Gary Odom, v. Microsoft (CAFC 2011-1160) nonprecedential; Judge Lourie (author), Bryson, Linn

Let's cut to the chase of a long, bitter drink, better drunk neat. The following was sent to the CAFC yesterday.

Combined Petition For Panel Rehearing And Hearing En Banc

Pro se appellant Gary Odom respectfully petitions in combination for panel rehearing and hearing en banc of the panel decision handed down May 4, 2011 in the instant matter.

The panel affirmation of invalidity was in defiance of facts and contrary to law. The panel misapprehended the disclosure of U.S. Patent 6,057,836 ("Kavalam"), reading the claimed invention into the prior art. With hindsight bias, the panel exceeded the precedent of KSR v. Teleflex regarding obviousness. The panel disregarded secondary considerations of non-obviousness provided for by Graham v. John Deere Co. In deciding abuse of discretion, the panel disregarded both 35 U.S.C. §318 and the precedential guidance of Procter & Gamble Co. v. Kraft Foods Global, Inc.

Based upon my professional judgment, I believe this appeal requires an answer to one or more precedent-setting questions of exceptional importance.

Questions

1. Under what circumstances can obviousness be found where the claimed invention is directed to new functionality of a non-functional structural component known in the prior art?

2. Under what circumstances is it a predictable variation to create new functionality for a non-functional structure known in the prior art, when there is no evidence, explicit or inherent, for the new functionality in the prior art?

3. How meaningful are secondary considerations of non-obviousness when their finding directly contravenes primary factual inquires that may indicate obviousness under the KSR standard that "a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ"?

Argument

"An error does not become a mistake until you refuse to correct it." ~ John F. Kennedy

U.S. Patent 6,057,836 ("Kavalam") [pdf] disclosed: "a system and method for resizing a composite toolbar and rearranging sections within a composite toolbar by direct on-screen manipulation." [1:7-10] The "sections" in Kavalam's composite toolbar were the display area for either toolbars, or a "logo section" which labeled the composite toolbar. For example: "The composite toolbar 102 includes four sections, including a standard toolbar 120, a links bar 110, an address bar 108, and a logo section 112." [7:6-8]

Kavalam singularly mentioned toolbar tool groups ("groups of command buttons") in his background: "Toolbars typically present groups of command buttons..." [1:27-36]. Simply, Kavalam stated that a (single) toolbar may have groups of tools. Kavalam termed tools: "command buttons". This feature was well-known in the prior art. But Kavalam otherwise had nothing to say about toolbar tool groups. Kavalam did not equate the aforementioned groups of tools with "sections." Kavalam did not disclose that those "groups of command buttons" (tool groups) were in any way functional, which is Odom's claimed invention in U.S. Patent 7,363,592 [pdf].

Toolbar handle functionality is how Kavalam achieved his claimed innovation. What Odom called a "toolbar handle" (Odom Figure 2 item 3), Kavalam called a "header": "The double-lined raised edge and section caption are recognized as a single component called a header." [Kavalam 9:9-11]

The result of Kavalam's toolbar handle manipulation was to alter the display area (Kavalam's "section") for tools in a toolbar that belonged in a "composite toolbar" (Kavalam's term): "[T]here is a need for a method that allows a user to easily resize toolbars and rearrange sections within the toolbars." [Kavalam 2:35-37] Kavalam's toolbar "section" was not functional, merely the instant display area of a toolbar. Rearranging toolbar sections was the result of "header" (toolbar handle) manipulation. A careful reading of Kavalam verifies this (please do so).

Kavalam and Odom both disclosed the identical structural components of: toolbars, tool groups, and tools, with only slightly different terminology (Kavalam's toolbar "header" versus Odom's "handle"; Kavalam's "group of command buttons" versus Odom's "tool group"; Kavalam's "command buttons" versus Odom's "tools"). Further, Odom disclosed Kavalam's "composite toolbar." See Odom Figures 2 - 3 above, depicting what Odom acknowledged as prior art toolbars. Compare those to Kavalam's figures.

The difference of '592 from Kavalam is that the '592 claimed invention was of making a tool group on a toolbar functional, an innovation to which Kavalam gave no hint nor indication whatsoever. This tool group functionality, as claimed, was distinct from toolbar functionality via a toolbar handle, which both Kavalam and Odom disclosed. Toolbar handle function is an element in instant claim 8 under appeal, so as to differentiate prior art toolbar functionality from innovative tool group functionality.

The panel misapprehended the difference between Kavalam and the '592 claimed invention, confusing toolbar, tool group, and section:

"Kavalam... teaches a composite toolbar that includes sections to hold each of those "groups of command buttons" or toolbars. Id. col.7, ll. 7-12. Next, it teaches how the display of those groups can be manipulated. For example, referring to Figure 9, it teaches that the standard toolbar (120) can be collapsed or expanded to allow the user to view as many or as few buttons as the user desires." Panel opinion at 9-10.

