American Axle – Still Waiting

by Dennis Crouch

No decision today in the pending subject matter eligibility case of American Axle v. Neapco. Friday was the last scheduled conference for 2021-2022. However, the Court traditionally holds one additional clean-up conference once it issues all of its merits decisions.  If the court follows its past tradition, it will either grant or deny the petition at that final conference.  The court also took no action on the follow-on eligibility case of Spireon v. Procon. Certiorari was denied in both Apple v. Qualcomm (standing to appeal IPR) and EPA II (collateral shareholder challenge of patent decision).

What does this mean? Conventional wisdom is that a hold-over increases the odds of certiorari.  The up/down decision will likely be pushed back to early July.

62 thoughts on “American Axle – Still Waiting

  1. 6

    Cert denied.

  2. 5

    One thing to keep in mind is just how outrageous Alice is. Consider what Alice is about. An enabled abstract idea. That is an oxymoron.

    1. 5.1

      There have been extensive posts on the profound effects of Alice on the patent system. Below Litig8or and Paul dispute this. Just more nonsense from these two. I am getting to the point where I am going to stop reading the posts from Litig8or and Paul.

      1. 5.1.1

        meh, If you stop reading them, how can you make fun of them?

        1. 5.1.1.1

          I’ve stopped reading MM’s posts and my headaches are fewer.

          1. 5.1.1.1.1

            Malcolm (as The Prophet) still has his extremely limited script, so thumping him on the head takes almost no time at all.

      2. 5.1.2

        I have repeatedly noted on this blog that something needs to be done about the ambiguity of Alice-type undefined “abstraction” rejections. But I do not have to agree to a non-statistical assertion that it affect all or even a majority of patent suits. [Or that it does not affect Mayo-type far less.] If those fact issues are really in dispute someone disputing it should check and count a few dozen recent patent suits. Nor should anyone need to agree with unrealistic draconian legislative proposals with zero odds of any political success. This is not a politician blog, and has no political influence.

        1. 5.1.2.1

          This is not a politician blog, and has no political influence.

          LOL – let’s make a deal then – you desist from your Efficient Infringer cheerleading and I won’t call you out for such political nonsense.

          Everyone wins!

        2. 5.1.2.2

          Paul, there are many articles published regarding the profound affects Alice has had on litigation and patent prosecution.

          You can’t just pull out one measure and proclaim that represents the issue.

          1. 5.1.2.2.1

            Just in my experience, any software claim that is going to be asserted is potentially going to be invalidated under Alice.

            Additionally, many companies have stopped filing patent application in some areas because of Alice or severely restricted filling applications.

            1. 5.1.2.2.1.1

              Generally, companies are reducing their reliance on patents more and more. Patents aren’t worthless yet, but continue to lose value.

              Additionally, the number of patent applications being filed in the US that do not claim priority to a foreign application continue to drop.

          2. 5.1.2.2.2

            NW, no one is disputing that “there are many articles published regarding the profound affects Alice has had on litigation and patent prosecution. ” But that was not Litig8ors point in issue, which was just the percentage of patent suits in which a 101 issue is asserted and litigated.

            1. 5.1.2.2.2.1

              Paul, Litig8or’s point was that because according to him/her 101 is asserted in less than 50% of patent lawsuits that Alice is not a large issue with patents.

              That is reductio ad absurdum. For one thing the patents that are chosen to litigate are now selected based on 101 considerations. Patent applications are not filed due to Alice considerations.

              I think the sophisticated articles on the effects of Alice on patents explain all these issues. It is just absurd—literally–just absurd to even be having this conversation. Anyone that has done litigation and prosecution knows that Alice has profoundly changed patent law and profoundly weakened patents. Additionally, we all know that it is capricious and that the CAFC could invalidate any software patent and pretty much any patent (or the claims thereof) using Alice. And the CAFC has done so many times.

              1. 5.1.2.2.2.1.1

                But this is the game of the anti-patent tr oll. They throw shxt against the wall and then to refute them you must spend time typing in a response.

                The tr oll then leaves the conversation and then starts over again on the next post.

                Just ridiculous. Not going to read anymore of Litig8or’s posts. He is an anti-patent troll.

