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« Indivior Inc. v. Dr. Reddy's Laboratories, S.A. (Fed. Cir. 2019) | Main | ACI Paragraph IV Disputes Master Symposium »

July 25, 2019


I believe the Court has been driven into the weeds on 101 by overzealous advocates who found they could use the apparent broad scope of 101 to confuse matters and convince courts to strike down patent claims. Paying lip service to the presumption of validity or ignoring it altogether, these claims had been deemed patentable by a federal authority which applied years of accumulated wisdom, practice, and authority that informed its institutional knowledge of the limited role of Section 101 against the patentability of claims directed to laws of nature, etc., unbounded by an otherwise Section 102, 103,112-patentable practical application thereof to a composition of matter, product, method, or process.

Bravo, Dr. Noonan, I (probably rather expectedly) concur.

I would also add to your statement of: "For those keeping score, it appears that all (or almost all) of the members of the Court believe that their patent eligibility cases have been wrongly decided." in that BOTH other branches of the government have also chimed in with the view that the Supreme Court (and the ensuing open-ended directive to the lower courts) have gone astray. Director Iancu (of the Executive Branch) has directly stated that the current state of the Common Law (scrivened) law on 101 is plainly contradictory. At least Senators Tillis and Coons have also heard (and nodded their agreement) to these sentiments.

I HAD hoped that the Court itself had started to recognize its own errors (as I have noted in laying out what I have coined as the two shears of the Kavanaugh Scissors). To me, from a historical perspective, I would posit that RESPECT FOR THE COURT would be best served if it was the Court itself that enacted the cutting of the Gordian Knot of eligibility jurisprudence.

Alas, given the still mounting non-acceptance of cert petitions, I remain:

I have some 51 years of involvement in the patent profession and some 43 years in analysing court decisions in the UK and the US and providing commentary to professional colleagues.

In my professional opinion, the level of legal analysis put forward by a majority of the judges in the Federal Circuit on Section 101 would deserve a failing grade in any law school where the common law is taught (for the avoidance of doubt the US and the UK share a heritage in the common law with a number of other countries). In particular, the inability to discern the truly relevant rule of law in Prometheus v Mayo and the gold-plating of that intentionally limited decision in subsequent Federal Circuit opinions is a lasting reproach. To the best of my knowledge and belief, analysis of legal decisions is a skill taught to law students in the US. In the UK we have a textbook "How to do Things with Rules" by William Twining which is of much help to students. Any such teaching appears to have been entirely forgotten by the Federal Circuit majority.

It was said in Ariosa v Sequenom that Mayo was a binding precedent. Any competent lawyer could and should have driven a 42-ton semi-trailer truck between that decision and the fact pattern in Sequenom, ditto the equally misjudged Athena case.

The law under Section 101 contains both positive eligibility provisions and judicial exceptions which as stated by the Supreme Court do not overlap the positive provisions. Any lawyer who considers only compliance with the judicial exceptions without considering the positive provisions is in my opinion open to questions of fitness to practice law. Regrettably that applies not only to the judges of the Federal Circuit but also to those with cases before them.

The recent refusal to consider the Athena case en banc and the consequential confirmation of a blanket prohibition on patents for medical diagnosis in my opinion places the US in substantial violation of its obligations under the TRIPS agreement.

In conclusion I should quote William Twining:

There was a young fellow from Ealing
Who got on a train to Darjeeling
It said on the door
Don't spit on the floor
So he lay back and spat on the ceiling.

I seriously doubt that the judges in the Federal Circuit have the collective skills to figure that one out.

"[A]ll (or almost all) of the members of the Court believe that their patent eligibility cases have been wrongly decided."

And they are correct in that estimation.

"[T]he Federal Circuit has failed in exercising it responsibility, to the extent that many openly speculate whether we need the Federal Circuit at all."

The CAFC's instincts and expertise are fundamentally sound (as indicated by the quote above). If Congress can simply get us to the place where Mayo/Myriad/Alice are rightfully seen to be abrogated, then the CAFC is well equipped to move patent jurisprudence back into productive channels. The U.S. will be much better served if Congress keeps the CAFC in place and abrogates Mayo/Myriad/Alice than if the the Congress were to send patent law back to the regional circuits. Moreover, the U.S. will be *even better* served if Congress should amend the judiciary act to remove appeals that involve Title 35 from the SCotUS's certiorari and mandamus jurisdictions.

