America’s leading patent law source
by Dennis Crouch
Here is a rundown of what’s happening with US Supreme Court cases:
Decided: The court recently decided Google LLC v. Oracle America, Inc., holding that Google’s use of Oracle’s Java API was a fair use and therefore not copyright infringement. The court made no determination as to whether the API was actually copyrightable in the first place. The case does not expressly decide any patent law issues, but does provide some guidance as to how courts should approach mixed questions of law and fact (such as claim construction) and the right to a jury trial. The jury trial issue was interesting. Although a number of juries were given fair use questions pre-1791, the court held that our current version of fair use claims its ancestry from the equity rather than common law. Thus, no right to a jury trial on the question of fair use under the Seventh Amendment. “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”
Argued: On March 1, 2021, the court heard oral arguments in US v. Arthrex regarding it is proper for the Secretary of Commerce to appoint the PTAB judges as inferior officers of the United States. Or, instead, are they principal officers of the United States that must be appointed by the US President and confirmed by the Senate (as we do with Article III judges). Nobody likes the Federal Circuit’s decision, and the question really is which way it should fall. (My guess is that these judges will be seen as inferior officers). I expect that part of the majority decision (whichever way it goes) will involve interpreting the role and involvement of the PTO Director in PTAB decisions. An inferior officer decision will interpret the statute as providing the PTO director with substantial authority; a principal officer decision will downplay the role of the PTO director. Decision should be released by Mid-June 2021.
Argument Pending: One final case is set to be argued this term: Minerva Surgical, Inc. v. Hologic, Inc., focusing on the issue of assignor estoppel. Can a prior owner of a patent right (such as an inventor) who transfers title to another (typically the employer) later assert in court that the patent is invalid? In this case, the employee started his own competing company and was sued for patent infringement. The lower court barred an invalidity defense. Now the question presented:
Whether a defendant in a patent infringement action who assigned the patent, or is in privity with an assignor of the patent, may have a defense of invalidity heard on the merits.
Oral arguments are set for April 21, 2021 with a decision by Mid-June 2021.
Other pending petitions:
Arthrex Issues: There are a large set of pending petitions awaiting the outcome of Arthrex. Some of these raise interesting additional issues, but most of them are pure follow-on cases : Iancu v. Luoma, et al., No. 20-74; Polaris Innovations Limited v. Kingston Technology Company, Inc., et al., No. 19-1459; Comcast Cable Communications, LLC v. Promptu Systems Corporation, et al., No. 20-92; Vilox Technologies, LLC v. Iancu, No. 20-271; Rovi Guides, Inc. v. Comcast Cable Communications, LLC, et al., No. 20-414; RPM International Inc., et al. v. Stuart, No. 20-314; Fredman Bros. Furniture Company, Inc. v. Bedgear, LLC, No. 20-408; Micron Technology, Inc. v. North Star Innovations, Inc., No. 20-679; Iancu v. Fall Line Patents, LLC, et al., No. 20-853; Immunex Corporation v. Sanofi-Aventis U.S. LLC, et al., No. 20-1285; Comcast Cable Communications, LLC v. Promptu Systems Corporation, No. 20-1220; Wi-LAN, Inc., et al. v. Hirshfeld, No. 20-1261
Patent Eligibility: Of the pending eligibility cases, I find American Axle and Ariosa the most interesting: American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, et al., No. 20-891; NetSoc, LLC v. Match Group, LLC, et al., No. 20-1412; NetScout Systems, Inc. v. Packet Intelligence LLC, No. 20-1289; Ariosa Diagnostics, Inc., et al. v. Illumina, Inc., et al., No. 20-892.
Inventorship & Ownership: Ono Pharmaceutical Co., Ltd., et al. v. Dana-Farber Cancer Institute, Inc., No. 20-1258; In re Martillo, No. 20-1126 (suit to quiet title).
Obviousness: Amarin Pharma, Inc., et al. v. Hikma Pharmaceuticals USA Inc., et al., No. 20-1119 (secondary indicia); Sandoz Inc., et al. v. Immunex Corporation, et al., No. 20-1110 (obviousness type double patenting).
Willful Infringement: NetScout Systems, Inc. v. Packet Intelligence LLC, No. 20-1289 (this case also raises an eligibility question).
Procedure: Ericsson Inc., et al. v. TCL Communication Technology Holdings Limited, et al., No. 20-1130 (is pre-trial denial of summary judgment appealable absent post-trial JMOL); Warsaw Orthopedic, Inc., et al. v. Rick C. Sasso, No. 20-1284 (abstaining in favor of state court jurisdiction); PersonalWeb Technologies, LLC v. Patreon, Inc., et al., No. 20-1394 (preclusion under the Kessler doctrine); Tormasi v. Western Digital Corp., No. 20-1396 (does a convicted state inmate have standing to sue for patent infringement).
Retroactive Application of IPRs: Security People, Inc. v. Hirshfeld, No. 20-1380.
Attorney Fees: Roadie, Inc. v. Baggage Airline Guest Services, Inc., No. 20-1420; WPEM, LLC v. SOTI Inc., No. 20-1291.
Antitrust: Abbvie Inc v. FTC (standard for showing objectively baseless “sham litigation” exception to Noerr-Pennington immunity).
Law Professor at the University of Missouri School of Law. View all posts by Dennis Crouch
Before Arthrex there was a lot of talk about fixing 101-eligibility doctrine legislatively. I have always been skeptical, but since people are talking about court packing to change SCOTUS’ behavior, I have to wonder whether the 2nd Amendment can be unincorporated legislatively. I don’t understand the 14th Amendment argument for the incorporation of the 2nd Amendment. The country would be a lot happier if each state could for itself decide about the right to bear arms.
“the right to bear arms”
Some arms are best not bared. Regardless of state.
(Hey — cut me some slack . . . it is the weekend, after all; right? 🙂
How about the right to bare nostrils and mouth?
… or the right to not be fettered by fear?
