CAFC denies Sequenom en banc petition, Next stop SCOTUS

By Gene Quinn
December 3, 2015

Tom Goldstein

Thomas Goldstein

Yesterday, in a per curiam decision with only Judge Newman dissenting, the United States Court of Appeals for the Federal Circuit denied the Sequenom petition for rehearing en banc. See Ariosa Diagnostics, Inv. v. Sequenom, Inc. Sequenom, the patent holder, had already hired Thomas Goldstein, the founder of SCOTUS blog and renowned Supreme Court advocate, as a part of their appellate team. The case will now undoubtedly move to the Supreme Court. We can only hope the Supreme Court will take the case and once and for all decide whether they intended for all genomic innovations, no matter how revolutionary, to be patent ineligible.

If you look quickly at the per curiam decision you might mistakenly believe that there is a unanimity of thought at the Federal Circuit on the issue of patent eligibility. After all, the case was denied en banc rehearing. There were also three separate written opinions, two concurring with the denial and only Judge Newman dissenting. In truth, if you take the time to read the opinions you realize that all four of the Judges who signed opinions believe the Supreme Court is wrong on patent eligibility. Given Judge Linn’s concurring opinion at the panel level we can safely conclude that he too believes the Supreme Court is wrong as well.

Let us take a step back and start the story from the beginning.

 

Ariosa v. Sequenom at the District Court

In response to letters threatening claims of infringement, Ariosa Diagnostics, Inc., Natera, Inc. and Diagnostics Center, Inc. each filed separate declaratory judgment actions from December 2011 through early 2012 against Sequenom alleging that they did not infringe the U.S. Patent No. 6,258,540, which claims certain methods of using cell-free fetal DNA (“cffDNA”). Sequenom counterclaimed alleging infringement in each case. The district court related the three actions for pretrial purposes.

The district court determined that the claims of the ’540 patent in question were directed to the natural phenomenon of paternally inherited cffDNA and that the claims did not add enough to the natural phenomenon to make the claims patent eligible under § 101. The district court determined that the steps of amplifying and detecting were well-understood, routine, or conventional activity in 1997 (the critical date), when the application for the ’540 patent was filed. The district court concluded that the ’540 patent was not directed to patentable subject matter because the only inventive component of the processes of the ’540 patent is to apply those well-understood, routine processes to paternally inherited cffDNA, a natural phenomenon. The district court also found that the claimed processes posed a risk of preempting a natural phenomenon.


 

Ariosa v. Sequenom – The CAFC Panel Decision

Ultimately, the Federal Circuit concluded that the discovery in question was “a significant contribution to the medical field,” but that did not matter insofar are patent eligibility is concerned.

The Federal Circuit, in the original panel opinion authored by Judge Reyna, explained that it was undisputed that the existence of cffDNA in maternal blood is a natural phenomenon. It was further clear that the inventors did not create or alter any of the genetic information encoded in the cffDNA. The method covered in the patent claims ends with paternally inherited cffDNA, which is also a natural phenomenon. The method, therefore, begins and ends with a natural phenomenon. Thus, the claims were found to be directed to matter that is naturally occurring.

The inquiry does not end here, however, because the claims at issue are drawn to naturally occurring phenomena, it is necessary under the Supreme Court’s so-called Mayo framework to ask a second question – whether the elements of the claim contain sufficient inventive conception to transform the claimed naturally occurring phenomenon into a patent eligible invention. The Federal Circuit concluded that the claims did not satisfy this second prong of Mayo.

Judge Reyna wrote:

The method at issue here amounts to a general instruction to doctors to apply routine, conventional techniques when seeking to detect cffDNA. Because the method steps were well-understood, conventional and routine, the method of detecting paternally inherited cffDNA is not new and useful.

Of course, this conclusion is the perfect illustration as to why Supreme Court jurisprudence on patent eligibility is objectively wrong. Judge Reyna openly conflates novelty and utility with patent eligibility. Indeed, the Supreme Court decision in Mayo v. Prometheus practically demands conflating the various parts of the statute. In Mayo the Supreme Court explicitly acknowledged that the claims in question did not cover a naturally occurring phenomenon, but rather that the added steps were conventional. Writing for the unanimous majority Justice Breyer wrote that the Court declined the invitation of the Solicitor General to analyze the claims under 102, 103 and 112, finding patent eligibility under 101 to be the better analysis. For more analysis see Killing Industry: Supreme Court Blows Mayo.

