by Dennis Crouch
Hitachi Metals v. Alliance of Rare-Earth Permanent Magnet Industry (Fed. Cir. 2017) (nonprecedential decision)
Rare-earth magnets are the strongest commercially available permanent magnets. Hitachi’s U.S. Patent Nos. 6,491,765 and 6,537,385 are directed to important commercial methods of pulverizing an alloy in order to prepare a powder then used to make the magnets.
Hitachi had previously brought a USITC action against a host of industry players to stop importation of infringing magnets into the United States. Those actions settled for undisclosed royalty amounts [EarthMagnetSettlementA], but a group of the ITC-losers then filed for inter partes review (IPR) – after forming the aforementioned “Alliance.” The Board granted the IPR request (on behalf of the Director) and eventually found the challenged claims obvious over a combination of prior art references (with one claim also anticipated).
In the non-precedential appellate opinion, the Federal Circuit has largely affirmed, but reversed on one particular claim – finding that the court had misconstrued claim 4 of the ’765 patent.
As compared with Claim 1, Claim 4 only adds a limitation within a “pulverization step” that “the alloy is finely pulverized in a high-speed flow of … oxygen.” The problem though was that although Claim 1 identified two separate pulverization steps (a first and a second) plus sub-steps of pulveration, Claim 4 did not identify which one to associate with high-speed flow of oxygen. In the appeal, the Federal Circuit dove into the written description – finding that:
We agree with Hitachi that claim 4 requires the use of a high-speed flow of gas comprising oxygen for the first sub-step of claim 1—the fine pulverization—rather than the umbrella “second pulverization step.”
The reasoning for this approach lies in the written description where exemplary processes described the step-by-step process of pulverization. The change in claim construction meant that the obviousness case was also pulverized. On remand, the PTAB will get a chance to determine validity under this new construction.
For me, the most interesting aspect of the opinion is its complete lack of discussion of the Broadest Reasonable Interpretation standard for claim construction. The approach taken by the court here looks more like an in-court analysis looking for the best interpretation of the claims. However, Federal Circuit precedent requires in this situation application of the broadest reasonable interpretation of the claims. The lack of specificity in spelling-out which pulverization step is applicable should at least prompt a consideration as to whether the PTAB’s construction was reasonable.
The image above comes from TMNT episode with the Pulverizer.
I’m still posting remotely – this time from the Italian Alps near Molveno.
Very serious libertarian thought leader Alex Jones:
Folks, I have hundreds of articles I see every week about human-animal chimeras with no rights. You talked about people you know in research labs, I’ve talked to them too. You see humanoids, they’re like 80 percent gorilla, 80 percent p i g, and they’re talking. ….
We need to make this illegal. This needs to be illegal.
Yes, those talking hybrid gorillas are really amazing. So are the flying monkeys. They breed in pizza parlors run by Vince Foster’s animated corpse. LOL
Mainstream glibertarian paranoia runs even deeper than I thought. But it explains just about everything that drivels out of their p i e h0les. Oh look out! The “Royal Nine” are coming!
Somebody better call Jeremy Rifkin so he can make sure that the USPTO has the best prior art.
Your projections and tendencies to want to place everyone that disagrees with you into a single bucket are as bizarre as the people that you make fun of.
You do realize that, right Malcolm?
When the bucket fits, my friend, you should wear it proudly. And yours fits perfectly. Also, don’t forget the pillowcase with the eyeholes. You’ll blend right in with your freedom fightin’ friends, standing up for the important stuff like preserving statues in the middle of town commemorating the awesome people who fought to keep blacks enslaved. Right? Those are the real freedom luvvers. Right, “anon”? That’s what freedom is all about. Right? Speak up.
You are not only shameless, you are mindless.
You also have zero sense of “fit.”
How did you ever get to be so full of yourself when there is so little there?
link to the-scientist.com
link to news.nationalgeographic.com
whew, far out stuff.
MM is a big fan of Alex’s InfoEntertainment. He is just a humble water filter merchant I hear.
I do like Millennial Millie tho. PJW isn’t bad on occasion. But I can’t really watch Alex, he’s too over the top nonsensical.
The private sector hasn’t had a single month of net job loss since 2010.
