Inventorship Challenges vs Invalidity Challenge — and Certifying Questions for Appeal

Heat Technologies, Inc. v. Papierfabrik August Koehler SE (Fed. Cir. 2019)

This case involves an unusual bit of appellate procedure regarding certifying questions for appeal under 28 U.S.C. 1292(b). 

Back in 2018, Heat Tech sued Koehler Paper in N.D. Georgia federal court requesting correction of inventorship under 35 U.S.C. § 256 as well as damages for unjust enrichment and conversion under Georgia state law. U.S. Patent No. 9,851,146.  The basic background of the lawsuit was that Heat Tech’s president (Plavnik) invented the paper-drying mechanism that was then disclosed to Koehler as part of a collaboration evaluation.  In addition, Heat Tech argued that almost all of the information disclosed in Koehler’s patent was included in a prior Heat Tech patent application.

At the district court, Koehler filed a motion to dismiss the case — arguing that Heat Tech’s actual claim is for invalidity and that an inventorship-correction lawsuit is not appropriate when the same alleged facts would invalidate the patent for lack of novelty or obviousness.  The district court denied the motion to dismiss, but agreed to certify the question for appeal to the Federal Circuit — noting some disagreement among the courts on the state of the law.

Question certified by the district court:

Can a claimant obtain relief under 35 U.S.C. § 256 when its inventorship allegations, if taken or proven as true, would necessarily invalidate the subject patent under other provisions of the Patent Act?

= = =

The usual rule is that appellate jurisdiction follows final judgment by a district court. In a motion-to-dismiss situation, the case can be appealed if dismissal is granted — but not if dismissal is denied (because the case will still be pending at the district court).  There are several exceptions, including mandamus actions and appeals of preliminary injunction decisions another exception involves certification of an appeal under Section 1292:

(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.

The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order.

In reviewing the statute, the Federal Circuit identifies three key requirements for hearing an interlocutory appeal under 1292(b):

  1. The appeal must involve “a controlling question of law.”
  2. There must be “substantial ground for difference of opinion.”
  3. An immediate appeal “may materially advance the ultimate termination of the litigation.”

Further, even when all three elements are met, the appellate court still has discretion to decide whether to permit the appeal.

On appeal now, the Federal Circuit HeatTechDecisionhas denied the 1292(b) petition and effectively indicated that the district court’s decision was correct.  In particular, the appellate panel found no “substantial ground for disagreement” because Section 256 jurisdiction “does not depend on whether the patent may be shown to be invalid.”  Slip op.  The appellate panel noted its lack of prior precedent directly and expressly on-point, but concluded that prior cases compel the answer. For example, in Frank’s Casing Crew & Rental Tools, Inc. v. PMR Techs., Ltd., 292 F.3d 1363, 1377 (Fed. Cir. 2002), the court wrote that an inventorship action could be maintained for an unenforceable patent.

65 thoughts on “Inventorship Challenges vs Invalidity Challenge — and Certifying Questions for Appeal

  1. 9

    Greg >>>Greg, you are just making things up.

    Below I give a couple of examples of references to any person skilled in the art or a person of ordinary skill in the art. You do nothing but make things up that this person never see as relevant to the claim language. You and your group fabricate nonsense. A functional term to this person encompasses all known solutions in view of the specification. This person (which includes me) has no problem understanding the boundaries of the claim. Your group claims things aren’t clear and you make up new terms and claim there is no structure when the person reference below (which includes me) knows exactly the structure that is included in the claim scope and finds no ambiguity.

    And you have no cite to support your outlandish nonsense.

    112: to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same

    Phillips v. AWH Corp., 415 F. 3d 1303: It is the person of ordinary skill in the field of the invention through whose eyes the claims are construed. Such person is deemed to read the words used in the patent documents with an understanding of their meaning in the field, and to have knowledge of any special meaning and usage in the field. The inventor’s words that are used to describe the invention—the inventor’s lexicography —must be understood and interpreted by the court as they would be understood and interpreted by a person in that field of technology. Thus the court starts the decisionmaking process by reviewing the same resources as would that person, viz., the patent specification and the prosecution history.

    1. 9.1

      What you and your group do Greg is fabricate these bizarre tales of what claims could mean to someone completely ignorant of science and technology. The issue is as the cites above state is how that person would view the claims. And I am one of those people with degrees from top colleges in the USA. I know and everyone I’ve ever worked with knows exactly the bounds of the claims.

