Hon. Judge Stark to be Appointed to the Federal Circuit

by Dennis Crouch

Delaware was already a popular venue for patent cases before the Supreme Court’s 2017 venue decision in TC Heartland. Since 2017, it has moved from popular to hot since so many companies are formally incorporated in the state.  (State of incorporation => proper venue in patent cases).  Delaware particularly been seen as a fair jurisdiction where both plaintiffs and defendants receive a full and fair hearing.  Thus, it is a popular spot for operating companies to sue as plaintiffs, knowing that they may face affirmative counterclaims in the same lawsuit.

The Federal Court in Delaware has four judges, all of whom now have a substantial patent litigation caseload. This includes the most senior, Hon. Leonard P. Stark who was appointed by President Obama back in 2010.  At the time, Joe Biden was Vice President of the United States and I am confident that he had a hand in selecting Judge Stark for that position.   Judge Stark was previously a magistrate judge and an assistant US attorney, all in Federal Court in Delaware.

The White House has announced that it intends to elevate Judge Stark–nominating him to serve as a Circuit Judge on the Court of Appeals for the Federal Circuit.  He will replace Judge Kathleen O’Malley who has indicated her intent to retire in March 2022.  Judge O’Malley is the only current Federal Circuit judge with extensive experience at the trial court level, and Judge Stark brings that same type of background.

The following comes from the White House press release:

Judge Leonard Stark: Nominee for the United States Court of Appeals for the Federal Circuit

Judge Leonard Stark has served as a United States District Court Judge for the District of Delaware since 2010. Judge Stark served as Chief Judge for the District of Delaware from July 2014 to June 2021. Previously, he served as a United States Magistrate Judge for the District of Delaware from 2007 to 2010. From 2002 to 2007, Judge Stark served as an Assistant United States Attorney in the United States Attorney’s Office for the District of Delaware, where he worked in both the criminal and civil divisions. From 1997 to 2001, Judge Stark was an associate in the Wilmington, Delaware office of the law firm Skadden, Arps, Slate, Meagher & Flom LLP. He served as a law clerk for Judge Walter Stapleton on the United States Court of Appeals for the Third Circuit from 1996 to 1997.

Judge Stark received his J.D. from Yale Law School in 1996., a D. Phil. from the University of Oxford as a Rhodes Scholar in 1993, and a B.A., B.S., and M.A., summa cum laude and Phi Beta Kappa, from the University of Delaware in 1991.

Congratulations Judge Stark.

50 thoughts on “Hon. Judge Stark to be Appointed to the Federal Circuit

  1. 5

    Are my posts from yesterday ever going to be released from the filte?

  2. 4

    We definitely don’t need any more Yale (blech) graduates in the Federal judiciary but this guy seems all right. At least he doesn’t seem to have the stink of the Ferderlist Suxciety pouring off him.

    1. 4.1

      stink of the Ferderlist Suxciety

    2. 4.2

      Yale is not the only one.

      Guess how many Supreme Court Justices suffered from being from the rarified Ivy League legal track over the last fifty years?

      It’s like “Ivory Tower” syndrome on steroids. No wonder the “Coastal Elites” are so out of touch with actual mainstream America.

  3. 3

    Excellent choice for the open CAFC seat. A worthy successor to Judge O’Malley.

    1. 3.1

      Why?

      In what way is this Judge aligned to carry on the views of Judge O’Malley?

      (not rhetorical)

    2. 3.2

      I don’t get it Greg. Stark is the poster child for improper use of 101. No one who litigates in DE would think he is a good decision for CAFC if they care at all about the current eligibility morass. It’s a binary choice. If you support him, you support continued misuse of 101 at the Fed Ct level.

    3. 3.3

      Post your links to his cases on this blog Greg.

      Let’s get down and dirty.