Of course that is nonsense. Driving the entire analysis into a patent eligibility context makes the analysis easier and in a litigation context means no discovery is required, but convenience does not make it the right conclusion. It is also the height of intellectual dishonesty to claim that 101 is the better place to handle the addition of conventional steps. The Supreme Court continues to cling to the fantasy that they have not overruled prior decisions, but numerous prior decisions of the Court had always cautioned lower courts against conflating different parts of the statute. In Diamond v. Diehr the Supreme Court specifically and unambiguously ruled that novelty is a separate and distinct issue from patent eligibility under the statute. Whether the addition of conventional steps renders a claim patentable is undeniably a question of novelty, so the Supreme Court either ignored Diehr or overruled Diehr. Sadly, the Court chose to operate under the impossible fiction, namely that Diehr was followed and remains good law.

Judge Linn wrote a separate concurring opinion concluding that given the unnecessarily sweeping language of the Supreme Court’s decision in Mayo he was constrained to agree that the patent claims at issue were ineligible. Judge Linn explained that the Supreme Court lumped all post-solution conventional activity together as if it necessarily had to be qualitatively the same.

Judge Linn wrote:

The Supreme Court’s blanket dismissal of conventional post-solution steps leaves no room to distinguish Mayo from this case, even though here no one was amplifying and detecting paternally-inherited cffDNA using the plasma or serum of pregnant mothers. Indeed, the maternal plasma used to be “routinely discarded,” because, as Dr. Evans testified, “nobody thought that fetal cell-free DNA would be present.”

Judge Linn concluded “Sequenom’s invention is truly meritorious.”

 

Ariosa v. Sequenom – The En Banc Denial

After the brief per curiam decision, several written opinions followed. First, Judge Lourie, who was joined by Judge Moore, wrote that while the claims at issue may be susceptible to challenge for being too broad or indefinite, “they should not be patent-ineligible on the ground that they set forth natural laws or are abstractions.”

Lourie would go on to conclude:

In sum, it is unsound to have a rule that takes inventions of this nature out of the realm of patent-eligibility on grounds that they only claim a natural phenomenon plus conventional steps, or that they claim abstract concepts. But I agree that the panel did not err in its conclusion that under Supreme Court precedent it had no option other than to affirm the district court.

Even Judge Dyk, who is more skeptical of patents than most of the other judges on the Federal Circuit, thinks the Supreme Court went too far in Mayo.

After explaining that he believes that the Mayo and Alice framework is necessary to purge the system from improvidently issued, “highly anticompetitive patents without the need for protected and expensive litigation,” Judge Dyk explained that he shares the concern of some of the other judges on the Federal Circuit who think Mayo is too restrictive. Dyk wrote:

I share the concerns of some of my colleagues that a too restrictive test for patent eligibility under 35 U.S.C. § 101 with respect to laws of nature (reflected in some of the language in Mayo) may discourage development and disclosure of new diagnostic and therapeutic methods in the life sciences, which are often driven by discovery of new natural laws and phenomena. This leads me to think that some further illumination as to the scope of Mayo would be beneficial in one limited aspect. At the same time I think that we are bound by the language of Mayo, and any further guidance must come from the Supreme Court, not this court.

In an uncharacteristically short dissent, Judge Newman wrote:

Precedent does not require that all discoveries of natural phenomena or their application in new ways or for new uses are ineligible for patenting… The new diagnostic method here is novel and unforeseen, and is of profound public benefit… The panel’s decision to withhold access to patenting, now endorsed by the en banc court’s refusal to rehear the case, is devoid of support.

Judge Newman also went on to remind us all that patenting “facilitate[s] the public benefit of provision of this method through medical diagnostic commerce, rather than remaining a laboratory curiosity.”

 

Conclusion

It is unbelievable that the Federal Circuit could recognize that discovery is a significant contribution to the medical field but still not patentable. Such a narrow-minded view is in keeping with Supreme Court precedent, specifically Myriad, but does quite literally ignore the explicit terms of the statute – 35 U.S.C. 101 – which says that discoveries are patent eligible. But that is the state of patent eligibility in the United States.

The law of patent eligibility is created by the nine least qualified people to make such a determination; the Justices of Supreme Court of the United States. The Supreme Court arbitrarily chooses which of its own prior decisions to follow and ignore, refuses to read and enforce the laws passed by Congress even when the statue is but a single sentence (as is 101), and they openly legislates from the bench by creating judicial exceptions to patent eligibility where no such statutory prerogative exists.

