Monday, June 30, 2014

Incompetent Ball Players (of Judicial Kind) in the Outfield

What if
some of our players
in the judicial arena
are fielding questions
outside their field of competence?


Consider the dissenting opinion filed by Circuit Judge REYNA ...

" ... Rather, the examiner [of a separate patent prosecution] understood that the patents-in-suit [when used as 103 references in that separate patent prosecution] did not include [an explicit teaching of] wireless communications, which necessarily means [from my common sense point of view] that he did not consider the “datalink” [39] disclosed in the patents-in-suit to 'reach' such wireless technology. The majority [here] fails to acknowledge the full scope of the examiner’s [extrinsic] statements, which were made by an uninterested party outside the scope of the present litigation, [and thus from my common sense point of view, that should be] a material element in the analysis of the evidentiary record [for carrying out "claim construction" here]." [Text in brackets added]

There is much more that Judge Renya argues in his dissent.
(The text in question discloses: In one embodiment of the invention, the bed input signals 33 are received as hard wired inputs ... The bed message created by processor 140 is then sent through the bed junction box 37 to the wall interface unit 40 over serial datalink 39.)

For the present analysis we simply want to note an example of CAFC sitting judge not "getting it" with regard to many basics of patent law (what "In one embodiment" means), and demonstrating a lack of competence in a technical field that is apparently outside his range ... just scary (Will the real Judge Rader please come back, please come back? ... to be recited in the tune of the real slim shady, eminem)

This is not to get down on Judge Renya.
There is much that he says, that from a lay person's point of view, makes "common sense".
However, from the point of view of one skilled in the art of networked computer systems, his take on the meaning of a "serial datalink" is nonsensical and embarrassing. The other 2 judges on the CAFC panel try to be be polite and less than thorough in dissecting Judge Renya's 'dissent'.

Such observation begs the next level question:
What if we are in a higher level court,
Where none on the panel are competent
in either of
patent law or
the scientific field of endeavor,
and their decision is more far reaching?

"When deh truth is found to be lies
and all deh hope vitin you dies
- then vat?"
-Rabbi Marshak, A Serious Man

Then what?
Go ask Alice

Friday, June 27, 2014

Perky Parrots of the Patent-Haters Club

The nonsensical parrot noises
frothing from the beaks of
our Magnificent Nine ...

could not reasonably have come
from reasonable minds.

And that begs the question:

Where did the nonsensical, patent-related
gobbledygook really come from?

One need look no further than
the amicus briefs of the so-called
"frenemies of the court".

... Parrot hears, parrot parrots:

"Generic" computers and graphic claims that are "yawn-drawn" indeed!

The EFF Brief
"B. At a Minimum, Performance of an Otherwise Abstract Idea “on a Computer” or “on the Internet” [performance stage] Should Not Make that Idea Non- Abstract
In effort to avoid preemption, courts have rightfully found that performing an abstract idea on a general purpose computer, without more, does not make that invention patent-eligible. For example, in Dealertrack, ... The claims at issue here, like those in Dealertrack, Benson, and Bilski, take an abstract idea—using a third-party intermediary to settle risk— and merely tie that idea to a general “data processing system” (in the system claims) and a “computer program ... comprising a computer readable storage medium” (in the media claims). CLS Bank Br. at 48-51. Nevertheless, five judges on the Federal Circuit would have found these system claims patent-eligible. ..."

Saturday, June 21, 2014

Alice in Blunderland, How SCOTUS came to be so Patently Incompetent

You would think that by now,
SCOTUS would have become
so embarrassed in how
it blunders its way through patent related matters that it would cease and desist from shaming itself more(e.g.:
... KSR,
... Bilski,
... and now, Alice.
But not so.

In connecting the recent historical dots, we see a SCOTUS (Supreme Court of the US) of ever increasing incompetence in things scientific and patent related. The Court has no clue how incompetent it is. (See Dunning–Kruger effect.) Egged on by equally incompetent journalists (those who don't know a trademark from a trade secret or a patent), it parades naked and unafraid into a perilous blight of intellectual bankruptcy.

Instead of honestly admitting they know not of what they speak (exception being Scalia J. in Myriad), the Justices have become down right proud in their growing ability to fling with golden tongues, totally and patently nonsensical jargon about claims being "drawn to" some self-conjured up "abstraction" or about there being a penultimate "generic" computer that the "coders" out there can over weekend's twilight, re-code to "make it so" with respect to any "simple-is-as-simple-does" idea imparted to their keyboard-shackled hands on a Friday night from a hindsight ignobled Court.

Indeed, in SCOTUS mind, all computer-implemented inventions are mere child's play; starting with a hindsight enunciated "idea" and then adding to it the SCOTUS recipe ingredient of doing "not enough" aside from making such so upon thine generic computer (a.k.a. general-purpose computer); whereby one's hindsight genius mirror inevitably shows a not-quite-inventive invention that is rendered patent "ineligible" and obvious to boot by a know-it-when-I-see-it intellectual process. Potter Stewart is proud of you oh brethren of the corn ... (Click on 'Read More' below)

Thursday, June 19, 2014

A Court Drawn to Horse, Buggy and Total Technical Incompetence

It seems inevitable that our collective elevator ride back down to those future-shocking New Medieval Ages
should include a stop over at that retail sell-out floor called
Patently Incompetent SCOTUS Justices On Sale Here (the PIS-JOSH floor).

Today's Supreme Court (SCOTUS) decision in Alice Corporation Pty. Ltd. v. CLS Bank International (2014) does not surprise. After all, we saw in the oral arguments how naive the Justices were with respect to giving a coffee clutchful of Silicon Valley "coders" an "idea" and telling them to "make it so" over the weekend on a "general purpose computer". (a.k.a. the "generic" computer") ... The Alice-in-Blunderland Supremes summarized their holding in the following:

"Viewed as a whole, these method claims simply recite the concept of intermediated settlement as performed by a generic computer. They do not, for example, purport to improve the functioning of the computer itself or effect an improvement in any other technology or technical field. An instruction to apply the abstract idea of intermediated settlement using some unspecified, generic computer is not “enough” to transform the abstract idea into a patent-eligible invention. Id., at ___. Pp. 14–16."

As Forrest Gump was known to quip, 'simple is as simple thinks' or something generically like that.

Patent law pundits are all over the map on this one:
Don't Ask Alice, What did our Supreme Humpty Dumpties mean?

Some say "software" patents have been severely set back

Others say "software" is not at all affected because the Supremes didn't say the S-word

Yet others (the EFF) celebrate the end of all "software" patents.

Wednesday, June 4, 2014

Unreasonable Uncertainty from Questionably Serious SCOTUS Men (and gals)

The uncertainty principle is a prime theme in the Cohen Brothers film, A Serious Man.

The Questionably Serious Men
and Women of SCOTUS
have fed fresh fuel into the fires
of irrational certitude with their theory
of "reasonable certainty" in NAUTILUS, INC. v BIOSIG:

In place of the “insolubly ambiguous” standard, we hold that a patent is invalid for indefiniteness if its claims [all of them, any of them?] , read in light of the specification delineating the patent [delineating? huh? WTF does that mean?] , and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention.

...posting still under construction