Tuesday, May 31, 2011

Supreme Court Affirms Knowledge Requirement for Actively Inducing Infringement

Today the Supreme Court decided Global-Tech Appliances, Inc. v. SEB S.A.  This case involved the level of knowledge required for actively inducing infringement under 35 U.S.C. § 271(b).  The Federal Circuit had imposed liability based on a standard of "deliberative disregard" of a "known risk" of a patent.  Since this standard was arguably less than actual knowledge, the losing party (Pentalpha) asked the Supreme Court to review the case.

The Supreme Court granted cert and affirmed, but on different reasoning than the Federal Circuit.  First, the Court held that § 271(b) requires actual knowledge (largely relying on the 1964 Aro II decision):
Accordingly, we now hold that induced infringement under §271(b) requires knowledge that the induced acts constitute patent infringement.
Slip Opinion at 10.  Second, the Court held that a very narrow form of "willful blindness" is sufficient to support such knowledge.  The Court first noted that "willful blindness" wasn't at issue in MGM v. Grokster:
But the Court had no need to consider the doctrine of willful blindness in that case because the Court found ample evidence that Grokster and StreamCast were fully aware—in the ordinary sense of the term—that their file-sharing software was routinely used in carrying out the acts that constituted infringement (the unauthorized sharing of copyrighted works) and that these acts violated the rights of copyright holders.  See 545 U. S., at 922–927, 937–940.
Slip Opinion at 13.  The Court defined "willful blindness" sufficient to impose liability for active inducement as follows:
While the Courts of Appeals articulate the doctrine of willful blindness in slightly different ways, all appear to agree on two basic requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.  We think these requirements give willful blindness an appropriately limited scope that surpasses recklessness and negligence.  Under this formulation, a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts. See G. Williams, Criminal Law §57, p. 159 (2d ed. 1961) (“A court can properly find wilful blindness only where it can almost be said that the defendant actually knew”). By contrast, a reckless defendant is one who merely knows of a substantial and unjustified risk of such wrongdoing, see ALI, Model Penal Code §2.02(2)(c) (1985), and a negligent defendant is one who should have known of a similar risk but, in fact, did not, see §2.02(2)(d).

The test applied by the Federal Circuit in this case departs from the proper willful blindness standard in two important respects. First, it permits a finding of knowledge when there is merely a “known risk” that the induced acts are infringing.  Second, in demanding only “deliberate indifference” to that risk, the Federal Circuit’s test does not require active efforts by an inducer to avoid knowing about the infringing nature of the activities.
Slip Opinion at 13-14 (footnote omitted).  The Court then reviewed Pentalpha's acts and concluded that it acted with such willful blindness; hence, the Court affirmed the outcome (but not the reasoning) of the Federal Circuit.  Seven Justices joined Justice Alito's majority opinion.  Justice Kennedy dissented, as he would have not adopted the above "willful blindness" test -- particularly since it will now apply to all criminal cases involving knowledge, which doubtless will be a surprise to the criminal defense bar, which didn't participate in this case.

Given the other possible outcomes, this seems to be a reasonably good result.

Thursday, May 26, 2011

Federal Circuit Greatly Narrows Inequitable Conduct Defense

In Therasense, Inc. v. Becton, Dickson & Co., the Federal Circuit greatly narrowed the inequitable conduct defense.   The Patently-O blog and Peter Zura's 271 blog have detailed writeups on the case, which the Federal Circuit heard en banc to clarify the law.

Monday, May 16, 2011

Facebook Keeps Winning Winklevoss Appeal

As previously reported, on April 11, 2011, Facebook won the appeal in the case brought by the Winklevoss brothers.  Not satisfied with the Ninth Circuit's decision, the brothers filed a petition for rehearing and/or rehearing en banc.  Today the Ninth Circuit issued an amended opinion that denied the petition for rehearing.  Unless the U.S. Supreme Court unexpectedly grants a petition for certiorari by the Winklevoss brothers, this should be the end of this case.

Friday, May 13, 2011

Letters You Wish You Were Clever Enough to Have Written

Dear Noah,
We could have sworn you said the ark wasn't leaving till 5.

Dear Twilight fans,
Please realize that because vampires are dead and have no blood pumping through them, they can never get an erection.
Enjoy fantasizing about that.

Dear Icebergs,
Sorry to hear about the global warming. Karma's a bitch.
The Titanic

Dear America,
You produced Miley Cyrus.
Bieber is your punishment.

