Oil States and SAS arguments set for November 27

Oral arguments for both Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, No. 16-712 and SAS Institute Inc. v. Matal, No. 16-969, have been set for November 27, 2017.

Oil States challenges the AIA trial system at its most fundamental level — arguing that the Constitutional principles prohibits an administrative agency such as the USPTO from cancelling established property rights, such as those embodied by issued patents.

In SAS, the focus is on a narrow but important element of IPRs – whether the Board is “required to issue a final written decision as to every claim challenged by the petitioner.”  SAS is the IPR petitioner who challenged the claims of U.S. Patent No. 7,110,936 owned by ComplementSoft.  USPTO is also a respondent in the case (Matal) and is being represented by the US Solicitor General.

Both cases involve two private parties (patentee and challenger) as well as the government (USPTO) who intervened on appeal to support the PTAB’s decision-making.  In SAS, the PTO denied patentee ComplementSoft’s motion for divided arguments and at this point it is unclear to which Respondent will get to argue before the court.

SCOTUS

124 thoughts on “Oil States and SAS arguments set for November 27

  1. 15

    “Hoo-ray” for the continued non-objective and certainly not evenly applied “count” filter….

    1. 15.1

      salvaged….

      Your comment is awaiting moderation.

      October 17, 2017 at 11:56 am

      Malcolm posts: 26 and running.
      Cap based on count for one eyed webfeet: 8
      Cap based on count for dragon legs: 7

      So much for one set of rules, consistently and objectively applied…

  2. 14

    When you filed for your expressly limited, conditional, agency-revocable right to sue, you knew what you signed up for.

    But when you lose at the PTAB it still hurts anyways.

    LOL

    1. 14.1

      right to sue

      Can you try again? Your answer here is not clear.

      Somehow it appears that you might be thinking that a patent is merely a “right to sue,” which we both know is woefully inadequate for the purposes of a patent law discussion.

      (your “discussion” is lacking – and woefully so)

      In the meantime, please make sure that all those “clients” of yours understand fully how you feel about the work product that you (supposedly) are creating for them.

      Then take care of that massive cognitive dissonance issue that you are suffering from.

  3. 13

    One thing is for sure: Sonia Sotomayor, Ruth Bader Ginsburg, and Stephen Breyer will be on the side that IPRs are Constitutional.

    There is no doubt about that. So, we are starting off at the gate with 3-0.

    1. 13.2

      I am not as certain as you with that prediction.

      Remember: one immediate offshoot of the “IPRs are Constitutional” line of reasoning is that patent cases may be MORE EASILY moved out of the domain of the judicial branch.

      The three you mention are fans of the judicial branch maintaining their fingers in the 101 nose of wax.

      1. 13.2.1

        To those three it will be all about the administrative state. I’d bet the three will vote IPRs are Constitutional.

        1. 13.2.1.1

          That’s just it, Night Writer – there is a certain degree of tension here between the administrative state and the very power that those SAME three want to hold on to in regards to writing (as opposed to any true notion of interpreting) patent law.

          The path that buttresses the administrative state is the path that may lead away from the Supreme Court having their fingers in the wax nose of 101.

          Which of these two conflicting impulses is greater?

          With patent law, I would easily say keeping fingers in the wax nose.

    2. 13.3

      And we can be equally sure that Sam Alito, Neil Gorsuch, John Roberts, and Clarence Thomas will be on the side saying that IPRs violate the separation of powers. In other words, we are starting out the gate at 3-4. Everything will turn on whether Oil States can pick up either one of Justices Kagan or Kennedy . My bet is that they definitely get Kennedy, and maybe Kagan too. One way or the other, I am betting on IPRs going down.

  4. 12

    OT but important: Federal Circuit Judge William Bryson, sitting by designation on the bench in E.D.TX, granted Allergan’s belated motion [made under threat of declaring the “sale” a “sham” otherwise] to join the St. Regis Mohawk Nation to the ANDA litigation as a “necessary party,”* and then found claims of the Allergan patents asserted in that litigation to be invalid. This decision renders moot the parallel IPR proceedings as to the claims in common with its Allegan claim of soveriegn immunity.
    *The legal flaw in this obviously only partial assignment scheme noted earlier in blog comments

      1. 12.1.1

        Following the trial in this case, Allergan assigned all six of the Restasis patents to the Saint Regis Mohawk Tribe and received an exclusive license to the patents from the Tribe. Allergan subsequently moved to join the Tribe as a co-plaintiff. In a separate order entered today, the Court has granted that motion and added the Tribe as a plaintiff.

