06.03.18
The Patent Microcosm is Spinning Berkheimer Again, Hoping to Compel Politicians to Undermine Section 101 and Promote Software Patents
Patently-O has basically become another Watchtroll
Summary: Dennis Crouch, who has his cards (or pot of gold) with the patent microcosm, steers media towards ludicrous suggestions and misleading headlines; the overall objective is to water down Section 101 and dilute the patent system, bringing rise to more patent litigation (especially with abstract software patents)
THE resurrection of Berkheimer is something we’ve grown rather tired of; the patent microcosm, seeing that the USPTO is now headed by Iancu, tries to convince him to water down guidelines by citing Berkheimer. As for the courts? Like we’ve been showing for a couple of months, they barely care about Berkheimer as a precedent. They’ve just move on basically.
Prominent patent maximalist Dennis Crouch is still trying to 'pull a Berkheimer' to undermine the Patent Trial and Appeal Board (PTAB), Federal Circuit (CAFC) and Section 101. He has been doing that for a long time.
Several days ago he wrote about some case, trying to solicit oppositions:
Now, the Federal Circuit has denied both petitions with opinions by Judges Moore, Lourie, and Reyna. The exact vote was not released, but at least 7 judges voted to deny.
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Clearly Judge Reyna is correct in this aspect of his analysis even if I disagree with his ultimate conclusion that eligibility is purely a question of law.
I would look for Supreme Court petitions in both cases framed along the lines of: pro-patentee Federal Circuit judges seeking to undermine consistent Supreme Court precedent most recently restated in Alice and Mayo.
It’s about CAFC and the Section 101 question. They basically don’t want to meddle in it, but this has already been spun by lawyers’ media. They contaminate information sources.
Judge Alan Lourie said: “Section 101 issues certainly require attention beyond the power of this court” (that’s all).
Open for interpretation?
Over at Law.com, for example, Scott Graham wrote:
The U.S. Supreme Court’s Alice opinion on patent eligibility got a formal haircut Thursday.
The U.S. Court of Appeals for the Federal Circuit announced that it’s sticking with two February decisions that limit the kinds of patent cases that can be decided early in litigation on a Section 101 motion.
Only one of the court’s 12 active judges dissented from the denial of en banc review in Berkheimer v. HP and Aatrix Software v. Green Shades Software, though two others also called on Congress or the Supreme Court to intervene.
They’re just nitpicking dissents and words (like Crouch). These patent radicals have always twisted some words in an effort to bring software patents back to the US. What the judges said does not match the headlines at all. Here’s Crouch seemingly quoting Alan Lourie as saying “Call for Congress to Act” (there was no such call!). To quote:
As part of the court’s en banc denial in Berkheimer v. Hp Inc., 2018 U.S. App. LEXIS 14388 (Fed. Cir. 2018), Judges Lourie and Newman joined together in an interesting concurring opinion that argues for some higher power to revisit the doctrine of patent eligibility to provide clarification and policy guidance.
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For a federal appellate court, there are typically two such “higher authority” mechanisms for altering the law: (1) Supreme Court reinterpretations and (2) changes in the law itself. In the opinion, Judge Lourie rules out a reinterpretation by the Supreme Court as insufficient — thus leaving us with changing of the law.
Well, “higher authority” does not mean Congress and Crouch — like a little child — has already begun to play with Google in an effort to find artistic interpretations for that term. It does not mean Congress. Ryan Davis, over at Law 360, followed that up by writing:
The full Federal Circuit voted Thursday not to rehear two cases seen as making it harder to invalidate patents for claiming ineligible material under the U.S. Supreme Court’s Alice test, saying the holdings that patent eligibility can involve factual issues follow established litigation rules.
The court, with only one judge dissenting, denied petitions for en banc rehearing by HP Inc. and Green Shades Software Inc. in two separate cases that shook up patent law when they were decided within days of each other in February.
So that’s about it. Nobody said Congress should intervene or anything like that. It’s pure lobbying by Crouch and his ilk. His blog colleague, David Hricik, has just posted for someone else this attack on Section 101 because the patent radicals of Patently-O (see the nature of the comments there) don’t accept courts’ judgements. Instead, as in this latest piece, they smear Justices as “judicial activism” (yes, activism! This is right out of Donald Trump’s playbook!) for basically applying the law, assuring patents validity and quality. They’re becoming like another Watchtroll now. To quote:
Over on the main page, Dennis has pointed out that a cert petition including citations to my posts here about why Section 101 is not a “defense” to infringement, and to the recent CAFC cases about why 101 includes factual inquiries. This rant is about those issues.
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Where the judicial activism of the Supreme Court has put our country is is in a dire place. We are in a time when innovation is king. China has more patents pending than the U.S. Around the country, I have heard executives from all types of industry state that our system has made patenting of dubious value. The data shows that the Supreme Court’s rampant activist approach — undertaken perhaps in a noble effort to get rid of some (too many) stupid patents (and combined with IPRs) — has made our patent system weak, eliminated key incentives to innovate, and, most fundamentally, ignored the changes Congress made back in 1946 to stop this nonsense.
Patently-O is proving to have become a rather toxic site with an agenda. Founded by a scholar, it certainly seems to be just an “activism” site of the patent microcosm, very much akin to Watchtroll. █
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