by Dennis Crouch
In BobCar Media v. Aardvark, the patentee (BobCar) sued Aardvark for infringing its utility and design patents as well as its trade dress related to mobile showroom services. The patentee lost on a motion to dismiss with the district court holding that BobCar had not proven its ownership rights. No ownership => no standing to sue. 
On the one hand, BobCar is listed as the assignee on the patents and the inventors stated under oath that they did assign rights to BobCar. “I am 100 percent sure that we assigned the patents to BobCar Media, LLC.” In addition, BobCar more recently filed a retroactive nunc pro tunc assignment. On the other hand, BobCar could not find the original assignment documents and apparently never actually filed it with the USPTO. In the end, the district court dismissed the case — finding insufficient evidence of ownership.
On appeal, the Federal Circuit affirmed, but did so without any opinion — simply a R.36 judgment without opinion.
BobCar has now filed a petition for writ of certiorari — focusing particularly on the issue no-opinion judgments as a matter of due process and appellate procedure.
1. Whether the Court should resolve the circuit split under Federal Rule of Appellate Procedure 36 (wherein a minority of circuit courts issue judgments without any explanation of their decisions), and elucidate whether or not the use of one-word affirmances has constitutional and statutory boundaries.
2. Whether the Federal Circuit’s extensive use of its Rule 36, to enter judgments which extinguish constitutional rights and private property rights without any explanation, violates constitutional and statutory protections, principles of right and justice, and this Court’s supervisory authority.
3. Whether Federal Circuit Rule 36(a)(3) violates constitutional principles, such as the Seventh Amendment, Due Process, and Equal Protection, by authorizing panels to affirm summary judgment decisions denying jury trials, without any explanation whatsoever, and irrespective of the rules and rights in the circuit from which the case was appealed.
The case relates to a paper I wrote several years ago, although my argument against R.36 judgments was based upon a statute that applies only to appeals from the PTO.
= = =
I spent many days in Princeton’s Fine Hall that housed the mathematics department. The petition includes an interesting story about obviousness:
In Princeton’s Fine Hall, Boas recalls, someone once posted a “Scale of Obviousness”:
If Wedderburn says it’s obvious, everybody in the room has seen it ten minutes ago.
If Bohnenblust says it’s obvious, it’s obvious.
If Bochner says it’s obvious, you can figure it out in half an hour.
If von Neumann says it’s obvious, you can prove it in three months if you’re a genius.
If Lefschetz says it’s obvious, it’s wrong.
The Scale of Obviousness (and Hardy’s preceeding story in the Petition) reminds of a similar story when a math grad student. A cohort asked one of three authors (of a well-known math trilogy) if something was obvious. After thinking about it, he went off to the second’s office, where after discussion, they sought the third, finally returning with the verdict of “Yes, it’s obvious”.
OT, but it occurred to me that there is something very much like those Pocky sticks.
Guess what it is?
Guess?
Stick matches. Almost exactly the same issues. Can you image if the first person that came up with a stick match claimed it was Trade Mark?
https://www.bing.com/images/search?view=detailV2&ccid=dm8mo1u6&id=3A942CA04BA492C6737A814D347AF6B5A8DD04A6&thid=OIP.dm8mo1u6Su1wqSOL1PoPeAHaHa&mediaurl=https://5.imimg.com/data5/DU/FC/OH/SELLER-77167920/long-matches-500×500.jpg&cdnurl=https://th.bing.com/th/id/R.766f26a35bba4aed70a9238bd4fa0f78?rik=pgTdqLX2ejRNgQ&pid=ImgRaw&r=0&exph=500&expw=500&q=stick+matches&simid=608028066272265153&form=IRPRST&ck=EC6442335ACC3EB937E7656966D1CA78&selectedindex=11&adlt=demote&shtp=GetUrl&shid=f0a94739-3203-4af4-afbd-549c132fa794&shtk=V29vZGVuIEJlaWdlIE1hdGNoIFN0aWNrcyBhdCBScyAyOTAvY2FydG9uIHwgR3VyZ2FvbnwgSUQgLi4u&shdk=Rm91bmQgb24gQmluZyBmcm9tIHd3dy5pbmRpYW1hcnQuY29t&shhk=cSsaPanyJ3%2FRFvx7uVGgsV7Ywqt0qiZmSwCkRfE5Nzw%3D&shth=OIP.dm8mo1u6Su1wqSOL1PoPeAHaHa
https://www.bing.com/images/search?view=detailV2&ccid=dm8mo1u6&id=3A942CA04BA492C6737A814D347AF6B5A8DD04A6&thid=OIP.dm8mo1u6Su1wqSOL1PoPeAHaHa&mediaurl=https://5.imimg.com/data5/DU/FC/OH/SELLER-77167920/long-matches-500×500.jpg&cdnurl=https://th.bing.com/th/id/R.766f26a35bba4aed70a9238bd4fa0f78?rik=pgTdqLX2ejRNgQ&pid=ImgRaw&r=0&exph=500&expw=500&q=stick+matches&simid=608028066272265153&form=IRPRST&ck=EC6442335ACC3EB937E7656966D1CA78&selectedindex=11&adlt=demote&shtp=GetUrl&shid=f0a94739-3203-4af4-afbd-549c132fa794&shtk=V29vZGVuIEJlaWdlIE1hdGNoIFN0aWNrcyBhdCBScyAyOTAvY2FydG9uIHwgR3VyZ2FvbnwgSUQgLi4u&shdk=Rm91bmQgb24gQmluZyBmcm9tIHd3dy5pbmRpYW1hcnQuY29t&shhk=cSsaPanyJ3%2FRFvx7uVGgsV7Ywqt0qiZmSwCkRfE5Nzw%3D&shth=OIP.dm8mo1u6Su1wqSOL1PoPeAHaHa
Much like the popsicle stick, the view remains the same in regards to what is to be deemed essential.
