Burman York (Bud) Mathis III is a sole-practitioner in the Washington D.C. area with experience in patent drafting and prosecution, opinion writing, due diligence, litigation and appellate work. Mr. Mathis technical expertise and experience is far-ranging. For example, Mr. Mathis’ experience covers a wide variety of highly-technical subject matter that includes wired and wireless communications (including MIMO, 3G, 3GPP/LTE, D2D and 4G technology), analog and digital electronics, image processing, semiconductor devices and processes, solid-state physics, material science, printers and copiers, projectors, cameras, speech recognition and synthesis, xerography, cryptography, control systems, magnetic and optical disc technologies, fiber optics, MEMS technologies, nanosensors, GPS navigation systems, software, computer networking and business methods.
Last June, Gene Quinn published an iconic article, “Yu v. Apple Settles It: The CAFC is Suffering from a Prolonged Version of Alice in Wonderland Syndrome,” in which Mr. Quinn evokes Lewis Carrol’s White Queen, “who was known to have sometimes ‘believed six impossible things before breakfast’” to describe the ridiculous nature of the Yu. v. Apple decision. To Judge Taranto’s credit, the Yu v. Apple decision is a remarkable read, so long as one knows nothing of photography and nineteenth century art history. However, in less than three months after Yu. V. Apple, the Federal Circuit would progress from mere fiction to fantasy / science fiction in both the In re Killian case (in which the author served as counsel for Killian) and the more recent case of In re Jason Smith, Appeal 22-1310 (Fed. Cir. Aug. 9, 2022), in which Judges Lourie, Dyk, and Hughes rejected Smith’s claims in an act that is aptly described as “jumping the shark.”
[Editor’s Note: Bud Mathis is counsel for Killian]. The average attorney reading the recent opinion penned by Judge Chen and joined by Judges Taranto and Clevenger in In re Killian (Appeal 21-2113) might agree with Judge Chen’s conclusion that, “[w]hile there are close cases under the Alice/Mayo standard, the ’042 application does not present such a close case[.]” To this statement, I, Killian’s counsel, respond that, every time any claim comes close, the Federal Circuit engages in a predictable fiction in which the court: (1) announces that a claim is directed to “a something” described in such a broad and vague manner that “the something” barely resembles the claim at issue, (2) declares that “the something” that barely resembles the claim at issue is “abstract” based on no evidence or analysis, and then (3) declares that the remaining claim limitations lack an inventive concept.
For anyone surprised about the Supreme Court refusing certiorari in the America Axle v. Neapco case after the Department of Justice (DOJ) (aided by the Solicitor’s Office of the U.S. Patent and Trademark Office [USPTO]) submitted its brief for the Supreme Court’s review, the question arises: why would anyone be surprised? The brief at issue is garbage, and one wonders what exactly its purpose was.
To save time for concerned readers, the DOJ’s brief may be summarized as follows: (1) a bunch of decisions were made on patent eligibility by the Supreme Court over the last 50 years; (2) the Federal Circuit is divided on the exceptions to patent eligibility; and (3) the Solicitor would like clarification as to what is abstract and what is an inventive concept, but not if it involves evidence. That is, the DOJ and PTO now demand more subjective theory on Alice-Mayo while deliberately eschewing any objective basis for the test despite the fact that the claims in Bilski, Alice, and Mayo were considered abstract based on evidence in the record.
In 1950, Jimmy Stewart starred in the iconic movie “Harvey,” which is the story of Elwood P. Dowd, an affable but eccentric man who pals around with an invisible 6’4” rabbit with an affection for martinis and that has the magical power to stop time. In the end of the movie, the viewer is left to believe that some level of insanity in people is good, and that there is some possibility that Harvey actually exists in some form. Fast forward to May 5, 2022. While many Americans were celebrating Cinco de Mayo, the Federal Circuit was asked to address an entity far more fictitious and unbelievable than Harvey the Rabbit, known as “inventive concept,” during oral hearing in In re Killian (Appeal No. 21-2113).
As stated in Part One of this series, the Fifth Amendment of the U.S. Constitution guarantees, inter alia, that no person shall be deprived of property (including intellectual property), without due process of law. However, the Supreme Court has never held that a single appellate court must comply with Fifth Amendment due process of law. The closest the Supreme Court ever came to such a radical idea as requiring any appellate court in the nation to comply with due process of law was at a time when “Three’s Company” and “The Muppet Show” dominated the 7PM-9PM Nielsen’s ratings. See Singleton v. Wulff, 428 U.S. 106 (1976) (warning the Eighth Circuit that “injustice was more likely to be caused than avoided by deciding the issue without petitioner’s having had an opportunity to be heard,” but not actually requiring the Eighth Circuit to comply with Fifth Amendment due process). In contrast, the Supreme Court has held that even a man classified as an “enemy combatant” by the U.S. government is entitled to at least some measure of due process. See Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
The Dunning-Kruger effect is often defined as a type of cognitive bias whereby people are prone to vastly misjudge their competence. For example, smart and capable people tend to evaluate their skills and competence downward. That is, they tend to not just understand, but deeply internalize the idea that there’s a lot in life that they don’t understand. Circa 500BC, Confucius coined this wisdom stating, “Real knowledge is to know the extent of one’s ignorance.” Then there’s the flip side, where low ability and/or low knowledge people overestimate their own capabilities while simultaneously being unable to recognize their own incompetence. One-hundred and thirty years (give or take) before David Dunning and Justin Kruger conducted their studies on the issue, Charles Darwin described this effect, stating, “ignorance more frequently begets confidence than does knowledge.”
The Fifth Amendment of the U.S. Constitution guarantees, inter alia, that no person shall be deprived of property (including intellectual property), without due process of law. For instance, it is settled law that a federal statute may be so arbitrary and capricious as to violate due process. Similarly, it is settled that an administrative agency, e.g., the U.S. Patent and Trademark Office (USPTO), cannot escape the due process of law requirement when processing patent applications. In theory (less in reality), due process of the law extends to judicial as well as political branches of government, and judgments that violate constitutional limitations and guarantees are void or voidable.
Reading the recent opinion of Judges Prost and Taranto in Yu and Zhang v. Apple and Samsung, Appeal Nos. 2020-1760, 1803 (Fed.Cir. June 11, 2021), I’m reminded of something Mark Twain never said: “There’s a lie, there’s a damned lie, and then there’s an Alice-Mayo decision.” Granted, it is hard to tell one Alice-Mayo decision from another. At face value, the Yu decision appears to be merely the latest absurdist fiction in a collection of short stories based on the abandonment of conventional law. Yet, the Yu decision is more than the typical Alice-Mayo scenario where logical construction and argument give way to irrationality in a senseless judiciary.