Judge Plager’s Message to the Supreme Court on Patent Eligibility: The Emperor Has No Clothes

Judge Plager penned a rather long and eloquent dissent in last week’s Federal Circuit decision of INTERVAL LICENSING LLC v. AOL, INC., No. 2016-2502 (Fed. Cir. July 20, 2018).  I have reproduced the dissent by the former Dean of the Indiana University School of Law below:


PLAGER, Circuit Judge, concurring-in-part and dissenting-in-part.

Today we are called upon to decide the fate of some inventor’s efforts, whether for good or ill, on the basis of criteria that provide no insight into whether the invention is good or ill. Given the current state of the law regarding what inventions are patent eligible, and in light of our governing precedents, I concur in the carefully reasoned opinion by my colleagues in the majority, even though the state of the law is such as to give little confidence that the outcome is necessarily correct. The law, as I shall explain, renders it near impossible to know with any certainty whether the invention is or is not patent eligible. Accordingly, I also respectfully dissent from our court’s continued application of this incoherent body of doctrine.

The Three Exceptions

The majority opinion, after reviewing in detail the district court’s decision and the patent’s written description and claims, goes through the obligatory review of the history of 35 U.S.C. § 101, the statutory section entitled “Inventions patentable.” Under the statute a patent may be obtained for an invention that is a “new and useful process, machine, manufacture, or composition of matter.” This phrasing is often described as providing a wide and permissive scope for patent eligibility.[1]

However, as the majority opinion notes, any recourse to § 101 must take into account not only the words of the statute but also the Supreme Court’s judicially created three exceptions to the statute’s description of what is patent eligible. Of these three Court-created exceptions— `laws of nature, natural phenomena, and abstract ideas’— the one at issue in this case is the one that causes the most trouble: `abstract ideas.’

That `abstract ideas’ is the only one of the three at issue here is a critical point, in need of emphasizing. All too often courts discussing these three judicially created exceptions to patent eligibility lump them together, as if all three present the same set of issues to be conceptualized and analyzed.[2] They do not. `Laws of nature’ and `natural phenomena’ have understandable referents, and thus have proven more amenable to workable definitions, or at least a reasonable degree of boundary-setting, and thus are more amenable to analysis.[3]

However, when it comes to applying the concept of `abstract ideas’ to a challenged patent (or application for patent) as a distinct test of patent eligibility, the issues are different, and require close examination. The analytical structure which we now are to employ is provided by the Supreme Court’s recent teachings in Alice Corp. v. CLS Bank International.[4] (Alice is often linked at citation-time to an earlier case, Mayo Collaborative Services v. Prometheus Laboratories, Inc.;[5] that case did not turn on the `abstract ideas’ formula, and is an example of the blending that can cause analytical confusion.)

I. Abstract Idea(s)

The majority opinion, following the structure dictated by Alice, first steps through “Alice Step 1: Abstract Idea.” The court recites a bit of the history of the `abstract ideas’ idea from its origins in the 19th century, and then reviews the more recent cases that wander through it, lining the cases up as they explain themselves on both sides of the divide between good and ill. (In Amdocs (Israel) Ltd. v. Openet Telecom, Inc.,[6] I explained the reason for this evolved decision-by-example technique; the verbal nature of the distinctions drawn becomes quite apparent.)

The majority opinion concludes that “the recited claims are directed to an abstract idea because they consist of generic and conventional information acquisition and organization steps that are connected to, but do not convert, the abstract idea.” Maj. Op. at 18. This often-seen language is familiar from Alice. See Alice, 134 S. Ct. at 2359-60. It is interesting language—if “generic and conventional” is the same as `previously known,’ someone familiar with traditional patent law might think of the 1952 Patent Act’s § 103 and the nonobviousness principle—a point discussed later; but, following Alice, the majority opinion, as did the district court, ignores the Patent Act’s requirements and cites the current litany for abstractness.

But what makes an idea found in a claim an `abstract idea’? An idea itself by definition is “[s]omething, such as a thought or conception, that is the product of mental activity.”[7] The definitions of “abstract” include “[c]onsidered apart from concrete existence,” “[d]ifficult to understand; abstruse,” and “[n]ot applied or practical; theoretical.”[8] An idea, whether abstract or not, is something that lives in the interstices of someone’s brain, a psychophysiological area not fully understood to this day.[9]

And ideas can have an infinite range of abstractness, if by that we imply concreteness—for example, compare “I have an idea—let’s have hamburgers for dinner,” with “I have an idea—I am going to invent how to make time go backwards.”[10] How much of abstractness is a function of concreteness? How do we pick the line where the articulation and explication of an idea is sufficiently concrete to be `non-abstract,’ but not so much as to be `generic and conventional’? Does it help to phrase the notion as the difference between claiming a desired result and claiming how to produce that same result? Or are we just substituting one set of vague notions for the other, with the same line-drawing problem?

