Archive for November, 2018

Director Iancu and Patent Eligibility Examination Reform

Friday, November 30th, 2018

Director Iancu has shown bold leadership in addressing the patent eligibility quagmire currently plaguing the US patent system.  His latest speech is available [here]. So, what grade would you give him on these efforts, so far?

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Quote of the day

Wednesday, November 28th, 2018

The district court concluded that the claims were directed to the abstract idea of “storing, organizing, and retrieving memory in a logical table” or, more simply, “the concept of organizing information using tabular formats.” J.A. 321 (emphasis omitted). Likewise, Microsoft urges the court to view the claims as being directed to “the concepts of organizing data into a logical table with identified columns and rows where one or more rows are used to store an index or information defining columns.” Appellee’s Br. 17. However, describing the claims at such a high level of abstraction and untethered from the language of the claims all but ensures that the exceptions to § 101 swallow the rule. See Alice, 134 S.Ct. at 2354 (noting that “we tread carefully in construing this exclusionary principle [of laws of nature, natural phenomena, and abstract ideas] lest it swallow all of patent law”); cf. Diamond v. Diehr, 450 U.S. 175, 189 n. 12, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981) (cautioning that overgeneralizing claims, “if carried to its extreme, make[s] all inventions unpatentable because all inventions can be reduced to underlying principles of nature which, once known, make their implementation obvious”).

ENFISH, LLC v. Microsoft Corp., 822 F.3d 1327, 1337 (Fed. Cir. 2016)(emphasis added).

“Alligator arms”

Monday, November 26th, 2018


I have been trying to think of an expression that captures the situation when the Federal Circuit fails to give full meaning or exposition to a claim limitation.  For example, this might occur in patent eligibility determinations when a method claim is distilled down to just a recitation of unrestricted verbs.

I think “alligator arms” would be a useful descriptor.  Football fans will recognize that phrase as describing a pass receiver running a passing route across mid-field who in the interest of self-preservation pulls back his extended arms to protect his ribcage just before being hit hard by a defender — and thus misses the catch. “He really alligator armed that catch,” the announcer might say.  This is sometimes referred to as short-arming the catch or having T-rex arms, as well.

Some might say that a classic example of alligator arms was the Federal Circuit decision in Electric Power Group, LLC v. ALSTOM SA, 830 F.3d 1350 (Fed. Cir. 2016), where the court distilled claim 12 from this:

12. A method of detecting events on an interconnected electric power grid in real time over a wide area and automatically analyzing the events on the interconnected electric power grid, the method comprising:

receiving a plurality of data streams, each of the data streams comprising sub-second, time stamped synchronized phasor measurements wherein the measurements in each stream are collected in real time at geographically distinct points over the wide area of the interconnected electric power grid, the wide area comprising at least two elements from among control areas, transmission companies, utilities, regional reliability coordinators, and reliability jurisdictions;

receiving data from other power system data sources, the other power system data sources comprising at least one of transmission maps, power plant locations, EMS/SCADA systems;

receiving data from a plurality of non-grid data sources;

1352*1352 detecting and analyzing events in realtime from the plurality of data streams from the wide area based on at least one of limits, sensitivities and rates of change for one or more measurements from the data streams and dynamic stability metrics derived from analysis of the measurements from the data streams including at least one of frequency instability, voltages, power flows, phase angles, damping, and oscillation modes, derived from the phasor measurements and the other power system data sources in which the metrics are indicative of events, grid stress, and/or grid instability, over the wide area;

displaying the event analysis results and diagnoses of events and associated ones of the metrics from different categories of data and the derived metrics in visuals, tables, charts, or combinations thereof, the data comprising at least one of monitoring data, tracking data, historical data, prediction data, and summary data;

displaying concurrent visualization of measurements from the data streams and the dynamic stability metrics directed to the wide area of the interconnected electric power grid;

accumulating and updating the measurements from the data streams and the dynamic stability metrics, grid data, and non-grid data in real time as to wide area and local area portions of the interconnected electric power grid; and

deriving a composite indicator of reliability that is an indicator of power grid vulnerability and is derived from a combination of one or more real time measurements or computations of measurements from the data streams and the dynamic stability metrics covering the wide area as well as non-power grid data received from the non-grid data source

into this:

The focus of the asserted claims, as illustrated by claim 12 quoted above, is on collecting information, analyzing it, and displaying certain results of the collection and analysis.

