Affirming Arbitration Award

Bayer Cropscience v. Dow Agrosciences (Fed. Cir. 2017) (non-precedential).

The case here involves a set of genetically modified crops containing the pat gene, which confers resistance to the herbicide glufosinate.  Some of the crops include additional genetically modified resistance n a “molecular stack” with additional herbicide resistant genes such as aad-12 ( 2,4-D herbicide tolerance) and dmmg.

The parties here have a long history of licenses and cross-licenses. However, after an accusation of IP theft,  in 2012 Bayer sued Dow for infringing its U.S. Patent Nos. 5,561,236, 5,646,024, 5,648,477, 7,112,665, and RE44,962.  In response, Dow filed a set of for inter partes reexam requests (still pending)

That litigation was dismissed because of an arbitration agreement – that resulted in a $455 million arbitration award for Bayer for lost profits and reasonable royalty and also an arbitration judgment that the patents were not invalid.

In a non-precedential opinion, the Federal Circuit has affirmed the district court’s confirmation of the arbitration award with the minor exception of interest calculation.  Here, the arbitrator awards are powerful becaues they can only be overturned based upon quite “demanding standards” involving “manifestly disregard the law.”  A portion of the award included what appears to be post-expiration royalties. However, the Federal Circuit held that the manifest-disregard standard is so high that even those damages cannot be vacated (one of the five patents has not yet expired).

= = = =

This case is actually the first time that I have seen the arbitration award submitted to the USPTO as required by 35 U.S.C. § 294(d).

(a) A contract involving a patent or any right under a patent may contain a provision requiring arbitration of any dispute relating to patent validity or infringement arising under the contract. . . .

(d) When an award is made by an arbitrator, the patentee, his assignee or licensee shall give notice thereof in writing to the Director. . . . The Director shall, upon receipt of either notice, enter the same in the record of the prosecution of such patent. If the required notice is not filed with the Director, any party to the proceeding may provide such notice to the Director.

(e) The award shall be unenforceable until the notice required by subsection (d) is received by the Director.

However, anyone inspecting the award will notice substantial redacted portions (including portions relating directly to the validity and infringement issues).  I would suggest that submission does not fully comply with the requirements of Section 294.

113 thoughts on “Affirming Arbitration Award

  1. Focusing for a moment in a separate line of thought related to patent law and this article:

    I would suggest that submission does not fully comply with the requirements of Section 294.

    Two items:
    1) there is no way to track this (outside of brute force file wrapper review and then extensive court cross referencing). I would not be amiss to the Office making this (public) information more accessible , leastwise on its end of what has been reported to it under the law.

    2) anything not so reported (and perhaps to the good professor’s point – reported to the extent outlined in the law) LACKS legal enforcability. Counsel on the “losing end” should be seeing that such items so directly impinging enforcement should be followed through – as required – or the checks put on hold.

    1. The highly confidential material of the losing party is redacted under a protective order. It has zero to do with the pstnet. If they want to have it revealed publicly then so be it.

  2. Arnold Schwarzenegger isn’t voluntarily leaving the Apprentice, he was fired by his bad (p@ thetic) ratings, not by me. Sad end to great show

    The so-called “leader” of the free world is a 70 year old crybaby who’s only expertise is filling his diapers and l ying.

    How low has President Obama gone to tapp my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!

    We’re letting this l0 wlife l 0 ser pick the next director of the PTO? And the next Supreme Court Justice? Wow. Your Republican President, folks.

    1. Your thin tie (nominate the director of the USPTO) is an empty gesture to cover for your typical screed.

      Prof., come up with a new by-line yet?

      1. Pretty sure the fact that preznit asterix is — to put it charitably — profoundly ment @lly unstable and also stone ig n0 rant is a fact that should concern everybody.

        I also know that I didn’t vote for the r@cist mis0 gynist c r e e p. On the contrary, I did everything I could to spread the word around that this wasn’t a “normal” election and silliness about how “they’re all the same” wasn’t going to fly.

        But a lot of patent attorneys voted for him, or they didn’t vote at all (or they pretended to cast imaginary “protest votes” — very powerful stuff!). And those attorneys mostly tend to hang out at your favorite blog, “anon”, right alongside you.

        It’s kinda funny that you don’t want anybody to talk about this stuff. I get it. I’d be embarrassed and ashamed, too, if I were you.

        1. “I did everything I could”

          MM did everything he could to put voters off from voting for his party. And he’ll continue to do so.

          Keep up your raycycistisms, xenophobialisticistisms, etc. bro.