      You fabricate nonsense.

      1. 9.1.1

        I am one of those people with degrees from top colleges in the USA.

        ROTFLMAO

      2. 9.1.2

        I am one of those people with degrees from top colleges in the USA.

        Oh dear. Do you really want an academic d–k measuring contest? Very well, then. Let’s whip them out and measure.

        Here’s mine. Now you. Let’s see it, so that everyone can see for themselves whose is grander, more impressive and prestigious.

        1. 9.1.2.1

          So Greg this is your way of avoiding the substance of my post?

          1. 9.1.2.1.1

            I answered the substance of your post.

            1. 9.1.2.1.1.1

              Night Writer >>Someone like me that is a person skilled in the art knows the set of solutions.
              Greg >>>Good. In that case it should be small work for you to set them out in the application text, so that the regulated public can easily see that this “know[n]… set of solutions” is contemplated as part of the invention.

              The embodiments and all the structure is already in the specifications. What you are asking for is inclusion of 1,000’s of pages going through all the course work we have gone through. To those of us skilled in the art we have no problem understanding what is included and what isn’t. We have no problem rattling off 100 different ways the problem could be solved. That is what we spent years learning to do.

              Again–what you are asking is for a tutorial in each patent application that would be 1,000’s of pages long.

              1. 9.1.2.1.1.1.1

                The embodiments and all the structure is already in the specifications.

                But is it? You are begging the question here. Is the structure in the specification? What is the structure that makes X happen in a “processor configured to [X]”?

                The structure that makes X happen is the code, no? So, is the code in the specification? Sometimes, yes, which is why I am inclined to say that some (I estimate ~1% or ~2%, although this is very much more of an intuition or guess than a figure rigorously measured and calculated, and I will cheerfully cede way to anyone who has actually done the census and cares to show their work) software patents are §112-compliant. Most, however, do not include the code, which is as much as to say that they have not actually disclosed the structure.

                Instead, most software patents rely on the idea that “one skilled in the art knows how to make the structure already, so we do not need to tell him or her.” This is fine for enablement, but it does not rely satisfy the description requirement that is also found in §112. Just as my telephone claim is enabled by a specification that does not describe the claimed invention, so too many software patents enable their claims, but still fall short on the describe and particularly claim requirements from §112.

                What you are asking for is inclusion of 1,000’s of pages…

                Quite possibly. What of it? Sometimes it takes thousands of pages to support a claim adequately. If it takes thousands of pages, then it takes thousands of pages. That is why they pay us the big bucks, as they say.

                To those of us skilled in the art we have no problem understanding what is included and what isn’t.

                O.k., but here is the problem, you see. The PHOSITA and the PSITA are not the same person. While the PHOSITA is a single, legal fiction (there is only one PHOSITA, and she does not actually exist), there are a plurality real-live PSITAs running around in this world.

                Compliance with §112 is measured from the PSITA’s viewpoint, not the PHOSITA’s. Therefore, when you say that “we [PSITAs] have no problem understanding what is included and what isn’t,” you are speaking for people for whom you have no right to speak.

                Some Scotsmen like marmite, and some do not. No single Scotsman has the right to speak for all Scotsmen and say “we all like marmite.” So too, no single PSITA or collection of PSITAs in the same workplace have the right to say “all PSITAs agree on the scope of these claims.”

                So, what is a court to do? The PSITA’s perspective is a question of fact, and different PSITAs have different perspectives.

                Well, if the patentee actually sets out the structure of his or her invention plainly in the claims, then there is an objective means by which the trier of fact can compare the accused infringing structure and decide whether it is essentially the same structure as the patentee invented. When, however, the patentee simply says “a processor configured to [X]” there is no good way for the trier of fact to know—as between the PSITA who testifies that the defendant’s product is the same structure as the patentee invented, and the PSITA who testifies that it is not the same structure—who is correct. In other words, functional claiming is indefinite claiming.

                There is a way around this, of course. From a legal point of view, that situation where the claim merely recites “a processor configured to [X]” can be resolved as sufficiently clear when the limitation is construed under §112(f) and the structural comparison is made between the infringing product and the structures disclosed in the spec. Where there is no actual structure (i.e. code) disclosed, then there is nothing to be done but to tank the claims as indefinite.*

                * The currently controlling legal standard is that code is not required, but a complete algorithm is. This seems wrong to me, but not so wrong as to make a big fuss. Now that precedent has built up that allows for mere algorithms without code, it is probably best just to keep on going with that standard, even though code is the more logically sound basic structure whose disclosure should be required.