OT, but relevant re some prior blog comments and inventor confusion:
“The .. Federal Circuit on Friday reversed a win for General Electric Co before the Patent Trial and Appeal Board that had invalidated parts of a Raytheon Technologies Corp patent covering an airplane engine. A three-judge panel reversed the PTAB’s ruling that a theoretical engine described in a NASA publication made Raytheon’s invention obvious because the publication didn’t enable an ordinary artisan to make the invention.”
Thanks Paul.
See link to cafc.uscourts.gov
Before LOURIE, CHEN, and HUGHES, Circuit Judges.
CHEN, Circuit Judge.
“We have also previously expounded the principle that if an obviousness case is based on a non-self- enabled reference, and no other prior art reference or evidence would have enabled a skilled artisan to make the claimed invention, then the invention cannot be said to have been obvious.”
The fiction part of science fiction — for the date of the reference is (and always is)….
…fiction.
If you want to rely on something “fiction,” you have to have something real to have a proper nonfiction reference — for patent purposes.
Not sure why this has ever been a difficult concept to grasp.
A good reason the question of enablement re 103 [versus 102] prior art is confusing is demonstrated from the following additional language in this very same decision: “In general, a prior art reference asserted under § 103 does not necessarily have to enable its own disclosure, i.e., be “self-enabling,” to be relevant to the obviousness inquiry. See Symbol Techs., Inc. v. Opticon, Inc., 935 F.2d 1569, 1578 (Fed. Cir. 1991) (“While a reference must enable someone to practice the invention in order to anticipate under § 102(b), a non enabling reference may qualify as prior art for the purpose of determining obviousness under § 103.”); Beckman Instruments Inc. v. LKB Produkter AB, 892 F.2d 1547, 1551 (Fed. Cir. 1989) (“Even if a reference discloses an inoperative device, it is prior art for all that it teaches.”). For example, a reference that does not provide an enabling disclosure for a particular claim limitation may nonetheless furnish the motivation to combine, and be combined with, another reference in which that limitation is enabled. See Apple Inc. v. Int’l Trade Comm’n, 725 F.3d 1356, 1365–66 (Fed. Cir. 2013). Alternatively, such a reference may be used to supply claim elements enabled by other prior art or evidence of record. See Comcast Cable Commc’ns Corp. v. Finisar Corp., 571 F. Supp. 2d 1137, 1145 (N.D. Cal. 2008), aff’d sub nom. Comcast Cable Commc’ns, LLC v. Finisar Corp., 319 F. App’x 916 (Fed. Cir. 2009).”
Seems like this would mostly be a non-issue.
If I publish a paper saying “If we could make an engine with 85% efficiency, we could have a car that achieves 60 mpg.” At the time, engines could only reach 70% efficiency, so my paper is non-enabled.
One year after that, someone invents an engine that achieves 90% efficiency.
One year after that, you try to patent a car achieving 60 mpg. You try to argue my paper wasnt enabled. Which it wasnt, at the time of filing, but it became enabled once someone invented the engine.
Unless the person that invented the engine is the same person that tried to patent the car, then this wont ever apply. And if it is the same person, they would do better just to patent the engine itself.
I happily read along, ks, with your hypothetical fact matrix about disclosures both enabling and non-enabling, and the legal conclusion drawn, but wonder why so many in the USA make such a meal out of a very simple but crucial difference between 102 and 103.
For 102, the document asserted as novelty-destroying (call it D1) has to do the job on its own: no mosaicing allowed. And as of its publication date it has to enable what it discloses.
For 103, we consider D1 aa of the date of the claim under attack. We ask (or should ask) on behalf of the PHOSITA at that later date seeking to put into effect what D1 discloses, is D1 enabling?
It is not at all unusual or curious, given the relentless and rapid advance of science and technology, that a percipient disclosure, non-enabled on its publication date, later becomes sufficient to enable what it discloses. But it is not self-evident. The fact that the intervening advance of science and technology has enabled what D1 discloses has to be proven. By evidence.
Whereas, in this case, GE adduced no such evidence, choosing instead to rely on D1 alone. This suggests to me that under 103, GE’s case was a losing one, so its only hope was to prevail under 102.
MaxDrei, this statement of yours, “ non-enabled on its publication date, later becomes sufficient to enable what it discloses. ”
is pure bunk.
Fiction cannot be later enabled and have the date of the Fiction itself.
“Fiction cannot be later enabled and have the date of the Fiction itself.”
Indeed, were it otherwise, an untold number of breakthrough inventions including the laser (ala’ e.g., dawn-of-the-written-word fictional “death rays”), MRI, RFID; even space ships and the airplane; would never be protectible.
ksksksks,
You (again?) are missing the point.
The desire to use the earlier date of the fictional component of science fiction will — and must — fail.
A later item cannot “enable” an earlier fiction. The date that will play out will be the date of the later enabling item.
Anon,
You (again?) are failing to read, both my and MaxDrei’s post
the question isnt whether the fiction was enabled as of publication date of the fiction. The question is whether the fiction was enabled as of filing of the later patent application.
Again, if I say ‘If we can make an 80% efficient engine, then we can build a car that achieves 60mpg using the design described herein.”
Then a year later someone makes an 80% efficient engine, my original publication has become enabled. It has become enabled a year after its publication date.
If you, two years after that, try to file a patent for a car achieving 60mpg, then there is no enablement issue. Whether it was enabled three years ago or two years ago doesnt matter. It was enabled before you filed your patent.
In the meantime, I have read the Decision and see that it is concerned exclusively with 103 and not at all with 102.
So, there is no need for me to burden you with my pet issue: which of two possible dates (the date of its publication or the date of the claim) the D1 disclosure has to be enabling.
Rather, for 103, the relevant date for satisfying any requirement for an enabling disclosure is the day before the date of the claim.
“Rather, for 103, the relevant date for satisfying any requirement for an enabling disclosure is the day before the date of the claim.”
Simply NOT a complete statement – either of itself or of the issue at point.
EVERYONE already knows that the date of the item being examined is ONE of the two dates being compared.
The ISSUE is whether or not (hint; the answer is no) that the date of the FICTION item can attach to the analysis (as of the date of that fiction item) for the element being proffered.
This is the ‘notion’ that some later (perhaps intermittent, perhaps not) item that DOES ‘turn FICTION into nonfiction’ can somehow ‘magically’ make the date of the fiction item to be controlling — the notion of ‘later enabling of an earlier reference date.
