In re Netflix (Fed. Cir. 2022)
This was an easy mandamus transfer. The plaintiffs, CA Inc. and Avago Technologies Int’l, are both subsidiaries of Broadcom Corp. The plaintiffs are both headquartered in San Jose and Broadcom is down in Southern California. Netflix is also Silicon Valley. Still, the plaintiffs sued Netflix for patent infringement in the Eastern District of Texas. Although Netflix itself does not have a place of business in EDTex, the district court found that its intimate relationship with ISPs to provide local content delivery was sufficient. The vast majority of Netflix content is delivered directly from local residential Internet Service Providers (ISPs).
The district court also refused to transfer for inconvenient forum. Although N.D. California was certainly the locus-of-relevant-events, the court noted court congestion and access to evidence weighed against transfer. Although the source code is located in N.D. California, the court saw no evidence showing that it would be difficult to get that data to Texas. Netflix does have more internet traffic than any other company, right!
On mandamus, the Federal Circuit only addressed the inconvenient forum question — ordering the case transferred. The appellate panel particularly focused on the district court’s apparent bias against transferring venue. In particular, the district court discounted Netflix arguments of evidence availability because Netflix did not “articulate the precise way that the evidence supports its claim or defense.” At the same time, the court did not place the same precision requirement on CA regarding its evidence. This bias was improper:
[W]e see no basis for reasonably demanding more from Netflix than it provided at this stage of the litigation, when a transfer motion must be filed and ruled on. . . . Nor have we been shown any reasons here to doubt that the documents and sources would be relevant and material to the issues here.
Id.
Venue – we have a very broad federal venue statute, except that it is super-narrow for patent lawsuits. Should we expand patent venue?
— Dennis Crouch (@patentlyo) January 19, 2022
Greg, thanks for the reference and the good question why not just advocate to limit the “process” category to “processes for the physical transformation of matter”?
Firstly, that would directly contradict Bilski, which is a problem. Secondly, that doesn’t solve the policy problem of items like encryption, compression, novel algorithms for information processing & other information controls/results that provide incremental utility in a variety of applications – the policy problem being that many people intuitively belive that patent protection is appropriate for those technologies. It does solve the problem of new and useful information that people use to make useful decisions or perform useful acts- a problem that has to be solved because subjecting that utility to patent protection is in tension with human freedom and the expansion of human culture.
I’m fine with MM’s policy preference that no information results be allowed, but I don’t think that can find consensus, and again, this is a political problem. Law and policy simply cannot be separated.
On policy and law- I liked this item
link to ballsandstrikes.org
Test post
The Ds are (ostensibly) not fans of big business and the Rs are not happy with big tech- it seems like right now there should be a compromise position possible where companies of some threshold value or threshold sales can be sued where their services/products are consumed.
The right to sue (seek redress through the courts) cannot be so limited to “size”
The fees to obtain a U.S. patent are already severely percentage-wise discriminatory against large entities as compare to two smaller size entities, and no one has challenged that. Should they?
severely….?
Are you neglecting the expressed desire of Congress for that “severity?”
Wandering, Routers and switches and and fiber lines are not abstractions.
The IP protocol is intangible, but not abstract, because no human mind uses IP data to arrive at a meaning. Without mind or meaning, there can be no abstraction.
The graphical presentation of Netflix’s movie selection menu, on the other hand, is a complete abstraction because its meaning is only useful to the mind of a user.
Try to keep up anon. Now we have a new thread for you to fall behind upon.
Traffic lights.
You are overlooking the fact that ideas are tangible.
I actually was not aware that ideas are tangible. Can you elaborate?
Ideas are comprised of thoughts and thinking requires space and energy. Therefore, to the extent that consuming space and energy makes something tangible, ideas are tangible.
You may well be confusing the thinking of an idea with the idea itself.
Certainly, in the grey mass (sometimes more, sometime less) of the physical physio/electro-chemical tangible mass of a brain – in which the obtuse and purposefully misleading reference to Night Writer’s views was cogitated, “thinking” occurred in a tangible instant.
But the map is not the land, and the thinking is not the idea.