                1. “Where in the world did you learn this version of patent law?”

                  A well-reasoned, complete, convincing rebuttal. Good job, Blue anon!!

                2. Exactly. Why in the world would NW allege he is an expert in the art to mansplain to us what would be understood by a person having ordinary skill, which is not an expert in the art by definition? Just curious.

                3. To pick a nit, “she does not actually exist” is so 90’s. I am told we are in the non-binary world now.

                4. My shifty historical pseudonym friend:

                  (Try to keep up – on the most current thread I provided a link to the direct rebuttal of Greg’s first “floating” of this nonsense that 112 PHOSITA is somehow a “real person.”

                  As for your “mansplaning” C R P, what the F has that pc stuff have to do with anything?

                5. Yeah, I know about your “direct rebuttal” my shiftless snowflake friend. That’s why I asked the question. Try to keep up.

                6. You are mixing your ISMs and you ask because I gave the answer…?

                  As usual, your “contributions” are of the utmost value…


            2. 9.1.2.1.1.2

              I just saw that. I am out of responses on that thread. I respond to you below.

              You repeat yourself where you are saying that to you a layman you don’t understand the boundaries or the solutions. But the person of ordinary skill does–I do. And again what you are asking for is not possible. And not needed. People of ordinary skill know these things.

              (And I agree there should be a WD in 112. This does not change my analysis other than to say that people like Taranto have gone after the WD to try and limit patents.)

              1. 9.1.2.1.1.2.1

                I just saw that.

                A person of good character might have taken the trouble to acknowledge that he had just wrongfully accused an interlocutor of “avoiding the substance of [a] post.” That would be the sort of honesty and integrity that bespeaks good character. But “you do you,” as they say…

                1. Says the one who snipes from the sidelines….

                  How IS that shards of glass remnant of a house that you live in, Greg?

        2. 9.1.2.2

          And obviously I said that to show that I am qualified to discuss how a person of ordinary skill or anyone skilled in the art would view the claims.

          Obviously that was my intent. Seriously Greg you need to work on your character.

          1. 9.1.2.2.1

            I said that to show that I am qualified to discuss how a person of ordinary skill or anyone skilled in the art would view the claims.

            But you did not show any such thing. You said that you have the requisite education and experience to speak knowledgeably to these matters, but saying is not showing. Not to put to fine a point on it, but I do not believe that you have a “degree[] from top colleges in the USA.”

            This is nothing personal. It is just that no person of character takes the unsubstantiated assertions of anonymous internet participants as true. If you are going to appeal to the authority of your own expertise to carry your point, then you must first lay the evidentiary basis for this putative expertise. You have not yet done so.

            1. 9.1.2.2.1.1

              I agree with you here Greg that Night Writer has fallen into the trap of relying on information that requires a surrender of anonymity.

              As you are no doubt (at least partially) aware, the CHOICE of using one’s real name may well come with consequences. But ALSO, merely choosing to use one’s real name — as if that alone “vouches” or adds credibility to the actual words used in advocating on this forum IS a fallacy: the fallacy of borrowed authority.

              So much, like your own “borrowed authority” which might lend some credence to possible views of yours that align with Big Pharma, that same “borrowed authority” actually REMOVES credibility from you when you want to pontificate on other Art fields (such as, for example, the computing Arts). You have made the choice to provide an evidentiary basis for a putative LACK of expertise on this subject matter, and it would behoove YOU to know your own limitations, and quite frankly, not to speak out of your @$$ on what 112 entails for Persons Having Ordinary Skill In The Art of computing innovation.

            2. 9.1.2.2.1.2

              To be very fair, I suppose that if it is fair to say that you have not laid an evidentiary foundation for a claim of expertise here, neither have I. As it stands, this conversation is just two know-nothings flapping our gums.

              If I had to think of some regular in these parts who has laid an evidentiary foundation for an assertion of expertise, it would be Martin Snyder.

              * Top college in the U.S.? Check (Cornell).
              * Years of experience with the industry? Check (23 years in a variety of engineering and management posts in a handful of software companies).
              * Recognized leadership in the field? Check (panelist on various industry fora).

              Shall we appeal to Martin to intervene an adjudicate (from a properly expert perspective) the dispute between us?

