Patently-O Bits and Bytes by Juvan Bonni

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

    1. 6.1

      “charged these inventors with claiming the same device as Wada (which is a vicious false accusation)”

      Did you mean “said that their claim was anticipated”? Because that isn’t a “charge” and they probably didn’t mean that it was the exact same device. They just meant the claim was anticipated, it’s a different thing technically.

      Still, would be interesting to know how the examiner missed the 102 if the lawlyers found it. Perhaps it was newly introduced ref?

      1. 6.1.1

        They just meant the claim was anticipated, it’s a different thing technically.

        That’s way too nuanced for Balloon Boy.

    1. 5.1

      Sorry. Bad form. Trying to answer Greg’s request for examples below.

    2. 5.2

      “(letting China take the lead in quantum computing)”

      And nothing of value, literally, was likely lost. We had experts in the field come in a year or two ago and apparently, according to them, the number of actual applications for quantum computing to be all that useful is teeny as of today, though there are a few decent techs, again according to them.

      1. 5.2.1

        “(letting China take the lead in quantum computing)”

        LOL

        China has the lead in quantum computing and soup dumplings?

        Truly the US is a third world country now.

  1. 4

    By banning any and all attempts to understand the relationship of the claim to the prior art when determining eligibility, the statute effectively nullifies itself. It might as well just say “Transparent efforts to draft around the requirements of 101 are encouraged and such can efforts can not be relied upon to determine eligibility.” Crouch knows this, of course, because he’s still got half his wits about him. Unfortunately, he’s apparently allowed himself to become so compromised or conflicted over the years that he is no longer capable of discussing or teaching basic logic in this context.

    The really unfortunate part for everybody (except, of course, for that perpetually whining and entitled crowd of already wealthy patent game players) is that nothing good can result when you start from a pile of pure d 0 g s –t. That’s doubly unfortunate when many of us have spent decades describing the various flavors of ineligibility and the policy (or Constitutional) issues around them.

    For example, nobody except a tiny fraction of patent attorneys believes that a “computerized” database comprising some “non-obvious” information content should be patentable. Likewise, nobody believes that such a database constitutes a “new computer.” Determining what kinds of “improvements” in the “art” of using logic to instruct computers is eligible is undeniably an incredibly important determination but instead of facing that issue, the drafters of this statute intentionally and shamefully (or completely ig n 0 r@ntly) have chosen to pretend that they can simply turn back the clock 40 years. As I said, it’s a j 0 ke, and in a sane world the people responsible for this would be mocked by every professional patent attorney.

    Likewise, nobody believes that you should be able to patent a generic method of using a prior art detection tool to detect some “newly discovered” naturally occurring phenomenon, e.g., using a telescope to detect a “non-obvious” newly discovered asteroid that is heading towards the earth, or using a scale to weigh a “non-obvious” newly discovered Amazonian frog.

    But the profession has turned into a ce s s p00l so I guess let’s all just swim to the b0tt0m and pretend we were born yesterday and that nobody will ever be so bold as to try claim that sort of thing. Sure, that will work out just great.

    1. 4.1

      nullifies itself….?

      There is a very real difference with the Judicial Branch inserting its own philosophies (sticking its fingers into the nose of wax of 35 USC 101) and ANY sense of actually meeting what Congress has written (your “inviting” drafting around is bullocks).

      Any sense from you as to “basic logic” is what is a self-nullity here.

      1. 4.1.1

        You haven’t actually responded to what I wrote, Bildo, as usual, except to fill your diapers and fling it around.

        On its face, the statute plainly permits (“invites” would be a better word) anyone to write claims which protect subject matter in prior art contexts, where that subject matter would be ineligible in the absence of that recited prior art context. For example, the statute doesn’t permit me to claim a method of thinking about some non-obvious fact. But it does nevertheless permit me to protect that ineligible process in any prior art context as long as that context is useful and it involves more than human thought. So claiming a method of thinking about some non-obvious fact while, e.g., ingesting a useful chemical (e.g., nicotine, aspirin, calcium, H2O) sails right through.

        As has been noted many times by people far more intelligent than you, any time you negate the ability to consider the relationship of the claim to the prior art when conducting an eligibility analysis, you necessarily (i.e., logically) end up on the horns of this dilemma. And you can’t just wish them away or wave your hands and suggest that some other part of the patent statute is going to rescue you from this transparent (and huge) problem. At least, I’m certainly not going to let that happen.