It seems that collectively America has forgotten the purpose of patenting. The Supreme Court is driving ever more innovation to become nothing more than a laboratory curiosity, as Judge Newman aptly explains. Save a few well-intentioned Members, Congress seems wholly incapable of understanding the issue, or its importance. If the Federal Circuit will not step up and do the right thing and limit the lawless Mayo decision, which instructs lower courts to ignore the patent statute and drive 100% of the analysis into 101, the U.S. will forfeit our lead in the biotechnology and medical device industries. That will be bad for the economy, but far worse for public health.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 40 Comments comments.

  1. step back December 3, 2015 12:38 pm

    Mayo made me do it.

    –What a cheap schoolboy excuse.

  2. Gene Quinn December 3, 2015 1:05 pm

    Step-

    I’m really wondering whether it is time to seriously discuss abolishing the Federal Circuit. What is the point in having the Federal Circuit?

    I used to do litigation and I never appeared in front of a judge on any level that didn’t seem very well capable of splitting hairs and making fine distinctions to distinguish precedent they didn’t like. The Federal Circuit seems to just be pulling out the rubber stamp.

    The only way this makes sense is if the pro-patent judges are just agreeing to put their foot on the accelerator. Run the car off the cliff as quickly as possible so we hit the bottom and then we can rebuild. That is the only thing that makes any sense. But there won’t be much left if and when things finally get sorted out I’m afraid.

    -Gene

  3. A Rational Person December 3, 2015 1:36 pm

    Gene,

    So I’m guessing that you do not agree with the following statement from Judge Dyk’s concurrence:

    “In my view the framework of Mayo and Alice is an essential ingredient of a healthy patent system, allowing the invalidation of improperly issued and highly anticompetitive patents without the need for protracted and expensive
    litigation.”

    “The language of Mayo is clear.”

    🙂

    So based on this reasoning, I’m assuming Dyk would also be in favor of ignoring the requirements of the due process clauses of the fifth and fourteenth amendments to allow the government to take away people’s property and lock them up “without the need for protracted and expensive
    litigation.”

    Dyk’s statements in his concurrence also call into question whether he fully understands the concept of “separation of powers.” If the Mayo and Alice “framework” was such “an essential ingredient of a healthy patent system” why did Congress fail to specify this “framework” in the 1952 Patent Act and in the AIA?

  4. Curious December 3, 2015 2:00 pm

    The law of patent eligibility is created by the nine least qualified people to make such a determination; the Justices of Supreme Court of the United States.
    To say they are the least qualified is a bit of hyperbole. However, they are ill-qualified. The problem isn’t with the justices, themselves — the problem is that the judiciary just isn’t well equipped to understand invention and discoveries. Unlike Congress, which can engage in independent fact finding and, by its very nature, is beholden to its constituents, can fully explore the topic of invention and what should be patentable, the judiciary can (should?) only be working with the facts presented to it. Given the nature of appellate review, this is a very limited amount of facts that are bound to be manipulated by clever attorneys. The point being is that the judiciary has a very incomplete picture to work with.

    Also, as I’ve pointed out before, the patent system involves a determination, by Congress, that the benefits of patents to the public (i.e., public disclosure and the fostering of invention) outweigh the negatives of patents to the public (i.e., exclusive rights to inventors). However, the judiciary is only exposed to the negatives since it is those exclusive rights that are being asserted. Thus, the judiciary has a long-standing bias against patent rights.

    The problem with the judiciary’s take on 35 USC 101 is that it is policy making dressed up as statutory construction. 35 USC 101 is not a condition for patentability (just read the statute and compare with 102 and 103). It was always intended to be a wide open door for inventors to walk through. Today, it is a widely-used tool for those who want limit patent rights. It shouldn’t be up to the judiciary to declare what classes of inventions should or should not be patentable. Clearly, Sequenom’s invention is not some “abstract idea.” It is a valuable diagnostic tool — the type of invention the patent system is supposed to foster.

    The Federal Circuit is clearly punting the issue to the Supreme Court. The Supreme Court, however, should punt the issue to Congress. They can do so by granting cert on Retirement Capital v. Bancorp and getting out of the business of reinterpreting 35 USC 101 by stating that 101 is not a defense under 35 USC 282. Congress should be saying what is patentable subject matter — not the courts.

