III challenge to the IPR system “lack’s merit.”

[P]atents are quintessential “public rights” whose issuance and cancellation Congress may permissible entrust to a non-Article III tribunal. . . . Pursuant to its constitutional authority to “promote the Progress of Science and useful Arts” by establishing a patent system, Congress created the PTO – an agency with “special expertise in evaluating patent applications.” Kappos v. Hyatt, 132 S. Ct. 1690 (2012). It directed that agency to issue a patent if “it appears that the applicant is entitled to a patent” under standards set by federal law, 35 U.S.C. 131. Patents are accordingly rights that “exist only by virtue of statute.” Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 229 n.5 (1964). They “dispose of public rights held by the government on behalf of the people.” Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 849 n.2 (2015) (Thomas, J., dissenting).

The government also argues that the posture of the case lacks merits – in particular that Cooper’s collateral challenge to the procedures doesn’t work.  Cooper has argued that “inter partes review violates Article III of the Constitution by authorizing an Executive Branch agency, rather than a court, to invalidate a previously issued patent.”

Daniel Bohnen has filed a brief on behalf of UK’s Chartered Institute of Patent Attorneys (CIPA) in support of the Sequenom v. Ariosa petition.   The brief argues that the court should look to “maintain international harmonisation in the law of patent-eligibility.”[AriosaCIPA].  More briefs in support of the petitioner are expected this week as is Ariosa’s opposition brief (if any).

Finally, Nova has filed its opposition in Dow v. Nova and is attempting to refocus attention on the merits of the indefiniteness decision rather than the procedure for reaching that decision.  The difference in question presented is interesting:

Dow: Whether factual findings underlying a district court’s determination on the definiteness of a patent claim under the Patent Act, 35 U.S.C. 112, like a district court’s factual findings underlying construction of a patent claim, are subject to appellate review only for clear error or substantial evidence rather than de novo review.

Nova: Whether the court of appeals correctly invalidated Dow’s patent claims as indefinite under 35 U.S.C. § 112.

Explaining its shift of the question, Nova argues that “Dow’s petition rests on a false premise that the Federal Circuit refuses to give deference to factual findings” that underlie the definiteness determination.  Nova is correct as to the Federal Circuit’s position — the only question here is whether the Supreme Court will order the appellate court to follow its own law in this case. [DowPetition][NovaOpposition]

The big list:

