The Supreme Court's "Superspecial" Kimble Opinion

Today, the Supreme Court released several opinions, including Kimble v. Marvel Entertainment. Kimble involves the question of whether a party may contract for payment of patent royalties after the patent's expiration. The opinion has attracted a great deal of attention -- not due to its answering this question in the negative and adhering to the precedent set in Brulotte v. Thys Co., 379 U.S. 29 (1964) -- but instead because of its numerous references to Spider-Man and superheroes. The case, after all, includes Marvel Entertainment as a party, and concerns "a toy that allows children (and young-at-heart adults) to role-play as 'a spider person' by shooting webs—really, pressurized foam string—“from the palm of [the] hand.'"

For example, in the concluding paragraphs of the majority opinion, Justice Kagan notes;

What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “SpiderMan,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”).

Coverage noting the references in Justice Kagan's majority opinion can be found here, here, here, and here.

Also of note is this paragraph:

As against this superpowered form of stare decisis, we would need a superspecial justification to warrant reversing Brulotte. But the kinds of reasons we have most often held sufficient in the past do not help Kimble here. If anything, they reinforce our unwillingness to do what he asks.

After a bit of searching, it appears that this is the first federal court opinion to use the word "superspecial." A few other opinions contain the hyphenated phrase, "super-special" -- often as part of a quotation -- but Kimble is the first to employ the single-word term. Kimble also appears to be the first Supreme Court opinion to use the term, "superpowered." Several opinions in the lower court have employed this phrase (see, e.g., Twentieth Century Fox Film Corporation v. Marvel Enterprises, Inc., 277 F.3d 253, 255 (2002) ("In 1963, Marvel began publishing a comic book series entitled 'X-Men,' featuring a group of young, superpowered mutants led by Professor X, an older, superintelligent leader who sought to train his students and to protect them from a hostile society.")). But Justice Kagan's majority opinion appears to be the first instance of the Supreme Court using this word.

Kimble concerns a technical subject. But due to Justice Kagan's marvelous writing and references, the opinion is a delight to read.

No Sanctions for Attorney Who Submitted Incomprehensible Certiorari Petition

From the Wall Street Journal Law Blog:

The Supreme Court on Monday declined to sanction a Washington, D.C., patent attorney who faced a rare high court sanction over a petition he submitted that was written in almost indecipherable jargon. 

As Law Blog reported earlier, the justices raised eyebrows in December when they demanded that Foley & Lardner LLP partner Howard N. Shipley show cause as to “why he should not be sanctioned for his conduct as a member of the Bar.” 

Supreme Court observers said they couldn’t recall the last time the nation’s highest court singled out a corporate attorney for possible punishment.

I blogged about this petition earlier, and noted that even though patent law can be complicated, the brief -- due to its awkward structure and use of symbols -- is virtually impossible to understand.

Shipley's attorneys described the brief in friendlier terms, characterizing it as "an unorthodox petition that clearly and faithfully reflects the views of the client, right down to the client’s favored locutions and acronyms employed in his other writings about the patent system."

How Not to Write a Petition for Certiorari

From Josh Blackman's Blog, I learned about the remarkably terrible petition for certiorari in Sigram Schindler Beteiligungsgesellschaft MPH v. Lee. Blackman notes that the Supreme Court has ordered the attorney for the petitioner to show cause why he should not be sanctioned. Will Baude points out that the petition's indecipherable nature may be due to inadequate supervision by the attorney on the case.

Both Blackman and Baude highlight the petition's mysterious question presented:

“Does the US Constitution, in legal decisions based on 35 USC §§ 101/102/103/112, 

• require instantly avoiding the inevitable legal errors in construing incomplete and vague classical claim constructions – especially for “emerging technology claim(ed invention)s, ET CIs” – by construing for them the complete/concise refined claim constructions of the Supreme Court’s KSR/Bilski/Mayo/Myriad/Biosig/Alice line of unanimous precedents framework,

or does the US Constitution for such decisions 

• entitle any public institution to refrain, for ET CIs, for a time it feels feasible, from proceeding as these Supreme Court precedents require – or meeting its requirements just by some lip-service – and in the meantime to construe incomplete classical claim constructions, notwithstanding their implied legal errors?”

