GREE, Inc. v. SuperCell Oy (Fed. Cir. 2021) (nonprecedential)
SuperCell is a Finnish company that makes and distributes the mobile game “Clash of Clans.” SuperCell is owned primarily by the Chinese multinational Tencent, the “world’s largest video game vender.” The patentee GREE is a Japanese mobile game developer and holds a number of mobile-device game related patents.
On May 7, 2021 a jury sided with Gree in a patent infringment lawsuit, holding SuperCell liable and awarding $92 million in infringement damages.
GreeSuperCellVerdictForm. The jury also found the infringement willful and that the patent claims were not invalid. In the coming months, Judge Gilstrap will rule on the soon-to-be-filed JMOL motions and also rule on the question of enhanced damages associated with the adjudged willful infringement. GREE also asked for injunctive relief in its final pre-trial contention and so that will come up as well.
Today, the Federal Circuit decided a parallel case involving a separate GREE patent — not one subject to the recent jury verdict. U.S. Patent Number 9,897,799. For this patent, SuperCell filed a petition for Post Grant Review. The PTO granted the petition and eventually found the claims invalid under Section 101. On appeal here, the Federal Circuit has affirmed that judgment. In particular, the appellate panel agreed that the claims are directed to “the abstract idea of associating game objects and moving one or more of the objects.” Further, the claims did not include any inventive step going beyond the routine and conventional.
The most important part of this decision is where the court (effectively) says “Claim It.” There is some suggestion in the caselaw that a patentee might describe specific improvements within the detailed description and then include broader claims that encompass those improvements, but at a more general level. Here, GREE described particular syntax of touches and swipes within the specification. ON appeal, the Federal Circuit found that those elements didn’t count for the Alice analysis because they were not claimed.
The Board also correctly explained that none of the syntax of touches and swipes that GREE cites as its inventive step are captured in any of the elements of the claims.
Slip Op.
= = = = =
1. A computer-implemented method for operating a computer game, the method comprising:
storing, in a storage module, a plurality of virtual objects and the arrangements of those virtual objects on a game field;
accepting, via an input face configured to detect a touch operation, operation information regarding a touch operation performed by a user;
associating, using a processor, a plurality of virtual objects as a group; determining, using a processor, whether the operation information comprises a direction operation;
upon determining that the operation information comprises a direction operation, moving, using a moving processor, one or more of the plurality of associated objects as a group in the direction indicated by the direction operation;
storing, in a storage module, the new arrangements on the game field of the one or more of the plurality of associated objects moved with the moving processor;
displaying, on a computer screen, the game field and the plurality of virtual objects arranged on the game field; and
displaying, on a computer screen, the new arrangement on the game field of the one or more of the plurality of associated objects moved with the moving processor.
= = = = =
Going back to the $92 million case, The following patents are at issue.
- Claim 3 of U.S. 10,328,346
- Claim 8 of U.S. 10,335,689
- Claim 1 of U.S. 10,076,708
- Claims 2 and 3 of U.S. 10,413,832
- Claims 1 and 6 of U.S. 9,079,107
- Claims 1 and 5 of U.S. 9,561,439
On appeal, SuperCell will likely argue that these are all invalid as ineligible (along with other issues)
Hi Dennis,
I know the patent number you wrote is the same as the patent number that appears in the CAFC decision, but it seems to be the wrong patent number. 9,897,799 is not to Gree or anything relating to gaming, and I checked google patents and the USPTO image database to confirm.
I suspect the biggest impediment on improving quality is the examiners’ federal union.
An interesting supposition, Night Writer.
But I would suggest (and our examiner regulars can confirm) that examiners view their Union as effectively nugatory.
Management stomped on POPA (the union) last year when it wanted to automate case distribution. So I’d say the rate limiting step in PTO improvements is management. When they want to do something, they do it. Most of the time, they’re happy to watch production numbers and pat themselves on the back for such excellent “managing.”
As I recall 6 trying to assert, the Union has NO ‘real’ power to say ‘No.’
