Wrongly Affirmed Without Opinion: At the Supreme Court

Shore v. Lee (Supreme Court 2017)

In a new petition for writ of certiorari, patent attorney and inventor Michael Shore has challenged the propriety of the Federal Circuit’s continued approach of affirming patent office decisions without opinion. In a forthcoming article titled “Wrongly Affirmed Without Opinion” (Wake Forest Law Review), I raise the previously unnoticed requirement of 35 U.S.C. § 144 that the Federal Circuit issue an opinion in appeals from the Patent Office (PTO).  Although the Supreme Court generally permits its lower appellate courts to issue summary affirmances, I argue that the Patent and Trademark statutes take precedence in this particular situation.  The issue has come to a head with the large number of no-opinion judgments being issued by the court since the creation of the system of administrative patent trials (IPR/PGR/CBM).

Running with that argument, Shore raises the following three questions:

  1. Does the Federal Circuit’s affirmance without opinion of the PTO’s rejection of Petitioner’s patent application violate 35 U.S.C. § 144?
  2. Does the statute’s requirement that the Federal Circuit issue a “mandate and opinion” govern over Federal Rule of Appellate Procedure 36’s general permission for appellate courts to render judgment without opinion?
  3. Assuming that the Federal Circuit can issue an affirmance without opinion despite the language of § 144, does the Federal Circuit act within its discretion by issuing an affirmance without opinion that does not meet any of the criteria listed in Fed. Cir. R. 36(a)-(e)?

[Read the petition: 2017_WL_1406097]

Certainly, if the PTAB had issued its judgment without opinion, the Federal Circuit would have immediately vacated that decision. However, the appellate court suggests that the rules of opinion writing should not be self applied.

In the underlying case, Shore’s patent application (with co-inventor Charles Attal – founder of Austin City Limits Festival) covers a method for creating a custom video track of a live musical performance.  The claims were rejected as obvious – affirmed by the PTAB.  On appeal, Shore raised several challenges regarding both interpretation of the prior art and claim construction.  Rather than working through those arguments, the Federal Circuit simply affirmed without opinion.

137 thoughts on “Wrongly Affirmed Without Opinion: At the Supreme Court

  1. “patent attorney and inventor Michael Shore ”

    Dennis, I’m curious why you refer to Mr. Shore as a patent attorney?

    There are 7 practitioners named Shore on the register, but none appear to be him.

    1. Mr. Shore,

      I’ve now had the opportunity to skim your petition/brief in more detail. I think your petition is going to be refused, but I hope I’m wrong (because like many others, I don’t like these “no info” affirmances).

      If you had it to do over again, I think you should have focused it more carefully on the 35 U.S.C. § 144 questions and spent less time (and characters) on re-litigating the PTAB questions and whinging about that result.

      The SC doesn’t care about what happened at PTAB, it should only care about whether the CAFC did its job, which is your question.

      Your petition/brief realistically could have had 1/2 or less the page count it was.

      Just my opinion.

      1. The reason you show their were multiple potential errors is to show that it is impossible to know without an opinion to “guide” the prosecution on remand what of multiple potential amendments might get a patent. If you don’t show that guidance is needed, you are not showing the purpose of the statute was thwarted. The errors are relevant because they exist and there is more than one, therefore the patentee & examiner need the guidance an opinion might offer.

  2. Buried half way down – but worth posting on top as this deals with Paul’s repeatedpost (as well as the dust kicking from Malcolm and the Echoes):

    For all the mewling over the (suspected) worth or lack thereof of any claims in the case, the legal issue exemplified by the post at 10.3.1 bears a direct answer.

    As is sadly typical, there is a lot of dust being kicked up in the fallacy that looking to resolve the quite evident legal mistake is somehow (purposefully) confused and conflated with “defending claims.”

    Maybe people should be paying more attention to the law, and less attention to their anti-software patent Windmill Chases….

    1. Agreed.
      Either Mr. Shore is right on this point, or he isn’t; but either way it *is* the point of the post.
      If Judge Rich’s Ghost below at 14 would offer a link to the article he mentions, perhaps we would have an opportunity to see what Mr. Dowd thinks, and why.

    2. Mr Shore asks of us, how does he know (how to prosecute his case further).

      Is not the answer that when a court of appeal says (in effect) we agree with the court below, no more than that, it is implicit that it is adopting the reasoning of the lower court as its own.

      If that is so, Mr Shore has the answer to his question.

      1. No. That is not what Rule 36 affirmances mean. The meaning attached to a Rule 36 affirmance is that the “result” was correct, but it adopts none of the grounds from the decision below. So the affirming court might have agreed with 1, 2 or none of the grounds upon which the PTAB rejected the claims. So for me to go back and amend (as I was instructed at the oral argument), I would need to know if my amendment is to overcome Watson, Rui or some other reason the appellate court found the outcome correct (101, 112, etc.) that is not in any of the briefing, argument and certainly not in the word “Affirmed”. This is important for three reasons: First, an amendment to overcome one reference is likely to have more impact on the scope of the claims than another. An amendment that was not necessary but limits claim scope is literally shooting yourself in the foot for no reason. Second, an amendment that you believe is what is required, but the examiner disagrees leads to another costly appeal where somebody is wrong, but unless you get an opinion, there is no way to know. Third, perhaps the problems is something that literally cannot be fixed without rendering the claims worthless to enforce, so ANY amendment is futile, something you again might have to go through an appellate process to find out.

        What the statute REQUIRES is an opinion to GUIDE the continued prosecution so the time and money of the patentee and examines is not wasted and the later prosecution, if any, can be focused on the specific issues the CAFC found to be problematic.

        Would you go to a surgeon for a second opinion and accept him telling you that the prior surgeon’s diagnosis was “wrong” but have him refuse to tell you why or what treatment he would recommend to cure the issue? Or that your disease was incurable? It is a simple thing to ask the CAFC to simply say, “We agree with the PTAB decision insofar as the Watkins reference is analogous art and can be used in the 103 combination for the purpose of identifying a predetermined location for the capture of an image, and although the image in Watkins is not a video, the person captured in the image is not a user who can edit the image, is not for commercial purposes and is not stored, etc, we still find that it is analogous and one would have been motivated to combine it.” That simple statement would comply with the statute and give me some guidance on what to do on remand. What they are being asked to do is not hard unless to do it they have to violate their own precedents, the MPEP and common sense and have that on record in a precedential opinion. The violation of the statute allows the CAFC to simply duck the hard issues.

