Patents and Antitrust: Trump DOJ Sees Little Connection

Image result for Makan Antitrust Great AgainFor the first time ever, the head of the Antitrust Division for the Department of Justice is a patent attorney – Makan Delrahim – who is known to be “Makan Antitrust Great Again

In a recent speech, Delrahim explained his general position – that patent holders rarely create antitrust concerns.  Rather, it is equally likely that the problem lies with companies implementing new technologies without first obtaining a license from the relevant patent holders.  He explained that the DOJ’s historic approach has been a “one-sided focus on the hold-up issue” in ways that create a “serious threat to the innovative process.”

In response to Delrahim’s approach, a group of technology implementer companies (also known as downstream innovators) and law professors wrote to Delrahim arguing that “patent hold-up is real, well documented, and harming US industry and consumers” — especially in the area of Standards Essential Patents (SEP) — and in ways that the antitrust laws should help fix.

Sweeping in now to buffer Delrahim’s position are a group of libertarian scholars and others (including David Kappos and Judge Michel) who have offered their competing letter.  Their position is largely that the drastic remedies associated with antitrust laws should only be used based upon strong evidence of problems being caused in the market.  Here, they argue that no evidence has shown that violations of FRAND commitments actually cause market harm.

Prof. Jorge Contreras has written on these issues in several Patently-O posts. Contreras did not sign either letter.

Guest Post by Prof. Jorge Contreras: TCL v. Ericsson: The First Major U.S. Top-Down FRAND Royalty Decision

Unwired Planet v. Huawei: An English Perspective on FRAND Royalties

Guest Post on Using the Antitrust Laws to Police Patent Privateering

Good Things Come in Threes? DOJ, FTC and EC Officials Wax Eloquent About FRAND


79 thoughts on “Patents and Antitrust: Trump DOJ Sees Little Connection

  1. 7

    Instead of the mindless ad hominem of such as “Monty Hall” and the indolent cheers of “Fantastic” to that mindlessness, how about addressing the substance of the points provided?

    That’s what I thought.

  2. 6

    I know that the Monty Hall experiment is a zombie that will keep pounding straw until the end of time but let’s set aside our laughter for a moment and look at another hypothetical.

    Let’s say I have a butler. I want the butler to learn how to do a calculation based on various data inputs and then report a value back to me that is useful for deciding whether I want to take my black umbrella or my green umbrella to work. This is exact kind the kind of thing butlers are supposed to do.

    I tell the butler to observe and make note of data V, W, X, Y, and Z (omitting the content here). I give him seventeen separate “if – then” statements describing how to process the data. Are those instructions patent eligible? No, of course they are aren’t. Is my “improved” butler patent eligible because he knows how to process this data? No, of course he isn’t.

    Now suppose my butler is robot butler who takes verbal instructions. Are the instruction patent eligible? No, of course they aren’t. Is my “improved” butler patent eligible for patenting because it now knows how to process this data ? No, of course it isn’t.

    But wait! the shriekers shriek: The Federal Circuit says that because the Federal Circuit said that a strip of fabric with numbers printed on it for the purpose of entertaining yourself is patent eligible, then the butler simply must be patent eligible, too!! And what do you have against umbrellas and robots??!

    Respectfully, you guys got nothing.

    It all boils down to basic fundamental fact that you can not sweep under the rug no matter how hard you try. That fact is that the fact logic has no objective “structure”. It is an abstraction. There is no “there” there. Describing an allegedly “new” machine in terms of its functionality without describing the objective structure responsible for that functionality is a non-starter. Once you go down that road, then it’s a free for all.

    And a free for all is just what you hypocritical glibertarians want. You want to own literally everything that isn’t tied down to physical reality (because it’s a heck of a lot harder to own the stuff that is tied down! you might actually have to do some work besides typing) and s c r e w everybody else and everything else. That’s all that’s ever mattered to you and everything you do and say with respect to logic patenting is 100% consistent with this.

    You can’t turn the clock back. You can try but you will fail. There is no re-inflating the bubble and this house of cards is going to tumble, and tumble hard. All it takes is just one case and one defendant and one decent attorney whose hands aren’t tied behind his/her back by the client.

    1. 6.3

      Monty Hall Experiment. Fantastic.

      I don’t share your optimism about the rollback. Too many people are too financially and emotionally invested in the magic of computers.

