Patently-O Bits and Bytes by Juvan Bonni

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34 thoughts on “Patently-O Bits and Bytes by Juvan Bonni

  1. 5

    And yet another huge set of Malcolm expungements.

    How does that feed the legend in your own mind, Malcolm?

  2. 4

    No CAFC cert. petitions granted today, nor denied.

  3. 3

    Prof Kumar >>The Federal Circuit has consolidated power to the point that no other branch of government serves as an effective check, raising separation-of-powers concerns.

    The problem is lobbyists. The reason that this has happened is that SV can then focus on a single issue. So SV can pick judges for presidents like Obama to appoint and take control of patent law. We can tell this is true when judges are appointed with no patent law or science training to the one court in the USA where a judge should understand science. What we saw from Obama was appointments of this weird group of people that were anti-patent and likely pledged to get patents under control in exchange for their appointments.

    But get that the issue is that the specialization enables the lobbyist to select judges that are single issue judges like Taranto who was at the DOJ and thought all patents should be held invalid.

    (I still don’t think any “academic” paper should be listed on patentlyo without disclaimers that the professor may be working for a client and that the paper is not peer reviewed and that there is no ethical check on the behavior of the professor. The papers should be considered as no more trustworthy than a blog post.)

    1. 3.1

      The appointment issue you mention is a problem endemic to almost all specialized courts. The concentration of jurisdiction over a particular subject matter area in a single appellate court lets you appoint people to that court based on their viewpoints in that area. That ability is a unique feature of specialized courts.

      For example, suppose there was no Federal Circuit, and appeals from patent cases were heard by the regional circuit courts (as was the case prior to 1982). Even if one wanted to, a president couldn’t realistically pack those courts based with judges based on their pro-patent or anti-patent views, because those judges will hear areas of far greater social and economic importance (e.g. criminal law, labor, environmental, civil rights, securities, etc.). Those judges have “bigger fish to fry,” so to speak, so their views as pro-patent or anti-patent would have a pretty minimal impact on their appointment to those courts. The pro-patent or anti-patent lobbying would get drowned out by many other louder voices pushing for influence over the appointment process. I mean, the Supreme Court can hear appeals from Federal Circuit patent cases, but when’s the last time you heard a single question at a Senate confirmation hearing relating to patents?

      But with the Federal Circuit, their non-patent jurisdiction covers areas that are not visible to the public, including federal claims, merit dismissals of federal employees, veteran’s benefits, etc. So it’s a lot easier for pro-patent or anti-patent bias to impact the judicial appointment process, because the other issues the court deals with are not the subject of any significant political lobbying.

      (I don’t really agree with your view of the judges that Obama appointed, but that’s a secondary issue to the broader court specialization issue Professor Kumar raises.)

      1. 3.1.1

        Lode_Runner >>> Yes that is the point I was making that the CAFC allows the lobbyist to select for a single issue.

        >>(I don’t really agree with your view of the judges that Obama appointed,

        Wow! Well, I’d suggest you read some of the blogs that keep track of which judges have been invalidating claims. And I’d suggest that you look at the judicial activism of the Obama judges like Taranto, Hughes, etc.

        It is really objective. They were appointed to burn the patent system down and have been doing a good job of it

      2. 3.1.2

        In one of Taranto’s opinions he held that any computer that simulated a human thought process was inherently obvious.

        At the same time the EU scientists said that it was not worth trying to simulate human thought processes because it was too difficult and we did not understand human thought process well enough to simulate them.

        Please Lode educate yourself before going on with your nonsenses.

        1. 3.1.2.1

          In one of Taranto’s opinions he held that any computer that simulated a human thought process was inherently obvious.

          It’s 2019. What’s non-obvious about the idea of using a computer to “simulate” a “thought process”?

          EU scientists said that it was not worth trying to simulate human thought process because it was too difficult

          Hmm. Seems like it would depend on the “process” in question.

          we did not understand human thought process well enough

          LOL

          I’ll grant you that if you don’t even know what you’re trying to simulate, then it might be difficult to do so (or to know when you’ve achieved the goal). In any event, I’m sure Taranto wasn’t referring to “simulating” the actual “thought process” (LOL) of an actual human brain with a computer but rather to carrying out logic based on input data, which is something that brains definitely do. Well, maybe not yours. But most readers will understand what I’m talking about.