  5. Curious December 3, 2015 2:08 pm

    “In my view the framework of Mayo and Alice is an essential ingredient of a healthy patent system, allowing the invalidation of improperly issued and highly anticompetitive patents without the need for protracted and expensive litigation.”
    Patents, by their nature, are anti-competitive (see my comments above about the judiciary’s inherent dislike for patent rights). Dyk’s statement, however, ignores the benefits the public derives from patents. BTW — from reading his opinions, I suspect that Dyk believes ALL patents are anticompetitive and should be invalidated.

    Dyk’s statements in his concurrence also call into question whether he fully understands the concept of “separation of powers.”
    Well put. Policy making belongs to Congress and not the judiciary.

  6. A Rational Person December 3, 2015 2:42 pm

    Curious,

    I agree with much you have written, except the following:

    “The problem isn’t with the justices, themselves — the problem is that the judiciary just isn’t well equipped to understand invention and discoveries.”

    The justices are the ones who chose to try to rewrite 35 USC 101 to achieve their chosen policy aims. They chose to read the word “discoveries” out of the statute with no explanation as to why they chose to do so. They could have chosen to do the proper thing and interpret the statute as it is written and as it has been interpreted for decades.

    I will also note that at least one past justice, Felix Frankfurter, was able to grasp the difference between the concepts of “patent eligibility” and “enablement” despite not having a scientific and technical degree and even though 35 USC 101 and 35 USC 112 did not exist yet.
    From his concurring opinion in Funk Bros.:

    “The Circuit Court
    of Appeals seems to me to have proceeded on the assumption that only ‘a particular composite culture’ was devised and patented by Bond, and then applies it to ‘any composite culture’ arrived at by deletion of mutually inhibiting strains, but strains which may be quite different from Bond’s
    composite culture. The consequences of such a conclusion call for its rejection. Its acceptance would require, for instance in the field of alloys, that if one discovered a particular mixture of metals, which when alloyed had some particular desirable properties, he could patent not merely this particular
    mixture but the idea of alloying metals for this purpose, and thus exclude everyone else from contriving some other combination of metals which, when alloyed, had the same desirable properties. In patenting an alloy, I assume that both the qualities of the product and its specific composition would need to be specified. The strains that Bond put together in the product which
    he patented can be specified only by the properties of the mixture. The District Court, while praising Bond’s achievement, found want of patentability. The Circuit Court of Appeals reversed the judgment of the District Court by use of an undistributed middle—that the claims cover a ‘composite culture’ in the syllogism whereby they found patentability.

    It only confuses the issue, however, to introduce such terms as ‘the work of nature’ and the ‘laws of nature.’ For these are vague and malleable terms infected with too much ambiguity and equivocation. Everything that happens may be deemed ‘the work of nature,’ and any patentable composite exemplifies in its properties ‘the laws of nature.’ Arguments drawn from such terms for ascertaining patentability could fairly be employed to challenge almost every patent. On the other hand, the suggestion that ‘if there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end’ may readily validate Bond’s claim. Nor can it be contended that there was no invention because the composite has no new properties other than its ingredients in isolation. Bond’s mixture does in fact have the new
    property of multi-service applicability. Multi-purpose tools, multivalent vaccines, vitamin complex composites, are examples of complexes whose sole new property is the conjunction of the properties of their components. Surely the Court does not mean unwittingly to pass on the patentability of such products by formulating criteria by which future issues of patentability may be prejudged. In finding Bond’s patent invalid I have tried to avoid a formulation which, while it
    would in fact justify bond’s patent, would lay the basis for denying patentability to a large area within existing patent legislation.”

  7. Curious December 3, 2015 2:47 pm

    The justices are the ones who chose to try to rewrite 35 USC 101 to achieve their chosen policy aims.
    There are two problems (probably more) with the judiciary and 35 USC 101. First, they shouldn’t be injecting their policy positions under the guise of statutory construction (i.e., reading into 35 USC 101 exceptions that do not exist). Second, to the extent they are engaged in policy making, they aren’t properly equipped to do. These are two different problems.

  8. Gene Quinn December 3, 2015 4:03 pm

    Rational Person-

    I do agree with Judge Dyk and the others who say that the language of Mayo is clear. Where I would disagree is they don’t think they can do anything about it. As a confirmed constitutional, judicial officer they have a duty and obligation to follow the law. The broadest reading of Mayo is contrary to the statute which would make it a lawless decision. The Federal Circuit simply cannot interpret Mayo to nullify the statute, which is exactly what they are doing, and why they are complicit in my opinion.

    I definitely do not agree with Judge Dyk that the Mayo/Alice framework is essential. The Mayo/Alice framework is intellectually bankrupt and legally incorrect. Judge Dyk likes it only because it allows him and others to conclude that patent claims are invalid and should never have been issued without much, if any, thought.