          “that this wasn’t a “normal” election ”

          That’s true. You, and everyone like you, told them that if they want to keep the merica they have, or anything resembling it, then they have to vote for a maniac raycyst mizogynicalismist etc. etc. candidate. And if they’d like to not have that merica, at all, and instead have an unrecognizable shthole, on its way to revolution, where they’re routinely called names for literally no reason other than them being born, and “victims” are considered better than they are socially by birth or choice, in a few years then they should vote for your candidate.

          I can only guess how much MM et al. helped Hillary out.

        2. MM, speaking of rants…

          Obama denied ordering the wiretaps and declared that he does not interfere with independent investigations implying that he neither ordered the wiretaps nor ordered the investigation.

          From my understanding, and correct me if I am wrong here, there were two requests by someone in the Obama administration for FISA warrants to spy on Trump. The first one was denied. The second one granted.

          Would you not want to know who ordered any investigation and what was in the second request for a warrant that persuaded the judge to grant it?

          1. You’re getting this from Breitbart, which got it from Thursday radio talk shows?

            Have an investigation. If they can investigate Benghazi for years, I’m sure they can investigate this for many more.

            Although if they’re going to investigate this, why not investigate Russian contacts?

            1. Two separate sources with links to the counter-intelligence community have confirmed to Heat Street that the FBI sought, and was granted, a FISA court warrant in October, giving counter-intelligence permission to examine the activities of ‘U.S. persons’ in Donald Trump’s campaign with ties to Russia.
              Contrary to earlier reporting in the New York Times, which cited FBI sources as saying that the agency did not believe that the private server in Donald Trump’s Trump Tower which was connected to a Russian bank had any nefarious purpose, the FBI’s counter-intelligence arm, sources say, re-drew an earlier FISA court request around possible financial and banking offenses related to the server. The first request, which, sources say, named Trump, was denied back in June, but the second was drawn more narrowly and was granted in October after evidence was presented of a server, possibly related to the Trump campaign, and its alleged links to two banks; SVB Bank and Russia’s Alfa Bank. While the Times story speaks of metadata, sources suggest that a FISA warrant was granted to look at the full content of emails and other related documents that may concern US persons.
              The FBI agents who talked to the New York Times, and rubbished the ground-breaking stories of Slate ( Franklin Foer) and Mother Jones (David Corn) may not have known about the FISA warrant, sources say, because the counter-intelligence and criminal sides of the FBI often work independently of each other employing the principle of ‘compartmentalization’.
              The FISA warrant was granted in connection with the investigation of suspected activity between the server and two banks, SVB Bank and Alfa Bank. However, it is thought in the intelligence community that the warrant covers any ‘US person’ connected to this investigation, and thus covers Donald Trump and at least three further men who have either formed part of his campaign or acted as his media surrogates. The warrant was sought, they say, because actionable intelligence on the matter provided by friendly foreign agencies could not properly be examined without a warrant by US intelligence as it involves ‘US Persons’ who come under the remit of the FBI and not the CIA. Should a counter-intelligence investigation lead to criminal prosecutions, sources say, the Justice Department is concerned that the chain of evidence have a basis in a clear  warrant.

              In June, when the first FISA warrant was denied, the FBI was reportedly alarmed at Carter Page’s trip to Moscow and meetings with Russian officials, one week before the DNC was hacked. Counter intelligence agencies later reported to both Presidential candidates that Russia had carried out this hack; Donald Trump said publicly in the third debate that ‘our country has no idea’ if Russia did the hacking. The discovery of the Trump Tower private Russian server, however, communicating with Alfa Bank, changed matters, sources report.

              To further complicate the story, the FISA warrant was allegedly granted in part because of the involvement of Vladimir Putin’s own daughters. One is married to a senior official at Gazprom, where Carter Page and Paul Manafort reportedly have holdings; another to Kirill Shamalov, a banking official.
              The fact that the alleged warrant was a FISA warrant is itself significant. The court exists to grant warrants to examine cases concerned with Foreign Intelligence.
              Pursuant to FISA, the Court entertains applications submitted by the United States Government for approval of electronic surveillance, physical search, and other investigative actions for foreign intelligence purposes.  Most of the Court’s work is conducted ex parte as required by statute, and due to the need to protect classified national security information.
              Bradley P. Moss is a national security lawyer. He told us:
              If a FISA warrant was issued, it does not necessarily mean that the court considered any U.S. persons as literal ‘spies.’ I can imagine an argument having been made that there was probable cause to believe they were “agents of influence” who were unwittingly being influenced by a foreign power.
              If the operation concerns suspected money laundering involving a foreign government, the FISA warrant could theoretically encompass U.S. persons in that limited context. A FISA warrant is authorization to collect evidence, not to arrest.