        1. If the Federal Circuit had written a three line opinion affirming the decision below and stating that that opinion had been studied, the contrary arguments in the appeal were found unconvincing and that the appeal would be rejected for the reasons stated by PTAB that would probably have met a legal minimum (if such exists). But would it really have made any difference?

          If the Federal Circuit had disagreed with any part of the decision below to any significant degree they would almost certainly have written a longer (probably non-precedential) opinion. So the Rule 36 decision simply is a shorthand for the slightly longer opinion indicated above.

          And frankly I have spent over 40 years of my professional life arguing cases through the USPTO, the EPO and national patent offices all over the world. Like most other competent attorneys, I do not need the guidance of a three-member judicial panel two of whom have degrees in English and geography and about two years part-time exposure to patent law to tell me how to structure my claims and arguments. I know perfectly well what should go through and how to present it, and so do most of my US colleagues. Indeed a draft response recently prepared by one of them on the basis of fairly fragmentary information from me was an absolute revelation and further enhanced my respect for the professionalism of US attorneys.

          Unfortunately I think that this is a case which is unlikely to go through. No second opinion from 2-3 inexperienced arts graduates in the Federal Circuit is needed.

          1. “I do not need the guidance of a three-member judicial panel … to tell me how to structure my claims and arguments. I know perfectly well what should go through and how to present it, and so do most of my US colleagues. ”

            Thanks Paul (Cole, if needed to avoid confusion). This is very well said. While as a member of the patent bar (US), I would very much prefer and find useful for the CAFC to state outright what caused it to agree with a PTO or lower court opinion in any given case, I also know in my own cases that what I can get patented is not going to be reliant on such statements.

    3. Maybe people should be paying more attention to the law

      LOL

      Remember when “anon” puffed himself up as the expert on “statutory interpretation” in the context of 271(f)? I sure do. Fun times.

      Get over yourself already.

      1. My views remain correct – you will note that 1 US 1 was expressly NOT overturned.

        Your admonition of “get over yourself” is yet another Accuse Others Malcolm meme…

    4. There are two Pauls posting. I have not commented on the patentability of any of these claims. Nor do I disagree with the premise that in a Fed. Cir. appeal from a PTAB rejection of a pending application on several grounds that if the Fed. Cir. does not agree with all of those grounds they should so indicate for guidance for claim amendments in a continuation which might render those claims allowable, as presumably the subject statute intends.
      But, self-evidently, insisting within proceedings governed by BRI claim scope [blessed by Cuozzo] that specification limitations [other than clear and unequivocal claim term “definitions”] must be “read into” rejected claims is highly risky.

      1. The emphasis on “repeated post” was the differentiator for the different Pauls, Paul.

        See Post 15 and post 13.

        Did you do such a repeated post here….?

  3. @ Michael Shore

    I am writing this as a separate comment.

    I have on several occasions made the following point in relation to inventive step:

    Groucho Marx said that he had discovered the secret of success in life. The secret of success is sincerity you’ve got it made. I am not as talented as he was. But I believe that I have discovered the secret of success in the patent system, with particular reference to section 103. The secret of success is surprising new function or result. If you can fake that you have got it made.

    Regretfully, the claims that I have seen on their face do not credibly point to any surprising new function or result within the domain of the useful arts. They therefore do not even rise to the level of a credible fake.

    1. Paul, your view of the patentability of the claims may be correct (or Mr. Shore’s may be, I neither know nor care).
      *But that’s not the issue*, despite what MM says.

      I think Mr. Shore has a valid point, and it’s a point that has been expressed by our host in his own post a while back – that Rule 36 affirmances of PTAB judgments are inappropriate and deny patent applicants something to which they are entitled: a written statement of reasons *why* the PTAB correctly decided the case (desirably, sufficient so that the applicant can decide whether to continue prosecution – and if so, what amendment might reasonably be useful – or abandon the application), and not merely a “We affirm”.

    2. I would add in cautionary note to the non-US jurisprudence driven commentators: inventive step is not the same as our non-obviousness requirement.

      Sure, they are similar and yes it is easy to think of the two serving “the same purpose,” but there is a relatively simple, but nonetheless historical context that provides a context of a stark difference:

      The reaction of our Congress against the (a decidedly anti-patent) 1930s-1940s Supreme Court whose then-permitted use of common law and multiple-termed “gist of the invention” jurisprudence was aimed at a Flash of Genius” requirement – a requirement expressly rebuked by Congress.

      So check yourselves people and if you find that your “step” sounds TOO close to some “Flash” in order to “deserve” a patent, you are likely not understanding the relative difference – and the admittedly meant-to-be-easier requirement that our Congress actually wrote into our patent law.

      1. In EPC, Art 56 (our 35 USC 103) Europe defines the inventive step thus:

        An invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art.

        We have always been influenced by the jurisprudence of other countries (after all, the European Patent Organisation has 38 Member States). We know the “Flash of Genius” concept from US law but not from our own.

        Art 56 EPC defines “inventive step” as that which is “not obvious”. One is the antonym of the other. It has always been trite law over here that the way in which the invention was conceived is irrelevant to its patentability. Only in First to Invent USA is the act of conception of claimed subject matter of any interest. What counts in FtF is constructive reduction to practice.

        1. interesting additions at several edges of my post, MaxDrei – thanks.

          (it remains though that US jurisprudence on the topic should not be casually assumed to be the same ‘thrust’ as ROW – the EPO may choose for itself “to be influenced,” but here in the States our controlling law remains ours – for a variety of reasons, including importantly the sanctity that we hold for our Constitution, which ROW lacks)

          1. One has only to study how three EPC jurisdictions (UK, Germany, EPO) decide what is or is not obvious under the EPC to realise how much scope there is for “sovereigns” to write their own jurisprudence, even when the words of the statute are identical. Nobody in Europe could for one second suppose that one sovereign “controls” another.

            Nevertheless, in today’s ever more connected world, a good idea in one country is likely to be seized upon in another. Not just in philosophy, physics, or how to raise tax revenue, but also in patent law. Conversely, the “Not Invented Here” closed mindset is as prevalent today as it ever was yesterday.

            In general, the world is crying out for new and clever ideas, wherever in the world they are conceived. Is that not also the case in patent law?

            1. Even though cries may indeed echo throughout the world, one must ever be aware of – and respectful of – what each sovereign may and may not choose to make their own.

