Skidmore-Mead Can Solve the Patent Eligibility Dilemma

“At the first opportunity, the Federal Circuit should determine in a precedential opinion that a patent issued or reissued after October 2019 is entitled not only to the presumption of validity that Congress granted, but also Skidmore-Mead deference.”

https://depositphotos.com/28667711/stock-photo-green-us-101-south-highway.htmlJudge Kimberly Moore, in a comprehensive and insightful opinion dissenting from the denial of the petition for rehearing en banc in Athena Diagnostics, Inc. v. Mayo Collaborative Servs., 927 F.3d 1333 (2019), emphasized that the lack of clarity in Section 101 jurisprudence is one of the most critical issues in patent law. Sensing no interest by her colleagues in crafting an opinion with sufficient common denominators to provide instructions to trial judges on how to navigate the cross-currents created by Federal Circuit decisions post-Mayo/Alice, Judge Moore advised litigants: “Your only hope lies with the Supreme Court or Congress.” Id. at 1363.

Not now. Several months after Athena, the USPTO took the initiative to issue a guidance document “October 2019 Update: Subject Matter Eligibility,” in response to requests by numerous stakeholders for more clarity and predictability. Consequently, in light of well-established Supreme Court precedent in administrative law, there is every reason for the Federal Circuit to now adopt the analysis of these Guidelines in future Section 101 cases.

Skidmore-Mead

In Skidmore v. Swift & Co., 323 U.S.134, 140 (1944), the Supreme Court recognized that:

the rulings, interpretations and opinions of [an agency], while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.

Over 50 years later, in United States v. Mead Corp., 533 U.S. 218 (2001), the Court reaffirmed Skidmore’s vitality, but suggested that courts also could consider “the degree of the agency’s care, its consistency, formality, and relative expertness, and . . . the persuasiveness of the agency’s position.” Id. at 228; see also id at 235 (also mentioning “thoroughness,” “logic,” and “consistency with prior interpretations”).

Together, Skidmore-Mead reinforced the principle that a federal court does not abdicate the job of saying what the law is by deferring to an agency’s determination, so long as relevant factors evidence that the agency is in a superior position to interpret a statute that Congress charged it with implementing. See Bradley Lipton, Accountability, Deference, and the Skidmore Doctrine, 119 Yale L.J. 2096, 2120-22 (2010); see also id at 2129 (“Delegated authority, expertise, and political accountability are all sensible reasons for deferring to agencies.”).

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The Guidelines Meet the Skidmore-Mead Standard

How, then, do the USPTO Guidelines on Subject Matter Eligibility fare under Skidmore-Mead?  As to “formality,” the USPTO published a Notice of Intent to issue Revised Patent Subject Matter Eligibility Guidance proposing revisions to three sections of the Manual of Patent Examining Procedure. See 84 Fed. Reg. 50, (Jan. 7, 2019). Several proposals were of particular note. First, the robust description of the “key concepts” of abstract ideas: “Mathematical concepts;” “Certain methods of organizing human activity;” and “Mental processes.” Id. at 52. Second, the granular restatement of the Mayo/Alice “two step” framework: “[I]f a claim recites a judicial exemption (a law of nature, a natural phenomenon, or an abstract idea . . . it must then be analyzed to determine whether the recited judicial exception is integrated into a practical application of that exception. A claim is not ‘directed to’ a judicial exception, and thus is patent eligible, if the claim as a whole integrates the recited judicial exception into a practical application of that exception.” Id. at 53 (emphasis added). In other words, “eligibility rejections are to be applied only to claims that recite subject matter within the defined categories of judicial exemptions.” Id. All public comments received were posted on the USPTO’s website.

As for “thoroughness,” the USPTO staff took nine months to review all of the public comments. In addition, Under Secretary and USPTO Director Andrei Iancu traversed the country to discuss the proposed analysis and procedure to numerous industry and bar associations. As a result of that effort, the final “October 2019 Update: Subject Matter Eligibility” Guidelines consisting of eighteen pages of text, with eighty-seven supporting footnotes, were issued. (Available at October 2019 Update: Subject Matter Eligibility (uspto.gov).) In addition, three Appendixes also were provided. The first lists practical examples in the Life Sciences & Data Processing fields to address “major themes” from comments received. The second is a comprehensive index of examples deemed eligible subject matter. The third explores Section 101 jurisprudence, evidencing both the “thoroughness” and “logic” requirements of Skidmore-Meade that Judge Michel described as “carefully and logically synthesiz[ing] the case law on eligibility.” Judge Paul Michel (Ret.), Is 2019 the Year Clarity Returns to Section 101? Judge Paul Michel Is Hopeful, IP WatchDog.com (Jan. 24, 2019), available at Judge Paul Michel: Is 2019 the Year Clarity Returns to Section 101? (ipwatchdog.com).

