The Public Private Nature of Patents

Patent law is a quirky mix of private and public law.  Individual inventors and their assigns are granted private property rights and the freedom-of-contract to license those rights as they see fit.  But, patents are designed to serve a public purpose, and  the courts have occasionally struck-down private agreements that go too-far — especially agreements that frustrate the invalidation or cancellation of wrongfully issued patents.

In Kannuu Pty Ltd., v. Samsung Electronics Co., Ltd. (Fed. Cir. 2021), the question on appeal is whether an agreement between parties can enforceably prohibit the filing of an Inter Partes Review (IPR) petition.   In the case, Kannuu and Samsung entered into an NDA that included a forum selection clause — choosing NYC Courts (Federal or State) as the sole arena for litigating actions or proceedings relating to the agreement.  Kannuu shared substantial information about its patent porfolio.  Samsung decided not to pursue any license agreement but did (allegedly) adopt the  disclosed navigation/search functionality Samsung Smart TVs.

Kannuu then sued (6 years later) after several of its patents had issued in NYC Federal Court. In response, Samsung filed a batch of IPR petitions. The PTAB granted 2 of 5.  Although Kannuu raised the forum-selection argument to the PTAB, the PTAB did “declined to consider the merits of whether the FSC barred Samsung’s petitions.” Kannuu brief.  Back in court, the district court refused to issue an  anti-IPR injunction — holding that the forum selection clause did not exclude IPR filings. The preliminary injunction denial is now on appeal with two basic questions:

  1. Do the terms of this particular forum-selection-clause prohibit Samsung from filing the IPR.
  2. If so, is the forum-selection-clause unenforceable as a violation of public policy favoring patent challenges.

Law professors have gotten involved in the appeal with Kannuu being represented by Prof. Ted Sichelmann (USD) and competing amicus briefs filed on each side:

  • Kannuu Appellant Brief.
  • Kannuu Appellee Brief.
  • Kannuu Prof Amicus Supporting Kannuu. Prof. Adam Mossoff (George Mason) & Matthew Dowd is representing a group of law professors supporting Kannuu’s position. These include Profs. Jonathan Barnett (USC); Richard Epstein (NYU/UChicago); Jay Kesan (Illinois); Adam Mossoff (George Mason); and Kristen Osenga (Richmond).
  • Kannuu Prof Amicus Supporting Samsung. Stanford’s IP Clinic (Phillip Malone) has filed a brief supporting Samsung’s position on behalf of a group of law professors.  These include Profs. Margo Bagley (Emory); Jeremy Bock (Tulane); Dan Burk (UCIrvine); Michael Carrier (Rutgers); Rochelle Dreyfuss (NYU); Samuel Ernst (GGU); William Gallagher (GGU); Shubha Ghosh (Syracuse); Leah Chan Grinvald (Suffolk); Erik Hovenkamp (USC); Mark Lemley (Stanford); Orly Lobel (USC); Brian Love (SCU); Stephen McJohn (Suffolk); Michael Meurer (BU); Shawn Miller (USD); Tyler Ochoa (SCU); Christopher Turoski (Minnesota).

= = = =

Here, I expect that the Federal Circuit will duck the question of general public policy and instead affirm the narrow interpretation of the forum-selection clause.

= = = =

The IPR proceedings continue to more forward. These were instituted in September 2020 and so we can expect a that the final written decision will be issued September 2021.   The Federal Circuit has ordered an expedited appeal with oral arguments planned for July 2021.

53 thoughts on “The Public Private Nature of Patents

  1. 6

    I had several things that I would interject in anon’s/AAA’s convo below as AAA seems to have finally got to the meat of the leftist matter in his posting. Not enough progress for progs (though arguably plenty of progress for quite a lot of black and brown people). In other words leftists that thought, 60 years ago, that a racial utopia was going to break out after civil rights laws, and adherence thereto, were achieved are suffering extreme disillusionment. Disillusionment with the notion which was expressed by civil rights leaders 60 years ago that if only things could be made color blind, and have that actually achieved (which it more or less has been) that black people could like handle the “rest of it” and racial equality would break out (this being noted in one of NWPA’s vids). Obviously that didn’t work out, so they think more has to be done. In order to justify this, they turn to the widely discredited (even as of 30 years ago) CRT, a branch of critical legal theory (also widely discredited even 30 years ago). A theory which, sorta kinda maybe makes half sense if you look at it upside down and through an ivory tower lens from a certain point of view. A theory which, among other things thinks that structural/institutional/legal structures and their effects are a major, if not the major, factor in racial disparities in various life outcomes that leftists are big on “equalizing”. This is almost certainly not true, as that is almost surely but one of several factors, though it could be somewhat of a largish one. However even that would require proving which is unlikely to ever happen save by leftists who are just justifying their own ideology.