              Good ideas are simply not mindlessly applied no matter the sovereign. The real world is simply more messy than that.

  4. It’s too bad Shore didn’t read Matthew Dowd’s article that squarely refutes the mistaken argument that Rule 36 requires an opinion.

    1. Of course Rule 36 doesn’t require an opinion. Shore’s point is that 35 U.S.C. § 144 does require an opinion, so that a Rule 36 affirmance does not meet the requirements of § 144.

      Also, Judge Rich wouldn’t make such an egregious error, so stop trying to put on airs that you obviously do not deserve.

      1. I have found Matthew Dowd’s article on SSRN.

        I found it less than compelling.

        At the critical junctures, there is simply too much assuming the conclusion to be proven.

        (it does carry with it a substantial “background” section, albeit one is left wondering if that background has been objectively completed)

        1. Interesting conclusory comments by an anonymous poster. Most experienced practitioners who have reviewed it agree with the conclusion. The problem with Shore’s and Crouch’s analysis is that it completely ignores the history and purpose of Section 144, as amended, as well as the Supreme Court precedent directly on point. But hey, have fun with the cert petition that will be denied.

          1. The 50 page tome is heavily geared to a minutia of “background” with its own conclusory comments.

            As a fellow anonymous poster, the rest of your jibe falls apart.

            As to the history and purpose of Section 144, the conclusory comments by the non-anonymous writer Dowd do not magically become any less conclusory just because he is non-anonymous.

            Quite in fact, I would invite you to count the number of times that Dowd reflects on the fact that for cases in which actions continue (and contrasting directly with his overplayed notion of ALL instances), 144 simply does NOT make optional the very heart of why the courts would even need to “report back” to the patent office.

            That’s a rather serious breach of purpose for those very words.

            As to any cert petition going forward being denied or not – that expressly does not change the legal picture here. You should be aware that the Court having at its own discretion what to take and what not to take is not preclusive in and of itself (a denial of cert just is not the same thing as the Court taking on a case and deciding against the person attempting cert).

            Please take a different moniker if you are going to be so shoddy on the law. You are not even close to being a ghost of the man.

            1. Interesting. You still avoid any consideration of the statutory analysis in Dowd’s article. Oh well, you can lead a horse to water but . . . .

              1. It is not a matter that I am “avoiding any consideration of the statutory analysis in Dowd’s article,” as you put it.

                First, the statement itself is false, as I have put (back) to you the very purpose in the statute that Dowd overlooks: the requirement to take a judicial opinion and put that opinion back into the executive agency that will be continuing the executive agency’s work (based at least in part on the court decision).

                I point out that Dowd’s own statutory analysis on this critical point is simply lacking and that he overplays a notion of “all decisions.”

                Second, you ploy a response (horse to water) that just does not fit, given the first item here. Your shoddiness continues, and now more than merely law, but in our conversation.

                May I suggest that instead of hurrying to respond with something that you may think to be witty, that you actually take the time to understand what is being said, focus on the content, and leave the quips out of your replies. I know that may be difficult for you – given your choice of moniker and all, but it really would be better for you and for any point that you may be trying to make.

                1. The problem with your “analysis” is that you presume the purpose of the statute without any consideration of the statute’s legislative history. There is simply nothing in the history of the current statute that indicates its purpose as being one to require the Fed Cir to write an opinion with reasons. And if Congress hadn’t wanted to impose that requirement, it would have used language that States have used when requiring state courts to write an opinion with reasons.

                2. There is no problem with my analysis.

                  I presume nothing, having studied the statute and its history.

                  All that you are doing here is making a bald (and wrong) statement. You are the one presuming that somehow different language would be needed to do what the current language does. There is NO such “required language” when it comes to patent law (just looking at the boatload of new language in the AIA should inform you of that).

                  You have merely glommed onto a speaking piece and YOU have done exactly what you accuse me of doing.

                  Not a working proposition for you, my friend.

  5. I tend to be conciliatory, and when I saw Malcolm’s comments I wondered whether he had gone over the top on this.

    So I went into Public Pair and looked at the originally published claims. Then I looked at the file wrapper and the recently amended claims. Sadly I can see nothing inventive whatsoever, and that appears very plain from a quick skim of the file. So I can quite see why the Federal Circuit issued a Rule 36 judgment, and believe that this is all the resources that are merited to this undeserving case.

    1. The 10 issued patents and 137 allowed claims beg to differ. The priority date is 11 years ago. Nothing remotely like it existed. If there was “nothing inventive” that still does not relieve the Fed Cir of its obligation to follow the law. Without an opinion, there is no “guidance” on how to amend to gain patntability. The thing you should read is the 5 reference, hindsight driven rejection and the transcript of the oral argument where the solicitor literally admitted Watkins was not analogous. We are all entitled to our opinions. I respect that. But we are also entitled to a fair appellate review under the law. I did not get that.

      1. Why was the Solicitor arguing the case? And why did he side with PTAB rather than the examiner? Did the examiner make an error?

    2. And you probably know obscenity when you see it too. You’ve just demonstrated the value of requiring opinions. They guard against an obviousness conclusion being based on “a quick skim” rather than a legally correct and thorough analysis. Simply going through the lengthy and expensive appeal process at the USPTO and then the Federal Circuit is enough to deserve a written explanation at the end of it.

      1. You’ve just demonstrated the value of requiring opinions.

        Of course opinions are valuable. Some take quite a bit of time to write.

        But not this one.

        Have you read the claim yet?

        link to e-foia.uspto.gov

        Simply going through the lengthy and expensive appeal process at the USPTO and then the Federal Circuit is enough to deserve a written explanation at the end of it.

        A written opinion with sanctions attached would be reasonable. I agree with that much.

        1. Of course opinions are valuable. Some take quite a bit of time to write… But not this one.

          That makes the actual suggested legal error all the more egregious – not less.

          You in particular Malcolm suffer from a myopia of “defend the claim” that blinds you to the actual legal issue at point,

          Talk about dust-kicking…

    3. Paul,

      If you know that Malcolm is the first of M of MM, what is his last name? Would you agree that when someone refers to another on a website as “confidence man”, the creator of a cesspool, a dreg of the patent bar, money-grubber, bottom-feeder, and purveyor of BS they should have the courage to do so with their actual name so they can be held accountable for their actions? It seems to me that a man like Malcolm M as concerned about justice, fairness and decency should want to proudly state his opinions as a fully identified person.