As for the “expertness” and “specialized experience,” the USPTO employs over 10,000 engineers, scientists, attorneys, analysts, and computer specialists dedicated to “foster[ing] innovation, competitiveness, and economic growth.” The USPTO is clearly the institutional repository of the nation’s patent expertise and the primary voice within the federal government on matters of patent policy. Since the USPTO does not have rulemaking authority, the Guidelines on  Subject Matter Eligibility are not entitled to the higher degree of deference afforded under Chevron U.S.A. Inc. v. Natural Res Def. Council, Inc., 467 U.S. 837 (1984). Nevertheless, they have been well received and have brought clarity and predictability to the application of Mayo/Alice. SeeAdjusting To Alice,” USPTO Chief Economist (April 23, 2020) (reporting that one  year after the  Guidelines, the likelihood of Alice-affected technologies’ receiving a first-office action with a rejection for patent-ineligible subject matter decreased by 25%. Uncertainty about patent subject matter eligibility in the first action stage of patent examination decreased by 40%.).

Further Support in Precedent

The suggestion that the Federal Circuit should afford deference to the analysis of the USPTO Guidelines on Subject Matter Eligibility has a historical precedent. Section 7 of the Clayton Act, as amended in 1950 (“Section 7”), prohibits mergers and acquisitions “where in any line of commerce or in any activity affecting commerce in any section of the country may be substantially to lessen competition or tend to create a monopoly.” 15 U.S.C. § 18. In the 1960s, the Supreme Court issued a series of opinions that provided no evidentiary standards by which a court could determine whether Section 7 was violated. In Brown Shoe Co. v. United States, 370 U.S. 294 (1962), the Court allowed the merger of two retail shoe companies, with a combined market share of fifty seven in 118 cities, while acknowledging that Section 7 provided no   benchmarks that would indicate whether a merger “may lessen competition.” Id. at 311-323. In United States v. Philadelphia Nat’l Bank, 373 U.S. 321 (1963), the Court held that a merger was presumptively unlawful, where the surviving firm had a 30% market share with a 33% increase in concentration, even though there was no record evidence of anticompetitive harm. Id. at 326. And, in United States v. Vonn’s Grocery Co., 384 U.S. 270 (1966), the Court prohibited the merger of two grocery store chains with a combined market share  less than 9%, citing a “national policy” to prevent “economic concentration in the American economy by keeping a large number of small competitors in business.” Id. at 275. As a result of these cases, horizontal mergers largely were abandoned, but a shopping spree of conglomerate mergers ensued funded by the assumption of heavy debt and massive layoffs. See Timothy M. Hurley, The Urge To Merge: Contemporary Theories on The Rise of Conglomerate Mergers in the 1960s, 1 J. Bus. & Tech. L. 185 (2006).

To discourage the resulting adverse effect on the economy, the Antitrust Division of the Department of Justice issued Merger Guidelines in 1968 announcing that future merger enforcement decisions would be made utilizing the “structure-conduct-performance” framework of industrial organization economics then in vogue at the Harvard Business School. See John T. Miller, Jr., Conglomerates, Conglomerate Mergers, and the Federal Antitrust Laws, 44 St. John’s L. Rev. 613, 615 (1970). These Guidelines were the work-product of former Assistant Attorney General Donald J. Turner, his then Special Assistant, Stephen Breyer, and Richard Posner. (Associate Justice Stephen G. Breyer, Donald Turner, 41 Antitrust Bull. 725, 727 (1996) (recalling that while playing golf, Assistant Attorney General Turner dictated the first draft of the 1968 Merger Guidelines to his Special Assistant, Stephen Breyer). Subsequently, Chicago School economists demonstrated that the 1968 Merger Guidelines relied too heavily on market concentration to predict market behavior and ignored efficiencies. Consequently, the Merger Guidelines were reissued jointly in 1982 with the Federal Trade Commission and later revised in 1984, 1997, and 2010 to address issues the agencies encountered in enforcement.

