No Opinion on De Novo Review

In its petition for writ of certiorari, Riveer asks the following question:

Whether it is a denial of due process under the Fifth Amendment to the United States Constitution for the United States Court of Appeals for the Federal Circuit, on issues requiring de novo review, to affirm summarily in a one-word per curiam judgment under Federal Circuit Rule 36 a district court judgment which itself included no reasoning or explanation, concerning intellectual property rights including patent rights.

Petter Investments, dba Riveer v. Hydro Engineering, No. 17-1055.  The issues here are different from those I addressed in my article on the topic, but still of some importance.  [Link]

113 thoughts on “No Opinion on De Novo Review

  1. 9

    I think the other circuits do look down on the CAFC. I think it is because they know that the CJs do not try to apply the law. They know most of them were political appointments put on the court to push an agenda and not apply the law. The know many or most are not qualified to sit on the CAFC.

    In short, they are just a bunch of unethical, unqualified vermin.

    1. 9.1

      I think the low opinion most people have of judges on the CAFC is part of the bigger zeitgeist. It is just hard to have respect for people that you know were selected by Google and agreed to burn the patent system down for their appointment. The worst of the worst has risen to the top and turns most people’s stomachs. (And, I think those of us that knew some of these people before they were appointed were disgusted when we heard they were nominated. They were not an ethical group, but the ladder climbers that would do anything to climb. The type you can buy.)

  2. 8

    People’s dislike of the CAFC extends well beyond the patent community. And it’s not because of Obama-era judges or any perceived “pro-patent” or “anti-patent” bias. It’s just the shoddy quality of many of their opinions, which are quietly laughed at by district judges and appellate judges from other circuits. The Supreme Court used to have great respect for the CAFC, as evidenced by the almost complete lack of cert grants throughout the 1980s and early 1990s, but today the rule is contempt for the CAFC. The only reason the Supreme Court doesn’t reverse a great many more CAFC decisions is that, obviously, they have bigger fish to fry since their jurisdiction extends to much more weighty issues than patents (especially since they only hear about 70 cases a year).

    And unfortunately, some of the problems with the CAFC were predicted long ago by the Hruska Commission, which was set up in the early 1980s to study the creation of a nationwide patent appellate court (which later became the CAFC). One of the concerns was the idea that the judges of a specialized court, no matter who they were, would develop “tunnel vision” and adopt viewpoints in the patent area that fall well outside of the legal mainstream. That’s now become a reality, which we now call the CAFC’s view of “patent law exceptionalism.” Their tunnel vision has caused them to adopt bizarre viewpoints such as their general approach to statutory interpretation (which is way outside any accepted framework), their treatment of procedural issues not unique to patent law like privilege (laughed at by other circuits), and the list goes on and on. Most of the last decade was spent dismantling their tunnel visioned framework, which led to bizarrely strict rules that made no sense like the automatic injunction rule (overruled by eBay), the rigid obviousness framework (abrogated by KSR), their bizarrely rigid treatment of prosecution history estoppel in DOE (overturned in Festo), their narrow view of attorneys’ fees (overturned in Octane Fitness), willfulness and induced infringement (Halo and others), laches, and the list goes on and on.

    What’s notable about these decisions is that the CAFC is consistently chided for ignoring basic principles of statutory interpretation or legal analysis that apply across all areas of law. The CAFC is really in a “thought bubble” since they don’t have the idea marketplace created by the regional circuit courts issuing differing viewpoints on overlapping issues. And all of this was predicted long ago.

    In fact, when you read Supreme Court decisions, they usually reverse other non CAFC circuit decisions because of a disagreement the lower court’s weighing of competing considerations, whether on constitutional or statutory issues. They generally never chide the lower court for just goofing up the analysis. But with the CAFC, they’re consistently reversed simply because their opinions contain basic logical errors or shoddy reasoning.

    And the sad part of all of this is that the CAFC judges are so tunnel visioned, so immersed in their own echo chamber/thought bubble, that they’re not even capable of perceiving the extent to which their decisions are met with widespread derision.

    1. 8.1

      Lode_Runner, People’s dislike of the CAFC extends well beyond the patent community.

      I believe that people who were not patent attorneys dislike the CAFC for reasons different than the people who are patent attorneys. General Counsel of corporations, and district and circuit court judges, perceive the Federal Circuit as not applying the general law correctly as you state in the body of your post. Most patent attorneys now dislike the Federal Circuit because they are now applying the law as specified by the Supreme Court rather than defying the Supreme Court as it did for so long. Patent attorneys have from at least the time of Roosevelt have perceived the Supreme Court to be unfriendly to patents.

      It is not just the CAFC that is the problem. It was his predecessor court, the C.C.P.A., chaired by Judge Rich and others of similar mind, that itself was so long a problem. I believe the campaign to create the CAFC was inspired primarily by the idea that consolidating patent law under the supervision of Judge Rich would bode well. The excuse about forum shopping, although valid, would have not caused the patent bar to urge consolidation of patent law into one court if that court had not been the C.C.P.A., but instead had been the DC Circuit. Truth.

      1. 8.1.1

        Half Truth.

        There is a huge difference.

        And the hint is there in your attempted disparagement of the Jurist who – far more than any other jurist in the history of the US understood patent law and what Congress wanted from what Congress passed.

        Of course, this is nothing new for you and your attempt to disregard the Act of 1952 for all that THAT Act signified.

          1. 8.1.1.1.1

            Awesome.
            Made mistakes.
            Did not pretend that he did not make mistakes.

          2. 8.1.1.1.2

            He was OK. Good thinker. Tried to communicate what the thought and tried to apply the law.

          3. 8.1.1.1.3

            He probably could have trimmed his eyebrows.