Dear Yahoo,
I've never heard anyone say, "I don't know, let's Yahoo! it..." just saying...

Dear 2010,
So I hear the best rapper is white and the president is black? WTF happened?!

Dear Windshield Wipers,
Can't touch this.
That Little Triangle

Dear Rose,
There was definitely room on that Door for the both of us.
PS, you let go

Dear Fox News,
So far, no news about foxes.

Dear Michael Jackson,
You really should have became a Catholic Priest. The pay isn't great, but the benefits....
The Pope

Dear Scissors,
I feel your pain.....no one wants to run with me either.
Sarah Palin

Dear Osama Bin Laden,
United States

Dear World of Warcraft,
Thank you for ensuring my son's virginity.
Parents Everywhere 

Dear Batman,
What was your power again?

Dear Global Warming,
You're the best imaginary friend ever!
Al Gore

Dear Ugly People,
You're welcome.

Dear Mr. Gump,
WTF are you talking about? There's a little diagram on the lid that tells you EXACTLY what you're gonna get....

Dear Katy Perry,
I liked the kiss too.
Justin Bieber

Dear Martin Luther King Jr.
I have a dream within a dream within a dream within another dream.... What now?
Leonardo Di Caprio

Dear World,
Please stop freaking out about 2012. Our calendar ends there because the Spanish invaded our country and we got a little busy ok?
The Mayans

Dear Giant Spider on the Wall,
Please die. Please die. Please die. Please die. CRAP! Where did you go?

Rambus Liable for Spoliation, But Sanctions to be Determined

Today the Federal Circuit issued rulings on two Rambus spoliation cases, Micron v. Rambus and Hynix v. Rambus.  These cases arose out of Rambus' enforcement efforts on its semiconductor memory patents.  Two district courts had reached different results on whether Rambus' document destruction policies resulted in sanctionable spoliation.  Judge Robinson in Delaware had found spoliation and dismissed Rambus' infringement claims against Micron.  Judge Whyte in California did not find spoliation, and let the patent case go to trial.

The Federal Circuit:
(1) affirmed Judge Robinson's finding of spoliation but reversed her dismissal sanction because of inadequate findings on Rambus' bad faith, and remanded the case (including a determination of whether the appropriate sanction for spoliation should be short of dismissal);
(2) reversed Judge Whyte's finding of no spoliation, and remanded;
(3) in so doing, rejected the notion that the spoliation standard requires that litigation be "imminent":  It agreed with Hynix's (and Micron's) position:
Hynix argues that reasonable foreseeability incorporates no requirement of imminence of litigation, while Rambus argues that “to be reasonably foreseeable, litigation must be ‘imminent,’ at least in the sense that it is probable and free of significant contingencies.

. . .

In Micron II, this court held that that standard does not carry a gloss requiring that litigation be “imminent, or probable without significant contingencies.”

Hynix slip opn. at 12-13; see also Micron slip opn. at 12-14.  The Micron opinion noted that bad faith requires a showing of actual intent, and that a "should have known" standard was insufficient.

Sunday, May 8, 2011

Oral Argument in UMG v. Veoh and Columbia Pictures v. Fung

On May 6, 2011, I attended the Ninth Circuit Court of Appeals’ oral argument in two copyright cases, UMG v. Veoh and Columbia Pictures v. Fung, in a packed courtroom.  The cases were set for argument on the same day before the same three-judge panel.  However, the facts of the cases, and the trial court rulings, were quite different.  Links to audio recordings of the arguments are here and here; a summary of my notes of the hearing is below.

UMG Recordings v. Veoh is about UMG's claim that Veoh's user-generated content (UGC) web site contains copies of UMG's copyrighted music, and that Veoh should be secondarily liable when its users post allegedly infringing music on the Veoh site.  The trial court had granted summary judgment to Veoh on the grounds that it was immune from suit since it complied with the “safe harbor” notice-and-takedown procedures of the Digital Millennium Copyright Act, 17 U.S.C. § 512(c).  The case raises many of the same issues as the Viacom v. YouTube case presently pending in the Second Circuit Court of Appeals, where the trial court also granted summary judgment to YouTube's video service, which is similar in many respects to Veoh's service. 