      MWS

      1. Michael,

        While I will fully disagree with the “outing” attempt (and the fallacy of the “use your real name” gambit), the last “M” stands for Mooney.

        However, this is not his real name.

        Quite in fact, Malcolm (even as he once bitterly whined about the use of pseduonyms) is the largest user of a variety of fake names in the last five years.

        As is his typical custom, he will use rapid accusations of the very things that he does.

        Quite so in fact, that an acronym describing this in short hand version used as a marker of his deeds became banned by the editors of this blog.

        The acronym (take the bold letters of the following) being banned was just another eyebrow raising, perception creating misstep along a long line of “let’s make the ecosystem better but do nothing about the single biggest blight here for the past eleven years” efforts to set a particular narrative.

        Malcolm’s number one tactic:
        Accuse Others Of That Which Malcolm Does.

    4. If you think that’s bad you should see Shore’s other application which got rule 36-ed late last year.

      US20100010686:

      Claim 1: A system for distributing alternatively generated power to a real estate development, the real estate development having at least two individual properties, the system comprising:
      at least one alternative energy power generator;
      a distribution station coupled to the at least one alternative energy power generator;
      the at least two real estate properties each coupled to the distribution station; and
      a written instrument associating ownership rights in a portion of the power received from the alternative energy power generator with ownership of at least one of the real estate properties.

      1. But the real problem is that these claims are too hard to obtain and enforce! Plus “vague standards”. Just ask Judge Michel.

  6. Just to stir a discussion, as a practical matter, how often will Festo or DOE risk a difference in the value of an patent claim these days, when considering the choice between (1) adding or amending a claim to expressly include an asserted and thus admitted claim limitation from the spec, vis a vis (2) what seems to be a high risk of losing an argument in a BRI contest that the spec limitation must reasonably be read into the claim interpretation, and thus not getting any such claim?

    1. The lack of response to this question, especially the absence of citations of Fed. Cir. decisions in which DOE was successfully since Festo, seem to answer the question?

      1. The impact of Festo is very technology dependent. Some technologies result in products with minor differences where a Festo loss of equivalents would make a design around to avoid infringement easy. Other technologies less so. If a patent is an improvement or advance on an already crowded field, the loss of a DOE claim can be the end of the monetization process. In some instances, the claims may be so foundational to a new technology or major advancement that there is no easy or practical design around so the loss of DOE is not material to the overall project value. If a patentee is forced to amend, the best way to handle the loss of DOE is to cram in as many versions of the invention in dependent claims as possible. But its a question that is not “generally” ansswerable out of the context of a particular case or read on a specific product.

  7. Shore’s representative during oral arguments: “this court never relies on boilerplate language, especially if it was to help our side.”

    Kinda funny given yesterday’s post.

  8. Looking in from Europe, what strikes me is the difference between i) uttering one’s “opinion” and ii) explaining the reasons for holding that opinion.

    Two situations in particular come to mind.

    First, at the UK Supreme Court, 5 judges give their individual opinions. At least one is reasoned. From 1 to 4 other “opinions” are in the form “I agree with Lord X, for the reasons he has given” (period). I never for one moment doubted that each one of those “I agree’s” constituted a full-blown 100% “opinion”.

    Second, at the EPO, one gets the decision at the end of the Oral Hearing. The written reasoning follows, weeks later. I never doubted for one minute that what I was being given orally, at the end of the Hearing, was a fully formed “opinion”.

    Likewise, when the Federal Circuit announces (in effect) “We agree with the DC, for the reasons given by the DC”. How can that possibly not be an “opinion”?

    What am I missing here?

    1. MD: What am I missing here?

      Nothing.

      Well, except you didn’t stop to marvel at this statement in the brief:

      The inventor recognized that a quality recording of a live performance such as a concert is only available long after the event, if ever

      Somehow the guy who started Lollapalooza — an event recognized by most music fans as a huge rip-off and a brown acid trip to be avoided at all costs — seems unaware that people make have been shooting performance video, including video of “predetermined” “audience locations”, and distributing it immediately afterwards since pretty much forever.

      Oh but wait! This is “quality” video. And it’s for sale. And the money benefits greedy promoters and patent attorneys! Isn’t that wonderful?

      1. Malcolm, I regret the failure of the courts of the USA (unlike the EPO) to limit the obviousness issue to obviousness within the useful arts. If it were so to limit the enquiry there would be fewer futile trips to the courts of appeal, embarked upon by disgruntled persons, aggrieved that their brilliant idea for making pots of money is deemed under 35 USC 103 to be devoid of patentably inventive activity.

    2. “Likewise, when the Federal Circuit announces (in effect) “We agree with the DC, for the reasons given by the DC”. How can that possibly not be an “opinion”?
      What am I missing here?”

      A Rule 36 Judgment does NOT indicate agreement with the reasons given by the USPTO (District Court rulings are not subject to the opinion requirement of 35 USC 144), but only with the result. The Federal Circuit said that previously, I think it was in TecSec if my memory is correct.

      1. Thanks for that reply, B. But, OK, even if the panel members have different reasons for coming to the same conclusion as the PTAB, they’ve still reached an “opinion” on the matter in dispute, haven’t they? In order to utter the thought “I agree” they must first have formed an “opinion”. Or?

        1. The term “opinion” is not used as a plain word but has a specific meaning according to multiple authorities, including the Federal Circuit itself.

        2. But that does not guide the patent prosecution on remand. Remember, the case is not over. The prescribed opinion is supposed to “guide” further prosecution. If a patentee does not know the grounds for affirmance, how does he know what to do in order to finish prosecution?

          1. For someone with so much professed experience related to the industry, the ability to turn a blind eye to a legal term is stagger1ng.

            0btuse. Is it deliberate? (said in the best Andy Dufresne tones)

      1. Actually, a Rule 36 affirmance only means the outcome was “correct”, and it specifically does NOT adopt any of the reasons given by the court or administrative agency below. The Federal Circuit may have agreed with one or both bases, but it also can affirm under Rule 36 simply because it agrees with the outcome. Rule 36 is perfectly ok if the proceedings below are OVER, but in the case of a patent still subject to prosecution, a Rule 36 affirmance does nothing to “guide the proceedings below” after remand. The Federal Circuit did not find that the invention was not patentable, only that it was not patentable as currently claimed. 35 USC 144 specifically requires the Federal Circuit to issue an “opinion” to be made part of the prosecution history so the patentee and examiners know on remand what is required for a patent to be allowed. That is the key here. The Rule 36 affirmance leaves the patentee and the examiner guessing what needs to be done in later prosecution to achieve a patentable claim.