All of my lelz, what specifically do you think that popa is doing to “stand in the way of the awezomes qualitay”?
“As I recall 6 trying to assert, the Union has NO ‘real’ power to say ‘No.’”
That’s correct anon.
If you have a right that if transgressed has no remedy, do you really have a right?
Nope.
It’s remarkable how little interest a plainly unjust result for a non-patentee/non-applicant warrants. It almost looks like patent attorneys don’t care about the system being broken when it benefits the people who fill their wallets.
? A bizarre post, given that comments HAVE been made in direct contradiction to your assertion.
But then again, you being taken to task on specific legal points and your own “remarkable how little interest” YOU have in trying to defend your position screams even louder than this last post of yours.
I think Ben is right.
The D in this case has been put through a lot for no reason.
The core of the problem is KSR. Go back to TSM and use modern methods to improve quality.
It is harder to reject something under TSM than KSR, right? Based on that, wouldn’t you agree that replacing KSR with TSM would, ceteris paribus, increase the number of bad patents coming out of the PTO?
It certainly could be done without an increase in bad patents, but it would be difficult and likely costly. I don’t think the stakeholders have the appetite for that.
The bureaucrat mindset…
“My job harder” must mean more bad patents out there.
Of course, when you view your job as the one-sided “reject, reject, reject,” AND you couple it with a self-centered preoccupation, you end up with the likes of Ben.
Replete with the attempt to blame someone else (it would be costly and someone else would not be happy with that).
What the “stakeholders” would be ‘happy with,’ is if you did your Fn job. Applicants PAY for that job – don’t confuse your internal metrics and your self-absorbed, “this is the hard” with what “stakeholders” have already paid for.
Ben, I think KSR is basically do whatever you want.
TSM was far more objective and, yes, harder in the sense that you had to separate the elements and make reasonable arguments based on TSM from the art on how to construct the elements.
But the key Ben is that TSM allowed some objective measure and could be farmed out and quantified. TSM is the type of test that lends itself to Six Sigma and other quality control measures. KSR is total junk that basically says the fact finder can do whatever they want.
So what I think is that TSM could be used to vastly increase patent quality.
That doesn’t address what happens if you go to a TSM regime without making other adjustments. Use your buddy at 11.1.1.1.1 as a gauge for how kindly the patent bar will take to any suggestion of increasing fees.
I’d guess that a combination of TSM + stricter quality control + no adjustments to fees would actually be stopped by management. This combination will surely result in droves of examiners being fired/retiring/quitting and then difficulty finding long-term replacements. The office will continue, but pendancy and response times will spike. In other words, this is a recipe to diminish the number one guiding metric at the office: the scores which are used to determine management bonuses! Management will fight tooth and nail against such a program.
“gauge for how kindly the patent bar will take to any suggestion of increasing fees.”
Mindless fallacy.
You confuse what IS paid for, for your own sense of internal metric.
That’s a far cry from the Office deciding to charge different rates for different things.
I don’t know Ben how long you have been doing this but TSM wasn’t so bad.
The examiners in the TSM time I think enjoyed it more. It was more of a professional atmosphere. The interviews basically were factually oriented on whether an element was disclosed in the reference and whether a disclosure counted as a TSM.
There was dignity for both sides. Now it is just ridiculous as the examiner can allow whatever they want as long as it passes the smell test, which I suspect is why some of the BS claims like in this case are so long. They are just headache making to read a bunch of these everyday. They seem to be intentionally long to cover up that they don’t actually claim much.
Meh, I am going to disagree with you on that, Night Writer.
The “pencil test” has been around longer (or at least is distinct from) any of the TSM mindset.
I don’t want to put words in your mouth, but the only way I can read your post as a response to “what happens if you go to a TSM regime without making other adjustments”, is if you mean to suggest that implementing TSM would cause examiners to find greater pleasure, professionalism, and dignity in their work, which in turn would cause them to produce just as much under KSR.