That panel summarization demonstrated dispositive confusion: that a toolbar or section is the same as a claimed tool group. What the panel stated is not what Kavalam disclosed, or '592 claimed. Kavalam never disclosed that "sections to hold each of those 'groups of command buttons'." Kavalam never taught "how the display of those groups can be manipulated." Kavalam only taught how a "toolbar (120) can be collapsed or expanded....", which results in the displayed section of the toolbar changing, irrespective of what "groups of command buttons" may be in a section.

The panel concluded: "Those same concepts are claimed in the '592 patent except that the groups of tools are on a single toolbar. " Panel opinion at 10. That is so wrong. There is no "except." Kavalam and Odom disclosed the same structures. That technically vacuous panel conclusion shows confusion.

The supposed support for the panel decision, Kavalam, col.15, l.63-col.16, l.12, citing variations Kavalam envisioned, was irrelevant to the '592 claimed invention - no mention of functional tool groups. The panel's citation of that passage is nothing but misapprehension. Instead of supporting obviousness, the passage's irrelevance to the '592 claimed invention indicates nonobviousness, because Kavalam never envisioned functional toolbar tool groups.

It is typical practice for inventors to disclose variations to the main thrust of their claimed innovation. Kavalam did so, as the panel pointed out. But nowhere did Kavalam ever suggest, or even hint, to make a toolbar "group of command buttons" itself a functional component. Considering the proximity of subject matter, if Kavalam envisioned functional tool groups, he would have been explicit.

Odom disclosed Kavalam's disclosed structure and functionality, and then went on to add functionality Kavalam never contemplated. "A court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions." KSR Int'l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1740 (2007). (emphasis added) There was no established function in the prior art for toolbar tool groups, which were merely cosmetic designations. "A patent composed of several elements is not proved obvious merely by demonstrating that each element was, independently, known in the prior art." KSR at 1741.

Just because an invention is readily understood does not make it obvious. Only pernicious hindsight reasoning does that, a hindsight which the panel indulged.

"The application of hindsight is inappropriate... See Graham, 383 U.S. at 36 (cautioning against hindsight whereby the teachings of the invention are read into the prior art); see also KSR v. Teleflex, 127 S. Ct. at 1742 (recognizing "hindsight bias" and "ex post reasoning" as inappropriate in determination of obviousness)." Sanofi-Synthelabo v. Apotex, 550 F.3d 1075, 1088 (Fed. Cir. 2008).

"A factfinder should be aware, of course, of the distortion caused by hindsight bias and must be cautious of arguments reliant upon ex post reasoning. See Graham, 383 U. S., at 36 (warning against a "temptation to read into the prior art the teachings of the invention in issue" and instructing courts to "guard against slipping into the use of hindsight" (quoting Monroe Auto Equipment Co. v. Heckethorn Mfg. & Supply Co., 332 F. 2d 406, 412 (CA6 1964)))." KSR at 1734.

The panel at least spared itself the verbiage of "arguments reliant upon ex post reasoning." The only display was of misapprehension that led to a legal conclusion based solely upon hindsight reasoning unsupported by evidence: "That is an insignificant advance over Kavalam." Why is Odom's advance "insignificant," as the panel contemptuously found, without evidence or technically grounded rationale?

Is this what the state of patent law under the KSR regime has become: courts fantasize in hindsight without evidence, but with the power to kill patents by those fantasies? Unequivocably, that is not rule of law. That is theft under the pretense of law.

There is not a scintilla of evidence, even inherently, to lead to a legal conclusion that Odom's '592 claimed invention of functional tool groups was merely a predictable variation of Kavalam's disclosure. But there is evidence to the contrary, which Odom pointed out, under the aegis of secondary considerations.

The panel's finding of insignificance is contradicted by undisputed secondary considerations of obviousness that strongly indicate that the '592 claimed invention was non-obvious, and very significant. Yet the panel dismissively found, with no rationale, those secondary considerations "weak". This contravenes the panel-cited Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966), which instructs to consider "any relevant secondary considerations, such as commercial success, long felt but unsolved needs, and the failure of others."

It is undisputed that Microsoft tried to patent the same invention Odom claimed in '592 almost 4 years earlier. That alone indicates that Microsoft (whose engineers admittedly qualify as skilled in the art) considered the '592 claimed invention patentable over their previous innovations, of which Kavalam, a Microsoft patent, was one.

It is uncontested that Microsoft considered Odom's '592 invention a nexus of success in its commercial release of Office 2007, with its toolbar ("Ribbon") innovation. Microsoft waived all argument to this. Further undisputed is that Odom's invention rapidly became a software industry standard by virtue of Microsoft licensing the Ribbon technology to other software vendors for use in their applications. There can be no stronger secondary consideration of non-obviousness than rapid, blockbuster commercial success attributable to an invention. Microsoft never disputed commercial success, or its attribution. Microsoft simply employed and licensed the patented technology as if owned it.