It has always been my clear and unequivocal position that any such attempt is pure bollocks.
Not so, ksksksks – I am well aware that ONE of the dates in question is the filing date of the material being examined.
The point though is NOT that date.
The point is what is the date of the pure fiction component of science fiction.
You err in your emphasis here.
By the time the application by examined is filed, there is no pure fiction component of the science fiction. thats the point.
Sorry, but you STILL miss the point, ksksksks.
It is NOT whether at a later time – it IS what actual critical dates are afforded each of the asserted items.
Fiction – as of its date – will ALWAYS BE fiction as of THAT date.
Based on several recent Sup. Ct. decisions on other subjects, no significant changes in patent law are likely unless infringers start asserting religious freedom to do do.
oops, “do so.”
Y
A
W
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Nice virtue signaling Paul.
Coming from an Efficient Infringer cheerleader, your “religious” concern falls more than a little flat here.
Better luck on other forums.
Anon, I’m not sure how you could have missed that being a joke unless you missed all the recent legal and media commentaries on the current Sup. Ct. emphasis on religious freedom issues, especially as overcoming Covid-19 or other such restrictions or requirements? [Obviously far more of interest to them than patent issues.]
I do not find ANY of the Liberal Left PC movement funny.
What exactly was the point of your ‘joke?’
I am a subject of this blogpost instead of merely a commentator. I would rather have an issued patent in my hands.
What is the application number?
The original patent application filed Oct 8, 1991 is 07/773,161.
You can find a continuation at the following URL.
link to patents.google.com
I don’t know. I’d have to take a closer look at this to understand what happened.
This issue of quieting/trying title is explained in the petition. I don’t believe it is hard to understand.
link to supremecourt.gov
I petitioned because Massachusetts courts assert that ownership of a Massachusetts patent application is a matter of substantive patent law, and as far as I know, the assertion is not true.
The position of the Mass Trial and Appeal Courts was not expressed clearly because they were trying to dismiss the action peremptorily.
I think they were assuming Gunn v Minton did not apply because the controversy of Gunn v Minton was legal malpractice while to the Massachusetts courts ownership of a patent application must belong to substantive patent law, and the trial judge asserted during the evidentiary hearing that 35 U.S. Code § 261 (Ownership; assignment) proved:
1) that the case was in the wrong court and
2) that I was trying to get a second bite from the apple.
The SAWS insanity is a separate issue. There is much complexity associated with the fake prosecution. SAWS and fake prosecution is not an issue about which I am petitioning SCOTUS for writ of certiorari.
You can find out about the SAWS insanity in the appendix of the document below. I describe the fake prosecution in detail on pages 8-26.
link to drive.google.com
In the petition for writ of certiorari, I suggest that a senior official at the USPTO may have been shaking down a corporation that would infringe if the patent were issued.
[Something of that nature seems to have been happening, but I can think of other ways to make money corruptly at the USPTO.]
Otherwise, why allow me and my erstwhile partner to revive the abandoned patent application only to challenge title in the DCEDVA during the 35 U.S. Code § 145 lawsuit?
You guys probably believe most USPTO senior officials are honest. I don’t. I have an uncle, who became rich while he was a senior IRS official. An honest IRS official does not become rich by working at the IRS. Uncle Nat’s son-in-law worked as an SPE at the USPTO before he went to work in the legal department for AT&T Bell Labs. When Pat explained the USPTO organization to Nat, Nat told us
1) that he had worked at the wrong agency and
2) that he would have become so much richer if he had worked at the USPTO.
SAWS is real. I had an application that came under that program. Marked never allow.
Yup. The whole federal government is corrupt. There is no doubt about it. I could tell you lots and lots of stories. I’ve never ran into it directly at the PTO.
LOL – and don’t you just love the attempt by Ben to play the “That’s a Conspiracy Theory” shame game for anyone that dares mention SAWs?
As I have pointed out many times now, when the Office finally fessed up to the existence of SAWs and ‘retired’ the program, they made an oopsie statement that SAWs was but one of many such shadow programs (in clear violation of 37 CFR 1.2).
Joachim,
Ownership is not substantive patent law.
It is not entirely clear that you are recognizing this.
I told 6 Massachusetts judges during hearings and with filings that ownership and title issues for a patent or for a patent application are not matters of substantive law. Only one of the six paid any attention to me and seems to have actually read Gunn v. Minton with comprehension.
I never spoke with any of the appellate judges. I did speak with the trail court judge. He never seems to gotten past the distinction between litigation of alleged legal malpractice in a federal patent case and an action to try/quiet title to patent application. In his mind there was no patent law in the former case, but he assumed that the existence of 35 U.S. Code § 261 (Ownership; assignment) meant that an action to try/quiet title to a patent application must take place in federal court.
I pointed out that that § 261 merely created a federal registry for state intellectual property
1) that has attributes of personal property (like a car) because it makes no sense to have 50+ registries for intellectual property (even if state registries for an auto vehicle causes no problems),
2) that the rule associated with transfers of IP title was more or less the same as the rule associated with transfers of RE or of auto title, and
3) that the statute does not enable a federal court action to try/quiet title to either a patent or a patent application, either of which remains registered state property even if the registry is federal.
Maybe there was a more effective way to explain, but it seemed to me that the Massachusetts trial court judge was unwilling to pay attention to me because I was a pro se litigant.
Excellent update Joachim – and best wishes on a successful journey.
I actually meant the prosecution of your patent application, which looks a bit too complex to figure out in a half an hour.
I thought you meant the patent application prosecution, and — yes — it is much too complex to comprehend in a half an hour.
The prosecution is not an issue in the petition to SCOTUS for writ of certiorari to the Supreme Judicial Court of Massachusetts.
It would take me more than casual blog time to look at that order.
Isn’t the whole family abandoned anyway?
If I can quiet title, I will petition for revival of the ‘161 Application once again. I already revived it once. The basis for revival would be exactly the same. If a new petition for revival is rejected, it would be arbitrary and capricious under the APA. The application is pre-GATT. The first time I petitioned for revival from unavoidable abandonment.