                1. The tr oll then leaves the conversation and then starts over again on the next post.

                  This has been the status quo for over fifteen years now (yes, I am looking at you, Malcolm).

                  The ONLY anti that would engage at more than a surface level was Ned Heller. He would stop though because he was posting in a professional capacity and simply could not take the steps that I would lead him to.

                  All other anti’s “engage” as you describe – post on new threads without ever providing substantive replies to the counter points raised.

      3. 5.1.3

        I tried to educate you on how things are, but you live in fantasy world.

        1. 5.1.3.1

          As opposed to yours, litig8tor.

          Sorry pal – but your world really is divorced from the reality of how innovation protection has suffered.

          I do grant that you simply may not appreciate the innovation protection side, but that is not a reason for you to not recognize your limitations and for you to continue thinking that what you “teach” is a lesson worth learning.

  3. 4

    Given what just happened with the Dobbs decision, this SCOTUS is just as likely to toss Alice/Bilski/Mayo out the window. Even if they are just severely limited, it will be years before Art Unit 3600 stops its insanity.

  4. 3

    Why not just pass legislation taking patent law away from the Supreme Court and giving it to the Fed Circuit, where real understanding is possible?

    1. 3.1

      Mr. Buckley,

      That is an old idea, and one that I have fleshed out in detail in the past.

      It is within Congress’s Constitutional powers to employ jurisdiction stripping from the Supreme Court of any non-original jurisdiction matters — and patent law most definitely falls into that category (in fact, as some have pointed out, it was either early in the CAFC or its predecessor, that the Supreme Court did NOT have appellate jurisdiction from that body).

    2. 3.2

      Excellent idea. You could come at this from either of two ways. One could exclude Title 35 from the Court’s subject matter jurisdiction. Or one could remove the CAFC from the Court’s certiorari jurisdiction. I have a weak preference for #2, because it is easier to draft the legislation, and has Court-recognized precedent. #1 is slightly tidier, conceptually, however. Of course, one could do both.

      1. 3.2.1

        I understand there are subjects having nothing to do with intellectual property that are within the jurisdiction of the Federal Circuit. And some procedural matters related to patents that the Supreme Court may handle efficiently. I was thinking more about taking away the SC ability to alter, explain, invent substantive law of patents.

      2. 3.2.2

        What case held that congress may strip SCOTUS’s jurisdiction to hear an action decided by a court below it?

        1. 3.2.2.1

          The CAFC was created from the merger of the Court of Customs & Patent Appeals (CCPA) and the Court of Federal Claims. South Corp. v. United States, 690 F.2d 1368, 1369 (Fed. Cir. 1982). The CCPA was created by a statutory modification of the old Court of Customs Appeals. In re Mosher, 248 F.2d 956, 957 (C.C.P.A. 1957).

          The SCOTUS held in Ex parte Bakelite Corp., 279 U.S. 438, 460 (1929) that is had no jurisdiction to review the judgments of the Court of Customs Appeals—i.e., one of the predecessor courts to the modern CAFC. The extent of the Supreme Court’s appellate jurisdiction is set by 28 U.S.C. §1254. If Congress were to remove the CAFC from the list of circuit courts over which the SCOTUS may take cert., then the SCOTUS would lack jurisdiction to review CAFC decisions.

        2. 3.2.2.2

          Ronald Jones,

          One does not need a case to have something in the Constitution understood. Congress has the plenary authority on dictating Article III structure except for matters of original jurisdiction. Patent cases have never been of original jurisdiction for the Supreme Court.

  5. 2

    Stare decisis is especially strong in matters like interpreting and applying Section 101. Congress could abrogate any Section 101 decision from the Supreme Court by amending the statute (e.g., it wouldn’t require a constitutional amendment). I will thus predict, mostly for fun, that the Alice line of cases will NOT be severely downgraded, even if the Court takes this case.

    1. 2.1

      Stare decisis is especially strong in matters like interpreting and applying Section 101.

      Actually, you could not be more wrong, seeing as very few areas of law are so expressly delegated to a particular branch of government – and for patents, that branch is NOT the judicial branch.

