We have a new Chief Judge at the Federal Circuit: Chief Judge Kimberly Moore. Prior to law school, Judge Moore worked as an electrical engineer for the Navy’s Naval Surface Warfare Center. Her BSEE and MS are both from MIT. Judge Moore then attended Georgetown Law Center; clerked for Judge Archer at the Federal Circuit; and also worked for a short time at Kirkland & Ellis. She was a law professor from 1997-2006 (Chicago-Kent; Maryland, and then George Mason) before being appointed to the Federal Circuit by President George W Bush with unanimous consent from the Senate. Throughout the past 30 years, Chief Judge Moore has primarily focused her attention on patent law issues. 
From all appearances, Judge Moore strongly believes in the patent system and its potential to encourage innovation and progress. Still, Judge Moore has little forgiveness for parties that game the system or who fail to come fully prepared to her courtroom.
Also, be real.
101 is trivial to cabin for the CAFC if they wanted to.
Taranto is using judicial activism to limit patents with 112 and reissue. Just as an example: you need an algorithm expressly laid out? Really? I am a person that would be considered an expert in information processing algorithms. A line that references known techniques but modifies them is all you would need for a person of ordinary skill.
Basically, at ever turn Taranto and the other Obama appointed stacking of the CAFC have been limiting patents at every turn.
trivial?
Perhaps – but the CAFC has been trained by fire-hose by the Supreme Court (like a bunch of simians in a cage).
They need to be disbanded and reformulated (as part of Congress exercising their Constitutional power of jurisdiction stripping of the non-original jurisdiction of patent cases from the Supreme Court).
anon, I know you have these feeling about what you think controls the CAFC judges but there is no evidence that that is the reason.
The fact is that the judges haven’t been smacked down after Alice and there are many easy ways to cabin Alice.
The fact is that the better explanation is that the judges on the CAFC are judicial activists that have seized on the opportunity to limit patents with Alice.
But you have this ridiculous narrative that you feel you want to push. The facts just aren’t there anon.
They have not been smacked down after Alice because they were smacked down before Alice and the after-Alice MESS is what the Supreme Courts wants so they do not see a need to smack them down.
Quite in fact, you prove my point, as the facts both are there, and do confirm that fire-hose training has been ‘successful.’
When was the last time you heard the CAFC diss the Supremes? (while a notable one or two can be found, You DID hear that far more often in the past).
I tend to doubt that Moore will have any better results of reigning in the Gordian Knot tendencies of panel to panel variances.
Moore isn’t really that pro-patent. The fact is that she has been part of the anti-patent judicial activists movement to some degree while at the same time making lots of noise about opposing it. She recently extended 112 judicial activism.
Better than the likes of Taranto for sure, but a J. Rich? By NO means. Not even a Rader.
Is this the type of judicial activism that you are referring to with respect to 112:
The test for indefiniteness is whether the claims, viewed in light of the specification and prosecution history, “inform those skilled in the art about the scope of the invention with reasonable certainty.” Nautilus, 572 U.S. at 910, 134 S.Ct. 2120. The test is not merely whether a claim is susceptible to differing interpretations. Such a test would render nearly every claim term indefinite so long as a party could manufacture a plausible construction. In fact, the Supreme Court declined to adopt such a rule in Nautilus. Id. at 909, 134 S.Ct. 2120 (declining to adopt a test rendering a patent invalid “when a claim is `ambiguous, such that readers could reasonably interpret the claim’s scope differently'”). Under the proper standard, we hold that the claim term “configured to” does not render the asserted claims indefinite.
Nevro Corp. v. Boston Scientific Corp., 955 F.3d 35 (Fed. Cir. 2020)(author: Judge Moore).
Nice post.
anon, you just have no idea most of the times what you are talking about.
It was a post that brought out anecdotal evidence where rather than countering my point actually proved my point. It is exactly the type of sounding off we see from Moore and then her cutting into patents like she did in Williamson.
I’d estimate that Williamson rendered about 100,000 patents at least invalid and did so with judicial activism where the person of ordinary skill vanished. I’ve given lots of examples of Moore’s judicial activism.
Please try harder anon.
meh, pull your undies out of the bunch.
I happened to like the citation that helps cabin a wayward 112.
Do you happen to not like that citation?
What you did anon is encourage blowing of smoke which is what I said Moore does to cover her judicial activism.
And anyone —ANYONE–that understands patent law knows that Moore is no friend of patents and is a judicial activist.
I said that when I heard she was appointed. And she has proven that she has no desire to clean up patent law but rather to weaken it with cheap case law where the holdings don’t stand up to even a cursory reading.
… although it should be obvious when legislating from the bench is in the crosshairs.