  5. 11

    If the limited, conditional agency-revocable “right” is unconstitutional by its very nature, then presumably every patent granted while the “right” in question was defined as such is null and void.

    Discuss.

    1. 11.1

      Not so.

      The patent right itself – as property – remains as it was.

      It is only the additional mechanism that is thrown out.

    2. 11.2

      Nothing doing. You are making an inseverability argument here. In essence, you are suggesting that Congress would not have consented to grant any patents unless those patents could be subject to IPR proceedings. The problem with that argument is that Congress expressly said the opposite in the very first lines of Title 35 (“SEPARABILITY… If any provision of Title 35, as enacted by section 1 hereof, is declared unconstitutional or is held invalid, the validity of the remainder of this title shall not be affected.” US Code, 2012). In other words, even if §§315–320 are no good, Congress intended the rest of Title 35 to continue in effect.

      1. 11.2.1

        The validity of the title is not the same as the validity of unconstitutional “rights” granted under an illegal regime.

        I agree that the patents without IPRs might not be null and void for the same reasons that patent granted under the illegal regime would be null and void.

  6. 10

    Two questions:

    (1) If Congress creates an agency-revocable conditional and limited “right”, and defines it as such, and nobody is forced to apply for the right, what is the argument that the applicant has not “consented” to the agency-revocability and conditional nature of the right (that was, again, defined as such)? Would a simple form requiring consent before the “right” is “granted” address this silly “Constitutional” issue?

    (2) The PTO Director turns out to be a narcissistic incompetent with a vindictive streak. Through a series of stealth maneuvers he grants every claim that is pending at the PTO in one historic evening. stating “Eat this, you anti-patent socialists!”. Question: does the Constitution require that these thousands upon thousands of absurdly broad and improvidently granted “patent rights” be dealt with by district courts one at a time because … the term “patent” appears in the heading? This is a question for the experts. And please don’t suggest that something like this could never happen. It’s 2017, after all.

    1. 10.1

      If Congress creates an agency-revocable conditional and limited “right”, and defines it as such, and nobody is forced to apply for the right, what is the argument that the applicant has not “consented” to the agency-revocability and conditional nature of the right (that was, again, defined as such)?

      I do not see that there is a good argument for the unconstitutionality of such a set-up. In other words, applicants who applied for patents after the 1980 code amendments that created ex parte re-exams, impliedly consented to their patents being subject to EPRs. Similarly, post-AIA applicants can be said to have impliedly consented to being subject to IPRs.

      Unfortunately or fortunately, depending on your perspective, the AIA amendments also retroactively swept pre-AIA patents into the IPR jurisdiction. It is a good bit harder to make out that people who applied for a patent well before IPRs were even being discussed as a possibility could be said to have “consented” to the applicability of IPR review.

      In other words, if Oil States wins (as I expect them to do), Congress can very easily remedy the constitutional defect by simply re-enacting the IPR statutes with a provision that they are only applicable to post-AIA applications. This will make IPRs to be of limited practicality right now, but of increasing importance in time.

      1. 10.1.1

        I haven’t read anything, but I didn’t think the petitioner’s argument was so limited. Aren’t they challenging the PTO’s ability to invalidate issued patents altogether? If so, then the fact that the particular IPR procedure is new shouldn’t be dispositive. Administrative review was part of the deal with all currently valid patents.

        1. 10.1.1.1

          No, if you look at pg. 19 of Oil States’ opening brief, they concede that there would be no constitutional problem to adjudication in a non-Art. III forum if the parties had consented to the non-Art. III forum. The whole issue of constitutional infirmity here depends on the fact that patent owners who have never consented (even impliedly) are subject to the PTAB’s jurisdiction in IPRs.

          1. 10.1.1.1.1

            And you think that applying for a patent with notice is constitutional consent to Article I revocation?

      2. 10.1.3

        Unfortunately or fortunately, depending on your perspective, the AIA amendments also retroactively swept pre-AIA patents into the IPR jurisdiction. It is a good bit harder to make out that people who applied for a patent well before IPRs were even being discussed as a possibility could be said to have “consented” to the applicability of IPR review.

