In an email distribution regarding their upcoming Chisum Patent Academy, Don Chisum and Janice Mueller opine on the upcoming Supreme Court case of SAS v. Lee.
They write:
The Court will address, at least indirectly, the PTO’s rule 37 CFR § 42.108(a). The rule allows the Patent Trial and Appeal Board (PTAB) to institute inter partes review (IPR) on (and, implicitly, to adjudicate) only some of the claims of a patent challenged in a petition (and, also, only on some of multiple grounds of unpatentability). . . .
More likely than not, the Supreme Court will invalidate the practice that rule 108(a) makes possible as contrary to the governing statutes. 35 USC Section 318(a) requires that the PTAB “issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner.” If the PTAB must rule on all claims challenged in a petition in its final decision, it makes no sense to allow the PTAB (per Rule 108(a)) to “institute” review on fewer than all those claims. (NOTE: the statute on institution, 35 USC 314(a), sets a reasonable-likelihood-of-unpatentability “threshold” for “at least 1 of the claims challenged in the petition.” That can easily be read as contemplating that only one of the challenged claims must meet the threshold and that all challenged claims will be carried into a review upon institution, whether or not they met the threshold standard.)
Briefing in the case will go through the summer.
So, I think at the end of the day what is happening is the PTO has interpreted the statute to minimize their work while exposing patentees to repeated IPRs on the same claim because there is no estoppel unless a final written opinion is issued.
Ned points out some ways to game the system if the SCOTUS forces the interpretation of all for any. But, it seems that the petitioner would have to pay the costs of the gaming.
So, again, a lazy agency (USPTO) picks a interpretation of their statute to minimize their work while taking advantage of the public. What a surprise.
NW,
I think that the evolution of your views on this thread show that you are on the correct path.
Further, I think that your posts reflect a result of you being willing to engage in a dialogue (and I would contrast that with certain sAme ones who are only interested in their monologues). Your “vacillation” here is not a “bad” thing.
That being said, your comment below (repeated here for convenience), sounds plausible, but I struggle to make it “reach” and would compare it to the state of pre-AIA patent law.
NW:
“Anon, the principle I refer to is this one: Amendment V: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”
There are parts of the Constitution that suggest that allowing IPRs for the same claim over and over is against the principles set out in the Constitution.”
What your refer to is “double jeopardy.”
But you reference a Constitutional prohibition against double jeopardy for “life or limb.” Does that prohibition extend to personal property?
While I have chastised Dave Boundy more than once for his errant view concerning the doctrine of “Void for Vagueness” (Mr. Boundy continues to think that the Void for Vagueness doctrine is limited ONLY to criminal law matters, and such is simply not so), I am not as certain as to whether the protection you mention extends from “life or limb” to property.
And I will also grant you that it appears that you are discussing a notion of “quiet title” for a certain type of property, that the Constitutional directive and allocation of power does seem to align with that “quiet title” philosophy (since the Legislative Branch is given power to write statutory laws that secures)**….
I think that a credible argument could be made that patents must be made to have “quiet title,” and that any addition by Congress that violates this particular “other Constitutional protection” may make that secondary addition by Congress infirm.
“Unsecuring” is not a power in that Constitutional allocation of authority – and I am not convinced that “unsecuring” is something that necessarily attaches to the power of “securing.” This is not to say that Congress is prohibited from writing laws that “unsecure” (or perhaps go even further and engage in “takings”), but this is to say that any such Congressional laws must still accord and abide by protections inured through the other areas of the Constitution. An initial right created to be a property right, cannot simply be changed by Congress with no heed to those other Constitutional protections.
But here is the pre-AIA comparison:
Prior to AIA, patents did not have quiet title. Sure, the mechanism by which that title could be challenged was vastly different (and yes, this path still exists post-AIA as well), but I call on you to recognize that courts never decided validity cases with a quieting of:
“this patent is valid”
but instead would declare:
“this patent is not invalid (against a particular set of facts which may include a particular piece of prior art being used in a particular way).”