    AAA, further the CRT/leftist folks have been changing lots of policies/laws that liberals want in place. Overall, they are trying to teach diversity equity and inclusion to replace equality (that’s a biggie) in schools to kids. Right now they’re trying to spread the same through the federal gubmit on the federal dime. Further, the CRT/leftist folks in washington state already replaced university dedications to “truth, equality, etc.” as written in their charters to instead be to diversity, equity and inclusion, institutionally stopping inquiry into and discussion of heretical topics. That already happened. Further in Washington in a specific county (or it might have been state wide) they were going to do the same as in those universities, and go a step further with radical shifts in policy to achieve what they thought of as equity, but they lost by only one vote. Currently, as of this last week I was at my own city council meeting and 6 equity enthusiast city council people were pushing forward with the zoning changes necessary to drop the equivalent of section 8 housing into half a million $$$+ neighborhoods in my city to try to achieve equitylol, thus using up a huge chunk of money that could have made much more section 8 housing in the city in cheaper areas (the city still has to buy land to make that housing in the expensive areas at top dollar). This was done irl over the futile tho spirited objections and singular vote of a “liberal” white male on the city council. He obviously endorsed spending the money to make more housing in less amazing neighborhoods (this leading in general to equality, in general of opportunity, and not to equitylol).

    This is all but a small sampling of what all is going on.

    Also anon is right more or less that CRT does not “care” about scientific or critical thinking, tho to be sure, it is more that CRT is not “bound by” such thinking, tho it does care about it somewhat.

    Also I don’t think that you meaningfully disagree with people on this topic which you’ve been telling us all from here to there about how little you actually know about it.

    1. 6.1

      This somehow went in the wrong thread.

      1. 6.1.1

        Correct thread, 6 — but those embarrassing points (embarrassing to AAA JJ) were edited out.

        See below at 3.1.1.1.

      2. 6.1.2

        It is not the first time that professionally embarrassing material from someone who has engaged me has been “conveniently” edited out.

        Our friend Paul had a improper practice of law issue ‘disappeared’ at one point (in a conversation dealing with the fact that he long ago let his ability to practice in front of the patent office lapse).

        1. 6.1.2.1

          “It is not the first time that professionally embarrassing material from someone who has engaged me has been “conveniently” edited out.”

          I think I would wait till the woke gestapo arrives on your doorstep and then make a pronouncement as to which of the two opinions was, in fact, professionally embarrassing.

          Also I would give you guys a heads up on the recent news that apparently a school teacher has pushed back against demonizing little kids on the basis of their skin color in school lessons and is facing the internal school woke gestapo as we speak (here using “lolharrassement” as the justification). It seems that his boss man however is hip to what is actually going on, maybe moreso than the teacher himself is, and somewhat maybe likely has his back, for now. In any event, AAA, this is obviously a liberal teacher that is about to face the canning by internal leftists and policy. He also got poo pooed for daring to suggest, in a class specifically about such topics, that they put the ideas of a black conservative in the lessons. He got that treatment because, lol, apparently because it might confuse the students of color as to who the true evil ones truly were.

          link to youtube.com

          1. 6.1.2.1.1

            Dave Rubin. Lulz upon lulz upon lulz

            1. 6.1.2.1.1.1

              Don’t like the reporter or don’t like the story?

              1. 6.1.2.1.1.1.1

                He does not like the content – but will settle for any shiny thing that may distract from him actually addressing that content.

                Ad Hominem is an easy ‘shiny.’

              2. 6.1.2.1.1.1.2

                I would hardly consider Dave Rubin a reporter. He’s a grifter.

                As for the story, not sure what you find upsetting about it. Isn’t “school choice” and the “market place of ideas” the holy grails of the self proclaimed Constitution loving conservatives? If the professor doesn’t like the curriculum the private school he works for is telling him to teach, he can go work elsewhere. If the parents don’t like the curriculum the private school is teaching, they can send their precious children to another private school.

                Why do you hate freedom so much?

                1. Flip the tags – would you be so cavalier?

                  All you are doing here, AAA JJ, is just confirming what an arse you are.

                2. “He’s a grifter.”

                  I bet you considered him a reporter back when he was a lefty didn’t you?

                  He’s factually a reporter, period. He literally reports news aka a reporter. You not liking the news he brings to you, or in fact any news not carefully curated to support your preferred overall story/narrative of society/worldview, is a different issue.