      That’s why I am not yet dissuaded from  pushing a compromise that could avoid the worst of the genre from continuing to infect society. If people want to “protect” the activities of robot butlers twenty years at a clip, it’s possible that nothing will stop them….

      1. 6.3.3

        As long as the conversation is about dreams of how things should be

        Why not just get legislation passed which, in addition the the claim limitations, limits the scope of any issued claim to what was obvious on the effectively filed date in view of the prior art and the filed application? Remove the incentive to lay down patents and hope that someone invents something profitable in the scope. Remove the incentive to claim ‘do X with processor’. Remove the incentive to tell the PTO that the addition of trivial steps makes a claim non-obvious.

  3. 5

    It’s about time that someone at a high level in the government takes a stand against the anti-patent organizations and law professors that have wrecked the U.S. patent system and put us at 12th in the world of IP rankings (and dropping).

      1. 5.2.1

        The rankings are a symptom – not a cause.

        If you really had clients for which you were seeking protection for their innovation, you would understand this (instead of your usual banal attempted putdowns).


            As I said – a symptom and not a cause.

            So even if they are “meaningless,” the cause remains, separate from the symptom.


          lol no…. the ranking are CAUSED by the people who make the rankings not agreeing with the current patent politics. If they want to stir people up, they lower our ranking in hopes of adjusting the patent system back more conservative.

          To think that its just a coincidence that nearly every other ranking still has US at 1 or 2, yet this one dropped to 12, is foolish. The Chamber of Commerce is, quite literally, a lobbyist group. They create information to support their lobbying.


            Any alleged generalized ranking is of course meaningless without specifying the data being ranked.

            As far as I am aware, the U.S. patent system still has the highest number of foreign company patent applicants of any. Half of all U.S. patent applications. In many cases the U.S. is the only foreign country they are filing in. If we really had a 12th place patent system why would they all be wasting so much money filing and prosecuting patent applications here?


              All ranking systems still rank US the top overall, even the Chamber of Commerce one. They ranked US 12th in a very particular category: Patents, Related Rights and Limitations. And this “12th” is only really because 9 of the 11 ahead of the US on that ranking are all tied.

              Their actual “number” (7.25) is the 3rd highest score, only behind 7.5 and 7.75. Its just that there are 9 other countries that have 7.5. So just a very very very small change in the numbers results in a deep drop only because so many values are the same.


                I agree Damien – I don’t put a lot of stock in the Chamber of Commerce reports (they have been more than a bit mercurial and unfounded in the past).

                All the more reason to understand and acknowledge the difference between any purported symptom and any other underlying cause.

  4. 4

    “But we don’t like the law and courts and juries and contracts”, whine the freeloaders. “What if the inventor won’t accept the terms? What if we have to use the old technology? What if we have to invent our own solution? What if we can’t convince the judge or jury that .1% is fair and reasonable?”

    The infringers and their apologists simply want pliable patent rights – unreliable patent rights. Makan wants stable and reliable patent rights. Hard to believe this is even a serious debate.

    1. 4.1

      What “infringers” are you referring to? People who write instructions for computers? Really? Using logic to process information? In a context? Seriously?

      C’mon. If that’s what you think you have a right to “own” and extort people with then there is no “serious debate” to be had because you’re already off the rails.

      Talk about “unreliable.” You grubs have had a quarter century to come with a “reliable” coherent way of dealing with this cr@p and the best you can come up with is “improve the workings of some computer, somehow” and “not solely in the mind”?? Please dont assume we’re all fooled as easily as you are.

    2. 4.2

      “what if we have to use old technology?”

      Using old technology is perfectly fine for most people. Programmable computers are old technology. Also mobile computers are old. Also remotely connected programmable computers and databases. All old. People would be happy to use that old technology for its intended purpose without being subject to extortion because the PTO nor anyone else can keep up with the onslaught of pure scrivener bullshert being shoveled in.

      1. 4.2.1

        …there’s that “that’s old” Big Box of Protons, Neutrons, and Electrons “logic” again….

        What’s the “intended purpose” of configurable protons, neutrons, and electrons?


          Between the recent CAFC 101 decisions (those are factual inquiries!) and the new antitrust guy at the FTC, Malcolm’s apoplectic.

          Sure is fun to watch.


            Sure is fun to watch.

            And sadly this is a primary motivation for a lot of the “players”. Everything is just a game! If you’re personally making more money, you’re “winning”. And nothing else matters.


