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tidge.com blog

Japanese Prints: Inventors under Adversity!!

These just tickle my fancy, mostly based on what I'm imagining they're about. You can find them on the Library of Congress website, prints & photographs collection, and reading the notes, you will find they are Japanese woodcuts, dated "between 1850 and 1900," donated by a Mrs. E. Crane Chadbourne to the Sackler Gallery of Art in 1930.

I imagine the prints to be part of the society-wide remaking of Japan before, during, and after the Meiji Restoration in 1868, when the Japanese "westernized" themselves with a vengeance. One of the prints has typewritten notes at the bottom, indicating that the "Department of Education" was somehow involved. These prints are the equivalent of medieval morality plays and Soviet posters from the 1920's; they are proselytizing pieces of propaganda, intending to teach the viewer how to think about things. They were trying to create a new ethos. An "innovation nation" perhaps? Yes, but the real thing, not the pro-"entrepeneurship" schlock that seems to ooze from every corner of the corporate media machine nowadays.

What I find funny is that all of these Western inventors/innovators seem to be beseiged or a little crazy in every woodcut: are we really supposed to emulate them?

James Watt,
Inventor of the Steam Engine

This is "James Watt, inventor of the steam engine, collect[ing] steam from a boiling kettle while his aunt rebukes him for his nonsense." Wha-a-a-at?!? I have no idea if this is based on any historical reality. See Watt's Wikipedia entry.

Bernard Palissy,
Inventor of Enamelled Pottery

"Bernard Palissy, inventor of enamelled pottery, burns chairs to keep the furnace going" while his wife flees in terror and his child flees in good humor. True that. See Palissy's Wikipedia entry:

At times he and his family were reduced to poverty; he burned his furniture and even, it is said, the floor boards of his house to feed the fires of his furnaces. Meanwhile, he endured the reproaches of his wife, who, with her little family clamouring for food, evidently regarded her husband's endeavors as little short of insanity.

Richard Arkwright,
Inventor of Spinning Machiney

"Arkwright sending his wife to her parents because she deliberately broke his spinning wheel." But, why, honey, why?!?! No idea if this happened or not. See Arkwright's Wikipedia entry (with juicy patent fights!!).

Thomas Carlyle,
Author and Historian

"Carlyle horrified to see his manuscript burn after his dog upsets a lamp." No idea if this happened or not. See Carlyle's Wikipedia entry.

John James Audubon,
Bird Naturalist

"Audubon discovering that his work was eaten by a rat." See Audubon's Wikipedia entry ("After his return to Kentucky, he found that rats had eaten his entire collection of more than 200 drawings").

John Heathcoat,
Inventor of the Knitting Machine

"Heathcote [sic] displaying the first successful result from his knitting machine to his wife." I admit she doesn't seem horrified, disgusted, or royally pissed off. But, on the other hand, he's the only guy on the list I'd never heard of, so fame may depend on adversity. See Heathcoat's Wikipedia entry

The War over Subject Matter Patentability (or 'Eligibility') Continues!!

The Feds have vacated their previous decision CLS Bank Int'l v. Alice Corp. Pty. Ltd. (Fed. Cir. July 9, 2012), which was their first decision interpreting the Supremes' March 20, 2012 Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U. S. ___ (2012)—the case where the Supremes clarified that patent claims "must add enough" to natural processes/natural laws in order to be patentable under §101 (subject matter), but failed to clarify how any other court can determine what is "enough." See, e.g., Right Result, Wrong Reason.

The lower court in the CLS Bank appeal had ruled that the computerized trading method, system, and media claims were invalid for failing to claim eligible subject matter. CLS Bank Int’l v. Alice Corp., 768 F. Supp. 2d 221 (D.D.C. 2011). In CLS Bank Int'l v. Alice Corp. Pty. Ltd. (Fed. Cir. July 9, 2012), the majority (Linn, author, and O'Malley) of the Federal Circuit 3-person panel reversed the trial court's ruling, holding "that the system, method, and media claims at issue are not drawn to mere 'abstract ideas' but rather are directed to practical applications of invention falling within the categories of patent eligible subject matter defined by 35 U.S.C. §101" (p. 2).