Well I’ll be….twice a day!
You are confusing ideas and expressions of ideas. Also, your confusion consumes space and energy.
My pal NS II
On the contrary, the act of expression is quite separate from my reply and involves different physical elements.
You project confusion in error, and need to look within.
As is typical.
Also – as the count filter is active and my posts are limited (today), consider your double posts below to be picked up here — as would be fitting because there I did NOT in faact change the subject, and merely reflect back to you your obtuseness here. YOU were the one that put forth the type of “actual physical” present, so I just threw that right back at you.
I noticed that you attempted to move the onus to me, but I reject that – the ball remains in your court.
Please Pardon Potential rePeat (filter yet again)
Your comment is awaiting moderation.
January 20, 2022 at 3:45 pm
You do realize that “traffic lights” works against you, eh?
But you keep on being you (and by the way, you have fallen behind again on the other thread, so your recrimination mirrors your oh-so-typical state of being wr 0 ng, yet again).
Whoever may be scoring these threads doesn’t need to pay much attention. You’ve been playing for the Generals for years. Someday you might score a bucket, but not really, I’m just being nice…
You are not being “nice” in your errors and your running away.
It is delusional for you to think that what you are doing is “being nice.” Just as it is delusional for you to think that you need not bother understanding the terrain upon which you would do battle.
But go ahead and you be you and say things like “traffic light” that show how far into the weeds you are.
(Reference to me as playing for the Generals when you do such things is ironic beyond measure)
Martin, I have a question for you.
I get your definition of abstraction as only something that is consumed by a human as an abstraction can only exist in a human brain.
OK. Interesting. But why would a graphical display of a menu be an abstraction? You could say that the human views the display as an abstraction but that doesn’t mean the display itself is an abstraction only that its perception is an abstraction.
Martin, et al, there have been endless dictionary-type semantic arguments about unpatentable claim “abstractions” since neither the Supremes or the Fed. Cir. have defined it. But for anything like a patent-useful definition one can only look at what kind of patent claims the cases have applied it to, and that includes broad “preemption” or “any way to get the desired end result” claims, not decided by dictionary-type semantic arguments, such as arguments about “tangible” or “ideas.”
Paul,
IF ONLY what you say were true and not bogged down by the Gordian Knot present in such cases — as has been expressly noted by leading members of all three branches of the government (as well as yours truly).
Your suggested path is already in the weeds.
Night lets make sure we are talking about the same things. The vehicle of the display: the screen, the graphics drivers, all the software that’s used to arrange pixels etc. operate without regard to what’s being displayed. None of that is abstract, even if the software elements are intangible. The utility is of an identical nature for every user.
But once we start talking about the human meaning of the information shown- the aesthetics of the arrangement, or the utility arising when a person makes a decision or completes an act- that utility is different for every user: useless for some, delightful for others.
The meaning, and thus the utility, is an absolute abstraction.
Maybe you like to close windows with click in the corner, and someone else with a click in the middle…that “utility” is in the eye of the beholder. It should not be protectable by a patent. Maybe you like a map of stores in the mall with color codes, and others like a map with a 3D projection, and others like a map with the stores arranged by type, and others arranged by alphabetical order. Patenting how a map is displayed to a person is patenting a complete abstraction and should not be allowed.
It need not even involve a computer. In the case of maps: the arrangement and display of a map fixed in any medium is subject to copyright, even though the utility of the map in question may be the reason to use it.
Yet if the media is better, it can (and should) be patented, because the improvement does not depend on the specific information contained in the media being improved.
Information used by people for human purposes should be beyond the reach of the patent system.
Information used by non-human actors offers the same utility to each of those non-human users, and is machine component, properly the subject of the patent system.
Paul, the fact that so many consequential results flow from the meaning of the word “abstract”, while the word remains completely undefined, is a failure of due-process.
Martin, machines and humans now perform very similar functions in information processing. So information provided to a human is valuable.
But you didn’t answer my question. I am asking about the structure that is generating those menus/interfaces. There is structure there. A machine with structure that requires space, time, and energy to produce those structures. Remove the human if you want, but still there is a machine there that is producing menus.
