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Patent Academics and CAFC Make a Living Out of Patents, But Both Must Begrudgingly Learn to Accept That Patents Went Too Far

Posted in America, Patents at 12:58 am by Dr. Roy Schestowitz

Many of the Rader era CAFC/Federal Circuit decisions (almost all) were overturned by the US Supreme Court

Federal Circuit judges

Summary: A look at academic pundits’ views on the patent system of the United States and where the Federal Circuit (a high patent court) stands on these matters after the US Supreme Court (highest possible court) lashed out at many of its decisions, especially those from the disgraced Rader years

THE USPTO alone is dealing with billions of dollars each year. Those who can participate in the ‘patent game’ at a large scale are large corporations. The same is true universally. It’s not the system of a sole inventor like Tesla but of a businessman like Edison. Lots of money in circulation in the patent ‘industry’.

It has been rather disappointing to see ‘Establishment’ academics playing along in all this. I’m not a fan of particular people using the title Professor to implicitly assert that they’re uninterested or/and impartial observers whose views are objective and motivations are purely “scholarly”. They too can be lobbyists sometimes. They have vested interests and ideologies. I do have those ideologies too. So does everybody else. Absolute objectiveness rarely exists, except in few disciplines (e.g. laws of nature, not laws of states).

Some hours ago Patenty-O (a patent maximalists’ blog) published this piece about the doctrine of equivalents (DoE) among other matters. Judging by the tone, it sure sounds as though Professor Samuel F. Ernst from Golden Gate University School of Law pressures the Supreme Court (SCOTUS) to intervene in CAFC (Federal Circuit) rulings regarding patent scope/maximalism. To quote a portion:

It is now time for the en banc Federal Circuit or the Supreme Court to overrule the erroneous doctrine of literal infringement and revive the reverse doctrine of equivalents. As properly applied, the reverse doctrine of equivalents allows for accused innovations to escape infringement when they are substantially superior, practically and commercially, to the invention claimed by an asserted patent.


If a proper litigation vehicle is identified, a petition for certiorari arguing for the revival of the reverse doctrine of equivalents may well attract the attention of the Supreme Court. The Supreme Court has been inclined to review the work of the Federal Circuit in recent years in cases where the Federal Circuit has applied a rigid rule (like the doctrine of literal infringement), given insufficient deference to district court determinations (as occurs when the district court is not permitted to weigh the principle of the asserted patent against the accused substantial innovation), and disregards or cabins Supreme Court precedent (as has been done with Westinghouse v. Boyden)

See what they’re doing here? Crouch et al just can’t help intervening in Supreme Court matters, as they did a lot in Oil States. Crouch alone perhaps wrote a hundred or more posts pertaining to this case directly and indirectly. Dishonesty was abundant as well as the rhetoric/nuances of right-wing libertarians (Conservatives masquerading as “liberals”).

Days prior to this Professor Michael Risch wrote about Section 101 and more so Section 112. He alluded in his post to edge cases/extreme cases such as “violating the laws of thermodynamics.” (or “defy the laws of thermodynamics.”)

To quote some bits:

Those familiar with my work will know that I am a big fan of utility doctrine. I think it is underused and misunderstood. When I teach about operable utility, I use perpetual motion machines as the type of fantastic (and not in a good way) invention that will be rejected by the PTO as inoperable due to violating the laws of thermodynamics.


I’m sure I had briefly read Newman v. Quigg at some point in the past, and the case is cited as the seminal “no perpetual motion machine” case. Even so, I’m glad I watched the documentary to get a better picture of the times and hooplah that went with this, as well as what became of the man who claimed to defy the laws of thermodynamics.

It’s no secret that Risch is said to support software patents although he maintains that he is “agnostic” on the matter (i.e. passively accepting the status quo). Risch is not exactly a “patent maximalist” — a term he recently used in an E-mail he sent me. Having said that, his discipline (work) depends on the patent system. So do some courts. How about the Federal Circuit, as opposed to the Supreme Court (which deals with a very broad set of subjects)? As Wikipedia puts it right at the start/outset: “The Federal Circuit is particularly known for its decisions on patent law, as it is the only appellate-level court with the jurisdiction to hear patent case appeals.”

