"Where there is no vision, the people perish: but he that keepeth the law, happy is he."
-- Proverbs 29:18, King James Bible (KJV)

Tuesday, November 18, 2014

Common Sense and Innovation Prevail in Ultramercial III: Is Federal Circuit Finally "Getting" the Supreme Court Patent Decision Reasoning in Alice etc.?

As written by James M. Singer, Fox Rothschild LLP, at Mondaq.com,

Federal Circuit Reverses Course In Ultramercial v. Hulu;
Finds Method Of Delivering Advertisements To Be An Abstract Idea

At Patently-O, Dennis Crouch posts on the Federal Circuit decision in

"Ultramercial III" at

Novelty in Implementation of an Abstract Idea Insufficient to Overcome Alice.

Daniel Nazer correctly cheers at the Electronic Frontier Foundation (EFF) in

Victory! Court Finally Throws Out Ultramercial’s Infamous Patent on Advertising on the Internet that:

"This is a big victory for common sense and innovation."


Due to the recent U.S. Supreme Court decision in Alice Corp. v. CLS Bank Int'l, 573 U. S. ___ (2014), the "Ultramercial III" case referred to above finds the Federal Circuit NECESSARILY reversing its path on a case in which it was twice previously and horrendously on the wrong side of understanding patent law.

Judge Lourie, who wrote the majority opinion in the latest and last Ultramercial decision,  reluctantly overturned the sinking ship of previous Federal Circuit patent decisions, a general patent-friendly reluctance he previously voiced in a previous Ultramercial concurrence:
"It is our obligation to attempt to follow the Supreme Court’s guidance in Mayo rather than to set forth our own independent views, however valid we may consider them to be...."
Judge Lourie -- a 1970 Temple Law School graduate -- will be 80 in January and it is surely high time that not only he but all other judges on the Federal Circuit acknowledge that they must follow U.S. Supreme Court precedents, a general jurisprudential and hierarchical truth presumably learned by every first-year law student in all law schools. That this kind of "sour grapes" judicial thinking about precedents still exists in higher court opinions among those who should know better is astonishing.

Judge Haldane Robert Mayer (J.D. 1971, Marshall-Wythe School of Law of The College of William and Mary) in concurring writes in his opinion what we consider to be the future of the patent law world, that:
"The Supreme Court has taken up four subject matter eligibility challenges in as many years, endeavoring to right the ship and return the nation’s patent system to its constitutional moorings.  See Alice, 134 S. Ct. at 2357 (concluding that “generic computer implementation” did not bring claims within section 101); Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2117–18 (2013) (“Myriad”) (concluding that claims covering naturally-occurring DNA segments were patent ineligible); Mayo, 132 S. Ct. at 1302 (concluding that claims describing a natural law but “add[ing] nothing of significance” to that law fell outside section 101); Bilski, 561 U.S. at 611 (concluding that a method for hedging against economic risk was a patent ineligible abstract idea).  Rejecting efforts to treat section 101 as a “dead letter,” Mayo, 132 S. Ct. at 1303, the Court has unequivocally repudiated the overly expansive approach to patent eligibility that followed in the wake of State Street, 149 F.3d at 1373.  See Bilski, 561 U.S. at 659 (Breyer, J., concurring in the judgment) (explaining that State Street “preceded the granting of patents that ranged from the somewhat ridiculous to the truly absurd” (citations and internal quotation marks omitted))."
That is correct.

Slowly, but surely, the sinking patent ship is being righted, even if it is against the reluctance of some Federal Circuit judges to follow judicial precedents and against the myopic reluctance of many legal beagles -- just read the comments at Patently-O -- to understand the enormity and importance of swinging the patent pendelum in exactly the oppposite direction of the last 60 years.

Most Popular Posts of All Time

Sky Earth Native America

Sky Earth Native America 1 :
American Indian Rock Art Petroglyphs Pictographs
Cave Paintings Earthworks & Mounds as Land Survey & Astronomy
Volume 1, Edition 2, 266 pages, by Andis Kaulins.

  • Sky Earth Native America 2 :
    American Indian Rock Art Petroglyphs Pictographs
    Cave Paintings Earthworks & Mounds as Land Survey & Astronomy
    Volume 2, Edition 2, 262 pages, by Andis Kaulins.

  • Both volumes have the same cover except for the labels "Volume 1" viz. "Volume 2".
    The image on the cover was created using public domain space photos of Earth from NASA.


    Both book volumes contain the following basic book description:
    "Alice Cunningham Fletcher observed in her 1902 publication in the American Anthropologist
    that there is ample evidence that some ancient cultures in Native America, e.g. the Pawnee in Nebraska,
    geographically located their villages according to patterns seen in stars of the heavens.
    See Alice C. Fletcher, Star Cult Among the Pawnee--A Preliminary Report,
    American Anthropologist, 4, 730-736, 1902.
    Ralph N. Buckstaff wrote:
    "These Indians recognized the constellations as we do, also the important stars,
    drawing them according to their magnitude.
    The groups were placed with a great deal of thought and care and show long study.
    ... They were keen observers....
    The Pawnee Indians must have had a knowledge of astronomy comparable to that of the early white men."
    See Ralph N. Buckstaff, Stars and Constellations of a Pawnee Sky Map,
    American Anthropologist, Vol. 29, Nr. 2, April-June 1927, pp. 279-285, 1927.
    In our book, we take these observations one level further
    and show that megalithic sites and petroglyphic rock carving and pictographic rock art in Native America,
    together with mounds and earthworks, were made to represent territorial geographic landmarks
    placed according to the stars of the sky using the ready map of the starry sky
    in the hermetic tradition, "as above, so below".
    That mirror image of the heavens on terrestrial land is the "Sky Earth" of Native America,
    whose "rock stars" are the real stars of the heavens, "immortalized" by rock art petroglyphs, pictographs,
    cave paintings, earthworks and mounds of various kinds (stone, earth, shells) on our Earth.
    These landmarks were placed systematically
    in North America, Central America (Meso-America) and South America
    and can to a large degree be reconstructed as the Sky Earth of Native America."

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