Patentlyo Bits and Bytes by Anthony McCain

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Anthony McCain

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. anthony.mccain@patentlyo.com

39 thoughts on “Patentlyo Bits and Bytes by Anthony McCain

  1. When a patent holder seeks to enforce a patent, the infringer challenges the patent in an IPR in the PTO, with asymmetric risks and costs to the patent holder. If the patent survives the IPR, the patent holder must still expend considerable capital and time in search of a fair royalty. Without an available injunction in most cases, the only remedy for the patent holder is monetary damages. In many cases, the infringer has little downside risk and only seeks to pay the license they would pay if they negotiated in good faith. With increased risks to the patent holder, the costs increase, which require a greater return in order to justify the investment; however, the infringer blocks a reasonable return on investment by forcing the patent holder to expend substantial resources on litigation. The higher burdens in the enforcement regime of a weak patent system supply a dramatically high tax on the most productive and innovation companies that perform original research. The system clearly becomes biased to large companies, representing a major power shift from small companies to incumbents. Consequently, technology progress lags in a weak patent regime and, with it, productivity growth and aggregate economic growth.

    Connecting the Dots of a Weak Patent System and Productivity Growth Decline

    By Neal Solomon
    October 4, 2016

    link to ipwatchdog.com

    1. You would agre with most everything I have to say if you would recognize how off your Windmill chases against software and business methods were, Ned.

  2. link to politics.co.uk

    If there is any hope it is with those who are still prepared to speak the things which are in front of their eyes. People who are still prepared to say that losing tariff-free access to our biggest market is not wise, that putting investment at threat is to handicap our own prospects. …. People who recognise that a 52% vote on a vague question is not a mandate for the most radical possible interpretation of a referendum result.

    Britain getting ready to go “full Brexit” …? Maybe they can re-write their patent laws to make them the world’s “friendliest”. Easier to get, easier to enforce, with every process imaginable on the table! That’ll show everybody.

  3. link to arstechnica.com

    Cheng said, being in East Texas gave the plaintiffs a chance to “play race cards.” He recalled an attorney describing Newegg as “a Chinese company” in court, despite the fact that it is based in the US, because many of Newegg’s executives are Chinese-American. As he told the story, Cheng recalled thinking to himself, “‘F— you… we are proudly American, because in this great country anyone from around the world can be American’… I told the jury we’re based in California and our profits are made in America and we proudly employ 1,000 Americans. And they got it. That was the one trial we won.” ….

    Cheng warned that he “has it on good authority from patent trolls that they are planning to jump back into the fray.” He said that you have to look at patent abuse and trolling as an industry, and recent reforms mean “the mid market has been wiped out.” So trolls are focusing on “big game cases like going after Google or Apple for large amounts of money,” Cheng said. “They go after international companies, too, which often settle—especially in East Texas.” On the other side are “nuisance trolls filing hundreds of lawsuits, asking for small amounts from each defendant.” He called the latter especially dangerous because they’re going after smaller businesses that don’t have the budget to fight over $25,000-$100,000 claims.

  4. “Ed Walsh: The AIA Turns Five: A Retrospective” above is a nice short factual summary of the actual major impacts of the AIA to date, free of hyperbole.

    1. Short on facts AND major impacts is more like it.

      A bland item that is immediately spit out of one’s mouth.

      Man – you really clamor for anything not to raise the possibility of the Constitutional problem that your precious IPR carries with it.

      Don’t worry Paul, I will remind you.

  5. In the “How not to…” piece by Gene Quinn, the author writes:

    “The inventor wanted to know how and why an Alice rejection could be given if that is the case. The inventor asked the examiner to provide an explanation as to why there was complete and total disagreement with the ISA?”

    an then opines that this is an “interesting” question.

    If indeed there is something that rises to the level of a “disagreement” (which I seriously doubt) why should that be in any way “interesting” ? Can anybody enlighten me?

    And can anybody link me to the oh-so-impressive WO-ISA that Quinn thinks is so significant for the USA?

    1. Hilarious comment from “William Morris” over at Gene’s place:

      Reading through the “grievances,” I see a man who thought he had a million dollar idea, but was broken by a system which told him his idea was worthless for reasons that appeared be a combination gibberish and lies. … I can’t help but think about what sacrifices he (and maybe his family, if he has one) had to make in order to do so. I suspect that’s something he was thinking about when he wrote his response.