        You and Dennis Crouch may happily let that happen, of course. And we are certainly free to speculate as to why you would do that (it would be irresponsible not to). Frankly, I doubt you have the same reasons but I could be wrong. Missouri is a very strange place, after all.

        1. 4.1.1.1

          Claim as a whole “nullifies” your vapid “in prior art contexts” and whatever it is that you think that you mean by that.

          “On its face” is how statutory law is meant to be taken.

          See Schein.

          The officious behavior of the Court has been regarded by all three branches as improper.

          See also California Franchise Tax Board v. Hyatt

          Whatever type of “internet tough guy” you think may be applicable with your “ I’m certainly not going to let that happen.” would be FAR better off if you actually engaged on the merits. EVERYONE (no doubt including myself and Prof. Crouch) would be happy if you were to do THAT.

          1. 4.1.1.1.1

            “in prior art contexts” and whatever it is that you think that you mean by that.

            LOL

            Which part don’t you understand, Bildo? Is there some part of the reasoning you can’t follow? This is a pretty straightforward concept. I know that all of the patent attorneys I work with understand the issue quite well. Then again, I’m not at the firm of Derpwad and Moufbreather LLP, set up behind the 7-11 in Axwipe Wyoming like you are.

            Maybe Dennis can explain it better. Or maybe he can give you some mouth-to-mouth so a bit of oxygen makes it to your pea brain.

            1. 4.1.1.1.1.1

              You @$$ume that this is something that I do not understand.

              That’s an egregious mistake.

              This is not a matter of my not understanding anything. This is a matter that your inane mutterings are just that: inane.

              1. 4.1.1.1.1.1.1

                You @$$ume that this is something that I do not understand.

                What are you referring to when you say “this”?

                Be as specific as possible and provide two hypothetical claims (one eligible, one not) and a brief “cogent” (LOL) analysis which shows that you understand. Should take about two minutes, if you do really understand.

                Impress everybody, Bildo. Go ahead! You’re a very serious person, after all.

                1. Lol – I am NOT going to write your argument for you. Nice try at getting me to do what is necessary from you.

          2. 4.1.1.1.2

            engage on the merits

            Translation: “Treat my appallingly derp ideas as if they were jewels of wisdom because if you don’t I will have a sad and take my balloon home.”

            Grow a pair, snowflake. You’re the one who can’t “engage on the merits.” Everyone knows this. And ultimately it’s why you and Big Jeans are going to get your smelly underwear shoved into your mealy mouths.

            1. 4.1.1.1.2.1

              Wow – that’s an “impressive” amount of Accuse Others from you.

          3. 4.1.1.1.3

            “On its face” is how statutory law is meant to be taken.

            ROTFLMAO

            1. 4.1.1.1.3.1

              Which part don’t you understand,

              Right back atcha with your ROTFLMAO – Maybe try to engage rather than responding with empty non-sense.

              As it is, this is nothing more than the typical from you, Malcolm, lots of noise and blight, but nothing or merit.

  2. 2

    The Cheung article rightly acknowledges (pg. 42) that “[i]f a taking is found, the patent owner should bring suit against the government for just compensation in the Court of Federal Claims.” I take this as an acknowledgment that the fevered dreams of some on these boards—that the whole IPR/PGR statutory scheme might be effaced from the USC as violating the V amendment—is never going to get anywhere. Even with this more modest view of takings law, however, Cheung seems to be missing an important point.

    Broadly speaking, a takings analysis claim has two parts: (1) has there been a “taking”; and (2) has just compensation been paid. As Cheung acknowledges (pg. 17) “just compensation… [is] measured by the property owner’s loss rather than the government’s gain” (quoting Brown v. Legal Found. Of Wash., 538 U.S. 216, 235–36 (2003)). But what is the value of the patent owner’s loss after an IPR loss? By definition, if the patent owner has lost, then that means that a competent tribunal has determined that the lost claim was unpatentably anticipated or unpatentably obvious.

    What is the value of the loss of an unpatentable claim? To ask the question is to answer it—the value is $0. The “just compensation,” then, is always $0.

