Patently Strategic - Patent Strategy for Startups
Patently Strategic - Patent Strategy for Startups
From Alice to Axle: IP Uncertainty for the Innovation Economy
In today’s episode, we’re discussing a recent court decision that judges have said could threaten "most every invention for which a patent has ever been granted", turning the patent system into a "litigation gamble."
Dr. David Jackrel, President of Jackrel Consulting, leads a discussion into American Axle’s recent bid to have the Supreme Court overturn a lower court decision that invalidated the company’s patent in a closely followed legal battle with rival Neapco Holdings. This case offered a much anticipated opportunity to more broadly clarify patent eligibility in a time where many believe that court precedent has undermined the U.S. patent process and, in the words of retired U.S. Court of Appeals Chief Judge Paul Michel, “confused and distorted the law of eligibility”, making it an “illogical, unpredictable, chaotic” mess. Critics of these rulings and the resulting present state of IP law claim that the confusion and inconsistency has led to courts canceling many patents that should be protected. The Solicitor General has stated that problems arising from the application of Section 101 have “made it difficult for inventors, businesses, and other patent stakeholders to reliably and predictably determine what subject matter is patent eligible”.
Despite cries for help and urges to provide clarification from multiple presidential administrations, the Solicitor General, members of Congress, the Federal Circuit Court, IP bar associations, and the Patent Office, the Supreme Court refused to hear this case, leaving many inventors and industries in limbo since as a USPTO spokesperson said after the ruling, innovation "cannot thrive in uncertainty."
David and our all star patent panel discuss the case law, its implications, how present statute is being conflated and taking section 101 well beyond its gatekeeping function, and in their analysis of the American Axle patent, provide some great tips that may have changed American Axle’s present fate – and can hopefully improve your odds of success if approached intentionally at the drafting stage.
David is joined today by our always exceptional group of IP experts including:
⦿ Dr. Ashley Sloat, President and Director of Patent Strategy here at Aurora
⦿ Kristen Hansen, Patent Strategist at Aurora
⦿ David Cohen, Principal at Cohen Sciences
⦿ Arman Khosraviani, Patent Agent and Former U.S. Patent Examiner
⦿ Ty Davis, Patent Strategy Associate and
⦿ Dr. Sophia Hsin-Jung Li, Patent Strategy Fellow
** Resources **
⦿ Show Notes
⦿ Slides
** Follow Aurora Consulting **
⦿ Home
⦿ Twitter
⦿ LinkedIn
⦿ Facebook
⦿ Instagram
And as always, thanks for listening!
Correction Update: This recording refers to Chief Judge Moore as "he". This is not the correct pronoun for Justice Moore. Our host did look into this pre-recording, but unfortunately misspoke in real time. Apologies to Chief Judge Moore.
WEBVTT
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Good day, and welcome to the Patently Strategic Podcast, where we discuss all
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things at the intersection of business, technology, and patents.
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This podcast is a monthly discussion amongst experts in the field of patenting.
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It is for inventors, founders, founders, and IP professionals alike,
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established or aspiring. In today's episode, we're discussing
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a recent court decision that judges have said could threaten most every invention
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for which a patent has ever been granted, turning the patent system into a
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litigation gamble. In this month's episode, Dr. David Jackrel,
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president of Jacques Consulting, leads a discussion into American Axle's
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recent bid to have the Supreme Court overturned a lower court decision
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that invalidated the company's patent in a closely followed legal battle
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with rival Nico Holdings. This case offered a much anticipated
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opportunity to more broadly clarify patent eligibility
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in a time where many believe that court precedent has undermined the US.
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Patent process and, in the words of retired US. Court of Appeals Chief Judge Paul
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Michel, confused and distorted the law of eligibility, making it
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an illogical, unpredictable, chaotic mess.
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Critics of these rulings in the resulting present state of IP law,
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claim that the confusion and inconsistency has led to course
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canceling many patents that should be protected. The Solicitor General has
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stated the problems arising from the application of Section 101 have
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made it difficult for inventors, businesses, and other patent stakeholders to
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reliably and predictably determine what subject matter is patent
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eligible. Despite cries for help and urges to provide
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clarification from multiple presidential administrations, the Solicitor
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General, members of Congress, the Federal Circuit Court,
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IP bar associations, and the Patent Office, the Supreme Court
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refused to hear this case, leaving many inventors and industries
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in limbo since, as the USPTO. Spokesperson said after the ruling,
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innovation cannot thrive in uncertainty. I want to pause
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for just a second and reflect on the fact that these people are using this
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language. You typically don't see these kinds of animated responses
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and blunt warnings from folks in and around this field. On this
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podcast, we err on the side of under sensationalizing, since there's
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plenty of the opposite available literally everywhere else you turn.
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This issue is a big deal. And these aren't just firmly twisted knickers.
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These are serious people using very strong language.
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Investing in innovation is a long game, and one that requires some basic
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level of predictability and stability around idea protection.
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All right, so beyond this being left unresolved by the Supreme Court,
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there's also the unfortunate precedent that may now very well seep
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into industries once believed to be immune from these subject matter limitations.
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Prior to this case, the subject matter eligibility problem was primarily
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confined to software and biotech. It was widely understood
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that physical products and their manufacturing were implicitly exempt from
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being ruled abstract ideas or laws of nature.
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What box was just left open? In today's episode.
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David and our all star patent panel discussed the case law.
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Its implications. How present statute is being conflated in
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taking section 101 well beyond its gatekeeping function and
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in their analysis of the American Axle patent. Provide some great tips that
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may have changed American Axel's present fate and can hopefully improve
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your odds of success if approached early enough and intentionally
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at the drafting stage. David is joined today by our always exceptional
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group of IP expert regulars you know and love, including Dr.
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Ashley Slowed, president and director of patent strategy here at Aurora,
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kristen Hansen, patent strategist at Aurora and David Cohen,
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principal at Cohen Sciences. We'd also like to introduce you
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to three new participants making their patently strategic debut
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armancobiani, patent agent and former US. Patent examiner
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and the two newest members of Team Aurora. Thai Davis, patent strategy
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associate, and Dr. Sophia Lee, patent strategy fellow.
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Now, before taking you into the thick of this conversation, one that is
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especially technical and legal, as we often do, we wanted to
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provide a quick primer on a few concepts that could use some extra color and
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context for those newer to patenting. This episode builds
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on many foundational patent law concepts we've been exploring
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in prior episodes, so this will just be a speedy review, but I'll
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provide pointers and links in the show notes to the related episodes should you want
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to go deeper. Since this episode is largely centered around
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the concept of subject matter eligibility, we're first going to talk about rejection
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and invalidation gates when patents are examined by the Patent Office
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or later litigated in a courtroom, several sections of US.
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Statute come into play in determining if the claims in the patent
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are eligible, useful, novel, non obvious,
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and enabled, or properly described patents
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can be rejected or invalidated if one or more of the
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claims are determined to be otherwise. Problems fall under
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the following sections of US. Code title 35 section
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101 patent ineligibility or lack of utility section 102
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lack of novelty section 103, the claimed
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invention is obvious and or section 112 lack of
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adequate description. Today's conversation focuses on sections 101 and
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one, one two. We dissect these and relevant case law,
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including the referenced Alice decision, in much greater detail in season two,
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episode one on software patents, in season two,
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episode five on Fortifying life science patents. For now,
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though, the important things to note are that section 112 centers around enablement.
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We're describing the invention in sufficient detail to allow
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it to be practiced by someone skilled in the art without undue experimentation.
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You're trading disclosure for exclusivity. That's fundamentally
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the deal, so you can't hold back on the details. Section 101
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covers eligible subject matter. The Patent Act says that an
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inventor can patent any new and useful process, machine,
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manufacturer, or composition of matter, or any new and useful improvement
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thereof. Historically, this was broadly interpreted. Patents were
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rarely rejected or invalidated based on it, while instead
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utilizing the other sections to weed out patents undeserving of protection.
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More recently, however, this has changed with the court's breathing
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judicial exceptions for eligible subject matter into being that don't
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exist in written law. These exceptions have become 101
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grounds to reject and invalidate claims centered around laws
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of nature, natural phenomena, and abstract ideas. The sticky
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part is that despite the courts creating these exceptions, they've yet
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to provide clarity and objective guidelines or definitions around what these words
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actually mean, leaving it up to the lower courts and the Patent Office
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to sort through the ambiguity. This episode also focuses on distinctions
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between the spec or specification and the claims of the American Axel
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application. For a deeper understanding of all of the parts of the patent,
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check out season one, episode nine on Patent Anatomy. But in brief,
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the specification describes the invention and provides the context
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for interpreting the claims. The claims themselves are the heart of
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an application and point out the exact invention boundaries of what the
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applicant believes she's entitled to own, specifically what the patent
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covers, clearly defining the subject matter for which protection is
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sought. And one last acronym to unpack before I send
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you off the group often refers to the CAFC.