Yes, there is estoppel – but only for a particular challenger, and perhaps some limited issue estoppel may be in play, and that may make enough of a difference, but I am not sure that I am convinced on that point (yet).
.
Lastly, returning to your comment of:
“So, again, a lazy agency (USPTO) picks a interpretation of their statute to minimize their work while taking advantage of the public.”
I would rejoin with a “Don’t play the blame game and single out the PTAB for this choice.”
Instead, as I have mentioned, the correct entity to “blame” is Congress.
Congress is the one that wrote the law (see my salvaged from the dialogue-retarding moderation purgatory at 9.2.1.3.1.1), and in short: 35 USC 316(a)(4) is dispositive on that point.
.
.
** The notion that patent law is meant to be “pro-patent” in the sense that the authority given to Congress in the Constitution is phrased in a positive manner (and not geared to any infringer right’s type of view) could and likely should be stressed. I am reminded of how certain people like to take the view that “equity” trumps [sic] law and that equity necessarily elevates the infringer’s rights position in any balancing by the judicial branch.
Realizing that this is a bit of a tangent to the purpose of this thread, I would merely remark that the power given to the legislative branch and thus controlling the subsequent sharing of a portion of the power by the legislative branch to the judicial branch, as exemplified in 35 U.S. Code § 283 – and notably NOT in 35 U.S. Code § 101 – ALSO should be read in a pro-patentee mindset.
By the way, that sharing by Congress reads (emphasis added):
The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.
I would then also add – since so many are far too eager to forget – that the main principle of equity is to make the aggrieved as whole as possible, and that reasonableness MUST take into account the very nature of the patent right itself (exclusivity, as in exclude others).
Those are great comments Anon.
I would point out, though, that the double jeopardy before the AIA was coming from different “people.” (I still find it repugnant to say that a corporation is a person.)
Here, the problem is that a single person can continue to harass you for the same claim over and over again. They should get their one bite at the apple and it should be done.
All repugnancy aside…
(and I can tell you that I too have a distaste for the raw power given to the juristic entity known as “the person of a business” – don’t get me started on the corruption endemic to Citizens United),
…it really does not matter whether the “double jeopardy” was coming from real people or juristic ones.
Let’s not get distracted with the source of the attack on the property right.
Also, let’s not get distracted with the “should’s” of your feelings as to “one bite and done.”
– I “already get” your feelings, and would rather focus on the “Iwhy” of that “should,” rather than on the feelings that a lack of that “should” might produce.
The “why” that I am still struggling with is your premise (perhaps unstated) that the function of “double jeopardy” should extend from “life or limb” to the property that is a granted patent.
As I indicated, I can see a “legal-logic” present in the Constitutional allocation of power, and that allocation calling for laws that “secure.”
I also see that “securing” and “UN-securing” may be attempted to be linked together – and would caution against ANY type of de facto assumption that such linkage is legally proper (and certainly, would warn that any exercise of the two have very real and very different constraints).
I also see that once a right is legislatively created, that other Constitutional protections may very well inure, and that future acts of Congress need to be judged as to their propriety against the full gamut of Constitutional limitations.
I have reflected that even though Congress is indeed the proper branch (and truly the ONLY proper branch**) of the government capable of writing the statutory law that is patent law, even Congress cannot do “whatever” they want to do, as if those other protections of the Constitution did not exist.
** as I have also shared, other branches of the government may on occasion enjoy shared authority from on branch to another – but even such sharing must follow relatively strict guidelines to not violate separation of powers checks and balances that exist in our Sovereign.
.
ALL of that being said, to me, what I would like to see is some cogent position that the notion of “quiet title” MUST BE part of the grant of a patent.
.
To further add to the dialogue here (and this might pique the interest of Greg), the importance of the level of the presumption of validity can be seen to fold into the discussion. It is no small accident – and no mere unimportant fact that the level of Clear and Convincing is – and remains – an important (even critical) stick in the bundle of property rights that a granted patent contains (if you have any doubts – just ask i4I 😉 ).