              1. 9.1.2.2.1.2.1

                Marty?

                What a Fn joke, ad Marty has NEVER provided that he understands the legal side of the equation AND has often gotten the technical side plainly wrong.

                Marty has NO business advocating, or overseeing ANY type of dispute resolution here.

                The fact that you want to pick him is even more a denigration of your credibility Greg (if that were possible).

        3. 9.1.2.3

          BA – LOL!

          Roflpwnt already.

    2. 9.2

      Greg >>>To note that a “processor configured to [X]” is not compliant with § 112(a) or (b) is not the same as to require a precise account of particles and wave forms.

      Who notes that Greg? You fabricate nonsense that has no basis in patent law, science, engineering, or common sense. You and your group just make things up. No one skilled in the art would say the ridiculous things you say.

      Again, those skilled in the art understand the set of solutions that are enabled in view of the specification with functional claiming. There is no problem other than the one the likes of you and Lemley have fabricated.

      1. 9.2.1

        Greg >>>To note that a “processor configured to [X]” is not compliant with § 112(a) or (b) is not the same as to require a precise account of particles and wave forms.those skilled in the art understand the set of solutions that are enabled

        Night Wiper: those skilled in the art understand the set of solutions that are enabled

        So… how big is that set of “processors”? Does it include all currently existing operating systems, including those running other programs? Are all coding possibilities enabled? Or just the bug-free possibilities?

        These are rhetorical questions far above Night Wiper’s pay grade. But they are important questions of the sort that should have been answered a couple decades ago, assuming that our patent system was a remotely sane one. But it’s not. Hey, here’s an idea! Let’s expand the system to include even MORE junk that the PTO is incapable of examining properly.

        1. 9.2.1.1

          … because of how you FEEL about a particular type of innovation? The type MOST accessible to the non-wealthy? Funny how you never seem able to explain THAT dichotomy….

          That cognitive dissonance of yours is on display yet again.

          1. 9.2.1.1.1

            The type MOST accessible to the non-wealthy

            The type of innovation “most accessible to the non-wealthy” is definitely not software writing, Bildo. And we’ve already been over this probably a dozen times, you endlessly dissembling d–bf—k.

            1. 9.2.1.1.1.1

              And we’ve already been over this probably a dozen times,

              That odd cognitive dissonance of yours is kicking in again. You have not once — ever — explained the dichotomy as I have put it to you (and sorry, Malcolm, but you are quite wrong about what form of innovation is the most accessible to the non-wealthy; that is not up for debate).

          2. 9.2.1.1.2

            how you FEEL

            More accurately, it’s how pretty much every informed person feels.

            Logic applied to data has been ineligible for patenting since forever, and computers are nothing more than tools for carrying out that logic more quickly (allowing for increases in speed, and scaling up).

            The only exceptions to the general rule are self-dealers, and a minority of patent attorneys who are also motivated by self-interest. Sure, there’s that class of bumblers like Dennis who mumble about the “good” kind of logic that should beleligible (as opposed to the “other” kind) without ever providing any details for modifying the system accordingly and effectively.

            But by and large most people don’t want logic to be eligible for patenting and they never have wanted it. It’s just a f—king id-I-0-tic thing to do, for all kinds of great reasons, many of which are published by the PTO every Tuesday and every Thursday.

            1. 9.2.1.1.2.1

              Yet again you are wrong – in the computing arts, soft ware is merely a design choice among several wares.

              THAT is what an informed person would tell you.

              1. 9.2.1.1.2.1.1

                soft ware is merely a design choice among several wares.

                This statement — which is not even true once you scratch below the surface — is a total non-sequitur, you repugnant derpshert.

                1. Ah yes, the mindless Malcolm Derp Dance reply.

                  Sorry that reality does not agree with your feelings there Malcolm.

                  No, wait.

                  I am not sorry.

        2. 9.2.1.2

          MM, it is a big finite set where we understand the boundary. The fact that there is a large number of solutions is not material. Besides I believe in your art field that there are the same number of possible molecules that can hang off of other molecules that you claim and yet you think that is OK. When in reality a claim to a molecule is actually a claim to an almost infinite number of different molecular structures.

          1. 9.2.1.2.1

            [Y]ou think that is OK… [w]hen… a claim to a molecule is actually a claim to an almost infinite number of different molecular structures.