    1. 2.1

      Takings argument (and loss) may well tie into the loss of the presumption [presence AND level] that precedes ANY adjudication in the Executive branch tribunal. The very notion of “deemed unpatentable” is thus a type of “loss.”

    2. 2.2

      And, as others have noted, a “taking” claim for claim held and appeal-sustained invalid is analogous to a taking claim by a real property owner with a title held defective.

      1. 2.2.1

        …unless the problem is in the process by which the title was held ineffective…

        (No bootstrapping, please)

    3. 2.3

      that means that a competent tribunal has determined that the lost claim was unpatentably anticipated or unpatentably obvious.

      Back up the truck.

      According to the current case law, the PTO could construe the claims as broadly as possible, limit discovery to 5 pages, prohibit reply briefs, delegate the institution decision to EFF, and hire Mark Cuban to preside over all final written decisions.

      If such a tribunal held a claim unpatentable does that mean the inventor never had a property right?

      I submit the PTAB in its current constitution is about midway between this scenario and an Article III court.

      In fact most patents invalidated by the PTAB are upheld in the Article III Court when given the chance.

      All that is needed is for an inventor to find a real lawyer to insist on trying the case. If the jury agrees with the PTAB then there was no taking. If the jury disagrees with the PTAB then there was a taking.

      Perhaps VirnetX will get to this point.

      1. 2.3.1

        Not to pick a nit, but I would be interested in the support for:

        In fact most patents invalidated by the PTAB are upheld in the Article III Court when given the chance.

      2. 2.3.2

        [M]ost patents invalidated by the PTAB are upheld in the Article III Court when given the chance.

        May we please know the source for this assertion?

          1. 2.3.2.1.1

            How does that page support the “most” assertion?

          2. 2.3.2.1.2

            usinventor.org. The link renders a list of US patents. Is there a link for the corresponding PTAB/District Court proceeding in each case that demonstrates the PTAB the court upheld the validity and the PTAB did not? And if so, how would that establish “most?”

      3. 2.3.3

        [M]ost patents invalidated by the PTAB are upheld in the Article III Court when given the chance.

        May we please know the source for this assertion?

        According to the current case law, the PTO could construe the claims as broadly as possible, limit discovery to 5 pages, prohibit reply briefs, delegate the institution decision to EFF, and hire Mark Cuban to preside over all final written decisions.

        If such a tribunal held a claim unpatentable does that mean the inventor never had a property right?

        Certainly, I agree that—within the bounds of your reductio ad absurdum hypothetical—this would not show that the patentee’s now-defunct claim was always without value. Of course, in a world in which the PTAB actually worked like that, one would not bother to resort to the cockeyed takings argument presently in discussion. One would do better—in that hypothetical world—to bring an “as applied” due process challenge.

        In this world, however, the PTAB is sustained on appeal roughly twice as often as it is reversed (see, Gibson Dunn’s 2017/2018 Federal Circuit Year in Review). In a world in which that state of affairs prevails, it is much harder to conclude that the putative “taking” has value. In any event, the putative value is part an element of the “takings” case, to be proved by the one claiming a taking. Consider me skeptical that more than ~1.5% of patentees who lose a claim in an IPR will be able to make that showing—even at a more-likely-than-not standard.

        1. 2.3.3.1

          Talk about your non-sequiturs:

          In this world, however, the PTAB is sustained on appeal roughly twice as often as it is reversed.

          Unless the issue under discussion were actually at point in ALL of those cases, this “offering of fact” has zero bearing on the present discussion.

      4. 2.3.4

        If such a tribunal held a claim unpatentable does that mean the inventor never had a property right?

        Certainly, I agree that—within the bounds of your hypothetical—this would not show that the patentee’s now-defunct claim was always without value. Of course, in a world in which the PTAB actually worked like that, one would not bother to resort to the goofy takings argument presently in discussion. One would do better—in that hypothetical world—to bring an “as applied” due process challenge.

        In this world, however, the PTAB is sustained on appeal roughly twice as often as it is reversed (see, Gibson Dunn’s 2017/2018 Federal Circuit Year in Review). In a world in which that state of affairs prevails, it is much harder to conclude that the putative “taking” has value. In any event, the putative value is part an element of the “takings” case, to be proved by the one claiming a taking. Consider me skeptical that more than ~1.5% of patentees who lose a claim in an IPR will be able to make that showing—even at a more-likely-than-not standard.