        The IPR system would seem to have at least as much due process baked into it as the pre-AIA inter partes exams, or ex parte re-exam. If you implicitly consented to cancellation of claims under those regimes, it’s hard to see why the IPR regime would be objectionable.

        1. 10.1.3.1

          If you implicitly consented to cancellation of claims under those regimes, it’s hard to see why the IPR regime would be objectionable.

          Is it really hard for you to see why one might be o.k. with inter partes re-exams, but not inter partes reviews? Have you ever handled either?

          These are very different beasts.

          * The patentee in a re-exam gets to make unlimited amendments as of right.
          * The patentee in an IPR gets to petition for a limited number of amendments, vanishingly few of which are ever granted.

          * The patentee in a re-exam gets years to consider and revise their arguments and amendment strategies.
          * The patentee in an IPR gets a few months to make all of the decisions that they are going to make about the proceeding.

          As you know, I happen to think that IPRs are (on balance) a good thing for a well-functioning patent system. It is not hard, however, to see why a patentee who is o.k. with a re-exam might object to an IPR. It is simply bad faith to pretend otherwise.

        2. 10.1.3.2

          The IPR system would seem to have at least as much due process baked into it as the pre-AIA inter partes exams, or ex parte re-exam

          Not so.

          Details previously given 9by a plurality of others, so no need to bark back at me.

          Further, even some aspects of those systems were not “universally accepted” as being correct, so the “logic” in the argument is faulty at the start.

    2. 10.2

      [D]oes the Constitution require that these thousands upon thousands of absurdly broad and improvidently granted “patent rights” be dealt with by district courts one at a time because … the term “patent” appears in the heading?

      Er, yes. Who else but the courts could deal with such a problem. By the very terms of your hypo, the Director is a bad-actor, so you can scarcely hope that he will permit IPRs to tank the invalid claims that he has loosed into the world. Congress has no constitutional power to retroactively declare the granted patents invalid (some of them, after all, will be valid, so due process concerns prevent the mass invalidation of all of them without particularized consideration).

      No, in such a circumstance, the Art III courts are the only entity with both the constitutional authority and the institutional independence to deal with this Pandora’s box-full of bad patent claims.

  7. 9

    Are the march-in “rights” created by Bayh-Dole also “unconstitutional”?

    Does the Constitution prohibit the granting of any “right” in any shape or form that provides a limited conditional monopoly (effected by lawsuit) that is expressly revocable by the granting agency upon a showing of particular facts?

    Or does that prohibition only follow when the “right” is called a “patent” … by somebody?

  8. 8

    This pot has been stirred so much already I hate to encourage any more of it until we see the arguments from the other side.
    But what bothers me the most re the Oil State Appellant’s side is not their basic arguments [even though I don’t think they will win] but rather their missrepresentations that the cert issue would solely impact IPRs and would not affect any and ALL other PTO post-AIA post-issue proceedings, including reexaminations, PGRs, interferences, derivation proceedings, etc., none of which now have either jury trials or optional D.C. civil cases before Fed. Cir. appeal any more than IPRs.

    1. 8.1

      That will be a fun discussion for the oral argument!

      Right up there with the crucial importance of Congress referring to these limited conditional revocable rights as “patent rights” which apparently is the most crucial fact ever. It’s all that matters to people who wore wigs in the 18th century, or at least that’s how it looks if we go back in time and read their minds! Also all-male juries because, hey, these people were brilliant and that’s why we try to read their minds 250 years later. The women jurists will be at a disadvantage here, perhaps. Maybe they can ask Sammy “Pull Your Daughter’s Panties Down” Alito for help?

    2. 8.4

      I don’t think [Oil States] will win…

      Here is the part where I do not agree. I cannot see why the Court would take this case if they mean to affirm the CAFC. We have a court composed of a number of justices who think that the administrative state has grown too large. This case provides an ideal vehicle for the partisans of that idea to trim down the reach of administrative agencies.

      I expect this case to be decided against the PTO, and on very broad grounds. I predict that the Court will use this case to establish that any adjudication of a dispute between two private parties must be done by an Art. III court to be constitutional.

      1. 8.4.1

        Then why take SAS? That isn’t meant to be argumentative, it’s just the question I’ve been pondering myself whenever I see theories that the court intends to strike down IPRs.