  4. 2

    This is from the Memorandum Opinion dated February 27, 2018, in 1:15-cv-01168-LPS, before Judge Stark in American Axle Manufacturing v. Neapco Holdings:

    Neapco argues, “[t]he Asserted Claims do nothing more than use a prior art liner design (e.g., cardboard having, for certain embodiments, elastomer winding) and apply (or just characterize) the physics behind ‘tuning’ and vibration attenuation or damping.” (D.I. 150 at 28) Therefore, Neapco asserts, in order to “tune” the liner, one merely applies Hooke’s law and then measures the amount of damping. (See D.I. 150 at 29; Tr. at 53)
    The Court agrees with Neapco. There is no dispute that adjusting the mass and stiffness of the ‘liner will change the amount of damping of a certain frequency. The claimed methods are· applications of Hooke’s law with the result of friction damping. (See, e.g., D.I. 151 at 496 (inventor Sun testifying that “tuning” is “basic physics”))

    After characterizing AAM’s arguments, the Court stated:
    the Asserted Claims do not disclose a method of manufacturing a propshaft; instead, considered as a whole, they are directed to the mere application of Hooke’s law

    What is Hooke’s law? Here is one description of Hooke’s law:
    Hooke’s Law is a principle of physics that states that the that the force needed to extend or compress a spring by some distance is proportional to that distance. … This can be expressed mathematically as F= -kX, where F is the force applied to the spring (either in the form of strain or stress); X is the displacement of the spring, with a negative value demonstrating that the displacement of the spring once it is stretched; and k is the spring constant and details just how stiff it is.

    It was a long, long time ago, but I believe I somewhat recall doing an in-class science experiment in my 12th grade physics class on Hooke’s law. It is a very easily-understood principle, which is why it can be introduced in a high school physic’s class. Of note, it is the fundamental principle behind spring scales, manometer (pressure gauge), galvanometer, balance wheel (for mechanical clock).

    With this in mind, Hooke’s law only has a very tenuous relationship to the actual process of tuning a shaft (e.g., a propeller shaft). U.S. Patent No. 2,001,166 (dated May 14, 1935) describes the tuning of a propeller shaft. If the USPTO had a better search engine, I’m sure I could find older patents that describe the tuning of shafts. The important point is that all of these patents are no more or less related to Hooke’s law than the patent at issue in American Axle, which is to say there is a tenuous relationship, at best.

    The danger of a decision like American Axle is that the logic employed by the district court (and subsequently adopted by the Federal Circuit) could be applied to just about any mechanical device. Any mechanical device that is moving invokes one of Newton’s laws. Combustion engines involve second law of thermodynamics. Electrical devices involve Ohm’s law and Maxwell’s equations. However, these electric/mechanical devices are no more related to that laws described above than the tuning a propeller shaft is to Hooke’s law.

    Getting back to Stark, he got hoodwinked by a clever attorney. As a district court judges, those things can happen. You aren’t a subject matter expert, and sometimes an attorney can state something that is absolutely preposterous but that isn’t readily apparent to a layperson. However, as a Federal Circuit judge, you need to know better. You need at least a fundamental familiarity with technology such that when someone tells you a whopper (e.g., “[t]he Asserted Claims do nothing more than use a prior art liner design (e.g., cardboard having, for certain embodiments, elastomer winding) and apply (or just characterize) the physics behind ‘tuning’ and vibration attenuation or damping.”) it sets off alarm bells. If you cannot understand the facts, you cannot appropriately apply the law to the facts.

    Perhaps Judge Stark is a great jurist. Perhaps he belongs on one of the Court of Appeals. However, he does not belong on the Federal Circuit. He has shown that he does not even have a rudimentary understanding of even the most basic of technology — that is dangerous.

    1. 2.1

      +1

      1. 2.1.1

        Did the Dyk-Taranto-axis-of-evil adopt Judge Stark’s analysis in American Axle in the Federal Circuit affirmance? Or, did they have to come up with their own spin on the 101 issue because Judge Stark’s analysis was too wobbly?

        1. 2.1.1.1

          They came up with their own spin as I remember it.