          Please continue your awesome “argument” about how computers will soon be replacing judges, if only we had more patents on carrying out logic with a computer. The Supreme Court will be very impressed! Trust me.

          LOL

          1. 3.1.2.1.1

            MM>>It’s 2019. What’s non-obvious about the idea of using a computer to “simulate” a “thought process”?

            This illustrates a level of ignorance that disqualifies you from ever offering an opinion about patent law again. You are disqualified.

            1. 3.1.2.1.1.1

              He is also purposefully or recklessly confusing and conflating 103 and 101 issues at law.

              This stems directly from his FAILURE at grasping the Grand Hall thought experiment and his belieb that somehow all future improvements to a machine through the design choice of software are somehow “already in there.”

              What you see as a “level of ignorance” is purposeful for Malcolm and is driven by his feelings/emotions/thoughts/philosophies.

              1. 3.1.2.1.1.1.1

                He is also purposefully or recklessly confusing and conflating 103 and 101 issues at law.

                And you’re a pedophile who hides behind bushes near elementary schools waiting to flash the little ones.

                [shrugs]

                Keep making up nonsense, Bildo, and I’ll do the same.

                1. ? There is nothing “made up” about my comments, Malcolm. They accurately reflect your words that are captured here in black and white.

                  Or are you just aiming to add to your lead in expunged inappropriate posts?

          2. 3.1.2.1.2

            MM, if it is all so easy as you seem to think then why isn’t it done to make money? The fact is that your glib view that oh gee this is oh so easy anyone could do it —- is ridiculous.

            Anyone that knows anything about technology or science (which lets out half of the Obama judges) knows such statements have been made since the beginning of time and are always wrong.

      3. 3.1.3

        The appointment issue you mention is a problem endemic to almost all specialized courts… I don’t really agree with your view of the judges that Obama appointed…

        Um, one of these claims does not sit well with the other. I agree that the CAFC’s specialized docket makes it possible that the problem that you described could arise. Clearly, however, such problem is not actually “endemic,” given that it has never actually arisen. NightWriter has some fevered delusion that Pres. Obama has stacked the court with judicial vandals, but there is really no evidence for this claim, and you yourself admit that you do not believe the nonsense claim.

        Basically, Pres. Obama appointed a variety of well qualified, fair, and neutral judges to the CAFC, just as Pres. Bush did before him, and Pres. Clinton before him, and Pres. Reagan before him. As I said above, you are certainly correct that the structure of the CAFC leaves open the potential for a motivated bad-actor to stack the court as you propose. As it happens, however, such an unpleasant outcome has never actually obtained. I am not certain whether we should regard that fact as encouraging or not.

        1. 3.1.3.1

          >>>NightWriter has some fevered delusion that Pres. Obama has stacked the court with judicial vandals,

          Not going to bother listing all the evidence again. You will simply ignore it again.

          1. 3.1.3.1.1

            You will simply ignore it again.

            Correct. I will find your bizarre assertions no more convincing on the eighth reiteration than on the sixth.

            1. 3.1.3.1.1.1

              You missed what he said:

              It is not the assertions (per se) that you will ignore, but the evidence provided that LEADS TO those assertions that you will ignore.

              Your holding onto “bizarre” is of course your right to do. But you LOSE credibility when you don’t bother at all with the substantial facts that DO exist that lead to those assertions by Night Writer.

        2. 3.1.3.2

          Greg, any patent attorney worth their salt knows what I said is true. Just look at the opinions of Taranto. The emotional instability of Stoll.

          Etc. I could go through the list of each of the judges that Obama appointed and I knew some of them before they were appointed.

          1. 3.1.3.2.1

            I can easily think of a dozen CAFC opinions that went the “wrong” way. I cannot think of even a single opinion—by Taranto or any other judge—that went wrong in a manner so stark and unconvincing as to suggest bias.

            The CAFC must apply poorly formulated law—recent judges more so than veterans, because the law has taken many recent turns for the worse. When a judge is given bad law to apply, it is actually a mark of the judges candor and integrity that s/he reaches bad outcomes. Our judges are supposed to apply the law, not refashion it anew.

            If there is vandalism afoot, it is to be found in Congress & the SCOTUS. The CAFC is simply applying the law that they have been told by the constitutionally legitimate authorities to apply.