          What’s the “intended purpose” of configurable protons, neutrons, and electrons?

          It’s a bit frightening that you don’t understand how silly you sound. Thankfully, I’m used to it.

          We’re talking about the eligibility of patent claims. Patent claims that recite new compositions comprising in objective structural terms that distinguish those compositions from the prior art on that basis are eligible for protection (with certain very limited exceptions).

          Repeating your nonsense over and over when faced with this fact does not make the fact “go away.” It’s a hugely important fact because the claims you are trying to defend do not recite any novel structural components in objective structural terms. By your admission, such claims would be “worthless.”

          This is a huge problem for you and it’s never going away.



            Keep on [shrugging] as you attempt to turn an optional claim format into something that it is not (not optional).

            Your Accuse Others meme is showing.

      2. 4.2.2

        Pretty sure all “things” are combinations/mutations of molecules that are known. Manipulating them into an new form is surely patentable. A programmable computer is nothing until it is programmed. If you want to use old existing programming – you are all set.

        What in your mind sets patents relating to a new computer system invalid?

        (your disrespect for patents is already noted)


          Ray: that is well said.

          Also, if a claim recites two sticks nailed together to extend the stick, one doesn’t use 101 to reject the claim, but 103/102.

          You should read about the history of this. R. Stern has caused all these problems with Benson. The reasoning he used was that since computer programs were new that they needed 101 because there wasn’t prior art.

          The whole thing is just judicial activism nonsense.


          A programmable computer is nothing until it is programmed.

          That is the essence of the Grand Hall Experiment – an item that not a single anti-software (in reality, just plain anti-) patent person has YET to engage and provide anything close to a rebuttal as to why software (an equivalent – in the patent sense** – to hardware and to firmware) should be singled out as somehow not worthy of patent protection.

          The latest (asinine, at best) attempt by Ned was to somehow claim that software disappears when the power to a machine is turned off. He ran away (of course) when I asked him if he reprograms his machine from scratch every morning when he powers it up.

          What in your mind sets patents relating to a new computer system invalid?

          Really? As to Malcolm, do you mean other than “feelings”…?


            Yeah, if a machine was constructed of a bunch of transistors that performed the same operation as a programmable computer, would such a device be unpatentable?

            Is Mr. Kilby’s original calculator patent invalid because later devices used some software instead of integrated circuits?

            Yes, I get the MM hates all patents and lacks an apparent fundamental understanding of the difference between a computer (programmable or not) and the data it manipulates.

            To avoid a needless discussion – I think all agree there is a difference between a patent on the computer as programmed and a patent on feeding new data into an old programmed computer to compute a result based on new data.


              would such a device be unpatentable?

              Apologies for raising a nit, Ray, but this is not the right question.

              For dialogue on what is eligible under 35 USC 101, the use of the term “unpatentable” is not clear enough.

              “Unpatentable” includes within its scope failure to meet the other requirements under the law (102/103/112).

              No one (outside the attempted obfuscations of Malcolm) confuses the “time and prior art” aspects of 102/103 with the eligibility aspects of 101.

              It is critical (in order to dispel the intentional dissemblings) that when talking about eligibility, the proper patent term is used. Please use “ineligible” instead of “unpatentable” in order to maintain clarity.

              Further, as to “To avoid a needless discussion – I think all agree there is a difference between a patent on the computer as programmed and a patent on feeding new data into an old programmed computer to compute a result based on new data.” – this is why I distinguish that situation by reminding those whom would dissemble that the patent doctrine of inherency is the proper doctrine to address that situation.

              If a machine inherently already has a capability, then the dialogue turns to “patentability” under 102/103 – and expressly NOT to eligibility under 101.

              And this is also why the thought experiment of the Grand Hall experiment is such a powerful logical device.

              Which is also why I (nigh constantly) have to hold Ned’s feet to the fire when he improperly skips a first step of changing a machine by reconfiguring that machine with the addition of software PRIOR TO anyone ever able to “just use,” as he so often attempts to spin his anti-patent arguments.



                If a machine inherently already has a capability, then the dialogue turns to “patentability” under 102/103

                If all that is being “added” to this machine is ineligible subejct matter than it’s an eligibility issue.

                Rules are ineligible subject matter.
                Logic is ineligible subject matter.
                Data is ineligible subject matter.

                Game. Set. Match.

                Everything is desperation and self-interested w @ nking. That’s all you got because this logic-patenting business is built on a foundation of smoke.