That being what it is, even that critical level is NOT a de facto COMPLETE “quieting” of title.
To me, this indicates that the “double jeopardy” aspect of “life or limb” may not carry to property.
Also, remember that the government is NOT forbidden from taking property.
But before one runs too quickly in the opposite direction, even my concerns have their built in limits.
Which is why I put so much emphasis on takings law, and the fact that while takings ARE permitted, any such takings ARE constrained and must satisfy important parameters.
Parameters that appear NOT to be met with what Congress has done with the system of takings built into the IPR laws of the AIA (and again – it is critical to make sure that the emphasis is on Congress, and NOT the PTAB).
Exploring the “why” then, may help tie ALL of these different threads together.
I have vacillated on this, but I think it makes sense to say any is all the claims challenged so that the petitioner has estoppel for all those claims. Otherwise, the petitioner can keep filing IPRs and the patentee would have to keep responding or roll the dice.
It makes most sense to say all the claims in the IPR so there is estoppel and you don’t get people filing IPRs over and over again on the same claims hoping to get it instituted.
Plus, the plain meaning of the statute is all.
No question this is a tough issue of statutory construction, but as to “otherwise, the petitioner can keep filing IPRs and the patentee would have to keep responding or roll the dice” the PTAB does not allow that either.
Is that true? What are the rules for estoppel at the PTO and district court?
If they don’t institute, can you file another IPR on the same claims?
If they institute on claims 1 and 10, and they filed for claims 1-20, can they file another IPR for claims 2-9 and 11-20?
If the PTAB has to provide a final written decision on all claims (1-20 in the example above) does that change the estoppel at the PTO or district court?
Paul, If a petition is denied, the petitioner gets to refile until a petition is accepted, gradually correcting past mistakes or bringing in new art.
In court, the plaintiff gets a limited number of chances to fix the complaint or he is out on his ear, with res judicata preventing a further attempt.
The PTAB is not like this, I think.
Another presentation of “alternative facts” about how IPRs operate? Repeating the same myth that the PTAB accepts endless numbers of IPR petitions, even with new art, by the same petitioner?
These kinds of arguments actually weaken anti-IPR movement credibility.
I suspect the source of this myth is patent owners that had sued numerous different companies on the same patent, and then seemed shocked to find that those different companies are entitled to file their own respective IPR petitions.
So what is the statutory basis of denying a petition because the petitioner challenged a claim before that was not instituted?
And, the second part is what about federal courts?
My working on IPRs is pretty limited.
Another example: “Where previous IPR was filed by same party and subsequent IPR corrects defects in previous IPR, PTAB used its discretion to deny institution. Informative Decision: Unilver v. P&G, IPR2014-00506, Paper No. 17 at page 8 (Decision Denying Institution) – ‘Based on the information presented, we are persuaded that the instant Petition uses our prior Decision on Institution to bolster challenges that were advanced,
unsuccessfully, in the 505 Petition.’ “
Paul, come on. So it is discretionary and all the petitioner has to do is use different art and adjust the arguments and it sounds like they are fine.
So, come on. The petitioner can keep banging on the same claim over and over again. That violates our principles of a judicial system. You shouldn’t be able to repeated sue a person for the same issues. You get your shot to invalidate the claim and if you lose, then that should be it from you.
Based on your own post, the art and arguments must substantially be the same for the PTAB to deny. But that does not prevent the petitioner from trying again, forcing the patent owner to again respond at great expense.
“But that does not prevent the petitioner from trying again”
Not to be obtuse, Ned, but so what?
As I have mentioned elsewhere, all of these “bugs” were noted prior to passage of the AIA (I know that I personally shared them with my representatives), and it was Congress that decided on the policy view that these types of “multiple bites” and even “multiple bites by parties that alsolack standing were deliberately included in the law of the AIA.
PTAB denies follow-on petitions all the time under 325(d). I suggest folks in this thread do some PTAB case research on Westlaw.
anonymous, but they do allow one to keep trying. There are reports that one petitioner succeeded on the 8th try.