The third judge, Prost, dissented, stating not only that "the asserted patent claims are abstract ideas repackaged as methods and systems," but that the majority was effectively ignoring "the Supreme Court’s unanimous directive to apply the patentable subject matter test with more vigor" (referring to Mayo). CLS Bank Int'l, dissent, pp. 1, 2.

Today, the Feds' vacated the split CLS Bank decision, and requested the parties (and the PTO and anyone else who cares to) address the following questions:

a. What test should the court adopt to determine whether a computer-implemented invention is a patent ineligible "abstract idea”; and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea?

b. In assessing patent eligibility under 35 U.S.C. § 101 of a computer-implemented invention, should it matter whether the invention is claimed as a method, system, or storage medium; and should such claims at times be considered equivalent for § 101 purposes?

Here's another question one might ask: does this have anything to do with yesterday's N.Y. Times article The Patent, Used as a Sword, making the argument (based, as usual, on anecdotes and one or two "expert" opinions) that the "software patent system ... is so flawed that it often stymies innovation." That article did refer to Judge Richard A. Posner's recent anti-patent decision (dismissing the N.D.Ill. Apple v. Samsung case), recent anti-patent article (Why There Are Too Many Patents in America - The Atlantic - July 12, 2012), and several personal email responses and a telephone interview from Judge Posner himself.

Past a Certain Point, Contracts are Only Words on Paper (Part 2)

This follows up on a previous blog entry (Past a certain point, contracts are only words on paper) concerning a personal bugbear of mine: the assumption, by some attorneys, of the absolute power of the words of a contract. They aren't, they never were, and they never will be.

This is a pretty minor example, but I think a telling one. In Mitek Sys. v. United Services Automobile Assoc., D.Del. 12-cv-462 (2012-08-30) (Sleet, J.), the forum selection clause of the licensing agreement between the parties stated:

[A]ny suit or action filed to enforce or contest any provision of this Agreement, or the obligations imposed, shall be brought and prosecuted in a court of competent jurisdiction sitting in the State of Delaware.

Judge Sleet held that the first-filed rule trumped the contract and ordered the case transferred to the Western District of Texas, where USAA had filed suit against Mitek two weeks before. Id., p. 5 (" ... the court will not enforce the Delaware forum selection clause of the License Agreement ... ").

What I find telling is that USAA didn't even focus on the public policy arguments for ignoring the forum selection clause—it appears the judge made those arguments pretty much by himself, while USAA instead argued that other agreements (with Texas forum selection clauses) superseded the contract with the Delaware forum selection clause. In other words, USAA's lawyers were so blinded by the clear wording of the contract with the Delaware forum selection clause (and their assumption that such words in a contract are absolute) that the only way they saw out of it was to argue other agreements must apply. Judge Sleet, knowing the law and possessing common sense, didn't waste his time:

The parties' devote a significant amount of their briefing to this issue, but for the moment the court will assume that the 2006 License Agreement, with its Delaware forum selection clause, was not superseded by the later Confidentiality Agreement and does control here.
[The court completely rejects] Mitek['s] argu[ment] that the presence of the [forum selection] clause defeats the ordinary application of the first-filed rule ...
No [exceptions] are presented here to justify a departure from the ordinary rule favoring the forum of the first-filed action.
Id., pp. 5, 6-7 (emphasis in orginal)

Contracts are not absolute; they never were, and they never will be.

Without Explanation, Feds Stay Unsealing Ordered by Judge Koh in Apple v. Samsung

I've written before about what I believe to be a judicial (and academic) pushback against oversealing in patent litigations*, and now the Federal Circuit has stepped in and effectively reversed Judge Koh's efforts to keep judicial proceedings appropriately public. So it seems the Feds aren't part of that judicial pushback.

Yesterday, the Feds stayed Judge Koh's orders "unsealing certain trial and motion exhibits" (the Feds' 9/18/2012 Stay Order). The Feds did this without explanation: although they recited the correct law to apply, the Feds gave no indication how the law applied to the facts of this case, nor any indication why the law compelled the use of an extrajudicial remedy like an injunction to undo the rulings of the trial court judge.