1. Petitions Granted:

2. Petitions Granted with immediate Vacatur and Remand (GVR)

3. Petitions for Writ of Certiorari Pending:

  • LachesMedinol Ltd. v. Cordis Corporation, et al., No. 15-998
  • LachesSCA Hygiene Products Aktiebolag, et al. v. First Quality Baby Products, LLC, et al., No. 15-927 (three amici filed in support)
  • IndefinitenessThe Dow Chemical Company v. Nova Chemicals Corporation (Canada), et al., No. 15-1160 (standard for appellate review of jury verdict of definiteness that is inherently based upon the jury’s factual findings) [DowPetition]
  • Exhaustion: Impression Products, Inc. v. Lexmark International, Inc., No. 15-1189 (unreasonable restraints on downstream uses)
  • Obviousness: Cubist Pharmaceuticals, Inc. v. Hospira, Inc., No. 15-1210 (bright line limits on secondary indicia of nonobviousness) [CubistPetition]
  • Post Grant Admin: Versata v. SAP, No. 15-1145 (scope of CBM review)
  • Post Grant AdminCooper v. Lee, No. 15-955 (whether IPRs violate Separation of Powers; two amici now filed in support)
  • Post Grant AdminClick-to-Call Tech, LP v. Oracale Corp., No. 15-1014 (Same questions as Cuozzo and now-dismissed Achates v. Apple)
  • Post Grant Admin: GEA Process Engineering, Inc. v. Steuben Foods, Inc., No. 15-1075 (Flip-side of Cuozzo: Can there be no appeal when the PTAB exceeds its authority by terminating an instituted IPR proceeding?)
  • Post Grant AdminInterval Licensing LLC v. Michelle K. Lee, No. 15-716 (Can the Patent and Trademark Office appropriately apply the “broadest reasonable interpretation” standard in construing patent claims in post-grant validity challenges?)
  • Post Grant Admin: Stephenson v. Game Show Network, LLC, et al., No. 15-1187 (is BRI proper for IPR validity challenges?; Same as Cuozzo) [GameShowNetworkPetition]
  • Biologics Notice of Commercial Marketing: Sandoz Inc. v. Amgen Inc., et al., No. 15-1039 (Does the notice requirement of the BPCIA create an effective six-month exclusivity post-FDA approval?) (cross-petition asks for recourse on failure to dance).
  • Design Patents: Systems, Inc. v. Nordock, Inc., No. 15-978 (design patent damage calculations – similar issues as Samsung v. Apple)
  • InducementLife Technologies Corporation, et al. v. Promega Corporation, No. 14-1538 (whether an entity can “induce itself” under 271(f)(1))(CVSG, awaiting government brief)
  • Preclusion or JurisdictionGlobus Medical, Inc. v. Sabatino Bianco, No. 15-1203 (Appellate jurisdiction of the Federal Circuit) [GlobusMedicalPetition]
  • Eligibility Challenges: Sequenom, Inc. v. Ariosa Diagnostics, Inc., et al., No. 15-1182 (scope of the natural phenomenon eligibility exclusion)
  • Eligibility Challenges: Cloud Satchel, LLC v. Barnes & Noble, Inc., et al., No. 15-1161 (abstract idea eligibility) [CloudSatchelPetition]
  • Eligibility Challenges: Vehicle Intelligence and Safety LLC v. Mercedes-Benz USA, LLC, et al., No. 15-1201 (abstract idea eligibility) [VehicleIntelligencePetition]
  • Damages: Innovention Toys, LLC v. MGA Entertainment, Inc., et al., No. 15-635 (Stryker/Halo follow-on – potential wait-and-see)
  • DamagesWesternGeco LLC v. ION Geophysical Corporation, No. 15-1085 (consequential lost-profit damages for infringement under Section 271(f))

