by Dennis Crouch
As its final act for the 2021-2022 term, the US Supreme Court has denied certiorari in the pending patent eligibility cases of American Axle v. Neapco and Spireon v. Procon.
The Patent Act expressly lists four categories of patentable inventions: “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor.” 35 U.S.C. 101. This language is almost identical to the list created for the Patent Act of 1790. The Supreme Court added further atextual caveats — no abstract ideas; laws of nature; or natural phenomenon.
Here is a report from a couple years ago that shows every district court decision on Alice motions. The number of decisions on 101 pales in comparison to the tens of thousands of patent cases where the issue wasn’t even raised.
link to gibsondunn.com
MIC DROP x2
tens of thousands of patent cases….
How many patent cases do you think there are each year? (and how many of those are merely artificially inflated counts due to the AIA?)
“It’s Time to Give Up on the Charade of U.S. Patent Protection: Most Patents are Now Officially Invalid under American Axle”
By Gene Quinn on Jul 06, 2022.”
Typical hyperbolic over-reaction for those, including writers for the Solicitors brief, ignoring the clear responsive party brief’s explanation as to why American Axle was not even an appropriate case vehicle for attacking Alice-type claim unpatentability because that was not the basis of the decision below.
P.S. I’m still waiting for someone to publish actual statistics on what percentage of patents sued on are actually finally invalidated by either the Alice-type or [the distinctly different] Mayo-type. The former may be significant, but no way “Most.”
I’m still waiting for someone to publish actual statistics on what percentage of patents sued on are actually finally invalidated by either the Alice-type or [the distinctly different] Mayo-type.
I am also still waiting for such statistics. Precisely because we are waiting for such statistics, however, is it not premature to assert that “[t]he gigantic majority of claims are not even challenged under Section 101 in litigation.”
Here’s an article from 2020. link to akingump.com
It shows that in 2019 there were 99 motions to dismiss based on Alice. 38 were granted. That means that there were many thousands of patent cases where an Alice motion wasn’t even attempted.
MIC DROP
Here is a report from a couple years ago that shows every district court decision on Alice motions. The number of decisions on 101 pales in comparison to the tens of thousands of patent cases where the issue wasn’t even raised.
link to gibsondunn.com
MIC DROP x2
PEOPLE USE SOME COMMON SENSE. If the majority of litigated patents were invalidated under Section 101, there would be 30,000 opinions invalidating claims on that basis. Instead there’s maybe a few hundred.
Based common sense haver.
Thanks. That speaks to the point. I am obliged for your follow-up.
I think gene Quinn’s just trying to sell newspapers, as they used to say.
Fresh from my successful prediction of no cert. in America Axle, I have another prediction to make. I predict that the Court took cert. in Moore v. Harper so that they can drive a stake through the heart of the “independent state legislature” theory now, well before the 2024 election.
I expect that the Chief Justice does not want three months of court challenges winding their way up to his bench in 2025 before the 2024 results can be certified. He wants to get this out of the way now, before it can be weaponized in a fraught circumstance.
The Supreme Court took cert in Moore v. Harper on a different subject – who gets to decide congressional redistricting, state legislatures or their state courts based on state constitutions? It is not about state legislators overruling votes, albeit the conservative justices “independent state legislature” theory may apply to both. Specifically, the North Carolina Supreme Court’s Feb. 4 order and Feb. 14 opinion invalidating the North Carolina General Assembly’s original congressional redistricting map, and the state trial court’s order mandating use of their judicially created map in the upcoming midterm election.
Which has better odds:
a) the Supreme Court avoids a Constitutional question (seeing as the Constitution provides the power to State legislatures and NOT State courts); or
b) Paul avoids any substantive discussion on Constitutional law matters
Anon, feel free to add to your [and a few others] well-documented perfect record of dozens of predictions over the years that the Sup. Ct. would strike down IPRs and the entire APA, by now venturing even further afield into election law. I simply provided basic facts of Moore v. Harper, which is vastly more useful than any personal predictions.
Vastly more useful?
Stop patting yourself on the back long enough to realize that mere facts are available for anybody to reach.
You really add nothing to a conversation of either how the court will rule or (perhaps more importantly) how the court should rule.
But you be you and stick to that (mindless) cheerleading role.