That the phrase `abstract ideas’ is a definitional morass can be seen in one simple fact—a search for a definition of `abstract ideas’ in the cases on § 101 from the Supreme Court, as well as from this court, reveals that there is no single, succinct, usable definition anywhere available. The problem with trying to define `abstract ideas,’ and why no court has succeeded in defining it, is that, as applied to as-yet-unknown cases with as-yetunknown inventions, it cannot be done except through the use of equally abstract terms.[11] As explained in Amdocs, the closest our cases come to a definition is to state examples of what prior cases have contained, and which way they were decided. But what anecdotal cases reveal, a definition does not make.

The `abstract ideas’ idea, when used for denying a claimed invention’s patent eligibility either before or after a patent is issued, cannot thus function as a valid rule of law. As a fundamental policy, a legal term such as `abstract ideas,’ if the exclusionary standards of § 101 are to function as a valid rule of law, must provide concise guidance for the future. In that sense, a rule of law is a prediction of how courts will decide future cases.[12] `Abstract ideas,’ like the term `obscenity,’ may provide a cultural consensus in a given instance regarding whether a past event qualifies, but it fails to provide the kind of specificity and clarity that makes it useful for future prediction of outcome. And from the viewpoint of decisional law, the `abstract ideas’ idea falls short in the sense of providing a trial judge with confidence that the judgment will be understood by the judges who come after, since only the judges who have the final say in the matter can say with finality that they know it when they see it.

II. Inventive Concept

Having determined the claims at issue to be directed to nothing more than `abstract ideas,’ the majority opinion, following the Alice analysis, segues to “AliceStep 2: Inventive Concept.” Here the court explores whether the invention’s claims, determined in Step 1 to be abstract, are not really abstract because they limit the abstractness by an `inventive concept.’ In the case before us, no such concept is seen; the trial court’s determination of fatal abstraction is affirmed.

A small puzzle—if a court, after reviewing challenged claims in light of their terminology and written description, determines the claims to be `abstract’ in Step 1, how can the same court be expected to determine on a second reading that the same claims have become `un-abstract’ via Step 2? Could it be that an `inventive concept’ cannot exist until the court reads the patent at least one more time? Perhaps courts cannot be expected to read the claims carefully enough the first time?

A bigger puzzle regarding the `inventive concept’ concept: Those who are familiar with the history of the Patent Act, when in 1952 the law of patenting was given a major statutory overhaul, will be the most puzzled. Is it the case that now, some 65 years later, we really have resurrected the concept of an `inventive concept’?[13]The late Judge Giles Rich, the grand old man of patent law, whose portrait hangs in the place of honor in the Federal Circuit courthouse—how can he rest in peace? He was one of the acclaimed authors of the new Patent Act. At the time he, along with many others, thought that the undefinable—truly abstract—concept of `inventive concept’ had been put into the dustbin of history by the specific criteria for a valid patent in the new Patent Act, specifically § 103, non-obvious subject matter.

Judge Rich wrote extensively on the point. See, e.g., Giles S. Rich, Laying the Ghost of the “Invention” Requirement, 1 APLA Q.J. 26 (1972); Giles S. Rich, The Vague Concept of “Invention” as Replaced by Sec. 103 of the 1952 Patent Act, 46 J. Pat. Off. Soc’y 855 (1964).[14] In his 1964 article, based on a speech he gave twelve years after the statutory changes were enacted, Judge Rich reviewed the long and sorry history during the 19th century of the “injection into the law of what has ever since been called the `requirement for invention.'” 46 J. Pat. Off. Soc’y at 860. “This proliferation of views on what did and did not amount to `invention’ went on for 100 years. We were enlightened with the view that `invention’ resulted from the exercise of the `inventive faculties’ and other circular reasoning.” Id. He attributed this development to an 1851 Supreme Court case, Hotchkiss v. Greenwood, 52 U.S. 248 (1851), and noted that “[a]s is usual with a `doctrine’ derived from a court opinion, the doctrine persists while the facts out of which it arose are forgotten.” Id. at 859-60.