      2. 8.1.2

        The excuse about forum shopping, although valid, would have not caused the patent bar to urge consolidation of patent law into one court if that court had not been the C.C.P.A., but instead had been the DC Circuit.

        I will begin this response by noting that I have no idea when you started practice, so I do not know how much first-hand experience you have of the pre-CAFC days. I was called to the bar in 2012, so I have no experience of pre-CAFC practice. That is a long way of saying that if what follows is wrong in its particulars, I will welcome correction from those in a better position to know the relevant facts.

        With all of that said, the quoted comment above strikes me as kind of odd. The motivation for a single appeals court to handle patents was much more a cause among the judiciary than among the patent bar. I am sure the patent bar would, as you say, have been more vociferously opposed if the idea had been to consolidate all appeals in a circuit that had less experience with patent law, but that would not have altered much the sentiment that “we [circuit judges] have about exhausted our present capacity for rational thinking on patent matters… [P]atent cases are the only cases argued by professionals and decided by amateurs. We take some comfort in noting that any shortcomings of our effort can safely be laid to the difficulty of the subject matter.” Rohm & Haas Co. v. Dawson Chem. Co., 599 F.2d 685, 706 (5th Cir. 1979).

      3. 8.1.3

        Come on Ned, there has been a lot of opinions that clearly are meant to limit the patent right from the CAFC. Obama let Google select the judges and we now have a court that, in general, is ignorant of science.

        1. 8.1.3.1

          Night, I would certainly agree with you when the Federal Circuit sided so often with the PTO in supporting the PTO version of the statutes (and rules) surrounding IPR and CBM. Time and again the Federal Circuit bent over backwards in favor of supporting the PTO position, which, in turn, supported the efficient infringer position. The PTO position was set by Justice, and we know a lot about Justice, do we not?

          1. 8.1.3.1.1

            wow Ned – you STILL have not learned the lesson that the right questions have to be asked.

            Your “version” here of “siding with” stems directly because people were not asking the right questions.

            You cannot blame the courts for answering the easy (but wrong) questions instead of those questions that correctly indicate – and ask – about what Congress provided.

          2. 8.1.3.1.2

            Justice is hostile to patents. They have been for a long time and you mentor a one R. Stern came from Justice and gave us the source of all evil in patent law, Benson.

      4. 8.1.4

        CJ Rich was the only one that understood patent law. The way I figured out patent law was to print out every opinion he wrote and read it several times.

        1. 8.1.4.1

          Night, you would have been better advised the pickup Webster’s patent cases, the leading Supreme Court cases for the last 200 years, before you picked up Rich. But I grant you this, the Republicans on the Supreme Court gave him is due.

          1. 8.1.4.1.1

            Your attempt at impugning “politics” as the reason to give Judge Rich his due is abysmal.

    2. 8.2

      Their tunnel vision has caused them to adopt bizarre viewpoints such as their general approach to statutory interpretation (which is way outside any accepted framework), their treatment of procedural issues not unique to patent law like privilege (laughed at by other circuits)…

      I call B$.

      Cite the scholarship establishing the “accepted framework,” such that we can all objectively ascertain that the CAFC is “way outside” such (soi-disant) “accepted framework.”

      Cite the derision expressed by other circuits or withdraw the assertion.

      [T]heir tunnel visioned framework… led to bizarrely strict rules that made no sense like the automatic injunction rule (overruled by eBay), the rigid obviousness framework (abrogated by KSR), their bizarrely rigid treatment of prosecution history estoppel in DOE (overturned in Festo), their narrow view of attorneys’ fees (overturned in Octane Fitness), willfulness and induced infringement (Halo and others), laches, and the list goes on and on.

      Literally every example that you just cited (with perhaps the exception of Octane Fitness) is an example of a body of jurisprudence that the CAFC got right (in my humble opinion). But maybe I am wrong. I would be interested to see you (or someone else) prove me wrong. Please pick any two of those examples that you cited any explain how the SCotUS’ rule on the chosen examples better serves the ends that patent law is meant to serve than did the CAFC’s earlier rule.

      1. 8.2.1

        Obviousness for one Greg. When 10 or 20 or 100 different teams take the same tools and “invent” the same things without contact or knowledge of each other or any patent(s) related to the “invention” it’s dammn obvious that there was not a patentable invention. Not to the pre-KSR TSM test however. If someone could not point to someone else saying explicitly “do this”, every last minor variation of anything is a new “invention”. That can’t be.

        1. 8.2.1.1

          How few of a number suits you, Marty?

          Are you willing to norm that number by the number of people alive? active in trying to invent?

            1. 8.2.1.1.1.1

              That says a lot – and it’s not very complimentary.

              1. 8.2.1.1.1.1.1

                Modern quantum mechanics has three different discoverer inventors, and quantum mechanics certainly was not obvious.

                The three inventors are:

                Schrödinger,

                Heisenberg, and

                Feynman.

                Each discoverer developed a separate and different formalism, which can be demonstrated to be mathematically equivalent to either of the other two formalisms.

                1. Some scientist think there is something mystical about inventing or discovering something new for the first time. That there is mystical energy that one feels.

                  Probably one of these was first. And, probably even if somehow they were patented, guess what, the patent would have expired.

        2. 8.2.1.2

          Two points in reply, Martin:

          (1) Patent law is meant to incentivize discovery, disclosure, and dissemination (usually, but not necessarily, by means of commercialization). The call of my question was not “tell me what you consider inadequate or unsatisfactory about old CAFC law.” The call of my question was “explain how the SCotUS’ rule… better serves the ends that patent law is meant to serve than did the CAFC’s earlier rule.” So, how does your “simultaneous invention bespeaks obviousness” rule better serve one or more of those three end? I do not really see an answer to that question in your 8.2.1.

