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December 26, 2017


What a load of $%^&. Clearly this plaintiff is troll, but since when does behavior in OTHER cases constitute a basis for awarding attorney fees in THIS case?

And - no surprise here - in a normal universe, there's no 101 issue with claim 1. It's invalid for obviousness, not 101.

So by my read here, the Alice decision not only changed the law of 101, but also the law of 35 U.S.C. § 282.

"I hope I have made myself imminently clear."

I think he meant "eminently clear" (as in, "conspicuously clear," from the Latin eminere, "to stand out"). As it stands, the sentence conveys "I hope that I have not made myself clear yet, but that my meaning will become clear soon." I suppose that it is *possible* that this is what MyNewDiary meant to convey, but it seems unlikely.

"There may be circumstances where a change in the law rendered by the Federal Circuit or Supreme Court might support such a decision. Respectfully, the current state of patent subject matter eligibility is not one of them."

Too true. If failure to understand the mess that the SCotUS has made of §101 opens one to §285 sanctions, then the §285 exception will totally swallow the American rule, because one can never do more than guess whether a given claim will withstand a §101 attack. It really is not good enough, what the Court has done to the state of patent law.

Next major question: will the also evolving tests for “wilful blindness” and associated aiding and abetting doctrines* (see Global-Tech v. SEB reprinted at https://www.supremecourt.gov/opinions/10pdf/10-6.pdf) will be combined in a trifecta with evolving Section 101 and Section 285 law to allow prevailing defendants to reach Litigation Funders as well? Isn’t that the logical next step in this progression? Will it eventually be allowed to go that far? If so, are contingent fee law firms and their lawyers (jointly and severally?) also at risk too and must they obtain separate and independent opinions from separate and independent counsel in advance of any enforcement campaign?

See also, Daniel, Alex Robert, "Willful Blindness: e Hazards of an Evolving Standard of Knowledge" (2013). Law School Student Scholarship. Paper 347 reprinted at http://scholarship.shu.edu/student_scholarship/347
(http://scholarship.shu.edu/cgi/viewcontent.cgi?article=1347&context=student_scholarship (note that this paper’s advisor and now Dean Erik Lillquist was one of my law firm’s earliest legal assistants over 30 years ago)

Save the trip to the fainting couch. These claims are about as bad as anything the patent office has allowed, and represent nothing but pure rent-seeking. The patentee disclosed nothing of value and certainly not any particular new invention, unless you just want to hand them the practice of health care in a computerized age because they typed up the utterly banal notion of monitoring a patient by remote means.

Nobody is getting hooked for 285 fees for asserting something near the planet of eligibility. The District Court said as much.

This case says nothing about the state of 101 because these claims are so far from being eligible.

Save the trip?

Mr. Snyder, in your own manner, you have provided an express ticket there.

Your post highlights the (rampant) misconception of how patent law works in regards to the presumption of validity that attaches at grant.

Your "so far" so no harm IS harm.

Do you comprehend the larger picture here?

I am:

I can rarely divine what you are rattling on about anon. What is the misconception?

That the presumption means that validity cannot be questioned?

That the bar for legitimate questioning is very high? (just how high is your choice, of course)

My "so far" means that no reasonable person would think those claims are eligible under current law. No reasonable person could see an invention there- the office makes gross errors from time to time by sheer dint of the numbers.

Mr. Snyder,

It is NOT that the presumption of validity cannot be questioned - it is that THAT presumption is directly extinguished WITHOUT going through the proper steps of HOW that presumption must be questioned.

Further, there is NO "my choice" when it comes to the level of presumption - this is set by law. See i4i v Microsoft.

Your "no reasonable person" is far too presumptuous, especially given that many view the actions of the Supreme Court in regards to 101 to be excessively UNCLEAR. You appear to be simply doubling down on your initial presumptions with such a statement.

And what of the "proper steps" that led dozens of businesses into the nightmare of patent litigation for absolutely no justifiable reason whatsoever?

Those claims are unenforceable in 2018, 1998, 1978, 1958, 1938, 1918...all the way back to the first US patents.

This is not means and ends. These claims had no invention and claimed no discernible subject matter already not in the public domain. They had to go.

Your comment of "And what of the "proper steps" that led dozens of businesses into the nightmare of patent litigation for absolutely no justifiable reason whatsoever?" misses the mark as to what the law is and basically merely propagates the "Oh Noes, Tr011s" scare mongering.

That myth has been debunked for a long, long time now.

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