Judge Rich bemoaned the fact that, even after the statutory enactment of § 103 of the Patent Act, some still used the meaningless `invention’ or `inventive requirement’ phrase. He concluded his article with a series of propositions to reinforce “that when 103 has been complied with, there is no further and different requirement called `invention’; that compliance with 103 is the policy judgment of Congress on how to bring the invention within the Constitutional purpose.” Id. at 875.

Without referring to this history, the Supreme Court in Alice instructed that we ask whether there is such structure or something in the patent claim(s) that recites an `inventive concept’ “sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Alice, 134 S. Ct. at 2355 (quoting Mayo, 566 U.S. at 73). Beyond the question of ultimate meaning of the `inventive concept’ phrase, other questions abound. When we search for this significantly more `inventive concept,’ are we limited to the limitations of a particular claim in the patent? If not limited to the limitations in the individual claim, then what? Do the written description and the scope of other claims in the patent come into play, as perhaps they did in Step 1?

And adding a little more complexity to the matter, the Supreme Court has recognized that “[a]t some level, `all inventions . . . embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.'” Id. at 2354 (quoting Mayo, 566 U.S. at 71). With that in mind, we are left to ponder at what level of abstraction do we focus—put another way, how deep into the `elements’ do we dig when we search for that which is not `abstract,’ or for that non-abstract combination that saves an otherwise `abstract idea’ patent claim?

When the `abstract idea’ notion appeared in the law back in the 19th century, the requirement for `invention’ in its many variants—currently `inventive concept’—was also part of patent law. Then, as now, it seemed logical that something claiming to be an invention should have something called an `inventive concept’ at its core. And as a literary construct that is unexceptional.

As a decisional construct for validation of a property right—a patent—the idea of a necessarily underlying `inventive concept’ proved unworkable. The concept provided no discernable boundaries for decision-making in specific cases, resulting in an incoherent legal rule that led to arbitrary outcomes. Judge Rich, who devoted his life to patent law, saw this clearly, and gave the Congress a workable alternative—nonobvious subject matter— which they adopted.

The modern Supreme Court inherited this body of formulaic doctrine, and we now expect the Court to make sense of it. That they have failed is less a commentary on their efforts than on the absence of recognition of the problem on the part of the lawyers and judges who continue to treat these doctrines as if they were gospel.[15]

The Emperor Has No Clothes

My purpose in this discussion is not to critique the Court’s handiwork, but rather to highlight the number of unsettled matters as well as the fundamental problems that inhere in this formulation of `abstract ideas.’ In the short expanse available in a court opinion (and in the reader’s patience), it is not possible for me to recite all the issues and all the problems with the current law of `abstract ideas’ and its `inventive concept’ offspring.

I do, however, want to go on record as joining my colleagues who have recently expressed similar views about the current state of our patent eligibility jurisprudence, and to incorporate by reference their wisdom concerning the matter. Judge Richard Linn, concurring and dissenting in Smart Systems Innovations, LLC v. Chicago Transit Authority,[16] critiqued at length the `abstract ideas’ idea, both in general and as specifically applied in that case. More recently, Judge Alan Lourie, concurring in the denial of en banc rehearing in Berkheimer v. HP Inc., and referring to the complex of issues in our current § 101 jurisprudence, wrote that “the law needs clarification by higher authority, perhaps by Congress, to work its way out of what so many in the innovation field consider are § 101 problems.”[17]

I welcome their attention to this—when two of our leading judges who have devoted their careers to the practice and explication of patent law publicly proclaim that there is a real problem, there is a real problem. I do not mean to suggest that they are the only two such judges on the court—to my knowledge, other than myself, they are the only two who have gone on record in such clear terms regarding the law of `abstract ideas.’

There is almost universal criticism among commentators and academicians that the `abstract idea’ idea has created havoc in the patent law. The testimonials in the blogs and elsewhere to the current mess regarding our § 101 jurisprudence have been legion.[18] There has even been a call for abolishing § 101 by the former head of the Patent and Trademark Office.[19]

This view is shared by many patent practitioners.[20] A § 101 defense is widely employed, and often successful. For example, in the period following Alice until April 30, 2017, one study reported that the federal courts invalidated patents on § 101 grounds in 330 out of 488 decisions. See Bilski Blog, #Alicestorm: April Update and the Impact of TC Heartland on Patent Eligibility (June 1, 2017).[21]According to the same report, the Patent Trial and Appeal Board has invalidated patents on § 101 grounds in 90 out of 92 covered business method review final written decisions. Id.