Electric Power Group, LLC v. ALSTOM SA, 830 F.3d at 1353.


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Which body of law do you find less clear — patent law or trademark law?

Wednesday, November 21st, 2018

During the oral argument for the recent Converse/Chuck Taylor case, Judge Dyk was asking appellant’s counsel about a nuance of the test for secondary meaning under trademark law.  It caused Judge Dyk to note that he thought patent law sometimes seems pretty clear when compared to some of the spongy concepts in trademark law.  That prompted laughter from the courtroom, as did Judge O’Malley’s follow-on comment that it was a scary thought.  You can listen to those comments here:



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Happy Thanksgiving!

Quote of the day: Ancora v. HTC

Friday, November 16th, 2018

Computers are improved not only through changes in hardware; “[s]oftware can make non-abstract improvements to computer technology . . . .” Enfish, 822 F.3d at 1335; see Finjan, 879 F.3d at 1304. We have several times held claims to pass muster under Alice step one when sufficiently focused on such improvements.

Ancora Technologies, Inc. v. HTC America, Inc. et al., Appeal No. 2018-1404 (Fed. Cir. Nov. 16, 2018).

Breckenridge troll seeking a new home

Thursday, November 15th, 2018

I’m still curious whether removal of the troll violates the Visual Artists Rights Act.


Heads up

Wednesday, November 14th, 2018

Quote of the day

Wednesday, November 14th, 2018

We recognize that the Board has subject matter expertise, but the Board cannot accept general conclusions about what is “basic knowledge” or “common sense” as a replacement for documentary evidence for core factual findings in a determination of patentability. Zurko, 258 F.3d at 1385-86. To hold otherwise would be to embark down a slippery slope which would permit the examining process to deviate from the well-established and time-honored requirement that rejections be supported by evidence. It would also ultimately “render the process of appellate review for substantial evidence on the record a meaningless exercise.” Id. at 1386 (citing Baltimore & Ohio R.R. Co. v. Aberdeen & Rockfish R.R. Co., 393 U.S. 87, 91-92, 89 S.Ct. 280, 21 L.Ed.2d 219 (1968)).

K/S HIMPP v. Hear-Wear Technologies, LLC, 751 F.3d 1362, 1366 (Fed. Cir. 2014) (Judge Lourie writing for the court; Judge Wallach forming the second member of the panel majority; Judge Dyk dissented).

Rule 36 Judgments for the Court of Federal Claims a rarity

Tuesday, November 13th, 2018

Updated 11/15/18

It is interesting how rarely the Federal Circuit has issued Rule 36 judgments in appeals from the Court of Federal Claims in the last two months — only two.  The CAFC issued opinions in appeals from the CFC in the ratio of 8 opinions to 1 Rule 36 judgment over the last two months.


In contrast, the court issued ten Rule 36 judgments in appeals from district courts over roughly the same period.  The CAFC issued opinions in appeals from district courts in the ratio of 7 opinions to 10 Rule 36 judgment over the last two months.


And, in the last two months, the court has issued sixteen Rule 36 judgments in appeals from the PTO. The CAFC issued opinions in appeals from the Patent Office in the ratio of 19 opinions to 16 Rule 36 judgments over the last two months.

That breaks down to:

CFC:  8:1

District court:  7:10

PTO:  19:16.

Don’t give up!

Monday, November 5th, 2018

The determination of this little bear cub kind of reminds me of the determination of the patent bar to accomplish patent eligibility reform.

There have been many ups and downs in the past  . . . but, I think we will finally get to the top of the mountain.