Patently-O Bits and Bytes by Juvan Bonni

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

  1. 3

    Shockingly, I am in total agreement with Greg on not one but two of his posts on this thread today.

  2. 2

    From Prof. Gomulkiewicz’s celebration of Justice Thomas:

    Justice Clarence Thomas is one of the most recognizable members of the United States Supreme Court… Yet observers have missed one of Justice Thomas’s most significant contributions to the Court—his intellectual property law jurisprudence. Justice Thomas has authored more majority opinions in intellectual property cases than any other Justice in the Roberts Court era and now ranks as one of the most prolific authors of patent law opinions in the history of the Supreme Court…

    Please forgive me if I cannot work up a lot of enthusiasm for a celebration of the justice who gave us eBay, Myriad, &Alice. Prolific, yes, but impactful only in the worst possible way.

    1. 2.1

      Well, considering that he was a “diversity hire” it’s really not that surprising he’s incompetent. If only we appointed strictly on merit.

      1. 2.1.1

        ^^ aka, “How To Be an Arse” by someone who loses all capability of rational thought when Liberal Left propaganda points are introduced.

        Here’s a hint for you, AAA JJ, stick strictly to discussions of patent law items.

      2. 2.1.2

        If only we appointed strictly on merit.

        Ha!

      3. 2.1.3

        I will give Justice Thomas this much credit: he wrote more IP opinions than Justice Kennedy, and yet Kennedy wrote more appalling and egregious clunkers. Justice Thomas’ appalling:total ratio is, therefore, better than Justice Kennedy’s, and likely better than most of his colleagues’. I would not be surprised if Justice Story were the only justice in history with an appalling:total ratio north of 50%.

        1. 2.1.3.1

          Sorry, south of 50%. In other words, for most justices, more than half of the total IP opinions they have authored are trash. I would not be surprised if only Justice Story left the scene having done more to make the U.S. IP system run better than he had done to make it run worse.

    2. 2.2

      I think maybe executioner would be an appropriate term for J. Thomas in regards to patents.

      AAA JJ–you are a neo-Marxist whether you realize it or not.

      1. 2.2.1

        “AAA JJ–you are a neo-Marxist whether you realize it or not.”

        I don’t think a true liberal goes about telling their interlocutors what their positions are for them.

        I think that approach is actually rather strongly associated with the extreme “progressive” left.

        1. 2.2.1.1

          His labels are meaningless. And although he claims to be a liberal Democrat he uses the typical Republikkkan tactic of claiming that those who disagree with them “don’t understand” their own positions because they “don’t think” or “lack critical reasoning skills.” (Lulz) I’ve read a lot of the history of my country. I’m well versed in the history of racism, both institutional and societal, and its effects on our country. Because I don’t believe you can address the inequities caused by 350 years of slavery and apartheid by waving a magic wand and declaring “Ok, we’re a color blind meritocracy now! Yay!” I get labelled with “neo-Marxist” (oooohhhhhhh, so scary!).

          These guys are jokes. They have no proposed solutions. And their attitudes smack of “gee whiz, we’ve done enough for those people already!” (Not a direct quote, but apparently that needs to be explained for the reading comprehension challenged.)

          1. 2.2.1.1.1

            AAA JJ:

            Touch a nerve did I? I am labeling you a neo-Marxist because that is what intellectuals are saying your “woke” movement.

            And as to your “wave a magic wand” bit. As I said, enormous progress has been made and we need to make more progress. But the “woke” movement is not the way to go.

            1. 2.2.1.1.1.1

              Like it or not the “woke” movement is a neo-Marxist movement where race and gender are being substituted for class.

              And those that push the “woke” movement are ideologues for the “woke” movement and are neo-Marxists.

              Those are the labels the intellectuals have given to your movement.

              And I’ve never met more anti-Semitic people than those in the “woke” movement.

        2. 2.2.1.2

          Ben, I am sure your interest is merely to try and come after me.

          But, I am also sure that many intellectuals are saying that the “woke” movement is a neo-Marxist movement and is not helpful.

          Some of us would like to stick to the Enlightenment and not go to a “feelings” world. We like the idea of facts and would like to have a news media again.

          Please don’t try to tell me what a true liberal is. I am sure you have no idea.

          1. 2.2.1.2.1

            I am not trying to “come after you.” My engagement with you should indicate that I think there is some hope that you can be reasoned with, though I’ll admit that recent threads have diminished that hope.

            I think you should ask yourself whether your behavior comports with the philosophy you claim to follow. I do not think telling other people what they believe based on your interpretation of related positions can be reasonable associated with liberal discourse. “If you say X, you must believe in Y, and therefore you aren’t worth talking to” is not liberal thinking. That is just a different framing of your “feelings” world. “I feel that your opinion is bad, so you must believe other bad things. So I win the discussion.”

            1. 2.2.1.2.1.1

              “Reasoned with” is nothing more than a Woke Ben phrase for “agree with my viewpoint.”

            2. 2.2.1.2.1.2

              Ben, I wish I could reason with you and straighten out your warped thinking.

              Nothing I said is about my feelings. It is about the positions expressed and their correct categorization into the “woke” movement and the fact that many of the top intellectuals in the country now classify the “woke” movement as neo-Marxists.

              And it is about the “woke” movement trying to claim the middle left, which is currently occupied by people like me and we don’t want to be disenfranchised.