The issue is not estoppel, but failure to advance substantially new art and arguments.
The issue should be estoppel. But it is not, and folks like you are trying to fool everyone with half truths.
Example from a major law firm IPR site: “..a petitioner cannot avoid redundancy issues merely by filing multiple petitions in order to present multiple challenges to the same claims. Under 35 U.S.C. § 325(d), the PTAB may ‘reject the petition or request because the same or substantially the same prior art or arguments previously were presented” in another post-grant proceeding.’ ” [Citing an exemplary IPR decision]
Another example: “Previous IPR filed by same party: Factors PTAB will consider from Nvidia v. Samsung, IPR2016-
00134, Paper No. 9 at page 7 (Decision Denying Institution)”
Paul this sounds like in practice you can keep suing over and over again on the same claim.
Paul, you cite no evidence to the contrary here. However, it has been reported by other over a Gene’s site, with party names, that this has occurred.
Now, tell me, Paul, just why would the PTAB not review a new petition by the same petitioner if they present new art and arguments, or fix prior errors. This was and still is a common practice with reexaminations. They lose one, they file another with different art. The abuses are legendary.
Let us not forget that filing an IPR is not cheap–the pre-institution fees are, I think $9000, and the legal fees per petition can run between $30K and 100K.
Also, another thing to note is that most IPRs are filed by parties who have been sued. That party has a one year period to supposedly file these multiple-serial IPRs. Given the 3 month time between petition and an institution decision, it seems highly unlikely to me that such a party would be able to file one petition, get the institution decision, find all new art, and file again within the requisite time period.
Sure, there may be marginal cases, but the exception does not prove the rule.
Spock,
I do not think the “it’s not cheap” view adds anything meaningful here.
Making procedures “expensive” only makes the entire system into a type of Sport of Kings, which is in favor of the Infringer’s Rights group (competition on established basis, such as having an existing war chest to play games – takes away from competing on innovation itself).
The “it’s expensive” game simply does not effect all players equally.
Well, it’s expensive for the petitioner, is the point I’m making. So if the point of these serial petitions is harassment, or whatever, it seems like the expense would dissuade a party from using IPRs in this manner.
“Well, it’s expensive for the petitioner, is the point I’m making”
And as I pointed out, that “point” is just not all that meaningful.
Competition based on “it’s expensive” favors those who are already established (the infringers’ rights group).
I do “get” the point that you are trying to make, but I am telling you that that point does not add anything meaningful here.
“Plus, the plain meaning of the statute is all.”
No. Quite the opposite.
Shall I break out my dictionary and (again) point out the context of discretion?
Why do you keep changing icons?
Because of the “dialogue-stopping” editorial controls.
Test 1
Test A
OK. So there are only two of you. I like the blue one better.
Thanks.
Salvaged this one from the “moderation jail”:
in reply to you at post 9.
Your comment is awaiting moderation.
May 26, 2017 at 7:59 am
The larger question being missed here is one of discretion.
35 USC 316(a)(4) is dispositive on that point:
(4) establishing and governing inter partes review under this chapter and the relationship of such review to other proceedings under this title;
Whatever of the several available dictionary meanings of the word “any,” that any of us 😉 come up with, the meaning as used by the Office falls to the discretion of the Office.
And THAT is how Congress wrote this section of law in the AIA.
Night, the estoppel provisions only apply to final decisions. Thus, until final decision, any petitioner can keep filing petitions, and they do if they are denied.
Further, except for costs and to minimize estoppel, a petition could file petitions challenging only 1 claim and file other petitions to challenge additional claims. Each petition might have a different trial and different estoppel effects.
But the PTAB has full discretion to consolidate multiple proceedings into one. Thus the only reason a petitioner might want to break it down to claim by claim is to deal with the page limit issue.
OK. Thanks Ned. So, it is a big deal to patentees to get this any to mean all so they don’t have to keep responding to challenges to the same claim that wasn’t instituted again and again. No one hundred bites at the apple.
The whole IPR thing totally breaks every principle of US jurisprudence in almost everyway.