So much for the “devastating” effects of Bilski, Mayo, Alice etc on the job market.
But we knew that already.
That’s even with President Trump…?
That’s even with President Trump…?
“Even with”? It seems a bit odd to assume that the installation of Mango Hairball would, in just six months, reverse a seven year upward trend in private sector hiring.
Pretty hilarious to see you refer to Tangerine Tinyhands as “President” tho. Also not surprising. But I forget: you’re a very respectful person when it comes to your leaders. Deep and serious. LOL
Your comment misplaces venom.
Get into a different line of work please, one that does not create such rather obvious cognitive dissonance.
No idea what “misplaces venom” is supposed to mean.
But this is fun:
President Trump’s eldest son, Donald Trump Jr., was promised damaging information about Hillary Clinton before agreeing to meet with a Kremlin-connected Russian lawyer during the 2016 campaign, according to three advisers to the White House briefed on the meeting and two others with knowledge of it.
The meeting was also attended by his campaign chairman at the time, Paul J. Manafort, and his son-in-law, Jared Kushner. Mr. Manafort and Mr. Kushner only recently disclosed the meeting, though not its content, in confidential government documents described to The New York Times.
Until recently, Trump Jr. denied this meeting ever took place. And yesterday he said it was about “adoption.”
But … her emails! It was enough to make “anon” cast a “protest vote.” Yes, he’s a very serious person.
LOL
Her…. emails…?
Donkey
C
R
P
Sandwich – are you enjoying it?
“very serious”
What is that even supposed to mean?
I know that it is poker tell for when you have nothing of import to say, but you say it as if it actually has meaning.
Can you explain what point you are trying to make when you say it?
(not that any such explanation will change the “poker tell” nature of you saying it, but perhaps you won’t look like such the unmitigated @$$ saying it as you do currently)
…and again, no one finds it strange that after losing at the ITC, the defendants get another bite at the apple. Perhaps, in this case, part of the onus is on the patentee’s lawyers for not including a “no-IPR” provision in the settlement agreement. Nevertheless, it’s appalling to me that IPRs remain available as a back door route after a defendant has had an opportunity to litigate the issues…and that, evidently, after several years of these things, I’m in the minority in being vexed by this fact.
You’re not alone.
Weren’t pre-AIA inter partes reexaminations very similar to IPRs, and weren’t they available starting 1999? Was this “second bite at the apple” less of an issue with inter partes reexam?
IPRs remain available as a back door route
LOL
What? It’s the front door for members of the public who want to get a junk patent off the books. You have no idea what assertions were made at the ITC trials.
What we do know is that some fed up business people decided to stop the merry go around. They found the best art. They found some good attorneys. They made the right arguments. Kiss the junk patent goodbye.
Don’t forget: this patentee made a lot of money off a claim that was anticipated. More than a bit odd that you’d be crying about their “loss” here. They aren’t paying that money back.
And IPRs aren’t going anywhere. Get over yourself and grow up.
Whining and telling others to grow up….
Stultifying.
As to whether or not IPRs are “going anywhere,” feel free at any time to actually join a dialogue on the matter (and by joining a dialogue; I mean have more than just your feelings and your usual ad hominem ready – be ready to actually hold an inte11ectually honest conversation on the merits).
Yes, this will be a new experience for you Malcolm.
feel free at any time to actually join a dialogue on the matter
Been there a hundred times. Still waiting for a coherent compelling argument that isn’t predicated on some completely different “patent right” and how thyat was treated by the denizens of Sherwood Forest in the 16th century.
But we all know that argument doesn’t exist.
Whining
I’m not whining. I’m watching you and your p@ thetic entitled wealthy c0 horts whine, and whine endlessly, about how your silly junky patent rights aren’t as easy to “monetize” as they were in the glory days. Boo hoo hoo hoo! Oh, it’s such a tragedy. Just look at the stock market devastation. And the biotech industry decimated! LOL Meanwhile, I’ve got work coming out of my ears.
telling others to grow up….
Yes, please go grow up, you perpetual infant.
You say that you are not whining / as you continue to whine.
Stultifying.
Sherwood Forrest v. Sherriffe of Nottingham controls.
Atari, second the motion of frustration.