If Kavalam's patent disclosed Odom's '592 invention, why didn't Kavalam mention it? If Kavalam's 1997 patent, a Microsoft patent, disclosed Odom's invention, why did Microsoft try to patent the '592 claimed invention four years after Odom? If Kavalam's patent disclosed Odom's invention, why did a decade pass, after much anguish and product design effort by Microsoft (undisputed), before Microsoft came out with its commercial blockbuster solution, which was the '592 claimed invention (uncontested)? Microsoft had at least three Office product releases (XP, 2000, 2003) between Kavalam's 1997 patent filing and Office 2007.

With all due respect, what is weak in this case is the courts abusing the law to rob an inventor of his rightful intellectual property by mumbo jumbo because corporate interests want to freely use it. In this country of corporate coddling, that sort of thing is predictable in all its variations. To wit -

The only other issue that the panel saw fit to address: a defensive denying judicial bias at the trial court. Such exclusive attention to a moot issue, in light of the invalidity finding, itself demonstrates that the truth hurts.

Evidence of that - at the abuse of discretion in not granting a stay under 35 U.S.C. §318, the panel failed to explain how reexamination would not have fully resolved the validity of the claims at issue in the case. Instead, the panel made a conclusory affirmation (Panel opinion at 12), citing precedent ironically supporting Odom's argument of abuse of discretion (Procter & Gamble Co. v. Kraft Foods Global, Inc., 549 F.3d 842, 849 (Fed. Cir. 2008)). Microsoft piled on prior art for inter partes reexam, bait which the USPTO took. Per Proctor & Gamble, a stay should be granted if "there is a substantial patentability issue raised in the inter partes reexamination proceeding."

In litigation, Odom was devoid of counsel over both parties' objections, and railroaded pro se. No bias there, the appeals panel decreed.

The only expressed worry by the trial court or panel was over the possibility of "chilled" relations between Microsoft and its distributors, a fantasy with no substantiation (Odom never sued Microsoft distributors), but a heartfelt concern by the courts over corporate interests at the expense of an inventor's patent grant; an inventor who had to single-handedly simultaneously fight on two fronts the exact same battle frothily waged by the same corporate behemoth, because the trial court, in a determined rush to biased judgment unfounded in fact, ignored the law.

The panel opinion is that 35 U.S.C. §318 does not apply to inventors whose patent may chill corporate relations. But that is not precedential, according to the panel. Old news.

Microsoft defended itself in the trial and appeals courts mostly by relentless, unconscionable, baseless attacks against Odom's character, materially damaging Odom's professional reputation, to instill bias in the court against the inventor, thereby tainting the invention. The courts expressed no concern whatsoever to clear that up. Corporate relations are paramount, but Odom's reputation and chilled relations are of no regard. No one with a lick of sense would call that unbiased.

For the reasons stated here and in the original appeal, Odom respectfully petitions to this Court to reverse the trial court's and panel's decision on invalidity, and properly address the other issues presented for appeal.

The CAFC's panel opinion was condescendingly dismissive, the judges particularly affronted by Odom's accusation of bias against a district court judge (Mosman of Oregon), one of their brethren in black.

Odom v. Microsoft egregiously demonstrates the nuanced corruption of an artless CAFC panel, who disregarded well-established law: secondary considerations of commercial success, even though Odom presented undisputed evidence of the claimed invention being the nexus of success, and of Microsoft trying to patent Odom's invention years after Odom. The weapon of death was a prosecution-cited prior art patent by Microsoft, over which the claims were allowed.

Deference to large corporations are the courts' modus operandi. Credibility is baked in, however ludicrous. Take, for example, the Supreme Court hearing Microsoft's baseless whine about lowering the burden of proof for patent validity, in the i4i case. Microsoft's position had no merit, and the high court would have never granted cert if it was i4i appealing over Microsoft.

The above petition for rehearing, where the appellant pointedly pointed out the panel's sophistry, denied. For the properly jaded, there should be no surprise of such a ruling from the Corrupt Appeals for Corporations (CAFC). In the Odom v. Microsoft matter, the courts simply didn't want an inventor to hold such a valuable patent, so they illicitly snuffed it. There is nothing to be done about cases such as Odom's, except to understand how fundamentally corrupt this country is, albeit its expression somewhat nuanced, in contrast to, say, the thuggery of Russia, or the hyperactive, over-the-top police state of China.

Background

Here's a copy of Odom's CAFC appeal brief, and reply brief.

Here's a copy of Odom's summary judgment memo on enforceability, the "taint" issue Microsoft abused before the courts, including getting a transfer from Texas to Oregon. As Microsoft itself recognized by its lack of follow-through on enforceability, Microsoft's position was legally vacuous and morally reprehensible. That's Microsoft.