Patentlyo Bits and Bytes by Anthony McCain

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Anthony McCain

About Anthony McCain

Anthony McCain is a law student at Mizzou where he is focusing on intellectual property; He has a background in mechanical engineering. anthony.mccain@patentlyo.com

59 thoughts on “Patentlyo Bits and Bytes by Anthony McCain

  1. 5

    I see this blog is still infested with MM and the like. MM you are so obviously a paid propagandist. You never integrate anything you say with reality. Ned is worse. Ned is obviously fishing for business.

    I wrote one patent application that is world known. It was invented by one person working for a large corporation. It has generated 10’s of millions in licensing revenue. Without patents, he never would have invented it.

    Plus, the other thing is that you could strip it down to only basic hardware plus software. (That isn’t the way it is implemented, but it could be.) So, under your view of the world it is invalid under Alice.

    You guys just have no comprehensive integrated view. You just play off the ignorance of masses.

    And, again, I see since I have left this blog you and Ned have started with the magical functionality again. Somehow functions are performed without structure. Magic. Apparently the information processing is done in the spirit world.

    And, again, your second favorite trick (and the purchased Google judges’ favorite trick too) is to leave out one skilled in the art in functional claiming.

    (All claiming is functional. We all know that. You are misrepresenting–again–pretty much everything.)

    This blog is like going out and having a fight in the mud with the hooligans. Just remember MM and Ned that you can get the CAFC to hold that the Sun revolves around the Sun, but it don’t make it so.

    1. 5.1

      Remember, folks: patent maximalists like Night Wiper aren’t totally k00 k00 b@nanas. They’re just a little w@cky. Also not very smart and they have the emotional maturity of a three year old. They had a pacifier, it was taken away, and they’ll never stop crying until they get it back.

      [shrugs]

      1. 5.1.1

        As tightly as I squint my eyes trying to find any – and I do mean any – remote hint of a spec of a clue of something other than ad hominem, I cannot find it.

        Is that what you mean by “grown up,” Malcolm?

        1. 5.1.1.1

          Behold the world’s greatest hypocrite, leaping to the defense of his bff Night Wiper.

          Give him a kiss, “anon.” You guys are cute.

          1. 5.1.1.1.1

            Behold the world’s greatest purveyor of Accuse Others of That Which Malcolm Is.

            Get some new memes. Your mindlessness is stultifying.

  2. 4

    The s0 ftie w0 ftie patenting industry certainly dodged a bullet when the CAFC decided to make its Twin Peaks v. IBM decision non-precedential. Lucky d0gs will live another day.

    Why the Federal Circuit continues to stare into the abyss and write these absurd opinions about the search for fake “structure” is a real mystery.

    1. 4.1

      MM, I thought the opinion was quite helpful. It fully vindicates Random and me on claiming results, and particularly Random’s repeated observation that he often finds that the support for such result’s claiming is simply more of the same: a description the result of doing something with no actual attempt to describe any “way.”

      I think this case shows a positive trend in the Federal Circuit to actually think and to get away from allowing claims to results as being at all allowed by 112(f) the way some posters here my think.

      Describing structure in terms of the way it operates does not support a claim to such structure.

      Describing a step in a process in terms of the results it achieves does not support a claim to that step.

      Describing a composition in terms of it effects only does not entitle one to claim any composition that causes such effects.

      And the beat goes on.

      1. 4.1.1

        Ned the Ed: you have to take into account what a skilled person can do.

        You guys are unconscionable. You are just like R. Stern. He just thinks that information processing shouldn’t be patentable unless it is in hardware and will say and do anything to try and get that result.

      2. 4.1.2

        The part of this Ned the Ed that indicates we are dealing with a stacked court is that they are making findings of fact about what a person skilled in the art knows based on their own judgment absent evidence.

    2. 4.2

      MM you are so obviously a paid propagandist. You never integrate anything you say with reality. Ned is worse. Ned is obviously fishing for business.

      I wrote one patent application that is world known. It was invented by one person working for a large corporation. It has generated 10’s of millions in licensing revenue. Without patents, he never would have invented it.

      Plus, the other thing is that you could strip it down to only basic hardware plus software. (That isn’t the way it is implemented, but it could be.) So, under your view of the world it is invalid under Alice.