If this was your intent, you’ve basically just told me: “You can demand tighter dimensional product tolerances from workers with zero consequences” or “Good, fast, cheap. Demand all three!.” There’s really no point in responding to an assertion that disconnected from reality. So have a nice evening.
And here we go again…
As oh so typical for the coward bureaucrat, Ben seeks to retreat from any ongoing discussion by misrepresenting the situation and conflating internal metrics (a focus on making HIS job easier) with any level of overall quid pro quo between the Patent Office and innovators.
The notion of The Golden Triangle of Project Management (the pick two of three axiom) is just NOT how Ben would have it.
He (again) ploys the fallacy that those (such as I) would be opposed to a different cost basis in a quest to have timely (fast) quality (good) examination under the law — AS IS currently paid for at rates the Office has set EXTERNAL between the Office and those that pay the entirety of the Office’s budget.
He conflates the notion of ‘consequences’ from an INTERNAL perspective with an objective EXTERNAL paradigm.
Ben, STOP trying to make your internal problems to be problems for external folks. Do your Fn job or leave the Office. You ALWAYS have that choice.
Your “production” should be the best you can do under either a TSM paradigm or a different “KSR” paradigm. YOU do NOT get to choose the law part of “under the law,” as I have already reminded you with link to patentlyo.com
You have shown the proclivity to confuse quality examination with a pure “Reject” mode and your claim of ‘harder to reject’ is a mindless fallacy reflecting the Reject = Quality mantra that CAUSED the backlogs of yesteryear (and the related – deemed illegal – attempts by the Office to constrain applicants from seeking proper redress through the Claims and Continuations Rule debacle).
It is YOUR assertions that are disconnected from reality. STOP trying to make this about you and your bureaucratic focus. Do your Fn job and exam under the law. Neither of the TSM or “KSR” paradigms should be stopping you from a quality examination job (and no, that does NOT mean ‘quality = reject’).
Ben,
The examiners seemed to do quite well applying TSM before KSR.
So not sure what you are talking about. Maybe it would take some retraining to go back to TSM.
Are you really struggling to understand this, or is it an act?
Make rejections requirements more stringent (even marginally) –> less rejections.
Yes or no?
I’m not suggesting that the office couldn’t go back to TSM, or that it couldn’t be done without detrimental effects. I am merely asking for recognition that if you go back to TSM, without changing anything else, there will be more bad grants.
TANSTAAFL!
Night Writer,
Ben’s reply boils down to his bureaucratic “if you make my job harder, I won’t do my job.”
Can’t you see that? What’s wrong with you?”
A little Office Space parallel:
link to youtu.be
“Ben’s reply boils down to his bureaucratic “if you make my job harder, I won’t do my job.””
Anon bro he didn’t address what he will personally do. He’s talking about what will occur in the aggregate. Why do you always impart examiners noting what they think will happen in/to the overall examination ecosystem (the behavior of thousands of people in the aggregate) to what they expect their own personal behavior or output will be?
In any event I personally don’t know if I agree with what he thinks will happen that all that much, but I also barely ever need to use anything other than a TSM motive myself.
There is NO difference to the point at hand 6 between the larger “aggregate” (or Royal YOU) and the singular personal ‘you’ as referring to Ben, because it is Ben’s proclivity towards the position that is at issue.
My phrase of, “Do your Fn job” applies equally.
“There is NO difference to the point at hand 6 between the larger “aggregate” (or Royal YOU) and the singular personal ‘you’ as referring to Ben, because it is Ben’s proclivity towards the position that is at issue.”
I do not follow what you are talking about. What “proclivity” towards which “position” is at issue? It’s fairly clear that he is talking about not going back to strict TSM and that he feels that doing so may impact the overall number of bad grants. You then jump to discussing him supposedly taking the position that he personally will not do his own personal job. This later discussion doesn’t even appear relevant to the topic he is discussing (save .00001% as that is how much of the corps he personally makes up), and is just you going off on a red herring at best, a slight ad hominem perhaps. Can’t you just say you either agree or disagree with his assertion of what would happen like a normal person rather than jumping to something irrelevant? Why even make such a statement? Still further, why repeat that samish line of rhetoric a thousand times in a thousand threads?
