Patentlyo Bits and Bytes by Anthony McCain

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About Anthony McCain

Anthony McCain is a law student at Mizzou where he is focusing on intellectual property; He has a background in mechanical engineering.

32 thoughts on “Patentlyo Bits and Bytes by Anthony McCain

  1. 6

    link to

    Wells Fargo is paying $185 million in fines after the Los Angeles City Attorney and Consumer Financial Protection Bureau found that Wells Fargo employees had secretly set up new fake bank and credit card accounts in order to meet sales targets.

    “Fake” is such a negative term. How about “proxy” instead? That’s more neutral, plus it’s so s00per d00per techn0.

  2. 5

    Broadband iTV, Inc. v. Hawaiian Telcom, Inc.

    Judges: Newman, Dyk, & Taranto

    Oral arguments regarding the ineligibility of these incredibly junky claims were yesterday. You can listen here: link to

    From the specification:

    The problem in the prior art described and addressed by the ‘336 patent is the alleged lack of ‘capability for Internet uploading and automatic listing in any VOD EPG’ … [t]he problem is addressed through ‘listing the title of the video content in the [EPG] using the same categories as those specified in the metadata uploaded along with the video content

    These claims once again are alleged to be “just like Bascom!” Stuff is automated! And it’s easier for [insert some participant’s title here] to get their stuff uploaded! And they’re at a different location! WOWEE ZOWEE! And by the way it’s just like Diehr, too!

    Perhaps the most bizarre statement made by the patentee during oral argument: “uploading with metadata is non-conventional.” Really? Since when?

    Oh, but wait, says the patentee: This is “video data”! That’s totally different! Wait, now you want to know “why” it’s totally different? How dare you ask that question! Nobody had ever before achieved what’s been achieved here and, yes, I know that’s not an answer but it is sure makes a pretty dust cloud, doesn’t it?

    Key exchange during the oral argument:

    Judge: So the difference [between the claim and the prior art] is who does it?
    Patentee: YES

    Has everyone been following this ridiculous farce? You take some old information processing technology and you change the identity of who’s providing the information. W00h00! S00per d00per techn0!

    If this what Bascom is supposed to protect, then Bascom is a w0rthless pile of g@rbage. And the CAFC is learning this really quickly. It’s anybody’s guess how long it will take the know-nothings at the PTO to figure it out but eventually they’ll figure it out, too. Hurry up and push that junk through, b0ttom-feeders! Hurry!

    District court decision here: link to

  3. 4

    Capital Dynamics v. Cambridge Associates, LLC

    People who still believe that methods of using “new” math to manipulate numbers (e.g., prices, profits, values, “cash flows”, etc) are eligible for patenting should set aside 15 minutes today and listen to yesterday’s withering oral arguments in Capital Dynamics v. Cambridge Associates, LLC. It’s a great learning opportunity!

    link to

    The case came up to the CAFC from PTAB following a CBM review. The patent at issue is directed to a method for “analyzing a performance of a financial product or asset having an irregular cash flow by ‘benchmarking the performance’ of the asset relative to ‘a public market or other index.'” I’m not going to bother to repost the junky claims.

    You can read about the PTAB decision (and find a copy of the decision) via this link: link to

    That particular panel, at least — Moore, Taranto and Hughes — has absolutely zero interest in wasting its time listening to a patentee invoke Diehr or even Enfish in defense of junky “invest on a computer” claims. And I don’t believe this panel is exceptional in that regard.

    Special advice to “zealous” attorneys who get phone calls about junky claims like these: maybe it’s time to think about not embarassing yourselves? Surely there’s more interesting work out there.

  4. 3

    It’s amusing listening to patentee after patentee rely on Bascom to save their claims. I assume applicants are doing the same thing before the USPTO.

