Supreme Court Unanimously Smacks Down CAFC Two More Times

from the because-cafc-is-a-joke dept

What do you know? The Supreme Court has completely shot down two more decisions from the “patent appeals court,” which is supposed to be an expert in patent law. The court of appeals for the Federal Circuit (CAFC), which was set up explicitly to cover “complicated” patent cases, has been getting shot down by the Supreme Court left and right over the past few years, often unanimously. It happened a month ago on fee shifting and it happened twice more today on key patent cases: Limelight v. Akamai and Nautilus v. Biosig.

In the Limelight case, CAFC had made the somewhat ridiculous ruling that companies can be guilty of inducing infringement even if there is no direct infringement. Basically, everyone agreed that at no point did Limelight actually infringe on Akamai’s patents, because part of the steps are actually completed by Limelight’s users, rather than Limelight itself. The CAFC felt that was good enough, and even though at no point does Limelight do everything in Akamai’s patent, it still infringed. The Surpeme Court, thankfully, found this ruling to be nonsensical. And, once again, the Supreme Court smacks around the CAFC in its ruling:

Neither the Federal Circuit… nor respondents… dispute the proposition that liability for inducement must be predicated on direct infringement. This is for good reason, as our case law leaves no doubt that inducement liability may arise “if, but only if, [there is] . . . direct infringement.”…

One might think that this simple truth is enough to dispose of this appeal. But the Federal Circuit reasoned that a defendant can be liable for inducing infringement under §271(b) even if no one has committed direct infringement within the terms of §271(a) (or any other provision of the patent laws), because direct infringement can exist independently of a violation of these statutory provisions…

The Federal Circuit’s analysis fundamentally misunderstands what it means to infringe a method patent.

Yes, the Supreme Court is saying that the CAFC — which is supposed to be the expert in understanding patents and patent law — fundamentally misunderstands what it means to infringe on a patent. Ouch.

The ruling by Justice Alito goes on to point out that the CAFC seems to be trying to set up an entirely new concept of inducing infringement where there is no direct infringement — and that’s clearly not what the law allows. As the ruling notes, if Congress wanted that to be the law, it could write that into the law. But it has not. The Supreme Court further notes (importantly) that “inducement” is different than the criminal standards of “aiding and abetting” (this is an issue we’ve discussed repeatedly in copyright law — so everyone insisting that inducing and aiding & abetting are equivalent may want to read carefully what SCOTUS has to say here).

The Nautilus case involved “ambiguous” patent claims — a major problem in the patent world today. Once again, CAFC took a rather patent maximalist view of things, allowing many ambiguous claims, but the Supreme Court unanimously rejects that as ridiculous:

We conclude that the Federal Circuit’s formulation, which tolerates some ambiguous claims but not others, does not satisfy the statute’s definiteness requirement.

The CAFC standard was that you could reject the claim only if it was “insolubly ambiguous” — in other words, only if a court couldn’t work through multiple interpretations to pick a reasonable one. But, as noted above, the Supreme Court says that goes against the very basic idea of patent law. As the ruling (by Justice Ginsburg) notes:

It cannot be sufficient that a court can ascribe some meaning to a patent’s claims; the definiteness inquiry trains on the understanding of a skilled artisan at the time of the patent application, not that of a court viewing matters post hoc. To tolerate imprecision just short of that rendering a claim “insolubly ambiguous” would diminish the definiteness requirement’s public-notice function and foster the innovation-discouraging “zone of uncertainty,” … against which this Court has warned.

Rather than choose a different standard, however, the Supreme Court punts the case back to CAFC to see if it can try again, this time with a better standard that maybe, just maybe, the Supreme Court will accept next time around.

Between these recent decisions and the current ethics scandal at CAFC, at what point will we finally consider just putting the court out of its misery. It has never served any purpose other than to massively expand patent law way outside of what the law is supposed to do. It’s great that the Supreme Court has finally been putting it back in line, but it seems like there must be a more effective way of doing this than having CAFC hand down so many bad decisions.

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Companies: akamai, biosig, limelight, nautilus

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Comments on “Supreme Court Unanimously Smacks Down CAFC Two More Times”

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Anonymous Coward says:

This is the STUPID Court that said Google was infringing on Oracle’s APIs.

But this is good…I bet the Supreme Courts gets ever more pissed off at them for overruling “good rulings” from the lower Courts, and sending them their own idiotic rulings. It only means that with each new ruling the Supreme Court will get more aggressive in defining which patents are good and which are not, to limit the “damage” the stupid CAFC Court can do.

shill says:

This will hinder innovation even more. If everyone is free to innovate without patents getting in the way then no one will have an incentive to innovate but if patents are allowed to stop innovation then there will be an incentive to innovate but no one will do it because patents will stop them. So you have to find a balance between the fact that patents create incentive to innovate and they also stop innovation and get in the way. No one can ever have incentive to innovate without patents since patents are the only possible incentive to innovate and without them innovation and invention will dry up and die.

