Federal Circuit: Where are the Precedential Decisions?

The Federal Circuit is not off to an auspicious start in 2019 in terms of its opinions and decisions in patent cases.  Of the 20 patent decisions issued thus far, only 4 (20%) are precedential.  The majority (65%) are actually no-opinion judgments known as R.36 judgments with three more (15%) short non-precedential decisions added to the mix. Hopefully this trend will not continue.

For the whole of 2018, the stats are approximately as follows:

  • 30% Precedential Opinions
  • 30% Non-Precedential Opinions
  • 40% R.36 Judgments without Any Opinion

96 thoughts on “Federal Circuit: Where are the Precedential Decisions?

  1. 10

    Because second-guessing the fact-finding of trial courts is the CAFC’s m.o.; making decisions based on law and precedent is so much harder.

    Congress should remove the CAFC’s exclusive subject matter jurisdiction and expose the CAFC’s decisions to critique by peer circuits. The CAFC is insular and free of competition, and suffers from a corresponding lack of rigor and intellectual honesty that competition imposes on the federal circuits in other areas of law.

    PS, thanks again, Professor, for highlighting the travesty of non-precedential CAFC decisions. All decisions should be precedential, regardless of their label, since other cases with like facts should result in like outcomes — justice 101.

    1. 10.1

      All decisions should be precedential, regardless of their label, since other cases with like facts should result in like outcomes — justice 101.

      +1

    2. 10.2

      other cases with like facts should result in like outcomes — justice 101.

      Unless the first case was decided incorrectly. Which definitely does happen. And sometimes those cases are deemed precedential when they definitely should not be (Promega v. Lifetech was precedential, wasn’t it? And that was a complete travesty of a decision).

      Generally speaking, I tend to agree with the sentiment, although the underlying assumptions are idealistic. Also, Rule 36 judgments don’t inherently have much to do with the issue of precedent versus non-precedent. A Rule 36 judgment could be deemed “precedential” in the sense that the district court’s decision (to the extent it was patent-law related) could be treated as binding on the Federal Circuit, for the same “justice” reasons that were provided above.

      I guess ultimately the problem with declaring all decisions “precedential” is that every mistake (and yes mistakes are made ALL THE TIME) becomes enshrined until an en banc court is convened to correct it. This seems like more trouble than it is worth, especially when there is a higher court to appeal to.

      1. 10.2.1

        A Rule 36 judgment could be deemed “precedential” in the sense that the district court’s decision (to the extent it was patent-law related) could be treated as binding on the Federal Circuit, for the same “justice” reasons that were provided above.

        Keep dreaming.

        If a CAFC decision is going to be deemed precedential, I can guarantee you that it will NOT be an R. 36 opinion.

  2. 9

    Worth posting on top because NS II whines about it (and Malcolm evades the point of it):

    As to: “be assured that the eligibility case law isn’t “swinging back” in any significant way. ” – you are clearly in denial following the Iancu reset of guidance vis a vis 101. Naturally, it does NOT matter (to you) that Iancu (correctly) identifies the fact that the Common Law (re)writing of 101, ushered in by the Supreme Court, has rendered a Gordian Knot of contradictions.

    You do not “get” that a substantial amount of contradictions is FAR MORE IMPORTANT than any “trend” that you may feel the need to attempt to diminish. Plainly, the fact of the matter that there is NOT a trend is even more troubling for the “Ends” that you would celebrate, given the FACT that the very nature that cases are NOT trending, but instead continue to Ping-Pong back and forth draws even more attention to the fact that the Common Law engaged in by the Court is:
    I) not only egregiously wrong,
    II) not only has “severe practical consequences,” but also
    III) generates “no reliance.”

    If you want to talk about “tides turning,” you should pay better attention to the substantive points that I have been presenting for some time now (hint: more and more people are realizing that the score board is broken – and some of those people are on the Bench itself).

    When you went apoplectic when Bilski did not crush the “Diehrbots,” just wait to see where the more important trends are taking us.

    NS II may (like Malcolm) try to ignore the FACT that Iancu himself points out that the Common Law being written is (already) full of contradictions, but he does not get to change that fact into an opinion to be dismissed.

    That’s just deciding to delude yourself.

    Just like he has done with other posts of mine that are critical of his own posts.

    Here’s a better suggestion for you NS II: engage on those points I present that you do not agree with and provide better counter points, better arguments or both. But please, sniping from the sidelines as you do below does not (and should not) convince anyone of anything.

  3. 8

    “Dear Colleagues,

    The work each of you do for the USPTO in protecting America’s intellectual property is critical to American stakeholder competitiveness and economic success around the world. I am pleased to announce some long-awaited updates that I am certain will help us further improve upon the excellent work you are already doing.