        Whether or not you like my invention, like me or agree with the result, it does not change the fact that Congress expressly required an opinion to guide the prosecution on remand. All patentees who go through the arduous (and expensive) process of applying for a patent, appealing to PTAB, then appealing to the CAFC deserve the statutorily required treatment on appeal so they can decide if further prosecution is likely to result in a patent that is enforceable and valuable or that the case should be abandoned. The discussion on the merits of my invention is a side show to the appellate issues: Did the CAFC follow the law that expressly and unequivocally states that they SHALL provide an opinion to be made part of the record to guide the later PTO proceedings.

        1. For all the mewling over the (suspected) worth or lack thereof of any claims in the case, the legal issue exemplified by the post at 10.3.1 bears a direct answer.

          As is sadly typical, there is a lot of dust being kicked up in the fallacy that looking to resolve the quite evident legal mistake is somehow (purposefully) confused and conflated with “defending claims.”

          Maybe people should be paying more attention to the law, and less attention to their anti-software patent Windmill Chases….

    3. “Second, at the EPO, one gets the decision at the end of the Oral Hearing. The written reasoning follows, weeks later. I never doubted for one minute that what I was being given orally, at the end of the Hearing, was a fully formed “opinion”. ”

      I’ve also never doubted that the writ would differ from the oral opinion. But speaking to oppositions, rarely have I gotten the writ in a time period one would describe as “weeks”, whether at first instance or at appeal.

      More often 6-10 months, and in some cases after multiple inquiries of the rapporteur, a year or more. The worst was some 23 months after the hearing, and many inquiries and failed promises to get the final writ out.

      As a more recent example, I’m still awaiting the official writ of an opposition appeal we won (patent upheld as granted in first instance and in appeal) in late November.

      You and I have discussed this before, but you seem to live in some idealised version of EPO practice. More power to you. But your idealised experience is not the same experience of some of us.

      All the above said, I have no argument as to your oft-expressed preference for the EPO’s P-S approach to inventive step, which is much more workable (from a certainty standpoint) in every day terms to the US’s KSR approach to KSR.

  9. Michael Shore: We are literally getting to the point that the US patent is going to be worth less than half or maybe a tenth of what a Chinese patent is worth

    It’s time to invest in Chinese patents! Hurry, folks! Step right up! You’ve never seen a more realistic animated mouth than what’s here in this Chinese patent. You won’t believe your eyes as you see this cartoon character move about in a predetermined audience location! It’s a miracle, I’m tellin’ ya!

  10. Michael Shore, an alleged “patent attorney inventor”:

    The inventor recognized that a quality recording of a live performance such as a concert is only available long after the event, if ever

    Complete horsehockey. First of all, people have been recording live performances “such as a concert” (LOL) and distributing them soon after (if not immediately after) for a long time. Second of all, to the extent that non-technological restrictions have ever prevented this from happening, Michael Shore was definitely not the first person to “recognize it.”

    Go ahead and ask me how I know this! After all, I’ve only been best friends with dedicated music filmmakers for 30 years, and many of those filmmakers have been in the business for fifty years. And we all think Michael Shore is, at best, a quintessential example of 21st century confidence man. The patent application is a j0ke.

    Then there’s this laughable business:

    The inventor also believed that concert-goers would prefer to see the concert again from customized vantage points … (e.g., focused on the guitarist)

    Wowee zowee, what a brilliant insight! No, I’d rather see footage of the concert shot by a two foot tall cameraman standing behind the soundboard.

    The inventor conceived that the venue could include at least one camera trained on a predetermined audience location

    LOL Because nobody ever told their friend with a camera “Hey, get a shot of me in the audience.” Apparently we were all born yesterday, or so Michael Shore wishes.

    The examiner also relied on Watkins which is directed at still photos, not video.

    LOL News flash for Michael Shore: if you take a photo and reproduce it on a screen with music playing in the background, it’s a video. It may be a boring video (especially if the music is boring) but it’s still a video. Everybody knows this. Even Michael Shore knows it but he’ll never admit it. In any event, in the 21st century (and pretty much all of the 20th as well) pointing a camera at something “predetermined” and taking a still photo is technically indistinguishable from doing the same exact thing and taking multiple rapid photos (aka “video). Kinda weird that we have to explain this to an adult with a law degree but, like I said above: cessp00l.

    So what’s the end result here? Cert denied, without opinion.

    Thanks for highlighting this incredible example of how the patent system continues to be abused by patent attorney “inventors”, Dennis.

    1. I suppose that is why the examiner had to combine 5 references to reject the claims, because they were so obvious. You cite a few snippets and state that the invention as a whole was obvious to you. I also suppose that is why nobody has practiced the claimed invention before our company. It was hiding in plain site? And Charles Attal and Peter White are the co-inventors, neither of whom is a lawyer. Charles is a founder of the Austin City Limits Music Festival and Lollapalooza, a person who probably knows more that you and your buddies about the capture and distribution of live music performances. The third inventor, Peter White, is an entrepreneur who sold his last company to Nuance for more money than you will see in ten of your lifetimes. Peter is a technologist who recognized the need for tiered storage, editing in varying degrees of video quality and specialized retrieval systems. The CAPSHORE patent portfolio on this invention so obvious to you is now over 10 ISSUED patents. You being so brilliant about what is obvious, I want to thank you for not inventing anything in your life so the rest of us can have a chance to expand the economy and create these obvious improvements to the lives of millions of music fans.

      1. Michael, I’m happy to destroy your silly company’s entire portfolio in public, right here, right now. Keep puffing it up!

        News flash: the “credentials” of your fellow “inventors” may mean a lot to the s u ckers who fall for your b@loney but it doesn’t mean anything to me.

        You did fail miserably at the CAFC, remember? We can all see that. And we can all see why.

        All you are doing now is highlighting that failure publicly for everyone.

        Regarding this “technologist”, let me just say that the use of “tiered storage” (LOL) for storing video data is not new or inventive. And “degrees of video quality” must be some kind of j0ke, right? “Specialized retrieval systems” is just word salad.