A patent does not become the property right is guaranteed to be by the Constitution until the ability of the patent office to reconsider the grant of an issued patent has ended.
Why are we even here today? McCormick Harvesting (Supreme Court 1898) held re-examinations were unconstitutional. Why has the Federal Circuit been able to avoid that case for so long – without the Supreme Court even considering the issue of constitutionality re-examinations and IPRs for review. Thank God It finally has.
A patent does not become the property right is guaranteed to be by the Constitution until the ability of the patent office to reconsider the grant of an issued patent has ended.
There is no such “guarantee” of “no administrative review of something called a patent” in the Constitution, nor is there anything even close to that. The term “patent” isn’t found in the Constitution. The issue of whether a “patent right” was some kind of holy right on the level of one’s ownership of, e.g., a black-skinned human, was never addressed by any of “the Framers” who were, at best, confused about what exactly they were driving at.
This is idea of a Constitutional “guarantee” that forbids administrative review of a patent grant is no less silly than the idea that the 2nd amendment gives you some sort of unimpeachable Constitutional right to wave a loaded pistol around in an airplane.
When did the patent bar become infested by gilbert@ rdian w@ nkers? That’s my question. I think I know the answer but maybe one of the w@ nkers can tell us when they were “awakened”. Surprise everybody.
?
Congress does not regulate inventions. It has no power to regulate patents. It has the power only to “secure” to inventors elusive rights for a limited time in their discoveries.
There is no power given to Congress to take an inventor’s invention and give it to the world by not granting a patent on the invention after the inventor has disclosed it in a published application in reliance receiving a patent, or by cancelling the patent after grant.
There is no power to not grant exclusive rights.
There is no power to grant exclusive rights for no definite period.
Where is this putative power in Congress?
The courts? Now there is where the power lies to hold a patent invalid. That power was not given to Congress.
You simply assume Congress is omnipotent, and that the big companies that control congress can stamp out constitutional rights that get in their way and effectively destroy the patent system.
Your attitude says it all. We mere mortals, US citizens, have to take it from big corporate america because might makes right. Well, MM, you have another think coming soon.
Moreover, MM, your attitude is very typical of the left. What you really care about is absolute power in the government — you oppose individual rights and private institutions everywhere. Just knowing that you are from the far left makes your every move and position entirely predictable.
Congress … has no power to regulate patents. It has the power only to “secure” to inventors exlusive rights for a limited time in their discoveries.
LOL Sure, that makes tons of sense. Good grief what a bunch of self-serving incomprehensible h00ey.
There is no power given to Congress to take an inventor’s invention and give it to the world by not granting a patent/i>
Non-sequitur.
Art 4 doesn’t require Congress to do squat with “inventions.” The Constitution doesn’t mandate that Congress create a “patent office” or do anything else to “grant patents.” The word “patent” isn’t in the Constitution and there is nothing in the Constitution mandating any “protection” whatsoever for “inventions.” Nothing. Nada. Zilch.
It’s therefore more than a little bizarre — in fact it’s utterly absurd — to suggest that if Congress does decide to give “inventors” some kind of “right”, obtained through the auspices of a granting agency, that Congress has to make that right immune from review by the same granting agency.
Your attitude says it all. We mere mortals, US citizens, have to take it from big corporate america
This is where your silly glibertarian tendencies get the better of you and it’s why the patent maximalists are some of the least credible and most hypocritical people on the planet. The silly made-up non-issue of the “unconstitutionality” (LOL) of review by the granting agency has *nothing* to do with “big corporate america.” That’s just a gimmick to make you and your clients — some of the wealthiest people on the planet — appear to be “victims.” But nobody believes that. And by nobody I mean nobody who isn’t an entitled b0ttom feeding w@ nker like you and your fellow travelers.
you oppose individual rights and private institutions everywhere
LOL What are you smoking? I suggest you stop.
Enjoy that swagger, Ned.
I do somewhat agree with you there Ned, though I do have to say that the procedure that the Congress puts in place may sometimes leave one without exclusive rights (prior art problems, your patent got invalidated and you didn’t have a CON on file…).
That’s been the case for awhile now.
“Moreover, MM, your attitude is very typical of the left. What you really care about is absolute power in the government — you oppose individual rights and private institutions everywhere. Just knowing that you are from the far left makes your every move and position entirely predictable.”