    2. 2.2

      odd – that post just evaporated…

      Stare decisis is especially strong in matters like interpreting and applying Section 101

      You could not be more wrong, as few areas of law are so expressly delegated to a particular branch of the government as is patent law — and that branch is most definitely NOT the judicial branch.

      1. 2.2.1

        Article 3 vests all federal judicial power in the federal courts. The Courts ruled. Congress is vested with legislative power, so they can change it if they desire. My comment was not so much about patent law per se, but more about stare decisis. Stare decisis has less force in constitutional matters, because it is very hard to amend the constitution. It is relatively much, much easier to amend a statute. Thus, the Supreme Court is less likely to overrule itself in matters of statutory construction.

        1. 2.2.1.1

          So, even IF the Court takes the case, and even IF this particular decision from the Federal Circuit below is reversed, there is only a very miniscule chance that the Court would do something like overrule Alice.

          1. 2.2.1.1.1

            For better or worse, this sounds correct to me.

            1. 2.2.1.1.1.1

              You have to remember, though, that Alice in the form at the Scotus is fairly narrow. Mayo is more of a problem.

              Just saying something like the abstract idea has to be a well-known and an old concept would eviscerate Alice as it is used in the DC and CAFC. But I know that Alice may not be in play as much in this case as one would hope.

              Basically, right now, the CAFC has expanded the meaning of abstract concept to mean pretty much anything and everything so that every claim is directed to an abstract concept no matter how convoluted the recitation of that abstract concept is by the DC or CAFC.

              1. 2.2.1.1.1.1.1

                While one can make good arguments that the “abstract idea” jurisprudence should be narrowed, the overwhelming majority of litigated claims pass Section 101 muster. Most are not even challenged on that basis in any motions or at trial. It is a gross exaggeration to say that “pretty much everything” is abstract under the current caselaw.

                I also don’t think that “Mayo is more of a problem.” First, while it may be a problem to medical diagnostic claims, those are a miniscule fraction of all claims. Second, it is much easier to identify a “law of nature” rather than an “abstract” idea. Third, the law of nature doctrine goes back many decades, long before Mayo. Alice is BY FAR the greater weapon for accused infringers.

                1. [T]he overwhelming majority of litigated claims pass Section 101 muster. Most are not even challenged on that basis in any motions or at trial.

                  This assertion is not self-evidently correct. Have you seen a study that undergirds this assertion?

                2. This assertion is not self-evidently correct.

                  ^^^

                  How to be cloyingly polite where simple directness is in order.

                3. Litig8or, I do not believe that you are interested in an intellectually honest discussion.

                  You are intentionally disruptive and make ridiculous comments.

                4. Thanks for factually contributing, Litiga8or, even though your opening line is being ignored and there are the usual non-factual attacks on the others.

                5. >> the overwhelming majority of litigated claims pass Section 101 muster.

                  Is that the issue? No. First, cases that are brought to litigation now are narrowed because of 101. And the issue is how 101 has added a level of uncertainty and is often used to invalidate claims when the DC or CAFC decides they just don’t like the patent claims. As well as how has 101 changed prosecution and R&D. Many companies don’t even want us to file a patent application if it is going to end up in the 36xx AU.

                  >> It is a gross exaggeration to say that “pretty much everything” is abstract under the current caselaw.

                  Except reality. Pretty much any software, for example, can be claimed to be invalidated –easily–under 101. And any invention can be invalidated–easily–under Alice. The judges don’t do it but they could easily.

                  Anyway, just more junk from Litig8or and Paul. The issue is how has Alice affected the patent system. Not the cute little facts you pulled out.

                  I’d actually go though this with you or anyone but then you would forget it in the next post. Right Litig8or? Your cute little game of resetting all facts with each new post.

                  And Paul you reputation is dropping to the joke level with your continued anti-patent judicial activist support.

          2. 2.2.1.1.2

            “Willingness to” and “power of” are different concepts.

  6. 1

    I made my prediction. Cert granted. And the decision will limit Alice/Mayo.

    Let’s hear what the predictions of the great yappers on this blog.

    1. 1.1

      Which of the regulars are left to weigh in?

      I know that Greg and I have chimed in.