See also: link to teenvogue.com
Note that while your link provides a putative example of a SQUARE wooden portion, various shapes could be used, and thus, the shape itself cannot be an essential item.
anon, except the shape goes to cost and efficiency.
Checkmate.
Not checkmate – the question is not merely functional, so ‘goes to’ does not help.
The plain fact of the matter is that multiple cross-sectional shapes ARE in use.
EACH of these multiple cross-sectional shapes carry their own “cost and efficiency,” and yet, each of them ARE in the market.
Remember (and again, I am somewhat speaking for Perry), the key is ESSENTIAL functionality.
(for convenience: link to patentlyo.com )
anon, what part of that stick match do you think is non-essential functionality? The shape? Really? As far as I know there are no cases in Trade Mark law that would support that.
I admit I haven’t done much in Trade Marks but I did in law school and when I left law school.
I know of not a single case that would remotely support such a basic feature of shape to support a Trade Mark.
Where the choices of the shape are square or round.
This is NOT a matter of ‘finding a case’ and is a matter of simply using critical thinking.
How many different aspect ratios for a rectangular cross section are there?
How many round and near round cross sections?
How many OTHER cross sections? (triangular, octagonal,…)
The point being advanced by Perry is that the courts have gotten into the weeds with confusing a functionality per se with the essence of essentiality.
“Something” may well be essential to serve the identified function of not having one’s hands (and the heat therefrom) on a chocolate coating.
But the particular cross-sectional shape is — factually — NOT an essential element of such a thing.
By the way: your own attempt to provide pictures of matchsticks proves this case.
… and as the recent DABUS case may illustrate: a cross sectional shape of fractal…
Dennis, your Princeton and von Neumann anecdote about degrees of subjective obviousness is amusing. It set me thinking about judging obviousness objectively, using a TSM test. Not sure that, if we could put John v. Neumann to such a test, even he with his unique gifts would be able to find in the state of the art anything rising to a TSM that would render the claimed subject matter obvious to the PHOSITA.
Bros did you guys hear that capitalist corporation Am Express is now parroting leftist talking points about how capitalism (and one presumes also credit card companies used therein) is raci st? You really can’t make this sht up, capitalism so successful that it can openly parrot propaganda against itself with no effect.
The chad capitalism: propagandizes against itself *still successful*.
link to yahoo.com
Translation: “Do as I say, not as I do.”
– the real people in power at Amex.
Answer: link to scholarship.law.vanderbilt.edu
The virgin law review article: but but but rule 36 affirmances are improper!
The chad Federal Circuit: shts out 15 rule 36 affirmances a day
Did you read the article?? It explains why Rule 36 affirmances are ok.
Yeah I know, but I was just posting about the ongoing meme of articles written against the rule 36 affirmances
Which makes the Dowd article interesting in that it goes against that meme.
I may even read it this weekend (just for jakes).
Could the failure to perfect a written chain of title before filing suit still be overcome by refiling the patent suit after doing so? Contesting Fed. Cir. Rule 36 affirmances is going nowhere.
The questions presented are worded oddly. What constitutional and property rights were extinguished exactly?
There is an old saying in family law that the market supports two kinds of divorce lawyers: (1) the kind who can get you the best possible settlement; & (2) the kind who can make your ex’s life miserable. For better or worse, we are seeing the same dynamic emerge in patent law: (1) there are patent lawyers who can advise you how best to leverage IP to support your business goals; & (2) there are patent lawyers who can scratch your itch for libertarian derp.
I do not have an itch for libertarian derp, so the second class always seems kind of ridiculous to me. As an empirical fact, however, the Venn diagram between pro se “inventors” of software apps and subscribers to Ron Paul newsletters shows a substantial overlap, so there is a decent living to be made by patent lawyers willing to peddle libertarian derp.
Wow, is this not only highly conceited, it is in clear error in superimposing political view on top of patent law.
“Contesting Fed. Cir. Rule 36 affirmances is going nowhere.”
lol – this translates to the rather ignoble “who are you to bother?”
> Could the failure to perfect a written chain of title before filing suit
> still be overcome by refiling the patent suit after doing so?
> Contesting Fed. Cir. Rule 36 affirmances is going nowhere
This is true, but I don’t think they filed the certiorari petition because of the chain of title/standing dismissal. The district court also granted summary judgment against the plaintiff’s trade dress claim (as its jurisdiction over that claim wasn’t impacted by the lack of proper patent assignment). The cert. petition seems to focus mostly on the fact that the CAFC summarily affirmed the trade dress summary judgment ruling.
But this petition is really unfocused and, at times, has a distinct Tinfoil Hat vibe to it. What’s ironic is that cert petitions like this, if anything, tend to demonstrate why the Federal Circuit needs to maintain the Rule 36 as a tool to avoid wasting time on meritless appeals.
[T]his petition is really unfocused and, at times, has a distinct Tinfoil Hat vibe to it.
Right, because libertarian derp sells. It is bad law, but good client service. “Tinfoil hat” is the aesthetic preference of this sort of client. Morris Cohen, Esq. is simply giving the client what they want.
“The case relates to a paper I wrote”
To be more precise:
On page xi, Other Authorities include
Amy Coney Barrett,
Antonin Scalia,
Benjamin N. Cardozo, and
Dennis Crouch.
Cardozo? Benny “The Judge” Cardozo!!! That guy owes me money!
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