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This is the United States Court of Appeals for the Federal Circuit. This is
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the Federal court that hears appeals on business activities, including patent
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cases that make their way up from district courts. Much of the case law conversation
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will center around majority and dissenting opinions from this court.
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And with that, hopefully you're now ready for the deep end. Take it
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away, David. The overview of the talk will be
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that we'll actually look at the claims first. I wanted to
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take a little bit of it. Rather than diving right into the opinion and getting
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adulterated by the opinions,
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I figured let's look at the claims ourselves, see what we think, talk about that
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a little bit. And the question really in this case is,
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is this patent directed to a method for
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manufacturing a shaft assembly in a driveline system,
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or is it really just directed to a natural law, as the
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CAFC majority basically says?
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At least for one of the things. So we'll talk about the claims, we'll talk
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about the court decisions that will dig into the
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actual patent, the spec a little bit, some of the dependent claims,
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which is kind of interesting. And then we'll spend the rest of the time talking
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about the majority and the dissent opinion because there's some
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really interesting stuff in there. And the
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Supreme Court actually we'll talk about a little earlier, they declined
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to give the case. One of the reasons why we're talking about it now.
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This is a method for manufacturing a shaft assembly for a driveline
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system. It's a shaft of a
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propeller or a shaft of a car. You can see here.
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So it's a shaft, and there's vibrations in the shaft,
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and there's a first driveline component and a
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second driveline component, and the shaft transmits torque
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between them. So you have this hollow shaft
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member, you're providing it. And then the second clause
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here is tuning
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at least one liner to attenuate at least two types
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of vibration transmitted through the shaft member and then they
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talk about positioning this liner within the shaft
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member. And this is the big difference, I feel like, between claims one
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and the other independent claim, which we'll look at. This claim has a
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little bit more meat here under the positioning step
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it's positioned, but it's positioned such that it's
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configured to damp the shell mode vibrations
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by an amount greater than or equal to this number and
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also it's configured to damp bending mode vibrations
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within 20 plus -20% of a vending mode
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natural frequency. So when I first looked at this claim
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I thought to myself that word tuning is a
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bit weird. Someone, of course, one to one is on my
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mind as I'm reading it because I know that's a big crux of this
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case. So how problematic really is that word tuning?
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And when you look at the claim construction this
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is a quote from the CAFC opinion, but it's basically that the
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district claim used this construction is that
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tuning the at least one liner means controlling
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characteristics of the at least one liner to configure
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the line or to match a relevant frequency or frequency.
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So that came from analyzing the specification and neither
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party really disagreed with that claim construction.
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So keep that in mind,
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you might be a little bit vague. And so
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when you see tuned, it more or less means configured,
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configured to perform these things.
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Dave, not having read their spec,
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how much did they go into how those characteristics
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are defined, controlling characteristics of at least one liner,
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or defining what those characteristics are or how they
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teach somebody to figure out those characteristics or how to control them? Do they
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go into detail about that? Great question. Absolutely.
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I have a slide on that because I think it's like very important.
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And so, yeah, like slide six or seven or something like that will get back
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to us. Hold that thought for a minute. The short
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answer is it's a short spec they do describe
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it but a big difference
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of opinion between the majority and the dissent is how sufficiently
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it is described. So it's not an easy thing to answer. I think
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we should look at it. Yeah, great question. The second independent
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claim 22 has the exact same
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preamble providing a hollow staff member in this case,
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instead of tuning the liner to attenuate
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at least two types, blah blah, blah, it's just tuning a mass
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and stiffness of the liner. And then instead
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of positioning, it's inserting there's a little bit of a discussion about
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are those words really different? And then the wherein clause here
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really just says that it's tuned resistive
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absorber for attenuating shell mode vibrations. And also
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it's tuned reactive absorber for attenuating bending mode vibration.
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So they do have the two different vibrations in there. But again
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they use that word tuning. And again the district court construed
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that tuning essentially to mean controlling. The mass and
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stiffness of at least one liner can configure the liner
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to match these relevant frequency or frequencies of these vibrations
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as basically defined in the specs.
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So what happened in court and why are we talking about this?
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The district court said claims one and 22 were patent ineligible
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under 101 because they related to a
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natural law basically and nothing more.
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It failed step one of the Alice
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101 test and it also failed step two in their opinion.
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In October 2019, CAFC took up this case
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on appeal and they affirmed both of those decisions. Claim one
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and 22, both patented ineligible. Ten months later
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they followed it up in July of 2020 with a modified opinion
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which changed their mind on claim one. Claim one, they decided
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should be remanded to the district Court and
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we'll talk about this more, but because it wasn't as clear,
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it wasn't as clear as claim 22, there were more elements
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in claim One that the CAFC determined
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were not sufficiently litigated, sufficiently discussed
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and argued in the district court case. So it was remanded
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so that they actually take up those considerations
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more thoroughly. So what recently,
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the big news last month in June is that the Supreme Court declined
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to hear this case. So why? What happened there?
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President Joe Biden's administration in May urged the
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high court to take up this case, saying that American Act was invention was a
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classic example of patent eligible industrial process.
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So the Federal Circuit decided previously in a six
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six deadlock not to re hear the case with all of its judges. In an
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on back, the dissenting judges said the panel's decision could
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threaten most every invention for which a patent has ever been
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granted and that the court's eligibility rulings that turn
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the patent system into a litigation gamble. So a lot of strong
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language on both sides. You'll see the dissent is
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what did they say? Vigorously worded
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dissent and I have some good quotes that also share later.
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So the dispute left the Federal Circuit bitterly divided and at a loss
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and the Supreme Court denied to hear the case. Similarly,
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in 2012, all twelve
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of the Federal Circuit active judges at the time asked the Supreme Court to hear
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another similarly divisive case that was also in the
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101 realm. And the court rejected that despite
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a recommendation by former President Donald Trump's administration to
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back it up. So everyone and
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then the Patent and Trademark Office spokesperson
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said that the ruling said after the ruling that innovation
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cannot thrive in uncertainty and the Patent Office is committed to making
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every effort to ensure that the patent system is as clear and consistent as
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possible. So it seems like everyone president
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and the Federal Circuit and there's even certain
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Congress, people in Congress who are on the record as wanting the
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Supreme Court to weigh in on some of these things and the Supreme
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Court has so far denied and refused to do.
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So the only thing we have to go on now is
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this CAFC modified opinion from July 2020.
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And David, to add to that, as a practitioner
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who deals with one on one responses a lot yeah.
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You also have two claims that have technically
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they have the two things that you're supposed to have to overcome one
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on one rejection. They have a practical application or two
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dampening making sure something is tuned
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in order to carry out something else. Right.
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And they are an improvement to what's out there, which is
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shown in the specification, I believe. But also,
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if there's no art here, no one else has been able to do this
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for this field. Right. So you have an improvement to a technical
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field. But the thing that makes this little quirky
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is it's dealing with a natural law. Hook's, law,
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Springs, these are things that people say,
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well, that's obvious, but they forget.
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You can have a piece of obviousness in a one on one
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rejected claim as long as you can still show that
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there's practical application, some novelty
17:09.890 --> 17:13.162
and or I guess improvement to a
17:13.176 --> 17:16.726
technical field. So this is one of the first cases where
17:16.908 --> 17:21.182
the standard toolbox that we have of overcoming one on one rejections
17:21.326 --> 17:24.442
cannot be used. And it seems to already be
17:24.456 --> 17:27.874
in the claim, but they don't even want to hear it because
17:27.912 --> 17:30.060
they're like no natural law, natural law.
17:31.410 --> 17:35.350
Your points are almost exactly what the dissent
17:36.210 --> 17:40.140
argues and those are super valid points. And I think,
17:41.430 --> 17:44.842
I actually think that the majority has some valid points and
17:44.856 --> 17:46.560
the descent has some valid points.
17:51.970 --> 17:55.854
It's a tough one. It's like you said, there are additional elements
17:55.902 --> 17:59.246
in the claims. At the same time, if you just
17:59.308 --> 18:02.390
consider claims one and 22 we'll talk about in a minute.
18:02.710 --> 18:05.774
Maybe that's not the best idea. If you just consider those
18:05.812 --> 18:09.566
claims, it is a little vague about what they really need
18:09.688 --> 18:13.842
and almost as because tune goes back to configured,
18:13.926 --> 18:17.678
it's almost functional language. Now you have to go back to the spec and does
18:17.704 --> 18:20.702
the spec really teach someone how to do that?