        2. 2.1.1.2

          Did the Dyk-Taranto-axis-of-evil adopt Judge Stark’s analysis in American Axle in the Federal Circuit affirmance? Or, did they have to come up with their own spin on the 101 issue because Judge Stark’s analysis was too wobbly?
          This is from the modified opinion:
          We conclude that independent claim 22 of the ’911 patent is patent ineligible under section 101 because it simply requires the application of Hooke’s law to tune a propshaft liner to dampen certain vibrations.

          This is claim 22:
          A method for manufacturing a shaft assembly of a driveline system, the driveline system further including a first driveline component and a second driveline component, the shaft assembly being adapted to transmit torque between the first driveline component and the second driveline component, the method comprising:
          providing a hollow shaft member;
          tuning a mass and a stiffness of at least one liner; and
          inserting the at least one liner into the shaft member; wherein
          the at least one liner is a tuned resistive absorber for attenuating shell mode vibrations and wherein the at least one liner is a tuned reactive absorber for attenuating bending mode vibrations.

          This is what they also wrote about claim 22 (as compared to claim 1):
          In contrast with claim 22, which as construed recites nothing more than a desired result and an instruction to apply Hooke’s law, we cannot say claim 1 as construed is directed to a particular natural law and nothing more.
          An instruction to apply Hooke’s law? Seriously? I reproduced Hooke’s law above. Nothing about that claim language is an instruction to apply Hooke’s law.

          To answer your question, they adopted Stark’s analysis and added a bunch of gobbledygook that half the judges in the Federal Circuit took issue with in a decision denying a Request for Rehearing en banc.

          1. 2.1.1.2.1

            Wandering, the CAFC added a lot from the EPO file wrapper and I believe referred to a new reference that was similar to the one in the EPO file wrapper (and I don’t think was referenced anywhere in the record). The CAFC actually did a lot of supplementing.

            1. 2.1.1.2.1.1

              In fact, Wandering, I still don’t understand why it was not criticized that the CAFC manufactured a new argument and used a new reference to parallel the arguments at the EPO.

              I thought it was just bizarre that the lawyers didn’t protest this. As far as I could tell, the CAFC used a reference and made a factual finding about what it showed without the opportunity for the patentee to contest the factual finding.

          2. 2.1.1.2.2

            Whether it is “Hooke’s Law” or some previously known and related extension of “Hooves law” isn’t a distinction that is relevant to the result in this case. The problem is the “invention” is claimed (and distinguished from the art) in terms of a result. In this case, it happens that the result is achieved by applying a known abstraction. The claim would be even worse if the claimed result could only be obtained by a non-obvious method which is why the patentee made its ultimately unhelpful admissions.

            1. 2.1.1.2.2.1

              by applying

              This is not new to (or from) you, Malcolm.

              But try to remember, there are real differences between:
              math,
              applied math
              Math(S)

    2. 2.3

      “The danger of a decision like American Axle is that the logic employed by the district court (and subsequently adopted by the Federal Circuit) could be applied to just about any mechanical device. Any mechanical device that is moving invokes one of Newton’s laws. Combustion engines involve second law of thermodynamics. Electrical devices involve Ohm’s law and Maxwell’s equations. However, these electric/mechanical devices are no more related to that laws described above than the tuning a propeller shaft is to Hooke’s law.”

      The muh chicken little “danger” crowd, lol. Meanwhile back in reality no further cases have had such issues, and you’ll see maybe 1 per decade with this issue. And it will always result from the drafter not be at all careful and overdrafting.

      1. 2.3.1

        Meanwhile back in reality no further cases have had such issues
        Not paying attention, are you? I just you read Yu v. Apple, which was issued in June of 2021.

        This is the claim:
        1. An improved digital camera comprising: a first and a second image sensor closely positioned with respect to a common plane, said second image sensor sensitive to a full region of visible color spectrum; two lenses, each being mounted in front of one of said two image sensors; said first image sensor producing a first image and said second image sensor producing a second image; an analog-to-digital converting circuitry coupled to said first and said second image sensor and digitizing said first and said second intensity images to produce correspondingly a first digital image and a second digital image;
        an image memory, coupled to said analog-to-digital converting circuitry, for storing said first digital image and said second digital image; and a digital image processor, coupled to said image memory and receiving said first digital image and said second digital image, producing a resultant digital image from said first digital image enhanced with said second digital image.