EFF has case pages about the Veoh and YouTube cases, which includes the briefs (and EFF’s amicus brief supporting Veoh, that I co-authored); my previous posts about YouTube and § 512 are here, here, and here.  As noted below, the Veoh case also spawned two related appeals.

Columbia Pictures and other movie studios sued Fung over Fung’s web sites, including Isohunt.com, which linked to bit torrent files.  Since many of those files were of popular copyrighted movies, Columbia and other movie studios sued Fung and Isohunt for secondary copyright liability.  The trial court granted summary judgment for the studios, and Fung appealed.  The parties’ briefs are here, here, and here.

The Judges hearing the appeals were Judges Harry Pregerson, Raymond C. Fisher, and Marsha Berzon.  Judges Fisher and Berzon were the most active questioners.

Veoh Appeals
The oral arguments in Veoh tracked many of the differing arguments about the scope of the § 512 safe harbor that the content industries and that Internet-based companies have made in the past.  The former seek to narrow the safe harbor, and the latter seek broader protection.

Steve Marenberg of Irell & Manella argued first for UMG.  He expressed the content industries’ usual position that the trial court’s ruling would upend the balance between copyright owners and Internet service providers, so as to harm not only content owners but also “lawful” Internet services like iTunes.  Judge Fisher asked Marenberg if, under the DMCA, the copyright owner can send a takedown notice to an ISP asking for infringing content to be removed.  Marenberg replied that as a practical matter, they couldn’t: there is too much infringing content on the web, at dynamically changing locations.  Judge Fisher said that the panel had to deal with the language of the statute Congress wrote, and asked whether the 9th Circuit’s precedent in Perfect 10 v. ccBill put the burden on copyright owners to enforce takedowns.  Marenberg contended that ccBill’s language to that effect only dealt with the adequacy of takedown notices that were actually sent, not to the overall burden.

The discussion then turned to two or three other issues, primarily the meaning of (1) “by reason of the storage at the direction of a user” in § 512(c)(1), and (2) “control” in § 512(c)(1)(B)’s provision that an ISP is eligible for the safe harbor only if the ISP “does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.”  (To make this post flow more smoothly, I’ll go through both issues with both sides’ arguments; arguing for Veoh on the main appeal was Michael Elkin of Winston & Strawn.) 

Marenberg argued that “by reason of the storage at the direction of a user” was very narrow, and limited to “backshop” Internet infrastructure operations, including transmission.  In particular, he denied that “storage” included being able to download stored material.  (My view of this argument by the content industries is that they view the Internet as solely a black hole that can only swallow information.)  Judges Fisher and Berzon seemed skeptical of this argument, as had the trial court; Judge Berzon wanted to know what § 512(c) would ever apply to if Marenberg was right.  In response, Elkin pointed out that three different subsections of § 512(c) used the word “access,” meaning that viewing and/or downloading is clearly contemplated (see § 512(c)(a)(A)(iii), (c)(1)(C), and (c)(3)(A)(iii)).  Judge Berzon asked Elkin if there was a distinction between web sites that merely enhanced stored content to make the downloading experience more efficient, versus a web site that had its own software or distribution system; he gave examples of several cases that recognized different forms of downloading as both being “storage.”

On the “control” issue, Marenberg argued that § 512(c)(1)(B) merely codifed common law vicarious liability.  Judges Fisher and Berzon had problems with that interpretation.  Judge Fisher said that under vicarious liability principles, most commercial web sites would satisfy the “financial benefit” provision, and since in response to a takedown notice they could remove the content, that would satisfy Marenberg’s interpretation of the control provision.  Both Judges Fisher and Berzon told Marenberg that under his interpretation, the safe harbor would therefore go away: Judge Berzon told Marenberg his view of the statute “kind of blown the whole thing up.”  Elkin later responded that the DMCA rule is not the common law standard and that § 512(m) made it clear that an ISP has no duty to monitor its site for infringements.  If “control” means more than the ability to comply with takedown notices, then Veoh had no such control. 

Elkin had begun his argument by stating that the purpose of the DMCA was to facilitate the robust development of Internet commerce, education, and information in the digital age, and resulted in successful companies like eBay, Amazon, Google and Facebook.  Elkin stated that Veoh was a responsible company of the kind Congress had in mind when it created the DMCA: it complied with all takedown requests, used filtering to detect infringements, and cooperated with content owners.  He blamed UMG for never providing a list of allegedly infringing videos until a year into the litigation, which were taken down promptly.