                1. Rules are ineligible subject matter.
                  Logic is ineligible subject matter.
                  Data is ineligible subject matter.

                  That’s undoubtedly what should be true, but that’s not how the law is functioning today MM.

                  Many, many, many patents issue and are upheld where the only novelty is a rule, a logical process, or data….

                2. Many, many, many patents issue and are upheld where the only novelty is a rule, a logical process, or data….

                  Right. But there is no rational legal basis for this. The CAFC has never provided one (and it can’t; dissenters have recognized the issue, however). And once the issue is squarely put before the Supreme Court, it’s over.

                  There’s no rational legal basis for a logic patenting exception. None. It’s just an excuse for permitting an entitled class of grifters and poor excuses for lawyers to tax the rest of us.

                  What other industry is there where so many of the people doing the actual work (i.e., writing instructions for instructable computers) agree that their work product doesn’t belong in the patent system??? Most people understand immediately that you don’t need patents on logic (and for 20 years?!?!) to promote better logic. They are nothing but anti-competitive “t 0 0ls” for people who don’t have what it takes to actually compete in the real world. They want to own the idea, in functional terms, and they can’t handle the idea that someone else will almost sure be able to write better software than they can, immediately. And who ends up paying for the cowardice and greed of the Silly Con Valley Bros? Everybody.

                3. Your “Game. Set. Match” only applies to you, Malcolm, as has been noted many times now.

                  Your Accuse Other meme is worn through.

                4. I should correct you….

                  Rules (BY THEMSELVES) are ineligible subject matter.
                  Logic (BY ITSELF) is ineligible subject matter.
                  Data (BY ITSELF) is ineligible subject matter.

                  The problem is that you are complaining about patents that are MORE than just rules or logic or data.

                5. Simply because a machine computes a logic function doesn’t mean it’s ineligible.

                  Adding numbers is certainly a logic function, but a 2 bit adder circuit is certainly patentable.

                6. Malcolm,

                  The Lemming argument is entirely unpersuasive. Feelings – even feelings en masse – are no match for law, facts (reality), and history.

                  What you see in the Lemming feedback (the slashdots and techdirts) is nothing more than propaganda and falsehoods repeated ad infinitum – much like your own misguided rants here). Such does not gain any credibility by sheer volume or repetition. You confuse yourself in believing your own propaganda.

                  All else from you here is nothing more than your continued dissembling on what software actually is (software is not “logic” or “data,” and as far as “rules” go, rules in the form of process steps have always been patent eligible – provided they meet the other prong of 101).


              I think you mean “ineligible”.

              Since transistors are old, it would be unpatentable as obvious or anticipated.

              But unless the “invention” were construed as a matter of law, we wouldn’t even know what to subject to an eligibility test.

              What is being improved that we are talking about? Is it a process, a machine, a composition, or a manufacture? Who is the PHOSITA? A transistor engineer? Software designer? Or expert in the function being automated, modeled, or simulated?

              All agree there is a difference between a patent on the computer as programmed and a patent on feeding new data into an old programmed computer to compute a result based on new data

              If only.


              Ray: if a machine was constructed of a bunch of transistors that performed the same operation as a programmable computer, would such a device be unpatentable?

              Whether two different machines perform the same operation does not mean that both machines are new or improved. You turn the machine constructed of transistors off, and then turned it back on again, and it is the same machine as it was before and can perform the same operations as it did before without further ado. It is a different machine with the transistors arranged a certain way then prior machines of the same type.

              In contrast, even though the programmed computer may do the same thing as a physical machine composed of transistors, the computer, the machine itself, is not changed by the programming. Turn a computer off, then turn it back on again, and it reverts to its former state, not to the programmed state. All this demonstrates is that the loading and executing of a program is the use of a computer as opposed to making a new or improved computer.

              Now, in the context of a larger machine, think of the example of Alappat, where the claim was to the rasterizer of a graphics unit for a display. The rasterizer performed certain calculations based upon digital imports and provided digital outputs that are eventually displayed by a display. Regardless of whether the mathematical calculations were implemented in a piece of hardware as disclosed in the Alappat specification, or the equivalent, but not disclosed, programmed digital computer, was irrelevant because the claim was not to the programmed digital computer, but to the larger machine – the rasterizer of a graphics unit for a display.