    -Gene

  9. Night Writer December 3, 2015 5:01 pm

    The reason I think the Fed. Cir. should be abolished is that it has allowed lobbying for a narrow area of the law. Google has been vetting the Obama appointments based on patent law. (I know the Fed. Cir. hears more than that.)

  10. Night Writer December 4, 2015 9:56 am

    The other thing about this (I will say it again) is that the holding in Alice is really that the claims were unconstitutionally granted because the claims tend not to promote. That is the holding like or not. The SCOTUS can dance all they want but that is the only basis for the action.

    I think each time a claim is held invalid that the judge should have to make a finding of fact that the claims tends not to promote. That isn’t even a good enough reason because the system as whole only needs to promote.

    The SCOTUS is not even on thin ice. They are in the drink. This whole country has turned into a giant joke for the top .01 percent to take and do what they want. The justices are nothing but bought off clowns.

  11. A Rational Person December 4, 2015 11:25 am

    Gene@8

    I do not think the language of Mayo was “clear.” If the language of Mayo was “clear”, the USPTO’s guidelines would have specified that all claims to methods in the fields of chemistry and biotechnology are presumed to be patent ineligible unless an unconventional step is claimed, because virtually all methods in these fields apply natural laws and/or employ conventional steps. The fact the Supreme Court in Mayo asserted that their judicial exception would not swallow the rule contradicts the language of their decision making the language in Mayo “unclear” and has allowed the USPTO some wiggle room in their guidelines.

  12. Curious December 4, 2015 12:01 pm

    That is the holding like or not.
    That is YOUR view of the holding. However, it is neither a widely held view nor one supported by the text of Alice.

    The justices are nothing but bought off clowns.
    If you want to influence decision makers, lay off the incendiary comments. Statements like yours do not help our cause.

  13. Curious December 4, 2015 12:15 pm

    virtually all methods in these fields apply natural laws and/or employ conventional steps
    Exactly. The justices do not understand “invention” in these fields, so they don’t appreciate that the differences between one invention in the next often lay in the identification of this alleged “abstract idea” or “natural law.”

    The problem with justices making policy decisions is that they only apply their analysis to the facts at hand and do not appreciate the breadth of their analysis. While judges do engage in the creation of hypotheticals in evaluating their pronouncements about the law, the creation of a good hypothetical necessarily requires an understanding of the underlying subject matter (in this instance, the technology and/or chemistry and/or biology and/or physics, etc.). This understanding is lacking at the Supreme Court and so they don’t appreciate the breadth of their policy making.

    As a result, we have an exception (as articulated by Mayo) that threatens to swallow the rule. We also now have the Federal Circuit (understandably frustrated with the Supreme Court’s constant striking down of decades of Federal Circuit precedent) now pointing their finger at the Supreme Court and saying “don’t blame us, we’re just following what they [SCOTUS] told us to do.”

  14. Night Writer December 4, 2015 1:18 pm

    Curious: >That is the holding like or not.
    >>That is YOUR view of the holding. However, it is neither a widely held view >>nor one supported by the text of Alice

    It is supported by the text of Alice as I have discussed with you before. The widely held view is wrong.

    >The justices are nothing but bought off clowns.
    >>If you want to influence decision makers, lay off the incendiary comments. >>Statements like yours do not help our cause.

    Incendiary? I think my views are becoming the main stream.

  15. Night Writer December 4, 2015 1:24 pm

    And, Curious, before you vent anymore of your hostility towards “my views” of the Alice holding, listen to the Bork confirmation hearings headed by V.P. Biden.

    Bork will explain it to you.

  16. Curious December 4, 2015 2:04 pm

    Curious, before you vent anymore of your hostility towards “my views” of the Alice holding
    Hostility? I’m just reminding you that your opinion of the holding is one that you share with very few others. That, in itself, says a lot.

    Incendiary? I think my views are becoming the main stream.
    Personally, I like to elevate myself above the main stream muckraking. However, if that is where you prefer to base your opinions, that is your call.

    Bork will explain it to you
    Do you really think that I would attempt to listen to the confirmation and attempt to glean some yet-to-be identified point to which you refer from this confirmation?

    Let me end this by saying don’t be our side’s version of MM.

  17. Anon December 4, 2015 2:27 pm

    Night Writer,

    You say: “The other thing about this (I will say it again) is that the holding in Alice is really that the claims were unconstitutionally granted because the claims tend not to promote. That is the holding like or not.