Seems like I can’t post anything without getting every possible nonsensical response. NotPaidto_Comment the case you cite fits into the category I’ve discussed before about Moore where she does make a lot of noise and will help to stop outrageous judicial activism when it is clearly and unambiguously contrary to Scotus case law. So what? Her noise on these issues do nothing but provide her cover for her judicial activism. Williamson is judicial activism to the extreme. Moore went along with “§ 112, para. 6 will apply if … the claim term … recites ‘function without reciting sufficient structure for performing that function.’” Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1348 (Fed. Cir. 2015) (en banc section of opinion) (quoting Watts v. XL Sys., Inc., 232 F.3d 877, 880 (Fed.Cir.2000)). This is clearly wrong as it does not interpret the “structure” part in terms of a person of ordinary skill but a judge as it is being applied at the CAFC.
Rain Computing, Inc. v. Samsung Electronics Co., Ltd., no. 20-1646 (Fed. Cir. Mar. 2, 2021). 112(f) issues are getting just as bad the 101 issues.
This is the core issue:
A claimed function conveys structure when a POSITA knows how to build a machine to perform the function but it doesn’t convey structure when a POSITA doesn’t know how to build a machine to perform the function?
J. Moore admitted that there was code available on the internet at the time of the filing of the patent application that performed the claimed function. J. Moore’s opinion is a travesty of justice. The CAFC is using 112(f) as a means to invalidate claims that they feel are invalid under 103 but can’t put together a 103 argument. They are adding to their equity bag of tricks that already includes Alice.
If you are supporting Moore as not a judicial activist then you have no idea what you are talking about.
Read the cases. And don’t just listen to Moore’s acting up but the core cases and judicial activism she has been part of. It is true that she has pushed back on 101 a bit but again only when the other Obama judges have tried to push 101 clearly past what the Scotus is going to tolerate.
And please no w a n k i n g o f f. I don’t want to hear you nonsense.
Moore is a judicial activist as illustrated by the two cases I cite above. And those are representative of her record. I believe too that she went after Newman for making eligible a user interface for buying and selling options.
The case law is clear that Moore is no friend to patents. Is she a Taranto who is an genius, judicial activist? No. But she is not a Rader or Rich or another even close to it.
“But she is not a Rader or Rich or another even close to it.”
Completely agree.
I tend to doubt that the only two people on the Bench that I would prefer to have been Chief Judge would have been Newman and O’Malley.
Alas, will not be so.
I bet it stuck in her 112 judicial activist craw to have to write this:
The Board cannot invalidate a patent as indefinite in an inter partes review proceeding. See, e.g., 35 U.S.C. § 311(b) (limiting the scope of inter partes review to “ground[s] that could be raised under section 102 or 103.”). Section 318(a) requires that the Board issue a final written decision with respect to the patentability of all challenged claims. See 35 U.S.C. § 318(a). It does not grant the Board authority to act outside its statutory limits by holding a patent claim unpatentable as indefinite under § 112. See Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2132, 2141-42 (2016). Nor does the Supreme Court’s decision in SAS grant the Board such authority. See SAS Ins., Inc. v. Iancu, 138 S. Ct. 1348, 1354 (2018) (“Nothing suggests the Director enjoys a license to depart from the petition and institute a different inter partes review of his own design.”). Accordingly, we hold the Board properly determined that it lacked legal authority to hold the claims unpatentable as indefinite. As the Board itself recognizes, it does not have legal authority to decide indefiniteness in the context of an inter partes review. Thus, the Board’s agreement that the specification does not disclose sufficient structure is outside the scope of its statutory authority and is therefore not binding and will not be reviewed by this court.
Intel Corp. v. ALACRITECH, INC., No. 2019-1443 (Fed. Cir. July 17, 2020)(Author: Judge Moore).
another nice post – thanks NPtC
And to ‘soothe’ Night Writer’s anxiety, I am commenting on the helpful content of your post vis a vis 35 USC 112, and NOT on the angle of smack related to Judge Moore.
Grow a pair anon.
anon, this is probably one of the most important issues at the CAFC.
What we see is judges like Taranto and Moore that push anti-patent judicial activism but also push back on some egregious rulings by the PTAB and DCs. The anti-patent judicial activists cherry pick the cases to try and characterize their record. Get with the program and identify this for what it is. It is at the core of the fight against judges legislating.
And you will find that Taranto and Moore are two of the worst at the CAFC but not if you only read the cases that the anti-patent judicial activists put in front of you.
Also anon you should be offended by Not Paid to Post’s posts.
Applying the law keeps the law as the legislators wanted and at most better defines it. Judicial activism changes the law.
So citing cases that apply the law from Moore are meaningless. It is like saying see, she didn’t commit m u r d e r on Tuesday. It is ridiculous, condescending, and offensive.