              These distinctions should be obvious to everybody, but they seem not to be. The reason people do not seem to get it must be that they do not intend to get it because the alternative…

              What we do not have to complete that thought do we?


                Come back to this reality from that “magic” land of yours, Ned

                There is not a single shred of reality in your post at


                Ned, you are so destructive to patent law.

                It’s this kind of appeal to the ignorant that has so muddled patent law.

                1. Martin, we do not have to classify the “improvement.” The combination is what is or is not patentable.

                  Plus, I suppose a machine with switchable gears is not patentable because when it is taken apart the gears are part of the machine.

                  Just junk arguments Ned.


                Ok, so consider then a programmable computer that has been programmed and the power hasn’t been turned off. Or one that has a removable ROM inserted into it. Or one that has a EEPROM to store a program.

                Making a distinction based on whether the removal of power to a device renders the device non-infringing because it doesn’t currently possess the active elements is a rather meaningless distinction for the current issue.

                The issue is whether having the ability to easily alter the programming has any merit to patentability. Why would having a hard wired computer system (think the Enigma machine) make it more patentable than a computer system that is programmed to perform the same operation using volatile memory rather than being hard wired?

                Spoiler alert – it doesn’t.

                1. Ray the problem- the inquiry- of an eligibility analysis is to locate the invention.

                  It cannot be that difference=improvement, so we have to find what is it that is being improved? Is it the art of software engineering? The art of computer building? Or the arts associated with the function to which this “new machine” is being placed- from stock trading to weather prediction to cartoon drawing to remote activation of discount coupons. Is the invention in the coupon arts, or in the making of machines used in the coupon arts? If the latter, the improvement cant be found in coupons, it has to be found in computer building. But how do we know, without an eligibility analysis?

                2. Emphasis on “inquiry to ‘invention’” is evidence that you are not understanding what Congress did in 1952 when it stripped away the power of the Court to use “common law” evolution as controlling eligible subject matter, and – instead – opted to break the former single paragraph into a number of sections and add 35 USC 103.

                  I suggest that you come up to speed by noting the writings of Judge Rich, the jurist with the single best understanding of what Congress did in 1952 (in no small part because he helped write the law that Congress passed).

                  I also suggest that you stop drinking Ned’s koolaid.

                3. Ray, to the contrary, there is a major difference.

                  Much of computer architecture can be programmed or hardwired. The hardwired runs faster, but the programming can be easily modified. The programming is known as microcode for GP digital computers, or stored program ROMs for ASICS. How the architecture is implemented is substantially irrelevant, because the machine is made different. When one sells the machine, the programming of the microcode or ROM is sold with the machine.

                  Programming a GP digital computer with software is a horse of a different color. Such programming does not change the GP digital computer on iota. This is the whole point of stored program digital computers in the first place — that the hardware not be changed.

                  But, when one is using a programmed digital computer in a larger machine or process, the consideration is whether the use of that programmed machine improves the larger machine or process. Here, it makes no difference whatsoever whether the machine is hardwired, an ASIC, or a programmed GP digital computer (DSP), because whether the computer is new is not the issue at all.

                4. Ray The issue is whether having the ability to easily alter the programming has any merit to patentability.

                  Well, here comes the blind squirrel.

                  Indeed, Ray. And what has happened in this area of patent law, unfortunately, is that because it is so incredibly easy to “alter programming” (i.e., create new “logic” that represents an “improvement” in some content-circumscribed context) that an unbounded “exception” to eons of patent law forbidding the patenting of logic was created so that an “improved” computing machine could be protected in purely functional language. This was a horrible idea for all kinds of reasons and the corrosive effect on the patent system which followed that “exception” was predictable. We’re still dealing with the fall-out even as the fall-out is raining down up on us.

                5. Programming a GP digital computer with software is a horse of a different color.

                  Absolutely false.

                  There is zero factual basis for this assertion Ned.


              Ray I get the MM h @ tes all patents


              Nice try, Ray … but you’re way off. I’m focused on a specific class of patents and a specific class of (LOL) “stakeholders.” I fully support a healthy functioning patent system. I am vehemently against absurd farcical efforts to allow logic and information to be patented just because some “functionality” is ascribed to a programmable computer by sniveling scrivening attorney who wasn’t even born when I was writing code.

              You really want to have this debate about the eligibility of logic patenting and protecting information content displayed on a screen with utility patents? Really?

              Please bring it on. But I suggest you get up to speed first. You have a long way to go.