            1. 3.1.3.2.1.1

              >>I can easily think of a dozen CAFC opinions that went the “wrong” way. I cannot think of even a single opinion—by Taranto or any other judge—that went wrong in a manner so stark and unconvincing as to suggest bias.

              Wow. I would say that no educated patent attorney could read the opinions of Taranto (as an example of an Obama appointed judge) without seeing clear evidence of bias.

              1. 3.1.3.2.1.1.1

                I would say that no educated patent attorney could read the opinions of Taranto… without seeing clear evidence of bias.

                Yes, we all know that you would say that—indeed, you do say it, repeatedly.

                ווען אַ נאַר האלט שטיל… as they say.

            2. 3.1.3.2.1.2

              You err Greg as when “just apply” is MORE than merely applying and falls to writing law by way of Common Law evolution.

              Also, IF the CAFC were merely “just applying” they would NOT reach any decision as they have to process directly conflicting judicial precedent.

              Yes, I would agree with you that the CAFC is adding more and more rope to the Gordian Knot created by the Supreme Court (but would add that THAT is what the Court asked them to do). The CAFC does NOT get a “pass” in the mess of 101. But by that same token, they do not get the type of “pass” that you would give them either.

          2. 3.1.3.2.2

            Looking for something else, I stumbled on this post from Night Writer:

            September 16, 2013 at 9:14 am

            Law360, New York (September 13, 2013, 7:12 PM ET) — A Santa Clara University School of Law professor noted for her research into nonpracticing entity litigation has been tapped to advise the Obama administration on intellectual property issues, the school announced Friday.

            What did I tell you? Obama is going to be appointing the nut jobs.

  4. 2

    Prof Kumar sees problems with the CAFC’s overwhelming specialisation in patent law, including “political activism”. Can somebody please explain to me how increasing specialisation in patent law increases political activism.

    The way I see it, because patent law is itself so esoteric, and so dependent on fact-finding in esoteric areas of science and high technology, which only a specialist can handle, it’s vital to have a specialist court for patent law. Are there not better ways to limit “political activism” in such a court than doing away with its specialisation in patent law?

    1. 2.1

      Agree 100%. Prof Kumar appears to assume his premises without establishing them. I find the argument unconvincing.

    2. 2.2

      Kumar’s criticism about political “activism” is really just a criticism of former Chief Judge Rader. The things Judge Rader did were, to be clear, unseemly and inappropriate, and he got involved in the political process in a way that no Article III judge should.

      But Rader’s inability to separate his judicial duties from his own arrogance and ambition led to his downfall, and caused him to resign in disgrace. But I do not think it is accurate to accuse the court of political “activism” for the actions of one of its former judges.

      1. 2.2.1

        Rader you are going after? Ridiculous. Rader made one mistake. Is there an opinion of Rader’s you think was activism?

        Reality — Rader’s opinion reflected the science behind the technology. Rader was trying to merely continue on with the same jurisprudence that Rich was carrying on.

        Rader/Rich’s opinions were logically consistent and created a system that worked.

        1. 2.2.1.1

          Big +1 NW.

          Let’s see the hands of everyone here who’s never made a mistake; professional or otherwise.

          . . . still waiting . . . anyone? anyone?

          Let he who is without sin cast the first stone.

      2. 2.2.2

        How did Rader get involved in the political process?

  5. 1

    From the Davie article: Right now, insulin isn’t available as a generic drug in the U.S., because pharmaceutical companies have made small improvements to insulin over the years to keep it under patent.

    This seems like a strange way to phrase the explanation. Obviously, I cannot keep the entire category of “chairs” under patent by inventing the rocking chair, nor can I keep the entire category of “rocking chairs” under patent by inventing the barcalounger. At most, I can keep one small subgenus of “chairs” (the particular variety that I invent) under patent by inventing an improved chair.

    In other words, good old-fashioned insulin is long since “off patent.” The problem is not that drug companies are inventing newly improved varieties of insulin (such as the NovoLog variety, mentioned in the article). Rather, the problem is that our FDA law does not permit a generic company to manufacture the older varieties of insulin, many of which would be perfectly fine for many patients.

    This is really a failure of FDA law, not patent law. It would be a useful service to the readers if Davie had made that point clear.

    1. 1.1

      Agree.

    2. 1.2

      Wow. So when it involves Greg’s area of patent law, then he figures it out.

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