And I keep saying the utility aspect to produce A menu should be eligible, but the human utility of THE menu should not be. The distinction is where the utility happens- in a human mind is abtract & off limits.
What you keep saying, Marty, lacks connection to the terrain of patent law.
“the human utility of THE menu should not be.”
The ONLY utility of a traffic light IS IS the human utility.
ALL utility – in the patent sense – is necessarily evaluated in the human mind.
Marty – until you grasp this terrain, the ‘battle’ that you choose to engage in is ever lost to you.
You keep saying that, and you are wrong. The fine arts offer utility, and nothing in the patent act says they are off limits, but they are. Games offer utility, but principled people differ if entertainment is the kind of utility that should be covered. Technical diagrams offer utility, but they are off limits, and nothing in the patent act says they should be. Printed matter offers utility….but…..
So, using your favorite construction, you are wrong
“You keep saying that, and you are wrong.”
No, I am not wrong – and YOU keep on getting what I am saying wrong – most likely BECAUSE you cannot be bothered with the terrain of patent law.
Here:
You misstated my views (and I corrected you – and you ran away): link to patentlyo.com
And now you misstate again:
“ The fine arts offer utility, and nothing in the patent act says they are off limits, but they are.”
Useful Art – ever hear of that? You should. I make it a point all the time. Fine arts are expressly outside of the Useful Arts.
Quite in fact, I was explicit in drawing the distinction between playing a violin (Fine Arts) and making a violin (Useful Arts) directly in the hyperlink above.
I also state the actual two statutory aspects of 101 (as understood by those who know the terrain):
link to patentlyo.com
“Games offer utility, but principled people differ if entertainment is the kind of utility that should be covered.”
ALSO covered – and the notion that “principled” somehow means that it is ok to get the law wrong is just not so.
“Technical diagrams offer utility, but they are off limits, and nothing in the patent act says they should be.”
And “Printed matter** offers utility….but…..”
BOTH not within the Useful Arts.
“So, using your favorite construction, you are wrong”
Quite the opposite – thank you.
** And I chuckle at your inclusion of this – ask Malcolm for the lessons that I B E A T him down with on the patent sense of that phrase. Better yet, take my lesson and discuss it with your current patent counsel. Let me know how that goes.
“technical diagrams arent useful arts”…id i ot
also where is the statuatory basis for that?
As mere information (other than fitting into one of the exceptions to the Printed Matter Doctrine), you are STILL in the weeds.
Statutory basis is the same: the Useful Arts.
Come now marty – let’s not pretend that I have not given answers to your questions already.
By the by – have you had that discussion with your patent counsel on the Printed Matter Doctrine (and its exceptions)? Let me know how that goes for you.
I don’t Martin.
What does that mean the utility in the human mind?
Let’s suppose that an interface enables a human to select three choices each of which cause a corresponding door to open.
Is the utility of the interface in the human mind? The interface is typical controls that enable interaction with the machine or another machine.
I get that the utility gets a little more tricky to talk about if it is information that is then used in something else by the human.
So why aren’t controls to a machine patentable?
Martin is describing what he thinks that the law should be, not what it is. I think that he would be the first to agree that his theory of 101 does not explain the actual results of actual cases. Rather, he is describing what he believes to be the rule that should govern 101 disputes (IMMV).
Because the utility arises from the door opening, the subject of the patent, i.e. the useful result of the method, is the opening of a door.
If the menu suggests which door a person might want to open, it’s a totally different form of utility.
Greg, of course you are correct.
What Greg — and marty — both leave out is that the view that marty WANTS the law to be is divorced from the terrain of patent law.
Sure, he WANTS.
So what?
Greg I do apply the concept to the historical eligibility cases here
link to papers.ssrn.com
The “Printed Matter Doctrine” has no statutory basis, and as common law its built on the same quicksand as the judicial exceptions; essentially just normative views of knowing it when they see it.
Meanwhile, my test easily accommodates printed matter without Ru be Goldberg variations of substrates and functions.
