FEDERAL CIRCUIT METHODOLOGY FOR DECIDING PATENT CASES BROUGHT BY INDIVIDUAL INVENTOR

So the Patent Office issued your patent. Now you have the priviledge of going to court and have your rights established against the corporate globals who are infringing your patent with impunity. Now listen carefully. First, remember, the legislators write the laws and appoint the judges, all paid for by the globals. Once in court, individual inventors get slaughtered by the simple method of summary judgment of patent invalidity without being heard on their claims of infringement of their patents by the globals and their requests for jury trials. Only the globals are permitted the full treatment. In effect, the federal courts are designed only to hear disputes between globals and to protect them from (patent, insurance, etc.) claims by individuals. In short, the federal courts are designed to crush individuals. See http://inventors.coolissues.com/fcourts.htm The present post will give you some ideas how this was done in a case involving U.S. Patent 3,950,635 issued to inventor James Constant. On summary judgement motions by 17 global corporations, the federal courts dutifully obliged by asking the global's hack attorneys to write up and then rubberstamping the global's facts and law.

A. Absence of Jurisdiction

[1]. The Constant '635 patent was held invalid under 35 USC 102 (b) in view of the Allen and Westerfield article (A&W)¹ and the Stalcup patent² and further was held invalid under 35 USC 103 in view of the Springer article³. Constant v. Advanced Micro-Devices, Inc., (CAFC 88) 848 F.2d 1560, 7 USPQ2d 1057, 1063, cert. den. 488 U.S. 892 (1988). However, a court's jurisdiction rests on the patent owner's claim of patent infringement and not on the alleged corporate infringer's defense of patent invalidity. Christianson v. Colt Industries (1988) 108 SCt 2166, 100 LEd2d 811. Had the inventor been heard on his claims of infringement, as required by Christianson, and proved that the global corporations were infringing his patents, judgment would have been in his favor. As it stands, the courts arbitrarily decided the case without jurisdiction, and without giving the inventor his due right to be heard on his claims of infringement by the global corporations. The inventor was permanently railroaded out of sight by courts acting without jurisdiction.

B. Fraud in the Administration of Justice

[2]. On merits, a claim is anticipated only if each and every element as set forth in the claims is found expressly or inherently described in a single prior art reference. Constant, supra at 1064. The A&W (Fig 24) and Stalcup (Fig 3) correlators are different from each other and the courts did not explain how these two different references can each describe each element of the invention claims. The references do not show the claimed digital delay RAM means, digital address counter, digital clock means and digital means for shifting signals, and are not identically connected. Stalcup does not use a digital multiplier but uses a comparator and both A&W and Stalcup show an analog filter not the claimed digital integrator. Nevertheless, the Federal Circuit Court held that each reference individually discloses all elements of the '635 patent. Constant, supra at 1063. Here, the Court held that the references both use magnetic core memories instead of disclosed semiconductor RAMs but concludes that "magnetic core memory is a type of RAM" and says that "The limitations on which the appellant relies (i.e. semiconductor, logn, address lines, connection through a decoder) are not stated in the claims" and "limitations concerning semiconductor RAMs and logn lines should not be read into the claims". Constant, supra at 1064. However, 35 USC 112 provides that means plus function language in a claim shall be construed to cover the structure described in the specification and equivalents thereof. Constant, supra at 1065. Thus, while the Court invokes 35 USC 112 to construe the claimed digital multiplier as an exclusive-OR gate described at col 4 lines 61-62, col 5 lines 17-18, col 6 lines 3-6, col 7 lines 13-15 of the '635 patent (favoring corporate infringers), Constant, supra at 1065, it refused to invoke this same statute to construe the claimed digital RAM, digital address counter, and digital clock means as semiconductors, with logn address lines connected through a decoder structures described in the '635 patent at col 4 lines 19-26, 47-57, col 6 lines 45-48 (semiconductors), col 5 lines 3439 (logn address lines), col 6 line 63 through col 7 line 9 (clock and address counter), (all favoring the inventor), Constant, supra at 1064. This is a double standard which amounts to fraud in the administration of justice.