      You guys just have no comprehensive integrated view. You just play off the ignorance of masses.

      And, again, I see since I have left this blog you and Ned have started with the magical functionality again. Somehow functions are performed without structure. Magic. Apparently the information processing is done in the spirit world.

      And, again, your second favorite trick (and the purchased Google judges’ favorite trick too) is to leave out one skilled in the art in functional claiming.

      (All claiming is functional. We all know that. You are misrepresenting–again–pretty much everything.)

      This blog is like going out and having a fight in the mud with the hooligans.

  3. 3

    Regarding Scott McKeowan’s worthy essay above, please consider the following Socratic exchange (and please forgive the length):

    Socrates: Antimoches? Well met, good fellow. May I trouble you with a question that is needling me?

    Antimoches: I am always happy to consider a question with you, Socrates.

    S: Thank you, good friend. My question is this: can a public street be a private street?

    A: No, Socrates, certainly not. That which is public is necessarily not private, and that which is private is necessarily not public.

    S: So public and private are mutually contradictory categories?

    A: Certainly, Socrates. All the world acknowledges as much to be true.

    S: So, what do we mean when we say that a thing is “public” or “private”?

    A: That which is “public” is available to all, or nearly all, while the “private” is available to only the individual, or perhaps the individual’s family or friends.

    S: Indeed, that is how I use the words, as well. Please tell me, then, is it possible for a public park to be located on a private street?

    A: No, Socrates. Once again, the category “public” excludes the category “private,” so it is not possible for the public park to exist on the private street. How could the public, who are not permitted on the private street, approach the public park if it were located on the private property of the private street?

    S: And is it, then, impossible for a public official to live on a private street?

    A: I confess, Socrates, that this question has surprised me. I believe—based on what we just said—that the answer must be “no.” It is not permissible for a public official to live on a private street. Once again, the category “public” excludes “private.”

    S: Is it permissible for a public official to own private property?

    A: Now I am thoroughly confused, Socrates. If I follow where logic has brought me thus far, I would say that I know that public officials cannot own private property, for their nature as public excludes their involvement with the private. And yet I know public officials who do own private property. Nobody regards it as any sort of scandal that Pericles owns a garden outside the walls of Athens, and certainly it is no sort of logical contradiction to say that this private garden belongs to Pericles, who is indisputably a public official.

    S: But, perhaps, Antimoches, we are getting lost in the adjective and losing sight of the noun.

    A: What do you mean, Socrates?

    S: Let me ask you a question. Is it a contradiction to say that this dog is black, but that dog is white?

    A: No, it is not.

    S: Very good. And is it a contradiction to say that this garden is alive, but this same garden is also dead?

    A: Yes, Socrates, that is a contradiction.

    S: Excellent. Then can we say that when assessing a contradiction in adjectival properties, it makes a great deal of difference to pay attention to the noun to which the adjective is applied?

    A: Indeed, Socrates, what you say is true!

    S: Then might we not say that when a public official owns private property, there is no contradiction, because—while the adjectives “public” and “private” are antonyms—they are applied to two different nouns? Therefore the contradictory nature of “public” and “private” are not forced into an unresolvable contradiction, because it is not one and the same thing that is both “public” and “private.”

    A: Indubitably, Socrates. It must be thus.

    S: Another question still troubles me, however. You have been so good, Antimoches, to help me to understand thus far. Perhaps you can help me to resolve this lingering difficulty. Can a single subject—designated, therefore, by a single noun—have both public and private aspects?

    A: What do you mean, Socrates?

    S: Let me phrase the question thus: can Pericles have both a public life and a private life?

    A: Earlier in the conversation, I might have been confused about this, Socrates, but now the answer seems clear. Pericles is a single noun, and therefore the mutually contradictory properties of “public” and “private” may not both inhere in the same entity, for such would be an insupportable contradiction.

    S: This seems true, Antimoches. And yet, let us consider that when Pericles addresses the assembly in the agora, men call this his “public” life, while when Pericles sups with his wife in their garden outside the walls, men speak of this as his “private” life. Do you believe that this is mere ignorance on the part of men, to distinguish between the “private” and “public” life of Pericles?