    And I say (likewise, again) that such CANNOT be a proper holding.

    I do not understand why you are so into pushing a “constitutional holding” that in and of itself cannot stand constitutional muster.

  18. Night Writer December 4, 2015 2:42 pm

    >hostility
    >>Let me end this by saying don’t be our side’s version of MM.

    I rest my case. No greater insult is possible. Curious, I’ve been way ahead of the curve for many years. I predict was is going to happen and the views that will be held. Try to appreciate me.

  19. Night Writer December 4, 2015 2:43 pm

    Anon, give it a rest.

  20. step back December 4, 2015 3:41 pm

    Night Writer @14,

    I agree with your “incendiary” views.

    Neither the Mount Olympus 9 nor the bound-to-the-rock Fed. Cir. Judges appear to have much of a clue as to science and the so-called laws brought down from the mountain top by Mother Nature herself.

    What a joke. What a multi-ring circus act.

    http://patentu.blogspot.com/2015/12/judge-l-lets-loose-his-laws-re-laws-of.html

  21. Night Writer December 4, 2015 10:19 pm

    Thanks step back. For reality, read:

    http://www.bilskiblog.com/blog/2013/07/prometheus-unbound-the-untethering-of-laws-of-nature-and-patent-eligibility-from-scientific-reality.html

    Asimov famously said there is a cult of scientific ignorance in the US.

  22. Night Writer December 4, 2015 10:21 pm

    To Curious, it doesn’t do any good to pretend these judges have the slightest clue what they are talking about nor does it do any good to pretend that Alice is in anyway OK. Alice isn’t OK.

  23. step back December 5, 2015 2:57 am

    Night Writer @21
    Thanks for the link.
    I fear that they do not go radical enough (maybe wrong choice of word given latest current events).

    The so-called “laws” are not those of Mother Nature coming down from mountain top with holographic clay tablets in hand. Rather they are our current delusions and illusions as seen through human eyes. Mass? Energy? E=mc^2? Is that “truly” how the Universe is put together or just our current projection onto Socrates’s cave wall?

    Clearly V=I*R (Ohm’s “law”) is a delusion because in the real world there is no homogeneous R device that has linear conversion of “current” to “voltage” over all ranges and all temperatures. It is a model, an idealistic or abstract model. Not a “law” that Mother would approve of.

  24. Night Writer December 5, 2015 7:39 am

    I absolutely agree with you step back. I think that it is really much worse. I think most of these judges hold beliefs that their thinking occurs in the ether. At the core of their beliefs on information is not that it is a physical process.

  25. Curious December 5, 2015 9:23 am

    To Curious, it doesn’t do any good to pretend these judges have the slightest clue what they are talking about nor does it do any good to pretend that Alice is in anyway OK. Alice isn’t OK.
    Acting like MM again — ignore EVERYTHING I’ve written and create your own narrative with which to respond.

  26. Anon December 5, 2015 9:32 am

    Night Writer @ 19,

    Respectfully, that very same comment applies to you.

    You want to continue to voice your “constitutional holding,” and my comments apply to your position every bit the first time that I put them to you and your view of “constitutional holding.”

    You want me to give it a rest, yet do not want to rest yourself?

    Sorry, but I decline that invitation.

  27. Night Writer December 5, 2015 1:18 pm

    >>Acting like MM again — ignore EVERYTHING I’ve written and create your own narrative with which to respond.

    Curious, you are the one that criticizes my posts (like MM).

    >>Personally, I like to elevate myself above the main stream muckraking.

    I am sure that is not a fair characterization. Again, you keep criticizing my posts. Your comments are just bizarre Curious. We are living in epic times when the patent system is being dismantled by international corporations. If anything, my statements are not strong enough.

    >>The justices are nothing but bought off clowns.
    >>If you want to influence decision makers, lay off the incendiary comments. >>Statements like yours do not help our cause.
    This appears to be at the core of your problem with me. How about you let me have my style and you can have your style? My style is brutal truth. I have no interest in tip-toeing around the sensibilities of congressional staffers or Fed. Cir. researchers to try to win a small point here and there.

    Anon: My take on Alice is not wrong.

    (Just bizarre Curious that you keep criticizing my posts and then try to flip things around on me.)

  28. Anon December 5, 2015 1:27 pm

    Night Writer,

    With all due respect, your attempted portrayal of a “constitutional” holding is in fact absolutely wrong. And wrong for the list of reasons that I have already provided.