        What, pray tell, was your awesome contribution, Michael?

        the examiner had to combine 5 references

        So what? Throw in a limitation that one of your cameras is “high definition”. Then he’ll cite another reference. It doesn’t make the junky claim less junky.

        A little warning to you: you aren’t going to win this one. Probably best to slink away before you embarrass yourself and your fellow “inventors” further.

        1. Please don’t destroy my company! I did not realize I was dealing with the all-powerful Patent Wizard. Have your nurse up your meds after she changes your diaper.

          1. I did not realize I was dealing with the all-powerful Patent Wizard.

            No power is necessary. You just need modest intelligence, an understanding of the relevant facts and issues, and the awareness of the types of con artists who are out there polluting the US patent system.

            [shrugs]

    2. Is this your attempt at a substantive argument, MM? With more ad hominems, childish LOLs and pathetic quasi-legal observations? I, for one, will no longer dignify your comments with a response. Just goes to show that NPEs are not the only trolls.

      1. I’m trying to believe how anyone on earth could possibly defend junk like this, or why they would even bother pretending to do so.

        Then I remember I’m on the Internet where the dregs of the patent bar will do and say literally anything if it makes them feel good.

        1. MM please have the guts to reveal your identity. Calling somebody a con artist, money-grubber, dreg of the patent bar, cesspool creator, etc. is easy when hiding. And its also cowardly, pathetic and indicates a likely profound mental illness. If you will reveal your identity, I will help you get the intense mental health treatment you obviously need. If you choose to remain anonymous, I will pray for you and just make a donation to a mental health charity.

      2. Someone recently wrote a book about the H campaign for president. Her campaign consisted entirely of the politics of personal destruction.

        Now compare H’s campaign to mode of argument of MM.

  11. Rather than working through those arguments, the Federal Circuit simply affirmed without opinion.

    The problem of the CAFC’s failure to sanction the typical “patent attorney inventor” that bubbles up through the muck is a billion times greater than the problem of the CAFC not “working through the arguments.”

    Just sayin’.

  12. Michael Shore, a classic example of the 21st century confidence man who relentlessly believes his own b.s. and never, ever stops spewing:

    During oral argument, one judge asked, “Why not just amend the claims?” It could just as easily been, “Why are you bothering us?” …. They just did not care because we were not Google or IBM.

    Or they didn’t care because you’re just another two bit m oney-grubber who couldn’t invent his way out of a paper bag. You’re brief is so full of self-serving bal0ney that it’s impossible for a reasonable person not to ch0 ke on it.

    1. I am very sorry that you are so angry at the world. Whoever you had read the brief to you probably read it too fast or failed to stop and explain the bigger words to you. Now go back to your desk at the call center and sell more extended car warranties.

      1. you are so angry at the world.

        I’m not angry at “the world”. The world includes some of my favorite people.

        I am very disappointed with patent attorney “inventors” who demean the profession by flooding the PTO (and the patent system generally) with profoundly uninventive junk, and who then whine and cry incessantly about being persecuted when they don’t get their cake and champagne.

      2. “Whoever you had read the brief to you probably read it too fast or failed to stop and explain the bigger words to you. ”

        Hahaha, I’ll stick that one in the “gives as good as he gets” column. :-)

  13. Just for laughs, can we see what else “Michael Wayne Shore” has allegedly “invented”?

    I have a more detailed post in the moderation queue about the (LOL) “technology” at issue in this case. Suffice it to say this “invention” is below the bottom rung of what any patent system should be forced to spend significant time on, much less a Federal Court of Appeals.

    1. Shore inventions, with 12 more pending applications, 4 allowed:
      8,244,103
      8,990,096
      8,983,853
      8,949,135
      8,734,231
      8,545,311
      8,606,673
      8,632,392
      8,805,164
      8,818,177
      8,831,408
      8,867,902
      9,245,582
      9,406,338
      9,406,339
      9,466,332
      9,159,365
      9,142,255
      9,142,256

      What have you, MM anonymous, invented or brought to market?

      1. Oh fun times ahead!

        What have you, MM anonymous, invented or brought to market?

        LOLOLOLOL I

        A better question is: how many pieces of absolutely ridiculous laughable junk did I throw at the USPTO and then continue to whine and cry to the CAFC and the Supreme Court about because I couldn’t help myself?

        Answer: zero.

        Please go ahead and tell everyone the story about how it’s sooooooooooo hard for “patent attorney inventors” like you to get the attention you deserve because you’re “not Google.” That’s a really sad one. Boo hoo hoo hooo!

        1. MM, you only engage in ad hominem attacks. Your arguments lack any substance and yet you have the nerve to call patent holders trolls. You are the troll. Seriously. Btw, you write like you’re 14. Grow up and move out of your parents basement. Loser.

  14. This entire argument depends on the definition of the word “opinion” used in 35 U.S.C. § 144. I’m curious as to what authority or legal dictionary is being relied upon for a definition of “opinion” that precludes summary affirmances of a lower court or agency opinion?
    Could that affect the workload of appellate courts other than the Fed. Cir.? They have already been complaining to the Sup. Ct. about budget cuts in the face of increased case loads.

    1. A FED. CIR. R. 36 affirmance cannot constitute an opinion and mandate. The Federal Circuit itself has stated that “[s]ince there is no opinion, a Rule 36 judgment simply confirms that a trial court entered the correct judgment.” Rates Tech., Inc. v. Mediatrix Telecom, Inc., 688 F.3d 742, 750 (Fed. Cir. 2012) (em-phasis added). Similarly, Black’s Law Dictionary de-fines an opinion as the “court’s written statement ex-plaining its decision in a given case.” OPINION, Black’s Law Dictionary (10th ed. 2014). The FED. CIR. R. 36 affirmance contains no written statement “ex-plaining” why the Federal Circuit affirmed the agency decision; instead it fits Black’s definition of a judg-ment—the “court’s final determination of the rights and obligations of the parties in a case”—which contains no requirement that the court explain its reasoning. JUDGMENT, Black’s Law Dictionary (10th ed. 2014). And, of course, the Rule itself pretermits viewing an affirmance under its provisions as an opinion because it sets forth the conditions for “enter[ing] a judgment of affirmance without opinion.” FED. CIR. R. 36 (emphasis added).

      1. Ah, so the confidence man is right here.

        Please, Michael: stop embarrassing the profession. There’s more than enough b 0tt 0m feeders in the ce ssp00l you helped create already.