          (2) I am somewhat confused as to why you cite that as an example of inadequate CAFC rules in any event. Pre-KSR precedent from the CAFC and CCPA acknowledged that simultaneous invention by multiple parties can be evidence of obviousness. If you mean to say that simultaneous invention should be treated as conclusive proof of obviousness, then I really cannot agree (why would the law make provision for interferences if such were the case?), but if all you mean to say is that simultaneous invention is evidence of obviousness, well, the CAFC agreed with you on that point even before KSR. See, e.g., Monarch Knitting Mach. v. Sulzer Morat GmbH, 139 F.3d 877, 884 (Fed. Cir. 1998), where the court wrestles with the significance of evidence of multiple simultaneous inventions on the conclusion of obviousness.

          1. 8.2.1.2.1

            Greg I’ll have to read the case and see how the (at the time) rigid TSM fits the analysis. My point was that the Supreme Court rule (non-mandatory TSM) better serves.. justice and equity, although I’m not sure that automatically ‘serves’ patent law in the sense that it weakens it, somewhat.

            anon what you nattering on about (as usual) with 3 independent inventions not being enough for you? But of course they are not “inventions” to begin with- they are variations, which is what KSR was all about.

            1. 8.2.1.2.1.1

              that nattering was by Joachim.

            2. 8.2.1.2.1.2

              If I am going to natter, I would say that Schrödinger, Heisenberg, and Feynman each invented a very different mathematical formalism of quantum mechanics.

              Schrödinger and Heisenberg each discovered quantum mechanics independently.

              1. 8.2.1.2.1.2.1

                My comment was not intended to be dismissive in any form, Joachim – merely one of correcting the attribution of the comments.

                When you start talking about “very different mathematical formalism” as well as “which can be demonstrated to be mathematically equivalent to either of the other two formalisms” you start edging into the third of the “three maths:”

                1) math
                2) applied math (aka engineering)
                3) MathS (the philosophy behind the other two).

                (I will note that the anti-software patent propagandist from the Techdirt and Slashdot background – PoiR [if I recall correctly how he spells his name] – stumbled badly on the point that you are on the cusp of)

                1. The witch has always started off as some equation that represents a natural law. Or in modern terms a heuristic for a human brain to use to understand its perception of nature.

                  Benson attempts to swallow all of patent law with this “exception.” It didn’t work because there were people with integrity at the time that stopped R. Stern. It has resurrected itself as “abstract idea”.

                  You have to just love the holding, “an abstract idea being performed by a generic computer.” Right out of medieval Europe.

          2. 8.2.1.2.2

            How many Office Actions have you seen that go to that level of detail in determining the “Not Obvious/Obvious” issue?

          3. 8.2.1.2.3

            (1) is important. For some reason the under-educated programmers think that patents are an award like a Nobel Prize. They aren’t. They are a way to provide an incentive. Everyone knows they aren’t perfect. They are more like winning a Super Bowl. Maybe there was some cheating and maybe everything isn’t perfect, but it is an incentive to try hard and means more money.

        3. 8.2.1.3

          Actually, probably one team invented it first.

          1. 8.2.1.3.1

            Precise simultaneity is nigh an impossibility.

            The fact of the matter is that in a race, there is only one winner, but many racers.

            The notion that “O H N O E S” there may be more than a de minimus amount of racers confuses what “obviousness” means and imports an item expressly rejected by Congress (the Flash of Genius).

      2. 8.2.2

        Greg, a couple of decisions

        1. A present assignment of a future invention is a legal assignment such that the equitable assignee does not have to actually bring suit to require good legal title.

        2. One can sell a product embodying his invention and impose post-sales restrictions which if violated permit the patent the to sue for infringement.

        1. 8.2.2.1

          legal…
          equitable…

          More dust-kicking from Ned

    3. 8.3

      They do have tunnel vision. But, one cannot ignore that fundamentally without a science background one simply cannot hope to sort out patent law.

      Also, let’s be real the judges that Obama appointed are tainted. We know that Google selected them and there is a lot of suspicion that they promised to get patents under control in return for their appointment. I knew a couple of these people before appointment. I’d say that they were in the bottom 10 percent of ethical lawyers I knew and people that had poor character.

    4. 8.4

      At the risk of feeding the trolls, if this is the thinking behind the CAFC’s critics, then the court shouldn’t worry much about its reputation. Extra points to the eager law student who knows what the Hruska Commission is, but the post begins with a claim to being able to read the minds of the Supreme Court in the 1980s, ends with a claim to being able to read the minds of the Federal Circuit now, and fills in with a claim that every reversal of the Federal Circuit is a sign of scorn (maybe Halo and Octane, but not the others), but reversals of other courts are just respectful disagreement. There’s a worthwhile debate to be had about whether the CAFC is doing a good job and whether the overall experiment of a specialized patent court is working, but this isn’t it.

  3. 7

    This case is a waste of time. Even if they were to win, they may still not get what they want. The appellate court could replace the Rule 36 affirmance with a boiler plate paragraph, such as:
    We reviewed the district court opinion. We find no errors in the opinion. We adopt the conclusions of law and affirm.
    So instead of the one word, there is a boiler plate paragraph that still provides the same result.

    1. 7.1

      I think what people want is some response to the issues raised in the appeal.

      1. 7.2.1

        J. I disagree with Much of Dowd’s article, but have not yet written a response.

  4. 6

    One problem with this cert petition is that the SCOTUS does this all the time.

    1. 6.1

      I am not sure of the case law, but I would think that due process would call for appellant review where reasons were given.

  5. 5

    Goodbye everybody and thanks.