Mr. Cole,

I have seen your "which as stated by the Supreme Court do not overlap the positive provisions." and cannot agree.

The plain words used by the Supreme Court (exceptions) clearly indicate overlap.

@ Anon

There is NO overlap between the judicial exception of a principle of nature and a properly defined genuinely transformative process. Any such overlap is a judicial distortion of which the CAFC is especially guilty.

Mr. Cole,

What you say here and what the Supreme Court itself says are simply two different things.

This is inherent in the word “exception” itself.

I do not know why this concept seems to elude your grasp, or why you insist on this plainly incorrect notion that the Supreme Court has acted in this “non-overlapping” manner. To the extent that you insist on this view, you are simply wrong. And insisting on being wrong only impugns your most often otherwise excellent views.

@ Skeptical

If we look at what Justice Breyer said in Mayo

"The Court has long held that this provision contains an important implicit exception. “[L]aws of nature, naturalphenomena, and abstract ideas” are not patentable.... Thus, the Court has written that “a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated law that E=mc2; nor could Newton have patented the law of gravity. Such discoveries are ‘manifestations of . . . nature, free to all men and reserved exclusively to none.’....

“Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.”..."

The opening statement shows a serious and lastingly damaging confusion. There is no serious case that a law of nature even arguably falls within one of the four eligible categories of section 101, whose bounds are defined by much serious but now somewhat neglected jurisprudence. The law of gravity is not a process, nor is it an apparatus, a composition of matter or a manufacture. The hand of man is nowhere involved. Similarly for natural phenomena such as sunlight or rain or for an abstract idea or intellectual concept.

Justice Breyer went on to say, however, that: "The Court has recognized, however, that too broad an interpretation of this exclusionary principle could eviscerate patent law" The cautionary sentiment is very welcome, but the reference to an exclusionary principle is what we expert patent practitioners refer to as bollocks or hogwash. You cannot exclude from a group that which is not found in a group. The law of gravity is not excluded by some judicial exclusionary principle but because it never even remotely arguably fell within any of the four eligible categories in the first place.

The difficulty arises when the supposed exclusions are expanded to cover subject-matter that falls as a matter of substance rather than mere outward presentation within an eligible category. As explained elsewhere, the Athena diagnostic process plainly fell within the eligible "process" category, both being transformative and involving three chemical substances new to science. As you have correctly pointed out, the cure for such over-expansion is the Kavanaugh scissors.

Mr. Cole,

I see why you are so wed to your not taking the words of the Supreme Court as they are: you have over-fixated on merely ONE of the so-called group of exceptions.

In conversations past, to bolster my point, I directed you to the Supreme Court Alice decision (instead of to Mayo).

You will note that in that case, NOT ONLY did both parties STIPULATE that claims were squarely within the statutory category of manufactures (and by thus stipulation, REMOVE the authority of the Court to say otherwise), but the Court AGREED and nonetheless declared the claims to fall into the EXCEPTION of "Abstract" (even as they refused to define that term).

You have ever become silence when I bring this up to you. I believe that this instance will be like the others.

Beyond that, I would be remiss to NOT remind you that the map is not the land. Are you familiar with The Treachery of Images by Rene Magritte? What the workings of the human mind are, are not the land, but merely a map of the land. To paraphrase then, This Is Not a Law of Nature. As evidence, may I offer the aether, phlogiston, and any other number of Maps that have been shown to NOT actually be true Laws of Nature.

And before you get too carried away with your "this is not a STATUTORY CATEGORY," remember, the rule (of law) is NOT that the item must SINGULARY BE one and only one of the statutory categories, but instead is that the INVENTION may be claimed (that is - scrivened by the entity empowered to do so by Congress: the applicant) in at least one of those statutory categories. See Chakrabarty.

OOps - I forgot to add:

I take a thunderous exception to your own wording of:

"rather than mere outward presentation"

As I have pointed out previously, THIS invites the malarkey of the Justices and in place of the appointed entity, inserts the legislating from the Bench that is the CAUSE of the patent eligibility crises that we have on our hands.