            Two points:

            1) There is only one U.S. patent law, and it is the same for pharmaceutical claims as for software claims. When a pharma patent recites “… and a permeation enhancer,” this should be construed to read on the compounds disclosed in the spec as able to enhance permeation, as well as art-recognized equivalents—no more, no less. If the patentee could not be troubled to disclose any such compounds, that is her own fault and her own loss.

            2) No objects to claims that read on a large number of individual embodiments—so long as those embodiments are identified structurally. A structural genus that embraces 10,000 species is unproblematic from either a statutory or policy perspective. A functional genus that embraces only a dozen species is problematic from both statutory and policy perspectives, unless such species are carefully described in the spec.

            1. 9.2.1.2.1.1

              1) There is only one U.S. patent law, and it is the same for pharmaceutical claims as for software claims

              And here Greg delves into his own version of “If you want to indulge a fallacy of equivocation,” – as the idea of ONE patent law may be correct, that ONE patent law STILL applies 112 (ALL of 112) on a distinct “Person Having Ordinary Skill In The Art” notion.

              Greg — still — wants to operate blindly as to the differences IN THE ART and wants to apply how Pharma treats things as being the only correct way to treat ALL Arts.

              It just is not so.

              His plea at 2) is NOTHING MORE than the vapid Malcolm-like attempt to make one optional claim format somehow NOT be optional.

              As I have dispatched Malcolm’s nonsense in multiple ways (including pointing out that ANY software type claim COULD BE written in “objective physical form” in the likes of hundreds of pages of human-incomprehensible physical structure recitations), what we see here from Greg is pure inte11ectual DIShonesty (and an overwhelming does of “my prescription glasses work for me, so why don’t you were them too”).

              There is a very good reason why Greg should NOT engage in discussions of topics that he is NOT informed about (hint: there is an ethical component here).

              Some may well see the types of postings that go on here as legal advocacy, and as Greg himself has wondered (see link to patentlyo.com ) venturing into using one’s real name (for an appeal to authority or otherwise) may well trigger very real ethical considerations.

              Any of the regulars here may also realize that I pointed this out way back when in discussions with the late Ned Heller, as to HIS failure to engage conversations fully. It was quite clear that Ned was engaging this platform as a form of advocacy, and could not (or would not) engage fully because to do so would mean that he would have to admit error in the active cases that he was involved with.

              As I have also noted, this is one reason why I believe that the Rules of posting on this blog (once easily obtained, now not so much) included the express rule that only personal opinions were permitted. Of course, any particular poster may choose to violate that rule, and such violation MAY WELL impart real ethical consequences. I will grant that I have never seen anyone take “blogging” in the manner done here to that level, but there HAS BEEN a State ethics board finding AGAINST an anonymous (even) blogger for blogging on his own active cases.

              The bottom line to Greg’s last paragraph is that the necessary level of “carefully describing” is very much a function of the particular art unit, and as a purely factual matter, the computing arts and the pharma arts simply have different levels of what that “careful describing” entails.

              To pretend – as Greg does here – that BOTH require the same level is an egregious error of both law and fact. One that Greg being advised of, should restrain him from committing that error on any ongoing basis.

            2. 9.2.1.2.1.2

              No objects to claims that read…

              Er, “No one objects to claims that read… .” Mea culpa.

  2. 8

    The Bits and Bytes thread is being suppressed (even more than usual) as even my grey-toned moniker has been “Count-filtered” at two posts.

    Greg, DRJlaw and the like are simply out of their minds trying to argue things that they simply do not understand the background of.

    Here are two posts that I have salvaged (even as others were not salvageable);

    DRJlaw

    How odd your response in thinking that my statement is a concession of any point that supports your views.

    You continue the fallacy even as you state that I have made a point, pointing out YOUR fa11acy.

    Now, if you want to get into a discussion of printed matter, you notably must also “concede” the exceptions to the judicial doctrine of printed matter.

    You mantra of “it’s just automation” is a false siren song.

    See also, the Grand Hall experiment that provides the reality that a machine changed and configured differently with different software is exactly the type of thing that patent law was written to protect (patent law as written by Congress, rather than the broken scoreboard of Common Law law writing from the Court).

    Sorry, but your KSR argument does NOT hold because while the mechanism may be similar, the actual effects – the actual configurations – ARE different, as witness the fact that different software can do radically different things (go ahead and reformat your hard drive with a Britney Spear CD to understand that).

