Another week, another mandamus

by Dennis Crouch

In re Uber Technologies, Inc. (Fed. Cir. 2021)

Another week, another mandamus. This case is parallel to In re Samsung discussed earlier where Ikorongo divided its patent rights between Ikorongo-Texas (right to enforce in W.D.Tex.) and Ikorongo-Tech (right to enforce elsewhere in USA).  In Samsung, the appellate court rejected this brazen attempt to manipulate venue. Here, the court found “no basis for a disposition different from the ones reached in Samsung” and ordered transfer to N.D.Cal.

Bald-Faced Attempt to Manipulate Venue Rejected

 

28 thoughts on “Another week, another mandamus

  1. 2

    Albright is a marketing genius. Apparently having tired of personally advertising his courtroom, he’s now getting the CAFC to do his promotional work for him.

    1. 2.1

      Not sure of the promotional value of
      F
      A
      I
      L
      E
      D
      attempts to keep cases before him is what Judge Albright would be aiming for…

    2. 2.2

      No further such promotion is needed by now. Of interest to anyone wondering who is filing patent lawsuits lately, especially in Waco TX [or still arguing that there is no such thing as PAEs or patent trolls], IPWatchdog reports that “It was a busy week for patent filings in the district courts, with 113 complaints filed, fueled particularly by nearly 50! “IP Edge” complaints, primarily filed in the Western District of Texas’s Waco Division.” It reports that IPEdge files through various shell corporation subsidiary named plaintiffs including “Orbit Licensing, which is asserting patents licensed from Chinese company Huawei against U.S. companies. The subsidiaries include Swirlate IP LLC, Altair Logix LLC, Crimson IP LLC, Orbit Licensing, Invincible IP, Lecrew Licensing LLC, Mellaconic IP LLC, Tunnel IP LLC, and more..” “IP Edge is “investing in bigger portfolios, including a number of ‘IP Bridge’ transferred patents.”
      Also reported was that “K.Mizra” has targeted the big four major U.S internet service providers AT&T, Sprint, T-Mobile, and Verizon. It reportedly has a subsidiary, Ginegar IP and patents collected from Daedalus Blue and other NPE entities. “K.Mizra appears to be a foreign-owned entity controlled by Charles Jourdan Hausman.”

      1. 2.2.1

        Duh. eBay, Alice, and PTAB (with broad support from the patent bar) “fixed” the patent system so ONLY patent trolls can participate. Actual innovators are entirely excluded.

        1. 2.2.1.1

          Way to lump all of us into that “broad support of the patent bar”….

          Some of us are still fighting the good fight.

          1. 2.2.1.1.1

            I am a member of the patent bar, and prior to that was a negligent stakeholder. The line is pretty clear now, glad to have you on the good side.

            1. 2.2.1.1.1.1

              What is sad Josh is that an inventor like yourself has had to put so much energy into trying to fix our patent system instead of inventing.

              What a waste. Imagine all the inventions we have missed because Josh has had to spend his time trying to understand why our patent system is broken.

              1. 2.2.1.1.1.1.1

                On a (slight) tangent, I am reminded of the fiduciary duty of a FranchisOR to a FranchisEE and possible support such as indemnifications on the reach and substance of the item being franchised.

                If only patents were considered (fully) to be such a [Public] Franchise to inure the grantor to run that support for the grantee…

        2. 2.2.1.2

          Alice, eBay, & the AIA made it so that only NPEs can participate in the patent system? Huh?

          NPEs have been the biggest losers from all three of those legal changes. Your assertion makes no sense in view of lived experience.

          1. 2.2.1.2.1

            PAEs are a narrower sub-category of NPEs. [E.g., NPE’s include non-product-performing universities, small inventors, and others, trying to license their own patents to a product manufacturer or seller.]
            The demonstrated amounts of speculative litigation funding inherently flowing into PAEs [who’s sole business is acquiring patents of others and suing U.S. companies on them] is either major dumb investing, or, more likely, lucrative investing in the business of patent suits for cash settlements IN SPITE “of Alice, eBay, & the AIA.” Especially for suits filed in Waco and [apparently] more likely avoiding both Alice and AIA IPRs so far? [But NPE’s are not going to avoid eBay, and Alice-101 may be viewed differently at the CAFC in appeals of suits not settled at the D.C. level.]

            1. 2.2.1.2.1.1

              Well Greg, it appears that Paul is saying that his “lived experience” points in the exact opposite direction of yours.

              Maybe that Big Pharma Shill in-house experience of yours is not all that it is cracked up to be.

  2. 1

    “brazen attempt to manipulate”

    True that. Which immediately brings to mind the CAFC’s (innovation-crushingly successful) brazen attempt to manipulate . . . the SCOTUS’ Mayo & Alice decisions.

    What’s good for the goose an’ all . . .

    1. 1.1

      Probably it’s time again for one of these Orange Julius Caesar-worshipping Texas attorneys to weep in the courtroom. That was a magical and powerful moment the first time around!

      1. 1.1.1

        Malcom being Malcolm


    2. 1.2

      Do you really think that the Supreme Court would have denied the FIFTY PLUS certs on eligibility if they thought that the CAFC were even ‘subtlety’ (much less than brazenly) manipulating their writings?

      Please Pro Say, expand your thinking just a little bit. Sure, the CAFC carries their share of the blame, but the REAL blame lies at the Supreme Court level.

      To paint the Supremes as “saintly” is simply a huge mistake.

