Patent Riffs and Links: Judge Plager on Alice/101

“Claims 15–18 are directed to an abstract idea: the presentation of two sets of information, in a non- overlapping way, on a display screen. The claimed ‘atten- tion manager, broadly construed as any ‘system for producing that result, is not limited to a means of locating space on the screen unused by a first set of displayed information and then displaying the second set of infor- mation in that space. The claim limitations for accessing, scheduling, and then displaying the second information set are conventional functions stated in general terms and do not further define how the attention manager segre- gates the display of two sets of data on a display screen. Considered as a whole, the claims fail under § 101’s abstract idea exception because they lack any arguable technical advance over conventional computer and net- work technology for performing the recited functions of acquiring and displaying information.”

Abstract – “The claims were directed to an abstract idea: presenting two sets of information, in a non-overlapping way, on a display screen. The claims were result-centric. The patent did not explain how the claimed functionality was to be accomplished. The claimed instructions were recited at a high level of generality and did not impose meaningful limitations that would improve a computer as a tool.”

Interval Licensing v. AOL — Judge Plager’s Concurring Dissent | PATENTS4LIFE
“This concurrence-dissent picks up steam, as Plager turns to the American Heritage Dictionary for a working definition of “abstract idea”: “An idea by itself is ‘[s]omething such as a thought or conception that is the product of mental activity.’ The definitions of ‘abstract’ include…[n]ot applied or practical; theoretical.’ An idea, whether abstract or not, is something that lives in the interstices of someone’s brain, a psychophysiological area not fully understood to this day. And ideas can have an infinite range of abstractness, if by that we imply concreteness…How do we pick the line where the articulation and explication of an idea is sufficiently concrete to be ‘non-abstract’ but not so much as to be ‘generic and conventional’?…There is no single, succinct, usable definition anywhere available [from 101 cases in the Fed. Cir. or the S. Ct.]…It cannot be done except through the use of equally abstract terms.”

I don’t enjoy typing that much or I would reproduce all 17 pages of this totally engaging essay. Plager argues that the “‘abstract ideas’ idea, cannot function as a valid rule of law” because it fails to predict how courts will decide future cases…from the viewpoint of decisional law, the ‘abstract ideas’ idea falls short in the sense of providing a trial judge with confidence that the judgment will be understood by judges who come after, since only judges who have the final say in the matter can say with finality that they know it when they see it.”

Interval Licensing LLC v. AOL, Inc. (Fed. Cir. 2018) | Patent Docs
“Judge Plager then fires a shot: ‘[t]he ‘abstract ideas’ idea, when used for denying a claimed invention’s patent eligibility either before or after a patent is issued, cannot thus function as a valid rule of law.’ Making an analogy to the I-know-it-when-I-see-it notion of obscenity, he writes: ‘the ‘abstract ideas’ idea falls short in the sense of providing a trial judge with confidence that the judgment will be understood by the judges who come after.’ … Judge Plager then makes an analogy between the notion of an inventive concept and similar “inventive requirements” that were eliminated from the § 103 obviousness inquiry by the 1952 Patent Act … Finally, Judge Plager focuses on recent criticism of Alice from his colleagues, Judges Linn and Lourie, as well as academics, commentators, and the former head of the USPTO … Judge Plager then encourages district courts to defer § 101 determinations until after challenges under §§ 102, 103, and 112 have been decided, and suggests that many of the so-called “bad” patents killed off under § 101 would fail to meet these other statutory requirements.”

Fed. Circ. Dissent Slams Alice In Apple, Google Patent Win | LAW360
“In a partial dissent from a decision handing Google, Apple, AOL and Yahoo a win in a patent infringement suit, a Federal Circuit judge on Friday slammed the U.S. Supreme Court’s 2014 Alice decision, expressing frustration with its definitions of ‘abstract ideas and ‘inventive concepts… U.S. Circuit Judge S. Jay Plager made clear that he wasn’t faulting the high court’s attempt to define an abstract idea, nor the Federal Circuit for following that formula — which led to a majority opinion affirming a lower court’s decision…”

Latest Federal Court Cases – July 2018 #4 | Schwabe, Williamson & Wyatt PC
“The patent in suit covered computer software with an ‘attention manager’ as part of its GUI. In a 22-page decision that follows the history of the abstractness doctrine and then applies the Supreme Court’s two-part test in Alice Corp. Pty. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014), the Court found the claims to be abstract. Of note to the reader is the 17-page opinion by Judge Plager concurring in the result. But in a scathing indictment of the entire ‘abstractness’ doctrine, Judge Plager ‘dissent[ed] from [the Federal Circuit’s] continued application of this incoherent body of doctrine.'”