18:20.836 --> 18:23.738
But then you got to say to yourself, wait a second, is that 112?
18:23.824 --> 18:26.946
Is that 101? Right. Very convoluted.
18:27.078 --> 18:30.938
And I guess I sort of agree that there
18:30.964 --> 18:34.242
are some issues, you know what I mean, with this patent and the claims
18:34.266 --> 18:38.138
and the description and the way that it all comes together. But should it
18:38.164 --> 18:41.534
really have been rejected at all? And should it have been rejected under
18:41.572 --> 18:44.954
101 or invalid? That's my question.
18:45.112 --> 18:46.960
Right. The 101 issue,
18:48.130 --> 18:51.678
if you take a spring and you say that anything to do with spring cannot
18:51.714 --> 18:54.220
be patented, that's slippery slope, right?
18:56.630 --> 19:00.462
I think that's the majority thought there is wait a
19:00.476 --> 19:03.978
minute, it's not just a spring, but what else do we know,
19:04.064 --> 19:07.434
right? And the specification on this case isn't teaching enough
19:07.592 --> 19:11.214
for everyone involved to be comfortable. It was
19:11.312 --> 19:14.802
112 101 issue, right? Or maybe it should have
19:14.816 --> 19:15.380
been.
19:18.450 --> 19:22.140
I see that as a totally valid point. And then I also go back to
19:23.490 --> 19:26.746
thinking about functional language in the claim and
19:26.808 --> 19:30.778
that what does it really mean to tune a liner if
19:30.924 --> 19:35.040
the specification doesn't teach someone really how to do that,
19:35.610 --> 19:38.758
right? Anyway, it's a great point Kristen, excellent points.
19:38.784 --> 19:42.478
And we'll talk more about it and see some quotes from them about a lot
19:42.504 --> 19:46.462
of those points as we get. I just wanted to add something really quick for
19:46.536 --> 19:50.318
examiners, so they're
19:50.354 --> 19:54.986
trained to ignore functional language when it comes to device claims.
19:55.118 --> 19:58.730
So for an examiner they might have not actually given that weight,
19:58.790 --> 20:00.970
that word tuning any weights,
20:01.650 --> 20:04.814
unless the applicant or the inventor provided
20:04.982 --> 20:08.398
support through a
20:08.424 --> 20:11.558
person of ordinary skill in the art, would consider tuning.
20:11.654 --> 20:15.374
Or maybe prior art would provide some teaching of what tuning
20:15.422 --> 20:19.270
would be or how they could construct tuning
20:19.590 --> 20:23.458
from the prior art. Right, I know,
20:23.484 --> 20:26.842
exactly. It's a great point. And yeah, you can
20:26.856 --> 20:31.630
see that the CASC found claim 22 ineligible
20:32.070 --> 20:35.638
in their modified opinion and they said it simply requires the
20:35.664 --> 20:38.702
application of hook's law to tune a prop
20:38.726 --> 20:42.418
shelf liner. So even when they're talking about this natural law,
20:42.504 --> 20:45.900
it goes back to that tuning. That tuning is really key.
20:46.290 --> 20:49.738
However, claim one is remanded and what they said about that as well.
20:49.764 --> 20:53.314
Claim one also requires positioning in addition to tuning. And they saw
20:53.352 --> 20:59.174
that as different than inserting. Positioning evoked
20:59.222 --> 21:02.834
a position, putting it in a particular place rather than just inserting
21:02.882 --> 21:06.026
anywhere, and also may reflect
21:06.098 --> 21:09.290
a broader definition of tuning. And if you go back to the claims,
21:09.350 --> 21:12.838
claim 22, which was found patent ineligible, says tuning a mass
21:12.924 --> 21:16.462
and a stiffness. And David, don't worry, the next slide is
21:16.476 --> 21:19.858
about hook's law. But tuning a mass and a
21:19.884 --> 21:23.674
stiffness, that just evokes hook's law
21:23.772 --> 21:27.610
to people very clearly. But claim one just says tuning,
21:28.110 --> 21:32.402
tuning at least one liner to attenuate at least these two different types of vibrations.
21:32.486 --> 21:35.854
So then you got to go back to specification and this is potentially a
21:35.892 --> 21:39.154
broader definition of tuning that involves not just
21:39.192 --> 21:42.874
the mass and the stiffness, but other things as well. So then it's not as
21:42.912 --> 21:46.666
clear that it's just hooked law, is there kind of thought
21:46.728 --> 21:49.260
process on claim one.
21:50.310 --> 21:54.014
So we get some quotes to give a little more explanation
21:54.062 --> 21:54.840
of that.
21:58.150 --> 22:01.502
There's like one or two paragraphs on step two of the one
22:01.516 --> 22:04.962
to one framework and this is a big problem that Judge Moore
22:04.986 --> 22:08.510
had in the descent. He didn't think enough weight was given to step two.
22:08.620 --> 22:12.738
But they did talk about step two and they said that there's no inventive concept
22:12.774 --> 22:16.418
because the invention was a trial and error application of
22:16.444 --> 22:19.850
hopes law. So some quotes, what is missing from this claim?
22:20.470 --> 22:24.126
This was about 22. The ineligible one is any physical
22:24.198 --> 22:27.734
structure or steps for achieving the claimed result.
22:27.892 --> 22:31.814
And that the real inventive work lies in figuring out how to
22:31.852 --> 22:35.094
design a liner to damp two vibration modes simultaneously.
22:35.142 --> 22:38.618
And no such inventive work is recited in claim 22.
22:38.764 --> 22:43.034
And to go even a step further about the means
22:43.072 --> 22:47.334
plus function stuff, they also clearly considered the specification.
22:47.442 --> 22:50.714
They say the specification describes tuning in terms of the
22:50.752 --> 22:54.158
result achieved, rather than the particular process by
22:54.184 --> 22:57.842
which the result is accomplished. And I'll show the
22:57.856 --> 23:01.718
paragraphs in the next slide or two so you can see
23:01.744 --> 23:05.858
for yourself what the specification actually says and why the
23:05.944 --> 23:09.798
majority opinion says this, whereas the minority
23:09.894 --> 23:13.550
descending opinion says something else. So Judge Morrison descent had three major
23:13.600 --> 23:16.806
issues. One, he said, no, these are not directed
23:16.878 --> 23:21.102
to a natural law. This is a method of manufacturing
23:21.246 --> 23:24.494
a liner for a drive shaft. He also argues that there were
23:24.532 --> 23:28.770
many articulated inventive concepts that should have precluded summary
23:28.830 --> 23:32.286
judgment and that step two was not given sufficient weight.
23:32.478 --> 23:36.546
And then the third one, he argued, was that they were conflating patent eligibility
23:36.618 --> 23:39.446
under 101 with the principles of enablement under 112.
23:39.448 --> 23:42.698
And in his great quote, I feel like, is that
23:42.724 --> 23:46.206
in Judge Moore's view? This is from an article in Judge Moore's
23:46.218 --> 23:50.214
view, the majority found the claims ineligible because the patent
23:50.262 --> 23:53.738
did not teach a skilled artisan how to
23:53.764 --> 23:57.134
tune a liner. So we'll dig
23:57.172 --> 24:00.518
more into each of these things as we go, and we already
24:00.544 --> 24:03.722
talked a little bit about the means plus function. So let me just get
24:03.736 --> 24:07.082
to what we've all been waiting for. What is hooked law?
24:07.276 --> 24:10.742
So everybody might remember if they took physics like in high school,
24:10.876 --> 24:14.958
that Hooke's law is the simple equation here. Force equals
24:15.054 --> 24:19.062
k times x, k is the spring constant and x is the displacement.
24:19.206 --> 24:22.562
So if you have a spring, it has a particular property,
24:22.636 --> 24:26.514
a spring constant. And if you apply a force to it, it will extend
24:26.562 --> 24:29.622
by an amount x. And if you double the force,
24:29.766 --> 24:33.714
for instance by hanging an extra weight on a spring, doubling that force,
24:33.822 --> 24:37.322
then the displacement will extend twice as far so that's a
24:37.336 --> 24:40.574
displacement is just proportional to the force, and that
24:40.612 --> 24:43.660
proportionality constant is the spring constant, k.