The USPTO agreed to revival from inadvertent abandonment with 2.5 years of term. By its inequitable actions, the USPTO has proven that I was correct originally to seek revival from unavoidable abandonment.
Discussing my strategy is counting the chickens before they are hatched, but I am perfectly willing to litigate each issue to SCOTUS. I have good reason to go to law school.
I think that Night Writer’s point (he can correct me if I am off), is whether or not your cause of action is itself justifiable.
You seem to have a “case within a case” issue with any aspect of “receiving justice” in a first case having a questionable dependency of “receiving justice” in a second case — and you may not have an actual cause of action (to which resolution of the court in one or the other – for that case) would permit the court to entertain your action.
Interesting…
Be better off finding a good litigator as it takes many years to become an expert.
Apologies – justiciability was the word I had meant to use,
The value of a patent application comes from its possibility of issuing. Even though the ‘161 Application is in abandoned state, it can still issue because it can be revived just as it has already been revived once before. Because it is pre-GATT, it can issue with full term.
If SCOTUS denies cert because the ‘161 Application is abandoned, SCOTUS would be handing the USPTO another mechanism of corruption. If the USPTO does not want to issue a patent, it just challenges the original assignment and the patent application goes abandoned while the owner spends years in quieting title.
I have spent 6 years so far in trying to quiet title, and I have yet to get a Massachusetts Court to acknowledge it has jurisdiction. If SCOTUS agrees with me, I may have a year in state litigation before responding to the 1993 office action and petitioning for revival. The USPTO is not likely to grant the petition without some APA litigation. I may have another 10 years or more of work before the patent issues.
Even if the ‘161 Application were a post-GATT patent, there might be value in quieting title to an abandoned ‘161 Application because an issued patent would be eligible for patent term adjustment.
The error of the Massachusetts court comes
a) from denying its jurisdiction over ownership
1) of a patent or
2) of a patent application and
b) from asserting that issue preclusion exists.
I don’t even see how the issue of abandonment comes up.
There is no opposing party. I suppose that if SCOTUS orders the Massachusetts Courts to hold a quiet/try title proceeding, the Massachusetts Court could invite the USPTO direct to become an intervenor/guardian ad litem (???). I doubt the Massachusetts Court would not be able to dismiss on the basis of an abandonment argument.
I meant USPTO director and not USPTO direct.
Too many typos.
I doubt the Massachusetts Court WOULD BE able to dismiss on the basis of an abandonment argument.
Joachim,
I would find a good MA litigator to help you.
Frankly, courts tend to take advantage of pro se litigants and, in fairness, pro se litigants tend to miss a lot and present arguments that aren’t focused on right issues. Courts are cruel.
Probably just finding one and making a deal for them to evaluate what to do would be a great help to you. Might cost $10K but you’d get some good advice.
The advice is appreciated, but until SCOTUS grants cert, thinking about finding a Massachusetts lawyer seems to be getting ahead of myself.
I have spoken with attorneys about quieting/trying title to a patent application in Massachusetts. Unfortunately it’s a case of first impression, and the necessary proceeding is not enabled in Massachusetts General Law.
Because the Trial Court denied it had jurisdiction and because lack of enabling statute seems to imply the case belonged in the equity session, I researched how to make an equity appeal in a case that like mine was purely documentary. The Appeals Court seems to have been puzzled but conceded that I might be correct.
If SCOTUS were to rule in my favor and order the Massachusetts Courts to hold a quiet/trial title proceeding, the Massachusetts Trial Court might have to define the proceeding before I start the action.
If I actually get back to the Trial Court, the litigation will probably simultaneously combine a quiet title ad personam proceeding and a try title ad rem proceeding.
I asked SCOTUS in the petition whether a finding of fact by the USPTO has dispositive effect on the state court because a patent application is federally defined state private (?) property that has attributes of personal property.
The complexity of the title proceeding may exceed the complexity of the patent prosecution.
Joachim,
Having followed your stories over the years, I am struck by the nagging thought that you are BOTH over-thinking and under-thinking your situation.
I say this in view of the rather deep details that you have at your fingertips, but the underlying issues (of which I see two main ones – and unfortunately for you, those two create a storm of a Catch-22), are both tied to the word I should have used in the first instance: justiciability
You seem to have set up your ‘rights’ in each of the two instances as being tied to a “if-then” from the other instance.
You seem to state that IF you are successful in one instance, the abandoned item could be brought back to life, and thus give you a real property interest (standing). But – as of now – you do NOT have that. That failure is a Catch 22 for your other effort, because without there being a real item (now) at stake, you are only left with speculation, which is not enough to move you forward.
It may be less of the state court not wanting to touch or help you, and more (simply) that you currently have nothing ‘there’ TO touch.
It would be a purely advisory opinion on your seeking of title to property – in order to turn around and THEN make that ‘property’ into a real property. Without it being a real property first, you cannot get to the title question. Without the title first, you cannot get to the real property question. You cannot make headway with the Office because of the State – and you cannot make headway with the State because of the Office.
You are also caught in that the Office won’t recognized your ownership IN any future prospective property claim BECAUSE you have not shown title to their standard – which may of course also involve the fact that there is no “there” right now.
One – alone – does not get you to the point that you can attack the other because you clearly do not have one – alone – on either side of the two issues.
anon, please read the petition for writ of certiorari. It’s neither long nor complex. It might just be sufficient to read the Questions Presented.
[I made them the picture associated with this comment. You may have to zoom in to read them.]
I did show title to the satisfaction of the USPTO. The Federal District Court denied the patent prosecution entity standing to be a plaintiff in a 35 U.S. Code § 145 civil action. The CAFC upheld the denial of standing in a Rule 36 Affirmance.
There are multiple possible perhaps even mutually contradictory reasons why the CAFC upheld the DCEDVA. There is consequently no issue preclusion. There is only a USPTO finding of fact that I do own the ‘161 Application. I am seeking a Massachusetts court decree of ownership.
Then I have perfected title as if if the insanity associated with the Clearpoint bankruptcy never occurred. My title would be even clearer than it was the first time I revived the ‘161 Application.