    The updates include:

    • An examination time increase for most utility patent examiners
    • CPC portfolio-based patent application routing
    • A new utility patent examiner performance appraisal plan (PAP)

    These updates provide several benefits that will bring the examination process in better alignment with overall agency goals. First, patent examiners will generally have more time to complete their examination, and this added time will be based on application technology and application-specific attributes, such as the number of claims and IDS length. Additionally, applications will be assigned by matching an examiner’s individual expertise with the technical areas associated with an application’s CPC symbols. Furthermore, individual examiner’s performance goals will be updated through revision of the PAP.

    Soon, you will receive information describing each of these updates in more detail. These updates are significant, and I am committed to ensuring a smooth transition. It is anticipated that implementation will start at the beginning of FY20. In the meantime, you will have opportunities to ask questions and share feedback.

    I am looking forward to hearing your feedback over the coming weeks as we share more information and begin an exciting new chapter in supporting American innovation. Again, thank you for your hard work and dedication to the mission of the USPTO.

    Regards,

    Drew (hirschfeld)”

    1. 8.1

      That sounds good. Better routing and more time to spend on the application.

      Sounds great.

      1. 8.1.1

        The devil will be in the details, as strictly “more time” may not mean much (if that more time is spent inefficiently), and I have no idea what the phrase “CPC portfolio-based patent application routing” actually means.

        There appears some benefit with matching expertise of examiners with what they are provided to examine, but that’s a bit of a catch-22 as the expertise still needs to be developed in the first place, and I am not aware of any art unit for which an expertise in “key word search (sans context) and “cut and paste” are actual (pertinent) skills. Those do not match any CPC areas as far as I am aware.

        1. 8.1.1.1

          strictly “more time” may not mean much (if that more time is spent inefficiently),

          Someone needs to an invent an app that uses artificial intelligence to assign work to Examiners, monitor the progress of that work, and dynamically adjust the time needed and the time permitted on a real-time basis.

          Oh wait — I just did.

          LOL

          Can I haz patent now? It’s s00per d00per practical.

        2. 8.1.1.2

          ” “CPC portfolio-based patent application routing” actually means.”

          I think that just means they’re going to start doing classification by the CPC scheme rather than the old USPC scheme for purposes of routing apps to the TC’s/AUs initially before examination of the instant application in question. Nothing you care about, but the office should have been getting around to it eventually. Although it will affect slightly where some apps go for purposes of Eugene’s software that tries to predict which AU a filed app will land in based on the language used by the drafter (I think you know about him discussing that).

          “but that’s a bit of a catch-22 as the expertise still needs to be developed in the first place, and I am not aware of any art unit for which an expertise in “key word search (sans context) and “cut and paste” are actual (pertinent) skills.”

          I’m sure they’ll be developing people plenty as well.

          1. 8.1.1.2.1

            Thanks 6,

            I contrast your reply (at least trying to be on point) with the perpetual nonsense from Malcolm, who offers, well, nothing but snark.

            To your reply then, for the first point, if this is merely a switch of classification systems, then that comes down to a comparison of the two systems. To me, that’s a garbage in garbage out scenario, and it matters less the classification system used and matters more the front end evaluation as to how any classification system is actually put into use.

            And yes, this does intersect with the aspect that you mention in that there exists disparities between examining units — and thus, attempts to steer applications into the “more favorable” units.

            This is one aspect that the new 101 guidance is supposed to deal with. In part the “how” of this dealing is to pull back on the nonsense of declaring most anything an “abstract idea of [insert something here].

            Enough ink has been spilled on the 101 under and over reach elsewhere, so continuing dialogue on that aspect would be better placed there.

            As to your second point, I certainly hope that emphasis on skill development (that IS pertinent) is actually ACTIVELY made public and visible. This would align with my long posted views of what should be the emphasis that the Office controls: patent examination quality (as contrasted with the fake boogeyman “patent quality” mantra spun by many of the Efficient Infringer types hoping to denigrate patents in general.

          2. 8.1.1.2.2

            6,

            A reply is caught in the “count” filter.

          3. 8.1.1.2.3

            6,

            I’m more interested in the new PAP — any summary of the differences?

            1. 8.1.1.2.3.1

              No nothing yet. I’m interested as well, but there isn’t really too much that they could change that would be good for the agency that I know of or at least can think of off hand. Truthfully some requirements that every examiner actually read the PAP at some point in the first three years of employment and undergo one training to answer questions and explain things about it would be probably the number one thing they could add to it (but they could do that by decree anyway but they don’t). They could also make it explicit that the “reasonable” decision of the examiner under review for clear error is to be determined objectively not subjectively by the SPE/director. While that change may seem on its face to be “good for examiners” in truth it would be good for the agency moreso than the examiners.