“The whole IPR thing totally breaks every principle of US jurisprudence in almost everyway.”
jurisprudence: noun
the theory or philosophy of law.
a legal system.
“American jurisprudence”
Other than the feeling of “utter disgust,” what do you mean, Night Writer?
Which principles are broken?
And perhaps more importantly, which branch of the government has broken those principles?
Anon, the principle I refer to is this one: Amendment V: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”
There are parts of the Constitution that suggest that allowing IPRs for the same claim over and over is against the principles set out in the Constitution.
Night, you better believe that lack of due process for the patent owner was by design.
I’m very confused here. The Double Jeopardy clause only applies in criminal proceedings, not to civil or administrative proceedings. See, e.g. Hudson v. United States, 522 U.S. 93 (1997). So how, exactly, is allowing multiple IPR petitions a constitutional problem?
And, despite Paul’s contentions to the contrary, they keep filing until trial is instituted. Over at Gene’s site there was a report that trial was instituted on the eighth attempt.
Also, the PTAB originally encouraged petitioners to file multiple IPRs because of the page limit problem.
Ned, et al, please do not confuse filing IPRs against DIFFERENT claims of a patent with a large number of claims [because of the IPR page number limitations] with the cited PTAB decisional restrictions on filing plural IPRs against the SAME claims, which was the subject here.
As to allegations here of a constitutional problem, if there was one, and if plural IPR petitions against the same claims were as common as alleged,* surely someone would have legally argued it already [after several years and thousands of IPR petitions], like all the other allegations of IPR unconstitutionality.
*In spite of the IPR one year from suit time bar and its reduction waiting for an IPR declaration petition on the first IPR.
The larger question being missed here is one of discretion.
35 USC 316(a)(4) is dispositive on that point:
(4) establishing and governing inter partes review under this chapter and the relationship of such review to other proceedings under this title;
Whatever of the several available dictionary meanings of the word “any,” that any of us 😉 come up with, the meaning as used by the Office falls to the discretion of the Office.
And THAT is how Congress wrote this section of law in the AIA.
If this is right then you would have to put only one claim in each patent, while filing numerous continuing applications. Otherwise, your presumptively valid broad claim(s) could unnecessarily bring down the rest of the patent under the BRI/prep ev stds. (And petitions would only be against claim 1.)
It doesn’t bring down the other claims. All this says is that you have to “issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner.”
They can invalidate one claim and hold the rest to be not invalid.
Frank, not all claims are automatically challenged. The statutes speak only to those claims of the patent that ARE challenged in the petition.
That makes sense. So I revise my comment to petitioners would challenge all of the claims.
8.1 doesnt make sense.
Except 8.2 says the same thing that 8.1 says. 8.2 just said it in simpler terms. Geez, the reading comprehension of some of these readers is abysmal.
“numerous continuing applications” with claims to the same [under 103] invention will get them rejected or later invalidated for obviousness type double patenting.
Chiz: If the PTAB must rule on all claims challenged in a petition in its final decision, it makes no sense to allow the PTAB (per Rule 108(a)) to “institute” review on fewer than all those claims
First of all, that’s a big “if”.
35 USC Section 318(a) requires that the PTAB “issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner.”
The most reasonable way to interpret the statute is that “any patent claim challenged by the petitioner” refers only to the challenged claims which the PTO deemed reasonably likely to be defeated and decided to institute proceedings for. The PTO certainly does not have to issue a “final decision” on non-instituted claims if the PTO denies the entirety of the petition, in spite of the fact that those claims were undeniably “challenged by the petitioner.”
Yes, it’s true that there has to be at least one claim falling within the category (i.e., “reasonably likely to be defeated) in order to institute any proceedings. But in the case where just one claim out of 100 falls within the category, it’s silly for the PTO to have to issue a “final decision” on all the other 99 claims.
I do think that if the PTO decides to institute on some but not all claims presented in a petition, then the PTO should be required to explain why they are choosing not to institute on the remainder.
