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OT but the CAFC published yet another (correct) Rule 36 opinion affirming the Delware District Court’s SJ tanking under 101 of the patentee’s junky patent.
CALLWAVE COMMUNICATIONS LLC v. AT&T MOBILITY LLC
Is this the tenth Rule 36 tanking in the mythical “pendulum swinging back” era that is being breathlessly promoted by those sooper serious patent attorneys who specialize in “do it on a computer” junk? I’ve lost track. In any case, there’s much more to come.
I’ll recite just the preamble of the junky claims asserted here because it’s all we really need to see:
“A method for determining the location of mobile platforms, said mobile platforms between them being locatable by a plurality of remote tracking systems, each of which is adapated to determine the location of a respective mobile platform according to a property that is predetermined for each mobile platform comprising”
Try to imagine the five s00per d00per techn0 steps which follow! You need to be s00per d00per skilled “in the art” to do it!
Key observation by the judge:
link to law.justia.com
Requesting and receiving location information is an abstract idea, and adding a vaguely defined intermediary that selectively forwards requests and returns responses does not make the underlying abstract idea any more concrete.
Yup. But wait! What about two vaguely defined intermediaries (we’ll call them “modules”!). And a passcode! Wowee zowee, now we’re talking!
MM, I do not think the problem with claims like this is that they are abstract in the meaning of Bilski, I think they are indefinite. They are not directed to nonstatutory subject matter. But they are claimed in a very indefinite manner using broad and indefinite terms and functional statements — the very pith and essence of lack of definiteness required by the statute that requires that one particular point out and distinctly claim the subject matter one regards as an invention. After all, O’Reilly v. Morse found a statutory basis for holding invalid Claim 8 was the then analog of section 112.
I do not think the problem with claims like this is that they are abstract in the meaning of Bilski, I think they are indefinite.
The answer is that the problem is both of those things.
You can’t claim “Ask someone for this ijnformation and get this information back.” That’s an ineligible abstraction.
Let me write it out for everyone in a real easy to read and remember fashion:
INFORMATION IS NOT ELIGIBLE FOR PATENTING
AND
YOU CANT GET AROUND THIS PROHIBITION MERELY BY RECITING A PROCESS OR OLD COMMUNICATION TECHNOLOGY
There. Simple stuff.
Of course, trying to argue that your “system” is new by reciting its new functionality is also a huge indefiniteness problem. Either way, these claims and every set of claims like them are in the trash can. Good riddance.
The pendulum ain’t swinging back.
PHIGENIX, INC. v. IMMUNOGEN, INC.
link to cafc.uscourts.gov
Phigenix, a petitioner, lost an IPR and appealed. On appeal, the patent owner moved to dismiss for lack of standing, but the issue was ordered briefed to the whole panel. The Phigenix appeal was dismissed for lack of standing, principally because it sold no products and did not prove (it had the burden of proof) that it had suffered actual injury from the existence of the patent owner’s patent.
Wrong question (again), Ned.
It is not the Office you need to be looking at.
Lawyers personally responsible for paying defendant’s fees responding to ineligible junk asserted in Delaware court (after being transferred from — surprise! — Texas):
link to law.justia.com
[A] federal judge on Dec. 19 crafted a novel tactic to curb patent tr0lls when she slapped a half-million-dollar bill on the lawyers and said that they were personally responsible for paying it, not their client. This could truly be a game-changer. …
The case at issue is Gust vs. Alphacap Ventures and Richard Juarez (some early rulings go into extensive background), and last month’s final ruling came from U.S. District Court Judge Denise Cote. Cote found that patent tr0ll Alphacap had pursued a case against Gust, despite the U.S. Supreme Court ruling that made it clear it couldn’t succeed legally.
From the district court decision:
link to law.justia.com
This case is “exceptional” under the totality of the circumstances test articulated in Octane Ftiness … in light of Alice and its progeny. … No litigant could have a reasonable expectation of success on the merits …
That’s how it’s done, jurists. Just cut through the b.s. Let the CAFC make f0 0ls out of themselves resuscitating the plaintiff’s ridiculous ineligible “do it on a computer” cr@p if they want.
Cote has been reversed so many times at the appellate level it’s absurd she’s still on the bench. Specifically she’s been reversed on other patent fee holdings in the recent past.
The CAFC will rightly not revive the patent but there is no stautory basis for her fee determination.
IBM churning the junk out at unprecedented rates! The patents ranged from machine learning for securing the best answers to questions, to planning the best route based on a traveler’s cognitive state.
Oh, I bet those are some real winners, completely devoid of massive eligibility issues.
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