              On October 9th, the Trump campaign released a large number of documents pointing out what they alleged were Hillary Clinton’s ties to Russia.  On October 12th, rumors of a FISA warrant started to surface online.  Donald Trump’s campaign had not answered requests for comment on the matter at time of going to press.

              There were then links to multiple twitters where “ex FBI Counter Intelligence agents” were quoted to the effect that a FISA warrant on Trump was in the works.

              1. Sounds like a big bunch of nothing. Probably Trump was within a “hop” or two of the people, and thus got tapped, or was potentially to be tapped (but maybe never actually was).

                A big bowl of meh.

                1. 6, but still…

                  Verbatim transcripts of Trump’s calls with Mexico and Australia, of Flynn’s talks with the Russian Amb.

                  Released?

                  Regardless of whether there is a special wiretap, the release of such conversations violates constitutional rights, undermines our constitution when conducted against one party, and to boot, is a felony. The people behind it are criminals and traitors.

              2. Ned if you’re interested in big happenings I’m not sure if you’re aware of the issue with professor Peterson of late. He was being forced to use trans pronouns up in his classroom and the “human rights” people in canada are doing craziness. You lawyers might be interested in this political happening. Seems like we’ve (or canada and their commonwealth or something) has setup a social justice “tribunal” that can basically take all your property etc and put you in jail if you don’t pay their fines in their attempts to impose “social justice”.

                link to youtube.com

                1. 6, my point. And thanks.

                  We need to fight the craziness at its source: higher education.

                  All the riots on campuses are helping us all understand just how bad it has gotten. Pictures are worth a thousand words.

                2. “We need to fight the craziness at its source: higher education.”

                  Yes, and it’s looking like it will fall to my generation to do something about it.

            2. update link to msn.com

              The reporter emphasized that the warrant was not authorization to do a wiretap.

              However, tonight Gingrich said on O’Reilly that the fact that Flynn was wiretapped (there were transcripts) proves Trump was wiretapped/bugged because that is where Flynn was when he contacted the Russian ambassador.

  3. Idea, and I have said this before, in order to “fix” the immigration problem as simply as possible, require US employers to pay non US citizens 20% more than the average wage for American workers for the same job in the local area.

      1. There’s probably a legal way to do it without (il)legally discriminating and without changing current protections. Might even be called/fall under “affirmative action” (aka already legalized discrimination) lol.

    1. I’m not convinced that such would solve things Ned. They’d just ignore that, just like they ignore the current laws prohibiting hiring illegals.

        1. Um, they can already go to jail just for hiring illegals iirc. I’m pretty sure they’re more scared of jail than a fine.

          But, I might be wrong.

          And I do think it would be hilarious to turn “affirmative action” on its head like this.

          Like pottery.

            1. Saying it’s like pottery is an intentional messing up of “it’s like poetry” where george lucas was describing his prequels all being like poetry where they rhyme with each other as episodes. Because lucas fed up.

              link to youtube.com

  4. OT, but surely Jason can appreciate the pricelessness of this:

    An Iowa lawmaker who is pushing a controversial bill that caps the number of Democrats that state universities can hire as professors claimed on a government web site that he got a “business degree” from the “Forbco Management school.”

    But State Sen. Mark Chelgren’s alleged alma mater is actually a company that operated a Sizzler steak house franchise in southern California and he doesn’t have a “degree,” Ed Failor, a spokesman for the Iowa State Republicans, told NBC News.

    “This was a management course he took when he worked for Sizzler, kind of like Hamburger University at McDonald’s,” Failor said. “He got a certificate.”

    Surely Iowans can do better than this.

      1. Here’s a serious question for you: do you want Jeff “Good People Don’t Smoke Pot” Sessions (a Republican — just like good ol Mark Chelgren!) making decisions that might impact patent law?

        Or would it be better to have an attorney general who isn’t a r@ cist l i ar with really bizarre ideas about marijuana and gosh knows what else?

              1. It appears that the malignant house-elf is taking the first baby steps towards his ultimate resignation in disgrace.

                Good. If there’s any justice, he’ll die in jail along with his boss.

              2. Just remember, “anon”: this m@niac presnit asterix who actively courted r@cists with an unrelenting l i e about Barack Obama’s birthplace also openly invited Russians to hack their way into US computers so he would have a better chance of winning the election.

                Try to keep this in mind as we move forward.

                We have a mentally deranged person running the country. I don’t care what your focus is — patent law, traffic law, pot law — this guy and the incompetent criminals he’s surrounded himself with have only two goals: take everything shiny for themselves and burn everything else down.