                  “As for the story, not sure what you find upsetting about it. Isn’t “school choice” and the “market place of ideas” the holy grails of the self proclaimed Constitution loving conservatives? If the professor doesn’t like the curriculum the private school he works for is telling him to teach, he can go work elsewhere. If the parents don’t like the curriculum the private school is teaching, they can send their precious children to another private school.”

                  Literally AAA’s opinion: We should allow schools to promote racist demonization of kids as long as they’re private! Because school choice is a conservative idea! Derp! Herp!

        2. 6.1.2.2

          Anon, please stop stooping to what you know are lies about me in your compulsive need to insult contributors on this blog.

          1. 6.1.2.2.1

            Precisely because of that “compulsive need,” your (perfectly reasonable) request is vanishingly unlikely to be gratified. He can barely help himself. The good news is that no one takes him seriously, so no matter how malicious his distortions, he is incapable of tarnishing your reputation. It is much akin to being insulted by Triumph the insult dog.

            1. 6.1.2.2.1.1

              How typical of Greg to post a link to someone getting schooled by yours truly.

              Greg – it’s a bad habit to make comments (or to refer to someone else’s comments) when you have purposefully decided NOT to see the entire conversation.

              You only prove yourself to be an arse.

            2. 6.1.2.2.1.2

              “It is much akin to being insulted by Triumph the insult dog.”

              Comparing Dunning, or is it Kruger?, to Triumph the insult dog is an insult.

              To Triumph.

              1. 6.1.2.2.1.2.1

                That’s just so Malcolm of you…

          2. 6.1.2.2.2

            There are no
            L
            I
            E
            S
            Whatsoever in my post.

            You may want to remember things differently, but that is entirely you being you.

            We can “recreate” the situation step by step if you want to. But I am sure that you will ‘remember’ not to be so flippant this time around.

            As to Greg “Wah, he’s mean” DeLassus –
            Bite me.

    2. 6.2

      You’re stumbling from unintelligible gibberish to semi-coherence. Congratulations.

      “In order to justify this, they turn to the widely discredited (even as of 30 years ago) CRT, a branch of critical legal theory (also widely discredited even 30 years ago).”

      And who did this “discrediting”? Top intellectuals?

      Lulz upon lulz

      “A theory which, among other things thinks that structural/institutional/legal structures and their effects are a major, if not the major, factor in racial disparities in various life outcomes that leftists are big on ‘equalizing’.”

      The “structural/institutional/legal structures” of this country allowed chattel slavery to be “legal” for 246 years and American apartheid to be “legal” for another 100 years. But according to you “This is almost certainly not true, as that is almost surely but one of several factors,…”

      Yeah, slavery and Jim Crow are but one of several factors in the “racial disparities in various life outcomes.” What do you think are some of the other factors in the “racial disparities in various life outcomes” we have in this country? I’m sure your answer will be fascinating. Assuming you bother to answer my question. Which I doubt you will.

      “…though it could be somewhat of a largish one.”

      Really? Slavery and Jim Crow could be somewhat of a largish factor in the “racial disparities in various life outcomes” we have in this country? Wow. That’s quite an acknowledgement. Did you use your super assume critical reasoning skills to arrive at that conclusion?

      1. 6.2.1

        “And who did this “discrediting”? Top intellectuals?”

        A few (likely mostly liberal) lawyers/law academics it seems, which are pretty much the only people on the planet that paid it any mind back in the day. It was in general a part of the overall discussion of the philosophical discussion on critical theory etc. that got big in the 1970’s and 80’s and which then was mostly discarded by the elite intellectuals in the philosophical academic world, only being nurtured by a few leftist holdouts in the philosophical academic world.

        I actually happened to stumble upon a law review article that chronicles a bit of what happened as of the 90’s. I will put it below if you want to read it. It actually is fascinating history. According to the author, “the crits” (critical law theorist’s “CLT” nickname at the time) were barely read by anyone outside of their immediate friends/fam. Even as of 1992 the author apparently figured they were in the dustbin of history. I’m still working my way through the article, but it has a lot of boring stuff about them having to respond to their critics (critics of CLT, not “the crits” themsevles) about various things like 1. not having any actual vision for society (note this problem still plagues CLT/CRT to this day, as all CLT/CRT is good for is tearing things down, like white power structures etc. not building anything up, like say building up black/brown people’s lives) and 2. being of blatant marxist origin (the whole of critical legal, and critial race theories are just branches of “critical theory” itself, which is marxist in its origins by its own admission and by its founders) and them having to try to get their critics to stop implying that all CLT wants to do is tear down the existing legal structure and implement marxism (secritly) because of their steadfast refusal to put forth a vision for society.