    To the extent that Bascom stands for anything other than the basic proposition (first presented here, by yours truly) that the recitation of additional non-obvious structural features can rescue a claim that otherwise recites ineligible subject matter, Bascom is a meaningless pile of cr@p. Most of the CAFC judges who weren’t on the Bascom panel already understand that Bascom is cr@p. Soon enough the judges who wrote Bascom will reach that conclusion, too.

    In the context of a world where computers can be hooked up to each other, “perform the logic here” is a j0ke. “Notify somebody that something happened” is also a j0ke. “Convert this into that” is an even bigger j0ke. Oral arguments in Novo Transforma Technologies v. Sprint Spectrum, L.P. took place Wednesday. Novo Transform’s claims to a method of converting the form of a message and notifying that it took place were properly tanked under Alice and the CAFC’s Rule 36 opinion will appear shortly.

    Please stop wasting everybody’s time, b0ttom feeders. “Automating” concepts that most six year olds are well aware isn’t “inventing.”

  5. 2

    Google would use light sources to determine if an emergency vehicle is approaching, which would then signal the autonomous car to yield if needed.

    Light sources! Wowee zowee! Nobody ever relied on light signals to determine if an emergency vehicle was approaching before.

    In a just patent system, everybody involved with the filing of this application — in particular the ethically challenged, willfully ignorant b0ttom-feeding patent agents who filed it — would be banned from the system forever.

    It’s really hard to sink any lower than this incredible cr@p. Then again, Google and its army of low rent “attorneys” (<-LOL) has been flooding the PTO with this kind of g@rbage for many years now. We're supposed to believe that it's "defensive"?

    Get a l i fe, people.

  6. 1

    Josh Peterson’s article, focusing on the anti-patent aspects of eBay and IPRs, shows just how these two “changes” in patent law “procedure” have fundamentally and adversely affected US patent system. The only ray of hope noted in his article is our own petition to the Supreme Court, MCM Portfolio LLC v. HP.

    We need to end IPRs, fix eBay, and to stop all further patent “reforms” before they do further damage. A strong patent system, a system that provides for exclusive rights and reliably certain patent validity, is necessary to promote investments in startups or established firms that bring new technology to market, whether that technology originated in inventors with new ideas, firms that license university R&D, or any major company who new products are easily copied.

    The so-called troll problem has been addressed. If bad patents are asserted, or lawsuits filed without a basis for infringement, lawsuits can be dismissed easily on filing due to the willingness of courts to address patentable subject matter on the pleadings, and with the recent reform in the pleading requirements for alleging infringement that require more than simple notice. As well, Octane Fitness is there to award attorneys fees when the patent owner clearly had no case to begin with.

    And, if we can fix eBay and end IPRs, we should next address the AIA’s extension of prior art to foreign patent applications and public use. That was a grave mistake. All it does is allow foreign companies entry into the US market at the expense of American investment in R&D. That cannot be in the best interests of the United States.

    1. 1.1

      The Windmill of “Tr011s” being associated with the eligibility muckery belies your true agenda Ned.

      The “Ends justify the Means” by judicial muckery when they happen to coincide with your desired Ends is inimical to any notion of a strong patent system.

      1. 1.1.1

        anon, Lemelson was a classic troll, but the troll phenomena never really existed until State Street Bank flung open the doors to business method and computer implemented claims. Perhaps the problem here relates primarily to the inability to search prior this kind of prior art — and I do not believe that this inability will ever be remedied. But, nevertheless, patents began to issue on what appears to be common business practices. I hope you can agree that this might be a problem.

        Adding to the problem of computer implemented claims is the fact that they use sui-generis language to both describe and claim the inventions such that one seeking to avoid infringing can never really be certain there are not adverse rights out there. Without clearly claimed subject matter, the patent system really breaks down.

        Though the problem is not exclusively linked to State Street Bank, that case made the problem of poorly examined patents with vague claims much, much worse.


          As I said, Windmill Ho and your “version” of reality….