        1. 8.4.1.1

          Because it would be helpful for an adjunct to the district courts to provide an advisory opinion adresssing all claims in a patent.

          1. 8.4.1.1.1

            an adjunct to the district courts to provide an advisory opinion

            anony – that in itself would be an “advisory opinion,” something that even the Supreme Court in all its “Supremeness” may not do.

            One has to remember that the Court has no power to rewrite the AIA to change IPRs into any new form as has been suggested by some amici.

              1. 8.4.1.1.1.1.1

                Quite clearly, whatever “explanation” you think that has been offered has been insufficient as a matter of law.

                Of course, you can try to make a legal argument that actually works (if you want to try something else).

        2. 8.4.1.2

          I do not have a really good answer to this question. I will note, however, that they took cert. on SAS before they took cert. on Oil States. What more, it only requires four justices to take cert., and we never learn (or at least almost never learn) which justices vote which way on cert. petitions. Maybe (and here I am just speculating) there were four justices who thought that SAS presented a worth question, not realizing that a different four were about to vote for cert. on a case that would make the question in SAS irrelevant?

            1. 8.4.1.2.2.1

              Good point, Ned. I should have said all non-consensual adjudication of disputes between two private parties must be in an Art. III court to be constitutional. Obviously, if both parties consent to have their validity dispute resolved in front of the PTO, then that is no different than their agreeing to subject the dispute to binding arbitration. There is nothing inherently unconstitutional about a voluntary recourse of private parties to that sort of non-Art. III dispute resolution forum.

              1. 8.4.1.2.2.1.1

                You consent to the limited conditional revocability when you apply for the so-called “patent right” because that’s how the “right” was defined by Congress.

              2. 8.4.1.2.2.1.2

                There is nothing inherently unconstitutional about a voluntary recourse of private parties to that sort of non-Art. III dispute resolution forum.

                Applying for the limited, revocable conditional “right” that Congress defined is 100% voluntary.

              3. 8.4.1.2.2.1.3

                Validity of claims based on printed publications and patent literature does not fit very well with the label of “a dispute between two private parties.” There is nothing that the patent owner has done that has harmed the IPR petitioner. There is nothing that the patent owner can do to provide relief to the petitioner.
                A dispute about validity of claims is better described as a dispute between the petitioner and the PTO, where the petitioner claims to be harmed by the PTO having issued a patent that does not meet the requirements set forth in 102 and/or 103, and where the PTO could provide relief by cancelling some of the claims. The patent owner appears to be an intervening party in this dispute.

                1. If the SCotUS really wants to uphold IPRs (I do not believe that they do), the explanation that you give in 8.4.1.2.2.1.3 will be the explanation that they offer to fit IPRs into the “public rights” category.

                  It is not that I find this explanation to be implausible. I simply do not believe that the Court would have taken this case if they meant to affirm (reversals of the CAFC dwarf affirmances).

                  I expect, however, that they whole reason that they took cert. is that there is a faction of the Court that wants greatly to trim the reach of the administrative state. They view this as an auspicious time to make that move, and this case as a useful vehicle for such a purpose.

                2. PiKa, you make an interesting point. That if a patent owner does not respond to the IPR petitioner the IPR can proceed anyway, with the petitioner and the PTO PTAB as the only parties, to a decision with in rem [not just personal] effect on the challenged patent claims. Definitely not a normal civil suit between two private parties.

            2. 8.4.1.2.2.2

              Suppose when patent owner A applied for a patent, it did so knowing ex parte reexams existed and were possible. Patent owner A sought a patent anyway. Consent to ex parte reexam?

                1. Me too – but I would like to know whether Ned thinks that’s right (and whether IPRs should be declared unconstitutional for any patent issued after the AIA was enacted, i.e. where patent applicants applied specifically while knowing IPRs/PGRs/CBMs existed).

                  I have a feeling Ned will not agree, but I am curious as to the legal basis if so (especially in light of cases like Union Carbide).

                2. It’s the “right” itself that was was unconstitutional as the “right” is defined as a limited, conditional and agency-revocable “right.” That’s what Congress created.

                  The result is that all patents granted post-AIA (at least) are null and void.

              1. 8.4.1.2.2.2.2

                But Patent system is not voluntary for investors in science any more than registering your house title is voluntary for buying a house.