    I’ve made numerous additional posts on the Core Wireless thread that continuously got stuck in the spam filter. I’ve tried using a different username, a different IP address, different email, etc. It is incredibly frustrating when trying to maintain a friendly dialogue with someone to have all of your posts filtered out. Regardless of whether I agree with someone here or not, the point of these boards is of course to learn from everyone else, which I certainly have.

    Dennis needs to either outright ban people who violate his policy or come up with some new filtering mechanism. In the meantime, spending my valuable time (which I could be billing for) writing posts that never show up is beyond frustrating. In fact I’m not even sure if this post will get through. So I am taking a hiatus.

    Thanks to everyone here (whether I agreed with you or not) for the interesting dialogue. Peace out…

    1. 5.1

      It is always a pleasure to chat with you, Mr Leather. I sympathize with your frustration about the filter. Hopefully it will be fixed someday, and we will enjoy your worthwhile contributions again.

    2. 5.2

      It is incredibly frustrating to spend time writing a post and for it to be filtered.

    3. 5.3

      I thought he said it wasn’t his filtering that was causing the problem, but rather the filtering of the system that he’s using.

      1. 5.3.1

        tomayto – tomahto

        He’s using something and he controls the use of that something.

        Further 6 – this is most definitely NOT something that he has “hands off,” as I have many times illustrated that the editorial controls are NOT systematically, objectively, and even-handedly applied.

        There is no doubt that a certain narrative is desired here and that “rules” accommodate that desired narrative.

        Now, the “George Carlin” type of filter may be what you are alluding to….

        1. 5.3.1.1

          He couldn’t take the heat. He wanted to push 19th century thinking and had no response to the criticism of his posts.

          He was a Benson person. Good riddance.

          1. 5.3.1.1.1

            Meh, I am not so inclined.

            pl had his foibles, but appeared to at least be earnest in his interactions.

            That is a lot more than can be said for many of the regular anti-patent posters here who refuse to be inte11ectually honest and engage in drive-by monologues.

  6. 4

    What a poorly written cert question: “Whether it is a denial of due process under the Fifth Amendment to the United States Constitution for the United States Court of Appeals for the Federal Circuit, on issues requiring de novo review, to affirm summarily in a one-word per curiam judgment under Federal Circuit Rule 36 a district court judgment which itself included no reasoning or explanation, concerning intellectual property rights including patent rights.”

    The answer is, of course it’s not. Due process, at bottom, requires notice and an opportunity to be heard by an impartial decision-maker. It doesn’t require that courts issue lengthy opinions rejecting the dumb arguments most litigants make, especially in civil cases.

    The Supreme Court does not react well to cert petitions when the question presented is obvious venting for angry and dissatisfied litigants. You’re supposed to state the question with an advocacy style, but that wording is just too reflective of anger and doesn’t raise a substantial constitutional issue. The Supreme Court will respond to this one in the most ironic way with just two words: “Cert denied.” No reasoning or explanation will be provided, because none is warranted.

    I worry that this blog does a disservice by by trotting out half-baked arguments (like the “101 cannot be raised in district court” argument), that get repeated in lots of meritless appeals. For example, this particular cert petition is an outgrowth of this blog’s campaign against Rule 36 affirmances (as the argument, meritless as it is, is really only a statutory argument limited to PTAB appeals, whereas this one’s a district court appeal). My clerk friends at the CAFC say they’re growing tired of these types of arguments, and presenting a recycled Patently-O argument is now a red flag that the underlying appeal otherwise lacks merit.

    1. 4.1

      My clerk friends at the CAFC say they’re growing tired of these types of arguments, and presenting a recycled Patently-O argument is now a red flag that the underlying appeal otherwise lacks merit.

      Those clerks don’t sound like True Patriots (TM).

      Otherwise they would understand that the tree of innovation needs to be regularly watered with the crocodile tears of America’s Most Entitled Innovators.

      I was promised a robot car with a drone that delivers cold six packs of craft beer directly to my doorstep. I’m told this will have to wait until 2020. But we could probably have it by 2019 if we granted more patents. For instance, a patent on a user interface with an input for specifying a robot car with a drone that delivers craft beer brewed within a twenty mile radius would be nice. But no. I blame the EFF.

    2. 4.2

      I wonder if some losing cert petitions are by losing-case clients, and/or their attorneys, simply to delay ultimate consequences for both? Or, in-house counsel with no cost-control over O.C.?

      1. 4.2.1

        The sunk cost fallacy is alive and well in certain quarters.

      2. 4.2.2

        Paul, after reading some briefs of a former law firm working for us (prior to my joining the particular client), I commented that I fully understood why we got a Rule 36 because I couldn’t make head nor tails of the our argument, let alone what the issue was. My client fully agreed. We stopped using the firm.

        The court needs to understand your entire case in the opening paragraph. Everything after that is support.

        1. 4.2.2.1

          Exactly! IANAL, but after expert consulting at law firms for a very long time and after reading legal grammatical garbage for 35 years, I joined the dark side and became Darth Grammaticus. Some lawyers call me Dr. Evil while my earlier nickname was der Überfuchs (a two language double entendre).

          1. 4.2.2.1.1

            hah HAH!

      3. 4.2.3

        Unlike, say, rehearing petitions, pending cert petition doesn’t automatically delay district court proceedings or execution of judgment.

    3. 4.3

      Lode_Runner: “my clerk friends … at the CAFC … ”

      The CAFC has almost zero credibility with the patent attorney community. Most of the judges (and clerks) are seen as a joke. Clowns put in there by Obama to burn down the patent system. Very little to no respect is how I would characterize how patent attorneys view these “circuit judges”. Contempt is the word I would use. Impeachment is what they should be facing.