The Supreme Court took cert in Moore v. Harper on a different subject…
Sure, but if they rule for the appellee on the grounds that state legislatures are subject to their respective state constitutions, that still sends the message to poll works and state governments that it is not necessary to wait on the ultimate vindication of every wild-hare election challenge predicated on a kooky interpretation of Art. I, §4 and Art. II, §1.
“state legislatures are subject to their respective state constitutions”
Cold comfort when we know there are states controlled by fascist pigs who want to take society back to the early 19th century (at least).
Translation: “How dare the people vote for themselves. Don’t they know the Far Left knows what’s better for everyone?”
Might be pertinent to quote Jane Fonda at this point. you remember that quote, eh Malcolm?
Of course bro, you wouldn’t want people to be allowed to vote or anything like that. Not that voting has much to do with policy determination in the country anyway.
“Cold comfort when we know there are states controlled by fascist pigs who want to take society back to the early 19th century (at least).”
Holy based. Love it when leftists bust out “fascist” to mean the exact people that defeated fascism when it was an actual thing.
Malcolm’s tendency of “one-bucketing” just does not work when one realizes the plain historical fact that — by far — the worst of authoritarianism over the last two hundred years has been LEFTIST authoritarianism.
But why let facts get in the way of his rants? (he never has)
Love it when leftists bust out “fascist” to mean the exact people that defeated fascism when it was an actual thing.
It is estimated that—nationwide—there are only ~240,300 U.S. veterans of WWII still alive. They are all north of 80 years old (most north of 90). I am dubious that even a single one is serving in state government anywhere in this country, although I would naturally welcome correction if I am wrong about that. Which “exact people” have you in mind?
“Which “exact people” have you in mind?”
The exact people in america living in the societal construct in place in the 40’s derp derp. That is, the social construct of those people and their societal setup/rules. Aka abortion is banned in a whole lot of places if not all, and on down the line of issues that are leftist hotpoints which were switched around after 1960ish. Although yes, those that are still literal alive humans and who never reformed during the 60’s+ in terms of their beliefs count as well.
Ok, so not “the exact people.” Glad we cleared that up.
“Ok, so not “the exact people.””
Um no, it actually is the exact “people” (though not the individuals making up that people who were alive at x date) in a societal manner of speaking. This is in a very literal sense, though not the literal sense that you are understanding it to mean. It’s using the term “people” to mean “a people” (a people which continue through the generations) not “a specific set of individuals alive at x date”. Although it’s often used to literally describe the actual individuals alive during the 30’s/40’s in the US as well in this context.
Lets say you were 17 when you joined the infantry on 4/1/45, barely made it in. You’da been born around ’28, so they’re all in their 90’s !! Some lied to get in. didn’t Audie Murphy get in when he was 16 ?
I think you are right. They must be all north of 90 by now.
“Some lied to get in.”
Pretty sure my granddad lied to get in as well, but to this day I’m not sure why. Either that, or he hit right at the 17/18 cutoff line.
I hope you are right. If not, then see Thom Hartmann article.
From link to en.wikipedia.org
———-
Joseph Story (September 18, 1779 – September 10, 1845) was an associate justice of the Supreme Court of the United States, serving from 1812 to 1845. He is most remembered for his opinions in Martin v. Hunter’s Lessee and United States v. The Amistad, and especially for his magisterial Commentaries on the Constitution of the United States, first published in 1833. Dominating the field in the 19th century, this work is a cornerstone of early American jurisprudence. It is the second comprehensive treatise on the provisions of the U.S. Constitution and remains a critical source of historical information about the forming of the American republic and the early struggles to define its law.
———
and
——–
Story’s opinion in Martin v. Hunter’s Lessee (1816) was profoundly significant before Story ever so much as addressed the issue explicitly. The manner in which Story framed the American republic is profoundly indicative of his philosophy.
Story noted, “The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by ‘the people of the United States.”
——-
SCOTUS has become The Enemy of the People.
Wikipedia, eek. I haven’t looked but wouldn’t be surprised if the wiki article doesn’t even mention Swift v. Tyson. My understanding is that one set the stage to ensure access to Art. III courts even in the absence of allodial money, and it stayed that way until Erie RR. v. Tompkins.