        1. MM I feel sorry for people like you who accomplish little, criticize a lot and do so anonymously. One day, perhaps, you will get all of the credit, attention and compensation you believe you deserve. Until then, I will just say, “Bless your heart.”

      2. If there was any justice in the system, Michael, you would have been sanctioned for the cr@p “arguments” you’re throwing around as part of your money-grubbing scheme.

        Just stop.

    2. The Federal Circuit itself routinely distinguishes between the terms judgment, opinion and mandate. Review their rules and a sample of Federal Circuit mandates and you will see that they themselves typically refer only to judgment when there is only a judgment, and when there is an opinion, it is referenced.

      35 U.S.C. 144 is specific to appeals from the USPTO, of which the Federal Circuit has exclusive jurisdiction. So no other appellate courts are affected.

      It does not significantly increase the workload as a single paragraph is sufficient as an opinion and can help when there are multiple arguments. For example, it might be helpful to know whether the case was decided on the prior art argument, claim construction, or both. Keep in mind that there can be related applications or a continuation of a patent application on appeal.

      1. 35 USC 144 states:

        The United States Court of Appeals for the Federal Circuit shall review the decision from which an appeal is taken on the record before the Patent and Trademark Office. Upon its determination the court shall issue to the Director its mandate and opinion, which shall be entered of record in the Patent and Trademark Office and shall govern further proceedings in the case.

        So unless you have an opinion, there is nothing of substance to “govern further proceedings in the case.” You have no idea what type of amendments are necessary to obtain an allowance. The patentee does not know if one or multiple grounds resulted in the affirmance. The statue clearly requires the “opinion” to be included in the prosecution history going forward, but what is the basis for that if the “opinion” simply states affirmed without any mandate? Congress prescribed what the Federal Circuit was required to do in this type of appeal. They are free to summarily affirm 90% of the cases they see, but here Congress stated that when an appeal is taken on an issue of patentability, the Federal Circuit must issue a substantive opinion that is sufficient to guide the proceedings below. A summary affirmance does not meet that requirement.

  15. I’m sure the CAFC is issuing these no-comment affirmances due to the increased load as a result of IPRs. And I think legally it’s wrong to do so. No prediction on whether the Supremes say the CAFC has to follow the statute or not (but I do predict Gorsuch says it does). Allowing the CAFC to continue on this trajectory would be in keeping with the current milieu in which you’re entitled to due process unless you’re a patent applicant or patentee.

    1. No doubt IPRs caused an increase, but no-comment affirmances of D.C. decisions occurred before IPRs.
      If you want anther another whole opportunity to argue your case as an applicant, you have the option of filing a civil action under 35 USC 145.

        1. In case that was an honest question, no, 35 USC 145, was not eliminated by the AIA, it merely clarified which D.C. the action must be brought it.

              1. Yes, more specifically, you have to file a civil action under 35 USC 145 directly from the PTAB decision if you want that, then you can appeal from that D.C. decision to the Fed. Cir.
                Other than those of Gilbert Hyatt’s, there seems to be surprisingly little usage of 35 USC 145 lately, or does it just not get reported? Of course if the loss of patent term is not as critical then filing a continuation may often be an easier way to get more supporting evidence of record and another PTAB appeal?

    2. Well, it’s either rule 36 or a huge backlog. Can we just hire 20 more CAFC judges? I’m not sure which is better, but reality has limits, and this is just proof.

  16. On appeal, Shore raised several challenges regarding both interpretation of the prior art and claim construction.

    Were these properly preserved below?

    1. Yes, every issue was fully briefed, and every appeal point was preserved. The PTAB did not even argue waiver in the briefing or at argument.

  17. During oral argument, one judge asked, “Why not just amend the claims?” It could just as easily been, “Why are you bothering us?” Two responses: “Festo” and “I have a right to a fair consideration of my application according to PTO Rules and Fed Cir precedents.” They just did not care because we were not Google or IBM.

    1. “Wrongly accused petitioner of arguing features not in the claims.”

      Can you give us a little more on this point?

      1. The Rui reference was used to provide support for a rejection based on the idea that Rui included a predetermined audience location when in fact Rui called for filming the ENTIRE audience or a randomly selected or dynamically selected location based on what audience member asked a question. The examiner stated that the claims did not limit the SIZE of the predetermined audience location, so it could be the entire audience. The figures and specification clearly stated that the predetermined audience location has to be MARKED and the figures showed it as a small area where a person would know to stand in order to be in a single camera shot (of many) for later editing themselves into their video. The idea that an entire audience can be a predetermined and MARKED location for inclusion in the video is absurd in that if the entire audience is the predetermined location, what is the use of marking? How does that allow a user to highlight him or herself for inclusion in the video? It was a grossly overreaching read of an out of context blurb.

        1. Ned,

          To clarify, my understanding based on a very, very quick prior skimming of the petition without any specific issue in mind is that he was noting that the examiner’s broadest “reasonable” interpretation isn’t reasonable in light of the specification. Shocking.

          My guess, although I didn’t review it enough to even see the line you called attention to, is that his pointing to the spec to note that the Examiner’s BRI construction is in fact not reasonable in light of the spec was somehow characterized as arguing features not in the claims.

          Again, I haven’t reviewed any of this in any detail, so I may be wrong on that, but that’s just my guess based on your comment and my quick prior review.

          J

          1. Correct. They argued that we were arguing for a limit to the predetermined, marked location as to a small area when the claims did not specifically state the area was less than the entire audience. Ridiculous.

        2. Honest question – how is filming a random or dynamically selected location different than “predetermined?” The camera won’t film until directed to do so. Random or dynamic is just much faster, but still “predetermined,” no?

          1. A marked, predetermined audience location at a concert allows an attendee to put themselves in a position to be captured by one of the cameras dedicated to THAT SPOT. Several people can occupy that spot at different times during the show and by doing so, each can ensure they are in a video for later inclusion during the editing process. Rui had not pre-Marked and predetermined spot. Instead, Rui waited until a lecture audience member asked a question and a camera being operated by a human would focus on that audience member because they were chosen by the lecturer. The audience member and where they sat were not pre-determined because (1) there was no way of knowing if they would ask a question; and (2) their seat was not pre-determined. The other Rui audience capture disclosure was of a camera randomly panning over the ENTIRE audience. It was this second ENTIRE audience disclosure that the examiner used in a 103 combination of five references to state that our pre-determined marked location could be the ENTIRE audience. Again, ridiculously broad interpretation.