You are somewhat right about that Ned. It is the case that lefties are in fact generally of this stripe. And in modern times they are often of this stripe specifically because dreaded whitey uses those means, in prim proper white society, to enrich himself. We see that occur with MM sometimes. They’re upset that other groups sometimes don’t avail themselves of those same mechanisms in quite as large of numbers as the dreaded ev il whitey does, for a gazillion different reasons. And the best part is, they like to blame the dreaded evil whitey for that same thing, even as whitey invites, nay, begs and pleads, other groups to forego their own societal pursuits and join the white cis hetero mainstream patriarchy in doing the exact same thing (although with the proviso of course that whitey will compete hard with them, as is of course proper in prim and proper whitey society).
It’s quite a state of society that is occurring at the moment.
6, MM may have bought into the Dems’ identity politics. But all I have ever seen from him is knee-j* rk LOL’s at anyone who challenges government power. He really could care less about the rampant crony capitalism that invasive government power permits, how the government picks winners and losers based on graft, etc.
Also, the thinking of the left seem unaltered from 1792 France. Venezuela today is like the Paris of that era.
Malcolm IS the Trump of these boards….
😉
“I have ever seen from him is knee-j* rk LOL’s at anyone who challenges government power”
To be fair, the gubmit is super-powered in the current age, and probably will be permanently. Decades of “liberal” gubmit expansion and “diversification” (aka leftification) of the populace with immigrants from left leaning/collectivist countries, and consistent leftist thought in academia doesn’t come with 0 cost to the liberties available in a country and gubmit bloat/power. “Conservatives” and the “conservative movement” will never, ever, reign in the gubmit in an appreciable amount, even if they’re permanently “in charge” (via being voted in as a permanent majority) if those later two things continue. Because the populace wouldn’t tolerate it and they’d constantly be worried about losing their power so they wouldn’t reign it in. And this has follow-on effects in backwater areas like patent law.
“Also, the thinking of the left seem unaltered from 1792 France.”
Not quite that bad as yet.
6, re: 1792 France — their thinking is that bad. It is their actions that have not yet reached the level of the Reign of Terr0r.
But, when you see enraged party members pick up their guns, go to the fields where Congressmen practice baseball, inquire as to whether those present are Republicans, and only then open fire, we are very near to where we were in 1792 France.
Perhaps. I’m not an expert on the minutia of the thinking of that time.
6, Just look at Venezuela. That is what Paris was like under the Jacobins.
Re: “.. a “no-IPR” provision in the settlement agreement.”
There is some concern that such a provision, even if accepted by both parties, may not be enforceable. On the same public policy grounds as “no reexamination” or other “no invalidity challenges” clauses have been argued to be unenforceable. Especially since an ITC proceeding is not a judicial proceeding and ITC decisions have no legal effect in other proceedings, including parallel D.C. proceedings.
“I’m still posting remotely – this time from the Italian Alps near Molveno.”
Haha I didn’t realize that was you last time, I thought that was someone other than Dennis posting from Italy.
Not sure about this claim construction mess though, would have to look all into the details. I would think under the BRI it might be able to go either way if they didn’t specify.
BOYCOTT PATENTLYO
The comment system is a mess. Every time we post we’re fighting an invisible filter than randomly blackballs messages which are professional and on topic. What rule did we break? Why is the filter eating our post? Who knows? We get zero feedback as to what is going on or how to fix it.
It’s to the point you can’t have a reasonable discussion in the comments section anymore. Half your replies get sent to comment purgatory with no way out.
I for one refuse to participate in this dog and pony show any longer. Dennis, you have many passionate users who want to discuss the topics you post. Please we’re begging you: replace this cr@ppy use less discussion system with something that works. I won’t be posting any more except to call for others to join me in a boycott of PatentlyO until you fix this.
BOYCOTT PATENTLYO UNTIL DENNIS FIXES THE COMMENT SYSTEM
Something’s gotta be done.
Meaningful discussion in the comments section here? That hasn’t been the case for like 10 years. Dennis is aware of the problem, but hasn’t found a solution. It’s not a problem unique to Patently-O, and I’m not sure there is one. (Although I’m sure there’s a solution to the *technical* problem of an over-zealous filter.)