After Elkin argued, three other attorneys argued for Veoh.  At that point I realized that there were two additional appeals being heard at the same time as the main appeal on the merits.  Another appeal was Veoh’s appeal of the trial court’s denial of Veoh’s request that UMG pay Veoh’s attorney’s fees.  Thomas Lane argued briefly for Veoh on that issue.  Lane said that Veoh made a good faith settlement offer under Federal Rule 68 of $100,000, and UMG responded that there weren’t enough zeroes.  Lane argued that Veoh’s subsequent victory made a fee award mandatory.

The third appeal involved UMG’s attempt to sue Veoh’s investors, for secondary liability just for investing in Veoh.  The district court had dismissed UMG’s complaint against the investors, and UMG appealed.  However, Marenberg only briefly mentioned that appeal in his initial argument.  Robert Badal of WilmerHale argued first for one group of investors.  He defended the district court’s decision as a correct rule about corporate governance.  In this case, Veoh’s investors did not assist in any direct infringement.

After Badal argued, a fourth attorney stood up, Glen Kulik, who represented a different group of investors.  People seemed surprised that Kulik was arguing, and Judge Berzon asked “who is this guy now?”  Kulik assured the court he wasn’t merely going to repeat Badal’s arguments.  What Kulik said was perhaps the most entertaining part of the day.

Kulik first addressed UMG’s argument that since the lawsuit had forced Veoh into the equivalent of bankruptcy, Veoh’s investors shouldn’t walk away “untroubled.”  Kulik pointed out that the investors lost tens of millions of dollars because UMG, the self-described “biggest and baddest guy on the block,” had forced Veoh out of business.  Next, Kulik said that the whole case involved policy concerns about the Internet itself.  He said that UMG doesn’t like the Internet, since it provides competition.  Before the Internet, UMG and other music companies had a monopoly on new music and videos.  With the Internet, new artists can market themselves and don’t need UMG, posing a big threat to UMG.  So UMG sued Veoh – a legitimate company with legitimate investors – but didn’t sue its management or directors individually for contributing to Veoh’s alleged infringement.  Rather, UMG sued the investors, to try to chill the flow of capital to Internet start-ups to stop future competitors.  He called UMG’s investor suit a “major threat to investment in this country.”  This prompted Judge Pregerson to ask if the case was dealing with “economic warfare”; Kulik responded that the case dealt with competing considerations between Internet commerce and copyright holders.

In sum, at least Judges Fisher and Berzon didn’t seem inclined to narrow § 512.  Obviously, we’ll have to wait for the opinion.

Columbia Pictures v. Fung

In this appeal, Ira Rothken argued for Fung and Isohunt; Paul Smith of Jenner & Block argued for Columbia and the other studio plaintiffs.

Most of this argument dealt with causation requirements for inducement.  Rothken said that the trial court found Isohunt liable for inducing infringement based on 15 messages sent in 2003, even though the alleged infringements they caused didn’t happen until 2007, and only 0.3% of the traffic to Isohunt’s site went to those messages.  In other words, Rothken argued that the Supreme Court’s Grokster decision only imposed liability for inducement based on “resulting acts of infringement,” and if Isohunt’s inducing messages were so far removed in time from any infringement, and if hardly anyone read them anyway, any infringement was not “resulting” from, or caused by, Isohunt.  Judge Fisher pointed out that Isohunt’s site prominently displayed links to obviously copyrighted works, such as “top 10 movies,” and asked why this wasn’t obvious solicitation of infringement.  As Judge Berzon put it, the system encouraged infringement.  In trying to get a summary judgment reversed, Rothken pointed out ways that causation was still lacking.

Paul Smith argued for a broad ruling on both inducement and causation.  He argued that the causation element is satisfied if someone intentionally created a service or device to facilitate infringement, and in fact people used it for that purpose.  He said that causation is simply the use of the site for infringing activity.  Judge Berzon responded that “we have this amicus brief from Google which is very nervous about that.”  Smith responded that Google wanted the 9th Circuit to overrule Grokster (which of course it can’t do).  Judge Berzon repeatedly asked Smith if a public communication was required for inducement; Smith claimed that Grokster had no such requirement. 

Rothken and Smith both briefly argued about whether Isohunt was entitled to the DMCA safe harbor and about the scope of the injunction.

This argument probably went better for Isohunt than I had expected, but Isohunt appears to have an uphill battle.