      I see a n*tcase whose unhinging was undoubtedly facilitated by Q’s crxppy blog and his microscopic army of sycophants who spend pretty much their entire lives bashing the PTO for (try to believe it, f0lks) not granting enough patents.

  6. Dennis and Anthony as someone very interested in 101 issues and having written about them over on IP watchdog I would be very interested in your take on Robert Sachs posts. I find them well reasoned and persuasive.

    1. Refresh my memory: is this the same Sachs who dragged his client all the way to the doors of the Supreme Court arguing for the eligibility of claims to a method for “automatically” suggesting treatment using a “computer device” comprising “a knowledge base”?

      Yes, he was: link to patentlyo.com

      I’ve always wondered if Sachs put down his own personal money for that, or did he somehow manage to convince the client it was a good idea? Either way: sad.

      Read this passage written by someone without an obvious self-serving axe to grind:

      Mayo’s expansive, implicit definition of a “law of nature” is exactly what is needed to distort the “law of nature” exclusion into effective, de facto enforcement of the knowledge/embodiment dichotomy. The knowledge/embodiment dichotomy prevents knowledge-advances of any kind from being patent eligible subject matter, so it would make no sense to limit Mayo to a particular type of knowledge. Propositional knowledge includes justified true beliefs about any empirically true facts. It includes knowledge of both natural and artificial systems, so Mayo’s “laws of nature” should not be limited to relationships in naturally occurring systems. Propositional knowledge includes knowledge of both statistical generalizations and universal truths, so Mayo’s “laws of nature” should not be limited to relationships that are universal, necessary truths. Propositional knowledge ranges from the general to the specific, so Mayo’s “laws of nature” should encompass both factually contingent and broadly applicable “laws of nature.” Mayo uses “law of nature” as a term of art that is specific to cases in which claims recite human-knowledge limitations.

      Kevin Collins: “The Knowledge/Embodiment Dichotomy,” 47 Davis Law Review 1279 (2014) SSRN

      This is pretty basic stuff. Sachs is smart enough to understand what Mayo v. Prometheus was about. And even if he couldn’t figure out on his own, I and others were right here breaking it down for him in real time, explaining the issues to him in the simplest possible terms. Kind of a shame that it needed to be done, given that he’s an adult professional who can read the briefs as well as anybody. But he pretended that he couldn’t understand what was happening. He’s not alone! You may very well be right there with him.

      The bottom line here is that anyone can pretend they were born yesterday and fling p00 at a Supreme Court decision they don’t like. Honest, thoughtful people can suggest improvements and simultanously acknowledge that (1) there is nothing patent-w0rthy about 99% of the junk that is being tanked and (2) a huge chunk of what is not being tanked is also junk that is corroding the functioning and credibility of the system.

    1. You’re getting a wee bit ahead of yourself:

      Gov. Jerry Brown on Thursday signed a bill that for the first time allows testing on public roads of self-driving vehicles with no steering wheels, brake pedals or accelerators. A human driver as backup is not required, but the vehicles will be limited to speeds of less than 35 mph.

      The legislation applies only to a pilot project by the Contra Costa Transportation Authority at an autonomous-vehicle testing facility at the former Concord Naval Weapons Station, and at a San Ramon business park containing public roads.

      Whoop dee ding dong. I wonder when that business park last had its road’s lines repainted?

  7. Ned: Mayer’s concurrence, while not the law, should be a guideline.

    It’s going to be the law. That’s inevitable for all the reasons that Mayer sets forth, which are the same reasons that I and many others have been giving for years.

    It’s only a question of how long it’s going to take. Things happen really quickly sometimes, especially when a respected jurist throws down the gauntlet.

    In the meantime, there’s plenty of great “guidance” there, as everyone will recognize.

        1. What else could you have possibly meant?

          (You already pulling out your “so serious” poker tell already gives the answer – but go ahead and be (continue to be) inte11ectually dishonest about it)

  8. How NOT To Respond To An Office Action

    Wow. That guy is really angry about his Alice rejection.

    Kind of an interesting article, though, coming from a guy who has done about as much as humanly possible to nurture a fanbase of applicants who are convinced that the Supreme Court and the PTO are stuffed with “dangerous” prevaricating patent-h@ters.

    1. …because Quinn personally is “building a fan base”…

      Your shiny aluminum hat is on too tight again (and what is it with you and your preoccupation with Quinn?)

        1. I have a policy of banning people from my internet forum for posting factually incorrect information. But of course, you see, the catch is that I get to decide what’s factually correct. But I never ban people who disagree with me, just people who aren’t factually correct.