4. Petitions for Writ of Certiorari Denied or Dismissed:

  • Limelight Networks, Inc. v. Akamai Technologies, Inc., et al., No. 15-993 (can a defendant be held liable for the collective performance of method steps by multiple independent parties?)
  • Hemopet v. Hill’s Pet Nutrition, Inc., No. 15-1062 (natural phenom case of tailoring a diet to a pet’s genomic characteristics)
  • Tas v. Beach, No. 15-1089 (written description requirement for new drug treatments)
  • Retirement Capital Access Management Company, LLC v. U.S. Bancorp, et al., No. 15-591 (Whether subject matter eligibility under 35 U.S.C. § 101 is a ground specified as a condition for patentability under 35 U.S.C. § 282(b)(2))
  • Vermont v. MPHJ Technology Investments, LLC, No. 15-838 (Federal court jurisdiction in anti-troll consumer protection case)
  • Daiichi Sankyo Company, Ltd. v. Michelle K. Lee, No. 15-652 (Patent Term Adjustment – whether the 180 day deadline applies; could bleed into admin law issues)
  • Parkervision, Inc. v. Qualcomm Incorporated, No. 15-1092 (“Whether and under what circumstances an inconsistency in expert testimony permits a court to set aside a jury verdict and grant the losing party judgment as a matter of law.”)
  • Joao Bock Transaction Systems, LLC v. Jack Henry & Associates, Inc., No. 15-974 (defining an abstract idea)
  • Biogen MA, Inc. v. Japanese Foundation for Cancer Research, et al., No. 15-607 (Whether AIA eliminated federal district courts’ jurisdiction over patent interference actions under 35 U.S.C. § 146.)
  • BriarTek IP, Inc. v. DeLorme Publishing Company, Inc., et al., No. 15-1025 (Preclusive impact of ITC consent judgment).
  • Morales v. Square, No. 15-896 (eligibility under Alice)
  • ePlus, Inc. v. Lawson Software, Inc., No. 15-639 (what happens with a finally-determined permanent injunction after PTO cancels the patent claim?)
  • Media Rights Technologies, Inc. v. Capital One Financial Corporation, et al., No. 15-725 (Claim Construction: whether there a strong presumption against construing terms as subject to 35 U.S.C. § 112p6 that do not recite the term “means.”)
  • Alexsam, Inc. v. The Gap, Inc., No. 15-736 (appellate jurisdiction over patents that were dropped from case pre-trial)
  • Universal Lighting Technologies, Inc., v. Lighting Ballast Control LLC, No. 15-893 (intrinsic vs extrinsic evidence for claim construction).
  • STC, Inc. v. Global Traffic Technologies, No. 15-592 (Whether marking the packaging of a patented article with patent notification satisfies the marking provision of 35 U.S.C. § 287(a) where the patented article itself is undisputedly capable of being marked.)
  • Achates Reference Publishing, Inc. v. Apple Inc., et al., No. 15-842 (IPR institution decisions unreviewable, even when addressed in a final written decision by PTAB) [Note – This case was dismissed after being settled by the parties]
  • Alps South, LLC v. The Ohio Willow Wood Company, No. 15-567
  • Allvoice Developments US, LLC v. Microsoft Corp., No. 15-538
  • OIP Technologies, Inc. v. Amazon.com, Inc., No. 15-642
  • Fivetech Technology Inc. v. Southco, Inc., No. 15-381
  • Tyco Healthcare Group LP, et al. v. Ethicon Endo-Surgery, Inc., No. 15-115
  • Nautilus, Inc. v. Biosig Instruments, Inc., No. 15-561
  • Chunghwa Picture Tubes, Ltd., et al. v. Eidos Display, LLC, et al., No. 15-288
  • Kenneth Butler, Sr. v. Balkamp Inc., et al., No. 15-273
  • Arthrex, Inc. v. KFx Medical Corporation, No. 15-291
  • Arthrex, Inc. v. Smith & Nephew, Inc., et al., No. 15-559 (Commil re-hash – if actions were “not objectively unreasonable” can they constitute inducement?)
  • Daiichi Sankyo, Inc., et al. v. Apotex Inc., No. 15-281
  • Mylan Pharmaceuticals Inc. v. Apotex Inc., No. 15-307
  • Luv N’ Care, Ltd. v. Munchkin, Inc., No. 15-242
  • Automated Merchandising Systems, Inc. v. Michelle K. Lee, Director, United States Patent and Trademark Office, No. 15-326
  • I/P Engine, Inc. v. AOL Inc., et al., No. 14-1358
  • Interval Licensing LLC v. AOL Inc., et al., No. 14-1362
  • Content Extraction and Transmission LLC v. Wells Fargo Bank, National Association, et al., No. 14-1473
  • L. Gore & Associates, Inc. v. Bard Peripheral Vascular, Inc., et al., No. 15-41
  • NetAirus Technologies, LLC v. Apple Inc., No. 14-1353
  • Muffin Faye Anderson v. Kimberly-Clark Corporation, No. 14-10337
  • MobileMedia Ideas LLC v. Apple Inc., No. 15-206
  • SpeedTrack, Inc. v. Office Depot, Inc. et al., No. 15-461 (Kessler doctrine)
  • Rodney K. Morgan, et al. v. Global Traffic Technologies LLC, No. 15-602
  • Lakshmi Arunachalam v. JPMorgan Chase & Co., No. 15-691

5. Prior versions of this report:

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

75 thoughts on “Pending Supreme Court Patent Cases 2016 (April 18 Update)

  1. With regard to what ML calls “hail Mary” cert petitions, in particular the sweeping Constitutional challenge of Congress in Cooper v. Lee, has any IPL organization or bar association taken these cert petitions seriously enough to even file an amicus brief, one way or the other? Because, one wonders how much a lack of professional organization amicus briefing interest impacts the already very low odds of the Supremes taking cert in any given attempt?

    1. Just re-read Malcolm’s comment at 1, Paul, and I have to say that you too (like Ned) are pulling a fast one.

      His comment specifically has nothing to do with “in particular the sweeping Constitutional challenge of Congress in Cooper v. Lee

      It is most odd to try to “bolster” your question with a reference to Malcolm…

      Perceptions
      Perceptions
      Perceptions

    2. Paul, as I mentioned to you before, most “bar” associations are heavily conflicted on IPRs. You cannot say that their not filing amicus briefs means that they do not take the issue seriously.

      1. Ned, IPL organizations or bar associations have filed amicus briefs in Cuozzo, which is entirely about IPRs.

        1. Paul, agreed, and I see your point. But I do not think that the people who favor BRI in IPRs are all that convinced that a change to the Phillips construction would be a significant change.