              Other than those couple of changes twould be naught but odds and ends that I can think of that would need changing to make things good for the agency overall. They may want to start requiring examiners to actually try to conclude cases as a part of compact prosecution, but that is a very advanced skill and requiring it “by fiat” as it were is like requiring fat kids to run a mile in 8 minutes. First you have to make them not fat and skilled at running.

              There may be some changes they want to make ivo the AIA but idk about that and it seems a little late.

          4. 8.1.1.2.4

            “I think that just means they’re going to start doing classification by the CPC scheme rather than the old USPC scheme for purposes of routing apps to the TC’s/AUs initially before examination of the instant application in question.”

            Also I should add that the routing of the apps to the AUs will be done by family now it seems. That likely being so that one examiner initially gets all the members of a family (and might transfer some away, or occasionally they’d be transferred before docketing most likely if they need transferring). This has also been somewhat a long time coming as splitting up families is a t ard ed use of time for the office as a whole unless they legit belong in different classifications.

            1. 8.1.1.2.4.1

              And sorry that should read “portfolio” where it says “family”. Though I presume all of a given family would go into one portfolio as well.

              1. 8.1.1.2.4.1.1

                Family and portfolio are two very different things.

                1. …that is not to say that a particular portfolio may be of a nature that a designation of “single family” cannot be applied.

                  That may be the case in an individual instance (and would fall under the nomenclature of an undiversified portfolio); but generally speaking, portfolios exist in order to HAVE diversification.

                2. yeah but I don’t think they’re using the word the same way people in the outside world generally do. It makes no sense to route apps by a diverse portfolio. I think they’re using the term as more like “when you make a whole portfolio of applications that all cover the same/very similar product/product line we will try to give them all to the same AU/examiner”. They don’t mean they’re going to route a bunch of diverse applications to the AU/examiner, rather they mean keeping like with like.

    2. 8.2

      “… more time [for] … such as the number of claims and IDS length.”

      Finally — after all these years of “excess” claims fees … without a logical, commensurate increase in examination time.

      Thank you Drew and colleagues.

      More welcome news for our country from America’s economic engine — our Patent Office.

    3. 8.3

      Thank you for sharing that.

  4. 7

    There’s only one logical explanation. Dennis is MM. MM is Dennis.

    1. 7.1

      The horror.

      1. 7.1.1

        anon, you are the one that assured me so many years ago that MM is not Dennis and Dennis is not MM.

        1. 7.1.1.1

          I think that Gary is quite mistaken.

          (I must have misplaced that sign I picked up from Sheldon)

        2. 7.1.1.2

          Shocking revelation: Dennis is also anon.

          1. 7.1.1.2.1

            I had to chuckle.

            I can think of no greater insult than to be accused of being Malcolm.

            In sharp contrast, it is indeed a high honor to be accused of being anon.

            1. 7.1.1.2.1.1

              >>In sharp contrast, it is indeed a high honor to be accused of being anon.

              Huh. Weird post. Maybe Dennis is both MM and anon.

              1. 7.1.1.2.1.1.1

                No.

                C’mon folks, dating back to perhaps two “let’s have a healthy ecosystem” exchanged ago, I was directly forthwith as to my complying with ALL posting rules (as the rule were then posted), and INCLUDED statements that I was neither Malcolm (shudder) nor Prof. Crouch.

                …and Night Writer, there is nothing weird with receiving a compliment of being mistaken for me.

      1. 7.2.1

        So is MM. He just doesn’t want to be, hence the white-saviorism behavior and faux whitey outrage.

        1. 7.2.1.1

          “So is MM”

          Nah bruh. MM is noble muh victim irl, though he does have white skin tone.

          “hence the white-saviorism behavior and faux whitey outrage.”

          While those do exist, they are far eclipsed by his anti-white racism, which importantly, he admits to. That last part is important because it means he has noble muh victim protection as he knows I could inform his fellows in his lawl firm of his racism and if he doesn’t have noble muh victim protection he’d be fired. But I promise you he wouldn’t be fired. Because he has noble muh victim protection. It’s A-Ok if he’s raycyst by societal measures. D obviously would not admit to being raycyst as his uni would fire him post haste.

    2. 7.3

      That theory has been put forth now for 10 years.

    3. 7.4

      No way Professor Crouch has the time for writing all of the really really serious stuff that Malcolm Mooney posts.

  5. 6

    I would suggest, Dennis, that rather than worrying about the lack of Federal Circuit precedential decisions, you focus on Fr@ud Iancu’s failure to follow precedential decisions.

    We’re rapidly arriving at the point where reasonable people no longer should be paying any attention to granted patents in the computing space. Certainly that’s my advice to clients: just ignore them. They are worthless and there’s isn’t going to be a valid, eligible set of “do it on a computer” claims out there and — absent Congress creating a new paradigm — there are never going to be any. Don’t bother obtaining them, and definitely don’t worry about infringing. Sure, you might have go the Supreme Court but at the end of the day the outcome is guaranteed, as long as you’ve got decent attorneys and your hands aren’t tied behind your back. “Infringe” away. They are all junk.