                This is all right out in the open. Also too is your fake “protest vote” because you couldn’t tell the difference between a ment@lly ill authoritarian g 00 fb @ll failure of epic proportions and a competent leader.

                1. What the H as any of that to do with THIS blog?

                  Prof. Crouch – please change your by-line or at least move this CRP off the main page.

                2. THIS blog

                  A patent blog. Patents are granted by the USPTO, an administrative agency.

                  It’s the same administrative agency that you and your cohorts have been doing your best to undermine since, well, forever. Why? Because the harder you make it for the PTO to do its job, the easier it is to get a patent out. Hence all the luvvin for Trumplethinskin.

                  If you cared about “patent quality” (and you surely do not) you could be doing coming up with all kinds of reasonable suggestions to ensure that the PTO has better access to the smartest examiners and the best searching tools. But instead you do the exact opposite. And to top it off, your mentor and hero pulls the lever for a cl 0wn who wants nothing more than to plunder whatever he can and then burn the whole thing down.

                  You think nobody’s noticed this?

                3. Take off your tinfoil hat and pay attention to what I actually state.

                  Sorry Malcolm, but I just don’t fit into your desired script.

                4. FURTHER,

                  Your instant whine here has ZERO to do with the point of respecting what this blog – as indicated by the by-line – is supposed to be about.

                  Why don’t you apply the smallest bit of self discipline and constrain your rants and whines to at least be pertinent to patent law?

                  That really is not all that much to ask (or enforce…).

                5. I just don’t fit

                  Yes you keep saying that. You’re a real rebel! You soar above it all, in your own mind.

                  Meanwhile your actions speak volumes. Nobody’s fooled “anon”. Give us a break, please.

                6. Why don’t you apply the smallest bit of self discipline

                  Says the guy who s0ck puppeted this blog with a zillion nonsensical posts a day to disrupt any and every effort to plainly identify the issues in Prometheus v. Mayo and Alice and dozens of other cases.

                  But he’s totally not a huge hypocrite. Nope. He’s a very serious person! And there’s just nowhere else for him to go where his awesome views can be echoed all day long, 24-7.

                7. Stopping the baseless and mindless ad hominem would be a great place to start.

                  Try to focus: patent law

                8. Alice…?

                  Take a guess from between you and I which of us has used more sockpuppets in the last five years.

                  That Accuse Others Of That Which Malcolm Does meme of yours… once again, your main “go-to”

                  What a putz.

                9. As to “nonsensical posts a day to disrupt any and every effort to plainly identify the issues in Prometheus v. Mayo

                  you would be absolutely incorrect on your assertion as well.

                  There was no such “disruption” – the only thing being disrupted was the typical propaganda efforts of you and your “cohorts.”

                10. “If you cared about “patent quality” (and you surely do not) you could be doing coming up with all kinds of reasonable suggestions to ensure that the PTO has better access to the smartest examiners and the best searching tools. But instead you do the exact opposite. And to top it off, your mentor and hero pulls the lever for a cl 0wn who wants nothing more than to plunder whatever he can and then burn the whole thing down.”

                  I can agree with your criticism of anon et al. doing what they can to fight Alice etc. but I really cannot comprehend what you think they’re going to do in the way of making suggestions about hiring, and search tools. There really isn’t much better way to get talent than to pay more for it or give benes (examiners already have a lot of the later). And there isn’t that much better practical ways to search other than just giving more time and commands from above to use the already in existence search mechanisms.

                  I’m not really sure what kind of genioos suggestions you think they’d be giving.

                  Overall though I cannot say that I think the PTO is being kneecapped by righties so to speak. That hypothesis just doesn’t fit the facts on the ground.

                11. I can agree with your criticism of anon et al. doing what they can to fight Alice etc

                  That is completely different than his accusations, 6.

                  Knowing why such as myself “fight” Alice is rather important to know, else you are bound to make inane statements like the one you just did.

                12. “That is completely different than his accusations, 6.

                  Knowing why such as myself “fight” Alice is rather important to know, else you are bound to make inane statements like the one you just did.”

                  He “accused” you of that no fewer than 3x in the last month alone I’m pretty sure. Or rather just pointed out that you do it.

                  If you’d like to tell us all why you “fight” alice we’re all ears. Corruption? Scofflawism? Covetousness of entitlements? Desire to protect inventions in contravention of the constitution? Explain it in your own words.

    1. Denial, with Rachel Weisz
      link to imdb.com

      They so true story where a Jewish professor and author of a book criticizing Holocaust denier David Irving, was sued for libel by Mr. Irving. In order to prove that she had not libeled Mr. Irving, she had to prove that the Holocaust actually happened. That was not that easy, but she did so in a very close case.