“The most reasonable way to interpret the statute is that “any patent claim challenged by the petitioner
refers only to
…the PTO [AND] decided to institute proceedings for.”
That is only wishful thinking and clearly changes the very meaning of the word “challenged.”
There simply is no cogent legal support to change the meaning of the term in that manner.
This falls outside of the bounds of “interpretation” and full-on into the realm of re-writing.
Like it or not, the courts cannot re-write the muck of the AIA.
That is only wishful thinking and clearly changes the very meaning of the word “challenged.”
No it doesn’t. The word ‘challenged’ still means ‘challenged.’
There simply is no cogent legal support to change the meaning of the term in that manner.
Nobody’s changing the meaning of anything. The statute is being construed so that it makes sense and serves its purpose. Construing a statute so that it makes sense has plenty of “cogent legal support.”
Seriously, you are the last person on earth who should be opining on statutory interpretation. Shall I remind everyone why? It’ll take a paragraph or two to get through the list but I’m happy to do it.
“No it doesn’t”
Except for the fact that it does, you might be onto something.
No wait.
You are not.
“Construing” a statute by changing the meaning of a word – or adding additional language not present to change the meaning of the words that are present is NOT called construing (or interpreting).
Its called re-writing.
“Seriously, you are the last person on earth who should be opining on statutory interpretation. Shall I remind everyone why?”
LOL – sure, why don’t you use a broken scoreboard example of 1 US 1 (singular/plural) that YOU could never seem to understand in earlier “conversations” but then want to turn around and poke fun at some other poster who mirrored your own views on singular versus plural.
That wont’ be at differently duplicitous than your normal self.
OT but amusing factoid about bizarrely violent scr-wb@ll Greg Gianforte (Republican): Gianforte and his wife founded RightNow Technologies, a customer relationship management software company in 1997
LOL
Here’s the junk patents: link to patents.justia.com
Every one is ineligible junk.
Chalk up another great team member for the patent maximalists! An unhinged entitled authoritarian jurkwahd who habitually files junk claims. Totally shocking, right?
Wrong.
LOL
Various investors and attorneys often persuade companies to file frivolous patent applications. It’s not a reflection of the company, but of the legal environment it finds itself in. The CAFC has a long history of enforcing clearly invalid patents and one way to defend yourself is to have a pile of equally invalid patents that your competitors might be intimidated by.
Of course, that doesn’t work against trolls. That’s the most salutary benefit of trolldom: It invalidates the illusion of mutually assured destruction.
Anyway, Google’s patent portfolio is mostly a stinky pile of the most ineligible and variously invalid junk you’ve ever sorted through. But nobody thinks that means Google isn’t innovative. It just means they have to survive under a system that holds their work in contempt.
None of this is to excuse politicians that assault people with their hands. The whole point of being a Republican is that you harm people with your laws and keep your hands immaculately clean.
The whole point of being a Republican is that you harm people with your laws and keep your hands immaculately clean.
Owen, you may have lost some personal credibility with that.
Should have said “whole point of being a congressman,” then?
Some Congressman mind not actually be corrupt and actually might be idealists. But who’s to say.
Bizarrely violent? Didn’t you tell us about your baseball bat and bricks?
Meet Ned Heller. Ned Heller can’t distinguish between destroying property to express opposition to a genocidal movement or opposition to the dehumanization of 50% of the human race, on one hand, versus a congressman suddenly throttling a reporter because the reporter asked a tough question.
But he’s a very serious person! A real deep thinker. Ned also wets his pants a little bit every time he sees a Koran in an airport. Scary!
Because the swagger of destroying property** is so “grown up” and all….
(is this where that [shrug] goes…?)
**worth noting here is that only now are you limiting your violence with bats and bricks to violence to property. But hey, that was just a minor oversight earlier, right?
Because the swagger of destroying property** is so “grown up” and all….
Five words: Boston Tea Party. So infantile!
worth noting here is that only now are you limiting your violence with bats and bricks to violence to property
Is it illegal to open carry a baseball bat or a brick for self defense? I suppose it depends on the color of your skin.
