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07.01.18

Anthony Kennedy’s Retirement From SCOTUS Means That the Patent Microcosm Has Selective Recollection

Posted in America, Law, Patents at 11:15 am by Dr. Roy Schestowitz

Anthony Kennedy on Wikipedia
Reference: Wikipedia

Summary: The US Supreme Court (SCOTUS) has been responsible for much of the actual reform in terms of patent scope, patent litigation venue and so on; patent maximalists, livid in the face of these changes, bring up Bilski and anything they can throw at the wall, hoping that something will miraculously stick

THE effort to derail Alice (a 2014 SCOTUS decision) isn’t stopping, having just entered its fifth year.

Dennis Crouch says that patent maximalists’ front groups (AIPLA, IPO, and NYIPLA) want software patents back. What a shocking surprise! Not!

This speaks of “35 U.S.C. § 101—Inventions Patentable” and then Crouch adds:

Here, the term “claimed invention” does not mean what might suggest — an invention that has been claimed in a patent or patent application. Rather, the term “claimed invention” is narrowly defined as “the subject matter defined by a claim in a patent or an application for a patent.” 35 U.S.C. 100(j). In other words, the “claimed invention” is what is claimed to be the invention.

Of course, the next step will be much more difficult for proponents of the legislation – getting Congress to act.

Congress does not need to act and it’s not for Congress to decide on anyway. A month ago Crouch kept sort of ‘bullying’ for Congress to get involved, even when it wasn’t asked to (misqoting or misinterpreting a Federal Circuit judge, who did not even mention Congress).

“Congress does not need to act and it’s not for Congress to decide on anyway.”IAM, the patent trolls’ lobby, did the same thing by stating: “The New York IP Law Association just released a statement in support of @IPO / @aipla proposal on re-writing of statute around patent eligible subject matter. Big sign of consensus in IP community on 101…”

By “IP community” IAM means patent maximalists. So the lawsuits ‘business’ agrees with lobby/front groups of the litigation giants, boosted by the patent trolls’ lobby, IAM. Great! So they all agree on that. How is that even newsworthy? It’s like saying that Japanese people agree on sushi.

“So the lawsuits ‘business’ agrees with lobby/front groups of the litigation giants, boosted by the patent trolls’ lobby, IAM.”But anyway, that’s just the tip of a bigger iceberg because there’s now a glimmer of hope among those people that Anthony Kennedy’s retirement will have consequences for patents. But will it? Some of the most vocal patent maximalists recall an old case, the Bilski case (Bilski v Kappos) from nearly a decade ago. One response to this said: “Kennedy made up for his bilski concerns in Alice, so careful what you wish for. You’ll not like his replacement, but Gorsuch & Roberts will” (naming the people who dissented on Oil States).

Well, the patent microcosm’s tears could fill up a bucket of 10 million milliliters (or patents). They just can’t stand SCOTUS and hope to reboot the whole court. As for Kennedy, he was hardly a patent-hostile person; they just sort of quote-mine him to make it sound like he opposes Alice (based on an unrelated decision from almost half a decade earlier!).

“They just can’t stand SCOTUS and hope to reboot the whole court.”Dennis Crouch and his chums then mentioned Kennedy’s record on patents, which is a lot more extensive than the Bilski case but they’re starting with Bilski v Kappos (probably by intention). It will certainly be interesting to see who gets nominated and appointed, but to suggest that Kennedy opposed Alice based on views expressed in an entirely different decision (of a different nature) is spin at best or lying at worst. But they’d cling onto anything…

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