The Supreme Court’s 1960s merger jurisprudence became irrelevant as federal appellate courts increasingly adopted the analysis of the Merger Guidelines as their own. See, e.g., Chicago Bridge & Iron Co. v. FTC, 534 F.3d 410, 431 n.11(5th Cir. 2008) (“Merger Guidelines are often used as persuasive authority when deciding if a particular acquisition violates anti-trust laws.”); FTC v H.J. Heinz Co., 246 F.3d 708, 716 n.9 (D.C. Cir. 2001) (“although the Merger Guidelines are not binding on the court, they provide a ‘useful illustration of the application of the [Herfindahl-Hirschman Index used to measure market concentration, first introduced in the 1982 Merger Guidelines]’”) (citing FTC v. PPG Indus., 798 F.2d 1500, 1503 n.4 ( D.C. Cir. 1986); United States v. Kinder, 64 F.3d. 757, 771 & n.22 (2d Cir. 1995) (“Although it is widely acknowledged that the Merger Guidelines do not bind the judiciary in determining whether to sanction a corporate merger or acquisition for anticompetitive effect . . . courts commonly cite them as a benchmark of legality.”): see also Steven A. Newborn & Virginia L. Snider, The Growing Judicial Acceptance of the Merger Guidelines,  60 Antitrust L. J. 849-56 (1991).

The lesson learned is that agency guidelines can provide a more informed path toward developing a consensus on what a law means and how it should be enforced, particularly in a time of changing economic conditions and rapid technological advancements. See generally, Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like—Should Federal Agencies Use Them To Bind The Public? 41 Duke L.J. 1311 (1992).

The Federal Circuit Must Act to Provide Clarity

On April 1, 2019, in a nonprecedential decision, Cleveland Clinic Found. v. True Health Diagnosis, LLC, No. 2018-1218, slip op. (Fed. Cir., April 1, 2019), a Federal Circuit panel upheld a judgment determining that the claims at issue were invalid under Section 101 since  they were “directed to a natural law,” without any “additional inventive concept.” Id at 9, 11. In the alternative, the panel held that the district court did not err in declining to afford Skidmore-Meade deference to an examiner’s decision to allow the patent in light of a May 4, 2016 USPTO guidance document. Id. at 12-13. The panel, however, did not undertake any analysis of the Skidmore-Meade factors, but instead opined:

While we greatly respect the PTO’s expertise in all matters relating to patentability, including patent eligibility, we are not bound by its guidance. And, especially regarding the issue of patent eligibility and the efforts of the courts to determine the distinction between claims directed to natural laws and those directed to patent-eligible application of those laws, we are mindful of the need for consistent application of our case law.

Id. at 13.

The panel, however, failed to recognize the irony in this rationale.

The 1968 Merger Guidelines and its progeny brought clarity and predictability to that area of antitrust law. The October 2019 USPTO Guidelines portend the same success with patent eligibility. Therefore, at the first opportunity, the Federal Circuit should determine in a precedential opinion that a patent issued or reissued after October 2019 is entitled not only to the presumption of validity that Congress granted, but also Skidmore-Mead deference. Former Chief Judge Michel agrees that the Federal Circuit should find the USPTO Guidelines “persuasive, at least. Given the years of jurisprudential confusion, the courts ought to give serious weight to the USPTO’s careful consideration of these issues.” (Emphasis added.) Let us hope so—since bringing clarity and predictability to patent law was the raison d’être for the creation of the Federal Circuit.

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The Author

Judge Susan Braden (Ret.)

Judge Susan Braden (Ret.) was a Judge and Chief Judge of the United States Court of Federal Claims, which has exclusive jurisdiction over claims against the federal government for money damages, including those concerning patent infringement, from July 2003-April 2018. After her retirement, Judge Braden was appointed as a member of the Administrative Conference of the United States, the Advisory Board of the Washington Legal Foundation, and the Board of Directors of the United Inventors Association, and is an Adjunct Professor in the Antonin Scalia Law School’s Center for the Protection of Intellectual Property. In addition, Judge Braden serves on the Boards of two privately held companies that create and sell computer software and artificial intelligence to commercial and defense customers.

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 as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 20 Comments comments.

  1. Anon January 13, 2021 9:12 am

    Consequently, in light of well-established Supreme Court precedent in administrative law, there is every reason for the Federal Circuit to now adopt the analysis of these Guidelines in future Section 101 cases.

    Won’t happen – just ask the Cleveland Clinic who had fashioned a claim directly on earlier guidance, only to have a select panel at the CAFC shoot it down.

    The Gordian Knot is here to stay — until a pair of scissors (or a sword) is brandished to cut that knot.

