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12.25.17

The Federal Circuit (CAFC) is Doing a Good Job, Which Means It’s Hated and Mocked by the Patent Microcosm

Posted in America, Courtroom, Patents at 7:29 am by Dr. Roy Schestowitz

Recent: A High US Court (CAFC) Continues Rejecting Software Patents (Even of Microsoft’s Patent Trolls)

Sharon ProstSummary: Chief Judge Sharon Prost has turned the highest patent court below the Supreme Court into a decent court which respects the wishes of science and technology professionals (not law firms), which makes it the target of ridicule and criticism from law firms

THE Court of Appeals for the Federal Circuit (CAFC) has had a good year. As we said yesterday, CAFC helped eliminate software patents by consistently ruling against them this year. This will hopefully continue next year.

As one can expect, this makes patent maximalists rather hostile toward CAFC. A new sponsored ‘article’ (paid-for marketing) at IAM frames a good CAFC decision as injustice. “This decision is important for life sciences intellectual property,” it says, “and could significantly impact pharmaceutical compound patenting. Under this holding, existing claims to a large genus of antibodies are far more likely to be invalidated for lack of written description if challenged. ”

“Not only IAM keeps bashing CAFC.”Stop patenting life. It’s not an invention. It’s nature.

Not only IAM keeps bashing CAFC.

Crouch keeps writing about CAFC. When patents are associated with the actions of the controversial TSA, for example, Crouch says that one may “attribute TSA’s activities to the accused infringer Travel Sentry.”

He adds: “The problem with Tropp’s method claims is that they require both (1) supplying the special lock (done by Travel Sentry) and also (2) the TSA (“luggage screening entity”) using the provided master key. This is a problem because infringement ordinarily requires a single-entity who practices (or controls the practice) of every step of a method claim. Here, Travel Sentry performs step-1, but not step-2.”

“So patents are again being leveraged against the government itself. And the plaintiff loses. Again.”The context of it is worth considering; we now see patents creeping into the public sector which is funded by taxpayers. It may therefore relate to privatisation and protectionism with nepotism.

On another day Crouch wrote about American Innotek v US (CAFC). “The lawsuit here is against the U.S. government,” he said, and “as such, it was filed in the U.S. Court of Federal Claims without right to jury trial, punitive damages or injunction. At the CFC, the court held the patent invalid – finding it obvious even as of its 1989 priority date. On appeal, the Federal Circuit has affirmed, although only after rejecting the lower court’s misapplication of obviousness law.”

So patents are again being leveraged against the government itself. And the plaintiff loses. Again.

Let’s remember what patents exist for and who for. They’re not supposed to just cushion the business model of ‘career litigators’.

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