        This was killed on a Rule 12(b)(6) motion to dismiss.

        you’ll see maybe 1 per decade with this issue
        You’ve been around for how long now and you haven’t figured out how the Federal Circuit works? Look at the Federal Circuit decision of Electric Power Group v. Alston from 2016 That holding had a LOT of caveats. However, over time, over Federal Circuits citing that decision have ignored the original caveats placed on that decision such that anything that involves “collecting information, analyzing it, and displaying certain results of the collection and analysis” is an abstract idea. Collecting information, analyzing the information, and displaying results of the collection/analysis is implicated in just about every computer program that involves a user interface. What was once a narrow decision that was easily distinguishable on its facts has subsequently become a powerhouse decision used to invalidate wide swaths of technology.

        All it takes is some enterprising defense attorney (and a judge not interested in trying a patent case) and you’ll see a worse version of American Axle appealed to the Federal Circuit. With the right panel (or wrong panel depending upon your POV), you’ll get an affirmance and the race will be on to see to see how much can be invalidated under this rubric.

        The scope of what constitutes non-statutory subject matter increases every year and will continue to do so absent a change in the statutory law (very unlikely), a clarification from the Supreme Court (unlikely), or an en banc decision from the Federal Circuit that reinterprets Alice/Mayo (also unlikely).

        it will always result from the drafter not be at all careful and overdrafting
        I can all but guarantee you that the drafter of the patent at issue in American Axle or Yu never dreamed that their claims would be tanked under 101. I feel fairly confident that when these patents were issued, the Examiner never dreamed of rejecting the claims under 35 USC 101.

        1. 2.3.1.1

          6 is regressing to his former “always blame the applicant” mode.

        2. 2.3.1.2

          “Collecting information, analyzing the information, and displaying results of the collection/analysis is implicated in just about every computer program that involves a user interface.”

          Wowie zowie, so maybe you can’t distinguish in those terms?

          “This was killed on a Rule 12(b)(6) motion to dismiss.”

          Going to presume everything in the claim save the abstract part was in the prior art right?

          “Look at the Federal Circuit decision of Electric Power Group v. Alston from 2016 That holding had a LOT of caveats. However, over time, over Federal Circuits citing that decision have ignored the original caveats placed on that decision such that anything that involves “collecting information, analyzing it, and displaying certain results of the collection and analysis” is an abstract idea.”

          You do know that the Federal Circuit does not, itself, determine what is, and is not, an abstract idea correct? That’s reality that determines that bro, the courts merely recognize such when they see it.

          “What was once a narrow decision that was easily distinguishable on its facts has subsequently become a powerhouse decision used to invalidate wide swaths of technology.”

          Good. Learn to distinguish from the prior art in terms that are not abstract. Welcome to the Useful Arts bruh.

          Look I disagreed with the American Axle decision when it came out, and I still do, as I think that even though they probably did stray too far into the claiming, the claim could have been properly drafted and still covered everything just fine (in other words it was nothing but draftsman’s opsie at worst and I disagree with punishing the patentee/public for the court’s officers, aka attorneys, fcking up so long as it is blatant and blatantly should have been corrected by the officer of the court). And furthermore, it was blatantly an attempt to claim an old school useful arts widget, plainly patent eligible, period. The whole paradigm of punishing the patentee for the government’s screwing up (officer of the court, aka a lawyer) is ta rd tier governance.

          “I can all but guarantee you that the drafter of the patent at issue in American Axle or Yu never dreamed that their claims would be tanked under 101. ”

          I agree, which is why I disagreed with the decision, it was practically out of left field, even if they did screw up, the courts holding the patentee to account for the officer of the court screwing up in such circumstances is ta rded at best as a matter of governance where the claim could be correctly drafted to cover everything relevant anyway.