Naturally the terrain here is not patent law at all. It’s politics, because this is a political problem. And I’m not just fighting for it on blog posts. So whose views matter is the same as always- the people who move the needle, this way, or that way. I have all the time in the world, until I don’t.
Also I haven’t had patent counsel for years because I haven’t been involved in any litigation. Hopefully it stays that way.
“Naturally the terrain here is not patent law at all”
Because understanding the fundamentals of patent is “not patent law at all”
And thus, marty cannot get out of his own way.
“Also I haven’t had patent counsel for years because I haven’t been involved in any litigation. Hopefully it stays that way.
??? Just the other day you mentioned that you and your brother are prosecuting some patent applications. Patent Counsel INCLUDES (and more correctly ONLY includes) such, as litigation counsel may (and importantly may NOT) be genuine patent counsel (that is, an attorney with proper USPTO registration).
marty – would love to see you say that to your current patent counsel and see what they would honestly tell you.
You are deeper in the weeds than I previously thought.
This is not a particularly important question, Martin, but researching some old case law, I discovered that the U.S. used to have a rule that one could get a patent on a drug or medical device, but not on a method of treatment. See, e.g., Ex Parte Brinkerhoff, 24 Commr. Dec. 349 (1883).
If your contention is that only method claims pose a problem for “abstractions,” then instead of advocating your “data for machines vs data for people” rule, why not just advocate to limit the “process” category to “processes for the physical transformation of matter”? Then people who invent data processing inventions related to machines could simply claim the machine, instead of the process (just as Brinkerhoff was free to claim his speculum, but not a method of using the speculum).
Just weird that people don’t realize that if you are providing a service through the internet to people in a location that yes they should be able to sue you where you are providing the service.
Remember that Netflix could not provide that service to those people if they don’t want to be sued there.
Plus, there is a reality of actual hardware that is actually being placed near people to provide that service. Again we get this weirdness where people don’t get that information processing is a physical process. Netflix is putting physical objects there to provide a service. Those physical objects consume space and energy.
And please. Prost, Taranto, and Laurie? The three all need to be removed. They are judicial activists that have no understanding of information processing and have no desire to build a consistent body of law to administer patent law.
Just absurd the view that somehow information processing is not a physical process.
Just replace the idiotic comments below with they just have a steel mill in their district. That shouldn’t count.
Information processing is a physical process. Netflix is putting servers in the district to service the people of the district. Physical objects that take space and energy. Yes Netflix is using others’ services. So what? That shouldn’t matter. It is like saying it doesn’t count because you sublease a steel mill but the steel mill actually owned by another company.
Think of information processing as a physical process, which it is, and all your ridiculous thinking will disappear.
Just absurd the view that somehow information processing is not a physical process.
Just replace the comments below with they just have a steel mill in their district. And imagine an argument that a steel mill shouldn’t count.
Information processing is a physical process. Netflix is putting servers in the district to service the people of the district. Physical objects that take space and energy. Yes Netflix is using others’ services. So what? That shouldn’t matter. It is like saying it doesn’t count because you sublease a steel mill.
Think of information processing as a physical process, which it is, and all your incorrect thinking will disappear.
The CAFC did not decide that venue was improper in the ED Tex. The CAFC merely decided that the convenience of the parties was best served by moving the case to ND Cal, as 28 U.S.C. §1404 requires under applicable 5th Circuit interpretation of that statute.
Nothing about this decision implies that data processing is not a physical phenomenon. It is simply an accurate recognition of where the witnesses and evidence are located.
Greg, are you daring to suggest that the only thing relevant in EDTX, a partially rented file server, cannot be subpoenaed, deposed and cross-examined like a person? [Attempted humor while snowed in.]
Worth emphasizing:
“ as 28 U.S.C. §1404 requires under applicable 5th Circuit interpretation of that statute.”
As the 5th Circuit has not taken any disciplinary action, it should be clear what the 5th Circuit thinks.
But the CAFC cannot be bothered with that, now can they?
Good point.
So for convenience we only consider in-person interactions but for the delivery of the product that Netflix offers we only consider Internet considerations.