  2. TFCFM January 13, 2021 9:49 am

    Article: “The lesson learned is that agency guidelines can provide a more informed path toward developing a consensus on what a law means and how it should be enforced…

    This is surely a good rationale for not completely ignoring agency guidance, or even for considering it as a matter of course, when a court faces the task of what the patent laws mean. However, in view of the twin facts that

    – agency guidance largely tends to try to follow the case law (at least in the field of patents) and

    – executive agency personnel — and opinions on how the law ought to be applied — sometimes change from presidential administration to presidential administration, meaning that “what the law is” would tend to whipsaw with elections.

    Agency opinions as to what the law is and/or should be are surely entitled to some degree of deference. However, until and unless Congress delegates law-making authority to an executive agency (and only to the extent it can validly do so), Congress should remain the institution that makes our laws, and Article III courts the institution that interprets them.

  3. Anon January 13, 2021 12:51 pm

    (and only to the extent it can validly do so),

    I chuckled.

    You do know that this statement also applies to the judicial branch on law explicitly designated by the Constitution to be the domain of the legislature, right?

    (I have attempted to have this conversation with you in the past, to correct your odd notion that somehow Common Law can override the Constitution)

  4. Curious January 13, 2021 1:02 pm

    Perusing Federal Circuit decisions (from today and yesterday) — three from the District Courts and one ex parte case from the Patent Office. All 4 involved patents/application killed by the Federal Circuit under 35 USC 101.

    None of them were precedential. Why not? No need. As I’ve written before, there is plenty of case law to tank every patent/application out there.

    As to the Guidelines meeting the Skidmore-Mead standard, I wouldn’t get my hopes up. The Federal Circuit has gotten jealous that the PTAB has been called the “patent killing fields” and they want to take that title away. 35 USC 101 is there very best tool for doing that, and they don’t want to give up that tool to the USPTO.

    Patents are getting killed at the district court on the pleadings — without claim constructions — without evidence — oftentimes without even a hearing. A patentee can spends years before the USPTO trying to get a patent yet his/her patent will get killed by a District Court judge based upon simple motion to dismiss making generic allegations that the patent is merely directed to “the exchange and storage of information” or “gathering, processing, and transmitting[/displaying] information” (among others).

    One has to ask, how can the patent office allow so many patents that merely involve gathering, processing, transmitting/displaying of information? It seems that I’ve seen that phrase (or something similar) used at least a dozen times at the Federal Circuit to kill a patent. Shouldn’t these patents be 102 art to each other?

    The truth of the matter, which most of us know, is that those patents oftentimes are not even remotely related to one another — so not, they are not 102 art. The courts have merely scrubbed every distinctive limitation from the invention in their efforts to place that particular patent into their auto-kill box. In reality, nearly every computer invention, at their very heart, involves taking data, processing the data, and then doing something with the data (e.g., by displaying or transmitting the results). However, this doesn’t mean that the invention is directed to that abstract idea without anything more.

    Similarly, I can make an argument that every mechanical device that involves motions is directed to at least one of Newton’s Laws of Motion. However, that doesn’t mean that these inventions are directed to these so-called exceptions to patent-eligible subject matter without anything more. Unfortunately, one need only look to American Axle to see that the Federal Circuit believes otherwise.

  5. Anon January 13, 2021 2:48 pm

    I wonder (even as TFCFM has joined the conversation, but has lacked awareness of this point) just how the pronouncements from Dir. Iancu (as well as those from the CAFC and from Congress) effect any notion of (emphasis added), ““the degree of the agency’s care, its consistency, formality, and relative expertness, and . . . the persuasiveness of the agency’s position.” Id. at 228; see also id at 235 (also mentioning “thoroughness,” “logic,” and “consistency with prior interpretations”).>/i>”

    given that logic and consistency are ABSENT in the Gordian Knot of case law rewritings* of 101.

    * and yes, what the Court (and courts) have done is re-write the statute as opposed to any true version of Common Law interpretation.

  6. David Lewis January 13, 2021 3:08 pm

    I suppose antitrust law has more clarity than patent eligibility, and so perhaps that makes it a good example for the article. However, I am not so sure that antitrust law is really doing what it was supposed to do.

  7. Pro Say January 13, 2021 3:10 pm

    Excellent exposition, Your Honor — thank you.

  8. Model 101 January 13, 2021 3:51 pm

    101 is unconstitutional period. All dead patents are entitled to a new analysis of a reformed 101.

    Everything else is big tech nonsense.

    You cant put sugar on BS and eat it.

    Sorry Judge…if it looks like BS…it is!

