{"id":7059,"date":"2014-12-25T22:28:00","date_gmt":"2014-12-26T04:28:00","guid":{"rendered":"http:\/\/www.717madisonplace.com\/?p=7059"},"modified":"2014-12-25T22:28:00","modified_gmt":"2014-12-26T04:28:00","slug":"patently-inconsistent","status":"publish","type":"post","link":"https:\/\/www.717madisonplace.com\/?p=7059","title":{"rendered":"Patently Inconsistent"},"content":{"rendered":"

I was listening to the oral argument recording of B&B Hardware v. Hargis<\/span> and was struck by the opening lines of the argument:<\/p>\n

<\/p>\n

The Lanham Act contains only one concept of likelihood of confusion.\u00a0 That is why two tribunals in this case decided the same issue, and that is why issue preclusion is appropriate.\u00a0 Whether a court is considering registration or infringement or both at the same time, the statutory test is the same, whether the resemblance of the marks as used on particular goods would give rise to a likelihood of confusion or mistake or deceit.<\/span><\/p><\/blockquote>\n

It is uncanny how germane that analysis is to the argument over the \u00a0proper test for patent eligibility. \u00a0Namely, the Supreme Court has distorted the test for patent eligibility under 35 U.S.C. \u00a7101 into such a cockeyed farce that the meaning of invention under \u00a7101 is totally out of alignment with other sections of the Patent Act. \u00a0Under \u00a7\u00a7102, 103, 271, etc. an invention is assessed by looking at all claim limitations. \u00a0However, when it comes to \u00a7101, the Court has deviated by disregarding claim limitations as mere pre-solution or post-solution activity. Moreover, the Court has effectively regressed to a “gist of the invention” analysis that it previously repudiated in Aro I<\/span> and Diehr<\/span>.<\/p>\n

To modify the argument above and apply it to patent eligibility, one might say:<\/p>\n

The 1952 Patent Act contains only one concept of invention. \u00a0Whether a court is considering patent eligibility or infringement or both at the same time, the statutory test is the same, whether all<\/span> claim limitations are satisfied.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

I was listening to the oral argument recording of B&B Hardware v. Hargis and was struck by the opening lines of the argument: The Lanham Act contains only one concept of likelihood of confusion.\u00a0 That is why two tribunals in this case decided the same issue, and that is why issue preclusion is appropriate.\u00a0 Whether […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/7059"}],"collection":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=7059"}],"version-history":[{"count":5,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/7059\/revisions"}],"predecessor-version":[{"id":7064,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/7059\/revisions\/7064"}],"wp:attachment":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=7059"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=7059"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=7059"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}