“Why even make such a statement? Still further, why repeat that samish line of rhetoric a thousand times in a thousand threads?”
Good questions, but I think a better question you should ask yourself is: “Why am I bothering to respond to someone with this history?”
It is absolutely relevant. He’s whining about “the hard.”
Open your eyes son.
“He’s whining about “the hard.””
Show me the quote.
Read his posts – especially the ones to which I am responding to.
Use some of that critical reasoning that you have (are you really looking for ipsis verbis?)
“Read his posts – especially the ones to which I am responding to.
Use some of that critical reasoning that you have (are you really looking for ipsis verbis?)”
I already did. He didn’t whine any. And yes what I asked for in the above request is basically an “ipsis verbis” because I see no such thing above.
You are incorrect precisely because you seek something that need not be there (and you make my point about you not using your critical thinking because you want only an ipsis verbis condition).
I purposefully chose that phrase because as a US examiner, you should have recognized it – and realized the error in your assertion.
Take a step back and read the exchanges again. The whining about “the hard” is unmistakable. The fallacy about quality = reject is a bit more nuanced.
In other words it doesn’t exist and is solely a creation of anon’s mind. Ok, will keep this in mind going forward.
And yet again, 6 – absolutely wrong.
Come on Man – surely you recognize the concept of ipsis verbis.
Sorry, I am not clear on what result here was “unjust.” The patentee deserved to lose, and the patentee lost. It may have taken a while to get there, but the ultimate result is entirely fair.
I suppose that the lesson to take away here is that it would have been better for all if the ED Tex had stayed the trial pending the PGR outcome. I have long thought that stays of trial should be mandatory once the PTAB takes a case. This is an object lesson in favor of that conclusion. When and if the Congress ever gets around to a further set of reforms to Title 35, that would be a good one to make.
One way or another, however, I am not sure what “unjust result” you have in mind.
It would also have been better if the justice system could have reached this correct result for the correct reasons. That, however, does not really speak to the correctness vel non of the result.
Sorry, that was extremely unclear of me.
I mean the $92 million dollar verdict for claims like asserted claim 8 of 10,335,689:
5. A game control method implemented by a computer, the method comprising the steps of: deploying a plurality of units on a field displayed on a display, the plurality of units being movable in the field; varying an attack strength of a first unit among the plurality of units so that the attack strength of the first unit, in response to the first unit and a second unit among the plurality of units satisfying a first positional relationship by a movement of at least one of the first unit and the second unit, is decreased to be lower than the attack strength of the first unit when the first unit and the second unit do not satisfy the first positional relationship, wherein the attack strength is an attack strength for attacking a stronghold on the field and attacking a third unit, the first unit and the third unit not belonging to an identical group; and attacking the stronghold by the first unit and the second unit, wherein the first positional relationship is satisfied by the movement causing the second unit to be located within a first range of the first unit.
8. The game control method according to claim 5, wherein the first unit and the second unit belong to the identical group.
I mean the $92 million dollar verdict for claims like asserted claim 8 of 10,335,689:
O.k., but the patentee is not going to collect any of those $92 million. In view of the CAFC’s opinion in the PGR, the ED Tex is going to have to vacate that judgment. Obviously, it would have been preferable if the ED Tex had reached that conclusion up front, but that is why we have a system of appeals courts—because the district courts do not always get things right. The system worked here.
Uh, per Dennis’s post: “the Federal Circuit decided a parallel case involving a separate GREE patent — not one subject to the recent jury verdict. ”
Though of course I’d agree there’s a reasonable chance that the asserted patents will be invalidated on appeal.
Facts of that separate case may well be extremely different than the facts of the case that we all are reading here.
As you mentioned, Ben, no one is defending these claims.
It appears that you want to whine above all else.
The defendents won’t get a 285 ruling. How many millions of dollars in legal fees for doing absolutely nothing wrong or realistically foreseeable is “unjust?”