      But at the end of the movie, the Rachel Weisz character is defending herself against the charge that by silencing Irving she was acting contrary to the right of free speech. To this she said she was defending the right of free speech by suppressing the right to abuse that privilege by publishing as truth, falsities.

      Now where have I heard that before?

      1. Not sure what your point is, Ned.

        It is axiomatic that Free Speech means that such includes things that people do not like (and short of libel, even such things as “falsities”). Of course, such Free Speech – as a claim to write “whatever” has NOT been used as a defense here on this blog, and Prof. Crouch has publicly stated (whether or not enforced) that L I E ing is not allowed.

        1. anon, there has been a lot of reporting about this or that recently that is truly uncorroborated and when investigated wrong or false at least in some details. As well, that which is reported is spun in a way to make the report a half truth at best, and false as a whole.

          Just one example: Recently Trump said that “fake news” is an enemy of the people.

          Inside the US, Trump’s statement was headlined as Trump calling the media the enemy of the people. Outside the US, the headline was Trump attacking “fake news” as the enemy of the people.

          Of course, in the US, the enemies of Trump hammered Trump’s “assault on free speech.” Mike Wallace was one of them — an to me, Wallace always seemed fair and not prone to spin. But, on this day, he made no distinction that what Trump was attacking was “fake news.”

          Turning back to Denial and its message, pointing out and demonstrating that someone’s statements are not true is not an attack on freedom of the speech because there is no right to deliberately lie. Lying is the stuff of libel, and when used by the media to bring down the leader of an opposition party? Such media are truly the enemy of political freedom itself.

          I must say that almost all Republicans believe this to be true of the fake news media that dominates America. They justifiably believe the fake new media are hyper-partisan and cannot be trusted at all to tell the unbiased truth rather than spinning half truths and lies.

          1. “Inside the US, Trump’s statement was headlined as Trump calling the media the enemy of the people. ”

            You mean by the mainstream media. The very fake news he was calling out.

            And to be sure, the mainstream media is very good at reporting facts. It just isn’t very good at reporting all the relevant facts. It selectively reports facts, complete sometimes with a bit of spin, to bolster their narrative to further their own agenda and their own power.

            “I must say that almost all Republicans believe this to be true of the fake news media that dominates America. They justifiably believe the fake new media are hyper-partisan and cannot be trusted at all to tell the unbiased truth rather than spinning half truths and lies.”

            Not just republicans. Even staunch democrats are slowly awakening to their own mass media induced trance/indoctrination.

            The fact is, the media’s interests are not the same interests as those of the people. Thus one cannot expect them to report facts that undermine their own interests. Why would they? They have freedom of the press, literally the freedom to not publish that which they do not want to publish.

            The only thing I cannot believe is that conservatives never bothered to make their own cultural/mass media apparatus.

            1. Or, for that matter, do something about the left’s dominance in the Ivy League schools, Standford and other universities who produce the leftist media and America’s elites.

              1. do something about the left’s dominance in the Ivy League schools, Standford and other universities

                Oh, l00kie: it’s a snowflake having a sad.

                1. MM said right before my generation ends the left’s dominance in the Ivy league schools, stanford OR at least other universities.

                  My generation knows to much about what is going on to let this continue onwards into our old age MM. Bank on it. You guys were able to keep everything chugging right along for years and years with the vast majority of people being none the wiser. Now word is spreading, ever further every day. And what has been found out in this arena can not be un-found out.

                2. what has been found out in this arena can not be un-found out

                  The most unpopular preznit in history is a path 0l0 gical lying r@ cist mis 0gynist t0 0l.

                  I agree we can’t unlearn that fact.

                  We’re just a month and half into this disaster, remember. It’s only going to get way way way worse.

                3. The most unpopular preznit in history”

                  MM> Ist ist ist ism ism ism (ableist insult)!

                  “We’re just a month and half into this disaster”

                  MM> 7.8 more years!!! !!11 11! 1!! !11

            2. the mainstream media … selectively reports facts

              Totally different from the wingnut fever swamps where 6 learned Ten Really Surprising Facts About Women.

              1. MM, any partisan media is prone to “bias.”

                Since it seems impossible to have a media organization that does not have bias, we need major media on both sides, let the public what both.

                After all, there is a reason Fox News has double the viewers of CNN and MSNBC. Fox has a monopoly on Republican bias. CNN and MSNBC have to compete for leftist viewers.

                1. CNN and MSNBC have to compete for leftist viewers.

                  LOL

                  CNN and MSBC are about as “leftist” as Joe Lieberman.