C. Court Held Springer Reference Falls Short of Claim 1 and Relies Solely on the Artisan's High Skill to Invalidate the '635 Patent

[3]. Also, on merits, the courts say that it would be obvious to use the Springer reference disclosed in the '635 patent to make the claimed invention improvements. Constant, supra at 1063-64. However, the Court held that Springer's article, which describes a 4-chip semiconductor RAM shift-register, falls short of claim 1 of the '635 patent, Constant, supra at 1063. The Court does not explain where the artisan obtains an understanding of the problem of signal processors to be solved, as disclosed in detail in the patent?⁴ Here, the Court impermissibly invokes the high level of skill in the art to provide motivation. A lofty level of skill alone does not suffice to supply a motivation to combine. In re Rouffet (CAFC) 7/15/98 No. 97-1492. To imbue one of ordinary skill in the art with knowledge of the invention in suit, when no prior art reference or references of record convey or suggest that knowledge, is to fall victim to the insidious effect of a hindsight syndrome wherein that which only the inventor taught is used against its teacher. W. L. Gore & Assocs., Inc. V. Garlock, Inc., 721 .F2d 1540,1553, 220 USPQ 303,312-313 (CAFC 1983).

D. Court Overlooked The Prior art as a Whole

[4]. As shown in the '635 patent, the prior art does not go beyond the single chip digital semiconductor devices with shift registers identified at col 1 lines 33-46, col 2 lines 3-8, col 5 lines 6-15. The Court overlooked the substantial evidence provided in the Whitehouse, Byram, Buie and Brewer references. Thus, the disclosed Whitehouse Fig 14 device which, at the time of the present invention, implements a single semiconductor chip signal processor with shift registers not RAMs. Whitehouse, Byram, Buie and Brewer, were top U.S. and NATO experts who represented the real world state of the signal processing art at the time the invention was made and, thus, more expert than the skilled artisan whom the Court says in Constant, supra, could clearly use Springer's 4 chip RAM shift register to obviate the invention.

E. Other Reasons Why the Court's Decision was Wrong

[5]. As held by the Court, Constant, supra at 1063, Springer's reference falls short of independent claim 1 of the '635 patent and thus lacks identity of function under 35 USC 112 4th par. Springer fails to suggest the problem of signal processors and solution provided by the invention. Other than the inventor's disclosure in the '635 patent, Springer does not show or suggest the improved elements of the '635 invention.

[6] The Section 103 rejection is arbitrary because the Court has not shown that the Springer reference shows or suggests the improved element itself, namely,

a. The digital implementation of matched filters and correlators (independent claims 1,10 and 11);

b. The digital implementation of matched filters and correlators DELTIC circuit with and without RAMs (dependent claims 6,8,12,13);

c. The digital implementation of matched filters and correlators which shift signals from location to location in the memory (dependent claims 9,14).

Indeed, the Court held that the Springer reference falls short of independent claim 1 of the '635 patent. Constant, supra at 1063. Thus, relying solely on the inventor's disclosure and old art cited in the '635 patent, but overlooking the prior art as a whole, the Court concludes that the skilled artisan would clearly recognize the foregoing improved elements of the invention without specifically pointing to where the prior art shows or suggests these elements. Obviousness is a legal question based on factual inquiries. Constant, supra at 1065. Such factual determinations include what a reference teaches and whether a reference teaches toward or away from the claimed invention. In re Bell, 991 F2d 781,784, 26 USPQ2d 1529.1531 (CAFC 1993). The Court's conclusions of law, on obviousness, are based on conjectures not facts. "If the prior art does not show or suggest the improved element itself, it defies logical reasoning to say that the same prior art suggests the use of that improved element in a combination". In re Bernhart, 417 F2d 1395, 163 USPQ 618 (CCPA 1969). Accord: Radio Steel & Mfg Co. v. MTD Products, Inc., 731 F2d 840, 221 USPQ 657 (CAFC 1984), cert. den. 469 US 831 (1984).

[7]. It is well settled that the only proper basis for an old combination rejection is "that portion of Section 112 which requires that the claims specifically point out and distinctly claim the invention". In re Bernhart, 417 F2d at 1403, 163 USPQ at 618.

SUMMARY

[8]. From the foregoing it is clear that the 1988 decision in Constant, supra was made in the clear absence of jurisdiction of the subject matter, and in fraud of the administration of justice. And, on merits, the Court's legal decision in Constant, supra is so far removed from factual matters and the reality of the signal processing art at the time the invention was made so as to invite open contempt. Except for its use of the Stalcup patent replacing the Swan patent, the Court's decision in Constant, supra, on the issue of obviousness of the '635 patent, suffers the same defects rejected by the examiner who allowed the '635 patent to issue. The judicial method arbitrarily assumes jurisdiction of the subject matter and arbitrarily cherry-picks facts and law to make opinions thus favoring the global corporations. Internet search reveals that Constant, supra is now a precedent in several hundred cases, i.e., a complete breakdown of the patent justice system.