          You do know the actual rhetoric of “Tr011” was fabricated by the self sAme entities pushing for efficient infringement and has nothing at all to do with your agenda-driven curse-ades, right?


            anon, I agree. The term troll was coined to refer to NPE patent licensing firms regardless of the merits. But, it is important that we distinguish between those who are abusing the system with those who are not. That is why I suggest the label troll is being abused when it is loosely used to stigmatize both legitimate and illegitimate actors.


              …and as I have stated, you yourself a buse the term as you attempt to hi jack it for your own Windmill Ho curse-ades.

              You are no better than the Efficient Infringer crowd Ned.

    2. 1.2

      I’m not convinced that “fixing” ebay and IPR’s is the way to go, at least not in so far as your proposed fixes go. Could “fix” ebay by just enhancing damages a bit if the patentee has to go through the trouble of trying to get an injunction, fails the first time because of Ebay, but ultimately prevails (and likely gets an injunction later, or not). Also, can “fix” IPR’s by just kicking the patent back to examination, made special, to address only the claims found invalid (while the rest remain valid and enforced). Easy peasy cheesy and requires no great leaps in legal logic.

      ” All it does is allow foreign companies entry into the US market at the expense of American investment in R&D. That cannot be in the best interests of the United States.”

      Um it also recognizes the reality that in today’s day and age it is a lot easier for US people to find foreign pieces of art. Though you’re likely right that it is not in the US’s best interests. But establishment Dems and Republicans don’t care about Merica’s interest, generally speaking. They care about their pet donor corporation’s best interests, and they’re often multinationals. Better vote for someone with Merican interests at heart, who you know, might want to Maek Merica Great.


          obviously, but not necessarily in accord with the principles of equity from which “injunctions” spring to life.


            Shall we take a closer look at that equity principle, 6, and remember that the main goal of equity is to make the transgressed as whole as possible…

            …and of course, since a patent is a negative right, that “whole as possible” is simply best approximated by an injunction.

            It is only when you have judicial muck ery and judges who forget this first principle and instead only remember the gen eral notion of “injunction is harsh” that you get the rather unfortunate namby pamby treatment “in equity.”


              “the main goal ”

              What the “goal” of the remedy, or the system of law under which it is available, is isn’t at issue. When the system kicks in and the remedy may be applied is at issue.

              On a slightly different topic of course the system of lawl known as equity accomplishes its goal very well.

              “It is only when you have judicial muck ery and judges who forget this first principle and instead only remember the gen eral notion of “injunction is harsh” that you get the rather unfortunate namby pamby treatment “in equity.””

              Bro you are profoundly misunderstanding the entire point of equity as a system of lawl, and why the entire point of equity AS A SYSTEM of lawl (not the “goal” of equity) is important in the Ebay case and in all instances where an injunction is requested.

              You’re great at history Ned, and I get the feeling that you might not have studied, even in the least, what equity is, and why it even exists as a thing.

              “instead only remember the gen eral notion of “injunction is harsh” that you get the rather unfortunate namby pamby treatment “in equity.””

              I agree that such would be mamby pamby but you’re still presuming that equity, and the remedies available under it (ala injunctions), should just automatically kick in (it doesn’t).


                Clearly, what is and what is not at issue is lost on you 6.

                Instead of clenching tight your eyes, try to understand the point presented.

                1. “Clearly, what is and what is not at issue is lost on you 6.”

                  Ahhhh, so anon gets to decide what is not at issue? Lulz. No bro, the courts do that. And they did.

                  “Instead of clenching tight your eyes, try to understand the point presented.”

                  The “point” “presented” is based on unsound premises ta rd. I know you have a hard time understanding that, but when you don’t have good premises for your “point” then it doesn’t matter how grand your “point” is.

                  Look I get your overall “point” that the system is weaker and you don’t want it that way and you think it works better the other way. None of that changes anything about equity or its applications to patent lawl.

                2. Lulz. No bro,

                  Not when WHAT the Court did IS the issue.

                  Try to understand THIS conversation, 6.