                2. Thanks for reminding us, MM, that the left will fight each other even while facing a common enemy: Commies vs. anarchists while facing the forces of Franco in the Spanish civil war.

                  I pointed this out when the former commie became president of Brazil. I predicted that she would soon target the other commie bosses who held the favellas. Soon enough, she did.

                  If one were to look behind her fall in Brazil, I would look right here. Who was displaced and who had motive for revenge.

                3. And, btw, MM, you will see nary a report on all this in the US mainstream media who seem bent on covering up the ways and mysteries of the left. But, since the internet, one can find accurate reporting on news from outside the US.

                4. “CNN and MSBC are about as “leftist” as Joe Lieberman.”

                  Two things:

                  1. I’d say they lean more left than Joe. But they certainly do, as ned notes below, cover for the left by not reporting facts that go against the narrative that the left tries to spin. And like Ned noted, since the interbuts is here we can start to get the facts anyway, without them effectively censoring the facts we get.

                  And I should note that they’re not just covering for lefties out of the goodness of their own hearts, or their beliefs, though some of that happens no doubt. They do it literally at the behest of their bosses (those low on the totem pole), or if they are the bosses, they’re doing it literally to up their standing with high up political leaders so they can rub elbows, get access, etc.

                  2. Your conception of left vs. right is currently being distorted as you view our current left-leaning political environment as “the norm” or “the center”. It isn’t. We’re way left leaning culturally in the country as a whole, and the political situation is still left leaning as well, even though the leaders have been purged and it will begin swinging towards the other way shortly. We still have a long way to go before we reach even something near equilibrium.

                5. they certainly do, as ned notes below, cover for the left

                  LOL

                  Thank you for your “certaintly”, Mr. Limpb@lls. You’re a very serious person!

                6. Ned Heller totally keeping up on the Brazilian politics. Deep, deep stuff and it’s a total mystery why it’s not front page every day in the New York Times. Must be some kind of cover up!

                  This would be the same Ned Heller who was frothing at the mouth about “voter fraud” a few years ago. He’s a very serious person!

                7. I’d say [CNN and MSNBC] lean more left than Joe.

                  You can say that all you want. It doesn’t make it true. Because it isn’t true.

              2. “Totally different from the wingnut fever swamps where 6 learned Ten Really Surprising Facts About Women.”

                Your attempt at sarcasm is not needed. I never implied that it is totally different from the “wingnut swamps” as you like to refer to various places as.

                My point is that the general population is waking up to the fact it literally is NOT much different than the “wingnut swamps”. It’s just that the left was able to hide their “wingnutitude” under at least a cover of actually reporting some facts well and taking a “faux moral high ground”.

                Both sides have facts and emotions that they’d rather not pay attention to, or publish. And that’s a rather large problem with especially the modern corporate press. Possibly with the press of yesteryear as well but I don’t recall it as having been that bad.

                1. the general population is waking up

                  Right here is a whole weeks worth of laughs.

                  We’re way left leaning

                  ROTLFMAO

                  the leaders have been purged

                  LOL

                  it will begin swinging towards the other way shortly

                  Not really how it works but, hey, “your generation” is really up on all this stuff . You said so! And you’re really, really, really smart and cutting edge.

                  How’s your ped0 hero M.Y. doing, by the way? He seems kinda quiet these days. Maybe you and “your generation” should organize a big concert to help him out and show your awesome support. We’ll all be really impressed! Really, really impressed. Because — again — you’re so smart and cutting edge. Very edgy! Nobody’s heard your ideas before. Very shiny and very new.

                  My generation knows to much about what is going on

                  ROTFLMAO

                  Can you really see that well out of those pillow cases?

                2. “Right here is a whole weeks worth of laughs.”

                  You can sit and lol all you like, but more and more people tell me, and show irl behavioral changes directly attributable to being wake to politics more than they were.

                  “M.Y.”

                  Milo is doing fine last word I heard, he’s been on vaca since his tour ended, and of course the br uha ha came through after he went on Maher’s show, and he went back to vaca for a bit. Getting ready for next tour, and getting book published by someone else, to make more $ $ $ (thanks for free press l efty media).

                  “Nobody’s heard your ideas before”

                  You don’t even know what ideas I have. And you probably don’t even know what ideas Milo has except for the ones that your lefty media sp oon fed you.

                3. MM will love this article wherein “immigration activists” literally, I sht you not, argue that the US should be the woman’s shelter for central America.

                  link to yahoo.com

                  Why stop there? Why not make the US the women’s shelter for the whole world? We can put the kids through school, pay for their medical services, etc. etc. on rich whitey’s tax bill.