    A: Surely, Socrates, this is mere ignorance. We know that the mass of common minds are full of gross ignorance. They believe all manner of nonsense, and bicker amongst themselves in the market about the most ridiculous trifles. We must accept the conclusions of sound logic and philosophy over the ignorant speculations of the rabble.

    S: Perhaps so. And yet, I wonder if the popular wisdom might be more worthy on this point than on some others. Remember that we established earlier that the “public” is available to all, while the “private” is available to only a few. But if that is the case, can it be said that Pericles—who is very definitely a public man—acts in public when he dines with his wife in their garden? Does the public dine with him, or even see him dining?

    A: No, Socrates, I confess that you have caught me out, there. It would seem that when Pericles dines in his garden, he is acting in a private capacity, even as he acts in a public capacity when he addresses the assembly in the agora.

    S: Then might we not say that—just as there is no contradiction to speak of “public” as applied to one noun and “private” as applied to another—so too there is no contradiction to speaking of “public” and “private” applied to the same noun, but in reference to different points in time.

    A: Well said, Socrates. That is indeed how we should understand the matter.

    S: Excellent. One last question remains in my mind, however: can we speak of “public” and “private” aspects of the same noun, at the same time?

    A: You have tripped me up twice, Socrates, but you will not do so a third time. Surely it must be a contradiction to have two contradictory properties inhere in the same subject at the same time.

    S: Perhaps so, Antimoches, but I am thinking of the following situation: imagine that Pericles is addressing the assembly in the agora. Does he do so naked?

    A: Socrates, you make me blush. Of course he does not stand shamefully naked in front of the assembly. He wears his tunic, as befits a man of rank addressing the assembly. He does not wish to display his pudenda in so undignified a manner.

    S: Indeed, not, Antimoches. And yet, did we not just agree that the “public” is done in the sight of all, but you just noted that Pericles’ pudenda are hidden from sight. Might we not say, then, that Pericles has both “public” and “private” aspects inhering simultaneous in himself as he addresses the assembly in the agora.

    A: I confess, Socrates, that you must be correct. Not only can we resolve the contradiction by assigning “public” to one noun and “private” to another, or by assigning them both to the same noun, but at different times. We can also resolve the contradiction by assigning “public” to one aspect of a single noun and “private” to another aspect of that same noun, even at the same time.

    S: And if so, let us apply this wisdom that we have struggled so hard to obtain to the best and most worth object of consideration—that is, patents issued under the laws of the United States. Can we not say, then, that there are aspects of a single patent that exist as a matter of private concern to the patentee, and other aspects of the same patent that exist as a matter of public concern to all the nation?

    A: Indeed, Socrates, it must be thus.

    S: And might it, then, be fair to say that a patent exists as a private right as concerns its ownership or its enforcement, but also as a public right as concerns its validity?

    A: It would seem so, Socrates. But I see by the waning light that night will soon be here, and I must rush to meet my friends for dinner at Lysomyxes’ house. Farewell until next we meet.

    1. 3.1

      An amusing vignette, alas, full of assumptions and half truths that do not translate when viewed critically.

      1. 3.1.1

        … full of assumptions and half truths that do not translate when viewed critically.

        Well, who can stand against such an explicit and convincing rebuttal?

          1. 3.1.1.1.1

            Let’s start with this nibble:

            It is a fallacy to equate “an item of public concern to all the nation” with the term “public right.”

            1. 3.1.1.1.1.1

              This is a very fair quibble. In view of what you say, I really should have stopped the dialogue at the first “Indubitably, Socrates. It must be thus.”

              My real point is that a lot of the confusion over the supposed contradiction between “private property” and “public right” is that the “private” and “public,” while antonyms, are applied to two different nouns, and there really is no contradiction in two different nouns having mutually irreconcilable predicates attached to them.

              It was a mistake to chase the issue further still, to the supposed contradiction between “private rights” and “public rights.” The term “public rights” in U.S. law has a very specific meaning, that is not just “a right that is public” or “a right that belongs to the public.” You are correct that the conclusion of the dialogue really does not tell us much useful about the debate at hand, because the mere fact that a patent can affect a “right that belongs to the public” does not tell us whether it affects a “public right.”