                The only way you not reigister a house is not buy a house. The only way not file a patent is in first place not to invest in research. Is that what we want?

            3. 8.4.1.2.2.3

              All IPRs require to become constitutional is consent of the patent owner.

              Something perhaps for Congress to consider then.

              Of course, such cannot happen by the hand of the Court, given how Congress wrote the AIA.

              As to the musings from Jane on some “de facto” default condition of applying for a patent that must carry the acknowledgement of the possibility of revocation, this was thoroughly captured in a previous thread, and if I recall correctly, absent direct and express (and particularized) wording, such an omnibus statement would not accord with protections of property. Jane should consider that the initial part of the bargain was that an examination providing the grant comes with the full trappings of vested property, such that the addition of the terms of post-grant dealings must still comport with the protections of property that other portions of the Constitution provide.

              The legal basis being that even the correct branch of the government allocated authority to write patent law cannot do “whatever” it wants to do in disregard of any other protections that a right may have under the preceding law.

              1. 8.4.1.2.2.3.1

                the full trappings of vested property

                ROTFLMAO

                The patent statute is crystal that so-called “patent rights” don’t include the “full trappings” (<— LOL) of "vested property" (<——LOLOLOOLOLOLOL).

              2. 8.4.1.2.2.3.2

                even the correct branch of the government allocated authority to write patent law cannot do “whatever” it wants to do in disregard of any other protections that a right may have under the preceding law

                The “preceding law” defined the “right” as a limited, conditional agency-revocable right.

              3. 8.4.1.2.2.3.3

                Implicit consent traditionally only applies once a litigant voluntarily avails itself of a proceeding, and even then it’s debatable.

                1. Implicit consent traditionally only applies once a litigant

                  The “consent” we’re talking about occurs far earlier than “litigant.”

                  It occurs the moment you ask the agency for the “right” which is defined by Congress as a conditional limited right that is revocable by the granting agency upon a showing of error (with plenty of due process accorded to the grantee at that time).

              4. 8.4.1.2.2.3.4

                “Jane should consider that the initial part of the bargain was that an examination providing the grant comes with the full trappings of vested property”

                Except, in my example, it explicitly didn’t. Congress explicitly said that someone can get a patent, subject to possibility of revocation later. Like how with traditional forms of property, someone can maintain a contingent interest when granting rights to another. There is nothing inconsistent there with usual property laws.

                Now, if you want to raise a 5th Amendment takings argument, go ahead, but that’s not an Article III argument (see Union Carbide).

                1. Jane: if you want to raise a 5th Amendment takings argument, go ahead

                  That’s a non-starter argument, of course, because when the patent is demonstrated to be junk (and erroneously granted) there is nothing left to “take.”

                  Great points here, Jane. This entire “kernstertershunal” argument against IPRs is incredibly silly. These guys all know it, too.

                2. And you can buy a parcel of land, subject to the federal government’s ability to take it away some point in the future.

                  That’s not consent. It’s a forced precondition.

                  Actual consent could be incentived. Chief Justice Roberts wrote about it in his dissent in the Wellness case. You should read it.

                3. As for your contingent holding view, that only works when the holder (wishing to retain some right) is an actual owner of the bundle of rights. The government is no such owner. See Stanford v Roche for the proposition of exactly who is the first owner.

                  The government is turning an inchoate right (of the inventor) into a property right. This is just NOT the same as the government owning a bundle of property rights and only passing along some sticks in that bundle.

                4. Could a city/township condition all purchases of land upon the buyer’s consent that any dispute’s regarding his ownership validity would have to be resolved via arbitration (rather than via court)?

                  I think that would violate due process, even though the city/township in that hypothetical could probably simply ban all purchases of land altogether.

          1. 8.4.1.2.3

            Greg,

            That sounds reasonable; thanks for walking through that. A contrasting theory of course would be that the Court does not believe it will ultimately rule IPRs unconstitutional and so believes the SAS issue will remain relevant. I certainly have no idea, but I’m always intrigued to hear informed theories.

          2. 8.4.1.2.4

            While your points about the Supreme Court’s cert process are true, I do not think they explain the full story in this case.