Your "tone" of "mere outward" BEGS for the Justices to decide for themselves if the "scrivening" is "sufficient" or whether "something more" is still required -- noting here that BOTH terms are left undefined by the Court, BOTH terms recall what happened in 1952 (related to rebuke of the Court's prior Flash of Genius AS that "something more") and as penned by Judge O'Malley recently, merely more evidence of the ultra vires scrivening of the Court itself.

I put to you that "mere appearance" is FULLY enough. Anything other than that and your own premise here tumbles down a rabbit hole.

@ Skeptical

Many thanks for your thoughtful comments.

A computer search through the Alice opinion of Justice Thomas for the word "stipulate" gives two entries, both explaining:"As stipulated, the claimed method requires the use of a computer …" That falls short of an agreement that the claimed subject-matter falls within the statutory categories, and in any event the claimed method falls within the "process" category, not the "manufacture" category.

On the question of substance v mere outward presentation, I would mention the famous Abraham Lincoln story about the tail of a dog:

How many legs does a dog have if you call his tail a leg? Four. Saying that a tail is a leg doesn't make it a leg.

Similarly, simply saying that claimed subject-matter is a process does not make it into an eligible process. If you look at the facts in Prometheus, on the face of the patent specification the only novelty was the upper and lower limits of the therapeutic window which were simply items of information not having any eligible character because they did not involve the hand of man. The true rule of law in Prometheus is that in a claimed combination of features, those alleged to be novel must be themselves of an eligible character and not excluded e.g. as pure laws of nature.

In my opinion, the subject needs to go back to the Supreme Court. But it will be important to select a deserving case, of which in my opinion Athena is a prime example.

Not just the Supreme Court decision itself, Mr. Cole - please review the proceedings.

So while certainly there were method claims, my direct point is to MORE than merely the method claims and I am saying that those MORE were what the Supreme Court ALSO stated as failing for being "Abstract."

No - I am talking about the ADDITIONAL claims to the method claims.

Your "Lincoln" quote is inapposite, and appears merely to want to provide the slippery slope that IS the problem that the Supreme Court itself suffers from.

Congress spoke - and the Act of 1952 is quite clear as to WHICH ENTITY has the great responsibility for defining the invention. In the inverse of my Uncle Ben's words of wisdom, with great responsibility comes great power.

The Act of 1952 FURTHER greatly expanded what was meant as "Process" - even though the Supreme Court (again) tried to NOT take those words at face value. See 35 USC 100(b). It is NOT an accident, nor a meaningless redundancy how the word Process is used twice (The term “process” means process, art or method) - as THIS double use expands to the new meaning of Process ALL of the prior judicial understanding of that term AND "art" AND "method."

Additionally - and especially as I indicate here - one focus that the Supreme Court "screwed the pooch" was OUTSIDE of the process category.

For whatever reason, you have displayed an over-fawning reverence to our highest court - one that is not only quite UNdeserving, but also (as I have pointed out previously - and explained since you are NOT a US attorney) one that is NOT in line with the FIRST duty of a sworn attorney - to place the Constitution first. Since ALL THREE BRANCHES (including the judicial branch) are UNDER the Constitution [witness as well our system of checks and balances], this MEANS that sworn attorneys have an ETHICAL OBLIGATION to NOT place the Supreme Court above the Constitution.

Where, as here, the Supreme Court's legislating from the bench suffers from SEVERAL Constitutional infirmities (including, but not limited to: Void for Vagueness, Separation of Powers, and rending of advisory opinions), it is the ethical DUTY of attorneys to NOT blindly genuflect to the Emperors of the Court, and admire raiment not present.

NONE of these are new points between you and I.

I was going to wait to see if anyone else was following along and wanted to correct you as a matter of US law, but let me just do so quickly here.

I am not sure where you get this notion of parsing the law of eligibility down to claim elements, and then turning around and requiring claim elements themselves to be "of eligible character." That is just not how 35 USC 101 is written, and it is black letter law that eligibility is a "claim as a whole" matter.