  9. BlutoBlutarsky January 13, 2021 4:05 pm

    “The truth of the matter, which most of us know, is that those patents oftentimes are not even remotely related to one another — so not, they are not 102 art.”

    What a beautiful summation. Truly illustrates the absurdity of the analysis being used.

  10. Model 101 January 13, 2021 6:15 pm

    Your Honor

    Please explain to us why 101 is constitutional.

    I am waiting……

  11. Judge Susan G. Braden ( Ret.) January 14, 2021 5:37 pm

    Thank each of you for your very thoughtful comments.

    Of course, it would be best for the Supreme Court to step in to bring some coherence to Section 101. In the alternative, if the Federal Circuit could adopt the new Guidelines analysis as its own, it would be a noble gesture-recognizing that Congress expects this unique Court to use its immense authority to bring clarity and predictably to patent law. That job is more important than the views of any one judge or group of judges – no matter how distinguished.
    There is much more at stake!

    While the Guidelines could be revoked by a different USPTO Director, any effort to do so would
    be greeted with an angry backlash.
    The Guidelines have received very very positive feedback. In areas where some may wish some modification, that can be accomplished with the same notice and comment procedure as was used this time.

    Given the fact that the majority of Supreme Court Justices are experts in administrative law, not patent law- I suspect a thoughtful analysis of the Guidelines against the Skidmore-Mead factors would be well received.

    Onward!

  12. Anon January 15, 2021 1:16 pm

    Judge Braden,

    With all due respect, you act as if in a vacuum with the notion that the CAFC will do anything close to what you suggest.

    Not only have they already punted directly on that point, not only have they already quashed a prior Office ‘suggestion,’ they have also abdicated their role of “ bring clarity and predictably to patent law” after repeated BEAT-DOWNS by the Supreme Court.

    Thus, before any “onward,” I would need something significantly more to be on the table as any indicator that an appropriate ‘onward’ could be obtained.

  13. Judge Susan G.Braden (Ret.) January 15, 2021 3:19 pm

    Response to Anon’s Most Recent Comment-

    Cleveland Clinic was a non precedential opinion that does not bind the Circuit and was issued prior to the new Guidelines and the Report of the Chief Economist.

    I can think of a potential panel that might be willing to conduct a Skidmore-Meade analysis, with a different result. The prior guidance was not as robust as the Oct 2019 version which received a public vetting that was extensive. Two points of major distinction.

    I am not naive, but hopeful that if the issue is raised by a thoughtful advocate, perhaps with some amici, there is a chance that the Circuit would view this as a constructive way out of a problem it helped create, but can’t or won’t fix. The Circuit’s constituency is the patent bar which helped create it. My thought was to offer a new alternative for discussion and consideration by that bar, which may not be familiar with the merger guidelines precent — and, since neither the Supreme Court or Congress seems interested in weighing in.

    Your thoughtful comments are a start in that conversation.

  14. Model 101 January 15, 2021 4:08 pm

    Your Honor

    Thank you for responding.

    Clearly…the constitution does not apply to patents.

    Big tech just uses patents to figure stuff out.

    Take your Big Tech money and have fun in retirement.

    Im at a college today hiring students.

    I cry for these kids because judges like you have killed their hopes and dreams of patents and other intellectual property..go back to the rock from under which you came.

    You didnt or couldnt answer my constitution question. Skidmore..ha!

  15. Model 101 January 15, 2021 5:30 pm

    Your Honot

    Also…patents with functional claims are also dead…please tell us where that one came from.

    What is the specification good for anyway?

    Im perplexed!

  16. Anon January 16, 2021 10:24 am

    Again, Your Honor, respectfully, I am ALL FOR dialogue and earnest conversation about an “onward” call, but that call cannot ignore the points presented that a very large part of the problem is the Supreme Court itself, that another very large part of the problem is the CAFC (brow-beaten by the Supreme Court), that another very large part of the problem is that there is a large, vocal, and extremely well-monied interest group (I derisively call them Efficient Infringers) that have NO interest in cleaning up the mess, and that ANY effort “onward” should NOT bow to any type of “bargain” with that devil, but instead should objectively (if not coldly) look to innovation science itself and seek to maximize innovation protection (both of incremental and disruptive innovation).