    Funniest part is that the bigger the company, the worse the claims are. Facebook, Google, Apple and IBM have got to have the most junk-bloated portofolios in the history of the system. Must be a hilarious cl 0wn show at the firms who handle their g@ rbage as the little 27 year old scrivener’s “debate” the awesomeness of Fraud Iancu’s “guidelines” without any context whatsoever.

    1. 6.1

      Have you informed your malpractice carrier of this type of advice that you are giving out?

    2. 6.2

      I think that’s questionable advice, MM, so I’ll chalk it up to an attempt at humor on your part. Sure, many software/computer patents might be junk, but if your clients don’t have them, they’re sitting ducks for infringement suits from competitors.

      One of the strongest justifications for getting patents is deterrence value; if two competitors have patents of roughly the same strength, it’s Mutually Assured Destruction if one decides to sue the other. But if only one has patents, an infringement suit is almost guaranteed, as it’s all upside for the one who holds the patents. Defending a company with no patents against a company that does is no fun; you have essentially no leverage and the discovery burdens are wildly asymmetric against the defendant. Having your own patents won’t protect you against NPEs, obviously, but it has a stabilizing effect in deterring company-on-company infringement suits.

      You also say, “definitely don’t worry about infringing. Sure, you might have go the Supreme Court but at the end of the day the outcome is guaranteed, as long as you’ve got decent attorneys and your hands aren’t tied behind your back. ‘Infringe’ away.” Haha, you’re obviously not litigator, because the outcome is never guaranteed in litigation, no matter how strong your case. A defendant’s hands are often tied behind their back based on the venue the suit is filed in, how smart the judge is, etc. That supposed “guaranteed” outcome assumes that the law is applied perfectly with no mistakes. And even if that outcome reliably existed, it might also cost your clients millions of dollars to obtain.

      1. 6.2.1

        His “advice” is beyond questionable, Lode_Runner.

        Chalk it up instead to his penchant for playing the “Internet Tough Guy.”

    3. 6.3

      Full blown patent litigation is an existential event for a small or medium tech company, whether they hold patents or not. The merits don’t really matter. What matters is the ability to sustain a defense for as long as it takes to tire out the other side. In other words, you bleed until they get tired of hitting you.

      Nice little system we have here. It would be a lot better of half the patents were not insane flights of obviousness, aspiration, and theft, but they are, because the CAFC and the USSC cannot come up with a rational way to deal with information inventions. Yet anyway.

      1. 6.3.1

        Marty,

        You really need to get over yourself and your attempts at the square peg of “information inventions.”

        I’ve noticed elsewhere that you are not even trying to be consistent as to your “consumed by machine” position.

        You should take my advice and try to understand how utility is to be understood in the patent sense.

    4. 6.4

      To make a substantive reply to Malcolm’s quip of:

      you focus on Fr@ud Iancu’s failure to follow precedential decisions.

      I already tried to get you to commit to a position vis a vis Director Iancu’s explicit statement that the “precedential decisions” that you claim that Iancu is NOT following CANNOT ALL be followed because the Common Law law writing OF those decisions have rendered a Gordian Knot of contradictions.

      Naturally, Malcolm, you did not engage in that point and instead just employed your typical drive-by monologue “style.”

      I also put to you that it is NOT so much a matter of “trend” or “tide is turning” but rather the mere presence OF the back and forth ping pong action that provides the opportunity for the Kavanaugh Scissors to be applied by the Court to overcome its own creation of the Gordian Knot that is the current legislated-from-the-Bench state of 101 jurisprudence.

    5. 6.5

      “you focus on Fr@ud Iancu’s failure to follow precedential decisions”

      No, you fail to acknowledge that 101 case law is so inconsistent, irreconcilable, and arbitrary, that Iancu could shape many PTO policies and find at least some precedent to justify it. When you can’t reliably say what the law IS, you can’t so easily say that the law is being violated.

  6. 5

    No real surprise. R.36 judgments tend to come out immediately after oral argument, and we are just after argument week. If you take out the bump in R.36 judgments, then we have about an even split between precedential and non-precedential, so everything is basically consistent with historical trends.

    1. 5.1

      “Historical” — meaning the past few years since and the rise in R.36 judgments.

      1. 5.1.1

        Dennis, how much of “the past few years .. rise in R.36 judgments” is due to the large number of IPR appeals in that same time period? Isn’t the vastly smaller number of IPR decisions getting reversals as compared to jury trials also a factor? Also how does their percentage of R.36 judgments compare to those for Fed. Cir. decisions on appeals of ex parte Board rejected patent applications, historically and now? [The Fed. Cir. reversal rate for rejected applications is also low].