Joachim,
It is worse for you than I thought.
You ow appear to have a triple-nested case (as the third is something that Prof. Crouch has been very interested in: Rule 36 abuse).
That being said, you are currently in the Catch 22 because there is no “there” there for you and your (desired) property, to which a fight for title would inure.
You really are caught in that you cannot perfect the property because you cannot perfect the title, and you cannot perfect the toe because you cannot perfect the property.
The later “if” of turning the abandoned item back into actual property is — unfortunately — entirely speculative.
The Office “admission” is not enough — per the CAFC, and with that being shot down, you cannot get out of your catch 22.
The State may well be correct AND the Office (corrected by the CAFC) may ALSO be correct, leaving you with no way out of the catch.
“correct the toe” ==> “correct the title”
anon, you underscore why this question might be of interest to SCOTUS. In this case, a Rule 36 Decision has no effect of issue preclusion for federal district courts and less so in a Massachusetts Commonwealth Court.
Why would a Massachusetts court pay any attention to whether an entity, to which I may have been privy, has standing in a 35 U.S. Code § 145 action?
Commonwealth courts and the CAFC+DCEDVA belong to completely different jurisdictions, and the federal district courts don’t adjudicate this type of property ownership controversy.
Judge Newman asked during oral arguments why the case was before the CAFC. She and Dennis inspired me to pursue this litigation.
I asked how dispositive a finding of fact with respect to title by the USPTO was because such a finding of fact might be of genuine interest to a Commonwealth court. While the patent application is Massachusetts property that has attributes of personal property, this property is created and defined by the federal government. Should a Commonwealth court in the case of this specific type of property care about a finding of fact by the federal administrative agency that is supposed to be focused on this type of property?
I pointed out in the petition that as long as these questions are unanswered, the lack of clarification is an open invitation to a corrupt USPTO official to act corruptly. One Harvard Law School professor, who specializes in intellectual property questions and with whom I consulted, told me that SCOTUS is concerned with forestalling the possibility of governmental corruption.
“I asked how dispositive a finding of fact with respect to title by the USPTO was because such a finding of fact might be of genuine interest to a Commonwealth court”
You do not have that.
You lost that (in the law of the case) when the CAFC tossed you.
Sorry, but you might be TOO invested to pause and think of this from a justiciability point of view.
I do hope that I am not correct here, but I fear (for you) that I am.
Why do you think a Massachusetts court (probably in equity session) would pay any attention to the CAFC? Evidentiary standards are completely different.
A Commonwealth court would pay attention to a holding of the Court of Appeals of the 1st Circuit if the 1st Circuit Appeals Court had made a holding relative to Massachusetts General Law.
The CAFC does not issue judgments relative to Massachusetts law (as Judge Newman pointed out), and SCOTUS has tended to object when the CAFC strays from its bailiwick
The CAFC upheld (with a Rule 36 affirmance) the DCEDVA in its decision when the DCEDVA decided that the patent prosecution LLC was not a valid applicant that had standing. The holding may be helpful.
The first revival and patent prosecution was not valid because the applicant was not valid as the USPTO argued in DCEDVA. The first revival and subsequent patent application prosecution did not take place.
It’s all speculative until SCOTUS grants cert, agrees with me, and orders the Massachusetts Courts to hold a quiet/try title proceeding.
I might have the opportunity to retcon the whole revival and patent application prosecution, but this time with a Commonwealth decree of ownership that the USPTO can’t challenge. Such an outcome seems fair because the USPTO behaved inequitably and probably corruptly.
Again, it’s counting my chickens before the eggs hatch, but it occurs to me that Massachusetts decree of ownership could be grounds for making Rule 60 (Relief from a Judgment or Order) (b) (6) motion to the DCEDVA in the original 35 U.S. Code § 145 civil action to obtain patent and restarting that proceeding.
Oh well, cert was denied.
Oh well, cert was denied, and I can’t think of a meritorious reason to motion for rehearing.
Joachim,
A longer and more detailed post was blocked this morning (due to the “Block anon’s Home IP Address” filter), but with your addition of cert denied, do you think a path of IMPROPER Rule 36 might be available to you? (Note as well, that Prof. Crouch has an interest in that angle).
You bros ready for another lotta SC justices added on?
Also anon did you check out the PRO Act? Has some things in there to boost the power of unions, not sure if it would affect federal unions tho.
No, but I’m braced for plenty of fear mongering regarding it.
You see Ben? It’s comments like these that paint you as fair target for Night Writer’s tarring you with the Neo-Marxist brush.
You seem to want to dismiss ANY ill-effects of wreaking havoc and making the Supreme Court a full-on political football (a la Venezuela Chavez debacle).
When you have perhaps the most Left Liberal Justice on the Bench coming out and warning against packing the Court, do you really want to play your “It’s a Conspiracy” shaming card?
Night Writer,
It’s this type of pure amateurism from Ben that makes me think that no one in their right mind would be paying him as a paid blogger.
I don’t know anon. Maybe but seems like the type of antagonizing and disruption that the anti-patent people like.
It is not me, by the way, the intellectuals are the ones that are saying the cancel-culture left are neo-Marxists whom we should be very, very afraid of. You will be hearing a lot more about neo-Marxists.
The Chinese are moving to a society that fulfills 1984 where there is total monitoring of each person’s behavior and there is a file on everyone. Your rights in China are now tied to the evaluation of your behavior. Russia is actually doing something similar.
Biden is moving in this direction or his handlers are. Anyone that isn’t a neo-Marxist should be afraid.
“The Chinese are moving to a society that fulfills 1984 where there is total monitoring of each person’s behavior and there is a file on everyone. Your rights in China are now tied to the evaluation of your behavior. Russia is actually doing something similar.”
Every leftist’s dream come true. Didn’t hear about the rusky doin’s just yet on this front yet though. I’m surprised they have the $$$ for it. They’re rumored to be so corrupt I’m not even sure what the point to the system would be other than to have the corrupt people have even more control.
“Leftie” and “corrupt” are not mutually exclusive sets, 6.
