Wednesday, March 21, 2018

Kafka's The Trial infiltrates patent law blog

In a post on IPBiz in the year 2005, LBE quoted from a law review article on judicial citations to the work of

Parker B. Potter, Jr., Ordeal by Trial: Judicial References to the Nightmare World of Franz Kafka, 3 Pierce L. Rev. 195 (2005)["Since the mid 1970s, however, Kafka's name has appeared in more than 400 opinions written by American state and federal judges."]


Judge Schiller explained his reference to Joseph K. by quoting from
The Trial: "'You can't go out, you are arrested.' 'So it seems,' said K. 'But what for?' he added. 'We are not authorized to tell you that. Go to your room and wait there. Proceedings have been instituted against you and you will be informed of everything in due course.' "
In The Trial, Franz Kafka depicts the plight of Joseph K., a young
man entangled in the arcane and inscrutable webs of the law. Unable to navigate "the system" 's labrinthine sic ways on his own, Joseph K. implores the aid of a distinguished yet equally cryptic attorney. Instead of illuminating his client's situation, however, the attorney only compounds the darkness. Thus the legal
system, which should mediate between an individual and society, itself became a vehicle of alienation used by the attorney against his own client.

link: Overzealous patent attorneys lead to client disenchantment

In the year 2018, a patent law blog has likened the world of the Alice decision to Kafka's The Trial

In Franz Kafka's novel The Trial, a man is accused of a non-specified crime by a shadowy governmental agency. The man repeatedly attempts to understand the nature of his alleged wrongdoing and his accusers. Ultimately, he is executed without these questions being answered.

Under current Supreme Court and Federal Circuit rulings (Alice Corp. v. CLS Bank Int'l and its progeny), a patent can be invalidated or an application can be rejected simply by (i) making a high-level analogy between the claimed invention and one that has been previously found to be directed to a patent-ineligible law of nature, natural phenomena, or abstract idea, and (ii) stating in a purely conclusory fashion that the additional elements of the claim are well-understood, conventional, and routine. Kafka might crack a sardonic smile at this situation.

link: Whether Facts Matter in the Patent Eligibility Analysis: HP Files Petition for En Banc Rehearing

Discussing Berkheimer v. HP, the Patent Docs post stated:

This line of cases, all but one involving Judge Moore in the majority opinion, has sent patentees, practitioners, and commentators into a minor tizzy. And certainly it has opened the door for a number of interesting questions: What does it take for a patentee to establish that there is a material issue of fact? Will § 101 disputes become a battle of experts? Will § 101 issues now need to be explained to a jury? How "understood" does a claim element need to be in order to qualify as "well understood?"

In a move that surprised absolutely nobody, HP filed for en banc rehearing of the appeal.


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