        I’m still working my way through the long article as it is a bit tough to read as it is addressed to people with knowledge about the general state of the debate already up to the 1992 date and it is filled with highfalutin’ language.

        link to opencommons.uconn.edu

        1. 6.2.1.1

          UConn? While I love my home state Huskies couldn’t you find some “top intellectuals” from “Harvard, Stanford, and so forth”?

          Lulz

          CLT was discussed when I was in law school starting in 1993. I don’t recall any of my professors claiming it was discredited. It had/has its critics though.

          “…all CLT/CRT is good for is tearing things down, like white power structures…”

          Oh noes!!!! Tearing down the white power structures would be the worst thing evuh!!!!!!

          Still waiting to hear all these things other than our “structural/institutional/legal structures” that “factor in racial disparities in various life outcomes” that we have in this country.

          BTW, Dave Rubin is Ben Shapiro lite. Surely you can do better than that.

          1. 6.2.1.1.1

            “UConn? While I love my home state Huskies couldn’t you find some “top intellectuals” from “Harvard, Stanford, and so forth”?”

            I literally just happened to stumble on that article in an unrelated google search, I wasn’t actually looking for law articles from back then.

            “I don’t recall any of my professors claiming it was discredited.”

            That would have been happening right around that time.

            “Oh noes!!!! Tearing down the white power structures would be the worst thing evuh!!!!!!”

            Failing to replace it with anything FuNcTiOnAl may possibly be the worst thing evar power-brainlet. And that’s setting aside the fact that the evil ones may decide that they’ve had enough and go ahead and wreck the challenger’s sht (leftist purge, minorities possibly getting a bit caught up in it). It doesn’t really seem to take much to do so. In any event, it looks like top dem strategists and “liberals” writ large are catching on to the fact that they now have a woke problem though if vox is to be believed, so the evil ones may be spared having to actually do anything, as usual, and the white power structure will just chug along.

            “BTW, Dave Rubin is Ben Shapiro lite”

            Not true, little benji is dave lite.

            “Surely you can do better than that.”

            I’ve got plenty of news, I just don’t generally share it all. Today we have a campaigner in England (middle eastern man I believe, and who is himself running for office) being told to “f off to a white country if you want to vote conservative” by a muslim middle eastern appearing man (muslim garb, appears vaguely middle eastern in vid). That’s in the land of the evil Englanders. The Britbongistanland. Rumored to have once, long ago, been an evil white country. If you want the vid I’ll find n drop it. Other news from Angleland has the Church of England denouncing itself as rac ist. Good thing practically nobody goes there anymore I guess. Joe Biden apparently thinks that the people are the gubmit in a speech the other day. He also thinks that the gubmit should adopt an official “ethic” (literally Italian fascism style from the 30’s, not even joking, and he’s not talking about the office of government ethics/lawyer ethics etc., he means for the people), and one presumes, get around to enforcing it. And also the elected progs in gov think that biden is doing better than they expected/exceeding expectations despite having not really done anything they actually wanted done save some minor non-issues. Also some leftists are “taking off the mask” so to speak, and doing more and more increasingly rac ist things against all races, apparently in an attempt to prove their own hypothesis that the US is rac ist. And French ex-generals (and many other military personnel apparently) have formally warned their gov that they may have to lead a revolution/military coup to restore order in the country due to islamism and CRT etc. being allowed to run amok to the extent that a professor was beheaded the other day for showing cartoons of Islam’s sacred prophet to his class.

          2. 6.2.1.1.2

            Another case of where liberals, as a whole group rather than just a few liberal elites catering to leftists, generally differ from the CRT/leftist line would be the following story where biden gave loan forgiveness to non-white farmers (for covid) and now the white farmers are having to sue. Liberals obviously would offer it to all, in general, sans leftist/CRT influence.

            link to yahoo.com

        2. 6.2.1.2

          Note the absence of assertions from AAA JJ as to any level of credentials for the “experts” OF Critical Race Theory…

          Note as well (edited out), that I had called out AAA JJ – with a link to his “I make up my own mind” spiel on another thread, as to the fact that he has NOT indicated exactly what from his own link to Critical Race Theory were items that he personally espouses.

          Far easier for him to merely attack any one else for any view than for him to actually state his own personal views.

          And while you note that, note as well that he has refused to confirm that he would embrace racy ism – even as to the ends of “correcting past racy ism.”

          He wants to pretend that he is “better than” the very thing that he is ALSO embracing.