“and making the Supreme Court a full-on political football”
Well to be fair they’re worried about that football being in the other team’s hands for the rest of their natural born life, or at least 25 years, statistically speaking.
The football adage, 6, is that the D are losing, so instead of 11 on 11, they want to add four players in their side and play 15-11.
(It’s not a perfect analogy, but the gist is that since the D’s are in power, they want absolute power — and control over the third branch has been deemed necessary to that absolute power)
I don’t know 6. Seems unlikely that the Ds would actually change the Scotus to 13. Their biggest problem is in the Senate where some D senators have already said they don’t like the idea and they would need every non-R senator.
So seems unlikely, but shocking that the Ds would propose this. I am actually a liberal D but want to distance myself from the neo-Marxists that have taken over the D party.
My biggest problem with that is happening now is the amount of debt that is being taken on. It is ridiculous.
Today, no one understands at all what Marxist socialism is.
Marx: “ce qu’il y a de certain c’est que moi, je ne suis pas marxiste.”
I have given up suggesting to patent professionals that they should read Kant to understand what the Framers of the Constitution meant with the Patent and Copyright Clause.
Senator Tillis liked my first essay entitled: Preface: Fixing § 101 Requires Fixing § 100.
Senator Tillis also considered the following essay to be helpful:
Fixing the US Patent System (Part I): Title 35 Changes.
I did not bother the send him the third essay. It seems that legislatively healing the patent system is unlikely at this point.
The real scary thing is China and Russia monitoring what everyone does like in the book 1984. The difference is that China and Russia also have a system of rating people that determines what rights they have such as schools they can attend, jobs they qualify for, and so forth.
It is easy to image how once you fall into the black hole of being monitored that you could never break free of that black hole.
Biden is definitely a neo-Marxist and is advocating for more and more monitoring and the big tech companies are onboard because it means they can continue to be monopolies.
And China is the biggest exporter of technology to control your population. It is very easy to see how the entire world could fall into the black hole. The CRT people are squarely neo-Marxists using race and gender to cease control.
We’ll have to see what the reactions are to the Rs launching their own Twitter/Facebook, and so forth. If somehow the R sites are shutdown for some reason, then we should all be very, very afraid.
The funny thing is that I am liberal D and align with most of the liberal D policies. But CRT is neo-Marxists. I like many white males have spent my life trying to change the USA to provide equal opportunities to everyone. I’ve taken a lot of hits in my life standing up for black people and hiring black people when it wasn’t popular 40 years ago.
And we made incredible progress (!) with things like black people now making up their population share or more of the Scotus, the Congress, and the Executive Branch. But somehow there are these wild claims that racism and opportunity is worse than it was 60 years ago, which it is not.
And yes all this is related to patents as it does go to personal liberty and protecting your intellectual freedom and property.
The reality is that the patent system is under attack from neo-Marxists (Lemley and such) and the giant SV corporations.
Absolutely — and in perfect alignment with my characterizations of the patent system being attacked on multiple fronts (“no personal property is good” AND “disruptive personal property of others is bad”)
“I like many white males have spent my life trying to change the USA to provide equal opportunities to everyone. ”
Right, but under an overall system that “perpetuates white priv/money/power”. As we’ve clearly seen from the last 30ish+ years.
The people you’re trying to help have “equal opportunities” want some tasty tasty “equal” (or at this point “better”) OUTCOMES (as well as “social equality” which isn’t even on the menu at this point tbh as far as I can see, but is a totally other discussion), which are what was supposedly supposed to flow from the “muh equal opportunity” in your original proposal to provide equal “opportunity” 40+ years ago. But of course the equal or better outcomes don’t tend to actually happen for a variety of reasons (reasons which leftists are willing to attribute to your inherent tendency towards what they regard as white supremacy broadly defined beyond the white supre macist ter rorism explicit opp ression of yesteryear).
So the real question is, did you ever actually want those equal opportunities to lead to equal OUTCOMES, or was it all just a massive virtue signal/virtue project mainly for white people like yourself to do the right thing/be seen doing the right thing (or were you perhaps deceived for 40 years)? For my part, I will admit that I spent quite a few years just trying to do the right thing. Thinking that “equal opportunity” would likely lead to more or less, or at least moreso, “equal outcome”. And I was somewhat deceived (perhaps not intentionally) that such efforts would actually help “equality” in general. That was all fallacious logic for a thousand socio, socio-economic, socio-economic-political-religious-historical etc. etc. reasons.
Be honest NWPA, knowing what you know now after 40+ years of yours and thousands of other’s failure to actually bring black NET WORTH up to around parity with white people (ostensibly one of the major points to your quest for equal opportunity), why do you not join the leftist cause? Obviously other than them calling you ra cist in their world view. I’m not trying to be mean or play gotcha here, why not join their cause? Did you never want equal outcomes in the first place and you were solely dedicated to the equal opportunities? Do you not now? Or do you simply concede to the fact that leftist policies will be a disaster, period? Something else?
6, the Critical Race Theory (CRT) people don’t care about facts or rational thought. And they want to categorize people and then legislate that people get their percentage in each profession.
No I wasn’t doing the right thing when I helped black people. In fact I was told that if I kept hiring minorities that I would be fired. And took so much heat. But I was determined to hire the best qualified person for the job regardless of gender, race, religion, or ethnicity. Took a lot of heat for this.
And, the fact is that in the last 20 years black people have doubled their representation in Congress. The CRT people want to pretend that black people have no power when, in fact, they have an enormous amount of power in the USA.
Etc. Real social scientists will tell you that the problems have to do with how difficult it is to get out of low-income neighborhoods and that white, black, and Hispanic low-income neighborhoods are very similar in the their problems.
I think there is still a lot of racism in the USA but I also think that the target should be to insure equal opportunity and help people based on their situation and not the category.
“No I wasn’t doing the right thing when I helped black people. In fact I was told that if I kept hiring minorities that I would be fired. And took so much heat. But I was determined to hire the best qualified person for the job regardless of gender, race, religion, or ethnicity. Took a lot of heat for this.”