          In contrast, there is a sharp difference of opinion regarding IPRs and whether we should have them or not have them. The opinion is divided primarily on the basis of whether or not one is a patent owner and needs the enforceability of patents to be part of their business plan, or whether one would rather be living in the system without patents at all the so that any way that patents can easily be invalidated is preferred over a system where patents are given the presumption of validity and require clear and convincing evidence to invalidate them.

          1. Ned: I do not think that the people who favor BRI in IPRs are all that convinced that a change to the Phillips construction would be a significant change.

            I think you’re right about that. Part of the reason is that there is nothing inherent about the BRI methodology (which is necessarily what exactly? nobody seems to want to say …) that leads to a result different from the result you get if you apply Phillips (by which I mean the actual case and not the dozens of CAFC decisions that purport to follow Phillips, but which undermine it).

            1. If there is “nothing inherent about the BRI methodology [ ] that leads to a result different” – then why not just go to the Philips claim construction and avoid the BRI entirely…?

      2. The law governing the public rights exception is complex, to put it mildly.

        Conversely, the public policy aspect of BRI v plain/ordinary is accessible to all.

        1. anony, according to the Federal Circuit, it is simple. If the right at issue is Federally created, it is a public right.

          Cases like Feltner, Curtis v. Loether, ex parte Wood, Markman, are to be ignored.

  2. In other Supreme-related news:

    link to scotusblog.com

    The result in Franchise Tax Board of California v. Hyatt appeared to have cut down from $1 million to about $50,000 a damages verdict that a Nevada man had won from a jury in his own state courts against the taxing authorities in California, where he formerly lived

    1. Although the Court majority insisted it was merely applying a series of former rulings, the outcome appeared to be a new interpretation of the Constitution’s Full Faith and Credit Clause that states are not free to discriminate against neighb0ring states when they enforce their own laws against another state.

    2. Other than the name “Hyatt,” what on earth does this post have to do with patent law?

      (The drop only has to do with the fact that Nevada has a 50 K limit for its own citizens in similar actions – on the merits, the State of California did not “win” the decision)

      The fields of rye stand “protected” this morning “Folks.”

      What a schmuck.

      1. Gil Hyatt called. Your Gil Hyatt fan club badge, Magic Combover Wig (TM), and the secret patent decoder are in the mail.

        1. ^^ Yet another non-sense response of pure ad hominem from Malcolm that does not address the point presented.

          Yay Ecosystem – Happy Decade of Decadence !

  3. The folks over that SCOTUS Blog are labeling Cuozzo a potentially landmark case.

    Ronald Mann (professor of law at Columbia): “Argument preview: Last week of Court’s Term to feature potential landmark patent case”

    link to scotusblog.com

    The issue, according to the professor, is whether IPRs are more like validity litigation or like patent examination. He notes that amendments are rarely granted and, might I add, there is no examiner.

    If the court decides that IPRs are like litigation, which Congress said they were, then that sets up MCM’s and Cooper’s challenges to their constitutionality nicely.

    1. He notes that amendments are rarely granted

      Unfortunately he doesn’t explain why that is the case: there is no point in “granting an amendment” when the amendment in question would not rescue the claim. The irony, of course, is that Cuozzo’s claim (a dial with a colored indicator! wowee zowee!) is a ridiculous pile of junk regardless of the outcome of this case.

      there is no examiner.

      There is a petitioner who writes a petition explaining why the patent is invalid. That petition is reviewed by a qualified person at the PTO. Each aspect of the subsquent proceedings is moderated by trained professionals at the PTO.

      What possible difference does it make if there is no “examiner”?

      1. MM, an examiner searches the prior art, rejects claims, hears responses, conducts fresh searches if necessary, and works with the applicant to get the claims in allowable form.

        Petitioners are simply hostile.

        1. Ned,

          As I keep on trying to tell you (and provide AIA references below), after Institution the petitioner just is NOT the only player in the game against the “patent**” holder.

          ** quotation marks used because after Institution, you no longer have the full property.

        2. an examiner …. works with the applicant to get the claims in allowable form.

          LOL — you gotta love it when the truth leaks out.