                Emphasis on “inquiry to ‘invention’” is evidence that you are not understanding what Congress did in 1952

                You just don’t want to understand what the USSC did in Alice Corp. v. CLS Bank International, 573 U.S. __, 134 S. Ct. 2347 (2014).

                I understand it well, as you should, if you ever want to make any kind of sense on this topic. As of this thread, and so many others, you don’t.

                Next out of your piehole? “Jurisdiction Stripping” or “ “who has the power to write law that is the patent law”

                Answer? Three branches, all with all three functions in varying amounts and situations, as any adult knows.

                1. “Answer? Three branches, all with all three functions in varying amounts and situations, as any adult knows.”

                  FACEPALM… perhaps you should try actually reading the Constitution. It is EXPLICITLY clear on the separation of powers for patents.

                  “Congress shall have the power to promote the progress…” So no… its not all 3 branches. It is, VERY SPECIFICALLY, CONGRESS. Thats how balance of power is organized… it is entirely up to Congress. All the exec gets to do is appoint officials. You really dont know much about separation of powers do you?


                MM, there are Johnny one-notes here who call everyone who does not agreed with their agendas in their entirety anti-patent. We all know who these folks are. They are beating the programmed-computer-is-a new-machine angle persistently, and have all but taken over what I call the resistance movement to the efficient infringer lobby, so much so that I might end up in active opposition to their legislative agenda if they insist on “101 reform” which is clearly wrongheaded if not unconstitutional.

                But you not been a Johnny one-note on the patent system as a whole, just on patenting “information” or information processing. I was somewhat on the sideline on this issue until Bilski and then later Mayo when I began to pay more attention. At least on these issues, you and I agree far more than we disagree.

                And just so the folks do not forget, I bet that Myriad claims would be invalidated. MM bet they would be sustained. So, at least on this issue, MM is more radically pro-patent than I am .

                1. I guess the WMS Gaming algorithm rule is dead by your estimation as well??

                  Hasn’t the Fed.Cir. stated in at least 20+ opinions that a general purpose computer is transformed into a new machine with the programming of a specific algorithm?

                2. Ray, indeed, and the Feds have been consistently wrong.

                  Rich said this in Benson,

                  “Claim 8 therefore covers only a machine-implemented process and the apparatus for carrying it out has been disclosed. The process can be carried out with no intervention by a human being once the apparatus is set up — that is to say, the appropriate computer system has been assembled and programmed. The solicitor would have us hold the method is not a “process” within section 101 on the ground that a programmable computer is merely a “tool of the mind” and the method is basically “mental” in character, apparently because the “work-stuff” of the method is numbers which are mathematical abstractions. As the Patent Office would say, we do not find the argument persuasive. Cash registers, bookkeeping machines, and adding machines also work only with numbers but this has never been considered a ground for taking them out of the “machine” category of section 101.”

                  Now, this is exactly the point you made here in this thread as well. But, what happened when Benson went to the Supreme Court? The fact that a programmed computer was a machine made no difference whatsoever. None. Why? The invention was the math and the computer was simply a tool. The PTO argument to Rich and crew on this point was ultimately sustained.

                  Flook again made clear that one had to parse the claim to identify the invention and that simply adding routine elements to the claim could not change the outcome.

                  Diehr, according to Alice, provided a structural modification to the mold creating a new machine and a new process. The math itself was old. Its continual use was new, and that continual use improved the process.

                  Machines composed only of transistors typically involve new circuits, not new math. However, the PON in Alappat was the algorithm, not their implementation. The Feds held the claim was to a rasterizer, an apparently improved machine, because the math was implemented in hardware. (One dissent begged to differ on this point.)

                  The Supreme Court has not yet addressed the fact situation in Alappat. But the time may eventually come.

                  Regarding the Alappat dicta regarding programmed computers and special machine, that was not the holding of Alappat. But it effectively became the holding in State Street Bank, a case all members of the Supreme Court joined in criticizing in Bilski. If there was any remaining doubt that simply reciting a programmed computer implementation was sufficient to confer eligibility without more, that ended with Alice.

                  Frankly, it is odd that we are even discussing this now — long after the argument was effectively put to sleep in Benson. Ray, you have to recognize that you are wrong and that the people you are talking to about this do not know what they are talking about.

                3. Regarding the Alappat dicta regarding programmed computers and special machine, that was not the holding of Alappat.

                  Another absolute falsehood.