That sounds suspiciously a lot like, in your own mind, you thought that hiring the best person regardless of their ID classification was the “right thing to do”. You really think that hiring the best person for the job, regardless of the ID classification was not you trying to do the right thing? Not trying to be shtty here, just curious. Or did you just never consciously think about this being you, in fact, trying “to do the right thing”?
“And, the fact is that in the last 20 years black people have doubled their representation in Congress. The CRT people want to pretend that black people have no power when, in fact, they have an enormous amount of power in the USA.”
You say that, and I understand what you’re saying. But … there’s a very real real life reason why one of the most popular black congresscritters, Cory Booker, openly acknowledged, not more than 5 years ago, that he was consciously afraid that white people (in congress itself iirc) may just up put him out of congress. That is, as far as I can see, in his mind it seems, and I’m not going to naysay him, his position of power and the power he wields therethrough is not based on his, or black people’s actual power, it’s based on him being given power/a position of power by a white power structure (the federal gubmit). They also had no appreciable say in the creation of the overall government scheme/setup 100+ years ago. And they are still more or less powerless to change the overall power and government structure(s), and will be for the rest of my life, and likely generations after that. After the capital riot/protest/”attack” many more people are hyper aware of where the real power lies, and apparently it’s the ebil whitoids. If 2k (ish) ebil ones and their bros along with them, mostly just jollying around and bsing without trying to take over, can put the whole of the gubmit elite class to the floor, they’re the power, regardless of whether they choose to use it. Note also during the capital goings ons AOC was literally, a po op you not, quaking in fear/afraid of her own security dude. Even with 20k troopers and barbed wire in DC, there’s no assurances, half the troopers outright turned their backs on biden and it is not at all clear how many troopers would tiananmen a horde of ebil ones intent on ahem, “exchanging” gubmits (maybe for a gubmit that actually abides the constitution, sans generous “interpretations” thereof by the supremes). These are but a tiny handful of reasons why people are saying black people have no actual power.
“Etc. Real social scientists will tell you that the problems have to do with how difficult it is to get out of low-income neighborhoods”
Yeah but why is it so difficult to “get out of low income neighborhoods” bro? It’s because they don’t have da powa to, within the currently existant power structure. I do believe anyway. You with your old school liberal ideas can’t even conceive of this way of viewing things, it is an alternate way of viewing things.
“white, black, and Hispanic low-income neighborhoods are very similar in the their problems.”
True but nobody cares about the white problems, the boomer promise was to save the black people, not the poor whites of Appalachia etc. and the bulk of the hispanic population post dates, in large part, the boomer promise.
“I think there is still a lot of racism in the USA but I also think that the target should be to insure equal opportunity and help people based on their situation and not the category.”
Again, not trying to be shtty here at all, but do you think that, should we do that, as we have been, that it will a. preserve the preexisting white power structure, or b. liek totally make black people as powerful/wealthy as white people (equalish) one day (perhaps even 200 years from now)? And if it be a., again not trying to be shtty, is that not what leftists call it, a very sophisticated form of white supremacy (whites being socially/socio-economically supreme, esp with respect to black people)?
6,
Your postulations take as a given the kool-aid dogma that is to be rejected
I hear you on that anon, but I’m asking NWPA why it is to be rejected. You can chime in if you like.
6, what I think I already said. I answered your questions.
There is no white power structure anymore. The USA has gone through an incredible transformation in the last 50 years.
And the bedrock of that transformation has been the principles of the Enlightenment.
The core of understanding what is going on in this country right now is that the left are neo-Marxists and the right are neo-fascists. Reject both. Stick to objectivity, rational thought, and facts.
All the progress that has been made has relied on these principles. There is no evidence that CRT or intersectionality offers anything to society but hate and violence. This is similar to the white supre mist that offer nothing but hate and violence. Neither one has any basis in fact or reality and are nothing more than politicians trying to grab power and deceiving people to do so.
The problem is that the right way is rather boring.
And just remember that 10 percent of people have IQ less than 90 and 10 percent of people (not necessarily the same 10 percent) are clinically in sane.
“There is no white power structure anymore. ”
Wow. I’m just going to leave it at a wow and a yikes. I’m legit not sure what you think the US government is, but I’m not going to push it for today.
“There is no evidence that CRT or intersectionality offers anything to society but hate and violence.”
On that I will agree with you at least in its current implementation, except for one thing, a correctish diagnosis of power dynamics, especially racial and ethnic ones, though somewhat sex/gender etc. ones as well. Their solutions are, in my own opinion, garbage tier. This is of course because they want to implement solutions that will, hypothetically have a teeny chance of fixing x y or z issue, but have an outsized chance of failure/ineffectiveness and thus just being waste, at best, or a net negative. However, I have to concede to them, that any solutions I myself would propose, almost 100% certainly preserve the white power structure which you don’t think even exists. To be fair to you though I will note that in these discussions it does not appear that you have, perhaps, just not studied power dynamics much, and may not even care to.
But good discussion bro, thanks much for your thoughts. I do earnestly suggest that you give the hypothesis that there is, in fact, a white power structure in the country another thought. If you would like, you can come down to my city and I will give you a guided tour through all the nice parts of town (nearly entirely lilly white) and then we can go literally everywhere else in the city (80%+ minority). I have to tell you, getting out of the Alexandria/DC area for a few years has actually made me more aware of the situation.
“The core of understanding what is going on in this country right now is that the left are neo-Marxists and the right are neo-fascists. Reject both. Stick to objectivity, rational thought, and facts.”
Plus ONE MILLION.
“what rights they have such as schools they can attend, jobs they qualify for, and so forth.”
The Stasi were real innovators in the field.
“It is easy to image how once you fall into the black hole of being monitored that you could never break free of that black hole.”
While that is true, in china’s system I hear that, at least as of today, if you repent your ebil ways and toe the party line they will let you have your public bus pass again in a few years. For now it seems it’s only for people that keep fighting them.
What I mean of breaking free from the black hole is going back to a system where you aren’t monitored 24×7.
You see once they have everyone monitored it becomes almost impossible for change.
“What I mean of breaking free from the black hole is going back to a system where you aren’t monitored 24×7.
You see once they have everyone monitored it becomes almost impossible for change.”