                  The “point” “presented” is based on unsound premises /i>”

                  Absolutely not – it is based on foundational premises: the meaning and purpose of equity to begin with.

                  That’s kind of the point.

                  You keep on saying “ta rd” like you know what that word means, yet it is you that is being the “ta rd.”

                3. 6, the equitable remedy exists when the legal remedy is inadequate.

                  There can be no question in the face of continuing violations of one’s exclusive rights that a legal remedy is inadequate.

                4. “6, the equitable remedy exists when the legal remedy is inadequate.”

                  And what other conditions have to be met? What is equity fundamentally in your view Ned? Just some catch all that’s applied whenever the legal remedy is inadequate? Where did equity come from?

                5. 6, equity came from the curia regis, and was eventually formed into a court headed by the Chancellor. The primary basis for jurisdiction was that the legal remedy was inadequate.

                  link to

                  The court was located in Westminster Hall. Take a look at the linked map. Westminster Hall is at the top in the chamber were court was held apparently is called the Star Chamber. link to


            Historically, 6, since no one has a right to continue to infringe, injunctions all but automatically issued.


              The problem, Ned, is that the lower courts “got lazy” with clearly stepping through the four factors (including noting exactly what the patent right means – the fact that it is a negative right). The lower courts also “got lazy” in establishing exactly what equity means when the patent has been determined to have been infringed, and the patent holder transgressed.

              That “laziness” was enough for the anti-patent Supreme Court to step in and muck things ups.


              “Historically, 6, since no one has a right to continue to infringe, injunctions all but automatically issued.”

              Obviously that was the thinking Ned, but nobody bothered to even consider the means by which they were going about issuing these injunctions apparently. Typical for Merican law actually.

                1. “What “means” are you talking about 6?”


                  “Have those “means” changed?”

                  They were lacking in the first place, and then the USSC “changed” them back to where they were lacking in the first place.

                2. You misunderstood the question (and your own comment, apparently).

                  Unless you think that the “means” of applying equity is “equity”….

                  changed them back to where they were lacking

                  Come again?

                  You missed a critical foundational aspect of what a definition of equity there, 6. Open your eyes and start at the start.

                3. “Unless you think that the “means” of applying equity is “equity””

                  No, the means of applying for and granting a remedy to stop infringement (ala an injunction) is the system of law known as equity.

                  You’re so ta rded bra.

                  “Come again?”

                  I’m just saying in a fancy way that the injunction setup was broken back in the day, then USSC stepped in to fix it so that it was actually legal.

                4. You keep on using the word “ta rd” while exhibiting no understanding of the term.

                  I have made no mention of the larger scale “law and equity” that you appear to want to kick up dust with. Instead, I am talking about the very basic nature of equity itself.

                  Pay attention son, you might learn something at the fundamental level (which is important, since it seems you want to talk about the subject, and knowing just what you are talking about would be very helpful for you***.

                  ***this might be a novel concept for you.

                5. “I have made no mention of the larger scale “law and equity” that you appear to want to kick up dust with.”

                  Of course you didn’t. I did ta rd, in response to your question asking what I was talking about.

                  “Instead, I am talking about the very basic nature of equity itself.”

                  Right, so you want to talk about something different, but we’re only now figuring this out because you’re a ta rd who doesn’t know how to hold a basic convo. Fairly routine stuff. Ok, what about the “nature” of equity itself? I’m pretty sure you only half grasp the “nature” of equity, but go ahead, tell us about the “nature” of equity as you see it.

                  Will you be waxing poetic about the “conscience of the court” and the courts of chancery? I can’t wait to see! (Actually I know you won’t because you don’t understand “the fundamentals” at all because your christian background is lacking and as a left leaning person things like your basic understanding of conscience is literally FUBAR).

                6. What I am talking about is clear from my very first post here, 6.

                  Your lack of understanding that cannot be attributed to me.

                  Wake up son.

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