24:44.050 --> 24:48.006
In this case, we're talking about frequencies and dampening
24:48.078 --> 24:51.518
vibration frequencies. So this is a little bit of an extension of books law,
24:51.544 --> 24:54.818
if you will. It's an application of books law that if
24:54.844 --> 24:58.166
you have the situation where you have a mass on a spring and you pull
24:58.228 --> 25:01.322
the mass to extend the spring and then let it go, what's going to
25:01.336 --> 25:05.378
happen? It's going to oscillate. It's going to try
25:05.404 --> 25:08.750
to get back to its equilibrium position, but it has some momentum. So it goes
25:08.800 --> 25:11.918
past the equilibrium position and then it'll continue
25:12.004 --> 25:15.806
oscillating back and forth. And since this
25:15.868 --> 25:19.360
sort of an oscillator obeys hook's law,
25:19.690 --> 25:23.006
you can solve the equations for frequency. And you find
25:23.068 --> 25:27.486
that the frequency of such an oscillating system only depends
25:27.558 --> 25:30.734
on the mass and the spring constant. It does
25:30.772 --> 25:35.070
not depend, for instance, on the amplitude of the oscillation.
25:35.250 --> 25:40.406
So due to friction, due to other
25:40.468 --> 25:43.360
losses, air resistance, what have you,
25:45.250 --> 25:48.998
those oscillations will slowly dampen over time and it will stop so
25:49.024 --> 25:53.226
that the amplitude will go down over time, but the frequency
25:53.358 --> 25:57.714
as it's going down stays the same. Similar to the situation of a pendulum.
25:57.762 --> 26:01.540
Right? And so what's interesting about this is that this
26:02.530 --> 26:06.122
invention, this law of nature that
26:06.136 --> 26:10.338
was applied in this way was used to construct the first pocket
26:10.374 --> 26:14.106
boxes in order to get an oscillator
26:14.178 --> 26:17.714
that would be portable. And you could move around
26:17.812 --> 26:21.414
in all different orientations on like a pendulum
26:21.462 --> 26:25.602
or a grandfather clock or a lot of the more elaborate, complicated mechanisms
26:25.626 --> 26:28.866
of the time. Using a little mass on a spring allows
26:28.878 --> 26:32.498
you to make a mobile timepiece, which was like a
26:32.584 --> 26:35.738
huge advance in navigation in
26:35.884 --> 26:40.238
history. And Hook was one of the adventures of those
26:40.264 --> 26:43.514
watches, by the way. It wasn't a linear spring, it was
26:43.552 --> 26:47.742
a spring, a coiled spring. And there are other kinds of mechanisms
26:47.766 --> 26:50.262
in there. It was a little more complicated than just the mass on the spring,
26:50.346 --> 26:53.918
but it was this hook's law. And that's where you see
26:53.944 --> 26:57.834
this mass, you see the stiffness,
26:58.002 --> 27:01.574
the spring constant and the mass. And if you tune those two
27:01.612 --> 27:05.618
things, that's hooked law in
27:05.644 --> 27:08.906
some abstraction. So even though the claims never say
27:08.968 --> 27:12.278
hooked law, tuning a mass and a stiffness of
27:12.304 --> 27:15.554
a liner to tune the frequency of that
27:15.592 --> 27:19.082
liner, this is where District Court originally and
27:19.096 --> 27:23.186
the CASC agreed that it was directed to a natural law
27:23.368 --> 27:26.342
cooked law. Quick question,
27:26.476 --> 27:29.090
David. Absolute for a little bit of clarity.
27:31.330 --> 27:35.330
When you're tuning that liner, they're tuning for your
27:35.380 --> 27:39.150
torsional frequency and also the bending frequency.
27:39.330 --> 27:42.374
Am I interpreting that right? Yeah, that's right.
27:42.412 --> 27:45.820
They do talk about torsion. The claims talk about the
27:46.810 --> 27:49.986
bending mode and also this shell mode,
27:50.118 --> 27:53.582
where the actual this is like a cross section of the right. But the
27:53.596 --> 27:56.714
torsion mode, even though they describe it and everything, it's not one of those two
27:56.752 --> 27:59.894
modes that's claimed yes. So you're trying to find the
27:59.932 --> 28:03.386
optimal point kind of between the two. It's in the tuning. Correct.
28:03.508 --> 28:07.002
You're trying to find the spot where you fix the torso
28:07.086 --> 28:10.814
and the bending. That's a great point. And this is one of the things that
28:10.912 --> 28:14.560
American Axle argued unsuccessfully, is that
28:15.070 --> 28:18.302
tuning to dampen two vibrational modes at
28:18.316 --> 28:22.058
the same time is not so simple and not just
28:22.084 --> 28:25.240
a simple application of folks law. It involves a lot more.
28:25.630 --> 28:29.306
And we'll get to that in a few slides. I know there's a
28:29.308 --> 28:31.850
lot in this case, like I said in the beginning,
28:32.410 --> 28:36.914
hopefully we'll have time to get to that. But that the
28:36.952 --> 28:40.540
District Court, essentially, and the CFC agreed that
28:41.170 --> 28:44.858
even though, sure, American axle may have invented a whole
28:44.884 --> 28:48.314
bunch of things to tune these liners in this way,
28:48.352 --> 28:51.450
using finite element modeling, et cetera, et cetera.
28:51.630 --> 28:55.202
That was not in the claim, and it's not even in
28:55.216 --> 28:58.046
the spec. And I think that's a huge problem.
28:58.108 --> 29:01.142
Actually, the word finite element modeling doesn't even show up in the
29:01.156 --> 29:05.642
spec. The spec is very short, and it does
29:05.836 --> 29:10.970
kind of good segue. It does describe this
29:11.020 --> 29:14.474
liner as a physical element. It has
29:14.512 --> 29:18.558
a lot like Kristen was saying, it's a lot of these practical applications
29:18.594 --> 29:22.274
and things that we look for to get around 101. So it's got
29:22.312 --> 29:24.386
the physical element, this liner 204,
29:24.388 --> 29:27.702
and it describes these bending modes,
29:27.786 --> 29:31.506
or vibration mode, bending mode, shell mode, torsion mode,
29:31.638 --> 29:35.190
right? And so it goes into that. It goes even further,
29:35.250 --> 29:39.038
and it says that the characteristics of this liner can
29:39.064 --> 29:43.154
be controlled to tune its stamping properties in these particular
29:43.252 --> 29:46.818
modes. For instance, they talk about mass, length,
29:46.914 --> 29:50.550
diameter of the liner, and they describe
29:50.610 --> 29:54.510
this liner structural features of this liner. They say it has a resilient
29:54.570 --> 29:58.470
member. The resilient member can have a helix angle and a pitch.
29:58.590 --> 30:02.080
There are other structural features to this
30:03.190 --> 30:06.806
liner. And then they give you a particular example,
30:06.988 --> 30:10.370
a particular quantitative example. Here's a drive line
30:10.420 --> 30:13.938
that has this diameter, wall thickness,
30:14.034 --> 30:17.186
length, etc. And here's a liner that works in this situation.
30:17.368 --> 30:19.370
So they do give examples.
30:20.890 --> 30:24.302
And then this, I think, is getting to
30:24.316 --> 30:27.494
the crux of the issue. What they say in the next
30:27.532 --> 30:31.034
paragraph is that it'll be appreciated in certain situations. It's not possible to
30:31.072 --> 30:34.434
exactly tune the liner to two or more relevant
30:34.482 --> 30:37.938
frequencies. And as such, it will be understood that liner
30:37.974 --> 30:42.050
204 will be considered to be tuned to a relevant frequency if
30:42.100 --> 30:46.550
it is effective in attenuating vibration at the relevant frequency.
30:46.870 --> 30:50.162
And this is exactly the sentence that the majority point to
30:50.236 --> 30:53.910
say. The specification only describes tuning
30:53.970 --> 30:58.098
in terms of a result to be achieved. It doesn't describe
30:58.194 --> 31:01.878
the steps that one must take to tune a liner.
31:01.974 --> 31:04.370
The descent disagrees.
31:05.530 --> 31:10.482
And you can see here that there are structural
31:10.566 --> 31:14.102
elements that are described about these liners. And I
31:14.116 --> 31:17.390
think this is a really interesting, I think, side note on this case,
31:17.440 --> 31:22.466
too. There are, what, ten or
31:22.468 --> 31:26.238
eight dependent claims off of both of the independent
31:26.274 --> 31:30.630
claims, one and 22, that do claim,
31:30.810 --> 31:34.758
specifically claim, these structural features. You've got a disresilient
31:34.794 --> 31:38.418
member, you've got the resilient member, extensive helically or longitudinally
31:38.454 --> 31:42.282
or circumferentially. You've got different materials
31:42.426 --> 31:46.550
involved, cardboard, plastic, carbon fiber,
31:46.990 --> 31:51.086
and even some defendant claims about
31:51.148 --> 31:54.570
positioning the liner symmetrically, about a bending
31:54.630 --> 31:58.420
antenna node and things that are actually like very
31:58.870 --> 32:02.586
more or less specific structural features
32:02.658 --> 32:06.362
of these liners. So what the majority says is
32:06.376 --> 32:09.722
that the district court and this is what happened,
32:09.916 --> 32:14.090
the majority and the district court treated independent claims one and 22
32:14.140 --> 32:17.438
as representative of all of these.