Oh I agree. Basically requires an overthrow in the vast majority of instances.
“I am actually a liberal D but want to distance myself from the neo-Marxists that have taken over the D party.”
This is your official welcoming to the “right wing extremist club”.
BALLOONS! PARTY POPPERS! TINY HATS!
“My biggest problem with that is happening now is the amount of debt that is being taken on. It is ridiculous”
I used to care about it, but now that I understand modern monetary theory it really isn’t much of a thang bro. Even Ted “the budgetman” Cruz now understands why and is onboardish with the spending. For a major crisis (covid), the amounts we’re spending now are like a tenth of what other nations are spending proportionally. And the amounts we spend over budget every year are basically going towards keeping old people alive and to pharma companies (which actually do create some benefit). Setting aside the huge military budget, which as you know does two things mainly, keeps us the global hegemon and secures a lot of freedom in a lot of places (taiwan etc.), and protects via establishing a security environment for like 3 billy black/brown people (tho it does randomly explode a few black/brown countries in a given year, they are proportionally a small amount of countries that would otherwise get exploded). The real budgetary imo issue starts to come with Med4All/”free” college at ever inflating prices.
“I used to care about it, but now that I understand modern monetary theory it really isn’t much of a thang bro.”
I do have to wonder what exactly that “understanding” is, 6.
There are several “understandings” out there – and some are done right preposterous (with some even having a “no such thing as inflation” driver).
Others, like to point out that IF the Fed is “scott free” to print as much money as it needs, then the entire basis of taxes needs to be revisited (as taxes — as income to support actual funding of the government — no longer applies). In this view, taxes may even equate to punishment.
At point here though is that there is NO single understanding, so your mention is a bit nebulous.
“Others, like to point out that IF the Fed is “scott free” to print as much money as it needs, then the entire basis of taxes needs to be revisited (as taxes — as income to support actual funding of the government — no longer applies).”
They’re not completely scott free. It’s just that, currently, as of today, they could likely print about 20-35ish trilly more than they have right as of now without stupendously bad consequences. Consequences would start to become increasingly worse and noticeable from there (as of today). And that amount will fluctuate every year. Further, taxes would still be required as we would eat our way through that ability to print/padoopoop out money within a decade (or less) without taxes coming in.
“In this view, taxes may even equate to punishment.”
To be sure, taxes do equate to punishment at rates that we see these days, regardless of one’s view on modern monetary theory. I get so few services from the gubmit it’s pathetic compared to the amount I’m paying in, as for you, and NWPA, and almost anyone making over like 70k a year. And the punishment only goes up from there, only leveling off, so to speak, once you’re a multi hundred millyaire and have a company that benefits massively from tax provided services. It “punishes” success and killing yourself at work and bettering yourself, of course. This being so that you have the “priv” of supporting other people without being recognized for doing so (that is you get no credit or social benefits etc).
“At point here though is that there is NO single understanding”
Mmm, if you study the topic enough you’ll see pretty much everyone agrees on a few fundamental things. Bottom line is I’m convinced sufficiently, as is Ted “the budget” Cruz.
“ Mmm, if you study the topic enough you’ll see pretty much everyone agrees on a few fundamental things.”
The devil is in those details — what precisely are those agreed fundamentals and what are the larger and in disagreement (often substantial disagreement) takeaways.
As your post currently stands, you are simply stating the larger takeaway without sufficient provisions of those details.
Iancu v. Luoma – see link to youtube.com
Thanks Josh. Gene has been, and continues to be, robbed blind.
This is one relatively short video that everyone even minimally involved with patents needs to see . . . before it’s too late.
Shame on the Patent Office and these companies for what they’ve done, and continue to do, to Gene and his family.
Shame on them all.
Our Nation’s Founders would be aghast at the state of affairs of our formally world-leading (and continuing to sink) patent system.
Off topic, but Juvan Bonni—who runs the Bits & Bytes segment on this blog—passed the Missouri bar exam yesterday. Congrats to Juvan, and best wishes to him in his new career as an associate attorney!
+1
One question that I have and remains to be seen in any decision: how much legislating from the bench will we see?
“how much legislating from the bench will we see?”
As much as it takes to further damage the World’s formally innovation-leading country.
While China exalts, SCOTUS shrugs.
Regardless of how these decisions fall, whomever is unhappy with the results will argue that the Justices are legislating from the bench. Those happy with the decisions will then talk about how happy they are that the Justices finally followed the law as written. Either way, neither opinion matters. We are stuck with the decision, and properly advising our clients regarding the affects of that decision, regardless of which side of the divide we personally like.
I would completely disagree with such a nihilist view, and remind you of your State Oath of Office and the duty to the Constitution above any of the three individual branches that are below the Constitution.
As attorneys, we are not permitted to be such nihilists. Your referenced ‘duty to client’ demands more.
Well put. Some attorneys have a need to rant here about what they personally think the law ought to be. They can [far more effectively] petition Congress and file amicus briefs at their own expense. But they cannot ethically mislead clients or the public as to what the law is, especially in Sup. Ct. decisions, or provide clearly legally unrealistic odds of litigation success or loss to paying clients.
I call out the B$ of Paul’s “snipe from the sidelines” characterization (rant?).
I have always made it a point to state that In re Nuitjen is controlling law, and the implication that pointing out the anti-factual nature of that case is somehow unethical is ITSELF unethical.
Nobody likes the Federal Circuit’s decision, and the question really is which way it should fall. (My guess is that these judges will be seen as inferior officers).
Agreed on both counts. Unless they want explicitly to overrule Freytag, however, such a holding will make appointments clause jurisprudence ever more an unintelligible welter than §101 jurisprudence.
Sorry, not Freytag. I am not sure what case I meant, but I recall that one of the cases that I read when I was trying to understand this case cuts off the “inferior officer” solution here. In any event, that could not have been Freytag, as the distinction between “officers” and “inferior officers” was not at issue in that case.
I believe you may be recalling Edmond v. United States, 520 U.S. 651 (1997). See, e.g., Id. at 665 (“What is significant is that the judges of the [tribunal] have no power to render a final decision on behalf of the United States unless permitted to do so by other Executive officers.”)
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