Justice Story was one of the three greatest American patent law thinkers (alongside Judge Learned Hand and Judge Giles Rich). Probably his best patent opinion was Earle v. Sawyer, 8 F. Cas. 254, 256 (C.C.D. Mass. 1825), where he wrote that “the degree of positive utility is less important in the eye of the law, than some other things, though in regard to the inventor, as a measure of the value of the invention, it is of the highest importance.”
iirc it was Pres. Madison who put Story on the bench, when the latter was in his early thirties, but only after a couple other candidates didn’t pan out for reasons I don’t think related to their suitablity, merely circumstance of the time. I think it was Madison who said something along the lines of “you have to interpret the Const. in context, otherwise you get a bstrdzidzed interpretation” quoted loosely. It is the same with that time in the nation’s early history when State judges thought little of the fed judiciary. Carving out just how much maritime law to permit onto land, under the authority of the (oh gawsh, what year) Judiciary Act, it was a huge question for many at the time. But…. the merchants of New England could not be ignored, and more protection for those interests was needed. A big balancing act. Swift vs. Erie RR is the hugest contrast and evidence of so much, changes, few I think in the mainstream have appreciated, until more recently. What a hot topic, when combined with 14th amendment, the slaughterhouse cases. Swift v. Tyson lasted 96 years, and the nation saw such growth in terms of the technology in the minds of the scientists and others. The 1928 Court upheld Swift but by the time 1938 came around, iirc 3 of the judges had been replaced and in one fell swooop, Swift was toast. When’s the last time you saw anybody cite anything from Am. Jur. in any proceeding ? appreciate your writings
Another enjoyable one Chrissy – thanks.
“the degree of positive utility is less important in the eye of the law, than some other things”
mmmm so all utility is not monolithic in degree or nature…..
no sheeet Sherlock
In addition to lack of detailed information sufficient to support the relevant claims under 35 USC 112, the claimed invention is of doubtful novelty/inventive step over DE-A-3632418 (BMW) which was not cited against American Axle either in the US or before the EPO but whose relevance is self-evident. We are perhaps fortunate that the Supreme Court did not grant certiorari in relation to such a weakly patentable invention.
the claimed invention is of doubtful novelty/inventive step over DE-A-3632418 (BMW)
Nothing personal, but I highly doubt you even understand the invention, the claims, or the prior art. If the art was that good, it would have been cited.
We are perhaps fortunate that the Supreme Court did not grant certiorari in relation to such a weakly patentable invention.
Perhaps you don’t understand how US law works. Whether the invention is ultimately deemed not-invalidated by prior art has nothing to do with the issue under 35 USC 101. The Supreme Court oftentimes isn’t the final say in the matter. Rather, they may say … “this is the law — now you lower courts apply it to the facts.”
Frankly, I would have been a bit surprised if they took it on. I had hoped that they would, but this wasn’t a clean case — the invention wasn’t something that was easily understood.
My guess is that the Federal Circuit will have to issue an en banc decision before SCOTUS gets back involved. Who knows where Cunningham and Stark really lie on the topic.
I suspect next year at this time there will be another couple of cases waiting a cert decision that will get some people excited about, and they’ll probably eventually deny those as well.
Another year of hopelessly-inconsistent law …
This is McConnell’s fault! The swine was so gung-ho for overturning Roe that he couldn’t give 2 seconds to making sure the justices he rammed through gave a fig about Section 101. America’s inventors wish you to burn in Hell, McConnell!
May want to switch to decaf…
My report was stolen. The Deputy that gave me the report was removed. I have seen him at Dollar General in 2020. They are blackballing me. My 1/2 brother knows all about it. He sued his employer. Now I know the County is blackballing me because they are being blackmailed.
6, showed a you tube skit big bulldog and a little bull dog. Now I even know exactly what and who the skit was about. Controlling me with a false and illegal POA will be the US ATTYS. JOB.
The deputy will be questioned. Then Tanner, Then Ross. Even Schaeffer will be the man behind the curtain without any clothes. And he as Pomona ass froma 2010 case Chastain has covered up won’t be able to lie either.
POMPOUS @ SS
And you expect us to believe that you shot the sheriff but you didn’t shoot the deputy?
No I didn’t shoot anyone, but, my 1/2 brother who sued the Co. He worked for,had a nickname given to him by his wife. Her not so pet name, the Ice-cream scooper.
It’s going to be a not to good situation because I can measure these continuance by 3 or less years before the next one.