          “All it takes is some enterprising defense attorney (and a judge not interested in trying a patent case) and you’ll see a worse version of American Axle appealed to the Federal Circuit. With the right panel (or wrong panel depending upon your POV), you’ll get an affirmance and the race will be on to see to see how much can be invalidated under this rubric.”

          That’s a problem within the operation of the courts and their officers (lawlyers) bro, not a problem with the law. And I agree, it should be worked out. But that needs to be done within the courts. They do have conferences and sht, are there no leaders that could you know, get that sht sorted?

          1. 2.3.1.2.1

            Wowie zowie, so maybe you can’t distinguish in those terms?

            The issue is NOT distinguishing, as it is at the hurdle of eligibility.

            Of course, you knew that, eh?

            Going to presume everything in the claim save the abstract part was in the prior art right?

            You also knew about the claim as a whole, and the fact that Diehr is still good law, eh?

            Two strikes right off the bat, 6. I stopped there.

            1. 2.3.1.2.1.1

              Diehr is still good law

              Except for the most banal aspect of Diehr, nobody actually believes this and more importantly except for the microscopic community of patent huffing glibertarian online patent attorneys nobody WANTS it to be true.

              Y’all had your chance in Mayo and Alice and your position was righteously destroyed because of course it was.

              1. 2.3.1.2.1.1.1

                nobody WANTS it to be true.

                Y’all had your chance in Mayo…”

                You do remember that Mayo expressly confirmed that such was still good law, eh?

                You just don’t get to dissect “Diehr into what you may consider “banal” and “non-banal” and only adhere to the items that you may like (or tolerate).

                That’s just not how law works – and you do (or should) know that.

                1. “ You do remember that Mayo expressly confirmed that such was still good law”

                  Again, no sane person believes that the obviously and impossibly wrong holding in Diehr (I.e., “the presence of an eligible element means that the claim is eligible”) is “good law”.

                  Pretending otherwise just shows everyone that you’re a total and worthless hack.

                2. “ That’s just not how law works”

                  … says the glibertarian patent huffer who constantly makes up complete baloney and who habitually steps up to defend the world’s least intelligent, least honest and most amoral inhabitants.

                3. Yet more v0m1tfest feelings from Malcolm…

                  You want to call “sane” your errant treatment of law – that’s just not sane.

                  I make up nothing.

                  I defend the Rule of Law (and do so in a pro-innovation mode). My defense has nothing to do with the “character” of anyone. You only too eagerly rush into your own (illogical) emotional reliance on “good” people, and so let me yet again share the classic response to your nonsense: Sir Thomas More called and would like to explain how law works, regardless of “character.”

                  Maybe if you spent less time absorbed in your emotions and more time understanding the law, this would not be so difficult for you to understand.

            2. 2.3.1.2.1.2

              “The issue is NOT distinguishing, as it is at the hurdle of eligibility.”

              We both know those are related in this context derp derp. We’re post alice re re.

              “You also knew about the claim as a whole,”

              Yeah and we look at what the effect of the claim as a whole is, and the claim as a whole is nothing but an attempt to claim the abstraction, somewhat tied to the physical object ala Flook (I’m guessing that is the situation in the claim as I have not yet checked the prior art and analyzed it in full). Where Flook is also great lawl.

              1. 2.3.1.2.1.2.1

                both know those are related in this context

                NOT as you are attempting to conflate.

                YOU don’t even get to the claim as a whole above, so this portion of your retort is non-responsive. Try again.

                Flook was cabined by Diehr – See expressly in Bilski.

          2. 2.3.1.2.2

            Wowie zowie, so maybe you can’t distinguish in those terms?
            The point was that holding of Electric Power Group was expanded over time. It is quite narrow on its face but has gotten increasingly expansive in scope over time.