UPDATE:  Here's a post about these arguments from Techdirt.

Brilliant Street Fliers

Here are 13 "brilliantly pointless street fliers."  Don't miss "Free!  Take one!"  and "Have you seen these droids?"

Saturday, May 7, 2011

Sunday, May 1, 2011

Greg Aharonian on a Serious Problem With the Proposed Patent Reform Act

For the umpteenth year in a row, Congress is considering a patent reform act.  The bill this year has made more progress than past bills, and might actually pass.  The current bill doesn't have many of the controversial provisions that killed previous draft bills.

However, the current bill does appear to have one serious problem:  it changes the current U.S. law giving inventors a one-year grace period to file a U.S. patent application.  Briefly, under current law, inventors have one year after a public disclosure or sale to file their application without the public event counting as prior art against the application.  There are lots of advantages to this system: among other things, it gives inventors, their investors, and their attorneys sufficient time to develop their inventions and make sure they are worth the expense of a patent.  Even people such as myself who favor limits on patent protection think the grace period is a good idea.  In other words, it doesn't need any "reform."

But as several people have pointed out, the bill does try to fix something that isn't broken.  One of them is Greg Aharonian, a commentator on IP law who also is a prior art searcher.  His web site is http://www.bustpatents.com/.  Greg also publishes an email newsletter.  A recent email discusses problems with the proposed patent reform bill's changes to the grace period.  Greg has given me permission to publish his comments here -- they are worth reading.

[Post of Friday, April 29, 2011]
Good or bad, the U.S. grace period has had many important uses in the
history of entrepreneurs becoming successful.  So it is sad to see how
Congress is playing vague, semantic games with the grace period. Worse,
as many people are pointing out, with Hal Wegner and David Boundy
leading the way, is that one goal of patent reform is to TOTALLY destroy
all aspects of the U.S. grace period.  If this crap passes with the vital
support of the AIPLA, inventors will have to remain completely secret
until ALL of their patents are filed.  Which is impossible.  Which is
the goal.  Because under S.23, as supported by the House Judiciary
committee, pretty much any public disclosure kills your patent rights.

Which will ending up KILLING Americans!  How you ask, if you are still
reading this?  That's to come, but first some more hysterics:

S.23 must not be allowed to pass - because its grace period changes will
lead to the deaths of many Americans. S.23 doesn't want progress - it
wants death (you have to solve Medicare/Medicaid problems somehow). S.23
is a threat to U.S. national security, in that it will cause more deaths
than hundreds of planes hitting buildings.  If S.23 passes, part of the
PTO becomes a DEATH PANEL.

So how does S.23's grace period lead to the deaths of Americans (don't
think I can pull this argument off, do you?).

Under S.23, you CANNOT obtain a patent if you do the following:

    January:    you invent a brilliant new idea
    April:        you publish a paper on your brilliant new idea
    July:        you publicly use / sell a few items based on idea
    December:    Under S.32, YOU CAN'T FILE A PATENT APPLICATION

because your public use/sale acts as prior art.  You can publish, but
can't use/sell.  That's the clear result of the current grace language of
S.23.  It is Flook Puke logic (Flook Puke ruling that a novel algorithm
is prior art to itself), i.e., a novelly-sold product is prior art to
itself - let's call it Grace DisGrace, the sister of Flook Puke.  If you
are not aware of this aspect of S.23, read the damn bill (and even worse
provisions).  You cannot call yourself ethical, and accept this aspect
of S.23.

The House, in its infinite honesty and lack of corruption, realized this
is outrageous, and in an April 12 Manager's Amendment, improved (but did
not fix) the S.23 language, allowing the following process more compatible
with current U.S. law (note: the House Judiciary committee, after being
paid a lot of money by lobbyists, killed this partial fix):

    January:    you invent a brilliant new idea
    April:        you publish a paper on your brilliant new idea
    July:        you publicly use/sell a few items based on the idea
    December:    Under HR 1249, you can file a patent application

But this now-dead change improves NOTHING in a competitive inventive space.  Because even this now-dead House amendment, and much more worse so, S.23 and its Grace Disgrace language, says NOTHING about a competitor selling your product after you publish.  That sale then becomes novelty-destroying prior art, as follows:

    January - Noble scientists invent a cure for all cancers
    April  - At an important cancer meeting, they announce
          their results to the world
    July    - Generic drug companies start producing the drug
    December  - The scientists drink themselves to a stupor because
              they can't apply for a patent on their discovery.