In any event, the important thing is that you and Ned are totally not defending this deplorable Montana congressman. LOL I mean, who can blame him? Some leftist said a naughty word the other day so everybody is really on edge.
Ah, the glibertarian snowflakes. They’re very serious people! Smell the freedom.
“Five words: Boston Tea Party. So infantile!”
It actually kinda was if you read about it. The King gave the company a monopoly but made sure that tea was available for cheaper than it had previously been, even with a new tiny tax imposed thereon (a tax which the colonial gov. didn’t get to give their 2 cents about). The King thought everyone would be happy with the new cheaper tea (even including tax). Nobody was even planning a whole lot of competition on tea anyway. But they got all hot around the collar because their legislature didn’t get to give their 2 cents (even though they likely would have approved the tax anyway).
“Is it illegal to open carry a baseball bat or a brick for self defense? I suppose it depends on the color of your skin.”
You clearly indicated you intended violence toward whitey. Not only whitey’s property.
But I’m glad you’re walking back your rhetoric, as a lefty that’s somewhat rare. Usually lefties just double down before shouting RAYCYSMS!
I do notice that he only too happily wraps himself up in a “flag-waiving” meme (while as we both noted that he has “ walking back your rhetoric, as a lefty that’s somewhat rare.” with the “You clearly indicated you intended violence toward whitey. Not only whitey’s property.”
Malcolm very much is the Trump of these boards.
MM, just because I disapprove of political violence from you does not mean that I approve it from others. The disapproval is there regardless of what political views are being expressed.
Trust me, I have had long arguments with supporters of Palestinians who have sought to justify the slaughtering of innocents in furtherance of the cause of the Palestinians and provided that the victims were Jewish.
Nothing can justify political violence, MM, regardless of the cause.
The only exception are state actors and for just causes.
“Ned Heller can’t distinguish between destroying property to express opposition to a genocidal movement or opposition to the dehumanization of 50% of the human race, on one hand, versus a congressman suddenly throttling a reporter because the reporter asked a tough question.”
Lol, the mind of a lefty.
Btw, your numbers are off if you’re thinking it’s all whitey “dehumanizing” all non-whites. Whitey is now like 15% of the world’s pop. They were 25% when you were young.
Pretty clear that this “any” is referring to the selected claims of the patent in the “inter partes review.”
This is pretty clear. Whatever is in your IPR is what “any” refers to. This makes sense. It goes to civil procedure. A complaint if filed. You can chose not to institute it, but if you do institute it you must address all the issues raised in the complaint.
This is good. This makes sense. This stops fishing expeditions and forces the PTO to be disciplined.
This should be interpreted to mean if you institute a IPR, then you have to address ALL (ANY) issue raised. This is consistent with civil procedure.
By the way, the seminars they give are great. You can go and sit down with Don Chisum and Janice Mueller and only like 10 other people and hash out patent law. Well worth the price of admission.
A complaint if filed. You can chose not to institute it, but if you do institute it you must address all the issues raised in the complaint.
In a court proceeding, the judge doesn’t have to address issues that are voluntarily taken off the table by the parties during the course of the proceedings. That also makes sense.
Sure, MM, parties can waive issues. But that has nothing to do with this case where the PTO is deciding which issues to decide.
Clearly the analogy to a compliant does not work here.
The key: who has the discretion.
In the complaint, you lack the discretion that is present in the IPR.
That alone works against your viewpoint, NW.
That is not to say that I do not “get” what you are saying and why you are saying it, but you are not addressing the issue front and center.
The dialogue here is not “defend the position that you want taken.” The dialogue here is “what makes sense given the obviously p00r drafting of the AIA.”
To that end, the view of “any” must be “all” – while indeed having merits that you can recognize – does not fit contextually with the level of discretion that Congress is providing to the PTAB in the entire section of IPR.
Can you place the desired Ends to the side for a moment and address the context here as some type of cogent means to get to the Ends that you want to get to?
The “any” must mean “all” lack of discretion sticks out like a sore thumb.