            Going to presume everything in the claim save the abstract part was in the prior art right?
            That has been an assumption made by the Federal Circuit for a long time. Almost all elements of an invention exist in the prior art. Regardless, the issue is what the Federal Circuit deemed to be an “abstract idea.” As stated by Prost (why is it always always Prost or Dyk?), “We agree with the district court that claim 1 is directed to the abstract idea of taking two pictures (which may be at different exposures) and using one picture to enhance the other in some way.” Using one picture to enhance the other in some way is not an abstract idea — it is a technical process.

            You do know that the Federal Circuit does not, itself, determine what is, and is not, an abstract idea correct? That’s reality that determines that bro, the courts merely recognize such when they see it.
            The determination of what is or is not an abstract idea is a question of law. That means the Federal Circuit can (and does) make that determination.

            I agree, which is why I disagreed with the decision, it was practically out of left field, even if they did screw up, the courts holding the patentee to account for the officer of the court screwing up in such circumstances is ta rded at best as a matter of governance where the claim could be correctly drafted to cover everything relevant anyway.
            Of course, EVERY patent that has been tanked by the Courts has been issued by the USPTO and examined under 35 USC 101. In other words, every patent that was tanked by the Courts was supposedly improperly issued. The kicker is that 35 USC 101 is not even a defense under 35 USC 282. If the Courts were to actually follow the statutes, 35 USC 101 defenses would never appear in District Court.

            That’s a problem within the operation of the courts and their officers (lawlyers) bro, not a problem with the law. And I agree, it should be worked out. But that needs to be done within the courts. They do have conferences and sht, are there no leaders that could you know, get that sht sorted?
            Patent defendants will always push to have more and more subject matter declared patent ineligible. They wouldn’t be zealously advocating for their clients if they weren’t. As for the Courts themselves, they have hardly been beacons of lights for inventors over the past couple of decades. The only thing that can change things is if the 9 members of the Federal Circuit decide to take on an case, en banc, are sweep aside the morass of inconsistent/bad decisions that have issued subsequent to Alice.

            If Cunningham is on board for this, then it could happen. However, it has to happen by March of 2022, at which point Stark replaces O’Malley and the numbers shift. Personally, while I would very much like such a thing to happen, I very much doubt anything of that nature will happen.

            1. 2.3.1.2.2.1

              “The point was that holding of Electric Power Group was expanded over time.”

              I know what your muh point was supposedly, and it is mistaken. Sorry bruh.

              “It is quite narrow on its face but has gotten increasingly expansive in scope over time.”

              It didn’t expand one inch. They’re just making citations to it when they find an abstract idea in other cases re re. Again, the courts don’t make abstract ideas in the claims, they just recognize their presence or absence when they see em or don’t see em.

              “Regardless, the issue is what the Federal Circuit deemed to be an “abstract idea.””

              I know that your “muh issue” and that’s because you’re tar ded.

              “Using one picture to enhance the other in some way is not an abstract idea — it is a technical process.”

              Sounds an awful lot like one. Though I will not speak to the specifics of the case in terms of making any actual judgement on that matter. Just sayin, it sounds like one.

              “The determination of what is or is not an abstract idea is a question of law”

              Absolutely 100% incorrect. Although I can understand why you ta rds keep thinking that it is. It is more of a finding of fact, or recognition of reality, rather than a “muh finding of lawl”. Courts should make this clear to you tar rds, but it isn’t sinking in just yet. Though yes, once an abstract idea is acknowledged to be at issue, then legal findings and formal findings of law can be made from there based thereupon. But that is AFFFFFTER the former happens.

              “Of course, EVERY patent that has been tanked by the Courts has been issued by the USPTO and examined under 35 USC 101. ”

              I’m well aware of that. I also know that the USPTO operates on an ENTITLEMENT system (that is unless the office notices, and can prove the claim invalid then it does not reject it), not on a lollipop muh I get to formally contest every issue in the office system. Change that system around and you and me will 100% align on this issue. Till then, which it will never happen as it costs too much, then we’re stuck with the current system. In the mean time I do think there should be at least a partial remedy available to the patentee.