      1. 4.3.1

        Count me as one patent attorney who does not agree. I’m not saying that Federal Circuit judges are perfect, but even those who I frequently find myself disagreeing with I still have a good deal of respect for.

        In my experience, their questions during oral argument are generally insightful and on point, and even where I disagree with their ultimate conclusion, I generally can understand how and why they got there.

        I think it’s easy to look at opinions that come out and not realize how big of a role the specific facts of a case, the briefs, and attorney arguments play in the outcome.

        1. 4.3.1.1

          I agree with JCD, for whatever little my opinion is worth on this point.

        2. 4.3.1.2

          I think we need a wall of shame. The wall of shame needs to illustrates the “science” of the CAFC judges. Taranto would be at the top of the list with his holding that any process carried out on the computer that simulates a human mind process is per se obvious. That is but one of 100’s. They are a disgrace.

          The Obama appointees were selected for their dislike of patents and willingness to burn the system down.

        3. 4.3.1.3

          The Obama appointees likely pledged to get patents under control in exchange for their appointments and were selected by Google.

          They are tainted and incapable of applying patent law with a fair hand. They all should resign. I would like the FBI to investigate the appointment of these judges.

    4. 4.4

      So, Lode, you should get the only thing attorneys care about is trying to get a good outcome from these “judges.” There is no respect there only contempt.

      1. 4.4.1

        So, any post about one of these “clerks” or “judges” should be focused on how to get what we want from them. We don’t care what this filth thinks about us.

  7. 3

    Somewhat off topic, but I think that it is worth noting that the same U.S. president who said that “[t]he patent system… secured to the inventor, for a limited time, the exclusive use of his invention, and thereby added the fuel of interest to the fire of genius, in the discovery and production of new and useful things,” also said that “immigrants a[re] one of the replenishing streams appointed by providence to repair the ravages of internal war and its waste of national strength and health.”

    A wise man, Abraham Lincoln. A robust patent system and a welcoming immigration system are both necessary to keeping the United States at the cutting edge of civilizational greatness.

    1. 3.2

      Was that during the period where immigrants were limited to white people of good character? Or was that the period where 95%+ were white regardless (setting aside for the moment that Irish etc. weren’t even considered white)? Truly a “progressive” immigrant loving time lol. No racism at that time at all. Especially from ol’ Abe “free the slaves and send them back to Africa” Lincoln. A very progressive figure!

      1. 3.2.1

        [T]he period where immigrants were limited to white people of good character?

        You are confusing two distinct ideas: “immigration” and “naturalization.” The 1790 Naturalization Act limited naturalized citizenship to “free White persons of good character.” It most certainly did not limit “immigration” to such persons however. There were literally millions of Africans arriving during the duration of the 1790 Act, and not only were they permitted to come into our sovereign jurisdiction to live and work within it, they were positively compelled to do so. They would have been most surprised if you had told them that the law did not permit their entry.

        No, the immigration laws passed by the founding generation instituted a regime as close to “open borders” as this nation has ever been. Unless there was a warrant for your arrest, you were permitted to come and live peaceably within our jurisdiction. Not everyone could be naturalized as citizens, but (nearly) everyone could cross our borders to live and work.

        The idea of restricting a person’s right even to be on our territory did not enter our law until the Chinese Exclusion Act of 1882. Even then, the rate of immigration from China probably did not appreciably slow (it is hard to get reliable numbers on this point). Basically, history shows that immigration restrictions are about as effective as prohibition was—not very, and with manifold untoward consequences added on. Instead of trying to keep people out, we would do better to make it easier for people to enter legally. That would facilitate our legitimate public safety interst in keep track of who comes and goes and stays within.

        1. 3.2.1.1

          “That would facilitate our legitimate public safety interest in keep track of who comes and goes and stays within.”

          But it would seriously undermine the frantic efforts of the repukkke party to keep the country as white as possible as long as possible. They are frantically trying to pull up the ladder and lock the door. That way they can turn all their energy to their voter disenfranchisement and gerrymandering efforts.

        2. 3.2.1.2

          ” There were literally millions of Africans arriving during the duration of the 1790 Act, and not only were they permitted to come into our sovereign jurisdiction to live and work within it, they were positively compelled to do so. ”

          Leftists tell me that at the time those “immigrants” were deemed “property” not “people”. Are leftists wrong?

          “No, the immigration laws passed by the founding generation instituted a regime as close to “open borders” as this nation has ever been.”

          Lulz, you can come but you can’t be a citizen. Sounds like open borders with votes and welfare/school to me!

          “No, the immigration laws passed by the founding generation instituted a regime as close to “open borders” as this nation has ever been. Unless there was a warrant for your arrest, you were permitted to come and live peaceably within our jurisdiction. Not everyone could be naturalized as citizens, but (nearly) everyone could cross our borders to live and work.”

          America at that time was the most sht holey as it would ever be (wilderness). So in your opinion should we go ahead and allow for non-citizen residents? Because I’m not agin the idea. It’s all this “they’ll vote democrat”, “they’ll use welfare/school funds” etc. etc. that are the main issues that get tossed around. So they get no welfare/school/vote etc. and get 2nd pick of jobs? Maybe we could call them immitotalynotslavegrants?

          “The idea of restricting a person’s right even to be on our territory did not enter our law until the Chinese Exclusion Act of 1882. ”

          We also didn’t have that many hordes of millions of people coming to just “reside” on a yearly basis with a billion more wanting to do so every year with relatively ez transport.

          “Basically, history shows that immigration restrictions are about as effective as prohibition was—not very, and with manifold untoward consequences added on. ”

          Only in the US and a few other “soft” countries. You need to read your history better if you think all countries have such porous borders as we do. Wapan has 127 milly people (roughly a bit less than a third of us). It has a total illegal population of 60k. Like 1/100th of what we do. That’s only one example.