I’d say well under one percent of one million dollars.
Wandering Words (WW) at 5 says it pretty well.
Lots of noise in these comments.
“Lots of noise in these comments.”
This is like walking by a apartment fire and noting the crowd’s noise.
These claims should not have been issued or found valid in the trial.
I am curious as to how the heck these were found “not invalid” at trial (trials do not find claims valid — and the double negative is on purpose).
It appears that someone other than the Office did not do their Fn jobs….
anon, “how they were found ‘not invalid’ at trial”.
You want to know my cynical answer? Because finding the claims invalid ends the litigation and the pay check. No idea if that happened here but from what I’ve seen a lot of the law firms are that bad.
That clearly would be an ethical — and sanctionable — violation.
Actually, anon, think a bit about KSR and what you just said.
See the way KSR and these giant balancing tests pervert the law? How can you tell someone they did a bad job when everything is subjective?
Eh – and this touches upon some of our prior discussions, albeit NOT on KSR, but instead on the Gordian Knot of patent eligibility jurisprudence and the Void for Vagueness issue that the Supreme Court has scrivened itself into.
It is well established that Void for Vagueness doctrine applies beyond criminal law matters, and the basis of our system of government decreed the level of importance of Life, Liberty, and Property.
A critical aspect of the Efficient Infringer dogma is to denigrate the property aspect of patents, and make it more into a mere ‘business contract,’ subject to the efficient breach theory.
A major problem with this theory though is the necessary ramifications to ALL property law.
And this is yet another reason why — especially in law – the Ends do not justify the Means.
See the way KSR and these giant balancing tests pervert the law? How can you tell someone they did a bad job when everything is subjective?
+1
Maybe the real Elton John can sue MM for false light invasion of privacy, or whatever is the most appropriate cause of action.
This should have been 103, not 101.
The claim reads like playing Warcraft (1994 or 1996 PC version) combined with a touch screen.
The problem is that a jury actually found the patents (or closely related ones) valid under 103. If we can all agree that these patents are very clearly invalid, but a jury found them valid (and awarded 92M in damages), then there is clearly some inefficiency that needs to be fixed.
(Maybe IPR is the answer to that, and I wonder why these were not invalidated by IPR. However, you often see people decrying IPR proceedings as wel).
“If we can all agree that these patents are very clearly invalid, but a jury found them valid (and awarded 92M in damages), then there is clearly some inefficiency that needs to be fixed.”
Agreed. Note that precisely no one has stood up for these patents in this thread.
Not sure if “inefficiency” is the right word.
The 9,897,799 claim repeated above should’ve been rejected based on an iPhone and the board game Risk. Just a handful of lines about implementing games on computers, no mappings, end of rejection.
“I have to say I actually worked on a whole bunch of patents in my career over the years. And I have to say that every single patent is nothing but crap.”
Not as bad as the inventor who, after reviewing the allowed claims, states:
“But this isn’t what I invented!”
In all fairness (to the essence of a patent being a legal document, looking outward for a 20 year scope of protection, and if the inventor had only thought of one embodiment), if you as a practitioner are NOT getting that statement (to at least some degree), then you are doing it wrong.
Granted there are plenty of savvy inventors that have been around the block and recognize — from the start — that the legal claims will have employed a Ladders of Abstraction approach to an initial embodiment in order to (justly) obtain the proper legal coverage.
In particular, the appellate panel agreed that the claims are directed to “the abstract idea of associating game objects and moving one or more of the objects.”
What happened to identifying the focus of the claimed advancement over the prior art? I’m sure associating game objects and moving or more of the objects have been done for three or four decades now.
This opinion is just another example of the hopeless inconsistencies in the CAFC’s 101 jurisprudence. Factors that are important in one instance are completely ignored in another instance. There is little rhyme or reason behind what the Federal Circuit does — with the exception of that if you get a bad panel (which most are), your patent is invalidated.