        1. 5.1.1.1

          That is, isn’t there a correlation between reversal rates and actual or precedential decisions? With few reversals getting R.36 judgments?

  7. 4

    There’s actually quite a bit of information to be gleaned from the Rule 36 affirmances. It takes more work, of course (looking at the district court decisions and reading the oral arguments) but you can still get a sense of how things are playing out and why.

    Just from the case titles and the names of the appellants/appellees we can all be assured that the eligibility case law isn’t “swinging back” in any significant way. There is inevitably going to be hard hand slap in Fraud Iancu’s face if he keeps his p@ thetic games up, though. I’m already looking forward to that short sharp cracking sound and the howling from the worst attorneys ever that will inevitably follow.

    Get one of your patent law students to do the work, Dennis. It’s a good exercise for them.

    1. 4.1

      “information” ??? What is that MM? I thought you said that processing information is all the same and no matter what the information looks like that it is all the same. Please try to be consistent. I would suggest that you just randomly press keys on your keyboard as according to you that is as meaningful as anything you post.

      And, magic boy, come on now. We want to know how to create those magic machines that give us new functions without new structure.

    2. 4.2

      You really do not understand the underlying issue with R. 36, do you, Malcolm?

      I attribute this to a combination of cognitive dissonance and “one-bucketing” layered atop your unwillingness to actually engage on the merits of most any patent topic whatsoever (anything against a patent holder is “good” in your book, anyone disagreeing with your feelings belongs in the “bad guy” bucket, and you need not do more than express your feelings – leastwise in your own mind).

      As to: “be assured that the eligibility case law isn’t “swinging back” in any significant way. ” – you are clearly in denial following the Iancu reset of guidance vis a vis 101. Naturally, it does NOT matter (to you) that Iancu (correctly) identifies the fact that the Common Law (re)writing of 101, ushered in by the Supreme Court, has rendered a Gordian Knot of contradictions.

      You do not “get” that a substantial amount of contradictions is FAR MORE IMPORTANT than any “trend” that you may feel the need to attempt to diminish. Plainly, the fact of the matter that there is NOT a trend is even more troubling for the “Ends” that you would celebrate, given the FACT that the very nature that cases are NOT trending, but instead continue to Ping-Pong back and forth draws even more attention to the fact that the Common Law engaged in by the Court is:
      I) not only egregiously wrong,
      II) not only has “severe practical consequences,” but also
      III) generates “no reliance.”

      If you want to talk about “tides turning,” you should pay better attention to the substantive points that I have been presenting for some time now (hint: more and more people are realizing that the score board is broken – and some of those people are on the Bench itself).

      When you went apoplectic when Bilski did not crush the “Diehrbots,” just wait to see where the more important trends are taking us.

      1. 4.2.1

        You really do not understand the underlying issue with R. 36, do you, Malcolm?

        S ck a f@t d0 nkey c 0ck, you worthless piece of sh t.

        1. 4.2.1.1

          I am sorry Malcolm, but your intelligent, cogent and thoughtful on point response was hijacked and replaced with something from the likes of Beavis and Bu tth ead.

        2. 4.2.1.2

          Dennis — please; when is enough enough to ban this guy?

        3. 4.2.1.3

          Pushing the envelope here MM. Fun is one thing. That is not fun.

          1. 4.2.1.3.1

            Marty, just watch what happens if the Court attempts to cut its Gordian Knot with the Kavanaugh Scissors.

        4. 4.2.1.4

          By responding to blather with offensive language, you have given it undeserved credibility. The entire post was a non sequitur, which I wouldn’t have known had your response not made me curious. I would have otherwise relied on my informed expectation that the post would have little value and being substantially comprised of opinion stated as fact. Check off another data point.

          Were you actually offended by someone blaming you for their failure to form a cogent argument? “If you don’t agree with me, it is because you don’t understand.” Does that really merit a crude bestiality invitation?

          1. 4.2.1.4.1

            The entire post was a non sequitur, which I wouldn’t have known

            Well, you could have guessed and you’d have a 90% chance of being right.

            Were you actually offended by someone blaming you for their failure to form a cogent argument?

            No.

            Does that really merit a crude bestiality invitation?

            I’m responding to the cumulative years of “anon” and his bff NW attacking this bizarre strawman that they battle with and pretend that they’re arguing with me. You know: it’s this guy who “h@ tes patents” and who “doesn’t understand innovation”. In fact, I’m a patent attorney for many many years now. I don’t “h@ te patents”. I definitely believe that logic patents and patents that protect information are junk, that they are illegal, arguably unconstitutional, and that they don’t belong in the existing utility patent system. And I’m prepared to defend that belief. I’ve been doing so for years, in fact, and during all that time the value of those patents has been steadily shrinking as more and more people come to realize that, well, I and others who share my beliefs are correct.