            The PTO did not file a brief opposing cert in Oil States until the Supreme Court asked for a response after it had been distributed for its first conference (February-March 2017). So the justices–or at least a subset of them–had addressed the issue to some extent and expressed interest. The SAS petition then was not considered until two conferences in May, the second of which took place after the PTO’s brief in Oil States had been filed and distributed to the justices. The Court granted cert in SAS after the Oil States briefs were distributed for Conference and then granted Oil States shortly thereafter (essentially back to back).

            As JCD mentioned, I do not understand why they took SAS when they knew that Oil States was coming, especially if they intended on granting cert in Oil States to strike down the IPR process as unconstitutional. Why would four of the justices add another case to the docket that could be rendered moot (SAS) if they suspected five justices had the votes to take out IPRs completely in Oil States? Then again, why grant cert just to confirm the constitutionality of IPRs?

            I don’t have a great answer either, but I think the timeline makes things even more interesting.

            1. 8.4.1.2.4.1

              Why do you think unconstitutionality requires the Supreme Court to strike down the PTAB?

              Stop reading IP Law360.

    1. 7.1

      Oh really?

      Is a patent a liense or a vested property right?

      Who told you that? Ask for your money back.

      1. 7.1.1

        Where do you see that a right to the subject matter recited in a claim is vested upon issuance by the PTO? 271? 112?

          1. 7.1.1.1.2

            Section 101 explicitly says that a patent can be obtained for inventions, “subject to the conditions and requirements of this title.”

            The title is, of course, Title 35, which includes all the provisions of IPR, PGR, CBM.

            Are you saying that Congress did not place conditions on a patent despite it explicitly saying a patent was “subject to the conditions and requirements” of Title 35?

            1. 7.1.1.1.2.1

              I am just doubting that Congress ever considered that the allowance of a claim by the PTO was a vetting by the Executive that this claim describes the invention. I think Congress always recognized that claims could be invalid, and that the property of the patentee never extends to invalid claims. That’s why I am always suspicious when I read about “vested property rights,” or “extinction of a property right” in theses discussions. Remember that claims are exactly what their names mean, they are claims. As section 112 says, claims point to what the applicant regards as the invention. I think it is important that 112 does not say that claims point to the rights that the Executive grants.

              1. 7.1.1.1.2.1.1

                PiKa,

                You clearly lack an understanding – legally, historically, and otherwise as to the nature of property of a granted patent.

                What you doubt has no bearing on reality.

              2. 7.1.1.1.2.1.2

                Pika, you might want to read my explanation as to the source of the property rights in patents over at the “other” site in the post entitled “McCormick and the Separation of Powers Constraints of Patent Invalidation.”

                1. I think we agree more than you think. The right that Congress is authorized to grant is to the invention disclosed in the patent, it is not to the subject matter covered by the claims. Claims are just a portion of the description that will help assessing what the invention is, but they are not the description of the right granted by the Government. There is never a property right to subject matter that is not the invention, even if this subject is covered by a claim (an invalid claim).

                  And I also agree with your 7th amendment argument.

                2. PiKa,

                  You are misreading what 35 USC 112 is saying – the allocation of WHO gets to say what the invention IS – for the legal purposes of what a patent is – is being made.

                  It is NOT some “well, it is only the inventor’s view there in the claims, and the “real” invention is something else – and that something else being decided by the courts.

                  Such simply does NOT ascribe to what happened to bring about the Act of 1952.

                3. In this case the Federal Circuit only offered one paragraph of substantive analysis:

                  One hand waving paragraph should not serve as your basis of legal understanding.

                  FURTHER, that one paragraph also distinguishes with the notion of “and … do so with sufficient particularity and distinctness.

                  In other words, there is more than one aspsect of law going on in the case that you present.

                  As far as though WHO exactly has been appointed to be the one that decides what the invention is, that the courts are getting it wrong is no excuse for anyone else to be getting it wrong.

  9. 5

    I’ve mentioned the endless hypocrisy of the glibertarian crowd before. It’s pretty much an endless stream. Let’s take this for example:

    your idea of constitutionality is whether you feel warm and fuzzy inside

    LOL The last time I checked it was your side whining and moaning about how oh-so-unfair it was for your junky (and limited, and conditional) “patent rights” to be canceled by the granting agency.

    There’s nothing at all “warm and fuzzy” about the PTAB taking your junky patent and then grinding it up into dust (and giving you all the due process that you deserve). I take great pleasure in that destruction, and it’s totally Constitutional.