So what do the scientists do to defeat the death-encouraging grace period
of S.23?  They do something THAT LEADS TO THE DEATHS OF AMERICANS:

    January - Noble scientists invent a cure for all cancers
    February - They file a quick provisional
    November - They file a patent application
    December - At an important cancer meeting, they announce
          their results to the world

In that one year of secrecy, because of the evilness of S.23, MILLIONS OF AMERICANS DIE FROM CANCER because, even under testing conditions, they can't take advantage of the drug for that one year.  Even worse, S.23 may lead to even more Americans being killed:

    January  - Noble scientists invent a cure for all cancers
    February - They file a quick provisional (or not)
    July    - They won't tell investers more than is in the
                      provisional, so the investors won't invest.
    December - At an important cancer meeting, they sit on their
                      secret and wait eighteen months (they are
                      filing PCT) until they approach investors.

How many tax-paying, patriotic, Americans are going to die of cancer in those eighteen months?  MILLIONS, BILLIONS. (What, there aren't over a billion Americans?  Facts - please don't bother me).

More seriously, if patent reform passes with any of this language, the
reality is that many patent applicants, big and small, are going to have
to perfect their invention COMPLETELY, and file a 100 PERCENT, TOTALLY PERFECT, TOTALLY ANTICIPATING THE NEXT 30 YEARS OF CASELAW, patent application, before going public.  Because the day you go public, you are pretty much screwed from that date forward in terms of any priority matters, and any improvements.

Why the latter comment?  Once your initial disclosure is out there, any
additions or corrections are pretty much unpatentable under KSR, since
given your initial breakthrough, in the eyes of ignorant, contemptous
caselaw, everything else is pretty much predictably-obvious.  See, the
Supreme Court was paid to write KSR the way it did, not for reasons of
clarifying "obviousness" (which KSR doesn't even do), but rather for
reasons of being part of a longer term strategy tied into patent reform.
The only logic in KSR was the valuation of the decision that was sold.

So if you have an invention, make sure you have at least $15,000 to spare
in your pocket before you go public, because that is what it is going to
cost to get a real good patent application prepared by a good patent
prosecutor, with a few thousand dollars needed for your lawyer to guess
how the CAFC is going to change the rules after you finally file.

Now, I know all of my overseas PATNEWS readers outside the United States
are saying "Grow up, stop crying like a baby, and use the patent system
like the rest of us do.", because the goal of S.23 is unilateral patent
harmonization.  After all, the large companies, who have active foreign
patent practices, have already learned to patent in regimes with no
grace period.  To them, S.23 just simplifies matters a bit.  And that is
why they are happy to see PTO Director Kappos talking outside the U.S.
about how one goal of U.S. patent reform is unilateral disarmament
(whoops, I mean harmonization - the words look so Chamberlinianly similar)
of America's horrible, childish, nasty patent system.

No surprise.  S.23 is the "Patent Harmonization to Help Large U.S.
Multinationals" bill, and nothing else.  And such a gold may be in the
best interests of the United States.  Or not.  But at least let us be
honest about this gold of reform.  S.23, and to much the same extent,
HR.1249 is meant to hurt small and independent inventors.  Again, that
gold might be in the best interests of the United States.  Screw the poor,
use their old people for kindling (which also cuts down on Medicaid), and
whack the heads of any poor person smart enough to invent something that
progresses the arts and sciences who has delusionaly fantasies about

      (I am not even drinking tequila while writing this crap.)

And then, assuming you survive the gauntlet and get a patent issued under
the new harmonized system, I and my searching colleagues are there to
crush it to death (at least 80% of the time).  And what we don't crush
outright, is ground to a pulp in post-grant review, and if not so ground,
then quintiplily (is that a word?) re-guessed into 101- and 103-oblivion
by feral judges, who don't understand incoherent patent caselaw, let alone
any science or engineering.

S.23's destruction of the grace period - is un-American.  If there were
any real communists left in the world, I would call it a Commie-plot.
It pisses on the Constitution, and then uses the Constitution to soak
up BP's TEPCO irradiated oil.  (Geesh, how does Glenn Beck make millions
with such nonsense - what am I not doing right?).  Anyone know if there
is a potter's field in Middlesex, Vermont?


Other comments about this problem are here, here and here.