          And that’s only because we didn’t/don’t really care that much (for all the howling muh racism charges everywhere). If it wasn’t for the welfare state, abuse of school system, social alienation, and eventual potential balkanization etc. and political ramifications of unrelenting immigration then we probably still wouldn’t care all that much.

          “Instead of trying to keep people out, we would do better to make it easier for people to enter legally. That would facilitate our legitimate public safety interst in keep track of who comes and goes and stays within.”

          And ensure that republicans are voted right out permanently and any remaining semblance of vestiges of liberty goes with them. Hooray!

    2. 3.3

      I think it’s worth noting that vapid 175 year old quotes about patents and immigration policy are worth pretty much squat.

      Times change. Issues change.

      The US patent system is plenty “robust”, by the way. As a matter of fact, it’s overflowing with junk and has been for the last quarter century. Junky patents and — worse — junky people. And most of them are Silly Con Valley types and their parasites.

      1. 3.3.1

        Silly Con Valley! Wow! Where do you get this stuff! Feeling better about yourself yet now that you have those insults off your chest?

        1. 3.3.1.1

          Bguy,

          If your suggestion were true, Malcolm would have disappeared some 11 years, 11 months, and 29 days ago.

          Sadly, the opposite appears to be true: Malcolm cannot do without his mindless ad hominem. His “feelings” are tied to a constant whine over anyone that does not fit his views (and he offers zero substantive discussion on any semblance of merits to any view that he so chooses to denigrate).

          He has appointed himself “above it all” and deigns to be a constant source of blight, oblivious to the blight that he himself is. In many ways, he is the Trump of these boards, and has been well before Trump was the Trump of the political world.

          1. 3.3.1.1.1

            he offers zero substantive discussion

            Here comes Billy the S0ck puppet again.

            Watch out, folks: he’s a very very serious person! All about the “substance!”

            1. 3.3.1.1.1.1

              Billy the S0ck puppet again.

              Says the guy who has used more sockpuppets than anyone in the last five years….

              That Accuse Others meme in action.

              Again.



          2. 3.3.1.1.2

            He has appointed himself “above it all”

            Not at all. I’m right in the middle of it.

            The difference is that I’ve never been afraid to call out the glibertarian s c um b@lls who pollute the patent bar.

            1. 3.3.1.1.2.1

              So let’s see… MM doesn’t like the “silly con valley” types–aka West Coast democrats. He doesn’t like the republicans. He doesn’t like the libertarians. Anyone you do like? Given your behavior here, I’m guessing the answer is no one.

        2. 3.3.1.2

          Where do you get this stuff!

          I open my eyes and ears.

          1. 3.3.1.2.1

            The orifice that you open is neither your eyes nor your ears.

      2. 3.3.2

        “I think it’s worth noting that vapid 175 year old quotes about patents and immigration policy are worth pretty much squat.”

        Yup.

        But the repubturds will always fall back to the tired old argument that “we need to consider the original intent of the founding fathers.”

        Uhm, the “original intent” of the “founding fathers” in drafting the constitution was to ensure that white land owning males had all the political power in the country. Forever. “Original intent” has as much place in deciding what “due process” requires as the magic book of fairy tales (i.e. the bible) does. Of course, repubturds are constantly wanting that too.

        1. 3.3.2.1

          May I suggest that you take a course in Canon Law robsee just how many principles from those “fairy tales” infirm and shape the foundation of our jurisprudence.

          Then, a friendly reminder for you to check your post before you hit “post comment:” if you cannot tell the difference between your post and a post by Malcolm, you will want to delete your post and start over.

          I am sure that you have some worthwhile views, but when your delivery cannot be distinguished from this site’s largest and longest running source of blight, I guaranteee that you do more damage than good to your views.

          1. 3.3.2.1.1

            Egads, auto-correct made a mess of that.

            robsee => to see
            infirm => inform

          2. 3.3.2.1.2

            “May I suggest…”

            No, you may not. I don’t really care if the all powerful superbeing in the sky was fine with human slavery as long as the slaves were circumcised. And I don’t really care if all powerful superbeing in the sky thinks its a “sin” to wear clothing made of two different fabrics. Or that some guy got swallowed by a whale and lived in its belly for 40 days. Or whatever other claptrap the magic book of fairy tales contains.

            Believe whatever you want, but keep your nonsense to yourself please.

            1. 3.3.2.1.2.2

              Yet again – take a course in Canon Law to see the items that DID influence our jurisprudence.

              Your preoccupation with things that do not consume any reasoning that SHOULD come from replying to my point.

              If you employed even a small modicum of reason you would realize that what I actually stated is not nonsense at all.

              Your imitation of Malcolm is scary close.

  8. 2

    Due process does not even require the right of appeal. So this is DOA.

    1. 2.1

      I am not sure that the “right to appeal” plays out here.

      YEs, “due process” does not require such. But that is NOT to say that providing a right to appeal means that all “due process” concerns are “automatically” met for the mere fact that a process includes a right to appeal.

      Having provided that right to appeal, there are due process steps within that provided right that still must survive scrutiny.

      It’s a bit similar to other notions that have been put on the table for dialogue here. Much like once a “right to vote” is provided, Congress must respect other Constitutional protections that inure to that provided item. So too (and this more on point with patents), once a property right is established, Congress must not violate other Constitutional protections that inure to property (by passing subsequent laws that would so violate those protections).

      It is rather shocking to see some purported attorneys here post as if in complete lack of knowledge of this basic legal concept (but then again, I consider the source, and find myself not shocked at all – appalled, sure, but not shocked).