      1. 5.1.1

        The patentee is involved and allowed to respond from the beginning, and has a right to appeal directly to the CAFC.

        Where do you see a lack of “due process”?

          1. 5.1.1.1.1

            I was wondering if you can expand on the “deserve” aspect

            Which part confuses you?

            Congress created a limited expressly conditional “right”, revokable by the granting agency upon a showing of agency error.

            If you don’t like that “right”, then guess what? Don’t ask for it.

            It’s that simple.

            Oh but wait! You need to drag some bewigged “gentlemen” from the 18th century and — try to believe this, folks — we all have to imagine that we could read their minds and figure out what they would have done if they lived in a different society, with a different form of government, with different facts, and a “right” that was expressly defined by the governmental branch given the power to define it as a “right” that was different from any “right” that existed in the 18th century.

            But you’re a very serious person! I can hardly wait to hear what Stolen Seat Neil and his buddy Sammy “Cops Can Check Your Daughter’s Panties” Alito have to say.

  10. 4

    1. A method of verifying mail identification data, comprising:

    affixing mail identification data to at least one mail object, said mail identification data comprising a single set of encoded data that includes at
    least a unique identifier, sender data, recipient data and shipping method data, wherein said unique identifier consists of a numeric value assigned by a sender of said at least one mail object;

    storing at least a verifying portion of said mail identification data;

    receiving by a computer at least an authenticating portion of said mail identification data from at least one reception device via a network, wherein said authenticating portion of said mail identification data comprises at least said sender data and said shipping method data; and

    providing by said computer mail verification data via said network when said authenticating portion of said mail identification data corresponds with said verifying portion of said mail identification data.

    This and the incredibly junky claims of two other related patents crushed forevah, and righteously so, under 101, after a 12(b)(6) motion. CAFC panel unanimously affirms, no dissent, in today’s precedential decision.

    Money quotes: [T]his court has determined claims to be patent ineligible at the motion to dismiss stage based on intrinsic evidence from the specification without need for “extraneous fact finding outside the record.”….[A] court need not “accept as true allegations that contradict matters properly subject to judicial notice or by exhibit, such as the claims and the patent specification.

    The writing on the wall. Read it.

    Is there an independent patent claim out there that recites the use of a bar code that isn’t ineligible? I highly doubt it.

  11. 3

    Has anybody bothered to count the number of differences between the so-called “patent right” that our “ancestral” 18th century wig-sporting English dudes fretted about versus the modern “patents” that we have now?

    Is it more than 100 differences, or more than 1000 differences?

    Also, what about the all-male juries that were required for patent cases back then? Do we just sweep that issue aside? I mean, these were very smart people. The best people ever!

    1. 3.2

      MM, there are no differences. The English even had pre-grant examination. Moreover, there was a form of opposition where the issue of whether the patent should be granted in the first place was tried to a jury.

      1. 3.2.2

        there was a form of opposition where the issue of whether the patent should be granted in the first place was tried to a jury.

        That sounds like a pretty huge difference right there.

        LOL

        1. 3.2.2.1

          We used to have the same thing — a prior use proceeding. That was done away with and the AIA.

          1. 3.2.2.1.1

            Ned, yes, there was such a thing as a PTO prior public use proceeding against pending applications,* but it did not have jury trials.
            *[It was rarely ever used – occasionally in connection with interferences – as was the one I did against IBM.]

            1. 3.2.2.1.1.1

              “MPEP 720 PUBLIC USE PROCEEDINGS [R-07.2015]
              Effective September 16, 2012, former 37 CFR. 1.292 authorizing petitions seeking institution of public use proceedings was removed from title 37. For information necessary regarding the former process, the August 2012 revision of the MPEP (www.uspto.gov/web/offices/pac/mpep/old/mpep_E8R9.htm ) may be consulted.”

            2. 3.2.2.1.1.2

              Paul, we too were involved in a public use proceeding once upon a time. It involved a continuation of a patent that was involved in litigation against my client. The claims subject to the public use proceeding were finally rejected over the prior public use and were canceled from the application.

  12. 2

    The “established” right we are talking about is defined by Congress as a conditional right that is revokable by the agency upon a showing of agency error.

    Nothing in the Constitution prevents Congress from prompting progress using this kind of limited agency-revokable right. Congress doesn’t have to create any right at all if it doesn’t want to.