These defenses are a shortcut way for alleged infringers to try for a quick dismissal of the infringement charge on the grounds that the invention underlying the infringement suit was never entitled to a patent. If successful, it saves having to go to the effort of proving in a fulldress law suit one of the statutory invalidity defenses found in §§ 102, 103, and 112 of the Patent Act.[22]

Indeed, some of these shortcut cases now arrive on appeal following a trial court’s summary judgment, or in some cases, even following a judgment on the pleadings or motion for dismissal. This has the effect of ensuring a minimal record or virtually no record at all on which an appeal can sensibly be judged.[23]

There is little consensus among trial judges (or appellate judges for that matter) regarding whether a particular case will prove to have a patent with claims directed to an abstract idea, and if so whether there is an `inventive concept’ in the patent to save it. In such an environment, from the viewpoint of counsel for the defense, there is little to be lost in trying the § 101 defense. We are left with a process for finding abstract ideas that involves two redundant steps and culminates with a search for a concept—inventiveness—that some 65 years or so ago was determined by Congress to be too elusive to be fruitful. Is it any wonder that the results of this process are less than satisfactory?

It would not be useful, or even fair, to fault today’s Supreme Court for trying to find some way to decide what is an abstract idea, or at the least for trying to find a way to decide the question. Or to fault this court for doing its best to honor the Supreme Court’s formula, even when the results demonstrated that the test did not produce coherent, readily understandable, replicable, and demonstrably just outcomes. The Supreme Court inherited the `abstract ideas’ idea from cases decided at a time when it probably sounded reasonable and had little impact. With the rise of software and business method patents, the `abstract idea’ became a weapon of choice for summary execution of what many decried as `bad’ patents. The problem is that it does not distinguish good from ill in any coherent sense, and thus does not serve well either patent law or the public.

When the lawyers and judges bring to the Supreme Court a shared belief in the uselessness of the abstract notion of `abstract ideas’ as a criterion for patent eligibility, we can hope that the Court will respond sensibly. In light of the statutory criteria for patent validity established in the Patent Act, there is no need, and indeed no place in today’s patent law, for this abstract (and indefinable) doctrine. Something as simple as a declaration by the Court that the concept of `abstract ideas’ has proven unworkable in the context of modern technological patenting, and adds nothing to ensuring patent quality that the statutory requirements do not already provide, would remove this distraction from the salutary system of patent issuance and enforcement provided by the Congress in the 1952 Patent Act.

The problem with hoping for this solution is that there is no particular incentive for the Supreme Court to immerse itself again in this intellectual morass. The Court, unlike this court, is not called upon daily to address the consequences of an incoherent doctrine that has taken on a life of its own. It will take a special effort by the judges and the patent bar to gain the Court’s attention. Failing that, a legislative fix is a possibility, though waiting for that may be the ultimate test of patience.

In the interim, a district court in an appropriate case might choose to exercise control over its docket by instructing a defendant who raises an `abstract ideas’ § 101 defense that the court will defer addressing that defense until first having the issues in §§ 102, 103, and 112 addressed. This need not be viewed as offending existing law since the `abstract ideas’ test would remain in the case, as would the Alice process; only the timing would change.

There would be a shift in trial court process from the current notion, held by some, that a determination of patent eligibility under § 101 is necessarily the first thing to be decided in every case. That notion can still remain true for cases challenging a patent on laws of nature and natural phenomenon grounds; only because of the problems inherent in testing for `abstract ideas’ would the § 101 test be delayed until determinations are made under the statutory standards that Congress established.

What would be the consequences of such a procedural delay? Even a cursory look at the claims in our recent § 101 `abstract ideas’ cases suggests how many of those cases would just go away as soon as the well-understood statutory criteria are applied to the challenged claims, especially the question of whether the claimed invention is new or just a replay of prior art (see § 103). Those who would quail at the supposed burden this might place on the trial judges should remember that is what trial judges do. And besides, the trial judges have already started using an alternative along the same lines: many patent infringement suits are now being stayed by the trial courts when there is a reference of the patent eligibility and validity issues (depending on the kind of case) to the Patent Trial and Appeal Board under the expedited procedures of the America Invents Act.[24]

Whether this court should take the initiative and instruct the trial courts to follow such a procedure raises somewhat more difficult questions. We have generally left the case management of those courts to the courts themselves, or to the circuit courts of appeal to which they normally report. For these reasons among others, our court presumably should have little difficulty with respecting a district court’s decision about how best to manage its own docket.