            It’s not a winnable battle for them, in the long run. Unfortunately for them, they’re obviously not very intelligent and they’re obviously pretty rotten excuses for human beings (you know, the kind of people who seriously believe that “political correctness” is worse than r @ c ism, etc., but who are so hypocritical that they collapse into tears when you fail to play by their silly civility rules — in other words, glibertarian types and wingnerts). On top of that, their arguments stink, even if they could manage to make those arguments coherently.

            So, if I offended you, I apologize. I’m sure you’ll live. Try to imagine having these two psy ch0 tic g 00 ns on your back for years while you try to make the plainest non-rebuttable statements ever made in the history of patent law and maybe you’ll be able to empathize with my occasional colorful language.

            1. 4.2.1.4.1.1

              Wow, are you really that delusional Malcolm?

            2. 4.2.1.4.1.2

              MM, give us a break. You have been misbehaving for 14 years.

              1. 4.2.1.4.1.2.1

                Exactly,

                One of the points that came out of an earlier “let’s have a healthy ecosystem” thrusts was that it really did not matter TO WHOM Malcolm was responding to. He blatantly and proudly put forth that he would “outlast anyone” and would not change his tactics.

                His post at 4.2.1.4.1 is nothing but a giant L I E. It’s an empty assortment of mindless ad hominem peppered with his usual number one meme of Accuse Others Of That Which Malcolm Does.

                The plain fact of the matter is that Malcolm employs his typical rants and propaganda and it is HE that refuses to engage on the merits as counter points are presented.

                There is a plain and simple path for Malcolm to get anyone off his back: engage on the merits in an inte11ectually honest manner.

                He has always chosen to NOT take that path. His choice to not take that path cannot serve as any type of legitimate excuse for the “colorful language” that he ALSO chooses to “engage” with.

                One might think (hope) that one of the lessons that Malcolm would have learned from his being the person with the MOST expunged posts** would have been that lesson.

                ** not only most – but more than ALL OTHERS combined.

                It is also plain to note that the only ones ever to “cheer” Malcolm on are those who share his anti-patent views (in whole or in part) – and even THAT has not spared several of those from being accosted by Malcolm’s “choice” of rhetoric (the late Ned Heller even advised to “enjoy the swagger” – that is, until Ned was thrown into the one-bucket of “bad people”).

                1. “My Struggle” – authored by anon 2019

                  “blah blah blah blah blah our values are different and he will thus never adopt my view blah blah blah” “I gradually came to hate him” pg 96.

                  The MM – anon dynamic is literally a historical meme.

  8. 3

    Dennis, you write, the “Federal Circuit is off to an auspicious start in 2019,” in which “the majority (65%) are actually no-opinion judgments known as R.36 judgments.” I thought you were one of the big voices railing against the widespread use of Rule 36 summary affirmances. Maybe you don’t know what “auspicious” means.

      1. 3.1.2

        Not to speak for Lode_Runner, but:

        Auspicious: conducive to success; favorable.

        synonyms: favorable, propitious, promising, full of promise, bright, rosy, good, optimistic, hopeful, encouraging; More opportune, timely, well timed, lucky, fortunate, providential, felicitous, advantageous, beneficial

        Given your rather known stance being one that R.36 is largely unhelpful and overused, you probably meant to use the antonym of “inauspicious.”

        Since Malcolm’s reply of “LOL” is to your post of “too dry,” rather than to the “dry” Lode_Runner post, I would surmise that Malcolm laughs too quickly (with little doubt, this is just more of that cognitive dissonance thing coming through).

        1. 3.1.2.2

          I see that the article above has been amended and a “not” modifier added to “auspicious.”

          1. 3.1.2.2.1

            Is it any wonder?

            1. 3.1.2.2.1.1

              With or without the sign?

        2. 3.1.2.3

          To be fair, if you describe something as auspicious, and then go on to describe that same thing in a manner that implies that it is actually not very auspicious, I would naturally read some level of sarcasm into the first declaration.

          1. 3.1.2.3.1

            Or, since not many Sheldon-like people typically use a word like “auspicious” (and most ordinary people may be inclined to a negative meaning anyway — alone the lines of ‘suspicious’ — AND the author has made it known that grammar errors and the like may well occur in posts, impugning a deliberate use of sar ca sm may well be presumptuous.

            1. 3.1.2.3.1.1

              …non-Sheldon-like..

      2. 3.1.3

        Too subtle for me. But what’s wrong with issuing fewer “precedential” decisions? The vast majority of decisions designated “precedential” by the CAFC make no new pronouncements of law, and do little more than apply existing law to some idiosyncratic set of facts unlikely to be instructive to future cases.