              1. 2.2.1.2.1.2.1

                Who are these “top intellectuals”? Let’s hear some names.

                1. I confess that I had the same question. I did not ask, because there are only so many minutes in a day that one can give to the inanity of this discussion. I have probably already given the quota, leaving no time to read about these (allegedly) “top intellectuals.” Based on the quality of the discussion so far, I am not expecting to be much impressed by the list of these “top intellectuals,” if it ever arrives.

                2. Yes, we see the YouTube videos cited on the other page. They are precisely as underwhelming as I was expecting.

            3. 2.2.1.2.1.3

              “I think you should ask yourself whether your behavior comports with the philosophy you claim to follow.”

              Right. But instead what you get from these self proclaimed purveyors of “critical reasoning skills” is if you believe that actual efforts should be made to appoint qualified POC and/or women to positions where they have been historically excluded then you are a “neo-Marxist.”

              1. 2.2.1.2.1.3.1

                Efforts should be color-blind.

                If they are not, they are — by definition** — racist.

                **notwithstanding the PC attempt to conveniently change the definition in its 1984-like campaigns.

                1. “Efforts should be color-blind.”

                  Black people were enslaved in this country for 246 years. And second class, at best, citizens under Jim Crow for another 100 years after that. Please explain how we address the inequities that these two racist systems created by “color-blind” efforts.

                2. You treat every case going forward on the merits in a color blind manner.

                  You appear to WANT to be a racy ist in your ‘demand’ to somehow (somewhy) ‘deal with the past.’

                3. “You treat every case going forward on the merits in a color blind manner.”

                  So white people just keep their 346 year head start?

                  Got it.

                  (insert infinite eyeroll emojis here)

                4. “White people”

                  So, yes – YOU are wanting to be racy ist.

                  Maybe you missed what I actually stated:

                  You treat every case going forward on the merits in a color blind manner.

              2. 2.2.1.2.1.3.2

                When the topic is an ISM of race, the George Carlin filter should be re-evaluated.

                (another post snagged)

  3. 1

    “https://www.wcax.com/2021/04/21/patently-confusing-vt-businesswoman-testifies-on-tricky-us-patent-system/”

    The woman who is the focus of the article complains to Pat Leahy about barriers to obtaining patents that are in part due to Leahy’s own legislation. And she implies that these are obstacles faced uniquely by “traditionally underrepresented groups”, rather than, oh, *any* small business owner with a tight budget. And Prevaricating Pat goes along with that – according to the article “he wants to change patent laws to boost accessibility to women and people of color”.

    Translation: let’s give breaks to women and blacks because they have two X chromosomes or have dark skin, because clearly those attributes make the patent system an insurmountable hurdle for them.

    My suggestion: you helped break the system, Pat. How about repairing it for everyone, instead of fixing it (in the sense of “the fix is in”) for a few? You could start with writing 101 out of the statute.

    1. 1.1

      AM,

      I hear you – that article was nothing more than empty virtue signaling.

      I feel so microagressed.

    2. 1.2

      I basically agree with you, Atari Man, about the absurdity of the article’s premise. I am less certain about the wisdom of excising §101 altogether.

      The utility requirement is in §101. Take that away, and we will be granting patents on novel and nonobvious opera scores, or comic books. I think that a utility requirement is a necessary element of a sound patent system.

      I can heartily concur with the idea of statutory reform to §101. Excising it entirely, however, does not seem a good idea.

      1. 1.2.1

        Eliminating 101 may be too much, IPO/AIPLA/ABA have proposed re-writing 101. Regardless, fixing the mess resulting from Alice et al. should be his priority, instead of meaningless pandering. Agree with others that the political capital to do that doesn’t appear to be there.

        1. 1.2.1.1

          Tillis was on his way to updating 101, but then became snarled by donors seeking to insert a Trojan Horses (poison pills) into 100 and 112.

        2. 1.2.1.2

          This would not be sufficient to fix the §101 mess, but part of the solution should be to amend §282(b) along the following lines:

          Defenses.—The following shall be defenses in any action involving the validity or infringement of a patent and shall be pleaded:
          (1) Noninfringement, absence of liability for infringement or unenforceability.
          (2) Invalidity of the patent or any claim in suit on any ground specified in section 102 or section 103part II as a condition for patentability.
          (3) Invalidity of the patent or any claim in suit for failure to comply with—
          (A) any requirement of section 112, except that the failure to disclose the best mode shall not be a basis on which any claim of a patent may be canceled or held invalid or otherwise unenforceable; or
          (B) any requirement of section 184; or
          (C) any requirement of section
          251;
          (4) Any other fact or act made a defense by this title
          .

          You might need to codify ODP to make this work (or not, if you do not really care about ODP as a grounds of invalidity). This would remove §101 as an affirmative defense to be raised in litigation. Once §101 could not longer be a basis for a 12(b) motion, much of the impetus for the judicial distortions of §101 would evaporate.

    3. 1.3

      Talk about speaking out of both sides of your mouth.

      Yes those patents are bad so we need to get them under control. But wait, we need to make it easier for women and people of color to get patents.

      But wait…I’ll say anything as long as it gets me power and/or money.

    4. 1.4

      Leahy couldn’t fix it if he wanted to. The political capital just doesn’t appear to be there.

      1. 1.4.1

        True

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