    2. 1.2

      This yapper agrees with you NW.

      Yap. Yap.

      As for Apple being denied . . . couldn’t happen to a more deserving innovation-absconder.

    3. 1.3

      If SCOTUS takes it on, then Alice/Mayo will likely be limited. No need to take it on otherwise.

      While I’m cautiously optimistic of a grant, I would be totally unsurprised if it was denied.

      1. 1.3.1

        WT, that is not a prediction.

        1. 1.3.1.1

          It wasn’t intended to be a prediction.

          1. 1.3.1.1.1

            But you are one of the “great yappers” on the blog.

    4. 1.4

      “I made my prediction. Cert granted. And the decision will limit Alice/Mayo.”

      This seems most likely to me. Buyer’s remorse leading to a ‘clarification.”

      1. 1.4.1

        Scare quotes undoubtedly justified. If they “clarify,” it will comprise a multi-factor balancing test that provides no useful guidance.

    5. 1.5

      I doubt if anyone on this blog is a Supreme Court expert, even after so many prior erroneous outcome prediction experiences over the years.
      I was surprised you predicted a decision limiting both Alice and Mayo, since I had noted the opposing party responsive brief to the Solicitors Brief pointing out that the Alice “Abstraction” argument is not even a ripe issue in this case, only the Fed. Cir. [overreach?] of Mayo-type [“naturally occurring” or “laws of nature”] unpatentable subject matter in this case. Do you disagree with that argument because the Solicitors Brief seems to confuse the two?

      1. 1.5.1

        The Kavanaugh Scissors would cut all three.

        1. 1.5.1.1

          Wait! Here that?! Could that be Roe-like scissor-sharping?

          (wish Yoda . . . or maybe ET . . . were here — they’d surely know)

      2. 1.5.2

        Further, your “doubts” as to Supreme Court expertise are especially shallow.

        Some of us – like yours truly – will opine on what a decision should be – and will provide commentary explaining why the “should be” was not reached.

        You seem to confuse (and you are not alone) some type of view that what the Supreme Court states “must be” right.

        I would think that with the beatings this past week – including today’s 1st A case – that with Liberals being routed, that the “They Are Supreme” position would at least waiver and perhaps a more nuanced view — my view of checks and balances, government of limited powers (all three branches), and that the Supreme Court is not (nor ever has been) “SUPREME” even above the Constitution — would be more appreciated, or even recognized.

        But Paul being Paul, will continue to snipe from the sidelines and not engage on the merits.

      3. 1.5.3

        Paul >>I doubt if anyone on this blog is a Supreme Court expert, even after so many prior erroneous outcome prediction experiences over the years.

        What are you talking about? My predictions regarding the Scotus’s decisions in patent cases is almost perfect.

        If they grant cert, I will make a more specific prediction as to the holding and how it affect Alice/Mayo.

      4. 1.5.4

        “I doubt if anyone on this blog is a Supreme Court expert”

        I doubt anyone needs to be reminded that expertise is not a requirement to opine on this board.

        1. 1.5.4.1

          While you are correct (enough) Ben, Paul is still being an arse.

          He wants to “ding” others while he himself will refuse to engage on the merits.

          It seems that he is more afraid of showing his own lack of understanding of Constitutional law than anything else.

            1. 1.5.4.1.1.1

              Lol – lean Left there much, Bob?

            2. 1.5.4.1.1.2

              As to your question, not only “can,” but ALL attorneys should strive to do so on a continual and recurring basis.

              The Constitution is the foundation for ALL of our laws. ALL laws filter through that document and the Declaration of Independence.

              Maybe spend less time with the Liberal Left muck and more time on the basics.

    6. 1.6

      They’ll defer all pending work until July, citing concern for the safety of their clerks.

    7. 1.7

      No Cert, No meaningful change to Alice.

      It’s doing what it was intended to do: provide a streamlined way to get rid of garb age patents. Yes some good ones go by the board too. No, its application is not very repeatable or especially principled.

      That’s the cost of an effective heuristic technique.

      1. 1.7.1

        Thanks for the prediction.

Leave a Reply

Your email address will not be published. Required fields are marked *

You can click here to Subscribe without commenting

Add a picture