Having written a lot about the Federal Circuit for over a decade, we can really see things improving. The latest chief judge is so much better than her predecessors, who were (and still are) patent maximalists that openly support trolls and sometimes engage in misconduct which benefits patent trolls.

Let’s examine some recent news from the Federal Circuit.

The Federal Circuit, according to this, “has affirmed a district court’s rule 12(b)(6)dismissal of a complaint alleging direct patent infringement where the patent owner pled that the defendant at most benefited from the claimed system as a whole…”

This is another rejection (one among many rejections) of patent maximalism. In Exergen Corp. v Kaz USA, as Patently-O noted some days ago, the Federal Circuit ruled in favour of the patent, but this wasn’t abstract, hence more trivial a case.

Patently-O‘s Dennis Crouch commented (a couple of weeks back) on a CAFC decision which does not address scope (and thus isn’t quite relevant to us) and also wrote about Helsinn Healthcare v Teva Pharma (petition later noted elsewhere), which might — just might — reach the Supreme Court:

Prior to the AIA, the On Sale Bar prevented the patenting of inventions that had been on-sale more than one year before the application’s filing date. 35 U.S.C. 102(b). Pre-AIA, on sale activities include non-enabling secret offers to sell the invention (so long as the invention was otherwise ready-for-patenting). Because most companies outsource elements of product development and manufacture — the rule has created potential for trapping the unwary.

As we said before, we’re quite pleased to see how the high courts in the US nowadays deal with patents. They’re more sceptical. The lower (i.e. district) courts gradually adapt, but that takes time.

Docket Navigator recently highlighted Precision Fabrics Group, Inc. v Tietex International, Ltd. when it wrote:

The court granted in part plaintiff’s motion in limine to preclude expert testimony premised on a revised construction of the claim term in question.

Such expert testimonies often help highlight what patent examiners overlooked (either intentionally or unintentionally) when choosing to grant a patent that’s presently used aggressively. Such scrutiny is much needed and should be encouraged, not impeded, as we said in our last post. The more scrutiny/challenge (e.g. PTAB), the better the quality of patents and legitimacy of justice-making.

Remember a district court case which was mentioned here earlier (design patents on automobile parts); those were upheld as valid by a district court (report from end of last month). Well, guess what happened in Ottah v Fiat at the Federal Circuit. Patently-O reports:

On appeal, the Federal Circuit has affirmed the lower court’s dismissal of Chikezie Ottah’s infringement claim against Fiat, Toyota, Nissan, GM, Ford, and other auto manufacturers — holding it not infringed.


Even after liberally construing the pleadings (for pro se benefit), the court found no plausible claim based upon the patent — as such the dismissal with prejudice was proper.

This is pretty recent (decided March 7th, 2018). We’ve made this local copy of the decision.

No doubt the court and its judges will continue to come under attacks, even racist diatribe (as recently happened).

Watch Camilla Alexandra Hrdy (University of Akron School of Law) suggesting that Trump should write: “IF YOU DON’T HAVE PATENTS, YOU DON’T HAVE A COUNTRY.”

This is starting to sound even more deranged than Trump himself. What are these people on? Patent maximalism is a mental virus, whose threat to the mind is greater in the presence of echo chambers. And when we say “echo chambers” we mean events organised by the likes of IAM, with support from large law firms such as Finnegan.

“Typically,” Finnegan says, “national stage examination of U.S. applications claiming priority to international PCT applications “commences” 30 months from the priority date of the international application. This commencement date is then used to calculate patent term adjustment if appropriate.”

Timing won’t matter though if your patent is not of concrete/real value, e.g. a software patent, and should never be granted anyway.

In summary, things are changing for the better. But law firms and patent-centric scholars worry that it makes them obsolete.

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