I have provided suggestions for the multiple types of problems.
Interestingly enough, it was only after it was pointed out that a capability of seeing all of Malcolm’s repeated scripts being co-located was an aspect of the DISQUS system, was that system dropped (without explanation).
I am sure that a local coffee shop can be quite easily found and a promise of pizza made in order to “just make it so” over the weekend for the perfect software system.
After all, isn’t that perfect system “already in there”….?
😉
Yes, the real filter that is needed here is to eliminate all non-substantive comments, especially the voluminous mere hostile exchanges of personal insults.
The personal insults are certainly not limited to exchanges.
Just look at nearly most any post following “MM,” as it has been for 11 years.
KB – Looking at there, there are lots of blocked comments from your same IP address that are full of profanity. I don’t know if that is you or someone else at your firm, but I suspect that is creating your problem.
Prof3n1ty? Is that why my stuff gets filtered out Dennis? Seems that my notion of what is prof3n3 differs from that of your filter.
But if so, hey; that’s just one more example of Europe differing from the USA, on any given topic.
Good to know though, that if I refrain from typing anything that Americans would see as pr0f3n3, I ought to get past the filter.
Dennis, I second Max’s point. From where I sit, I mostly have no clue as to what could possibly have triggered the filter. The other day, the filter hit when I posted material copied from an 1897 Supreme Court case.
The overall picture is this: the filter hits for no apparent reason. Thereafter, all posts are filtered in a thread until you fix the problem. You then allow some posts to emerge, but not all. By not posting all, you effectively exercise editorial content control over a poster’s comments, something truly new to this forum.
We all do not mind filters on comments that have nothing to do with patents, or which are hostile to another poster. But we do mind filtering comments related to patent law that do not contain “banned” words.
Maybe you should check on the profanity that gets through from Malcolm…
lol d.
It might be so for him, but there’s a lot of posts getting blocked for no actual reason.
Dennis – look at the timestamps. The profane comments are in response to the blocking filter. After the same legitimate, on topic, civil post gets blocked multiple times, the profane comments follow and are directed at the filter system itself (notice they never use profanity toward other users or the topics being discussed). If I’m going to get blocked then I may as well give the filter something worth blocking.
The profanity is a symptom, not the cause. Block profanity all you want. It’s the other posts blocked for seemingly no reason that are the problem.
KnowBuddy,
More and more I get the feeling that “editorial control” has been taken out of the good professor’s direct hands.
As you point out, editing and blocking of comments (at times) makes no sense at all (as well as comments that appear to be given free reign – including pr0fan1ty.
The latest version especially seems geared to have a heavy hand on “volume” posting, which as I have pointed out penalizes actual dialogue being developed, and promotes the type of snide, empty, drive-by, short script monologues that Malcolm “specializes” in.
As I have also noted, there was a prior “editorial control” system that had features that highlighted the actual blight here. By this, I mean the DISQUS system which allowed (under normal security settings) to see all of a user’s posts co-located in one place. As soon as I noted this feature (while DISQUS was in use), Malcolm opted to the highest possible security settings that stopped this “co-location” feature. He was quickly followed by other “sAme ones” who, not surprisingly, were all of the anti-patent ilk. When this avoidance of tracking was pointed out, Malcolm could not justify why such a higher level of security was chosen.
I know the prof does not like “meta” discussions, but even he at times has posted articles geared solely to “the ecosystem,” so some discussion (and actual improvement suggestions) should be able to see “the light of day.”
Refreshing! When the Euro’s wrote the EPC in 1973 they chose to make definiteness i) a condition of patentability but ii) not a reason to find an issued claim invalid.
Of course! This is no more than recognizing the reality that i) applicants will always file indefinite claims, if permitted to do so and ii) Opponents will always find reasons why issued claims are unclear, if permitted so to object, for there has yet to issue a claim that is 100% clear (or 0% indefinite).
Here in Europe, the EPO is red hot on claim clarity. Precisely because it cannot, in post-issue opposition, find an issued claim unclear. Instead, it has to construe the claim as best it can. As here.
It’s a small world, these days. EPC thinking infects also the USA.