              1. 3.1.1.1.1.1.1

                Your real point is lost in obfuscation from your delightful story.

                I “get” that differences in meaning may occur from either adjectives or the nouns that the adjectives attach to. Differences in meaning also attach to the compound term of both the adjective and the noun, quite apart from either the adjective or the noun separately.

                As you now post, “It was a mistake

                I am glad that you yourself have been able to see that critical thinking shows that your amusing vignette does not translate.

    2. 3.2

      As to “worthy essay,” you want to draw to someone characterizing Justice Thomas – in dissent – as being some “best view” (most sensible best enunciated) of the public/private right…?

      No thanks.

    3. 3.3

      Greg, there is an assumption there that needs proof because I do not agree, and I do not believe the Supreme Court agrees, that the validity of a patent that covers an invention is of public concern. The Supreme Court has already said in B&B Hardware that public is not involved with the validity of a patent because a patent is not like a statute. It only covers those who use the claimed invention.

      What can be said is that the public has concern that the patent office not grant patents on things in the public domain, that are not broader than the disclosed invention so as to foreclose independent invention of others, and that the be supported by specifications that accurately describe the invention so that one may know not only how to make and use the invention, what the metes and bounds of the invention really are.

      Look to the words of the Constitution. It empowers Congress to “secure” to inventors exclusive rights in their Discoveries. The discovery of an inventor is not the property of others. The only thing Congress can do is secure the exclusive right of the inventor in that discovery. Congress is not empowered to take that discovery from the inventor and distribute it to the public.

      Now to be sure, the public does have concern over monopolies that adversely affect the public. But not every patent necessarily grants monopoly power. And even if it did, if a patent is otherwise valid, monopoly is legal.

      1. 3.3.1

        The Supreme Court has already said in B&B Hardware that public is not involved with the validity of a patent because a patent is not like a statute.

        Ned, can you point me to where in B&B Hardware you see this? I just do not see any such assertion in B&B Hardware.

        [T]he public has concern that the patent office not grant patents on things in the public domain… Look to the words of the Constitution… Congress is not empowered to take that discovery from the inventor and distribute it to the public.

        But IPRs do not (cannot) take a patentable discovery from the inventor and distribute it to the public. The only thing that an IPR can do is to decide that a patent has claimed something that was in the public domain at the time of invention.

        1. 3.3.1.1

          B&B is a collateral estoppel case.

          It’s interesting because the dissenting Justices unexpectedly raised TTAB constitutionality issues.

          The dissent doesn’t say what you or Scott think it does.

        2. 3.3.1.2

          Greg, my bad. Teva Pharmaceuticals USA v. Sandoz, Inc., 135 S. Ct. 831, 574 U.S., 190 L. Ed. 2d 719 (2015).

          Statutes, in general, address themselves to the general public; patent claims concern a small portion of that public. Statutes typically (though not always) rest upon congressional consideration of general facts related to a reasonably broad set of social circumstances; patents typically (though not always) rest upon consideration by a few private parties, experts, and administrators of more narrowly circumscribed facts related to specific technical matters. The public, and often an adversarial public, typically considers and discusses the relevant general facts before Congress enacts a statute; only private parties, experts, and administrators likely consider the relevant technical facts before the award of a patent. Given these differences, it is not surprising that this Court has never previously compared patent claim construction in any here relevant way to statutory construction. As discussed supra, at 837, however, the Court has repeatedly compared patent claim construction to the construction of other written instruments such as deeds and contracts.

          Id. at 840.

        3. 3.3.1.3

          The only thing that an IPR can do is to decide that a patent has claimed something that was in the public domain at the time of invention.

          No.

          As has been made clear many many many times now, that is NOT the only thing that an IPR can do.

          1. 3.3.1.3.1

            Er, o.k., you have me there. My post was hastily scrawled and correspondingly inaptly phrased.

            An IPR can also decide that a claimed invention was not in the public domain at the time of invention. Those really are the only two determinations, however, that the PTAB can make in an IPR (PGRs being, of course, a separate case): already in the public domain or not already in the public domain.

    4. 3.4

      You know the Federal Circuit really stepped in it when people start quoting Scott McKleown and Socrates.