        The cynic in me sees most “precedential” CAFC decisions as an attempt by one panel to put a slant or accent on existing law, tip the scales in favor of one class of parties or another. This in turn compels later panels to issue their own precedential decisions to undo the damage, and swing the pendulum back in the other direction. The result–a lot more precedential yet conflicting decisions. This is particularly true of decisions on patent eligibility under 101.

        I’ve argued before many district judges, and generally speaking, having so many precedential (yet truly inconsequential) decisions on a single issue of law makes it a lot more difficult for judges to gain a cohesive understanding of patent law. Rather than focusing on applying the law to the facts, some judges focus too much on where the “pendulum is swinging” based on the very latest pronouncement from the CAFC.

        1. 3.1.3.1

          LR: what’s wrong with issuing fewer “precedential” decisions? The vast majority of decisions designated “precedential” by the CAFC make no new pronouncements of law, and do little more than apply existing law to some idiosyncratic set of facts unlikely to be instructive to future cases.

          Absolutely true.

          There’s no point in issuing a “precedential” decision that is completely worthless and is going to get overturned by the Supremes anyway because, e.g., it uses Supreme Court dicta to drive a truck through the holding in the same Supreme Court case in which the dicta was swiped. That might provide some short term gratification for those low level practitioners and their clients who thrive on creating confusion and kicking up dust but other than that … pfffft. There’s no point to it.

          And yes I’m referring in particular to this illegal and nonsensical silliness about anticipated and obvious elements needing to be “conventional and routine” (in addition to being anticipated and obvious ?!?) before those elements can be deemed insufficient as contexts for propping up (and allowing patent protection for) otherwise ineligible abstractions (information, logic, etc).

        2. 3.1.3.2

          +1 Lode Runner.

          We need far less precedentials; not more.

          Numerous Ping Pong precedentials are — effectively — not precedential at all.

          1. 3.1.3.2.1

            Trouble with adjectives? Auspicious or inauspicious? Fortunate or unfortunate? Elongate, elongated, neither of them or both? It seems that they are as much to be regretted when included in blog postings as they are when included in an independent claim: I mean, different readers have a habit of running away with directly contrary notions of what meaning the adjective is adding to the noun.

            My particular peeve is when assistants, in drafting letters to clients, begin a sentence with “Fortunately,” (or sometimes, unfortunately, “Unfortunately,”). First, how do they know what is “fortunate” when seen through the eyes of the reader, their client. Second, whether what has happened is, for the writer of the letter, “fortunate”is of no interest to the reader, perhaps even irritating for the reader and, in any case, totally superfluous to the purpose of the letter. Business people and outside counsel see patent prosecution events through different spectacles.

            Tell me, readers in the USA. Do patent attorneys in the USA do what so many in the UK do, namely, commence their reporting letters with expressions of how “glad” (or even “delighted”) they are, to be making their report (or a Notice of Allowance, or whatever). If so, why?

            1. 3.1.3.2.1.1

              Well Max, we are encouraged from a very young age to express our emotions (e.g., see the links below) and we are a very warm and caring and empathetic people. And sometimes we just can’t help sharing in the joy we know a Notice of Allowance will bring to those we serve.

              link to youtube.com

              link to youtube.com

  9. 2

    For 2018, the stats were approximately as follows

    Is that for all of 2018 or only the first two weeks in January? If those are the stats for the whole year, then it could be a seasonal effect. Perhaps work on the (presumably more important or at least more labor-intensive) precedential opinions gets put on hold or slowed during the holidays.

    Alternatively, maybe they’ve been a bit side tracked by the fact that they are about to stop getting paid. The judicial branch will run out of money tomorrow, so at a minimum their clerks and staff will be working without pay. It’s unclear to me whether the special constitutional status of Article III judges will permit them to continue to be paid somehow.

    1. 2.1

      Meanwhile: According to the Treasury itself: “Deripaska has been investigated for money laundering, and has been accused of threatening the lives of business rivals, illegally wiretapping a government official, and taking part in extortion and racketeering. There are also allegations that Deripaska bribed a government official, ordered the murder of a businessman, and had links to a Russian organized crime group.” The oligarch, Treasury wrote, is a keen Kremlin loyalist: “Deripaska has said that he does not separate himself from the Russian state.”

      The effort to keep the sanctions in place required 60 votes to succeed, and fell just short Wednesday when 42 Republicans voted to lift them, toeing the Trump line. Senate Majority Leader Mitch McConnell (R-KY) whipped GOP nay votes, calling the effort a “Democratic stunt.” Those backing Trump included onetime Russia hawks Mitt Romney (R-UT) and Lindsey Graham (R-SC).

      Gotta focus on the important stuff: letting the P erznit’s Russian criminal friends get off easy. Paying the US government’s own employees to do work? Nah, f ck those little people.