          (as if somehow “his” Ends are ample justification for embracing the very thing that he would disdain from others)

      2. 6.2.2

        “The “structural/institutional/legal structures” of this country allowed chattel slavery to be “legal” for 246 years and American apartheid to be “legal” for another 100 years. But according to you “This is almost certainly not true, as that is almost surely but one of several factors,…”

        Alright let’s get into it. Those are all super cool facts brosefulous, and I do give them their due as historical factors, perhaps blended in with the overall white power structure overall factor if you prefer. You on the other hand think that they are the a gigantic influence of immesurable import, when even many black people alive during those times will tell you to your face that you’re not correct (see Jesse Lee Peterson et al.) and that they were poor, right along side other poors, but that such doesn’t magically stop other factors from being influences on their overall lives as well. None of that abstract high minded sht or theories helps , or is going to help, any of the black or brown people who are super in need I know (and am sometimes inside of) in real life have a better standard of life, be more useful as an employee, or make more money, or make a budget, or invest what monies they have left over, or could scrounge, or go get their GED, or go to community college. At best it’s all just a “muh blame” and something that can be somewhat kinda addressed at huge-gigantic cost, and might somewhat affect things, maybe, in theory. The only things that, irl, right now, will help the people I know irl, on the ground, is for me or anyone to actually get them to get them to do the above (even when tired from working full time) and go get their GED/college/trade schoolin, get them to stop having/not have kids super young (by hook or crook), and get them to have a stable provider in the house (whether it be grl or mane) at all times and actually value/respect that person (fat chance for modern young women lol in our feminist ra ra don’t need no mane socio situation), and certainly do that before kids come, and get them financially educated and in love with wealth building (that is not blowing their money on fingernails/parties/hair dye/styles and other attempts to live the upper middle class lifestyle on low $$$ and instead have them buying a house and stocks etc.).

        Before you get to typing, please note I literally have 3x black/brown women with the above issues RIGHT NOW, and none of this sht about muh history from 50 years ago is directly (underline) affecting them nearly as much as them not doing/my inability to get them to do the above. Literally all three could be living stably at upper lower class status at age 20 if I could just get them financially literate and in lurve with building wealth, and all three could do it WITHOUT WORKING, or barely working, by just snagging some middle class dude ez. And I’m inside them, not even a gubmit dood 100-1000 miles away, so I probably have more influence than gubmit doods. Yes hypothetically had history been magically different for the last 500 years all 3 of them would no doubt be queens or whatever you have in your imagination, but them not living in the lap of luxury with private tutors in the US doesn’t change that those other factors do in fact exist and are affecting them right now at this very moment way more than their history/history in general. And I will require substantial evidence to show otherwise when I can see what is happening irl right now. Also, I presume those three girls to “have agency”. And yes, I will certainly concede that their starting point doesn’t help them in doing the above things but that does not take away from the above things being factors, esp for those three girls. Situation is lamentably similar for many black girls, as Kevin Samuels reports, literally only 25% of them will ever marry. This despite him also noting that they, as a group, are apparently sitting atop a giant mound of proposals and broken engagements. Could that possibly be due to the evil of the white mane? Perhaps, and almost certainly in some part, but that seems unrealistic to say those things are affected mostly or even largely by that when it’s obvious their social choices are more affected by “woman stuff” like feminism, advice they hear from their moms/older women etc. This being literally by their own, often enthusiastic, admission on his show, over and over again like clockwork.

        “What do you think are some of the other factors in the “racial disparities in various life outcomes” we have in this country?”

        See above. And you denying it or telling me that history is a magical social/socio/economic etc. force that prevents those simple things from being done isn’t going to help any of those three girls, or any of the black/brown people I grew up with, even one tiny bit, even if all the white people in the country assume all blame (and even if 14 trilly reparations are paid btw). Again, one factor among many, and those are just the beginning of factors, the biggies that are irl for those three girls.

        “I’m sure your answer will be fascinating. Assuming you bother to answer my question. Which I doubt you will.”