              1. MM brosef, Rush limb and Fox (and more recently drudge and a couple more small time recent startups) do not compare to the overwhelming power of MSNBC, CNN, NPR, ABC, AP, and on and on and on.

                That conservatives are finally getting around to constructing a newsmedia apparatus is very much to their credit. Andrew Breitbart is said to have helped lead the way.

                But they still have practically no cultural apparatus in the media. Just a smattering of small time christian broadcasts is about the only thing in that sphere. It cannot hold a candle to hollywood’s corrupting influence.

          2. Trump is a well-documented path 0 l0gi cal l i a r who can’t coherently articulate his administration’s own policies consistently from one moment to the next.

            Recently Trump said that “fake news” is an enemy of the people.

            Remember: this is the same Trump who spent years inciting r@ cists with a l i e about Barack Obama’s country of birth.

            Meet Ned Heller: a r0tten lawyer and a worse human being.

            1. MM, you can believe what you want about Trump. People who know him think differently that you do about him. I simply rely on their statements rather than the accusations and hyperbole from those, such as yourself, who are highly motivated to see things in their worst possible light. As he actually governs, his biases will reveal themselves.

              As we previously discuss and from the O-man’s consistent actions over numbers of years, I think it become clear that he was biased against Israel, and that the source of that bias was a belief they they were “rich white guys” who were oppressing the poor brown folk. That is what the good Reverend Wright use to say, and he was a good pal/disciple of Minister Farrakhan. When Kerry blasted Israel for being right wing, we began to peal back another source of the O-man’s bias. The rich white guy and right wing narrative go hand in hand, do they not?

              Then there was a recent piece published by some physiologist that said that people who publicly denounce others as r aaa cist or the like are doing so either because they themselves feel guilty, or because they want to assure others that they are very, very goo people.

              The bottom line, normal, particularly, adult people don’t go around calling other people names. They criticize the actions of others if called for, based on reasoned arguments and evidence.

            2. “Then there was a recent piece published by some physiologist that said that people who publicly denounce others as r aaa cist or the like are doing so either because they themselves feel guilty, or because they want to assure others that they are very, very goo people.”

              Lol one recent piece? There’s been like literally a thousand in just the last month alone. White guilt and virtue signalling are the topics on everyone’s tongue as we learn the root of MM’s and other lefties madness. Of course, those lefties in power or seeking power are using that virtue signaling to try to obtain power in addition to telling people that they’re very very good people.

              What MM doesn’t understand is that most people his age didn’t understand virtue signaling and white guilt the way people are going to in the future very shortly. Soon they will become more passe, precisely because they are revolting once you understand them.

              But if you saw one piece in particular drop us a link.

          3. Lying is the stuff of libel

            It’s also incredibly commonplace and Donald Trump is, beyond any doubt, the lyingest l i a r who ever occupied the White House. He’s a con man and a bully. There’s nothing else there. And if you can’t see this and admit it, then you’ve either got the brain of an infant or you’re no better than he is.

            [shrugs]

            almost all Republicans believe [Ned’s ridiculous b.s. about the so-called “liberal media”]

            Drinking the kool-aid and not questioning it is very, very important to Republican “ideology.” They love their daddy figures. Bow down and submit and wave, wave, wave that flag.

            1. “There’s nothing else there. ”

              Oh now now, the man has a pretty decent fam at like 15 kids+grandkids already, and Barron isn’t even grown. You’ve got to give him that much. He’s a much better family man than you are.

          4. Ed the Ned: Look to no other than your very own Mark Lemley as one of the people that is responsible for this state of affairs.

            Mark Lemley is unethical and does not care about science or the law to get his judicial activist goal achieved. You want to go back to a real society –start by demanding that Stanford do something about Mark Lemley.

  5. Dennis,

    This is a fascinating case (it you’re an arbitration geek, I guess) because it portends a direct conflict between arbitration/the PTAB/Article III courts.

    Game this out: Patent holder enters into a patent licensing agreement which includes an arbitration clause under the Federal Arbitration Act (FAA). Licensee breaches the agreement and Patent Holder files a demand for arbitration. Licensee files a petition for IPR. Arbitrator rules in favor of Patent Holder that the patent is valid and infringed and awards damages. The PTAB invalidates the patent and that final order is upheld by the CAFC.

    Patent Holder files a motion with the district court to confirm the arbitration award and Licensee files a motion to vacate pointing out that the patent has been held to be invalid by the PTAB and by the CAFC.

    If this dispute arises in a circuit which doesn’t recognize manifest disregard of the law as a basis to vacate an arbitration award under the FAA (see Hall Street v Mattel), which trumps? The arbitration award in favor of the Patent Holder or the PTAB/CAFC invalidating the patent?