You made me spit coffee on my monitor.
sarah mcpherson = DABUS?
Just something to throw out there.
Lol – no, sarah precedes DABUS by a good decade or so.
yeah sarah anticipates.
not to disagree, but I would say “renders obvious” as opposed to “anticipates.”
I find it a bit abstract.
Anticipate this 6.
A couple in the filter…
After further consideration, I must withdraw my assertion that DABUS would be found obvious in view of sarah.
DABUS is clearly a vast improvement.
I also have a report from 2015. A little tubby guy on a computer, got up and while I was speaking to the deputy he was making hand signals behind me. I turned and he stopped. I continued to speak about the SS Document with the other number at the bottom. Again the guy was mouthing and signaling to him as I spoke. I’m sure it was because of the earlier written report.
So if you are looking for the report you put in the shoebox. It’s not there anymore.
You know what they say in England when emptying the pot… Look out belou.
Maybe it’s Loo?
American innovation has left the building.
The gigantic majority of claims are not even challenged under Section 101 in litigation…
True, but largely irrelevant. Only a tiny subset of claims are ever litigated, so it will necessarily be the case that the “gigantic majority” of claims will never be challenged under §101. The “gigantic majority” will never be challenged under any section of Title 35, for the simple reason that the “gigantic majority” will never be asserted.
Among those that are asserted, however, it would be interesting to see statistics about what percentage are challenged on what bases (including what percentage are asserted but see no validity challenges at all). Have you seen a study presenting such statistics in a post-Alice world?
Sorry, this was meant as a reply to 1.3.1 down below.
I just provided you with proof that the gigantic majority of LITIGATED claims are not challenged under Section 101. The issue is blown way out of proportion, mostly by trolls and disgruntled prosecutors working for trolls. They actually thought that the Supreme Court would agree with their hyperbolic argument that the sky is falling. The sky is just fine. World is better when frivolous cases get the ax early on.
LOL – you want to compare the amount of propaganda with the use of the word “Tr011?”
That’s not something that you really want to do, given how much effort comes from the Efficient Infringers.
Not a huge surprise. In any event, as I said in the other thread on this topic, there was no chance that the Court was going to “overrule” its own recent Section 101 decisions (Alice, Mayo). If people don’t like those decisions, the remedy is to amend the statute, but there is nothing wrong with the Court’s jurisprudence. That is why they didn’t take the case. If this case was the “best vehicle” for cert., it is time to give up on the fantasy land dream and the Court is going to overrule itself.
The slimy toad chimes in.
The Supreme Court just overruled 50 years of jurisprudence. Why would they not overrule Alice?
But even if they don’t overrule Alice, at least (attempt to) provide clarity. The line between when there’s something that’s Abstract + provides something more and when it doesn’t moves with every case.
I start out by reading the claims, often looking at the patent, then reading the opinion. I don’t think I’ve gotten a single one correct yet. When something that ostensibly claims a camera is “abstract”, there’s something wrong.
“The Supreme Court just overruled 50 years of jurisprudence. Why would they not overrule Alice?”
Bingo BobM.
“The Supreme Court just overruled 50 years of jurisprudence. Why would they not overrule Alice?”
Because despite appearances, Alice is the name of a bank, not a woman.
Ha!
+1
> If people don’t like those decisions, the remedy is to amend the statute,
What’s to stop SCOTUS from reimporting the “judicially created exceptions” into the new statute? Like what they did with the current 101 statute…
>The Supreme Court added further atextual caveats — no abstract ideas; laws of nature; or natural phenomenon.
In some cases, contrary to actual text, not merely atextual.
Exactly. Look at Helsinn Healthcare v. Teva Pharmaceuticals, 139 S. Ct. 628 (2019) to see exactly how seriously the Court takes amendments to Title 35. They feel quite free to ignore plain language in the statutory text when necessary to reach a desired outcome.
Part of any Congressional solution has to be to remove patent law from the SCOTUS’ jurisdiction.
Too true. Look at Helsinn Healthcare v. Teva Pharma., 139 S. Ct. 628 (2019) to see exactly how seriously the Court takes amendments to Title 35. They feel quite free to ignore plain language in the statutory text when necessary to reach a desired outcome.
Part of any Congressional solution has to be to remove patent law from the SCOTUS’ jurisdiction.