        You already knew the answer, you just don’t like it. Even when I, or one of my three brown/black girls would tell it to your face, directly. And yes, all three of them know, consciously, that those big things above are currently fu cking them, a situation that doesn’t compute in your white male brain. In your ebil white male brain’s operations, you’d simply make different choices and go about being successful, la tee da. These three girl’s brain’s operations, from my observation so far, work a bit differently from the ebil white male brain operations, or with a different outlook so to speak, as far as I can tell. They seem to irl just presume that they’re fcked from the outset, and are going to have a shi tty life, and then just proceed to make the “bad” (from your perspective) decision to go ahead and live as well as they can today (go ahead and have a kid, no husband or even good providing bf, go ahead and get some nails/weed/etc. etc. instead of building an army of dollars working for them, etc. etc., chase that upper 10% dude like myself rather than getting that middle of the pack dude etc. etc., chase the butterflies/dangerous dude instead of the middle of the pack dude etc. etc.). This is the same as is reported in the literature on various occasions. Now, could that be a legacy of that history you mentioned? Def could. Could it be a legacy of being told they’re going to fail growing up? Def could. Could it be them being told they’ll be a loser if they don’t get that upper 10% and/or feelings-erotic love inducing dude (who will never settle down with them)? Def could be. Could it be a thousand things all jumbled together? Yes, def could. These are all factual questions that are unlikely to be ever fully resolved, and the only people that do research on them are generally leftists with an agenda/ideology to support. This is irl sht man, not your ivory tower muh one explanation to rule them all. And I want to stress that I’m not judging them for those things they did, are doing or will do shortly. It just is what it is, and them’s factors.

        1. 6.2.2.1

          6 – you do realize that he is going to respond along the lines of “you have slipped back to pure gibberish” eh?

          I would recommend when you put so much effort into your reply, that you pause and put a little more.

          Try writing in Word first. Then go back and structure your detailed comments in a bit more of paragraphs to both prevent the “WALL OF TEXT” effect, as well as to serve to bridge one segment of your comments to the next.

          Giving AAA JJ an easy out is certain to be taken advantage of by AAA JJ because he has readily shown that he would rather attack (by ANY available means) than actually reveal his views (because then he might have to — gasp — defend the FACT that he is embracing racy ism.

        2. 6.2.2.2

          You have slipped back into gibberish. Which is unfortunate.

          Your response is the same old same old nonsense of acknowledging, yeah slavery and Jim Crow were bad, but Black people now just need to make better choices and pull themselves up by their bootstraps.

          That you can cite some Black people who agree with that doesn’t make it any more nonsensical.

          BTW, your misogyny is more raging then ever.

          Sad.

          1. 6.2.2.2.1

            Any less nonsensical, I meant to say.

          2. 6.2.2.2.2

            6, I called it.

            Note that he does not come out and affirmatively state it, but he wants to embrace the very racy ism that he ‘declares’ that he abhors, if but to ‘even the scales on a past history basis.’

            E
            V
            I
            L

            remains

            E
            V
            I
            L

          3. 6.2.2.2.3

            “Your response is the same old same old nonsense of acknowledging, yeah slavery and Jim Crow were bad, but Black people now just need to make better choices and pull themselves up by their bootstraps.”

            There isn’t any other way. Nobody is coming to save them. Not you. Not Anon. Not even me, though I’m helping them somewhat in large part as we speak, it’s not going to be nearly enough to save them.

            What other way do you think that there is dumas? Let’s take just one factor above. Government programs cannot stop the cycle of “bad” (your judgement not mine) choices being made en masse, and specifically by the three girls I spoke of above. Government programs cannot stop older black women from telling their daughters to not settle for the middle of the road man and only settle for a top 10-20% man or for someone that makes them have big feelings in their vag/heart (the standard line for women as a whole these days). That’s a situation which then leads to them either pursuing only top 10-20% man (none of whom practically will then marry them as they have too many women to f), or falling into erotic love based relationships, which usually happen with “total losers”, economically and life-outcome speaking. This is a situation which destroys those women’s life outcomes and are disproportionately affecting them. How are you proposing that it be “fixed”? I’m all ears professor. Tell us about how throwing down the white power structure in place will somehow magically fix this. Or whatever proposal you make. Are we supposed to magically reorganize society so that these choices do not have any effect on their lives? Or what? Tell us.

            “your misogyny is more raging then ever.”

            Tell me what “misogyny” is present above re re.

  2. 5

    This is outrageous. Patent law is completely off the rails. They are throwing out all the common law and inventing their own.

  3. 4

    OT, but here’s some potential income for readers:
    “Cloudflare today offered $100,000. [apiece?] for evidence of prior art to kill off a bunch of patents it is accused of infringing. .. Sable Networks .. took over the IP of failed “flow-based router” startup Caspian Networks in the mid-2000s, [and] sued Cloudflare and five other companies in March, .. [on] four patents belonging to Caspian that involved directing data over a computer network. This lawsuit followed eight other infringement claims filed by Sable against Cisco, Juniper Networks, and others, all of which were apparently settled out of court. The four are US 6,954,431, 6,977,932, 7,012,919, and 8,243,593.”
    [BTW, this kind of prior art “crowdsourcing” or “bounty hunting” is not new. Years ago an Apple CPC from IBM even publicly stated that it was the best way to find prior art software, so I wonder why it is not more common? It is only workable if the terms of the bounty-offer make clear that the art has to be provable prior before the first claimed filing date of the subject patents and specifies who decides how good enough the art is.]