    Given the Supreme Court’s love affair with arbitration, I suspect that it would result in the arbitration award being upheld.

    B

      1. Nope. SCOTUS would make some exception for patent cases. And why not? They are creating unique patent jurisprudence all over the place.

      2. Have a read of the argument from the other week in Kindred Nursing Centers v. Clark. I was not seeing the total love for arbitration, surprisingly, from the conservative side of the bench.

        I think if this hypo ever came to pass, the USSC would find that the AIA preempts the FAA in the context of patent validity, both for reasons of statutory interpretation and for the fact that, absent all other considerations, due process is more manifest when dealing with an expert agency than a general arbitrator on the technical matter of patent validity.

        1. Also, in the matter of a patent’s validity in an IPR, the public is presumed to have an interest in the outcome, and was not a party to the arbitration agreement. I don’t think it would even be close.

          Would the PTAB institute in the face of the arbitration agreement? That’s a more interesting question than what would happen if it did and invalidated.

    1. Doesn’t including an arbitration clause imply an agreement by the parties to solve disputes solely through arbitration and other than through the costly route of courts or going the IPR route?

      I mean if one is to “shake” on arbitration as being a single route which is less costly than other alternative routes to solve disputes, shouldn’t multiple parallel routes, such filing petition for IPRs after arbitration has commenced be prohibited by mutual agreement? I mean wouldn’t all licensing agreements with an arbitration clause in a particular respect also be drafted to eliminate the possibility of conflict through other routes?

      I assume that a license agreement is meant to be “an agreement to agree” not “an agreement to disagree”.

      1. anony: I mean if one is to “shake” on arbitration as being a single route which is less costly than other alternative routes to solve disputes, shouldn’t multiple parallel routes, such filing petition for IPRs after arbitration has commenced be prohibited by mutual agreement? I mean wouldn’t all licensing agreements with an arbitration clause in a particular respect also be drafted to eliminate the possibility of conflict through other routes?

        If the agreement was drafted competently …

    2. The parties contracted to settle their disputes regarding the patent(s) by arbitration. So the licensee waived its right to avail itself of Article III courts, let alone IPRs before the PTO, if it wants to challenge the validity of the patent(s).

      That contract doesn’t preclude unrelated parties from filing an IPR. So in the scenario that Bemused described, the arbitration award could be upheld and the PTAB IPR decision vacated on procedural grounds. Any interested third party could then take the licensee’s IPR arguments and re-file them, and presumably get an outcome of invalidity. And in that case, the patentee/licensor would be stuck with an invalid patent. But the licensee would still owe the licensor $$, per the arbitration agreement.

      Reminds me of Evander Holyfield in semi-finals of the 1984 Olympics. link to evanderholyfield.com

  6. So now Dow has $455 million reasons to push for a new director and a favorable outcome in the IPR. Folks, our system really is just not set up for political appointees and APJ’s, to preside over money judgments like this. Void ab initio. You are now going to tell me that an arbitration award is more sacrosanct than a final adjudication of an Art III court? Amazing what a dim view the courts are taking of themselves.

    1. our system really is just not set up for political appointees and APJ’s, to preside over money judgments like this.

      LOL

      Seriously?

      Meet “iwasthere”, another patent maximalist hypocrite. Tune in next time when he complains about his precious freedom to contract being eroded by some “rogue” court.

  7. Thanks, and note similar mandatory PTO recording requirements for settlements in interferences, and 35 U.S.C. 337(b) for post-grant proceedings.
    “(b) Agreements in Writing- Any agreement or understanding between the patent owner and a petitioner, including any collateral agreements referred to in such agreement or understanding, made in connection with, or in contemplation of, the termination of a post-grant review under this section shall be in writing, and a true copy of such agreement or understanding shall be filed in the Office before the termination of the post-grant review as between the parties. At the request of a party to the proceeding, the agreement or understanding shall be treated as business confidential information, shall be kept separate from the file of the involved patents, and shall be made available only to Federal Government agencies on written request, or to any person on a showing of good cause.”
    One question that can arise is whether or not a royalty-free cross-license between the parties to the subject matter that leads to a settlement [by concession or by one or both parties just dropping out] is covered by these statutes?

    1. The assignments in writing is one GIANT red herring here Paul.

      Such has ZERO bearing on the point of law under actual discussion.

      Play better please.

        1. The better question is how did you?

          Oh wait, you might be operating under some “new” structure for the federal agency known as the patent office….

          (Am I holding up the “S” sign high enough?)

  8. Dennis –

    Why do you feel that “notice thereof” means anything other than Notice that AN award was made by an arbitrator?

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