      1. 3.4.1

        But the discussion does illustrate the exact point where Patlex went off the rails, does it not.

        One could say with equal force that the validity of deeds (patents on property) is of public concern. That should not make private property public rights, because of validity of any particular piece of property is not the concern of the public.

        1. 3.4.1.1

          One could say with equal force that the validity of deeds (patents on property) is of public concern.

          Hm, I disagree. If there is a valid U.S. patent claim in force, this affects every last person residing within the United States. I can be rightly said to be allowed to practice the invention if the patent claim is invalid, and not allowed to practice the invention if the patent claim is valid.

          By contrast, if both Smith and Brown purport to hold good title to Blackacre (each to the exclusion of the other), this is a matter of (perhaps) much concern to Brown and Smith. It is of little to no concern to me, however. I may not walk across Blackacre regardless of who might be rightly said to own it.

          The public’s concern in the validity of the patent, then, is much more tangible and immediate than its concern in the validity of the deed by which either Smith or Brown purports to hold Blackacre.

          1. 3.4.1.1.1

            Which is precisely why:

            The PTO needs to do a better job determining what to issue

            And

            An expert ADVISORY patent review board is probably constitutional

            1. 3.4.1.1.1.1

              I think that everyone can agree with these two assertions as presently phrased, especially given the hedge (“probably”) in the second.

              1. 3.4.1.1.1.1.1

                Agreement is not sufficient.

                Agreement, and then setting the “what” the agreement pertains to on the shelf and pursuing other items that fit other agendas (e.g., the AIA), is a fail.

          2. 3.4.1.1.2

            Greg, you take the concept of standing and just toss it into the trash.

            If, as you say the entire public has a concern about a particular patent, then the entire public has standing.

            1. 3.4.1.1.2.1

              There is not limit on who can file an IPR, is there?

              1. 3.4.1.1.2.1.1

                If by “no limit on who,” you mean that standing is not a requirement of the IPR process, you are correct.

                I have reminded both Ned and Greg of this in several of their previous discussions on this matter.

                1. I have reminded both Ned and Greg of this in several of their previous discussions on this matter.

                  Really, you needn’t (remind, that is). I assure you, I have never once, in the course of any of our colloquies, forgotten that there is no standing requirement for IPRs.

                  I regard the lack of a standing requirement as a good thing (although there would still be a systemic value to IPRs if a standing requirement were added). I gather that others disagree with me about the lack of a standing requirement being a good thing. One way or another, however, I doubt that anyone has simply let that point slip his or her mind.

                2. One way or another, however, I doubt that anyone has simply let that point slip his or her mind.

                  I cannot be so sanguine.

                  One only needs to look at how people continue to post as if the point HAS slipped his or her mind to see that reminders ARE necessary guideposts in continuing dialogues.

                  In fact, for someone to say that they have not forgotten, and then turn around and ACT like they have forgotten belies a purposefulness that is even more despicable than mere ignorance or forgetfulness.

                  Especially when that type of action is routinely the work of the sAme ones (to draw a contrast to mere “someone”).

              2. 3.4.1.1.2.1.2

                Well Squirrel, no. And that is a major defect with IPRs. No standing. Anybody can bring an IPR for any reason and they do — to short a stock when an petition is filed against a key patent of a company — or to harass a patent owner by IPR’ing the entire portfolio of a company who does not want to grant a license on one patent and who cannot afford IPRs.

                1. Ned,

                  That “defect” as you call it was not only known during the formation of the bill that became law in the AIA, it was touted as a feature, rather than a bug.

                  ALL of the “bad” side effects were thought to be “worth it,” because the Kool-Aid of “bad patents” had been swilled so thoroughly.

                  That swill IS still going on.

                2. “bad patents”

                  Remember, folks: “anon” is all about “patent quality.” But the idea that there’s a whole ton of “bad patents” out there is just “kool aid.” Right …

                  Meanwhile, anyone who’s looked at the system closely for more than five minutes knows that “bad patents” are ubiquitous and using them to extort money is a specialized industry among the worst attorneys who ever walked the earth. And, yes, “anon” pretends to be one of those attorneys when he isn’t pretending to be a mailroom clerk.