      5. 2.3.5

        If such a tribunal held a claim unpatentable does that mean the inventor never had a property right?

        In a world like you hypothesize, why bother with a goofball takings argument? You would have slam dunk “as applied” due process challenge on those facts.

        1. 2.3.5.1

          Looks like the reality that “Dozens” is my alter ego is made plain here. I invented him to serve as a vehicle to post when things will not post under my own name and e-mail address. I had not bothered to mention that “hey folks, this is just Greg using a different login,” but I dare say that this much was obvious. In any event, if anyone did not realize as much, it really must be obvious now.

          1. 2.3.5.1.1

            You think…?

      6. 2.3.6

        If such a tribunal held a claim unpatentable does that mean the inventor never had a property right?

        In a world like you describe in your hypo, why bother with a goofball takings argument? You would have a slam dunk “as applied” due process challenge on those facts.

        1. 2.3.6.1

          A properly made Takings argument is BOTH:
          1) not a goofball argument, and
          2) critical in order to actually make a due process claim stick.

          The reason is that the properly made Takings argument establishes that the necessary predicates FOR a takings to occur (and NOT merely whether or not a proper level of recompense is in order) are absent. This directly ties to the notion of due process violation.

          On the other hand, if you “think” this is nothing but “goofball’ and that any such takings is proper, then you open yourself to the notion that post-grant nullification only means that no actual property existed in the first place, and then — based on that — there is nothing there TO BE ‘had’ for a due process violation to stick to.

        2. 2.3.6.2

          Because it is merely the agency reconsideration of its decision to grant the patent. Because patents are not property rights, but are revocable franchises. Because as long as the agency follows their own made up rules that is held to be all the due process you get. Welcome to the administrative state.

          1. 2.3.6.2.1

            Excellent Josh – and exactly why a Takings argument is necessary.

            This directly ties to the difference between “Public” and “Private” (notwithstanding ANY “allowance” for the personal property to be merely a subset of personal property of that of a “franchise” – Greg’s “pet” argument – as well as the need [if the patent grant were to be deemed merely a franchise] to incorporate the duties and responsibilities of the Franchisor TO the Franchisee — something our pal Greg likes to ignore).

          2. 2.3.6.2.2

            [W]hy bother with a goofball takings argument?

            Because it is merely the agency reconsideration of its decision to grant the patent.

            Huh? This is a non sequitur. What does the response have to do with the question?

          3. 2.3.6.2.3

            Because patents are not property rights, but are revocable franchises.

            Franchises are personal property rights. In re Estate of Berman, 39 Ill.App.2d 175, 178 (1963) (“Personal property is made up of two categories, tangible and intangible… Intangible personal property is such property as has no intrinsic and marketable value but which is representative or evidence of value, such as certificates of stocks, bonds, promissory notes and franchises,” emphasis added).

            1. 2.3.6.2.3.1

              Another person falls into the “goofy” semantics trap laid out by Greg.

              Hey Greg, maybe take a moment (or dozens of them ) and address the more important distinctions if your attempt to only use a subset of personal property (in the Franchise mode) and talk about duties of a Franchisor to the Franchisee, or the critical distinction between “Public” and “Private.”

              What exactly is “Public Personal Property?”

            2. 2.3.6.2.3.2

              Greg may also want to reflect on the represented items – noting that such things as stocks, bonds, and promissory notes are entirely different in character than patents.

          4. 2.3.6.2.4

            Because as long as the agency follows their own made up rules that is held to be all the due process you get. Welcome to the administrative state.

            I realize that this is a popular talking point on the anti-Oil States side of the debate, but what is the evidence? Where are the really egregious PTAB trials that supposedly prove that the Board is nothing more than a small-fry star chamber?

            The talking point is absurd on its face. As Prof. Crouch has mentioned in his public talks, if you read a bunch of PTAB opinions that hold for obviousness or anticipation, it is hard to find any more than a handful that are really clearly wrong. Like any agency run by humans, the PTAB makes mistakes, but no more seriously or often than do the district courts. The PTAB and district courts are both sustained and reversed at essentially the same rate.

  3. 1

    The Cheung article is utter rubbish – without critical review of the difference between public and private and @$$uming a host of inputs from both questionable sources and questionable interpretations.

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