It has been used on the weaker of mind in the patent blogosphere, so I shudder to have to use this on you, but your premise FAILS at first instance for ALL machines, manufactures and compositions of matter as each of these items may be thought of as nothing more than mere configurations of basic atomic materials: protons, neutrons, and electrons, which -- per what you posit -- ABSOLUTELY fail to have any sense of eligible character in and of themselves (and in fact, are ONLY configured according to the "Laws of Nature" (the real actual ones, and not the Treachery of Images ones).

By your statement of "combination of features, those alleged to be novel must be themselves of an eligible character" you commit the very heresy that the Supreme Court is guilty of and that lays at the very heart of the Muckery of the Court re-scrivening the words of Congress. There is NO "Point of Novelty" as you would have it, as the claim as a whole is the "point of novelty."

@ Skeptical

Please advise where the alleged "stipulation is to be found. You may have access to more of the papers than I do. But if I had been a litigator acting on behalf of CLS, stipulated 101 compliance would have been over my dead body.

In any event, "stipulated" 101 compliance does not appear from the opinion to have been a fact found by Justice Breyer, and therefore is not relevant to any rule of law flowing from that opinion.

On my Lincoln quote, merely calling claimed features a method does not make them a method. There is long-established jurisprudence on what constitutes an eligible method.

Your allegation of fawning deference to the Supreme Court is at odds with the confusion that I identified: i.e. that the alleged judicial exclusion categories that the court identified are not true exclusions because the three categories when stated simply by the Court plainly do not comply with eligibility. The numerals 1-10 are not excluded from the list of alphabetic characters in the sense that they fall within the definition but are removed by an additional rule. They are simply not alphabetic and therefore do not qualify for the list. Similarly with the judicial exceptions. In my opinion, this confusion, which recurs in successive Supreme Court opinions is highly damaging and the source of much inappropriate reasoning.

You are respectfully referred to my posting on the Recognicorp decision, https://www.patentdocs.org/2017/05/guest-post-regnoicorp-a-miscarriage-of-justice-calling-for-en-banc-reconsideration.html. In particular, I there said: "It therefore appears almost beyond argument that the claimed subject matter indeed falls positively within the process category, and that this should have been a conclusive holding avoiding the need for any consideration of the ineligible "abstract idea" category. It is questionable whether that category can be invoked to "nibble away" at the full scope of the "process" category without raising issues of separation of powers."

So I am not genuflecting to the Supreme Court but instead raised the issue of separation of powers long before the appointment of Justice Kavanaugh to the Supreme Court.

As regards claimed combinations of features, it does not take a reader of genius level to figure out which of them, on the face of the document, are novel. In Mayo, Justice Breyer said: "Second, the “wherein” clauses simply tell a doctor about the relevant natural laws, at most adding a suggestion that he should take those laws into account when treating his patient. That is to say, these clauses tell the relevant audience about the laws while trusting them to use those laws appropriately where they are relevant to their decision making (rather like Einstein telling linear accelerator operators about his basic law and then trusting them to use it where relevant)… the combination amounts to nothing significantly more than an instruction to doctors to apply the applicable laws when treating their patients."

There is a peculiarity in the Breyer opinion. He considers firstly the administering step, secondly the "wherein" clauses and thirdly the "determining" step. Not only is this sequence at variance with the order in which the steps are recited in the patent claim, but also they are at variance with the order in which the diagnostic procedure is carried out. There is a certain difficulty in taking seriously the opinion of a person, however elevated his status, whose mind is so self-evidently disorganized.

"stipulated 101 compliance would have been over my dead body"

The stipulation was NOT to "101 compliance," per se, and was to merely the affirmative inclusion in the statutory category of manufactures.

This is exactly the point that prompts the comment in your insistence that the EXCEPTIONS (still, THAT word) are somehow mutually exclusive with the statutory categories.

As to"

"On my Lincoln quote, merely calling claimed features a method does not make them a method. There is long-established jurisprudence on what constitutes an eligible method."

I am NOT disagreeing with ALL jurisprudence, and more to the point simply noting that SOME of that jurisprudence is OBVIOUSLY [sic] infected with the problem at hand. Certainly, I am not saying that I can call a tail a leg and be fine with that. On the same token though, OUR CONGRESS DID designate which entity has the power/responsibility for designating the invention and THAT authority was NOT the Supreme Court.

