"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."

Absolutely.

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.

Millennials Shaking Up Legal Profession as Digital World Confronts More Traditional Views

Claire Bushey at Crain's Chicago Business reports on
How millennials are shaking up the legal profession.

The amazing thing is not that this is happening.
The amazing thing is that it is happening so late
-- years AFTER the applicable technology has been in place.

On the other hand, when push comes to shove,
nothing beats personal contact,
regardless of the digital tech available.