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is a sole-practitioner in the Washington D.C. area with experience in patent drafting and prosecution, opinion writing, due diligence, litigation and appellate work. Mr. Mathis technical expertise and experience is far-ranging. For example, Mr. Mathis’ experience covers a wide variety of highly-technical subject matter that includes wired and wireless communications (including MIMO, 3G, 3GPP/LTE, D2D and 4G technology), analog and digital electronics, image processing, semiconductor devices and processes, solid-state physics, material science, printers and copiers, projectors, cameras, speech recognition and synthesis, xerography, cryptography, control systems, magnetic and optical disc technologies, fiber optics, MEMS technologies, nanosensors, GPS navigation systems, software, computer networking and business methods.
As stated in Part One of this series, the Fifth Amendment of the U.S. Constitution guarantees, inter alia, that no person shall be deprived of property (including intellectual property), without due process of law. However, the Supreme Court has never held that a single appellate court must comply with Fifth Amendment due process of law. The closest the Supreme Court ever came to such a radical idea as requiring any appellate court in the nation to comply with due process of law was at a time when “Three’s Company” and “The Muppet Show” dominated the 7PM-9PM Nielsen’s ratings. See Singleton v. Wulff, 428 U.S. 106 (1976) (warning the Eighth Circuit that “injustice was more likely to be caused than avoided by deciding the issue without petitioner’s having had an opportunity to be heard,” but not actually requiring the Eighth Circuit to comply with Fifth Amendment due process). In contrast, the Supreme Court has held that even a man classified as an “enemy combatant” by the U.S. government is entitled to at least some measure of due process. See Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
The Dunning-Kruger effect is often defined as a type of cognitive bias whereby people are prone to vastly misjudge their competence. For example, smart and capable people tend to evaluate their skills and competence downward. That is, they tend to not just understand, but deeply internalize the idea that there’s a lot in life that they don’t understand. Circa 500BC, Confucius coined this wisdom stating, “Real knowledge is to know the extent of one’s ignorance.” Then there’s the flip side, where low ability and/or low knowledge people overestimate their own capabilities while simultaneously being unable to recognize their own incompetence. One-hundred and thirty years (give or take) before David Dunning and Justin Kruger conducted their studies on the issue, Charles Darwin described this effect, stating, “ignorance more frequently begets confidence than does knowledge.”
The Fifth Amendment of the U.S. Constitution guarantees, inter alia, that no person shall be deprived of property (including intellectual property), without due process of law. For instance, it is settled law that a federal statute may be so arbitrary and capricious as to violate due process. Similarly, it is settled that an administrative agency, e.g., the U.S. Patent and Trademark Office (USPTO), cannot escape the due process of law requirement when processing patent applications. In theory (less in reality), due process of the law extends to judicial as well as political branches of government, and judgments that violate constitutional limitations and guarantees are void or voidable.
Reading the recent opinion of Judges Prost and Taranto in Yu and Zhang v. Apple and Samsung, Appeal Nos. 2020-1760, 1803 (Fed.Cir. June 11, 2021), I’m reminded of something Mark Twain never said: “There’s a lie, there’s a damned lie, and then there’s an Alice-Mayo decision.” Granted, it is hard to tell one Alice-Mayo decision from another. At face value, the Yu decision appears to be merely the latest absurdist fiction in a collection of short stories based on the abandonment of conventional law. Yet, the Yu decision is more than the typical Alice-Mayo scenario where logical construction and argument give way to irrationality in a senseless judiciary.