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Thanks. I agree this is a very valuable case, as so many horrible software patents boil down to "this common thing everyone knows, but inna fone!" Software peop

by gbhn 12y ago

Thanks. I agree this is a very valuable case, as so many horrible software patents boil down to "this common thing everyone knows, but inna fone!" Software people have understood this for a long time as a completely unacceptable mis-use of the patent system, and it's nice to get that translated to an SC decision. To rant a sec, how many times will the federal circuit need to be slapped upside the head on these issues before they get it through their skulls that their whole permissive approach to patent law is just fundamentally unconstitutional, and they need to adapt their philosophy, or the SC will continue to apply the boot to them? Is this a case of there just being a handful of particular incorrigible bad actors who we just have to wait to die?

rayiner 12y ago
The fundamental issue is that Congress has stated patent eligibility in very broad terms. Where the Federal Circuit and the Supreme Court differ is that the former is reading it broadly, while the latter is trying to reinforce narrowing exceptions to the statutory text it created itself. This is, fundamentally, Congress problem, and a problem with the breadth of the statutory text they've given the USPTO to work with.
- dragonwriter 12y ago
  > Where the Federal Circuit and the Supreme Court differ is that the former is reading it broadly, while the latter is trying to reinforce narrowing exceptions to the statutory text it created itself. That would be a compelling story, except that the CAFC and Supreme Court came to the same conclusion on this case, both on the judgement (that the patent was invalid), and largely on the rationale (the plurality of 5 out of 10 judges in the en banc rehearing found that all the claims were patent-ineligible as the Supreme Court found, and a majority of 7 found that at least some of the claims were patent-ineligible.)
  - rayiner 12y ago
    I know, I meant more generally. I think the original panel opinion, vacated en banc, which required it to be "manifestly evident" that the idea is abstract is an example of reading the statute broadly.
WildUtah 12y ago
how many times will the federal circuit need to be slapped upside the head on these issues The Federal Circuit is essentially immune to Supreme Court decisions of this type. Aside from occasionally judge Lourie, who wrote the plurality opinion for the CAFC, there are no apparent judges on the CAFC who care what the Supremes have to say. They don't have to; the Supreme Court can reverse on average one or two patent cases a year while the CAFC takes a thousand. The CAFC will eventually overturn this case just as they have been making progress overturning KSR v. Teleflex, a much more important precedent. [0] Obviousness would have taken care of many more abusive troll cases than this one if it were taken seriously, but the Supreme Court cannot force the CAFC to do anything. The CAFC judges are mostly chosen from organizations that depend maximizing the power and scope of patents, largely appointed to please that patent bar, esteemed and supported by the social and intellectual environment of the patent bar, invited to speak and surrounded by patent bar lobbyists, and promised their chances to make millions after retirement -- if they wish -- back in the patent bar. The idea of a single subject court was a novel experiment in 1982 but it's a disaster and a failure from a judicial and technical perspective. It's even worse for innovative American businesses. Probably things won't change unless the CAFC is changed. [0] final four paragraphs of http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-prometheus/id=22920/ http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-pr...
- dragonwriter 12y ago
  > The CAFC will eventually overturn this case Why would the CAFC, even assuming it could, want to overturn a case in which the Supreme Court affirmed both the judgment and the dominant reasoning of the CAFC? I mean, that would go beyond not caring what the Supreme Court does into active spite. > The idea of a single subject court was a novel experiment in 1982 The CAFC isn't a single subject court, and both of its two immediate predecessors (the United States Court of Claims and the United States Court of Customs and Patent Appeals, 1929-1982) were more like single-subject courts than the CAFC is, so, insofar as the CAFC could even remotely be considered by such a court, it wasn't a "novel experiment" in that direction (and Court of Customs and Patent Appeals prior incarnation as the Court of Customs Appeals, 1909-1929, was a single subject court, and until 1914 was a single-subject court with no further avenue of appeal.) The CAFC was part of an evolution away from narrow-subject courts, not a "novel expirement" to try a "single subject court".

by gbhn 12y ago

rayiner 12y ago

The fundamental issue is that Congress has stated patent eligibility in very broad terms. Where the Federal Circuit and the Supreme Court differ is that the former is reading it broadly, while the latter is trying to reinforce narrowing exceptions to the statutory text it created itself. This is, fundamentally, Congress problem, and a problem with the breadth of the statutory text they've given the USPTO to work with.

dragonwriter 12y ago
> Where the Federal Circuit and the Supreme Court differ is that the former is reading it broadly, while the latter is trying to reinforce narrowing exceptions to the statutory text it created itself. That would be a compelling story, except that the CAFC and Supreme Court came to the same conclusion on this case, both on the judgement (that the patent was invalid), and largely on the rationale (the plurality of 5 out of 10 judges in the en banc rehearing found that all the claims were patent-ineligible as the Supreme Court found, and a majority of 7 found that at least some of the claims were patent-ineligible.)
- rayiner 12y ago
  I know, I meant more generally. I think the original panel opinion, vacated en banc, which required it to be "manifestly evident" that the idea is abstract is an example of reading the statute broadly.

WildUtah 12y ago

how many times will the federal circuit need to be slapped upside the head on these issues The Federal Circuit is essentially immune to Supreme Court decisions of this type. Aside from occasionally judge Lourie, who wrote the plurality opinion for the CAFC, there are no apparent judges on the CAFC who care what the Supremes have to say. They don't have to; the Supreme Court can reverse on average one or two patent cases a year while the CAFC takes a thousand. The CAFC will eventually overturn this case just as they have been making progress overturning KSR v. Teleflex, a much more important precedent. [0] Obviousness would have taken care of many more abusive troll cases than this one if it were taken seriously, but the Supreme Court cannot force the CAFC to do anything. The CAFC judges are mostly chosen from organizations that depend maximizing the power and scope of patents, largely appointed to please that patent bar, esteemed and supported by the social and intellectual environment of the patent bar, invited to speak and surrounded by patent bar lobbyists, and promised their chances to make millions after retirement -- if they wish -- back in the patent bar. The idea of a single subject court was a novel experiment in 1982 but it's a disaster and a failure from a judicial and technical perspective. It's even worse for innovative American businesses. Probably things won't change unless the CAFC is changed. [0] final four paragraphs of http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-prometheus/id=22920/ http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-pr...

dragonwriter 12y ago
> The CAFC will eventually overturn this case Why would the CAFC, even assuming it could, want to overturn a case in which the Supreme Court affirmed both the judgment and the dominant reasoning of the CAFC? I mean, that would go beyond not caring what the Supreme Court does into active spite. > The idea of a single subject court was a novel experiment in 1982 The CAFC isn't a single subject court, and both of its two immediate predecessors (the United States Court of Claims and the United States Court of Customs and Patent Appeals, 1929-1982) were more like single-subject courts than the CAFC is, so, insofar as the CAFC could even remotely be considered by such a court, it wasn't a "novel experiment" in that direction (and Court of Customs and Patent Appeals prior incarnation as the Court of Customs Appeals, 1909-1929, was a single subject court, and until 1914 was a single-subject court with no further avenue of appeal.) The CAFC was part of an evolution away from narrow-subject courts, not a "novel expirement" to try a "single subject court".