      1. 2.1.1

        If I could, I would give Comment 2.1 an uptick, for speaking out in defence of the Rule of Law.

        For 45, and many Brexiters, the EU is a problem to be eliminated. For me it is one of the last defenders of democracy and the precious Rule of Law. Further, it has brought peace to the island of Ireland. Shame on all those elected representatives who fail to defend what separates us from those authoritarian and aggressive regimes whose prime objective (and need) is to destroy the Rule of Law.

        1. 2.1.1.1

          Where the F do you see a defense of the Rule of Law in that emotional rant?

          Bizarro cheerleading like this for the single largest source of blight on this blog is just odd.

          Like the Ends that Malcolm wants? No problem. Help him find a suitable forum for those feelings.

  10. 1

    Well, the R.36 judgment insures that their language is not ridiculed by the Scotus.

    1. 1.1

      I think the only solution is to disband the CAFC. Obama allowed a large corporation to select anti-patent judicial activists to the CAFC. No one has respect for the CAFC. I don’t know anyone that respects more than one or two of the judges. The rest are a disgrace.

      1. 1.1.1

        Night Writer, I hate to say, there’s a lot of truth to what you say. Many district judges and circuit judges that I have spoken to hold their tongues in public, but in private, regard many Federal Circuit judges as hacks. (Again, key word “many,” there are a few that are respected.) The debacle with Randall Rader didn’t help, either. The sad thing is that most CAFC judges are in a bubble; they have no recognition of the low opinion in which the CAFC is held by so many practitioners and judges.

        A popular theory is that the high degree of hackery on the Federal Circuit is attributable to the fact its nominees do not go through the traditional Senate “blue slip” vetting system, in which senators from a particular state submit recommendations and opinions about judicial nominees for court positions (district and circuit) within their state. The process has been watered down in the era of Trump (and is often ignored when the President is from a different political party than the senator), but generally speaking, blue slips result in selections based on a much longer list of potential nominees, who receive a lot more scrutiny. Most senators have private committees to go through dozens of potential candidates, who are interviewed repeatedly and scrutinized, their references are checked, etc., and ultimately those committees make recommendations to the senator for their “blue slips” to the President.

        Because the Federal Circuit is not within any “state,” it doesn’t go through the blue slip system. Although blue slips aren’t used for the D.C. Circuit (which isn’t within any “state”), that court is much more consequential nationally and is often a Supreme Court feeder, so it generally gets better nominees. But the Federal Circuit’s jurisdiction is largely inconsequential to everyday Americans, so most senators do not really care and CAFC nominees simply do not get much scrutiny. If there are no major “red flags,” the first name that comes up will generally get confirmed.

        1. 1.1.1.1

          LR, you could also add that many D.C. judges do not like patent cases in general, as they often take too long and require digging into obscure-to-them law. But interestingly, even the ED TX D.C. judges who were handling so many patent suits had nearly the same Fed. Cir. reversal rates as average D.C. judges.

        2. 1.1.1.2

          I was in a coffee shop the other day and there were several federal judges sipping on lattes. As I stood in line, I casually said out loud, “Those Federal Circuit judges are certainly hacks.” The judges, almost in unison, termed to face me, lifted their cups on a salute of camaraderie, and smiled and nodded. There was such a warm feeling in the room as we bonded over our shared contempt those Federal Circuit Google-appointed judges.

        3. 1.1.1.3

          I liked — and miss — Judge Rader.

          He treated inventions — and their inventors and counsel — fairly.

          Let any among us who’ve never made a mistake in their professional lives throw the first stone.

          1. 1.1.1.3.1

            I agree that CJ Rader was an OK guy. I took a class from him and knew him a bit. He was a bit odd I think, but he was different than the large corporation selected judges in that, as you say, he wanted to be fair. He admired J. Rich and he wanted to apply the law.

            His replacement is a disgrace.

        4. 1.1.1.4

          Lode_Runner —that was interesting. Thanks.

          Well, IMHO, the CAFC judges that Obama nominated were selected by a large corporation for their anti-patent views and their judicial activism views. The judges selected were highly opiniated and frankly a couple had real questions about their character.

          I thin it really would be reasonable to wipe the slate and start over.

          1. 1.1.1.4.1

            +1

    2. 1.2

      …reminds me of the psychological thought experiment of training a group of simians in a cage to beat any of the group who may try to climb a ladder in the middle of the cage and reach for bananas hanging there.

      1. 1.2.1

        Billy never forgot that magical day at the monkey house when he “became a man.”

        1. 1.2.1.1

          Your wayward ad hominem lacks any meaning.

          Perhaps here, the “too dry” is more than a bit more appropriate.

          (maybe you are doing one of your “one-bucketing” things…)

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