Max, back in the day, the New World infected the Old when Spanish conquistadors brought back you know what from their “relationships” with the Native Americans.
I suppose, from the Native American point of view, they were one time also it infected by Old World “ideas” when they were given blankets infected with scarlet fever.
Yeah, ideas are infectious. But the result does not always seem to be good for those infected.
I suppose, from the Native American point of view, they were one time also it infected by Old World “ideas” when they were given blankets infected with scarlet fever.
Good grief, man, get an editor.
Not saying ideas out of Europe are always good, Ned. But if they provoke reasoned discussion between informed specialists? Now that would be good, eh?
The human animal is naturally curious. And that curiosity has got us where we are today, right?
“ But if they provoke reasoned discussion between informed specialists? Now that would be good, eh?”
On that point, your tendencis to just throw
C
R
P
at the wall to see what sticks does not count as “good.”
Now if anything deserves filtering out, it’s that “contribution” to the debate from “anon”.
Sure, truth hurts does it not, eh MaxDrei…?
Max, no doubt.
There was “a complete lack of discussion of the Broadest Reasonable Interpretation standard for claim construction” because the challenger directed their argument to the second pulverization step (opinion p. 18), not the first pulverization step or both pulverization steps.
Quoting:
First, the Alliance argues, claim 1 recites “a second pulverization step of finely pulverizing the material alloy, . . . wherein said second pulverization step comprises a step of removing at least part of the fine powder,” id. col. 13 ll. 24–31 (emphasis added), and thus indicates that the particle classification (i.e., “remov[al]”) is part of the “second pulverization step.” Second, the
Alliance contends that the written description repeatedly describes “fine pulverization” as including a step of removing the fine powder. See, e.g., id. Abstract (“In the second pulverization step, easily oxidized super-fine
powder . . . is removed . . . ”); id. col. 4 ll. 56–62 (“In the method according to the present invention, after a material alloy . . . is coarsely pulverized and before a fine pulverization step is finished, at least part of R-rich superfine powder . . . is removed. . . .”) (emphasis added).
4. As an initial matter, the parties seem to agree that, as recited in claim 1, the fine pulverization and particle classification are sub-steps of the umbrella “second pulverization step.” They disagree only as to whether claim 4’s requirement of a high-speed flow of gas comprising oxygen pertains to the umbrella step or to the first sub-step.”
Also, claim 4 when read as a whole could only apply to the second pulverization step:
1. A method for manufacturing alloy powder for R—Fe—B rare earth magnets, comprising a first pulverization step of coarsely pulverizing a material alloy for rare earth magnets and a second pulverization step of finely pulverizing the material alloy,
wherein said first pulverization step comprises a step of pulverizing the material alloy by a hydrogen pulverization method, and
said second pulverization step comprises a step of removing at least part of fine powder having a particle size of 1.0 μm or less to adjust the particle quantity of the fine powder having a particle size of 1.0 μm or less to 10% or less of the particle quantity of the entire powder.
2. The method of claim 1, wherein the average concentration of the rare earth element contained in the fine powder having a particle size of 1.0 μm or less is greater than the average concentration of the rare earth element contained in the entire powder.
3. The method of claim 1 or 2, wherein in said pulverization step, the alloy is finely pulverized in a high-speed flow of gas.
4. The method of claims 3, wherein the gas comprises oxygen.
The first pulverization step is a coarse pulverization step as recited, the second pulverization step is a fine pulverization step as recited, and intermediate claim 3 specifies that the flow of gas applies to the fine pulverization step.
“The lack of specificity in spelling-out which pulverization step is applicable should at least prompt a consideration as to whether the PTAB’s construction was reasonable.”
I disagree. There was no lack of specificity.
Well, I’ve seen rejections for indefiniteness applied to language that was a lot more definite than that.
Vague allusions to rejections that may or may not have stood up on appeal are not going to convince me otherwise.
None of the parties, the PTAB panel, and the Fed. Cir. panel thought that the reference was indefinite on initial review. It’s not going to change the second time around.
Totally agree, DRJlaw.
DRJ claim 4 when read as a whole could only apply to the second pulverization step
Agreed. That seemed crystal clear even from Dennis’ terse write-up.
Comments are closed.