Regardless of what other courts may do, an appellate court’s job is not only to decide the immediate case before it, but also to rationalize and regularize the law to be applied in future similar cases. Judge Rich believed that words have meaning;[25] years earlier Professor Wittgenstein expressed well that same thought: “What can be said at all can be said clearly, and what we cannot talk about we must pass over in silence. . . . The limits of my language mean the limits of my world.”[26]

This emperor clearly has no clothes; we need not wait for our children to tell us this.[27] The legitimate expectations of the innovation community, as well as basic notions of fairness and due process, compel us to address this § 101 conundrum.

[1] See, e.g., Bilski v. Kappos, 561 U.S. 593, 601 (2010).

[2] The Supreme Court itself is not always consistent. Compare id. at 601-02 (referring to the “three specific exceptions”) with Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 70 (2012)(referring to the three categories as constituting one “exception”).

[3] That does not, however, preclude controversy. See, e.g., Ariosa Diagnostics, Inc. v. Sequenom, Inc.,788 F.3d 1371, 1380 (Fed. Cir. 2015) (Linn, J., concurring), reh’g denied, 809 F.3d 1282 (Fed. Cir. 2015) (per curiam denial with concurrences by Judges Lourie and Dyk and a dissent by Judge Newman). But see Robert R. Sachs, Bad Science Makes Bad Patent Law—No Science Makes It Worse (Part I), Bilski Blog (Sept. 13, 2016), http://www.bilskiblog.com/blog/2016/09/bad-sciencemakes-bad-patent-law.html (arguing that the courts have failed to accurately define `laws of nature’).

[4] 134 S. Ct. 2347 (2014).

[5] 566 U.S. 66.

[6] 841 F.3d 1288, 1294-95 (Fed. Cir. 2016).

[7] The American Heritage Dictionary of the English Language 872 (5th ed. 2011).

[8] Id. at 7.

[9] Cf. John Medina, Brain Rules (2d ed. 2014).

[10] See, e.g., Dava Sobel, Longitude 34 (1st ed. 1995) (“Time is to clock as mind is to brain. The clock or watch somehow contains the time. And yet time refuses to be bottled up like a genie stuffed in a lamp. . . . [I]t flows as sand or turns on wheels within wheels, time escapes irretrievably . . . .”).

[11] For example, compare In re Bilski, 545 F.3d 943, 959 (Fed. Cir. 2008) (en banc) proposing `machine-ortransformation’ as the test, with Bilski, 561 U.S. at 604, indicating that `machine-or-transformation’ is one test, “a useful and important clue” and “an investigative tool” but not the exclusive test and offering nothing better. See also the several opinions in this court’s CLS Bank International v. Alice Corp., 717 F.3d 1269 (Fed. Cir. 2013) (en banc), the harbinger of the Supreme Court’s Aliceopinion.

[12] See Oliver W. Holmes, The Path of the Law, in Collected Legal Papers 167, 173 (1920) (noting that rules of law are “prophecies of what the courts will do in fact, and nothing more pretentious”); see alsoKarl N. Llewellyn, The Bramble Bush: Some Lectures on Law and Its Study 3 (1930) (“What these officials do about disputes is, to my mind, the law itself.”). But cf. Michael C. Dorf, Prediction and the Rule of Law, 42 UCLA L. Rev. 651, 653 n.6, 715 (1996) (suggesting that “the prediction model undermines the rule of law by over-emphasizing the role of individual judges”).

[13] Some authorities attribute the resurrection of `inventive concept’ to Mayo, and to Justice Stevens in his earlier opinion in Parker v. Flook, 437 U.S. 584 (1978). For the history buffs, see Jeffrey A. Lefstin, Inventive Application: A History, 67 Fla. L. Rev. 565, 572-77 (2015).

[14] See also In re Bergy, 596 F.2d 952, 959-64 (CCPA 1979), vacated in part sub nom. Diamond v. Chakrabarty, 444 U.S. 1028 (1980), and aff’d sub nom. Diamond v. Chakrabarty, 447 U.S. 303 (1980); Giles S. Rich, Why and How Section 103 Came to Be, in Nonobviousness—The Ultimate Condition of Patentability 1:201 (John F. Witherspoon ed., 1980); Giles S. Rich, Principles of Patentability, 28 Geo. Wash. L. Rev. 393 (1960).