The Feds similarly granted a stay without explanation (but with a recital of the applicable law) in Butamax Advanced Biofuels LLC v. Gevo, Inc. (order here). Because Butamax stayed the lower court's enjoining of the ongoing activities of a business, I could understand an argument that the merits were somehow "obvious" (and thus did not require an explanation), but there is no such possible justification regarding this order. Besides, not explaining how the law applies to the facts of the case is just bad form.

If the presentation in one of Gizmodo's article on the Apple v. Samsung case (article here) is indicative of the materials that Judge Koh ordered unsealed, the Feds are wrong on the facts and wrong on the law.


* - I originally wrote about judicial pushback against oversealing in Signed, SEALED, Delivered, I'm Yo--well, maybe not, followed by a post noting Gizmodo's use of unsealed materials in an article about Apple v. Samsung (Gizmodo proves me wrong), and then a nod to Prof. Bernard Chao's articles against the abuse of sealing in patent cases (Patently-O proves me wrong).
ActiveVideo: A Case of No Significance

The title of this blog entry is from 1587: A Year of No Significance, a book which concentrated on a year where "nothing happened" in Chinese history—57 years before the fall of the Ming Dynasty, 1587 had no great battles, witnessed no great war, no foreign invasion threatened, no great disruption of civil service and civil government, the then-reigning Wanli Emperor (萬曆) (1563-1620), although "representative of Ming decline," was neither that good nor that bad.

So why bother writing about 1587? Because a true understanding of history requires an understanding of the seemingly unimportant interlinked events that fill the interstices between the "big" events. In an analogous (but only roughly similar) manner, I think a lawyer must be continually reading cases in order to maintain an understanding of the law, not merely how it is moving and developing, but also how one, as a lawyer, can best approach the problems encountered in one's own cases.


ActiveVideo v. Verizon Comms. was a case of no significance (although the Feds did make it precedential), and I found the following interesting:

A Non-Victory

Because Verizon has not argued either before the district court or on appeal that a finding of non-infringement of the ’582 patent should result in a reduction of damages, we affirm the damages award against Verizon in full.

Wait, ... what? Verizon "won" a reversal (by getting the Feds to reverse the ruling of infringement of the '582 pat, one of the 4 ActiveVideo pats asserted against Verizon in the case), but this victory was worth nothing (i.e., had no effect on the $115M damage award against Verizon). Does this mean appellants should always break up the total damage award into the monetary values of each patent when arguing non-infringement on appeal? Maybe, maybe not, but I'm sure as hell going to think about it next time I'm appealing an adverse infringement ruling involving more than one patent. And what about at trial? Hmmmmm.

Win @ Trial,
or Lose

Although we may not have decided these evidentiary issues the same way had we presided over the trial, the district court did not abuse its discretion.

Some patent litigators have a habit of viewing all trial court rulings as "right" or "wrong," and assume that, if the ruling is "wrong," it will be corrected on appeal. This attitude is not merely incorrect, but indicative of someone who doesn't understand the law. The truth is, there are many rulings, particularly evidentiary rulings, that are close calls, and our system of law leaves these decisions to the trial court judge's discretion. I have encountered versions of the above phrase ("... we may not have decided ... the same way ...") in dozens of Fed.Cir. cases where the trial court judge's ruling was affirmed. The lesson is, regarding close calls, you win at trial, or you lose—there is no appeal.

No Need to Construe It All

ActiveVideo ... argues that the district court erred in declining to construe ... [certain phrases for which Active Video proposed constructions] ... in asserted claim 9. ... Verizon argues that the district court resolved the dispute between the parties ... by declining to adopt ActiveVideo’s construction and giving the terms their plain and ordinary meaning. ... The district court did not err in concluding that these terms have plain meanings that do not require additional construction.

Some patent litigators still believe that if their adversaries propose a claim construction, they must either agree with the proposed claim construction or propose their own. This is manifestly false, and gives your opponent a tactical advantage by allowing your opponent to force you into acquiescing (by agreeing to their construction) or fighting (by proposing your own), when completely unnecessary.


* - The IT staff at tidge.com are mystified by the appearance of a late 1800's herring tin label in the middle of this blog entry. Go figure.

and forget it.

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