[9] That the global corporations can hoodwink the courts and obtain the Court's decision in Constant, supra, is understood. They do this all the time with high powered law firms. Relying on the court's arbitrary use of summary judgement, skipping the facts and law favorable to the inventor, using double standards and the mythological artisan's skill to overcome all differences between the invention and prior art, and overlooking the real world state of the prior art, is the standard procedure. That the courts fail to protect the individual inventor is evidence of their inherent bias to protect the globals from their infringement of the individual's patents with impunity.

[11] This is a case that affects every inventor who still believes in the fairness of the patent system. But wait, you have only heard half of the story. What remains to be told is how inventors who challenge the system get shipped off to America's version of the Siberian gulag. In this saga, the inventor filed complaints against the global infringers, and against federal judges for fraud in the procurement of the judgment in Constant, supra. See at http://petitionforcertiorari.coolissues.com/89-425.htm. These were, of course, denied and severe costs and sanctions were imposed on the inventor. Like their Nazi and Soviet ideals, America's judges are absolutely immune for actions taken in the clear absence of all jurisdiction and for violations of civil and constitutional rights.

[12] The inventor was driven to bankruptcy court in 1989 where he again claimed relief from the illegal acts of the global corporations and federal judges. These were all denied by the corporate tethered lower courts and the Supreme Court, our ultimate bastion of fairness, denied all the inventor's Petitions for Certiorari. See at http://petitionforcertiorari.coolissues.com/93-1413.htm and http://petitionforcertiorari.coolissues.com/93-1518.htm. No longer infringers but now as creditors, the global corporations responded by calling on the bankruptcy system to illegally, under state laws, take the inventor's remaining unused patents, his sole assets, see at http://petitionforcertiorari.coolissues.com/94-782.htm, and to illegally, again under state laws, ignore the existence of patent liens recorded in the Patent Office against these unused patents, see at http://petitionforcertiorari.coolissues.com/94-1177.htm. The globals pursued this strategy for the purpose of defanging the inventor and keeping him from bringing similar suits against them. The courts obliged by taking the inventor's unused patents and selling them to the globals. As creditors the globals were not interested in getting money but in getting the inventor's unused patents and using inherent judicial system delays to keep the inventor in perpetual bankruptcy. The courts issued pre-filing orders gagging the inventor and refused to determine jurisdictional issues. See at http://petitionforcertiorari.coolissues.com/94-1257.htm and http://petitionforcertiorari.coolissues.com/96-1177.htm. In succession, the Ninth Circuit decided patent issues under state laws in violation of its jurisdiction, see at http://petitionforcertiorari.coolissues.com/96-1178.htm and http://petitionforcertiorari.coolissues.com/98-1972.htm; decided patent issues in conflict with California state laws and in violation of federal patent laws, see at http://petitionforcertiorari.coolissues.com/98-1151.htm; and refused to actually litigate and finally determine its jurisdiction to void, assign, and sell patents under California state laws. See at http://petitionforcertiorari.coolissues.com/99-396.htm.

[13] Now, having obtained the inventor's patents illegally by judicial fiat, the globals have recorded their ownership of inventor's patents in the corporate tethered Patent Office in violation of patent statute 35 USC 261. The inventor's bankruptcy is still pending through 2001. The celebrated rule of law and patent law is mythology. In effect, there is no supervision of the courts which now rule as the erstwhile Nazi gauleiters and Soviet Commissars did. Individual inventors are being crushed by the federal courts whose mission is to protect the global interests. To all those innocent inventors who still believe in the patent system, the rule of law and courts, the message is clear. When you go to court against the globals, you put yourself, your business, your family, and your time and money, at liquidation risk by the politicians, judges, and lawyers, all paid for by the globals.

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¹ The Journal of Acoustical Society of America, January, 1964, page 121.

² 3,295,107

³ Disclosed in the '635 patent at col 4 lines 19-24.

⁴ See '635 patent col 2 lines 47-50,51-55; col 2 line 64 through col 3 line 2; col 3 lines 36-69; col 6 lines 31-37,43-58.