As to your next point, I think that we may agree more than we may disagree -- but the point remains is that it is the Court itself that has chosen its own words (and that choice -- including "exception") denotes something different than your theory.

Hey, I am not saying that IF the Supreme Court would have NOT mucked things up as they have, that your theory of mutually exclusive sets would NOT have been a fine way (and an easy way) to view the edicts of 35 USC 101 as items that do not fall within the Statutory Categories are simply off limits. BUT THAT IS JUST NOT THE REALITY WE HAVE.

As to:

"As regards claimed combinations of features, it does not take a reader of genius level to figure out which of them, on the face of the document, are novel"

"Novelty" is NOT the point of my comment. "Point of Novelty" in an eligibility context is. The point of the matter is that what you espouse falls trap to the same infection that the Court has used to muck things up. One MUST take the claim as a whole and NOT engage in the type of "does that PART of the claim have this type of "inventive contribution." ALL that you are doing is ignoring what happened in the Act of 1952 by doing that.

Do not do that.

@ Skeptical

Just where is the following supported?

"You will note that in that case, NOT ONLY did both parties STIPULATE that claims were squarely within the statutory category of manufactures (and by thus stipulation, REMOVE the authority of the Court to say otherwise), but the Court AGREED and nonetheless declared the claims to fall into the EXCEPTION of "Abstract" (even as they refused to define that term)."

WHERE did the STIPULATION appear in the Supreme Court opinion?

WHICH online-accessible CAFC opinion did THE STIPULATION appear in?

WHAT is your authority that the alleged stipulation was material to the CAFC or Supreme Court opinions?

I have asked this question before. It is important in establishing whether the quoted words came from your mouth or from the opposite end of your alimentary canal. I may not have had the time and resources to study the case sufficiently, but would genuinely like to know the facts. So, I think, would other readers.

@ Skeptical

In view of the authoritative way in which your views are expressed, am very disappointed not to have seen a prompt answer to the above important questions. It may be the result of delay in moderation, but if not is a cause for concern.

Mr. Cole,

Your desire for what amounts to a pincite for the procedural happenstance of parties stipulating to any conditions is a fair point. I do not have that procedural happenstance bookmarked, so I will need to look for it.

In the meantime, maybe you can clarify your own (colorful) “opposite end of your alimentary canal” musings by properly and fully addressing the rest of my points.

@ Skeptical

Your comment on July 27, 2019 at 05:46 PM about stipulation in Alice put forward an alleged fact that if true could be very significant to the correct understanding of successive Supreme Court opinions. In particular, if claims, even if different to the representative method claims, were both stipulated to be patent-eligible under one of the four categories but at the same time held ineligible by judicial exception that would be a situation very clearly raising issues of separation of powers and wrongful judicial legislation.

Investigating this has been time-consuming and has not so far revealed basis for what you then said.

You cannot characterise this as a "procedural happenstance" while simultaneously using it as evidence that I am "not taking the words of the Supreme Court as they are" and "over-fixated on merely ONE of the so-called group of exceptions".

We live in an era of "fake news" which we should not import into our discussions on patent law. I sincerely hope that you can provide support for your statement. If not, then I fear that your credibility is greatly damaged. You cannot and should escape from your obligations by merely ducking and weaving to another point.

erratum - I should have said .. and should not ...

"both stipulated to be patent-eligible under one of the four categories"

Second time correcting your portrayal of this: the stipulation was that the claimed invention met the statutory category portion of 35 USC 101 - NOT that the claimed invention was patent eligible (except for....).

As for "credibility" and other points - I would push this directly back to you and your apparent resting ALL credibility on one of my counter points and NOT treating ANY of the other counter points.

@ Skeptical

If the stipulation was that the claimed invention met the statutory category portion of Section 101, that is my point. How can the subject-matter then be removed?

And WHERE is the stipulation?????????

Where "multiple ?'s"...

Hmm, since I already mentioned to you that I do not have that procedural happenstance bookmarked, I cannot give you an instant answer.