32:17.584 --> 32:21.342
Dependent claims, and the dissent disagrees
32:21.366 --> 32:24.702
with that entirely. The dissent says, I do not agree with the majority
32:24.726 --> 32:28.802
of conclusion that claims one and 22 are representative, or that American
32:28.876 --> 32:32.286
Axle waived its arguments as to the dependent claims.
32:32.418 --> 32:35.906
First Nepo, who was the other party in
32:35.908 --> 32:39.162
the case, never argued that claims one and 22 representatives,
32:39.186 --> 32:42.422
in fact, argued the dependent claims separately, and American
32:42.496 --> 32:45.834
Axle expressly argued that they are not representative.
32:46.002 --> 32:49.682
And I think it seems like
32:49.756 --> 32:53.118
a small thing in some ways, like, oh, claim one and 22 are representative.
32:53.154 --> 32:56.042
We're just going to go with that. We're not even considered dependent claims, but if
32:56.056 --> 32:59.618
they had, it might have been a lot harder for them to say no,
32:59.644 --> 33:04.202
there are no structural features here that teach one how to
33:04.276 --> 33:08.454
tune this thing. They may have came to the same conclusion due
33:08.502 --> 33:11.810
to, for instance, inadequacies of the specification,
33:12.550 --> 33:16.446
even though there's a resilient member.
33:16.638 --> 33:20.238
How do you tune that resilient
33:20.274 --> 33:23.750
member to dampen a bending mode at a particular
33:23.860 --> 33:27.434
frequency? That's what I see
33:27.472 --> 33:31.266
as missing, by the way, entirely. The crux of that invention
33:31.338 --> 33:34.782
is the tuning or the positioning. And nobody's
33:34.806 --> 33:39.174
saying position until position. Why position? Because there's
33:39.222 --> 33:43.218
just nothing in there. So I guess I fall somewhere
33:43.254 --> 33:47.114
in the middle. I think there's enough structure to get
33:47.152 --> 33:50.990
you out of 101, but I don't know that there's enough content
33:51.160 --> 33:53.920
and teaching to get you over 112.
33:54.550 --> 33:57.770
Right? Yes. And the
33:57.880 --> 34:01.730
dissent actually almost uses the exact same argument. They say they
34:01.780 --> 34:05.714
totally disagree that it should be ineligible under 101. This is absolutely
34:05.812 --> 34:08.990
eligible under. But they actually
34:09.160 --> 34:12.950
left the question open. They said there are many inventive concepts that
34:13.060 --> 34:16.178
go beyond natural law, but they leave it an open question.
34:16.264 --> 34:20.370
Is there sufficient enablement
34:20.550 --> 34:24.338
to satisfy 112? I feel like this is like a common thing with
34:24.364 --> 34:28.434
the courts, though. Like they buy their partial
34:28.482 --> 34:31.898
opinions almost that they give they leave more ambiguity than they do fix. It.
34:31.924 --> 34:35.418
Like the whole Google Oracle case, we're going to kind of rule
34:35.454 --> 34:39.386
on things, but we're never going to tell you if APIs are actually
34:39.508 --> 34:42.962
copyrightable. Right. We're going to kind of leave that. And the same
34:42.976 --> 34:46.060
with this case. Okay, yeah, we're good for
34:46.690 --> 34:50.678
certain of the judges believe that it's fine for 101,
34:50.704 --> 34:54.530
but we're not going to address 112 and they kind of leave it.
34:54.700 --> 34:58.458
And I know it's because there's a whole bunch of rules
34:58.494 --> 35:01.130
and how things proceed in court proceedings and things like that,
35:01.180 --> 35:04.346
but I feel like we're always like doing
35:04.408 --> 35:07.418
90% and then we never take it the last 10%,
35:07.504 --> 35:10.070
which would, I think, clear up some of the ambiguity.
35:10.450 --> 35:14.402
Yeah. Kristen and I totally agree.
35:14.536 --> 35:18.350
And I actually wonder I don't know, I haven't read anything
35:18.400 --> 35:22.058
about this. I'm not totally sure what the Supreme Court was thinking. But I do
35:22.084 --> 35:25.454
wonder if they declined to take the case because it is a little
35:25.492 --> 35:28.934
bit complicated and
35:29.032 --> 35:32.440
not an ideal. It's a little bit messy. It's not a really clean
35:32.770 --> 35:36.002
one on one discussion. There's like a lot of different things
35:36.016 --> 35:39.410
that go into it. So yeah, maybe I'm trying to get
35:39.460 --> 35:46.042
some highlights now we've
35:46.066 --> 35:49.714
talked about these things a bunch. The majority says that claim
35:49.762 --> 35:53.758
22 confers patent coverage if the attenuation
35:53.854 --> 35:57.718
goal is achieved by one skill in the art using any method
35:57.874 --> 36:01.050
including any method implemented by computer modeling and
36:01.100 --> 36:04.554
trial and error so that the claim on a face does not identify the
36:04.592 --> 36:08.370
particular tune, liner or improved method of doing that.
36:08.480 --> 36:12.070
And it's a really interesting quote. American Axel argued
36:12.130 --> 36:15.210
that one could infringe claim 22 by
36:15.260 --> 36:18.330
whatever means will achieve the result even
36:18.380 --> 36:22.040
if you didn't try to tune it and didn't know you did it.
36:22.910 --> 36:26.538
So that kind of I think maybe worked against them in
36:26.564 --> 36:30.618
some ways because it fed into this argument that it's not a
36:30.644 --> 36:33.310
clear, concise, explicit invention,
36:33.490 --> 36:36.810
it's vague and results oriented.
36:39.690 --> 36:43.680
The majority concedes or at least argues that
36:44.010 --> 36:47.882
these established processes and improved processes are not claimed.
36:48.026 --> 36:51.898
American actor may have discovered patentable refinements such
36:51.924 --> 36:55.850
as particular uses of a sophisticated finite element analysis
36:55.910 --> 37:00.010
model during its design process but neither the specifics
37:01.050 --> 37:04.380
of any novel computer modeling or of any
37:05.550 --> 37:09.182
experimental modal analysis are included as limitations
37:09.266 --> 37:12.442
in claim 22 and also the
37:12.456 --> 37:15.862
specification only describes tuning in results in
37:15.876 --> 37:19.114
terms of the result achieved rather than a particular process by
37:19.152 --> 37:22.714
which it's accomplished. So what
37:22.752 --> 37:26.698
the majority says is what's missing is any physical structure or
37:26.724 --> 37:30.646
steps for achieving the claim result. Now, to be fair, the dissent argues against
37:30.708 --> 37:33.994
that because the defend is looking at the defendant claims and says
37:34.152 --> 37:38.198
that's not true. There are physical structures and steps
37:38.234 --> 37:41.854
for achieving the claimed result, at least
37:41.892 --> 37:45.658
an attempt to put those structures and
37:45.684 --> 37:48.922
methods in there. But I think to Ashley's and Christmas point was
37:48.936 --> 37:52.438
it enough? Wasn't enough. I think that's a tough thing to
37:52.464 --> 37:55.402
answer and I did want to hit on these too because I think this is
37:55.416 --> 37:58.570
really interesting. This isn't in a vacuum.
37:58.890 --> 38:03.962
There is case law that Supreme Court ruled
38:03.986 --> 38:07.810
on and that the AFC relied on. So there's this really important case
38:07.860 --> 38:11.830
Parker v. Fluke which was a case about
38:11.880 --> 38:16.234
calculating and updating an alarm limit and they found that
38:16.332 --> 38:20.518
patent to be patent ineligible under 101 and the reason why
38:20.664 --> 38:24.278
is because as in Fluke, the claim method did not specify
38:24.374 --> 38:28.150
how variables were measured or how the alarm system functioned.