            1. Would you be more happy if the examiner had simply pointed to a specific seat in the “whole audience” and determined that the chair they were sitting in was the “marking of the spot”?

              1. Yes, if the chair was designated in advance to the audience, a dedicated camera pointed to the chair and the purpose of Rui was analogous. None of those factors are present.

                1. “Yes, if the chair was designated in advance to the audience”

                  So, kinda like someone sold them a ticket for the chair? Or the person picked out the chair themselves?

                  “a dedicated camera pointed to the chair and the purpose of Rui was analogous. None of those factors are present.”

                  Mmmm, I see no reason why a camera need be “dedicated” for the spot to be “predetermined”.

                  I don’t know why Rui’s “purpose” would need to be “analogous” to something for the spot to be predetermined.

        3. Michael, I see the issue now, and thanks very much for your reply. You should know that I was co-counsel on the now famous case of In re Morris that basically defined the parameters of broadest reasonable interpretation. We were appealing a construction that was plainly inconsistent with the specification so that no one of ordinary skill in the art, having read the specification, would construe the particular term at issue in the manner that it was interpreted by the examiner. I see you are struggling with the same problem.

          I also see why the Federal Circuit asked you at oral argument why you did not simply amend the claim rather than argue that the construction of the patent office was unreasonable. Your reply was on point – Festo.

          It is interesting that the Federal Circuit not only treated our case as precedential, and actually granted a rehearing and issued a second opinion. But, your case, you get a Rule 36.

          You should also know that I have had cases in court where construction of “predetermined” something was at issue. Fortunately, our specification gave a pretty clear definition of what that meant, and the court gave it the same construction.

          Now having discussed this issue just a little bit, go back and read In re Morris. The solution to your problem lies in convincing the court (probably the Federal Circuit on remand) that the definition of “predetermined audience location” is abundantly clear from the specification so that no one of ordinary skill in the art, having read the specification, would have any difficulty knowing exactly what that meant.

          Good luck.

          1. Thank you for the good advice. Our specification and figures include a predetermined audience location marked on the floor with an X and it is described as a location where a person can position themselves to ensure they are the focus of a single camera pointed at that marked location. How that can be interpreted as the entire audience (to bring Rui into play for a 5 art combination) is mind-boggling to me.

          2. “You should also know that I have had cases in court where construction of “predetermined” something was at issue. Fortunately, our specification gave a pretty clear definition of what that meant, and the court gave it the same construction.”

            Perhaps if the courts stopped playing along with these “mind games of what is determined and what is not determined” in patents then we’d stop seeing this kind of garbage.

            “muh invention is that muh spot is predetermined hur”.

          3. “You should also know that I have had cases in court where construction of “predetermined” something was at issue. Fortunately, our specification gave a pretty clear definition of what that meant, and the court gave it the same construction.”

            Perhaps if the courts stop ped playing along with these “mind games of what is determined and what is not determined” in patents then we’d stop seeing this kind of ga rbage.

            “muh invention is that muh spot is predetermined hur”.

          4. “The solution to your problem lies in convincing the court … that the definition of “predetermined audience location” is abundantly clear from the specification… Good luck. ”

            Good luck indeed. The phrase not only is not abundantly clear from the spec, it does not even appear in either specification (html texts hyperlinked below, easy to word search).

            The word “predetermined” itself is not even in the specs, nor the phrase “audience location”.

            The phrase “at least one of the plurality of clips including footage of a predetermined audience location, the predetermined audience location being marked to indicate that presence within the predetermined is captured for inclusion of the at least one of the plurality of clips” was introduced in an amendment filed in June 2010 (at least in the case of the `627 app, which I’ve skimmed).

            Besides the above-mentioned missing matter, I don’t see anything that seems to describe this notion of marking to indicate presence within the location.

            It’s a wonder the examiner didn’t bring up new matter.

            link to appft1.uspto.gov

            link to appft1.uspto.gov

              1. Yes, I saw the box 1012 of figure 10 and that your patent attorneys referred to [0036] as supporting the amendment I mentioned above.

                It states that “Members of the audience may stand in the designated area 1012 to ensure that they are captured on the video of camera 3.”

                My point is that the very thing you are arguing as your differentiating point vis-à-vis the art (“predetermined audience location being marked to indicate that presence within the predetermined audience location is captured for inclusion of the at least one of the plurality of clips”) is not very well supported by the specification.

                In any event, good luck to you.

        4. “The figures and specification clearly stated that the predetermined audience location has to be MARKED and the figures showed it as a small area where a person would know to stand in order to be in a single camera shot (of many) for later editing themselves into their video. ”

          Why not put that in the claims then tough guy?

          1. 6, I have a question on your thought: “Why not put that in the claim?”.

            At the EPO this is more or less the first question that arises, at the very start of examination of a new application for an EPO patent. It’s like, a preliminary definiteness issue, before the obviousness debate can usefully begin. Shall we see that preliminary issue arise, increasingly, at the USPTO also, from now on, as a result of cases like this one?

    2. In fairness to the Federal Circuit, the justices would likely ask the same question of counsel for IBM or Google. Your first response was compelling and makes a great point. Your second response, although correct, may be off-putting to some.

      As an aside, kudos to you for making an effort to respond to some of the trolling in these blog comments, but as you well know, it really isn’t worth your time.

      1. I’m not sure that is true. Large companies get written opinions on patentability issues from PTAB appeals 3X more often that individual inventors and small companies. The Federal Circuit is now packed with judges approved, if not chosen by Silicon Valley giants who want a weak patent system to entrench their market positions without having to pay royalties to anybody but each other (if no cross-license exists) and the PTAB was run by Michele Lee, the Google-ex. When the US patent system is weak enough, China will become the locus of major patent litigation because of its market size and increasingly valuable remedies. The problem with China as the locus of IP disputes is that many Chinese tech leaders are partly state owned and definitely state controlled. So we will have the Chinese state bringing (indirectly) and deciding (directly) patent disputes between US companies and Chinese entities. When the Chinese entities win, the US companies will have no counter-balancing suit in the US because the US patent system will be so weakened by IPRs, PGRs, CBM reviews, 101 challenges, no injunctions, limited damages, etc. that China may become the ONLY venue worth spending the time and money. We are literally getting to the point that the US patent is going to be worth less than half or maybe a tenth of what a Chinese patent is worth, and its our fault for making a system that created the most dynamic economy in the world a farce.

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