          Yes, the PTO quite often does bend over backwards to “find the innovation” in the word salad submitted by the applicant. And about half the time (at least) it performs that task miserably.

          But go ahead: explain why the government’s failure to follow the law when performing that task and removing the public’s right to practice the prior art is something that the same government agency is Constitutionally forbidden to correct. Are we back to “it’s like jolly old England in 1534!” again?

          LOL Be serious, please.

          1. MM, take a look at United States v. Glaxo Group Ltd., 410 US 52 – Supreme Court 1973. The Court did allow the government to sue to invalidate patents that were being used to justify an illegal restraint in trade.

            In other words, the government would have to show that the patent was being used to in a way actually harmful to the public. Standing.

            Now if they did that, I would have no objection.

            1. the government would have to show that the patent was being used to in a way actually harmful to the public.

              Assuming the truth of what you say, if any member of the public wishes to practice the patent claims before the term is up and they demonstrate to the government that the patent claims were improvidently granted, that seems like a sufficient showing of actual harm.

              Of course, in today’s day and age a “sincere religious belief” (<-LOLOLOLOLOLOL) that the patent needs to be tanked should be more than enough.

              1. One needs to recognize the proper means of that very “they demonstrate to the government” given the FACT that a granted patent is a property right, and once obtained, has earned other protections that property has under the Constitution.

                But then again, you SHOULD already know that, Malcolm.

                Your “should be enough” needs more.

          2. LOL right back at Malcolm and his dis of Ned’s attempted historical references to put context into our laws.

            There is still something leaking from you Malcolm (and it is still not that truth thing).

      2. “… there is no point in ‘granting an amendment’ when the amendment in question would not rescue the claim.”

        MM, if this is the case, then there should be no harm in having the Phillips construction because that presumably wouldn’t rescue the claim either.

        BRI was meant for people with freedom to amend. If there’s a good reason not to give freedom to amend, then fine, but that’s also a reason to not use BRI.

        1. This thought applies to everyone trying to say “no difference,” or “no meaningful difference.”

          Bottom line is that there IS a difference.

          Whether that difference shows up in application of any one case (or even a majority of cases) is simply besides the point that a difference – at the definitional level – exists.

          The point that Ken makes is a good one: just have the Office change and follow the post grant method by name.

          So why is this NOT being done…?

  4. Dennis, in Cooper, the PTO argued that Cooper’s district court case was not ripe because the AIA was not clearly unconstitutional given Patlex and Joy Technologies, as confirmed by MCM Portfolio, and further because Cooper was had not received any injury in fact until and unless his patents were found invalid in an IPR. However, last Friday, both of the Cooper IPRs were decided by the Federal Circuit: Rule 36 performances of the PTAB’s holding of invalidity. Now all of the prior conditions imposed by the PTO before Cooper’s decision was ripe have been fulfilled. He has suffered injury in fact, and the Federal Circuit has indeed found IPRs constitutional. However, Cooper may still have to refile his petition so that the Supreme Court might have direct jurisdiction over the IPRs, and allow the winning petitioner in the IPRs to be a party to the proceeding. In fact, the government may drop out as a party and might only participate as an amicus.

    Interesting procedural case in my opinion.

      1. Dennis, I have not researched it. I think Cooper will brief the issue in his reply.

        But still, how can the case go forward without the petitioner? I think they have to be a party or be made a party.

        1. Ned,

          Why do you think that a petitioner must remain a party after the initiation point?

          I think that you still have not grasped exactly what happens at the initiation point. It is at that point that you no longer have a whole property right (several sticks having been taken, and what is left is fully under control of the executive branch agency – without the petitioner).

          1. anon, I think of IPRs as trials since the PTO can invalidate only upon proof by the petitioner. The PTO has no authority to make things up, do its own research, issue rejections, etc. That they do it anyway in IPRs is the whole issue in Cuozzo question 2.

            1. Why do you think that they lack the ability to do that? What part of “post-initiation, you do not have a full patent right” are you not grasping?

              (Again, I ask because it appears that I STILL have to lead your nose to what is happening at the point of initiation).

              1. “anon” What part of “post-initiation, you do not have a full patent right”

                What part of “a piece of junk that was always subject to review for error is just as full of sticks after initiation as it was before initiation”?