    I don’t particularly care whether you consider Greg and I to have knowledge of the matter

    You should – speaking about things that you don’t understand just won’t end up well for you.

    data processing inventions are generally unpatentable

    What do you mean “generally?”

    and there are no realistic legislative attempts to change that state of affairs

    Wow are you in denial – did you happen to sleep through the Tillis Congressional hearings?

    We merely need to convince enough people to oppose you.

    LOL – now why would you want to do that?

    As for Stevens, I argue against him directly from his writings on patent law. Whether or not he was a WWII cryptographer is NOT reflected in his PHILOSOPHICALLY driven patent law writing.

    By the way, I know more than just a little about cryptography, and my father as well was a post-WWII cryptographer. Your “appeal to authority” falls more than just a little flat here. Of course, if YOU had bothered to actually try to have knowledge yourself of this area, then YOU might have been able to avoid the logical fallacy of appeal to authority. As it is, you only show your lack of understanding.


    Additionally (well, let’s see if this is snagged in the count filter),

    Your two Patently-O links show yet again that you should try to understand that which you want to pontificate about.

    The first is a classic fallacy proposed by Prof. Collins, who quite possibly understands less than you do, and the second has many comments — by me — that would set you straight had you bothered at all to attempt to understand the subject matter here.

    1. 8.1

      Not even close to a count filter, and a substantive post (quoting a dissent in part by Judge Plager, on a case provided by DRJlaw) is blocked — with no “George Carlin” words anywhere near the scene….

      Editing controls are out of whack.

    2. 8.2

      the actual configurations – ARE different

      In every other art, the “actual configurations” are recited in the claim (directly, or indirectly by invoking 112) and at least one description of an “actual configuration” that distinguishes itself from the prior art is required as of the priority date or you haven’t shown possession as of that date.

      Distinguishing the prior art solely by the result achieved is a judicially created exception to the patent laws. That exception was created mainly by a disgraced judge (Judge Rader) and his mentor (Giles Rich) who was a patent-huffing narcissist and also apparently ment@lly ill when he drafted the patent statute.

      1. 8.2.1

        when he drafted the patent statute.

        Your admission, as cloudy as it is, is noted.

  3. 7

    Considering the long judicial history expressed in early USSC and Riding Circuit opinions related to the correct/true inventor principle (rooted in early English law) and the related implicit mandate in the Constitution, inventorship questions are extremely important; an improperly obtained patent because of a false inventor designation in the patent application is invalid ab initio and such inventorship correct action should be pursued under state fraud laws; under federal law, a inventorship correction action can be filed at any time (even after the issuance of the patent) and can be maintained irrespective of an otherwise declared invalid patent; it is also important to note that the Patent Act does not have a statute of limitations associated with the filing of an inventorship correction claim!

    1. 7.1

      With the AIA, that invalid an initio was changed.

  4. 6

    Remind me again: this Perznit who is encouraging his imbecile white supremacist followers to attack brown-skinned Congresspeople as non-Americans is the leader of which political party? And it’s the same party that Big Jeans and most of his imbecile patent maximalist followers will vote for down the line? The same patent maximalists who are trained to screech “ANTI-PATENT!” and “ANTI-TECH!” and “LEAVE THE COUNTRY!” at anyone who disagrees with them about the mindless expansion of U.S. patent rights? And we’re supposed to believe this is a coincidence because …?

    1. 6.1

      Your political — and non-patent law one-bucketing — rant is noted.

    2. 6.2

      Why do we have non-americans in the congress critters?

  5. 5

    Dennis, you have a couple commenters here suggesting that legal reasoning (which certainly includes correlating one fact with another) is a “Useful Art” and should be eligible for patenting.

    Care to share your opinion on that subject?

    Of course you don’t. The people who pay for this site wouldn’t like that.

    1. 5.1

      couple commenters here suggesting that legal reasoning

      Couple…?

      I know of only one: Night Writer.

      Are you doing that one-bucketing thing of yours again?

      1. 5.1.1

        I know of only one: Night Wiper

        Great!

        So you disagree with Night Wiper, and (along with everyone else) you agree that the “Useful Arts” does not include legal reasoning. Good to know, Bildo! Thanks for the admission. It will come in handy next time you try to rehabilitate Night Wiper after he fills his diapers in front of everybody and smears the contents all over this blog.

  6. 4

    Hmmmm….

    The appeal must involve “a controlling question of law.”