    1. 2.1

      Congress doesn’t have to create any right at all if it doesn’t want to.

      This is the only correct sentence is your post.

      1. 2.1.1

        The “established” right we are talking about is defined by Congress as a conditional right that is revokable by the agency upon a showing of agency error.

        Where’s the error, “anony”? You know how to read don’t you? The statute Congress wrote isn’t terribly confusing.

        Nothing in the Constitution prevents Congress from prompting progress using this kind of limited agency-revokable right.

        Certainly no clear error here. Just because a bunch of whining greedy glibertarians disagree doesn’t make it any less true.

        1. 2.1.1.1

          Where do I even begin? You haven’t read the law, and you don’t know what you are talking about.

          You are a propagandist, and your idea of constitutionality is whether you feel warm and fuzzy inside.

          1. 2.1.1.1.1

            Where do I even begin?

            You begin by using your words to describe the alleged “errors” that you allegedly saw.

            You haven’t read the law

            Yes, I have. Now you are making errors of your own.

            You are a propagandist,

            And name calling! Oh my! Such incivility. Why, I’m going to rush out and cast a protest vote right now.

    2. 2.2

      MM, where does congress get to grant anything other than exclusive rights for a limited time to inventors?

      1. 2.2.1

        where does congress get to grant anything other than exclusive rights for a limited time to inventors?

        Arguably the Commerce Clause would permit all kinds of things.

        But even an extremely limited revokable/conditional right can still be “exclusive.” And the “right” that Congress recently created is not “extremely limited” in the big scheme of things.

        So I’m not sure what point you think you’re making here.

        1. 2.2.1.1

          MM, but there are cases which hold that an indeterminate time is not a limited time.

          Until the PTO gets totally finished with its reexamination process and actual give an irrevocable right to the patent owner for a limited time, he does not have a right at all, let alone a right for a limited time. There are differences between rights and privileges.

        2. 2.2.1.2

          Arguably the Commerce Clause would permit all kinds of things.

          Those would not be patents (as I am sure that you are aware).

            1. 2.2.1.2.1.1

              Names – and the ties to particular Constitutional clauses ARE very important.

              You did make it through law school, right?

              1. 2.2.1.2.1.1.1

                Names – and the ties to particular Constitutional clauses ARE very important.

                The term “patent” doesn’t exist in the Constitution.

                Are you suggesting that if Congress comes up with a new name for the “right” (say, “Lark Right”), then this imaginary “tie” disappears?

                That sounds like something a patent maximalist would argue. Very deep stuff! Nothing at all abstract about it. Look! It’s a “tie”! Smell the structure.

                1. Very dissembling of you – given as YOU provided the premise that a different part of the Constitution may provide something different, then you want to parade around as if I were the one trying to make a (somehow false) material distinction because of the different sections of the Constitution.

                  As I indicated, your “whatever” philosophy would not get you through law school, and you do yourself a disservice by being an arse about it here.

        3. 2.2.1.3

          And the “right” that Congress recently created

          Which right is that?

          If you are talking about the patent right, then you SHOULD be aware that the recent “creation” cannot violate protections to property that other parts of the Constitution provide.

          But we both know that you already know of this, even as you continue to post as if you are c1ue1ess about such things.

          And we both know WHY you do that, eh?

          1. 2.2.1.3.1

            Which right is that?

            The “right” sue, which is conditional/limited and revokable/cancellable by the granting agency.

            Look it up. It’s right in the statute.

            1. 2.2.1.3.1.1

              Can you try again? Your answer here is not clear.

              Somehow it appears that you might be thinking that a patent is merely a “right to sue,” which we both know is woefully inadequate for the purposes of a patent law discussion.

              1. 2.2.1.3.1.1.1

                NO the right to sue was the fact the patent (s) rights were denied and they were stolen after all payments were made. And even after they were stolen a fake oath was used which was post dated 11/17/96. But the oath was faxed in a year earlier. and in pretty purple too. So what I think is being said even with all your I step forward 3 steps back conversation approach. this is about industrial espionage. Which is far different from infringement.
                Dennis, be a lamb and leave this here.

  13. 1

    Worth noting again that Oil States Respondent’s briefs are due Oct. 23? And the deadlines for amicus briefs supporting the Respondents both there and in SAS?

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