        2. “The policy is that he does not put up with purposeful misrepresentations.”

          You mean like telling him that his “interpretation” of Diehr before Bilski, Alice, Mayo etc. was wrong? Lol. Purposeful “misrepresentations” like that?

    2. Say what you will about Quinn, he is at least capable of holding back his comments long enough to distinguish utility rejections from Alice rejections.

      1. Let’s imagine you’re a cop. A guy on the subway is screaming “Flying saucers are coming to take our brains!” over and over at the top of his lungs.

        How much time do you have to spend making a “prima facie case” that he doesn’t know what he’s talking about? Is there a minimum amount of time? Do I need to look up in the sky and carefully scan for the saucers? Do I need to call my fellow officers and ask them if they’ve seen a flying saucer?

        This isn’t the first “pro se inventor” to show up at the PTO with a screw loose. I’m pretty sure Examiners can smell them a mile away. People have jobs to do, after all. Giving Edison McCrackerpot an award-winning Office Action seems to be asking a bit much. The best thing for everyone is for this guy to keep playing in his sandbox without bothering the PTO.

        1. …award winning…?

          No matter who you are, the professional thing is to do a proper office action.

          Criminy Malcolm, with nutj0bs, doing the proper thing is even easier.

          (your smarmy “elitism” is showing through)

        2. I don’t have a problem with the ‘cop’. The rejection was terse, but it got the point across, and all the applicant had to do was show the examiner a copy of his noble prize certificate.

          I’m making fun of the ‘journalist’ who jumps to conclusions and reports that the cop was assaulting a black man without checking who is in the back seat of the cop’s car.

  9. In other news, the CAFC released a precedential 101 case a bit late in the morning: INTELLECTUAL VENTURES I LLC v. SYMANTEC CORP.

    Dyk, Mayer, Stoll

    All claims were deemed ineligible (affirming the district court with respect to two case; reversing with respect to another). The only citation to McRo is in a footnote, where it’s cited along with a bunch of other cases in support of the bold proposition that “The Supreme Court and we have held that a wide variety of well-known and other activities constitute abstract ideas.”

    BASCOM, too, is kicked to the curb by the majority (nobody could have predicted!). The majority puts it this way:

    The claims here are also distinguishable from those in BASCOM, which allegedly improved an existing technological process by describing “how [a] particular arrangement of elements is a technical improvement over prior art ways of filtering [Internet] content,” i.e., “a filter implementation versatile enough that it could be adapted to many different users’ preferences while also installed remotely in a single location.” 827 F.3d at 1350. There is not, in the ’050 patent, any “specific or limiting recitation of . . . improved computer technology,” CLS Bank Int’l v. Alice Corp. Pty. Ltd., 717 F.3d 1269, 1286 (Fed. Cir. 2013) (en banc) (Lourie, J., concurring), as the as the asserted claims describe only generic computer elements. (emphasis added).

    Stoll dissented with regard to the majority’s treatment of BASCOM.

    But check out Mayer’s very well-written and thoughtful concurrence:

    I write separately, however, to make two points: (1) patents constricting the essential channels of online communication run afoul of the First Amendment; and (2) claims directed to software implemented on a generic computer are categorically not eligible for patent.

    And so the curtains draw a bit closer on the farce.

    1. One minor formatting error: in the paragraph concerning the majority’s treatment of BASCOM, I meant to put the term allegedly in bold (my emphasis).

    2. MM, this is a major case if only for Mayer’s concurrence.

      I have long argued that Alappat’s holding was limited to software to improve a larger machine — a graphics processor for a display. But Alappat’s dicta — that any programmed computer was categorically eligible — became the PTO practice, and then the law with State Street Bank. For 20 years, a flood of software patents issued, creating the problems with the patent system and with the economy as discussed by Mayer.

      Mayer’s concurrence, while not the law, should be a guideline. ALL software patents that do no more that execute software on conventional computers to provide digital results should be considered ineligible. There has to be more to be eligible — such as where the programmed computer is applied to a conventional process, system or machine (and this could be a computer) to provide an improvement to that process, system or machine. Only then is software potentially eligible.

      1. In a case with multiple arguments, any one of which would defeat the patent, I see that you need that lesson again on just what constitutes a holding versus dicta.

        1. I see that you need that lesson again on just what constitutes a holding versus dicta.

          This isn’t about “holdings versus dicta”.

          It’s about a judge punching the window and letting some air into the room.

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