38:28.590 --> 38:32.398
Claim 22 here does not specify how target frequencies are determined or
38:32.424 --> 38:36.274
how using that information, the liners are tuned. So this is in
38:36.312 --> 38:40.034
contrast to a deer case Duamon versus Deer
38:40.142 --> 38:43.414
which was an eligible under
38:43.452 --> 38:47.426
101 and it recited a calculation
38:47.618 --> 38:50.830
for a mold in a process to cure rubber,
38:51.450 --> 38:54.950
a mold temperature calculation in a process to cure
38:55.010 --> 38:58.874
rubber and in deer, unlike in this case, these other steps
38:58.922 --> 39:03.134
apparently added to the formula something that in terms of patent laws objectives
39:03.182 --> 39:07.090
had significance. In other words, they transform the process into
39:07.140 --> 39:10.390
an inventive application. Of the formula
39:11.430 --> 39:14.834
in here, there was enough described.
39:14.942 --> 39:18.338
They talk about, yes, it relied on this equation,
39:18.434 --> 39:21.694
but they also described how to use and
39:21.732 --> 39:25.618
implement that equation and therefore transform the
39:25.644 --> 39:28.200
process into an inventive application.
39:29.610 --> 39:32.734
So what this is saying is basically
39:32.832 --> 39:36.346
the application lacked an embodiment where those
39:36.408 --> 39:40.838
elements, those structural elements that contribute to controlling
39:40.874 --> 39:46.154
those frequencies, there wasn't some kind of enabling embodiment
39:46.202 --> 39:49.574
that disclosed how they should be adjusted.
39:49.622 --> 39:53.402
Right. How they should be fixed
39:53.426 --> 39:57.134
or changed so that they accomplished the claim
39:57.182 --> 40:00.838
dimension. Right. That's a good way to put it. Exactly. They were trying
40:00.864 --> 40:04.870
to claim a result without structural
40:05.730 --> 40:10.190
components or method steps that unambiguously
40:10.250 --> 40:13.560
clearly taught someone how to achieve that result.
40:14.730 --> 40:18.106
Then you can argue back and forth again, is that a 101 issue or is
40:18.108 --> 40:21.478
it a 112 issue? But I think we kind of all agree that there
40:21.504 --> 40:24.610
is an issue with that.
40:24.660 --> 40:28.450
You can't right. So it's
40:30.870 --> 40:34.970
a lot more we can say about that. But interestingly,
40:35.030 --> 40:39.046
I didn't know this Luke was actually also used
40:39.108 --> 40:43.642
by the Supreme Court to support Alice and
40:43.776 --> 40:47.098
they say in the Alice case that Fluke is to the same effect
40:47.244 --> 40:50.942
and that Fluke stands for the proposition that prohibiting
40:51.026 --> 40:55.058
against patenting abstract ideas cannot be circumvented by attempting
40:55.094 --> 40:59.090
to limit the use of the idea to a particular technological environment.
40:59.210 --> 41:02.290
And it's interesting, that was a quote from Bilski.
41:02.790 --> 41:06.180
So this Bluke is all over the place and
41:08.070 --> 41:10.560
it's kind of like what Kristen was saying.
41:12.090 --> 41:16.262
It's clearly a particular technological
41:16.346 --> 41:20.330
problem that they're trying to solve. And what Fluke apparently
41:20.390 --> 41:23.160
is used for by the courts is to say that's not enough.
41:23.610 --> 41:27.554
Just saying you're going to apply a natural law to a particular technological
41:27.602 --> 41:32.390
problem without sufficiently explaining structural
41:32.450 --> 41:36.526
and or method steps that explain how to apply
41:36.648 --> 41:40.502
that natural law, just putting it in a technological environment
41:40.526 --> 41:44.158
is not enough. So I thought that was pretty interesting. That's something that is
41:44.184 --> 41:47.818
like now I think in some ways I feel
41:47.844 --> 41:51.566
like this
41:51.628 --> 41:55.278
American Axel case, people are up in arms
41:55.314 --> 41:58.490
about it for sure and a lot of people are talking about how
41:58.540 --> 42:01.742
different it is from the case law history and
42:01.756 --> 42:06.002
how they've totally just taken a left turn. And I think in
42:06.016 --> 42:09.580
their mind, in the majority's mind, luke is what helped them
42:10.510 --> 42:14.418
actually bring it all make their decision
42:14.574 --> 42:18.542
in light of the prior decisions, not completely
42:18.616 --> 42:20.080
a left turn from those.
42:21.550 --> 42:25.660
So claim one is a little bit different. Right? And we talked about that.
42:27.910 --> 42:32.020
The CAFC said that claim one could be an abstract idea,
42:32.890 --> 42:36.378
but that this abstract idea was not adequately presented
42:36.414 --> 42:39.978
and litigated in the district court. So that's why they remanded
42:40.014 --> 42:43.958
it. They didn't really put
42:43.984 --> 42:47.054
any hint about whether they thought it should be eligible or not. They just said
42:47.092 --> 42:51.650
that there's more in there that was not adequately
42:52.330 --> 42:56.322
argued and therefore it's not proper for the CISP
42:56.346 --> 42:59.634
to make a summary judgment on these facts
42:59.682 --> 43:03.654
or other these aspects because they weren't sufficiently handled
43:03.702 --> 43:06.590
at the district court level. So now it's been remanded.
43:07.210 --> 43:09.760
Okay, so the dissent, this is fun.
43:11.410 --> 43:16.060
The dissent actually says that this
43:16.570 --> 43:20.222
majority is holding that these claims are ineligible to send shockwaves through the
43:20.236 --> 43:23.774
patent community. So there are some great quotes in here. The first one is
43:23.812 --> 43:27.174
from Representative Doug Collins. It's unthinkable.
43:27.282 --> 43:31.000
The courts found this invention of manufacturing process for making a key
43:31.450 --> 43:34.970
automotive part as patent ineligible. The next one,
43:35.020 --> 43:38.882
which was a Bloomberg article, said american action is a poster child
43:39.016 --> 43:42.242
for how the current test for patent eligibility is being applied to reach rather
43:42.316 --> 43:46.480
absurd results. And that
43:47.350 --> 43:50.918
if industrial processes, physically based patents like
43:50.944 --> 43:55.218
these are ineligible under Mayo Alice, then seemingly every patent
43:55.314 --> 43:58.718
is in ineligibility jeopardy. You just go on and
43:58.744 --> 43:59.560
on, right?
44:02.810 --> 44:06.102
There are some fun quotes in there, but clearly there's a lot of
44:06.116 --> 44:09.490
controversy about this case. What does the descent say? The descent
44:09.550 --> 44:12.970
has some vigorous language
44:13.090 --> 44:16.182
and basically talks about
44:16.256 --> 44:19.858
sort of two different things. The first thing is about how natural laws
44:19.894 --> 44:23.518
in this case and step two of the Alice
44:23.554 --> 44:26.994
Mayo 101 analysis, which is there
44:27.152 --> 44:31.570
something that's significantly more than just this abstract
44:31.690 --> 44:35.278
concept or natural law. So, as the defense
44:35.314 --> 44:38.862
says, a disturbing amount of confusion will surely be caused by
44:38.876 --> 44:42.522
this opinion, which stands for the proposition that claims can be ineligible as
44:42.536 --> 44:46.870
directed to a natural law, even though no actual natural law is articulated
44:46.990 --> 44:50.358
in the claim or even the specification. So that
44:50.384 --> 44:54.450
is a really interesting statement because that apparently is pretty different from
44:54.500 --> 44:58.822
most, if not all of the previous cases in this area. Previous cases
44:58.966 --> 45:02.358
all talk about natural laws or even claimed natural laws in some
45:02.384 --> 45:06.102
way, whereas this case didn't. And that goes on
45:06.116 --> 45:09.994
to say holding these claims ineligible under a purported natural law analysis leaves patentees
45:10.042 --> 45:13.098
awash in a sea of uncertainty. How can
45:13.124 --> 45:16.434
one determine if a claim is directed to a natural law without a natural law
45:16.472 --> 45:20.730
being apparent either on the face of the claim or under a proper claim construction?
45:21.050 --> 45:25.006
He goes on to say goodness sakes. The dependent
45:25.078 --> 45:29.686
claims held ineligible by the majority specify the material
45:29.878 --> 45:33.162
the liner must be made of, the actual physical form it
45:33.176 --> 45:37.078
must take with fingers circumferentially wrapped or over molded
45:37.174 --> 45:40.842
and placed, and the place the liners must be positioned. And he
45:40.856 --> 45:44.478
says it is remarkable that the majority thinks that claims with all
45:44.504 --> 45:48.166
of these very physical, very concrete, very structural limitations
45:48.298 --> 45:52.678
are missing any physical structure or steps. A fiberglass
45:52.714 --> 45:56.770
liner with a helically shaped resilient member extending circumferentially
45:56.890 --> 46:00.342
around the liner or over molded to the structural portion of the
46:00.356 --> 46:03.942
liner certainly feels like the physical structure that the
46:03.956 --> 46:06.466
majority says is missing from the claim.