Anonymous Coward says:

the frightening question to ask now is how many cases were ruled like this by the patent court but were not appealed or granted an appeal? the number could be significant and those that ‘lost’ could have been out an awful lot of money and been screwed by those that brought the law suits in the first place.
the real kicker is that these court rulings seem to depend on the mood of the judges at the time. rather than relying on case law or understanding the law properly, from what the appeals court has said, the judges toss a coin!!

zip says:

about PDFy ...

This is the first time I’ve seen PDFy used — here or anywhere else. It’s definitely an improvement over Scribd in many ways, which for me could be totally invisible as an embedded frame, and took me an embarrassingly long time before I realized that a (supposedly) viewable PDF file was regularly being offered on a website that used Scribd (discovered one day by accident when viewing the page code). That’s why I loved Techdirt’s switch to DocumentCloud, which offered direct –and plainly visible– download links.

From the PDFy website:

What you get:
* Your PDF hosted permanently, ad-free.
* Share-able page with PDF viewer (using pdf.js).
* Embeddable version of the viewer.
* Original PDF can be downloaded by anybody, without registration.
* All public PDFs mirrored to the Internet Archive for preservation.

I’ll assume that PDFy requires use of the latest (and most resource-busting) versions of os/browser/Java/script/Flash combinations, but I’m used to that. My only question is, how do I download the PDF? In PDFy’s document image window, the 3rd button from the right is the download button, but when that doesn’t work, is there a direct download link somewhere else?

zip says:

Re: Re: about PDFy ...

PDFs are really not bad, since there are many different viewers (and plugins) available to choose from — even ones that work fine on a 2-decade old pc. One of my biggest complaints is that eBooks (of virtually any kind) are no longer released on PDF format. Just try finding a MOBI OR EPUB reader that works on a computer that age!

It’s somewhat unfortunate that, as with the MP3, no open-source PDF alternative has ever been adopted. As both file formats are about due to have their original patents expire, maybe no open-source “copy” will ever take over.

Anonymous Coward says:

Re: Re: Re:2 about PDFy ...

I know. We’ve had this discussion before. 🙂

When used properly for the purposes they were intended they are great. Yes, I know people do make crappy PDFs by using built in scanning software that just wraps a single image into a PDF wrapper which is pretty worthless unless you are trying to stack multiple pages into a single file. And sure Acrobat’s editing capabilities pretty much suck. But when you are doing desktop publishing, the ability to create a multi-page layout, package it printer/prepress ready, in a format that that is not only printable, but freely viewable cross-platform with embedded images and fonts pretty much rocks.

Mike Masnick (profile) says:

Re: about PDFy ...

We used it because Document Cloud was having trouble processing the original SCOTUS docs. However, we just fixed that and replaced the PDFy embeds with the Doc Cloud ones…

I just found PDFy last week, and thought it was a nice alternative for all the listed reasons. And when we had trouble with DC decided to try it. But discovered a few other issues with it, so once DC was working went back to that…

Sven Slootweg (profile) says:

Re: about PDFy ...

Hi, PDFy admin here. There should be a “download original PDF” button in the bottom right corner of the embedded viewer:

This button should always work, even if the PDF doesn’t load (for example, if you’re using an older browser that doesn’t support pdf.js). If you don’t see such a button – you can check at – please e-mail me at with more information about the operating system, browser, etc. that you are using.

PDFy (which uses pdf.js) doesn’t require Flash or Java, by the way – just a browser with an up-to-date Javascript implementation 🙂 There’s a list of supported browsers at

I’m still working on a ‘fallback’ mechanism using images, for older browsers that don’t support pdf.js. Shouldn’t be too long until that’s working.

Anonymous Coward says:

"Misunderstood" My Behind

“Yes, the Supreme Court is saying that the CAFC — which is supposed to be the expert in understanding patents and patent law — fundamentally misunderstands what it means to infringe on a patent. Ouch.”

I think the Supreme Court was being extremely generous. I don’t think CAFC misunderstood a thing. I think they were deliberately trying to misconstrue and the twist the law for the benefit of some select special interest groups.

Anonymous Coward says:

Has no bearing in China or India, why should it here? We are a nation of laws? Then someone needs to read the Bill Of Rights to our representatives in Washington, and be sure that they comprehend those same said rights of the people. They are not just another bill they vote yeah or nay on without reading, let alone comprehending, they are the foundation of all that made this country what it was, and what it still should be, but isn’t. If you can not lead by example America, sit down and shut up.

A Man Without A Country

6 says:

“Rather than choose a different standard, however, the Supreme Court punts the case back to CAFC to see if it can try again, this time with a better standard that maybe, just maybe, the Supreme Court will accept next time around. “

You need to read the decision again. The USSC implemented a standard of its own: “reasonable certainty”.

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