                1. (we have already seen you run away from the particular sticks that I have pointed out – directly in response to one of your previous drive-by’s….)

                2. What part of property protected under other parts of the Constitution are you not grasping?

                  LOL

                  Deep stuff, “anon.” Keep the laughs coming.

              1. Mr. Snyder,

                You are asking the same question that I asked of Ned above at 4.1.1.1.

                Moreoever, the scope as listed in the AIA for post grant review,

                35 U.S. Code § 311 (b)Scope.—
                A petitioner in an inter partes review may request to cancel as unpatentable 1 or more claims of a patent only on a ground that could be raised under section 102 or 103 and only on the basis of prior art consisting of patents or printed publications.

                only speaks as to what the petitioner is constrained to – and is not a limit on the PTAB, once the initiation point has been passed.

                Further 316(a)(3) clearly shows that additional items may be forthcoming after the initiation point, as well as 316(a)(5)(B) indicates a wide open door.

              2. Martin, that is actually an issue in Cuozzo, is it not. I came up in our own case where I made the argument that the PTAB must decide based on the evidence and argument produced by the petitioner because that is what the statute literally requires.

                1. Ned – o understand that you may want to recuse yourself from this conversation, given your pending case, but please take note of my observation at 4.1.1.1.1.2.1 above (you will not want to clench tight your eyes to what is actually in the statute).

    1. Ned and Dennis:

      It is true that most of the government’s argument against cert in Cooper v. Lee is an “improper vehicle” argument. (The constitutional merits are not deeply briefed — the “patents are public rights” discussion is largely based on its own say so). The government argues that the district court did not reach the constitutional question, so the Court should not take our case. Given Ned’s / Tom Goldstein’s upcoming petition, they can’t take too much comfort in these points, even if they were right.

      The government did not dispute “ripeness” as such, so “injury in fact” is not directly at issue.

      The government’s bad-vehicle argument is not correct, of course. In the district court, the government advanced “administrative exhaustion” to argue against the collateral proceeding. A clear constitutional violation “smart bombs” the exhaustion defense. That is why the district court had to and did reach and address the full constitutional question.

      Few have noticed that the government changed tactics on appeal. There they argued statutory “channeling” — something they had waived in the district court. In fact, they tried to get a “channeling” ruling from the CAFC when we moved for summary affirmance after the MCM Portfolio decision, but the CAFC simply affirmed (i.e., rejected the untimely argument, affirmed on the district court’s stated ground).

      Our upcoming reply will point out the R36 affirmance in Cooper v. Square amounts to total “exhaustion” anyway, negating any merit there might have been in the “bad vehicle” argument. And it will also point to Sup. Ct. R. 11, which allows the Court to dip down and grab an appeals court case before a formal cert petition is filed.

      . . . and we’ll have a thing or two to say about the Constitution.

      1. A clear constitutional violation “smart bombs” the exhaustion defense.

        Too bad that there is no “clear constitutional violation” in this case, or anything close to it.

        There’s just a patent tr0ll, surrounded by the usual entitled whiners.

        1. Too bad that there is no “clear constitutional violation” in this case, or anything close to it.

          B_b_b_because “Malcolm says so” (and never mind the clear, succinct and even short and declarative sentences used to explain the v10lations to property rights that occurs with a taking of sticks in the bundle of property with zero recompense and no Article III review….)

          1. The patent maximalsists ritually argue that every diminishment of their precious bubble is a “Constitutional violation”.

            But they were notably silent about “the Constitution” when they were puffing that bubble up, working with the PTO to committ a massive unprecedented fraud upon the public, and gleefully extorting money from anyone and everyone, all at the public’s expense.

            Go figure.

            Too bad nobody was able to predict any of this.

            LOL

            1. Maybe you want to put that “puffing piece” away and do more than merely proclaim your short script accusations…

              (You are aware that 101 is written in a wide open gate manner – and why this is absolutely necessary given the nature of law that patent law deals with – innovation and new things…)

              1. You are aware that 101 is written in a wide open gate manner

                Go ahead and attack the Constitutionality of that statute on its face if you like.

                As everyone knows — and everyone has understood since it was written — the statute can not literally mean what it says.