[15] See Amy L. Landers, Patentable Subject Matter as a Policy Driver, 53 Hous. L. Rev. 505, 517-18 (2015) (“Like an ice sculpture that is shaped by the parts that have been chipped away, the legal definition of invention is shaped by its exceptions. Decisions lack clarity. Their reasoning rests heavily on a limited field of precedent that is, in turn, written in opaque terms during a different technological era.” (footnote omitted)), and sources cited therein.

[16] 873 F.3d 1364, 1376 (Fed. Cir. 2017) (Linn, J., concurring-in-part and dissenting-in-part).

[17] 890 F.3d 1369, 1374 (Fed. Cir. 2018) (Lourie, J., concurring in the denial of rehearing).

[18] Regarding patent blogs, see just about any issue of Law360; regarding the innovation community, see, e.g., Intellectual Prop. Owners Ass’n, Section 101 Legislation Task Force, Proposed Amendments to Patent Eligible Subject Matter Under 35 U.S.C. § 101 (2017), http://www.ipo.org/wpcontent/uploads/2017/02/20170224_IPO-101-TF-Proposed-Amendments-and-Report_final.pdf.

[19] See Ryan Davis, Kappos Calls for Abolition of Section 101 of Patent Act, Law360 (Apr. 12, 2016), http://www.law360.com/articles/783604/kappos-calls-forabolition-of-section-101-of-patent-act.

[20] See, e.g., Peter Leung, The Federal Circuit’s Section 101 Uncertainty, Managing Intellectual Prop. (Sept. 29, 2015) (“Frustrated IP practitioners are hoping the court will soon change from telling them what is not eligible to providing some guidance on what is.”), http://www.managingip.com/Article/3491780/Latest-News-Magazine/The-Federal-Circuits-Section-101-uncertainty.html; Ryan Davis, Major [Companies], IP Groups Call For Clearer USPTO Alice Rules,Law360 (Nov. 2, 2015), https://www.law360.com/articles/722015/major-cos-ip-groups-call-for-clearer-uspto-alice-rules.

[21] http://www.bilskiblog.com/blog/2017/06/alicestormapril-update-and-the-impact-of-tc-heartland.html.

[22] See Paul R. Gugliuzza & Mark A. Lemley, Can a Court Change the Law by Saying Nothing?, 71 Vand. L. Rev. 765, 777 n.70 (2018), quoting Saurabh Vishnubhakat, The Antitrusting of Patentability, 48 Seton Hall L. Rev. 71, 104 (2017) for the proposition that “`[c]ourts’ use of subject-matter eligibility as a shortcut to other patentability requirements appears to offer significant savings in decision cost,’ but that `these savings likely come at the expense of higher error costs.'”

[23] But see Berkheimer v. HP Inc., 881 F.3d 1360, 1369 (Fed. Cir. 2018) (observing that “[w]hether something is well-understood, routine, and conventional to a skilled artisan at the time of the patent is a factual determination”); Aatrix Software, Inc. v. Green Shades Software, Inc., 882 F.3d 1121, 1128 (Fed. Cir. 2018).

[24] See Harness Dickey, A Look at Forty-Five Months of Inter Partes Review Proceedings Before the United States Patent and Trademark Office, http://iprpgr.com/wp-content/uploads/2016/08/IPR-PGR-Report-Vol-14.pdf (Aug. 24, 2016) (finding that 61% of all contested requests to stay were granted from September 16, 2012 to June 16, 2016 in the inter partes review context); Morgan Lewis, 2017 PTAB Digest: The Latest Trends and Developments in Post-Grant Proceedings, at 26, https://www.morganlewis.com/-/media/files/publication/report/ptab-post-grant-proceedings_fin_screen.ashx (2017) (estimating that 58% of all contested requests to stay were granted as of June 1, 2016 in the inter partes review context and that 61% of all contested requests to stay were granted in the same period in the covered business method review context).

[25] Giles S. Rich, Escaping the Tyranny of Words—Is Evolution in Legal Thinking Impossible?inNonobviousness—The Ultimate Condition of Patentability 3:301.

[26] Ludwig Wittgenstein, Tractatus Logico-Philosophicus, Preface at 3, Proposition 5.6 (1922).

[27] See Hans Christian Andersen, The Annotated Hans Christian Andersen 3-16 (Maria Tatar, ed., trans., & contributor, Julie Allen, trans. & contributor, 1st ed. 2008).

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