    1. 4.1

      Also OT, but this CLE program announcement’s first sentence struck me as quite wrong:
      “There are many parallels between proceedings before the USPTO’s Patent Trial and Appeal Board and opposition proceedings before the European Patent Office.”

    2. 4.2

      “so I wonder why it is not more common?”

      Can the results be further filtered by a private searcher, before evaluation by an attorney? Or would everything need to be evaluated by an attorney? It seems like it’d be pricey to have attorneys pick through all the dreck that would inevitably be submitted.

      1. 4.2.1

        Yes, non-attorney assistants are already used by law firms or corporations for many prior art or infringement search projects, and could also be used for reviewing solicited third party prior art submissions.

    3. 4.3

      Interesting.

    4. 4.4

      Those are some broad claims but they include words that do not appear to be terms of art so a Markman hearing would probably be needed before the best art could be found.

      1. 4.4.1

        Re: “..a Markman hearing would probably be needed before the best art could be found.” Unfortunately true for many litigated claims where there are large or even unreasonable differences between the parties assertions as to proper clam scope. But, I am told, of little value in the many patent litigations where the Markman is conducted too late to be useful for IPRs, discovery limitations, S.J. for non-infringement, settlement negotiations, etc.

    5. 4.5

      Paul, “crowdsourcing” on prior art goes back even further than that; more than two decades ago an outfit called Bountyquest offered cash bounties to locate strong prior art to invalidate particular patents. Bountyquest pioneered the business model that Article One Partners and other prior art crowdsourcing outfits today use.

      Despite how long it’s been around, crowdsourcing is not the dominant way prior art searches are conducted today. The reason is that, in many cases, it’s just not all that effective at locating strong prior art. And it’s easy to see why that would be the case. If you hire a traditional search firm to do a prior art analysis, you end up with a prior art search (a) involving a few people (b) who each spend quite a bit of of time on the project. The people who work on your project are going to carefully analyze the patent claims and do a relatively “deep dive” into the prior art (depending of course on your budget).

      But with crowdsourcing, take (a) and (b) and completely reverse them; you instead get (a) a potentially large number of people (b) who each spend very little time (sometimes a handful of minutes) looking for and analyzing prior art. Many of the contributors are not going to understand the patent claims or the issues beyond a surface level, at best, so a lot of what you’re going to get is hastily prepared submissions that will likely be unusable. To make matters worse, people who contribute to these campaigns know that, most likely, they’re not going to see one dime of the reward, and this further discourages them from spending real time on the project.

      I think the true value of crowdsourcing, if there is one, is that you might find very obscure references that you otherwise wouldn’t find. Crowdsourcing contributors may have actually worked as engineers for defunct companies that made products that might serve as good prior art, and that type of information would normally be completely unavailable to a traditional search firm. But for many, that’s a pretty remote possibility that doesn’t outweigh the detriments of a crowdsourced prior art search vs. using a traditional search firm. If you have the budget, you could do both a crowdsourced and a traditional search, but it’s often not a good idea to rely solely on crowdsourcing.

      1. 4.5.1

        Those are good comments Lode_runner.

        It is an interesting problem and kind of parallels the problems at the PTO of making searches better. I think that there is just no substitute for having an expert in the field figure out what the best prior art is.

      2. 4.5.2

        All true, LR.

  4. 3

    Lemley is against the patent holder. Who would have though?

    1. 3.1

      But he’s an intellectual (read: professor at an elite institution), so he must be right.

      Signed,
      NWPA

      1. 3.1.1

        Pretty sure that Lemley does not make the jump from professor to “intellectual” (even as I note that you are merely continuing the Tr011ing of Night Writer).

        1. 3.1.1.1

          Well, that certainly was an interesting “Edit” choice in removing particular posts (dropping count from 33 to 19).

          I would daresay that discussions on ‘equity’ related topics — including especially those embarrassing to the Liberal Left — should not be edited out, even as they are tangent to patent law.

          But, say “La Vee.”