                3. The ends do not justify the means Malcolm.

                  Put your strawman away, as the presence (or lack thereof) of “plenty of bad patents” is NOT a point in the discussion.

          3. 3.4.1.1.3

            Greg,

            Your disagreement changes nothing.

            This very point has been presented to you previously (by at least me :-) ).

            In the exact same legal way that the personal property of a patent can be said to “affects every last person residing within the United States,” so too with land.

            Your attempted contrast is logically unsound. You seem to want to make the dispute between Smith and Brown some type of focal point. Such is only dust kicking. To extend the contrast in a meaningful way, you would have to present a situation in which Smith and Brown each think that they have invented something, only one of them has the rightful claim to the patent (pre-AIA, much more interesting of a contest), and your “of little concern” STILL applies, because no matter if Smith or Brown prevails, your infringement of the patent being battled over is still an infraction “regardless of who might be rightly said to own it” – EXACTLY as you try to differentiate.

            It is only your mere assertion of “the public’s concern” and the degree of that concern that you conclude with. Not only does such NOT MATTER, you have never been appointed the power to make that pronouncement.

            This has not been a good day for you and your views on the law.

          4. 3.4.1.1.4

            As to a public interest in invalidating patents I think you will find some support for that in Lear v. Atkins, 395 US 653 (1969) – [overturning license estoppel] and Blonder – Tongue Labs, Inc. v. University of Illinois Foundations, 402 US 313 (1971).

        2. 3.4.1.2

          Patlex was the Federal Circuit putting patent policy before separation of powers authority. It happened in an era when the Supreme Court did not supervise the Federal Circuit.

          Those days are over.

  4. 2

    Vera Ranieri: No Evidence That “Stronger” Patents Will Mean More Innovation

    Opinion drivel not well supported or written. Not the quality that I have come to associate with Patently-O.

    1. 2.1

      Does (very much) remind me though of a certain 11 year resident of the blog’s comment section though.

  5. 1

    >No Evidence That “Stronger” Patents Will Mean More Innovation

    The quality of this piece is so bad that it would have been improved by an image of a person spitting on a patent.

    It is a disgrace that the most read blog on patents would have a hyperlink to piece of such low quality.

    1. 1.1

      The intellectual dishonesty of this article is stunning. We can start with its conflating of research investment with innovation. Sleight of hand anyone?
      Then, it states ‘no evidence” while blindly ignoring a ton of evidence that is available with minimal effort.
      Consider for example that investment in new technology, especially SMEs who are the lifeblood of new innovation, is clearly driven by patents. Anyone who has done a funding round for a company commercializing a new technology can tell you and provide evidence that IP rights are a key aspect of diligence and pricing. No IP and your round is impaired or dead.

      1. 1.1.1

        You make a lot of bluster, but I notice that the quality of your comment is less than the quality of the article that you are complaining about. At least the article provides links to what the author is basing her opinion on.

        Even you supposed evidence (more like an an anecdote) about the need for IP rights being key to diligence and pricing leaves us with a question: Are IP rights important in those situations because they are inherently valuable or are they important because people believe they are important?

        1. 1.1.1.1

          Even you supposed evidence (more like an an anecdote) about the need for IP rights being key to diligence and pricing leaves us with a question: Are IP rights important in those situations because they are inherently valuable or are they important because people believe they are important?

          I don’t think it matters. We humans have all sorts of institutions that have no intrinsic value yet are important nonetheless. For instance, currency today has value only because you, I, and everyone else engage in the fiction that it has value. So, whether IP rights are important because they are inherently valuable or because people believe they are important makes no difference. What matters is that most drivers of the economy believe they are valuable, which means we probably ought not undermine them without a very good reason.

        2. 1.1.1.2

          Are IP rights important in those situations because they are inherently valuable or are they important because people believe they are important?

          Don’t ask the tough questions! You might make a grown man cry. Again.

    2. 1.2

      I second this. There must have been a real shortage of worthwhile essays to link this month, if this is the sort of thing that makes it into the Bits & Bites.

    3. 1.3

      The article by Vera Rahieri seems to imply that a patent will automatically issue to claims to eligible subject-matter…. As if novelty and non-obviousness were no longer patentability requirements.

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