46:06.658 --> 46:10.542
And the district court and Cafe were
46:10.556 --> 46:13.978
very clear that they were not looking at depending claims. They were saying that claim
46:14.014 --> 46:17.358
one and 22 were representative. And I think what
46:17.504 --> 46:20.790
the dissent is saying here, Judge Moore is saying is that
46:20.900 --> 46:24.800
that was a mistake. So David, one of the things here that is
46:25.250 --> 46:28.686
a little bit hidden when you say structure or
46:28.748 --> 46:32.134
steps, I think the way the court uses
46:32.182 --> 46:36.054
that language really is you're missing structure or
46:36.092 --> 46:39.282
you're missing steps. So in this case it would maybe be
46:39.296 --> 46:42.690
missing steps even though there's loads of structure.
46:44.630 --> 46:46.160
I know what you mean. Yeah,
46:47.510 --> 46:50.674
right. And missing steps.
46:50.722 --> 46:54.258
Exactly. Missing steps. Maybe teaching someone how to
46:54.284 --> 46:58.242
tune and then how do you teach someone how to tune? You've got
46:58.256 --> 47:01.834
to talk about some maybe it's a finite element
47:01.882 --> 47:05.082
model. It could be a process. They could describe some kind
47:05.096 --> 47:08.310
of process they go through, or they could describe some
47:08.360 --> 47:12.178
kind of a process of changing
47:12.214 --> 47:15.260
a dimension of a structural feature or whatever. Right.
47:16.010 --> 47:19.110
I know we kind of gloss over structure steps.
47:20.270 --> 47:24.138
It could be as simple as like within diamond v. Deer, where they do something
47:24.224 --> 47:27.630
until something occurs and that is how the problem
47:27.680 --> 47:30.740
is solved. So another step
47:31.130 --> 47:34.458
maybe would have helped them. I don't think they had it in their
47:34.484 --> 47:38.202
specification, but if they could have, just adding that to
47:38.216 --> 47:40.700
the claim might have helped them. Right.
47:41.930 --> 47:45.582
I was also just wondering too if the broader claim would
47:45.596 --> 47:50.026
have been okay had they had a few examples in their spec that said here's
47:50.158 --> 47:53.058
one way to do it, here's another way to do it. And obviously they had
47:53.084 --> 47:56.322
the structure there, so they would have just kind of packaged those into a
47:56.336 --> 48:00.322
few examples of again, we deserve this broad
48:00.406 --> 48:04.242
claim because here's four different ways to
48:04.316 --> 48:08.274
achieve this breath. Right? Yes. Again, a 112
48:08.432 --> 48:15.354
issue more so probably. Right. I know if
48:15.392 --> 48:18.606
this was invalidated due to 112, I think it
48:18.608 --> 48:22.254
would have been a lot less controversial. Would that have been correct?
48:22.352 --> 48:25.686
I don't know. But I feel like that invoking 101, in this case,
48:25.748 --> 48:29.542
really, things made matters worse.
48:29.626 --> 48:33.438
It didn't have clarity, it sort of made things more confusing. So I
48:33.464 --> 48:36.954
get why there's so much controversy about it. I think
48:36.992 --> 48:40.894
that's the bigger issue in general panel right now. I think they're kind of mushing
48:40.942 --> 48:44.998
together all of the things. Right. You have these practical application inventive
48:45.034 --> 48:48.680
stuff. In 101, you have some 112 issues
48:49.190 --> 48:52.410
and one on one and 112 being conflated.
48:54.050 --> 48:57.140
I feel like you're trying to make a one size fits all
48:57.650 --> 49:01.086
test, but then saying it's only under 101, you know what I
49:01.088 --> 49:04.160
mean? But yet it encapsulates all the difference.
49:06.050 --> 49:09.534
I don't know if I put that in, but almost exactly that. The Descent actually
49:09.572 --> 49:13.640
just said that in a paragraph that there's 101,
49:14.630 --> 49:18.562
it's carrying too much here. We just talked about natural
49:18.586 --> 49:21.882
laws in step two. Again, the defense like actually was
49:21.896 --> 49:25.700
just bringing up didn't agree that
49:26.270 --> 49:29.358
with the majority and that thought the majority was conflating 101 and 112.
49:29.384 --> 49:34.922
And Judge
49:34.946 --> 49:38.362
Moore says that the majority's concern is not preemption of a
49:38.376 --> 49:42.010
natural law, which should be the focus, but rather that
49:42.120 --> 49:45.550
the claims do not teach a skilled artisan how to do an aligner without
49:45.600 --> 49:48.658
trial and error. And it's clear from
49:48.684 --> 49:52.730
the claims themselves that the functional result is to drive shaft with reduced vibrations.
49:52.790 --> 49:56.350
It is undisputed that there exist many ways to attenuate these
49:56.400 --> 50:00.420
things, including these physical structures. And that
50:01.230 --> 50:04.454
the only remaining question is what a skilled artisan
50:04.502 --> 50:08.062
know how to adjust the mass, stiffness and positioning of the
50:08.076 --> 50:12.302
liner in order to damp vibration without undo experimentation.
50:12.446 --> 50:15.554
And then they said yes, this is a question of enablement,
50:15.602 --> 50:19.282
not eligibility. And this is
50:19.296 --> 50:24.502
what actually this is, this is the code I was looking for. That the
50:24.516 --> 50:27.970
majority to concern is with these claims is not the directed hook's law, but rather
50:28.020 --> 50:31.670
that they haven't claimed precisely how to tune the liner.
50:31.790 --> 50:35.950
And that he goes on to say the majority
50:36.270 --> 50:39.758
concludes that the event of concepts makes no difference and section
50:39.794 --> 50:43.502
101 should not be this sweeping and this manipulatable,
50:43.586 --> 50:46.874
should not be used to invalidate claims under standards identical
50:46.982 --> 50:51.074
to those clearly articulated in other statutory sections,
50:51.182 --> 50:54.422
should not subsume 112, should not convert traditional
50:54.506 --> 50:57.922
questions of fact like undo experimentation into legal ones.
50:58.056 --> 51:01.658
And the majority of validity Gulash is troubling and inconsistent
51:01.694 --> 51:04.238
with the patent statute and precedent.
51:04.394 --> 51:08.210
And the majority worries about result oriented
51:08.270 --> 51:11.974
claiming they are worried about result
51:12.072 --> 51:15.262
oriented judicial action, the last
51:15.336 --> 51:17.650
sentence in their dissent.
51:19.230 --> 51:23.014
So I think there's an open question if
51:23.052 --> 51:27.600
Judge Moore is correct, then would these claims be invalid under 112?
51:28.830 --> 51:32.242
I think there's a reasonable question there, but I
51:32.316 --> 51:36.430
definitely wanted to get to this because the majority actually responded to that since
51:36.480 --> 51:41.294
there was a modified opinion. This quote
51:41.342 --> 51:44.858
I just put up with from the 2019 and original opinion
51:44.894 --> 51:48.422
in 2020. The court says three the dissent criticizes
51:48.446 --> 51:51.842
our analysis as improperly merging enablement and eligibility.
51:51.986 --> 51:55.774
But we think the criticism rests on a failure to distinguish two different
51:55.872 --> 51:59.198
how requirements in patent law. The first requirement
51:59.234 --> 52:03.094
out of eligibility is of the claim itself, whether by
52:03.132 --> 52:07.382
its own words or by statutory incorporation of specification
52:07.466 --> 52:10.834
details under 112 F. 112 F is means
52:10.872 --> 52:14.246
plus function, right? So it is the claim.
52:14.438 --> 52:17.974
But when you have needs plus function claim, the claim has
52:18.012 --> 52:22.090
to be evaluated in reference to the specification.
52:23.430 --> 52:25.920
That gets really confusing really fast.
52:26.310 --> 52:29.962
And then they say it must identify how the functional result is
52:29.976 --> 52:33.970
achieved by limiting the claim scope to structures, et cetera.
52:34.290 --> 52:39.774
But the second distinct how requirement
52:39.822 --> 52:43.298
applies to the specification, not the claim. Where then the
52:43.444 --> 52:47.142
specification needs to teach someone how to make and use the claim structures.
52:47.286 --> 52:51.306
So their point was that this first how possibly
52:51.438 --> 52:54.830
under this means plus function umbrella,
52:55.450 --> 52:59.320
that there has to be enough.