What difference does “delivery of the product” or not* to one rural district make in any patent suit?
Notwithstandign Greg’s fallacious attempt to dismiss the notion that one who chooses to take a benefit — even in that one rural district — should not so easily evade ALSO taking the flip side of that coin of their choice, and the risk — even in that one rural district; consider that a patent is NOT a ‘local’ right, but is instead a Federal one and SHOULD APPLY through out. Greg wants to distinguish on a point of convenience (while ALSO – conveniently – omitting the permissive nature of the law AS IT IS; as well as look the other way when what is happening is that the CAFC is substituting ITS choice for the choice of the district.
As I note, the 5th Circuit is free to admonish any its judges with its district, and the fact that it has not should indicate that what is going on there is in accord with its view of the law AS IT IS.
this is gibberish. The Fifth Circuit does not have appellate jurisdiction in patent cases; rather, the Federal Circuit has exclusive jurisdiction of such appeals. The fact that the Fed Cir uses 5th Circuit venue law in no way gives the 5th Circuit the right to do anything (much less a right to “admonish” any judges for patent rulings). If this was civil procedure class you would be flunking out.
You misunderstood the point (and you would be the one flunking out).
The fact that the Supreme Court of Brazil has not admonished Judge Albright demonstrates that everything is copacetic. Meanwhile, no conclusions should be drawn from the failure of the CA5 to admonish the CAFC.
It is CA5 admonishing the judges of CA5 that is at point, oh obtuse ones.
Filter….
… not too difficult to follow this from 6.2.1.2…
Unless patent claims directed to information processing recite a physical process, what is your point?
Given your (purposeful) obtuseness above, what is a non-physical information processing process?
Why are you changing the topic? I’m talking about claims, which are comprised of words. Have you ever seen a patent?
Please show me the physical process portion of a claim directed to adding two numbers together.
See above at link to patentlyo.com
It certainly is a business choice to make money at the end location, and one entirely within the power of the provider to make.
But that little factor won’t make it on to Greg’s list for consideration.
“Just weird that people don’t realize that if you are providing a service through the internet to people in a location that yes they should be able to sue you where you are providing the service.”
I think it’s weird you don’t realize this is an value judgement rather than a fact.
Come on Ben. You can make a more disruptive comment than that.
Well I am curious as to what “values” Ben has in mind.
Me, I like the value of having responsibility for your choices, and if you choose to take benefit of business IN an area, then you accept the responsibility (and risk) of being sued in that area.
Don’t want the risk? Don’t take the benefit.
What value is Ben using in his “judgement?”
Apparently, Night Writer, Ben is neither up to the task of disruption, nor the task of engaging in a dialogue.
Pity. It would be nice to see him explicate his values.
What’s “anachronistic” in 2022 is allowing 20 year long patents on abstractions like logic and instructions for logic-processing machines.
Hi Malcolm,
Are you retreading that stale script that somehow one form of innovation does not deserve innovation protection?
Please – feel free to NOT USE the innovation that you would so deign to not protect.
For those interested in such details, Lourie, Prost, & Taranto were on the motions panel. The order was per curiam.
Thanks Greg,
It remains rather odd that decisions are not dutifully noted with the panel members.
The decision states that: “It is undisputed that Netflix does not own or lease any offices in the Eastern District. CA’s complaint premised venue over Netflix in CA’s chosen forum based on the location of servers installed at internet service providers (ISPs) under contracts with Netflix that are part of Netflix’s “Open Connect” content delivery network allowing local delivery of content to Netflix customers.”
If that was really such a tenuous venue connection why didn’t they sue in WDTX instead of EDTX, and why was this mandamus transfer for inconvenient forum rather than absence of statutory patent suit venue?
[W]hy was this mandamus transfer for inconvenient forum rather than absence of statutory patent suit venue?
The mandamus petition asked for both dismissal for improper venue and transfer of venue as an alternative. The CAFC granted the transfer but declined to address the dismissal petition.
WD Tex practice has set a number of precedents, but now that those precedents are on the books, they apply to ED Tex with equal force. I guess we will see who ends up with the higher career total mandamus transfers.