The invention is about moving objects on a graphical user interface. There is no “abstract idea” being claimed. This doesn’t involve some “fundamental truth; an original cause; a motive” or “basic tools of scientific and technological work” that would “stifle the very progress that Congress is authorized to promote.”
The reason why this was deemed to be unpatentable (besides the panel) is that this is software used for a game. DEAD ON ARRIVAL. However, if the invention was some physical gadget to improve one’s golf swing, that would likely be patentable subject matter — someone please explain to be the policy justification for such differences.
The PTO is just bad at examining software-based patents. Often these applications will present an obfuscated “invention” that is merely the result of PHOSITA using an ordinary amount of skill to solve a particular problem. The solutions presented are the same or similar to solutions that any PHOSITA would come up with if faced with the same problem. *stares in data processing*
Sure, although your account of the situation really bespeaks a §103 issue rather than a §101 issue. It is not ideal that the SCotUS has warped §101 to resolve a problem that Congress addressed in §103.
This narrative leaves out how the CAFC set the field for the problem by their inventive interpretation of the law.
The CAFC was simply applying the CCPA’s precedents, which in turn were mostly crafted by the same man who drafted §103.
I do not think that it was the CAFC whose §103 jurisprudence was especially “inventive.” The CAFC and CCPA were mostly just giving straightforward effect to the words that Congress wrote. It was the SCotUS who “invented” a truly wacky notion of the PHOSitA in order to bend obviousness jurisprudence out of the channel that Congress had carved for it, and back into the old Cuno Engineering channel that Congress had worked to replace.
“The CAFC was simply applying the CCPA’s precedents, which in turn were mostly crafted by the same man who drafted §103”
I do not understand how Rich’s influence lends weight to their interpretation. It has precisely the opposite effect on me.
In scenario one, one person writes a law, and a second person interprets it slightly beyond the express language.
In scenario two, one person writes a law, and later they interpret it slightly beyond than the express language.
Ceteris paribus, I trust the interpretation of scenario two less than the interpretation of scenario one, because the person had the chance to write the law to define that interpretive boundary expressly and did not.
“It was the SCotUS who “invented” a truly wacky notion of the PHOSitA in order to bend obviousness jurisprudence out of the channel that Congress had carved for it”
I’ll admit to ignorance here, I don’t quite understand what you’re referencing here. Did Graham substantially change the “person having ordinary skill in the art” of the statute? How well defined does the 103 of the 1952 act read to you? Honestly, to me “obvious” looks like a placeholder rather than any sort of deliberate intent.
Did Graham substantially change the “person having ordinary skill in the art” of the statute?
Not Graham—KSR. Even Giles Rich thought that Graham gave proper effect to §103. It was KSR that warped the PHOSitA in order to bend obviousness law back toward a super-invention requirement.
On both subject matter eligibility and obviousness law, the SCOTUS has a long standing itch that it just aches to scratch. The first U.S. patent act had a requirement that patents might only be granted for inventions that at least two of the three examiners considered “sufficiently useful and important” to merit a patent. This requirement was removed in the act of 1793, but SCOTUS ever since has ached desperately to restore a “sufficiently important” requirement. The Court used to use the old common-law “inventiveness” standard to smuggle this unstatutory importance requirement into the system. When Congress codified the patent statutes in 1952, the codified Title 35 explicitly reworked both the subject matter eligibility and obviousness requirements to curtail the Court’s tendencies in this direction.
For the next 40 years, the CCPA and its successor in the CAFC basically just gave straightforward effect to the words of Congress. I am not saying that everything about the patent system worked swimmingly that whole time, but it worked according to the legislative direction that Congress gave. The problems were for Congress to fix.
Instead, the Court fell off the wagon (as we all might have expected that it would) and returned to its old bad habit of fashioning a common law “importance” standard. I do not see how any of this can be laid at the feet of the CCPA/CAFC. They were just doing a rather admirable quotidian job of applying the statute as written.
+1 for Greg here.