Wow – you still are missing the point.
Even here, as I made it clear WHY I enjoyed this particular post.
“So citing cases that apply the law from Moore are meaningless. It is like saying see, she didn’t commit m u r d e r on Tuesday. It is ridiculous, condescending, and offensive.”
So, you want me to show you that she’s not a judicial activist wrt 112 by citing cases where she did not properly apply the law?
And, according to you, citing cases where she did apply 112 according to law somehow proves your contention — at least according to you — that she is a 112 activist?
What I’ve done instead is show you cases where she had opportunities to be a judicial activist with respect to 112 and instead applied the law as one would expect it to be applied.
Also, I started to look up Williamson which you cited and quickly realized that she didn’t write Williamson — Judge Linn did. Sure she was part of the en banc majority; but, so was every other judge except Judge Newman. So, if Williamson is the best you can do, I’m not convinced. I saw Rain v. Samsung. It came down AFTER you started your barrage of criticisms of Judge Moore. So, I’m still waiting for your citations of cases that are the basis of your uninformed opinion of Judge Moore. As a self-proclaimed expert in information processing, it shouldn’t be difficult for you to find some. You say you can cite a bunch — let’s see them.
In the meantime, here’s another 112 Moore case:
Sufficiency of written description is a question of fact, which we review for substantial evidence. Gen. Hosp. Corp. v. Sienna Biopharmaceuticals, Inc., 888 F.3d 1368, 1371 (Fed. Cir. 2018). However, failure to consider the totality of the record in assessing written description constitutes legal error. In re Alton, 76 F.3d 1168, 1176 (Fed. Cir. 1996).
….
The ‘233 and ‘500 specifications both refer to a “special lock having a combination lock portion and having a master key lock, the master key lock portion for receiving a master key that can open the master key lock portion of any special lock of this type, the special lock designed to be applied to an individual piece of airline luggage.” See J.A. 22, 57. The ‘233 specification further states “[t]he phrase `any special lock of this type’ is intended to include special locks having a multiplicity of sub-types, such as different sizes, different manufacturing designs or styles, etc.” J.A. 22. This language is not in the grandparent ‘500 specification. Mr. Tropp’s primary argument before the Board relied heavily on this language. See J.A. 77-78.
The Board’s only direct discussion of the additional language in the ‘233 specification is in a footnote in its discussion of written description. The footnote states in its entirety:
Priority Application 10/756,531, now US 8,145,576, does describe “`any special lock of this type’ is intended to include special locks having a multiplicity of sub-types, such as different sizes, different manufacturing designs or styles, etc.” (Col. 4, ll. 21-24), but Application 10/756,531 is a [continuation-in-part] of US’537. We find this description constitutes at least part of the added new matter of the continuation-in-part application.
J.A. 7 n.2. Mr. Tropp argues this footnote shows the Board disregarded the language that only appears in the ‘233 specification by mistakenly concluding it was not relevant because it was new matter. This footnote is at best confusing. Indeed, we believe Mr. Tropp’s interpretation is the most plausible one. Even if it is new matter, the language in the ‘233 application as filed is relevant to assessing compliance with the written description requirement. Cf. Waldemar Link v. Osteonics Corp., 32 F.3d 556, 558 (Fed. Cir. 1994) (“Claims containing any matter introduced in the CIP are accorded the filing date of the CIP application. However, matter disclosed in the parent application is entitled to the benefit of the filing date of the parent application.”). The Board’s failure to consider this language was erroneous.
IN RE TROPP, No. 2017-2503 (Fed. Cir. Dec. 12, 2018)(Judge Moore author).
This isn’t even worth my time to respond to. Moore and Linn were in the majority. Williamson is a well-known case and the implications of Williamson are well-known throughout patent law with 100’s of seminars on how to deal with Williamson.
And your ridiculous strawmen are just silly. Yes you ignoring Moore’s judicial activism and citing cases where she applied the law support my argument because it illustrates you can’t defend her judicial activism. I cited two cases above. Your response is to cite another case where she didn’t commit murd er.
You sound like one of the woke where facts don’t matter.
NotPaidto_Comment — again you prove my point.
Moore will smack down (and make lots of noise) when something is clearly out-of-bounds of what the Scotus will put up with but will go along with or author opinions that further judicial activism to limit patents (see the two 112 cases cited above.)
And you didn’t respond to my comments nor to the important 112 issues. You just prove my point. You argument is like saying, gee, but the m u r d e r e r was a good guy 364 days out of the year.
Respond to the two cases I cited (and I can come up with a lot more) that illustrate her anti-patent judicial activism or you are just agreeing with me.
Aξιος!
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