Most commentators focus only on the first few pages. But the petition's first footnote hints that true incomprehensibility will soon follow:

This petition continues using terminology introduced by SSBG’s preceding petition, e.g. “classical technology / emerging technology claimed invention, CT / ET CI”, “∀…/….s =(for) any/all”. Most of the relevant information only referred to here is available on www.fstp-expert-system.com – often proof read or just with typos removed.

For several pages after that, the petition is awkward, yet mostly written without symbols and somewhat readable. Things don't get truly interesting until page seven:

121S.II/III] tell: “{∀SPL test}≡FSTP-Test”7.a). Thus, familiarity7.b) with the FSTP-Test8) pays. It tests, ∀interpretations/TT.0s of a CI, their inventive concept sets satisfying ∀necessary˄sufficient and precise legal criteria6) for CI’s passing its SPL test.

For SPL testing a CI, the FSTP-Test hence needs ∀TT.0s of CI ∀ their compound inventive concepts and ∀ their elementary inventive concepts – as recognized and input by the user. Its fully automatic guidance greatly sharpens his/her such cognition processes by forcing him/her – by prompting to input blindly trusted answers to ∀ questions of the FSTP-Test as to ∀ TT.0s of a CI – to iteratively identify ●)∀inventive concepts of TT.0 and to check ●) ∀ their necessary ˄ sufficient relations for their holding 6).

ftn 8) is the FSTP-Test from [121 8.b)], fixed 7.c) by test. 9 to model Alice concisely.

What is this FSTP-Test? The petition claims that it's simple to implement ("vastly trivial" to intuitively grasp, according to footnote seven). Footnote eight provides the process for understanding and applying the test:

The FSTP-Test comprises the steps 1)-10):
1) The FSTP-Test prompts the user to input
(a) ∀TT.i ∧ 0≤i≤I=|RS| ∧ 1≤n≤N=N(TT.0): BADi-crCin;
(b) ∀TT.0∧1≤n≤N justof: BAD0-crC0n is definite;
(c) S0::={BED0-crC0nk|1≤k≤K0n, 1≤n≤N}:
BAD0-crC0n=∧1≤k≤K0nBED0-crC0nk ∧ K0::=∑1≤n≤NK0n;
(d) ∀1≤k≤K0n ∧ 1≤n≤N justof: BED0-crC0nk is definite;
2) ∧ ∀ ϵ S0 for justof: their lawful disclosure;
3) ∧ ∀ ϵ S0 for justof: their definiteness under § 112.6;
4) ∧ ∀ ϵ S0 for justof: their joint enablement of TT.0;
5) ∧ ∀ ϵ S0 for justof: their joint independence;
6) ∧ ∀ ϵ S0
for justof: their joint KSR-nonequivalence: BED0*-inCik ∷= N ∀ 1≤k≤K0n ∧ 0≤i≤I; BED0*-inC0k ∷= A if BED0-inC0k ϵKSR posc;BED0*-inCik ∷= A BED0-inCik=KSR BED0-inC0k, 1≤i≤I;
7) ∧ for justof: by NAIO*) S0 is not an abstract idea only;
8) ∧ for justof: S0 contains a patent-eligible BED0-crC0nk;
9) ∧ for justof: S0 is a patent-eligible combination;
10) ∧ for justof: by NANO**) S0 is patentable on S0pat-el ⊆ S0.
*) The "Not Abstract Idea Only, NAIO" test prompts the user
1) for input&justof: the CI specification discloses a problem, P, to be solved by TT.0 of CI;
2) for input&justof: S0 alias TT.0 solves P;
3) for input&justof: P is not solved, if in S0 a BED0-inC0k is relaxed (i.e. the truth set of a BED0 inC0k is enlarged);

If 1)-3) apply, then <CI,S0> is “not an abstract idea only”. 

