Patently-O Bits and Bytes by Juvan Bonni

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

  1. 3

    OT a bit, but this case illustrates that the Scotus regularly legislates from the bench in creating “qualified immunity” and they set up a test that was impossible to ever meet. This illustrates that Alice is not an anomaly but the status quo at the Scotus. Here, they have revised the test so that qualified immunity is no longer impossible to overcome.

    link to

    1. 3.1

      Meh, not an area of law that I am familiar with.

      What I AM familiar with is a specific area of law that has Constitutional sanction for ONE particular branch of the government to write.

      1. 3.1.1

        See that is why I can predict their behavior better than you can.

        You have to look at the patterns. The Scotus acts as if they are the backup judiciary to write laws that they think the Congress should have written.



          Predicting their behavior is painfully easy: which position weakens patent rights the most?

          As I have already put to you, the better path is to discuss why the correct position (often NOT chosen) IS the better position.

          It’s the Rule of Law versus the Rule of Men divide.

    2. 3.2

      About the same time that SCOTUS pulled QI out of their rect#ms by “legislating from the bench” they also gutted the 4th Amendment in Terry v. Ohio by pulling “reasonable suspicion” out of thin air. So yeah, they have a history of it.

      1. 3.2.1

        Hmm, appears to be lots of penumbras out there…

        At least in patent law, Congress could exercise its own Constitutional authority to employ jurisdiction stripping and remove the non-original jurisdiction of patent cases from the Supreme Court.

      2. 3.2.2

        Actually, if people wanted to understand some of the excess of the police then QI and “reasonable suspicion” have gone a long way to empower police to do lots of things they shouldn’t.

        QI was basically impossible to break through.

        Amazing how detached people are from the reality of what strings are pulled to change things.

  2. 2

    >>Patrick J. Sobkowski: A Matter of ‘Principal’: A Critique of the Federal Circuit’s Decision in Arthrex V. Smith & Nephew, Inc. (Source: SSRN)

    This is kind of silly isn’t it? We are going to get a decision in June from the Scotus so what is the point of reading this or writing it?

      1. 2.2.1

        Meh. Not much new there. It is interesting that Lemley is on the front to burn down copyright too. And that 99+ years is excessive.

  3. 1

    anon, calling me “late to the game” is ludicrous. I predicted and saw Alice coming 20 years ago. I argued with the author of Benson before any of the 101 cases and predicted that 101 was going to be used to cripple patents. I wrote a paper about it. Frankly, knowing R. Stern and his contacts and understanding the line of 101 cases made it a fairly easy prediction. But I was laughed at by several well-known professors when I told them that the Scotus would revise Benson. And this was before the start of this blog.

    You get the “+1 trillion” because anyone that cites Flook the way J. Doeere does needs a strong putdown. Anyone that cites Flook as J. Doerre did has a long, long hill to climb to ever become respectable again.

    1. 1.1

      Read the post Night Writer.

      I was not calling YOU ‘late to the game.’

      That reference was to Paul.

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