“the CCPA and its successor in the CAFC basically just gave straightforward effect to the words of Congress”
I sincerely do not see 35 USC 103 as pointing any more strongly at pre-KSR than post-KSR. “Obvious” is a blank slate. What Rich, the CCPA, and the CAFC wrote on that slate needed to be changed. What they wrote gave us a ton of junky patents. What they wrote created the kindling that ignited into Alice.
I’d understand your importance-of-invention objection to KSR much more if there were any further activity on the 103 front. But there isn’t, is there?
Your “feelings” are again noted – and again, your feelings do not matter squat.
What Rich… wrote created the kindling that ignited into Alice.
What is the through-line that you see between “junky patents” and Alice? I confess that I am not seeing it.
Near as I can tell, it was patent trolls, not “junky” patents that gave rise to Alice. To be clear, the impetus for Alice would have been just as strong in a world in which the NPEs were asserting incontestibly non-obvious claims as in a world in which some of the claims being asserted were also invalid for obviousness.
What really drove the impetus for Alice was stories of human individuals and small businesses being dragged into court for ordinary things like using the Minolta copier that they had bought at a reputable office supply store, or downloading podcasts onto their iPhone. It was not the obviousness of the claims being asserted in these suits that drove popular outrage (and journalistic opprobrium). It was simply that the suits were being brought by shady, anonymous LLCs against “honest,” “hardworking” “folks.”
I am skeptical that there was much of anything that the CCPA or the CAFC could have done differently (consistent with statute) that could have forestalled the clamor that gave rise to Alice. Now if the USPTO had raised the application and/or maintenance fees, that might have helped. If the Congress had added a working requirement to the statute, that might have helped. Heck, if the AIA had come online maybe 10 years earlier, so that the affected businesses/individuals would have had a cheaper alternative to litigation to contest the NPEs’ patents, that might have helped. I very much doubt, however, that a stricter obviousness requirement would have materially altered any observed outcomes vis-a-vis the 2000s NPE phenomena that lit the fire for Alice.
“It was simply that the suits were being brought by shady, anonymous LLCs against “honest,” “hardworking” “folks.””
But Alice only addressed that problem in an extremely tangential manner. I mean, if SCOTUS was going to pull something out of their robes to stop patent trolls from suing small entities, surely they could have done something more directly?
Perhaps I am naive, but I really don’t get the impression that either SCOTUS or the Media would’ve stepped into the ring in the same way if the patent trolls were armed with patents that could stand up to real 103 scrutiny. Part of the outrage was that these people were being sued for what were so obviously not real inventions!
Take the lawsuits you mentioned against Minolta copier owners. That seems to have been MPHJ LLC, with patents like US7577410. No way that stands up to a real 103. And then there’s downloading podcasts. That seems to have been Personal Audio LLC with US8112504. Plausibly less bad, but I suspect also doomed under a rigorous 103 standard. And of course, there’s Alice Corporation with US6912510. Surely no one can believes that this patent should survive 103?
So Alice and the cases you mentioned involve patents with at-best questionable non-obvious credentials. Does that not at least suggest a connection between junky patents and Alice?
“What Rich, the CCPA, and the CAFC wrote on that slate needed to be changed. What they wrote gave us a ton of junky patents”
As what obtained for Greg a ‘+1,’ your feelings Ben are immaterial.
You insert those feelings as if somehow the law (as written by Congress and merely reflected by the CCPA and CAFC) was ‘not correct,’ and ‘needed to be changed,’ and you eagerly accept re-writing by the Supreme Court because you happen to like the desired Ends.
You
f
a
i
l
to see the stunning lack of Rule of Law and “Ends justify the Means” that is especially dangerous in law.
A quick reminder:
35 U.S.C. 131 Examination of application.
The Director shall cause an examination to be made of the application and the alleged new invention; and if on such examination it appears that the applicant is entitled to a patent under the law, the Director shall issue a patent therefor.
It simply is NOT UP TO YOU to insert your feelings.
+1 for Greg.
I’d add that TSM was somewhat objective and lends itself to improving quality while KSR is not a law but gives freedom to the fact finder to find the claims obvious or not as they feel.