February 27, 2014
Claim Construction Corruption
In the 1998 Cybor case, the CAFC granted itself the power to reconstrue claims de novo. That ruling has repeatedly raised controversy. In en banc rehearing of Lighting Ballast v. Philips, a majority of six reaffirmed the might of the CAFC to do as it damn well pleased. Judge Newman wrote the tortured but cogent majority opinion. Four judges dissented, including Chief Judge Rader. Their complaint: "construing the claims of a patent at times requires district courts to resolve questions of fact." Of course it does. But it would difficult to put the fix in if the fix wasn't baked in to begin with. The CAFC can't trust all the circuit court judges to be as corrupt as it is.
Dialing It In
Cyberfone sued major media companies in this country, asserting 8,019,060, which was granted post-Bilski. The simple fact is that a patent troll can't sue the TV media industry and expect to get away with it. The courts won't have it, however they have to corrupt case law. The district court buried the patent under § 101 without even bothering to construe the claims. The CAFC readily concurred. The claims went to computerized transaction manipulations. However useful, abstract enough.
February 26, 2014
Something is amiss. A U.S. government agency is granting the right for individuals to harass businesses of all sorts and sizes for infringing what is supposed to be the legal right of exclusionary practice. Paying no regard for the law or facts relevant to the matter before them, Federal courts routinely protect businesses from these harassers. One may call this abject corruption, but only the harassers with their legal rights summarily stolen are complaining. Everyone else with any political juice wants the harassment to stop, most notably corporate sycophants in the form of the Federal judiciary, and state and federal legislators. The solution is simple: only allow patents to be owned by corporations approved by the government. Effectively, that is what has happened anyway. Make it the law of the land. Stop shirking from supporting big business, so that the injustice and inequality that made this nation what it is can continue to thrive, while wage slaves of all stripes toil and live hand-to-mouth, with no prospect of prospering from their inventions. There is a natural order and it must be defended.
February 21, 2014
Putting IP Writers In Their Place
Putting Intellectual Property In Its Place (2014, Oxford University Press) was written by three academics who got a grant from the Canadian government. Focused on tedious dribble, the book appears well researched, though the authors, while able to form sentences, have no clue how to write. Much of this slender volume has nothing to do with IP. There is a single chapter with a story about Canadian plant patents that is guaranteed to cure insomnia within a page or two. Otherwise, the book covers obscure tales of copyrights that no one not locked away in solitary confinement with this single book could possibly have any interest in.
February 15, 2014
The lawlessness of the CAFC continues unabated. In Solvay v. Honeywell (CAFC 2012-1660), the court illicitly finds for a domestic company over a foreign rival. In dissent, Judge Newman observes:
The court today creates a new class of secret prior art, holding that a privately performed experiment, without publication or public knowledge or use or sale or inclusion in a United States patent application, is invalidating "prior art." Heretofore the role of secret prior art has been carefully circumscribed. The new general rule here adopted contravenes the policy and the letter of patent law, wherein inventors are charged only with knowledge of what is known or knowable as defined by statute, subject to special limited circumstances.
February 3, 2014
An irascible PTO patent board insisted that "a receiver adapted to receiving" invoked the means-plus-function interpretation of §112 ¶6. This in an application for an automatic light switch. The CAFC reversed, finding sufficient structure to understand the bounds of the invention. (Enocean v. Face International CAFC 2012-1645)
The CAFC has a self-censoring rule that a senior judge may not dissent, or even join a dissent, in denying a rehearing en banc. What liberty can a country have when a judge is barred from expressing an opinion?! (Middleton v. Shinseki CAFC 2013-7014).