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]
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.
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.)
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.
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.
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.
This is an innocent question. How do you view Judge Learned Hand?
Awesome.
Made mistakes.
Did not pretend that he did not make mistakes.
He was OK. Good thinker. Tried to communicate what the thought and tried to apply the law.
He probably could have trimmed his eyebrows.
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).
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.
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?
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.
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.
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.
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.
Your attempt at impugning “politics” as the reason to give Judge Rich his due is abysmal.
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.
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.
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?
3 is a crowd.
That says a lot – and it’s not very complimentary.
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.
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.
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.
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.
that nattering was by Joachim.
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.
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)
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.
How many Office Actions have you seen that go to that level of detail in determining the “Not Obvious/Obvious” issue?
(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.
Actually, probably one team invented it first.
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).
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.
legal…
equitable…
More dust-kicking from Ned
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.
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.
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.
I think what people want is some response to the issues raised in the appeal.
See Dowd’s article. This case is a complete waste of time.
link to papers.ssrn.com
link to law360.com
link to law360.com
J. I disagree with Much of Dowd’s article, but have not yet written a response.
One problem with this cert petition is that the SCOTUS does this all the time.
I am not sure of the case law, but I would think that due process would call for appellant review where reasons were given.
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…
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.
It is incredibly frustrating to spend time writing a post and for it to be filtered.
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.
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….
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.
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.
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.
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.
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.?
The sunk cost fallacy is alive and well in certain quarters.
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.
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).
hah HAH!
Unlike, say, rehearing petitions, pending cert petition doesn’t automatically delay district court proceedings or execution of judgment.
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.
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.
I agree with JCD, for whatever little my opinion is worth on this point.
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.
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.
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.
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.
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.
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!