53:00.250 --> 53:03.878
You can't just claim a result, there has to be enough in the
53:03.904 --> 53:07.946
claim itself to claim something that
53:08.008 --> 53:11.574
is concrete or else it's
53:11.622 --> 53:15.218
abstract or it's a natural law and therefore it is
53:15.244 --> 53:19.206
ineligible under 101. I think this is the sort of the best explanation
53:19.278 --> 53:23.202
I've seen that they've given for why they chose
53:23.286 --> 53:27.546
101 and not 112 for their analysis.
53:27.678 --> 53:31.742
So who has some sort of parting thoughts? I guess I
53:31.756 --> 53:35.282
just have one simple thing in my thought process.
53:35.416 --> 53:39.290
I never think about how when I look at 101
53:39.340 --> 53:42.618
eligibility, ever. This to me screams
53:42.654 --> 53:45.520
112 when you start asking how,
53:45.850 --> 53:48.880
but just an opinion. Go ahead, Ty.
53:49.930 --> 53:53.322
Interesting. I was just going to ask you David, what are your thoughts
53:53.346 --> 53:56.414
were in kind of like boiling this down? Do you feel
53:56.452 --> 54:00.270
that this is American Axel's failure
54:00.330 --> 54:04.300
to recognize the actual invention? Because to me it almost sounds like
54:04.750 --> 54:08.282
the actual invention they feel is just a tool on the
54:08.296 --> 54:12.062
way to the invention and maybe that's why they under disclose the
54:12.076 --> 54:15.160
specification. Interesting question.
54:15.730 --> 54:19.022
Did they not realize that the invention was
54:19.036 --> 54:22.758
the tuning or was it a business decision, for instance,
54:22.854 --> 54:26.502
to not provide a lot of details on the finite element modeling,
54:26.526 --> 54:28.854
et cetera, because they were trying to keep that trade secret?
54:28.962 --> 54:32.738
Yeah, it could have been in this like
54:32.764 --> 54:35.718
first to file world. I don't know. I guess when this is filed, maybe it's
54:35.754 --> 54:39.002
pre that, I don't know. But you always end up with a chicken or the
54:39.016 --> 54:42.482
egg problem, right? You have inventors who
54:42.676 --> 54:46.118
start to play around with something, right, and then you're like,
54:46.144 --> 54:49.398
oh wow, this is going to be huge, we got to get this on file.
54:49.554 --> 54:52.646
And then the one year date comes along and they're like,
54:52.708 --> 54:56.200
yeah, this is still totally going to work,
54:57.070 --> 55:00.254
we got this. But you know exactly how it's going to work.
55:00.292 --> 55:04.060
We're not sure quite yet, but hey,
55:04.870 --> 55:08.774
let's go ahead and file this broader patent because that's like,
55:08.812 --> 55:12.506
it's solid, we know it's going to be a thing and then we'll do another
55:12.568 --> 55:15.398
application later that's more species specific, right?
55:15.424 --> 55:18.938
That we're going to talk about this finite element analysis way
55:18.964 --> 55:22.730
of doing it and then we're going to talk about this other helical
55:23.170 --> 55:27.002
material properties way of doing it and whatever you
55:27.016 --> 55:30.122
have to wonder if I think that the first to
55:30.136 --> 55:33.700
file thing and provisional stuff are fantastic. But there is a little bit of this
55:34.030 --> 55:37.710
game that you have to play of when do we disclose.
55:37.770 --> 55:41.258
When do we convert? Is the one year the
55:41.284 --> 55:44.618
appropriate time to convert? Is there a way, should we refile the
55:44.644 --> 55:48.434
provisional and restart the clock? And I also wonder if there wasn't some
55:48.592 --> 55:49.780
of that happening.
55:51.670 --> 55:55.454
Interesting thought. Definitely there was one
55:55.492 --> 55:59.582
other argument that American Axle used which I
55:59.656 --> 56:03.858
didn't have time to get to, but in their prior
56:03.894 --> 56:07.386
art search and in their knowledge tuning,
56:07.518 --> 56:11.382
or rather attenuating bending mode vibrations
56:11.406 --> 56:14.402
in a drive shaft was never done before,
56:14.596 --> 56:18.686
ever using any liner of any kind. And so
56:18.808 --> 56:22.526
I actually wonder, like you were saying, Ty, they may not
56:22.588 --> 56:25.758
have thought that the invention so heavily relied
56:25.794 --> 56:29.270
on this tuning. I think they may have thought that, well,
56:29.380 --> 56:32.502
let's talk about what we did in these independent
56:32.526 --> 56:35.858
claims in a really broad way. Shoot for the moon. And then in our
56:35.884 --> 56:39.438
dependent claims, we're going to have all the detailed structural
56:39.474 --> 56:43.038
features that we use to achieve this result. And they may have been pleasantly
56:43.074 --> 56:47.440
surprised that claims 222 were allowed by the patent office.
56:48.430 --> 56:51.880
And I think that now they're just beside themselves.
56:52.270 --> 56:56.502
That like, wait, we have this structural,
56:56.646 --> 57:00.470
unique invention that no one ever did before. It's clearly a thing.
57:00.580 --> 57:03.914
It's not hook's law. And the
57:03.952 --> 57:07.538
way that the claims were drafted and the way that they chose one
57:07.564 --> 57:11.150
and 22 to be representative, and now the way that it's
57:12.430 --> 57:16.758
so broad with the tuning
57:16.794 --> 57:21.134
language and functional language, yes, it might have just been
57:21.172 --> 57:24.422
surprising. This whole thing might be surprising to them.
57:24.556 --> 57:27.878
In hindsight, maybe it makes sense, but not something that
57:27.904 --> 57:31.230
they thought about upfront. They thought they had this in the bag.
57:31.290 --> 57:34.826
They thought they had this great solid mechanical invention that no
57:34.828 --> 57:35.800
one ever did.
57:39.590 --> 57:45.166
They might have, but nobody knew the
57:45.168 --> 57:48.814
bathwater. Yeah. Well, one thing
57:48.852 --> 57:51.826
we hadn't considered here, and we'll never know, is,
57:51.948 --> 57:56.362
was this a case where you had one practitioner writing the claims and another,
57:56.556 --> 57:59.986
maybe more junior writing the specification and
58:00.108 --> 58:03.360
not having some of those tuning details? Just said,
58:03.810 --> 58:07.330
we just tuned it. These are the components used to tune it.
58:07.500 --> 58:11.162
This is some detail that I have and then filed
58:11.186 --> 58:15.194
it. I don't know. Yeah, they made the specs
58:15.242 --> 58:17.830
abstract and broad as well as the claims.
58:22.510 --> 58:25.646
Yeah. It would be interesting to
58:25.648 --> 58:28.466
be a fly on the wall for the history of this one.
58:28.528 --> 58:31.994
Right. How do we get to where we are?
58:32.152 --> 58:35.378
I feel like that's because American Axle, you don't normally know what it means.
58:35.464 --> 58:39.386
Right. It has a subscure name, but it sounds almost kind of dark. So I
58:39.388 --> 58:42.962
feel like you can do a documentary. American Axel History in the
58:42.976 --> 58:46.370
Making the controversial world
58:46.420 --> 58:48.170
of drive liners.
58:50.350 --> 58:53.450
Actually, get Josh on that interviewing.
58:55.570 --> 58:59.054
You do the investigative history, you find all the practitioners and the
58:59.092 --> 59:02.462
engineers and the business people at
59:02.476 --> 59:06.102
the company at the time. Why did you make the decisions
59:06.126 --> 59:09.806
you made? Right. People would probably actually
59:09.868 --> 59:13.238
watch it, given how much at least I would probably if I
59:13.264 --> 59:14.750
saw that on Netflix.
59:17.930 --> 59:21.646
Nice. Well, thanks everybody. It was a great discussion. Thanks for all your input.
59:21.838 --> 59:25.030
Thank you, David. Yeah,
59:25.080 --> 59:27.682
absolutely. Discussion. Bye. Thank you,
59:27.696 --> 59:31.246
guys. Bye. All right, that's all for today,
59:31.308 --> 59:34.894
folks. Thanks for listening. And remember to check us out@aurorapatins.com
59:34.932 --> 59:38.414
for more great podcasts, blogs, and videos covering all things patent
59:38.462 --> 59:41.446
strategy. And if you're an agent or attorney and would like to be part of
59:41.448 --> 59:45.274
the discussion, or an inventor with a topic you'd like to hear discussed, email us
59:45.312 --> 59:48.658
at podcast@aurorapatins.com do remember that this
59:48.684 --> 59:52.198
podcast does not constitute legal. You advice. And until next time, keep calm and
59:52.224 --> 59:52.720
patent on.