                  I have explained to you in the past Ned, taking definitions directly from Black’s Law, why a multi-pronged government argument yields multiple holdings.

                  To put it simply, had the government carried the day in its assertions (on the point that you wish to rewrite history as mere dicta), the case would have been decided differently.

                  Stop prevaricating. Stop trying to shoehorn one of the holdings of Alappat into a later decision because you are more comfortable attacking that later position.

                  There is zero inte11ectual honesty in that approach.


                “You really want to have this debate about the eligibility of logic patenting and protecting information content displayed on a screen with utility patents? Really?”

                lol…. Those things are patent eligible. End of debate. Just because you cant seem to grasp it does not change eligibility in fact.

                1. As I said, only children think the Executive never legislates, or the Judicial never enforces, or the Legislative never interprets, or that when they respectively do that, it’s somehow inappropriate or illegitimate.

                  There are nine branches of government, and the balance is political, historical, and situational.

                  Self-Governmentin’ is hard work, best left to adults who understand it.

                2. Damien@, you are completely wrong. It is interesting that you do not seem to understand that you are completely wrong.

                3. @Ned… you say Im wrong, yet software can be patented so long as its substantially tied to a machine or output. So…. they are…. patent eligible.


                But I suggest you get up to speed first. You have a long way to go.

                Malcolm’s Accuse Others (coupled with his thinking that speed in reverse is what is needed to “catch up;” hint: it’s not, and Malcolm keeps accelerating away from catching up)


          Manipulating them into an new form is surely patentable.

          Only if you describe the structure of the allegedly “new” form in objective structural terms that distinguishes the allegedly “new” form from the prior art on that basis.

          There is an absurd “exception” to this long-standing requirement that has been for logic … which otherwise ineligible. That’s what this “discussion” is about but it’s predictable that you wouldn’t be able to grasp that or that you’d desperately try to avoid it.

    3. 4.3

      Invention Rights:

      Exactly right. Google has even said that their biggest fear is that a new technology will come and take away their ad revenue. But, without patents it isn’t possible.

    4. 4.4

      Hard to believe this is even a serious debate.

      James Madison – part writer to the Constitution as well as many of the Federalist Papers completely agrees

      (see link to )

      And yet, look at the virulent Anti-patent propaganda out there….

  5. 3

    Patents are a form of property, and the right to exclude is one of the most fundamental bargaining rights a property owner possesses. Rules that deprive a patent holder from exercising this right—whether imposed by an SSO or by a court—undermine the incentive to innovate and worsen the problem of hold-out. After all, without the threat of an injunction, the implementer can proceed to infringe without a license, knowing that it is only on the hook only for reasonable royalties.

    Brings tears. Finally!

    1. 3.1

      It bears emphasizing that no empirical study has demonstrated that a patent-owner’s request for injunctive relief after a finding of a defendant’s infringement of its property rights has ever resulted either in consumer harm or in slowing down the pace of technological innovation.

      – Jonathan Barnett, Ronald A. Cass, Richard A. Epstein, The Honorable Douglas H. Ginsburg, Justin (Gus) Hurwitz, David J. Kappos, The Honorable Paul Michel Chief Judge (Ret.), Adam Mossoff, Kristen Osenga,
      David J. Teece, and Joshua D. Wright

      (to be contrasted with the subjective and predictive [as in NO current case or controversy] Supreme Court supposition of what may – merely may – happen in the Supreme Court score board breaking 101 jurisprudence)

      Alas, Ned, what needs to happen to the folks applying equity is to realize that in patent law, the “harsh” aspect of injunction is NOT harsh, and in fact is the single best manner of restoring the patent holder and making that patent holder whole (which is the principal reason for engaging in equity in the first place).

    2. 3.2

      Amen. Sounds like the Locke is back in favor. Lemley can now return to preaching his Rousseau to the young minds on the campus.

  6. 2

    While a reduction in patent-AT suits has been the case for many years now, what about one remaining currently quite hot AT topic? That is, reverse payments to delay competitive generic drugs and consequent third party AT treble damage suits?

    As for unresolved FRAND licensing disputes, what NON-AT damages or judicial sanctions are available when it can be shown that one party has refused to negotiate in good faith, especially by demanding an unreasonably low or unreasonably high royalty?

  7. 1

    I have to wonder if the “(also known as downstream innovators)” is a bit of the Lemley Orwellian doublespeak effect…

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