      1. 1.2.1

        Re: Anon – the Supreme Court would not have denied 50+? certs on judicial unpatentable subject matter exceptions to 101 eligibility if the Fed. Cir. was deciding inconsistently with their views. Good point Anon, although there are other good cert denial reasons, including many cases not that deserving of winning for other reasons.
        I think one reason for blaming the Fed. Cir.* instead of the Supremes here is with those so politically [rather than legal reality] programmed as to think that a Supreme Court majority will agree with their views on patent law, copyright law, etc., if only enough conservative or liberal justices are appointed. That view should have been disabused by simply noting which justices have voted for what in even the the most recent such Sup. Ct. decisions.
        *[Not that the Fed. Cir. has been consistent between panel decisions.]

        1. 1.2.1.1

          Meh, I don’t know about that.

          I leave it up to Pro Say to weigh in on whether or not such a view “fits.”

          1. 1.2.1.1.1

            Thanks anon. Here’s my weigh in:

            Think tipping point, Paul.

            SCOTUS has finally had enough.

            Time for another CAFC beat down.

            1. 1.2.1.1.1.1

              But Pro Say, the question appears to be more as to why you would believe that the Supreme Court has reached that tipping point, why you believe that they have had enough.

              You plainly “see” something no one else is seeing (or your desires are simply coloring your vision).

              I mean, I certainly “get” the “want,” but what makes you feel that you think the Justices have reached the point that you indicate?

              1. 1.2.1.1.1.1.1

                “what makes you feel that you think the Justices have reached the point that you indicate?”

                A confluence of 5 factors:

                1. 50+ cries for help.

                2. Their request for the gov’s viewpoint in American Axle.

                3. New judges.

                4. The realization of just how much damage the CAFC has and is continuing to do to American innovation . . . as exemplified by the trashing of a camera patent . . . demonstrating that if they don’t do something, the CAFC will continue to widen the scope of ineligible innovations.

                5. Congressional inaction.

                Tipping point.

                1. Interesting and thanks.
                  As to….

                  1: this factor speaks against the view you see.

                  2: ok, that request is on your side of the ledger

                  3: not sure that I see how the new judges affect which side of the ledger this would fall to. The fact that there ARE new judges may shade a bit towards your side (but I think that this was something Paul was painting as a bit of “hope” rather than substance)

                  4: I have NOT seen this “realization” reflected anywhere.

                  5: I am not sure that the Court cares all that much about inaction, and to the extent that inaction IS what they see, I would suspect that this would NOT favor your view, but instead would indicate (to them) that their past actions were ‘ok.’

                  Of your five confluences then, two are opposed to your view, one absent, and two are at best only slightly towards your view.

                  Not a strong set of confluences for you.

                2. Oops, sorry . . . I forgot the dispositive #6:

                  My never-wrong crystal ball says it will be so. 🙂

                  p.s. Looks like we’ll have to respectfully disagree on which sides of the ledger my other 5 points fall on.

                3. LOL on your #6 – (and “dispositive” actually works against you as we attempt to have a cognitive discussion of your points).

                  As to the others, it is WAY too early to call out a Biden-like “lid” with that “agree to disagree.”

                  Put up some defense as to why the items should fall any other way than what I have laid out.

                4. “Put up some defense as to why the items should fall any other way than what I have laid out.”

                  Here. You. Go:

                  1. This factor works in my favor because the justices have finally realized they can wait no longer to take action. That 50+ requests is enough. That this issue is now ripe. That unless they step up now, they’ll spend the next 5 – 10+ years “just saying no” to everyone everywhere.

                  These just calls and cries for help are not going away.

                  Ever.

                  Nor should they.

                  2. Yes; my side.

                  3. Yes; my side. The new judges are more likely to correctly embrace 101 / eligibility for “everything under the sun.”

                  4. American Axle will provide this realization.

                  5. The good judges have always cared (silently) about Congressional inaction on this issue. With yet another Congressional call for more, unnecessary and time-wasting, “public comments” . . . they realize that saving American innovation is up to them.

                  6. Crystal ball.

                5. I am not going to give you the first point (and the fifth point is STILL a reflection of this).

                  You are assuming the point to be proven. Quite in fact, the 50 plus does NOT signal what you WANT it to single, and instead signals the opposite: that the Court has chosen not to act in a VERY consistent pattern.

                  The Court has chosen to turn a deaf ear to those cries with their CHOICE to deny cert so many times.

                  I “get” that you want their to be a ‘sense’ of “that’s enough,” but that sense is YOURS and is just not the Court’s.

                  Your “point” of 4 remains pure conjecture, and as such simply does not exist to be put (yet) into your side of the ledger.

                  The point 5 WOULD be in your ledger HAD there been some positive outcome of the actions of Congress.

                  That did not happen, and thus, you can obtain no credit for your side of the ledger on this point.

                  Again, you are not addressing the reality that without rebuke (from Congress), the status quo ante prevails, and that is opposite your assertions.

                  As to point 6, well, given your weakness on the more objective points, the fact that you WANT to rely on this point only weakens your assertions even more.

                  This last point simply translates into a rather weak “because I want it.”

                  That has zero persuasive ability.

                6. Time to stop beating this long-dead horse my friend.

                  I’m standing by my reasoning; you’re standing by yours.

                  Let’s meet again on this after the Axle decision confirms that the eligibility tipping point has indeed been reached.

                  For the good of American innovation, and indeed our entire nation, this is one argument you need to be wrong on.

                7. You are standing by your LACK of reasoning – as the back and forth shows.

                  I was hoping that you would pick up on that without having to have me say it directly.

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