      2. 3.1.2

        Oh, crikey! That discussion had not grown inane enough on the scenescent thread? You had to carry it over here, so we can watch Dunning & Kruger show us their @$$es all over again?

        link to patentlyo.com

        1. 3.1.2.1

          The cast for Greg’s Dunning & Kruger show is now complete (just not how he thinks it to be — in a delightful smack of irony

    2. 3.2

      So are 16 other professors. Do you have a point or are you just here to tro11?

      Lulz

      1. 3.2.1

        And what I said was that going into more detail was more than could be done in blog posts and that I wasn’t the only one saying these things. You then asked me to back it up with links to other people saying this. I did and then you made all these ridiculous accusations.

        Just bizarre AAA JJ. I guess you don’t care about facts or critical thinking.

      2. 3.2.2

        The point is clear, AAA JJ.

        And this one is not even attached to the Liberal Left disaster that you dive into.

        This one is merely that Lemley is known to be against a strong patent system.

        You really just cannot help yourself, can you?

  5. 2

    No “New York Courts” [the contractual forum restriction here] can legally conduct IPRs, reexaminations, interferences, or any other PTO-run administrative non-judicial proceeding. Nor does NYS law apply thereto.

    Although presumably not relevant to the parties in this case, could a patent infringement suit be filed in a forum in which the defendant was not incorporated and had no place of business whatsoever pursuant to a forum selection provision? [That is, directly contrary to the mandatory part of the federal patent suit venue statute.]
    For employee invention assignment agreements would not an arbitration agreement be far more likely to be enforcable than a forum selection provision?

    1. 2.1

      Your first paragraph is true (except I don’t understand the part about NYS law; the FSC here wasn’t accompanied by a governing law clause AFAIK), but you’re approaching the issue from a very granular level of whether a regular (state or federal) court is capable of entertaining these specific types of PTAB actions. Of course the answer to that will always be no. At least for IPRs though (maybe not reexams, and certainly not interferences!), at a higher level they just involve the same 102/103 validity issues that federal courts have adjudicated for ages. Taken at this higher level, in principle a FSC could be used to confine validity disputes to federal district courts. And as ksksksks helpfully points out below, that’s exactly what Dodocase seems to say too. (I use “seems” because, as Prof. C. noted in his earlier post on that case, it wasn’t exactly a model of detailed reasoning.) Here, the DCT simply applied Dodocase and found that under basic contract principles, an IPR wasn’t covered by the FSC in question. Mainly that was because the parties had an NDA, not a license (as in Dodocase), but a validity dispute like an IPR is insufficiently related to an NDA to activate the FSC. The DCT seemed right to me, and so I’d answer “no” to the first of the two questions as characterized by Prof. C. in the article.

      [Although I agree with Prof. C. that CAFC will try to avoid it, question (2) is certainly interesting. The bottom-line result in Dodocase suggests the answer is “no”, but again, that case was barely reasoned, and it didn’t address the public policy issue at all. On the one hand, if you look at an FSC as permitting validity challenges writ large, but just restricting where they can occur, then it seems like Lear v. Adkins and similar public policies are not violated. On the other hand, if you view the AIA as providing a distinct right to pursue challenges at the PTAB separate from the DCT, then maybe an FSC could violate the specific public policy of the AIA.

      This case also raises another interesting point of whether anyone will have luck getting the PTAB to enforce an FSC directly. My guess is no, because the last thing the PTAB ever wants to do is get bogged down in contractual interpretation issues.]

      On your first question, if you mean could that be accomplished by contract, I’d say yes. Venue is waivable generally, and it’s certainly possible to have an agreement where a party relinquishes the right to raise a venue challenge.

      For your second question, I’m not completely sure, but I don’t see anything to suggest that FSCs are much different from arbitration agreements in being upheld. Certainly the FSC here was found enforceable, it just didn’t cover IPRs.

  6. 1

    “In Kannuu Pty Ltd., v. Samsung Electronics Co., Ltd. (Fed. Cir. 2021), the question on appeal is whether an agreement between parties can enforceably prohibit the filing of an Inter Partes Review (IPR) petition.”

    Wasnt this already directly addressed (and answered in the affirmative) in Dodocase Vr, Inc. v. Merchsource, LLC (which for some reason was non-precedential)? link to patentlyo.com

    The only wrinkle being that was a venue selection term in a licensing agreement, this is a venue selection term in an NDA? (and if court does away with assignor estoppel, expect to see these in assignments too)

    1. 1.1

      The Amicus Brief supporting Samsung addresses Dodocase very briefly, on page 8. The arguments it gives against extending Dodocase are precisely those you raise:

      (1) Dodocase was nonprecedential,
      (2) That case dealt with licenses and not an NDA.

      I will be very interested in the result here.

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