A three member panel of the esteemed Court of Appeals for the Federal Circuit (CAFC) have collaborated to imagine that a “computer-readable medium containing program instructions” that causes a computer system to carry out specific steps is somehow a “mental process”. In the process, the CAFC told would-be inventor John Pettitt that his Patent No. 6,029,154 is not actually an invention. Hopefully the patent owners will ask all of the CAFC judges to weigh in on a number of issues, including the panel’s outrageous construction of a patent claim reciting data processing of machine-generated, machine-exchanged information to include a purely “mental” process or using “pencil and paper.”
The opinion’s author, Judge Timothy Dyk, also once wrote that re-writing claim language to expressly state elements that were already incorporated by reference somehow changed the scope of the claim. Hopefully Judge Dyk will be unsuccessful in this new endeavor of convincing his fellow judges to adopt his illogical premises.
The case is Cybersource v. Retail Decisions, decided on August 16, 2011. Until the full CAFC convenes and restores some logic to decision-making, the opinion provides lower courts with guidance telling them to:
1. ignore claim language that inconveniently counsels against eradicating a patent owner’s rights, and
2. invalidate claims applying the useful claim construction tool known as reductio ad absurdum
Of course, the odds suggest that the full lineup of CAFC judges will decline the opportunity to reconsider Judge Dyk’s flawed argument, leaving on the US Supreme Court with the opportunity to, once again, bench-slap these judges silly. This, too, is unlikely.
So what does the opinion mean? For one thing, many of you will be receiving countless “client alerts” and other non-sense commentary from your outside counsel, sure to be riddled with disclaimers and restrictions suggesting their opinions are not necessarily opinions. But what does it mean in reality? In short, companies accused of infringing patents containing “method” claims and other claim types (e.g. systems or computer-readable mediums) will feel increasingly confident of their ability to invalidate patents on legitimate computer-implemented inventions. Willingness to avoid litigation will be decreased, which means patent owner returns will be diminished, ultimately squeezing margins from inventors. Taking longer to earn less always works to the inventor’s disadvantage. Financing continues to be available (don’t believe anyone who says this decision is an “NPE-killer”), but the buyers will always protect themselves, and NPEs will be more aggressive to compensate for any perceived change in position.
- Leave Patent Licensing To The Professionals (gametimeip.com)