That YOU want that answer instantly (and yet, continue to evade the host of other points that I have provided to you, informs me that I should - again - use your own "orifice" line for your odd sense of particular urgency.

Your "point" of "how" -- as I have pointed out to you for some time now, stems from the very word "exception" itself. After all, an exception is NOT something that does not belong to a category in the first instance. Rather, an exception IS something that belongs to a category in a first instance, BUT THEN (for whatever reason) is treated differently then other things that also belong to that category.

And THAT is my point.

@ Skeptical

I agree with your last paragraph and propose to leave it at that since I have other things I must do.

Well, Mr. Cole, if you (finally) see and agree with the last paragraph, will we see you stop doing what I noted in the first reply above at July 26, 2019 at 02:26 PM?

If so, I will still search for that stipulation item, but may take a little more time doing so.

Regarding " If not, then I fear that your credibility is greatly damaged. You cannot and should escape from your obligations by merely ducking and weaving to another point."

Even traveling, I had a moment to pull up some of the record available at Scotusblog, and the Supreme Court decision itself at page 3 reflects (emphasis in CAPS added:

“All of the claims are implemented using a computer; the system and media claims expressly recite a computer, and the PARTIES [plural] parties have stipulated that the method claims REQUIRE a computer AS WELL [necessary, even if unstated claim element].”

Similarly, at page 14:

“As stipulated, the claimed method requires the use of a computer to create electronic records, track multiple transactions, and issue simultaneous in¬structions; in other words, “[t]he computer is itself the intermediary.” Ibid. (emphasis deleted).”

Digging ONE layer deeper,at page 7 of brief in opposition to cert:

“For that limited purpose, the parties stipulated that the ’510 Patent “require[s] the use of a computer.” Pet. App. 156a. No other claim limitations were disputed for purposes of the Section 101 analysis.”

And at page 11 (commenting on the CAFC debacle):

“Judges Linn and O’Malley dissented; they would have held all of the asserted claims patent eligible. They reasoned that the parties’ stipulation to a claim construction including computer implementation required the court to apply the limitations in the system claims to all other claims. Pet. App. 123a-24a.”

And at pages 13-14 (more of same re: CAFC):

“To be sure, here the parties stipulated to this practical necessity for computer implementation, rather than leaving it implicit. In the district court, “the parties agreed for purposes of deciding their summary judgment motions that Alice’s claims should all be interpreted to require a computer.” Id. at 6a.”

And at page 31:

“Second, the Section 101 issue here was clearly framed on a motion for summary judgment addressing exclusively patent-eligibility. Claim construction was unnecessary, because CLS stipulated (for these purposes) to a construction favorable to Alice on the sole disputed limitation.”

Even the amicus brief for the United States reflects at page 3:

“The system and media claims expressly recite a computer, and the parties have stipulated that the method claims similarly require the use of a computer. [Pet.App.] at 28a”

I will allow you to choose which orifice you wish to receive these things, provided you properly apologize.

There is a problem with the language of the Supreme Court.

The Justices say that natural principles are an exception to the patent-eligible categories.

But their prime example is the equivalence of mass and energy e = mc2.

That principle cannot be an exception because it does not fall into any of the eligible categories. To that extent the reasoning of the Supreme Court is grossly misleading. As we know, in the 1950's Gentlemen preferred Blondes, of which Marylyn Monroe was an example. However, Elizabeth Taylor was not a blonde, not because she was treated differently but simply because she did not have the qualifying hair colour. If you consider the simple examples put forward in the Supreme Court they all fall into that sort of pattern - they are simply not inventions and there is no need to invoke any special or different treatment. But the problem is that the Supremes EXTEND their examples into situations that overlap with truly eligible subject-matter and remove from allowability cases that ought to be eligible.

On the whole, I do not think we are quite so far apart.

And on the whole, don't spend hours digging out that reference. We both have better things to do.

Mr. Cole - crossed in transit, so enjoy (as I am sure to enjoy watching you feast on that delightful dish of crow).

What? No acknowledgment? Will I have to bookmark this thread, and bring it back up the next time you venture into some erroneous theory about how the Supreme Court has not mucked things up with their scrivenings (complete with your error as to the meaning of the term “exception”)...?


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