    Perhaps you should take your own advice and “give it a rest.” Or at least, go back and dig up each of the points that I have provided to you and address them in some satisfactory manner. But to merely repeat yourself and not address those points is, well, since the meme is on the table, rather “Malcolm” like.

  29. step back December 5, 2015 1:47 pm

    Oh Oh
    This echo chamber is starting to sound like that Patent Oh Oh place.
    Maybe you should take this line of conversation back to where t came from?

  30. Curious December 5, 2015 2:24 pm

    My style is brutal truth.
    Calling the Supreme Court “bought off clowns” is the brutal truth?

    The Rule 8.3(a) of the Model Rules of Professional Responsibility (not knowing where you are a member of the bar) states “[a] lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.” Accusing a judge as being “bought off” clearly applies. Have you informed the appropriate professional authority?

    Let me also refer you to Rule 8.2(a), which states “[a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”

    How about you let me have my style and you can have your style?
    I care about winning the battle — that is the only thing that matters. When your style puts off members of your own team, how do you think your style is going to play with the undecided?

    Let me make this clear, I don’t often disagree with you on content. However, your presentation leaves a lot to be desired. Truth wrapped up in hyperbole is truth ignored.

  31. Night Writer December 5, 2015 2:34 pm

    >>I care about winning the battle — that is the only thing that matters.

    Look Curious, you are not the general to edit me. I don’t mind constructive criticism, but your attempts to control my style is a bit much.

  32. Night Writer December 5, 2015 3:43 pm

    You know Curious, I understand the politics of what is going on. I grew-up in DC and with some of the people that are in Congress now. The fact is that what is going on in patent law has more to do with politics than applying the law.

    As an example of the power facing the cold hard reality gives me, I predicted that what the SCOTUS was going to do in Alice was come up with a test that dist. ct. judges could use to invalidate claims at the SJ stage. I predicted this several times before Alice including about 3 years before Alice and right before Alice came out. It was obvious to me what the SCOTUS was up to. There many other examples of me correctly predicting the outcome of these cases. It is not hard when you understand the politics behind the law.

    Another example is Lemley. He is very predictable once you understand that he is driven by politics and not applying the law.

  33. Night Writer December 5, 2015 4:23 pm

    An awful lot of what you say Curious is “The Pope says the Earth revolves around the Sun, so we better go along with that if we are going to avoid being burned at the stake.”

  34. step back December 6, 2015 12:46 am

    Curious @30

    You know the whole point of having a Democracy is that we can openly criticize government officials. The Rules of Professional Conduct cannot be Constitutionally used to chill our 1st Amendment rights. Attorneys are citizens too. (Patent attorney lives matter.)

    There is something fundamentally gone afoul when SCOTUS starts passing their own laws rather than adhering to the ones (i.e. 35 USC 101 “any new and useful …”) passed by Congress.

    There is something smelling of crony capitulation when SCOTUS starts flapping their water park flippers about subjects they are clearly incompetent to deal with such as science, technology, mind, abstract ideas and “laws of nature”.

    To use the “Professional Rules” as a scare tactic for preventing citizens from standing up and protesting (at least anonymously) is pure demagoguery.

  35. Anon December 6, 2015 7:47 am

    Gentlemen,

    I think there is a mix of validity in the opinions being expressed by Night Writer, Curious and step back.

    Words chosen may burn, and sometimes should burn. Hyperbole is a valid mechanism, and yes, “going over the top” can be effective. And yes, too, I would side with those pointing out that being TOO civil can be – and in patent law instances, ,b>is every bit as bad as not being civil.

    The key then is to look at the content.

    Clearly when looking at that content, the fact of the matter is that the US judicial branch has decided to “scriven” its own patent laws, based on its own views of policy.

    The bigger picture is that this instance within patent law has immediate and very real effects outside of patent law.

    To think otherwise, would be to think that the Marbury v Madison case is strictly limited to matters only involving Justice of the Peace commissions.

    My “beef” with Night Writer and his “constitutional holdings” line of posts is that he is not thinking through the counter points to that position, choosing instead the line of rhetoric of merely repeating himself.

    That is not a worthwhile tactic. No matter what any Pope may say, trying to be just a Pope on the other side of the coin is just not the way to go. A better path is to acknowledge and integrate the counter points where possible, and where not possible, to modify the position so as to not incur those counter points.

    It appears that each of us feel strongly in the benefits of a strong patent system. Instead of “echo,” we should embrace the differences among us and draft stronger positions (and yes, those stronger positions may yet contain strong and biting words).