    There must be “substantial ground for difference of opinion.”

    An immediate appeal “may materially advance the ultimate termination of the litigation.”

    Apparently they should just send every 101 motion up for interlocutory appeal. Actually, they should.

    1. 4.1

      They should.

  7. 3

    Is it too early to start placing bets on which prominent patent attorneys are going to get caught up in the Epstein scandal? Lots and lots of names are going to be dropped. I seem to recall some brilliant patent maximalist types going to Florida to set up their little self-dealing enterprise where the “little people” wouldn’t be able to interfere. Gotta patent those correlations, after all! And the medical databases. Once that’s figured out, time to go shag some nice young thing. All in a day’s work for the Masters of the Universe.

    1. 3.1

      Another person involved with litigation against Epstein told me: “It’s going to be staggering, the amount of names. It’s going to be contagion numbers.”

      Fun! Thank goodness the patent maximalist community isn’t filled to the brim with the kind of super-entitled self-absorbed hypocrites who like to grift and waste money more than anything else in the world.

    2. 3.2

      Maybe these will come out sooner in that “book” that you have been threatening to publish…

      Or was that merely more of your very special “Internet Tough Guy” schlock….?

    3. 3.3

      “Once that’s figured out, time to go shag some nice young thing. All in a day’s work for the Masters of the Universe.”

      How do I get in on this He-man gig?

  8. 2

    Hey, Dennis and Jason, I’m sure you’ve thought a lot about this given your home states but can I patent a method of using artificial intelligence to round up fake American people and send them back to their true home countries? I figure the “detect the brown person” part is pretty easy and not inventive but there are surely some other signs that are equally important.

    Seems like it would be an extremely useful tool for, oh, about 30% of the country. You know which part of the country I’m referring to, right? It’s that super d00per important part that we musn’t ever criticize or dare to call r-@-c-ist, no matter what they say or do. You two are probably surrounded by those people. It must be awesome to be there in the midst of all that very serious and thoughtful discourse about the inherent superiority of white people (especially white men!), the proper servient roles of women and girls, the supreme moral virtues of unfettered capitalism, etc.

    I’m so glad that none of that stuff is related in any way to a Republican Congress poised to hand over the patent system to private interests so they can own “useful” logic and information (or maybe just medical information, because what could go wrong?)! It would be so imprudent to even suggest such a thing, or try to connect those dots. Definitely not something that a tenured academic should try to do.

    ROTFLMAO

    1. 2.1

      “but can I patent a method of using artificial intelligence to round up fake American people and send them back to their true home countries?”

      Usually have to use actual people to do the rounding up. If you have a way of just using AI to do that part I would like to see it patented.

      ” It must be awesome to be there in the midst of all that very serious and thoughtful discourse about the inherent superiority of white people, the proper servient roles of women and girls, the supreme moral virtues of unfettered capitalism, etc. ”

      I’m pretty sure that at their school it is quite literally very serious and boisterous not very thoughtful discourse about the inherent superiority of non-white people. Along with the proper dominant roles of whamen.
      Though probably with some good stuff about capitalism. All unironically.

  9. 1

    Just curious…

    The district court denied the motion to dismiss, but agreed to certify the question for appeal to the Federal Circuit — noting some disagreement among the courts on the state of the law.

    What was the disagreement among the courts on the state of the law? Was it merely a lack of express holding?

    1. 1.1

      Hey, Bildo: is legal reasoning a “Useful Art” as that term is understood in the US patent system?

      You like to pretend to be an expert on the subject and Dennis really loves your scrotactic style so I just thought I’d ask. Oh

      1. 1.1.1

        is legal reasoning a “Useful Art” as that term is understood in the US patent system?

        Can you rephrase the question so that it is pertinent to the issue at hand?

        as is, your question sounds in “What color did you hear when you saw the train go by?”

        (maybe be less quick to try to play “gotcha” and spend a little more time thinking)

        1. 1.1.1.1

          Shorter Bildo: “I don’t answer obvios and direct questions based on comments I have made in public. I just like to s—k my own d–k. Look at me!”

          1. 1.1.1.1.1

            Your question was neither obvious nor direct – clearly.

            Are you having difficulty actually doing something intelligent, or s your desire and feelings to Tr011 simply beyond your very limited self-control?

            As to “ I just like to s—k my own d–k. Look at me!”” – yet more attempts from you to add to your record level of ex pungments for inappropriate posts…

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