**) The "Not Anticipated And Not Obvious, NANO" test checks
of RS all its “anticipation combinations, AC0s” as to S0 [5,6]: 

1) It starts from the ‘anticipation(A0)/non-anticipation(N0)” matrix of FSTP-test.6, any one of the I+1 lines of which shows, by its K0 column entries, for i = 1,2,...,I, which of the peer TT.0 entries is anticipated/non-anticipated by a former one, and for i=0 is anted/non-anted by posc. 

2) It automatically derives from the AN0 matrix the set of
all {AC0} with the minimal number, Qplcs/0, of “N” entries.

Of course! Although I'm still not quite sure what "FSTP" stands for.

It should be noted that all of this seems to be the petitioner's legal argument. This is not a description of the "method for transmitting data in a telecommunications network and switch for implementing said method" (page 4 of the opinion below) that is the subject matter of the patent dispute, but it is the petitioner's suggested process for reasoning through patent disputes. The petitioner thinks that this process is so noteworthy that the entire petition seems devoted to discussing the process and urging the Supreme Court to adopt it.

Software Patents Before the Supreme Court

The Supreme Court has granted certiorari in Alice Corporation Pty. Ltd. v. CLS Bank, International.  Here is the Federal Circuit's opinion.  The SCOTUSBlog case file on the case is here.  Bloomberg.com reports here, and the Electronic Frontier Foundation weighs in here.

The issue before the Court is:

Whether claims to computer-implemented inventions – including claims to systems and machines, processes, and items of manufacture – are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101 as interpreted by this Court.

The EFF takes a favorable view of the cert. grant, noting that there is a problem of "low-quality" and "abstract" software patents.  Whether software is too much of an abstract idea to be patentable subject matter will likely be the crux of the issue, and it will be interesting to see how it turns out.

The Plow Cannon

Lowering the Bar posts about an 1862 patent for the "Plow Cannon."

There really isn't much more I can say, but here is part of the invention's description:

The object of our invention is to produce a plow equal, if not superior, in point of strength and lightness as to that implement as ordinarily made, and at the same time to combine in its construction the elements of light ordnance, so that when the occasion offers it may do valuable service in the capacity of both implements.

Unfortunately, I don't think that this device was ever in common use, so I doubt that it would receive much protection under the Second Amendment.

Jibber Jabber About Patenting DNA

Lyle Denniston reports here on the Supreme Court’s opinion in Association for Molecular Pathology v. Myriad Genetics, Inc.  The opinion’s text is available here.

I am not particularly well-versed in patent law, but the outcome seems agreeable to me.  Most importantly, it overrides the decision by Judge Sanders in Boston Legal, Season Three, Episode 21 (Tea and Sympathy) who ruled that a doctor could obtain a patent on blood that could cure itself of HIV.  The script for the episode can be found here.  Judge Sanders’ opinion and ruling was:

Truth be told, I couldn’t understand what the hell anybody was talking about in this case. It was clear to me that Mr. Griffin, as I said, was an ass. The idea of one person getting a patent on somebody else’s DNA—!  Well, you don’t have to be a senile old goat to be befuddled by that!  But the most confusing thing of all is the idea that AIDS  maybe can be cured, and progress is repeatedly being stalled by a  bunch of drug companies and scientists going for patents and  fighting over profits. I don’t doubt the sincerity of the doctor.  Legally, I suppose, he does have a patent, but I keep coming back to—this is Simon Griffin’s blood. And he’s an ass. I rule in favor of the doctor.  Adjourned.

Notably, Sanders played the “ass card,” meaning that this case was of low precedential value due to its easy distinguishability (not to mention the fact that it was a trial-level ruling).  It is also interesting to note that the Boston Legal case illustrates a scenario where getting a patent is not necessarily a profit-driven endeavor.  The doctor in the episode sought to patent his patient’s blood in light of the patient’s plan to sell his blood to the highest bidder.  The doctor’s main aim in patenting the blood was to ensure that nobody else could get a patent on the blood, and thereby ensure that a cheap, generally available drug could be made available.

Admittedly, the Supreme Court’s opinion will have a favorable impact on prices for some genetically derived cures.  And it would be naïve to think that most people who got ahold of patents on miraculous things would pursue the greater good rather than private profit.  But it is important to also keep in mind that the patent route may not necessarily always be the path of the villain.