                So once your silly fantasy world interpretation is flushed down the sewer where it belongs (bye bye! nice not knowing you, ever!) we’re back to the reality that you have to live with.

                Ask Congress to rewrite the statute if you don’t like it. I’m pretty sure you’ll like it even less when Congress is through with it.

                We all know how the story ends, “anon”: very very badly for you and your fellow junk patent l0vers.

                Keep reaping the whirlwind.

                1. As everyone knows — and everyone has understood since it was written — the statute can not literally mean what it says.

                  There is that leaky thing again….

                  Keep your fingers out of that nose of wax, please.

                  Ask Congress to rewrite the statute if you don’t like it.

                  I don’t need to do that – quite in fact, it is YOU that needs to do that since you want the words to mean something other than what they plainly mean.

                2. “Ask Congress to rewrite the statute if you don’t like it. ”

                  I don’t need to do that

                  LOLOLOLOLOLOLOLOLOLOL

                  Try to believe it, folks.

                3. Why “Folks,” clearly someone must get Congress to change their words because their words do not mean what those words say….

                  What a Fn schmuck.

  5. Per the USPTO:

    “Patents are public rights.”

    Why?

    “Because I said so.”

    Not particularly persuasive.

    1. anon, get that bit about patents dispose of rights “held by the people.”

      Just how did the government make the inventions protected by patents?

      Next we are going to be told that we can abrogated the right to life as a benefit held by the public and granted to the individual.

      1. ust how did the government make the inventions protected by patents?

        Exactly what “invention” are you talking about, Ned?

        There was no “invention” in this case. Not even close. That’s we all learned from this “unconstitutional” (LOL) proceeding.

        Now go ahead and tell everyone that Cuozzo’s claims are just exceptionally bad. Please! Make me day.

        1. MM, I am not sure that your principle is correct: if there is no invention, there is no constitution right to a trial in court. I could say the same thing about an arrested criminal. First we decide if he is guilty. If he is, he is not entitled to a right to trial.

          1. Ned,

            How many times must you revisit the same cycle before you realize that Malcolm has NO “principle” in this matter?

            He
            Just
            Does
            Not
            Care

            Whatever” means to his desired Ends is his “principle.”

            Maybe if you took off your blinders of “6-is-a-genius-because-he-agrees-with-me,” you would realize that just because Malcolm also agrees with you vis a vis business methods and software, does NOT mean that his views have any merit whatsoever.

          2. I could say the same thing about an arrested criminal.

            But you’d be comparing a piece of paper to a human being, which is a really really silly thing to do.

            Besides, there is no finding of “guilty” without “a trial” in the re-exam or IPR context. There are due process protections for the patentee up the wazoo.

            Everybody knows this.

            1. Except the violations of protections are NOT excused by the provisions of protections (if those exist beyond your gen eral handwaving) – as you should be aware of…

              1. That should read:

                “provisions of protections for other items”

                This is not something that you can merely say “Well we got most of the deserved Constitutional protections covered.”

              1. MM, a man’s work is not a piece of paper.

                The irony is almost too sweet.

                It’s true that the work of most people amounts to more than a “piece of paper.”

                Not true of lawyers, however. And not true of the b0ttom-feeders who have been abusing the broken system for decades now.

                Let’s dredge the swamp and then we can talk about “man’s work.”

                1. LOL – Malcolm’s anti-patent “feelings” come shining through.

                  Again.

                  Somehow patents are not what they are….

                2. MM, you identified one of the biggest problems with business method patents. There is no real invention taking place.

                3. LOL – even when Malcolm does NOT mention business methods, Ned is right there to prop up his erstwhile Echo with an obligatory “6-is-an-Einstein-because-he-agrees-with-me” statement.

                  Ned – nowhere in this thread of comments for 3 does Malcolm mention business methods.

                  Nowhere.

                  Are you really thatdesperate to be “in agreement” with him?

                4. Business method junk patents are a huge problem. CBM review needs to continue and should be expanded.

  6. In its April 1 Conference, the Court denied cert in Retirement Capital v. US Bancorp. That case had questioned whether subject matter eligibility under 35 U.S.C. § 101 is a ground specified as a condition for patentability under 35 U.S.C. § 282(b)(2).

    Another Hail Mary flops onto the turf at the 30 yard line.

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