Yes, Judge Plager’s admonishment that district courts stop applying Alice does matter. | MARKMANADVISORS
“Rather than allowing the current morass to proliferate, Judge Plager admonishes district courts to advise defendants pursuing early Alice motions that such questions will be deferred until resolution of other defenses available under the statute—including those under §§ 102, 103 and 112. Judge Plager is mindful of the difficulties involved with district courts taking up such a policy. He recognizes that it cannot be more than a recommendation, given that the Federal Circuit has limited power to instruct district courts how to manage their docket. And he recognizes that defendants will crow at the prospect of district courts deferring resolution of a defense to a litigation that can resolve the case sooner rather than later. Judge Plager offers some response to this, arguing if the patent is really weak, then the other defenses are likely to equally result in summary dismissal of the case.”

Federal Circuit Judge Calls for a Fix to the ‘Abstract Idea Mess: Part 1 | IPMVS
Checking it twice… “Judge Plager notes a first puzzle in that if the Court, after reviewing the claims in light of the specification, determines that the claims are abstract, how does the same court then read the claims again and conclude that they are ‘un-abstract. An even bigger puzzle is the history of ‘inventive concept. The 1952 Patent Act, written in large part by Judge Giles Rich, who dedicated his life to patent law, repeatedly explained that the new § 103 non-obviousness provision obviated the concept of ‘inventive concept. Now, 65 years later, ‘inventive concept is alive and well, even though Congress agreed that ‘inventive concept was unworkable by their adoption of the 1952 Patent Act.”

Judge Plager (Fed. Cir.) Suggests Construing Ambiguous Claims Against the Patent Holder | FOLEY
Throwback to a claim construction issue in 2013… “While Judge Reyna adopted the district court’s construction, and Judge Plager’s concurrence took the discussion in entirely different direction. In his view, the case was reflective of a deeper problem with the way that patents are drafted and examined. His concurrence states:

‘when claims are larded with terms such as ‘substantially,’ ‘preferentially,’ and ‘relatively,’ and when it takes four judges and some seventy pages of densely written opinions to find meaning in these terms, there is considerable evidence of a failure by the claim drafters to be clear and precise, and, beyond that, of a shortcoming in the patent examination process that permits claims to be so drafted. Sometimes such ambiguity is the result of sloppy drafting, and sometimes it appears that claims are drafted with a degree of indefiniteness so as to leave room to later argue for a broad interpretation designed to capture later-developed competition. The problem is exacerbated when, as here, there is a conflicting or indeterminate written description and prosecution history with regard to the claim terms at issue. Claim construction then becomes a game of crystal ball gazing, not resolved until this court’s gaze is announced.

Judge Plager noted that for all the length and detail of the patents’ specifications, ‘‘continuous microtextured skin layer’ does not appear one single time in the written description, despite the fact that it is used ‘nine times in the first eight claims. In such circumstances, Judge Plager argued that the claim should either be invalidated as indefinite, or construed against the patent holder. He pointed to Athletic Alternatives, Inc. v. Prince Mfg., Inc., 73 F.3d 1573, 1581 (Fed. Cir. 1996) as at least supporting the proposition that a narrow claim interpretation should apply when the specification does not supply a reason to adopt the broader reading. Ultimately, Judge Plager analogized the patent applicant to a tort claimant with the ‘last clear chance…to avoid this kind of unnecessary claim construction game, and voted ‘in favor of a competitor who should not have the risk of guessing wrong about what a claim term could possibly mean.

While Judge Plager did not speak for the majority, he appears to have given voice to a universal frustration of patent judges, and it is likely that district courts will consider his opinion when debating whether to adopt narrow claim constructions. Judge Plager’s concurrence may provide persuasive ammunition to those trying to invalidate or construe imprecise claims terms in the future.”