      1. 2.1.1

        It used to be Malcolm that huffed and puffed that he was the only competent and ethical practitioner posting on this site.

        You’ve usurped that role. Most annoyingly.

        When this cert petition gets the bullet in the head it so deserving of, I will resist the urge to say, “I told you so.”

        I guess I’m now usurping the role now.

        Interestingly I’m not getting the same smug sense of superiority that you revel in so much.

        Hmm.

        1. 2.1.1.1

          You’ve usurped that role. Most annoyingly.

          Utter B$.

          I “get” that you are annoyed – sorry, but not sorry as your being annoyed is an issue totally within you.

          Further, YOU are pulling a Malcolm here by Accusing Others. I make NO such claim as being the only “competent or ethical practitioner posting on this site.”

          That my post does reflect competence and ethical practice does NOT provide for the jump that you want to portray in an attempt to assuage your own feelings of being somehow slighted by my post.

          Maybe instead of jumping to a mindless (and false) ad hominem response, you might want to instead try to address the merits of what I shared…?

          Why is it that you jump to an ad hominem attack on what you view my “feelings” must be and you do not AT ALL address the substance of my post?

          THAT is what should draw the “Hmm

          Interestingly I’m not getting the same smug sense of superiority that you revel in so much.

          You are projecting – much like how Malcolm does.

          You lack any basis at all for thinking that I have any “feeling” that you want to label and attempt in a put-down.

          Hmm indeed – just not how you portray.

          1. 2.1.1.1.1

            tldr, Billy

            1. 2.1.1.1.1.1

              LOL – adopting the Malcolm “Billy” merely proves the point.

              Make the time to read – it would do you well.

            2. 2.1.1.1.1.2

              What’s the basis for this “Billy” thing?

              1. 2.1.1.1.1.2.1

                See link to patentlyo.com

                Or for those too lazy to jump the link:

                Near as I can tell, the quotes are meant to induce the “it s u c k s for you” OPPOSITE aspect of the Urban Dictionary good connotations:

                link to urbandictionary.com

                All that it ends up here being though is merely yet another mindless ad hominem attack from Malcolm.

                The Blight that is quickly closing in (February) on an even dozen years of the same old same old.

                Malcom truly is the Trump of these boards and a caricature of how (and who) NOT to be.

          2. 2.1.1.1.2

            That my post does reflect competence and ethical practice does NOT provide for the jump that you want to portray in an attempt to assuage your own feelings of being somehow slighted by my post.

            LOL

            What a fr c k in n u t c @ se.

            1. 2.1.1.1.2.1

              Ah yes, a mindless reply from Malcolm with nothing except ad hominem….

              On the cusp of TWELVE years of this very same blight….

              1. 2.1.1.1.2.1.1

                It’s not ad hominem to point out the obvious.

                Maybe you should ask your “wife” (LOL) to take you the doctor for a short …. evaluation.

                1. Your feelings are NOT to be confused with what is or what is not “obvious.”

                  Maybe try and aim for a reply on the merits (instead of the mindless ad hominem).

                  (not going to hold my breath)

        2. 2.1.1.2

          When this cert petition gets the bullet in the head it so deserving of, I will resist the urge to say, “I told you so.”

          This cert petition getting a bullet in the head has NOTHING to do with your misbegotten “theory” and my correction of your errant view stands regardless of the outcome of the cert petition.

          That you think otherwise just shows how in the weeds you are on this legal point.

          Maybe stop acting like Malcolm and focus on the legal points, and you might learn something.

    2. 2.2

      AAA JJ, even if Congress provides no appeal, there remains the All Writs Act including mandamus, certiorari, habeas corpus, and quo warranto, prohibition, etc., albeit, the writ scire facias is abolished by Rule.

      In order to provide a proper basis for review, a court has to explain itself. For example, even though a jury verdict cannot be reviewed – at least the jury instructions can be reviewed.

  9. 1

    which itself included no reasoning or explanation

    I’m curious whether this premise holds up. If I had more time on my hands this morning, I’d dig up the district court opinion(s) on PACER.

    1. 1.1

      Perhaps what was intended to be said was that there was no NEW reasoning or explanation.

      I would agree that the question here is answered – and answered easily – in that even the bare words “per curiam” and the indication that the reasoning below is adopted by the reviewing Court is sufficient.

      It may not be what is wanted, as clearly, the party seeking the review court views feels that the court below was not sufficient. But that “want” does not dictate the sufficiency in the eyes of the court.

      There may be a problem with a reviewing court taking a short cut and not indicating that they are adopting the lower court’s reasoning (and this would not be the first time that a reviewing court was slapped down for taking a short cut – eBay anyone?).

      1. 1.1.1

        How do you see the old saying (and I paraphrase) of the appearance of justice being almost as important as justice itself, applying here?

        Is a superficial review, and a simple statement of agreement with the lower court… sufficient? Temporarily suspending our disbelief… consider what level of *actual* review is fully required for justice. Now, if that level of review were actually done, what little more effort is involved in setting it down in a permanent form, that is assuming ALL the required substance of the exercise of a proper and full review WAS duly made (and the substance of the exercise not its recordal in a decision is really the hard part of justice)?

        In fact, in those cases where a court does not provide any explicit memorialization of the entirety of the substance of their (presumably pithy and lengthy) independent review, how could all eyes watching NOT suspect anything other than LESS than all that is required to be done was actually done?

        As a side note, each one of these is a statement that the lower court got everything perfectly right…too many of these and the appeal court will swiftly seem superfluous, at which point it actually will be.

        1. 1.1.1.1

          Is a superficial review, and a simple statement of agreement with the lower court… sufficient?