  36. Night Writer December 6, 2015 9:15 am

    Anon, I feel my position in Alice is valid. I understand your argument, but my position can be a fallback position to yours. It is fine to make layered positions. You want an asterisk on my position, “if Alice is found not to be unconstitutional”?

    >It appears that each of us feel strongly in the benefits of a strong patent >system. Instead of “echo,” we should embrace the differences among us and draft stronger positions (and yes, those stronger positions may yet contain strong and biting words).

    Well said Anon. I think us doing that illustrates that we are on the side of applying the law and not the judicial activist. (And on the side of understanding the truth and not the side of fabricating realty to justify an end.)

    Well said too Step Back.

    (You know Curious, when I said Alice was coming years before it, there was a barrage of criticism I received. The fact is that what is driving patent law right now is politics. Not science. Not law. Not economics except Google bucks. And what is ironic about some of what you write is that anyone that reads this blog that we may influence knows this. The Congressional staffers know this better than we do. And, also it is a cold hard truth that many in our judiciary were selected based on their sell out to the international corporations including the justices. That is just the cold hard reality of the world. Ugly. As a thought experience try to adopt my way of thinking and then you look at the law and ask is there a way this craven sell-out ignorant pig could rule in this way. That probe will give you the right result in most patent law cases at the Fed. Cir. and SCOTUS level. That is how I do it.)

  37. Curious December 6, 2015 9:27 pm

    there was a barrage of criticism I received
    From where? I don’t recall this criticism. Why were you criticized?

    The fact is that what is driving [all] law [always] is politics.
    There … fixed it for you.

    also it is a cold hard truth that many in our judiciary were selected based on their sell out to the international corporations including the justices.
    That may play with the tin foil hat crowd, but comments like that gets you grouped in with the tin foil hat crowd — not a place to influence the undecided (Google’s reach does have limits).

    adopt my way of thinking
    My problem has been with your articulation — not your thinking.

    ask is there a way this craven sell-out ignorant pig could rule in this way
    There is something called Hanlon’s Razor, which reads “Never attribute to malice that which can be adequately explained by stupidity,” I have employed a similar proverb of “don’t attribute to conspiracy that which can be explained by incompetence.” Regardless, I have explained in the past why I believe judges have an innate bias against patents. This bias is based upon their experiences as judges — not by being “bought off.”

  38. Night Writer December 7, 2015 8:55 am

    >>Regardless, I have explained in the past why I believe judges have an innate bias against patents. This bias is based upon their experiences as judges — not by being “bought off.”

    The point isn’t why, but that they do have the bias and —— do you know what else drives this—-their lack of ethics.

    We clearly have a different model of the world. That is one reason I predict the outcome of cases to illustrate my model has predictive power.

    Someone like Lemley is easy to predict: My model of Lemley: (a) Feels he is on a mission to end patents. (b) No sense that he has to adhere to the reality of technology or the law. (c) Willing to mischaracterize cites and the technology. (d) High I.Q. (e) Devious. (f) Anticipates counter arguments.

    Run that model as a Lemley and you can figure out what he is up to every time.

  39. Night Writer December 7, 2015 8:59 am

    I should have added (g) professor at Stanford. (h) Knows that Stanford will never discipline him unless he does something that the popular press condemns. (i) Giant ego. (j) Loves money and recognition.

    >also it is a cold hard truth that many in our judiciary were selected based on >their sell out to the international corporations including the justices.

    Curious> That may play with the tin foil hat crowd,

    Well, you don’t understand the world then Curious. You have no clue what is going on. No only that you bizarrely think you can tell me how I should view the world. I have the great intellects of the day on my side.

  40. step back December 7, 2015 2:57 pm

    Curious and Night Writer,

    I don’t see you guys as being far apart in view points.
    You are quibbling about minor details such as what makes judges act in the technically incompetent way that they do.

    The answers may be multi-fold. They may have strong production pressures to get cases done with and closed as quickly as possible. (What better than SJ on the 101 issue?) They may have to answer to friends with certain political leanings. They may be afraid to admit to their inability to understand complex and esoteric technical aspects of their cases. They’ve been told the threads of the robes they parade in are so fine that only the more intelligent and loyal citizens of the realm (**) can see them. 😉

    **Note: See The Emperor’s New Clothes by Hans Christian Andersen
    https://en.wikipedia.org/wiki/The_Emperor's_New_Clothes

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