And this "decision" only affirms the holding, not the reasoning. So
I still agree with the EFF attorney whose statement you quoted a few articles
ago, namely, this decision just doesn't provide any guidance whatsoever and just
muddies the water further. So, at this time, I think your excitement is
misplaced, and that the case may be sui generis.
With respect,
I suggest that the case is not sui generis. Because the facts of the
case and the issues are surely similar if not almost identical to those relating
to a host of patents and patent claims that are prosecuted at the USPTO and
litigated in Federal courts. And, amongst a lot else, the Lourie opinion at
least deals explicitly with the question as to whether or not Beauregard
claims are patent-eligible, and declares that (at least when the associated
method is not patent-eligible) such Beauregard claims do not acquire
patent-eligibility by virtue of being ostensibly drawn to a
“computer-readable medium”. (Rader and Moore do not even discuss
their interpretation of the law on this question, on the pretext that Alice
Corporation conceded that the patent-eligibility of the Beauregard claims
is dependent on that of the method claims.). Also the Alice patent family
exhibits a collection of patent claims where the ‘system’ claims are
little or nothing more than translations of the accompanying method claims. In
such cases, where the system claims add little or nothing to the method claims,
do the method claims, system claims (and Beauregard claims) stand or fall
together with regard to patent-eligibility (as the Lourie group plus Linn,
O'Connor and Newman argue)? Or can the system claims be patent-eligible under
the Alappat doctrine that claims that a computer plus software equals a
special machine distinct from the general-purpose computer, and thus potentially
satisfying the ‘novelty’ and ‘nonobvious’ requirements
expressed in sections 102 and 103 of the patent statute?
At least as
significant, in my reading, is the fact that the Lourie opinion accepts,
expounds and applies what is surely binding Supreme Court precedent established
in Mayo v. Prometheus to the method claims. In contrast, Rader and Moore
basically refuse to accept and apply the binding Mayo precedent with
regard to the disposition of the method claims, and deem the method
claims to be patent-ineligible not on the basis that they add to an abstract
idea (i.e. escrow) nothing but routine, conventional steps, but instead deems
these claims patent-ineligible on the grounds that a bare implied requirement
that the shadow records be computer-implemented, without more, does not take
these claims beyond the domain of abstract ideas. And Rader, Moore, Linn and
O'Connor tell the Supreme Court in no uncertain terms that, if the words of
Justice Breyer's opinion for a unanimous Supreme Court are interpreted as Judge
Lourie interpreted them, then the disposition of Mayo v. Prometheus by
the Supreme Court is incompatible with the fundamental principles of post-1952
patent law, as understood by Rader, Moore et al.
The Lourie opinion
goes a few steps further. I looked at the wording on Justice Breyer's
Mayo opinion, and it seems that the precedent set by Mayo is
worded so that it is only binding on the disposition of process or method
claims. Lourie and the judges that joined him applied the Mayo logic to
the system and method claims, on the ground that these claims stand or fall
together. But, at least on the basis of a cursory re-examination of the
Mayo opinion, this is not required by the obligation of respecting
binding precedent.
In CLS v. Alice, the Federal Circuit admit
that the precedents set by the three-judge panels with regard to
patent-eligibility issues under section 101 are inconsistent and contradictory,
and that the Federal Circuit are unable to resolve their differences en
banc to arrive at a common jurisprudence. The opinions, and especially
those of the dissenting justices, are surely written for the eyes of the Supreme
Court justices. Why else would the judges of the Federal Circuit write such
substantial opinions, when the opinions will not be binding on subsequent
courts? Rader and Moore are trying to set out the belief system of the
disciples of Judge Rich, in what seems to be a clear attempt to persuade the
Supreme Court to change course and follow the teachings of Judge Rich.
Associations of intellectual property lawyers in cases such as AMP v.
Myriad have been setting out many of these doctrines in briefs that do not
appear to have impacted on the thinking of the Supreme Court
justices.
On these grounds, I would predict that Alice v. CLS
will be the major patent case before the Supreme Court in October Term 2013. [ Reply to This | Parent | # ]
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Let's wait and see.
If he is an honourable man he will have advocated fiercely for his client,
regardless of his personal beliefs (at least, that would be the case in American
jurisprudence).
Equally, if he is an honourable man he will not have been that impressed
privately with Lemuelsen's antics.
And if he is an honourable man, that will have given him a real education into
the (mis)workings of the patent system. He *could* be a valuable ally.
After all, haven't we been been cheering Jacobs in the SCOG case, then booing
him in the Oracle case? We cheered Boies in the MS antitrust case, then booed
him in the SCOG case.
Lawyers are paid (and expected) to do what their client tells them. Judges have
more leeway to do what is right (whatever that is). All being well, Judge
Taranto will be on our side, when Lawyer Taranto did what he was paid to do.
Cheers,
Wol[ Reply to This | Parent | # ]
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