          You assumed a conclusion there. A simple statement of agreement does NOT necessarily coincide with a superficial review.

          Believe it or not, the lower court reasoning may be superb, and the reviewing court may simply not have anything meaningfully NEW to add.

          I would agree with you that in those cases where the lower court reasoning is itself shoddy or superficial, then a “we have nothing to add” from the reviewing court likewise indicates a shoddy and superficial judgment resulting in a lack of justice. But that is not the question here, now is it?

          One must ask the right questions….
          link to youtube.com

          1. 1.1.1.1.1

            A question is not a conclusion. In my opinion it was a right question, asked to serve to establish the correct answer to it, which is a simple “no”, superficial review is never sufficient.

            What you state, that a simple statement of agreement does not necessarily coincide with a superficial review, is an obvious, trite, and trivial truism.

            The synthesis and integration of my meandering were woefully unclear, and as such I will be more precise.

            Perhaps the following will be more amenable to your sense of relevance:

            Assuming the public at large cannot be certain whether or not a particular court of appeal always engages in a proper full review or whether it relies on superficial review for some number of cases,

            assuming statistically there exists SOME level at which the number (proportional) of “No Opinion” decisions, gives rise to a rationally justified suspicion that superficial reviews are actually taking place,

            assuming that in fact the court of appeal does not in fact indulge in the occasional superficial review,

            would it be in the interests of justice and the appearance thereof to avoid the generation of “No Opinion” decisions which approaches that statistical level which rationally justifies suspicion of superficial review?

            Is it safe to assume you are of the view that the level of the issuance of these No Opinion decisions currently is far below such a threshold?

            1. 1.1.1.1.1.1

              Sorry Anony, but you DO assume a conclusion – and you have done so again in your further rpley:

              asked to serve to establish the correct answer to it, which is a simple “no”, superficial review is never sufficient.

              You again assume that superficial review is a “must have” conclusion from the aspect of a Rule 36 affirmance.

              That is simply not a proper assumption to make. And it IS an assumption carried with your (not correct) question.

              , is an obvious, trite, and trivial truism.

              LOL – not so obvious trite or trivial as it may appear, given that the cert petitioners and you – twice – have failed to grasp that concept in the questions being asked.

              Here, your attempted put-down only puts YOU down. I suggest that you think about this prior to responding.

              The synthesis and integration of my meandering were woefully unclear,

              Thank you for realizing that.

              cannot be certain whether or not a particular court of appeal always engages in a proper full review

              Why is that relevant? A proper and full review may never be able to be explicitly shown. Does that mean that “the public” is somehow “cheated” out of something that they otherwise deserve?

              The answer of course is “No.”

              As I indicated, the parties can tell (and thus pursue redress) if they feel that both the lower court, and thus any ‘mere affirmance” of a reviewing court, are deficient. But “the public” has no say in this.

              assuming statistically there exists SOME level at which the number (proportional) of “No Opinion” decisions, gives rise to a rationally justified suspicion that superficial reviews are actually taking place,

              An assumption that provides NO meaningful help as to what that level may be, nor (again) provides any meaningful indicator, given as “the public” is not involved at any aggregated level (now is it?). Your “rationally justified suspicion” is itself NOT rationally connected. You again assume a link where no such link exists.

              Is it safe to assume you are of the view that the level of the issuance of these No Opinion decisions currently is far below such a threshold?

              No. Such would not be a safe assumption – for a number of reasons. As I indicated, the very beginning basis of your view lacks a substantive link. Secondly, no “level” of “No Opinion” decisions have been made a part of this dialogue, and certainly no level of any individually vetted (as would be proper) cases have been put forth. Lacking all of these predicates then, ANY assumption in any direction on the matter would be a p00r one.

              That is my view.

      2. 1.1.2

        pp.2-3 of the petition say pretty directly that the petitioner thinks the district court provided no reasoning to support its result.

        One of the arguments I sometimes see in defense of R36 or similar summary affirmances on appeal is that the appellant has already had the proverbial day in court and gotten a jury verdict or a bench trial opinion or a summary judgment ruling or a reasoned JMOL opinion. So there’s no due process violation when the court of appeals simply says that the appellant hasn’t demonstrated error in the ruling below. Here, the argument seems to be that that underlying predicate (for lack of a less awkward phrase at the moment) is missing.

        I wonder if that’s right. If I had a bit more time, I might find the district court opinion on PACER and maybe the court of appeals briefing.

        Reading through the petition, though, I would guess that the respondent would waive and that the Supreme Court would deny cert. without calling for a response. The petition doesn’t even bother to explain what’s going on. As far as I can tell, Petter sued Hydro for patent infringement and for some kind of Lanham Act claim. Hydro moved for summary judgment and won. The district court issued some opinions that take up about 25 pages of the cert appendix and include at least a reasoned claim construction.

        Petter appealed and got a Rule 36 disposition, and is now telling the Supreme Court that it deserved longer opinions from both the Federal Circuit and the district court that talked about its evidence. Along the way there’s a non-sequitur complaint about claim construction (pp. 4-5). This one’s headed to the circular file.

        1. 1.1.2.1

          Welcome to the world of the Glibertarian Patent Bar, home of The Most Entitled People Ever.

          These people never stop whining. Ever.

        2. 1.1.2.2

          DCL, indubitably.

          I have read several recent petitions from the patent bar that all have this defect – the court is never really told about the case. The petitioner simply launched into some complaint as to why they think the courts erred without having first set the scene.

      1. 1.2.1

        just testing the spam filter today

        1. 1.2.1.1

          At least the “don’t have a dialogue – count filter” is up and running already today.

          I have a feeling though, that you were being snagged by the “George Carlin” list filter.

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