    By the way, my example of Cleveland Clinic is less about the most recent attempt by the Office, and more to the point that that case represents a DIRECT attempt to model a claim on an explicit example from the Office as to something being patent eligible, and the resulting DIRECT refusal of the CAFC (panel, even if not precedential) that also was explicit in saying that the CAFC owes NO deference to the Patent Office. This point is in direct opposition to the heart of your thrust and cannot be dismissed as quickly as you would attempt to do so. While perhaps not ‘binding,’ it nonetheless reveals a very real reveal of the viewpoints of CAFC judges (and unfortunately, wide spread enough to NULLIFY the CAFC’s ability to partake as you would advocate).

    I am NOT pushing back because I disagree with your sentiment.

    I AM pushing back because the way ‘onward’ MUST recognize the severity of the present situation, and your views are simply too rosy.

  17. Model 101 January 16, 2021 12:09 pm

    You Honor

    Sorry for the spelling mistake of Honor above.

    Much respect to you.

    My favorite patent exclusion is the one about using a generic computer reference in your patent spec. Where did that one come from?

    Thus the only valid patents are only from Apple…Microsoft… and Google.

    To invent a graphical interface…I need to invent a new cimputer?]

    I would patent the computer…not the interface!!

    This is big tech mumbo jumbo in clear terms.

    Just bring back the old patents and let them go to trial.

    Do what is fair to inventors. Its the only way.

  18. Judge Susan G.Braden ( Ret.) January 16, 2021 10:34 pm

    First- in response to Anon-I understand your perspective, but at least more than a few of CAFC judges surely must realize that the constituency for the Court’s continued viability has been eroded by en banc decisions that lay bare the lack of understanding that the first duty of an appellate court is to provide coherent and consistent guidance to the trial courts. If the CAFC is incapable of doing that job, in time, it may prove to be a noble experiment, but one that has failed in its purpose. That need not be the case.

    For one, I respect the intellectual honesty that the Section 101 debate has produced; but, at some point, if no consensus can be achieved, there is much to be said in favor of adopting the analytical Section 101 USPTO Guidelines.

    I am confident that the patent bar and their clients would welcome the stability of such deference. As with the Merger Guidelines, new data and experience surely will result in time with some modifications, but isn’t that preferable to the rigidity of the status quo?

    Again, thank you for your thoughtful consideration.

  19. Judge Susan G. Braden ( Ret.) January 16, 2021 10:52 pm

    Model 101-

    Again, I appreciate your comments, other than those that made assumptions about me that really are not warranted. ( My first patent opinion, in favor of the plaintiff, resulted in the largest settlement by DOJ, in the history of my Court.) And, I do not own stock in any major tech company. Your other concerns were beyond the scope of my article.
    Nevertheless, it is clear that you have been harmed by the current enforcement of the patent laws. Without knowing the details- which are really beyond the purpose of my targeted article, all I can say is —look for constructive ways to express your experience and propose workable solutions around which others can rally who value innovation and the contribution that a strong patent system contributes to our economy!

  20. Anon January 18, 2021 8:24 am

    Your Honor,

    You say that you hear me, but then you turn around and continue down a Pollyanna path.

    The segue that you provide, “surely must realize that the constituency for the Court’s continued viability has been eroded by en banc decisions that lay bare the lack of understanding that the first duty of an appellate court is to provide coherent and consistent guidance to the trial court” ignores the reality of the current situation.

    First step must be to recognize the reality. Only after that step is taken can we then discuss what next step would be proper, necessary, or even merely possible for ANY ‘onward.’

    Second, your statement of,”For one, I respect the intellectual honesty that the Section 101 debate has produced” is also Pollyanna because it omits from consideration the fact that not everyone has been inte11ectually honest. You cannot move onward without recognizing the reality that there are PLENTY of people only too willing to sabotage those who ARE inte11ectually honest.

    Your “I am confident that the patent bar and their clients would welcome the stability of such deference.” is a nice thought – but again still too Pollyanna.

    I am not repeating these criticisms of your viewpoint merely because I disagree with them. In fact, I would love to have your viewpoint have more force.

    But I am a realist, having spent a career solving problems – first as an engineer, then as a manager, and then as an attorney. Your path, while ‘sounding’ nice – is just not the path that needs to be taken.

    Yes, we should talk.
    Yes, we should engage.

    But we need to do so with more force and clear distinction between those ‘solutions’ offered by Rational Actors that ARE NOT good for innovation protection and fully recognize that not all of those partaking in ANY discussion or engagement will be doing so with inte11ectual honesty.

    Not every opinion will – or should – carry the same weight. Part of the trick is to devalue those opinions (such as from Juristic Persons, or representing such) and elevating others (such as from those who have actually studied the history of innovation and innovation protection).