              “The kicker is that 35 USC 101 is not even a defense under 35 USC 282. If the Courts were to actually follow the statutes, 35 USC 101 defenses would never appear in District Court.”

              I’m aware of that Lolable “position”. The courts have already addressed it. You need not be bothered to “defend” oneself in court against a patent that wasn’t even eligible in the first place derp.

              “The only thing that can change things is if the 9 members of the Federal Circuit decide to take on an case, en banc, are sweep aside the morass of inconsistent/bad decisions that have issued subsequent to Alice.”

              That’s ta rded thinking and doesn’t actually address the issue that exists within the courts itself. Just more bandaids, at best. You need to fix the court system, not the lawl.

              “I very much doubt anything of that nature will happen.”

              Of course that tar dation isn’t going to happen derp.

              1. 2.3.1.2.2.1.1

                I was beginning to respond but noticed you dropped into 6th grade boy going through raging puberty mode at which point I stopped reading. If you want to have a conversation like an adult, come find me. Otherwise, don’t bother responding to my comments if you want me to read them — I won’t.

                1. 6th grade boy going through raging puberty mode

                  … feeling generous today, Wt?

                  6’s regression is easy to spot (but that regression goes earlier than 6th grade)

                2. “I was beginning to respond but noticed you dropped into 6th grade boy going through raging puberty mode”

                  Right it’s because you’re a tar d and not making serious responses saving to assuage your own ta rdation in your mind.

                3. ” If you want to have a conversation like an adult, come find me.”

                  If you can respond without re tar dation involved then I’ll be happy to. Until then, feel free to keep losing cases and running around screaming chicken little style.

                4. – 6 descending into his “you a ta rd” routine…

                  The gasp of someone who cannot put together an on-point reply.

        3. 2.3.1.3

          I can all but guarantee you that the drafter of the patent at issue in American Axle or Yu never dreamed that their claims would be tanked under 101.

          Hire a more thoughtful patent attorney.

          1. 2.3.1.3.1

            Like you?

          2. 2.3.1.3.2

            MM bro, it was an ok claim. Only very arguably ever even assailable under 101, they likely did nigh their best.

            1. 2.3.1.3.2.1

              I agree there are way worse claims out there. But if the novelty or non-obviousness of your claim hinges on a data processing element then you need to be obsessing over 101 destruction, not just acknowledging the slight possibility of it.

              And that’s as it should be.

              1. 2.3.1.3.2.1.1

                “But if the novelty or non-obviousness of your claim hinges on a data processing element then you need to be obsessing over 101 destruction, not just acknowledging the slight possibility of it.”

                Yeah but we’re talking about the axle case, about you know, actual axles for vehicles iirc, they’re not related to data processing. It’s the hook’s law case.

                1. I was responding to WT’s comment where he invoked Yu v Apple, which is most definitely a data processing claim.

              2. 2.3.1.3.2.1.2

                6,

                Malcolm’s just practicing his “throw it all in one bucket; the Ends justify the Means” schtick.

    3. 2.4

      I’m sure I could find older patents that describe the tuning of shafts. The important point is that all of these patents are no more or less related to Hooke’s law than the patent at issue in American

      “More or less”? LOL

      Gob what a hack.

    4. 2.5

      Was he hoodwinked or was he using the tools available to kill a patent that should not have issued for lack of WD or obviousness (or both)?

      “Go tune this shaft” is not enough for PHOSITA. But is “go tune this shaft” really the subject matter of the invention?

      1. 2.5.1

        “Tools available”

        Does NOT mean “the Ends justify the Means.”

        If you ever bother with the terrain, your posts might make it above being drivel.

  5. 1

    Seems to have presided over a fair number number of patent litigations.

    1. 1.1

      Yes, but only by default that he is in a busy patent litigation circuit. All DE judges see plenty of patent action. Now retired Justice Sleet would have been a much better option. At a PTO event, he personally expressed his displeasure with 101 as he believed that it likely and unfairly limited 6th amendment rights.

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