Rejoice: It's No Longer Patent Infringement To Sell A Trading Card With Memorabilia

from the does-cafc-have-its-own-trading-cards-with-pieces-of-judicial-robes? dept

Justin Levine highlights the ridiculousness of the patent system today by noting that it took the court system eight years to determine that attaching memorabilia to a trading card shouldn't be patentable (pdf)... and even then, a CAFC judge dissented, claiming that the patents could be valid. The patents in question, 5,803,501 and 6,142,532 are pretty straightforward. Basically, they're about taking some piece of memorabilia and attaching it to a trading card (for example, attaching a piece of a jersey worn in a baseball game to a baseball card of the player).

While it's great that CAFC reasonably recognized that this concept should be considered obvious and non-patentable, I find the reasoning of the dissenting judge, Judge Rader, quite troubling. I saw Judge Rader speak at an event a few months ago, and the man is quite outspoken and opinionated (which is a good trait), but at times he seems to lose sight of what's actually at stake. When I saw him speak, he attacked the Supreme Court for some of its recent decisions that helped return a bit of sanity to the patent system. In this dissent, he seems so focused on nitpicking that he misses the big picture (which is the kind of thing that the Supreme Court has appeared to be annoyed about in its recent rulings repeatedly slapping down CAFC). His argument is that because no one had tried to sell cut up memorabilia with trading cards before (and some even thought it was a bad idea) that made it not obvious.

Judge Rader, with all due respect, appears to be confusing some rather important things. The fact that many companies thought that this was a bad business idea does not make it any less obvious. Judge Rader seems to think that because no one did it before, that means that it's a new "invention" that deserves a government granted monopoly. But, he ignores the possibility that, while the idea was obvious, most people just didn't think it made much sense as a business, until one company tried it out and saw that it worked. That's how business works. Even ideas that are "obvious" aren't tried because people think they won't work -- until eventually someone decides to test them out -- not because of a patent or some burst of genius, but because they decide to just try something new to see what happens. In the case of baseball cards and jerseys, it worked. But that doesn't mean the idea was some brilliant invention that requires exclusivity -- or that needs "disclosure" via the patent system to exist. It's just business -- which is helped along by competition and a desire to out-innovate the competition, not the desire to get a monopoly right from the government.
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Filed Under: patents, trading cards


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  • identicon
    Anonymous Coward, 2 Apr 2010 @ 4:33am

    "The fact that many companies thought that this was a bad business idea does not make it any less obvious."

    "most people just didn't think it made much sense as a business, "

    Ever hear of the term "mob rule", fortunately that's not how the law works, courts apply and interpret the written and agreed upon laws. They DONT and should not bend to public opinion, law is not a 'vote' about what you think is right or wrong.

    So that judge did the right thing to question and enquire all details, and to disregard public/popular opinion.

    It's their job to IGNORE you, and "many, or "most people" thinking something has no effect on the decisions made.

    Again, this is just the application of laws, you dont have to like them, or agree with them. But you do have to abide by them.

    and again, if you think you're promoting FOSS or whatever by making such claims, only leads to showing a bias and makes you're words far less effective, and believable.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Apr 2010 @ 5:09am

      Re:

      Seriously, what's up with people who speak out against laws they disagree with? They should just shut up and obey.

      Look, it's simple. If an old, white guy wrote it on a peice of paper, that's it: immutable law forever. God takes it and implements it in alongside physics and nothing can change it after that.

      What the hell is wrong with you people? Just shuffle along now. Pick up that can!

      reply to this | link to this | view in chronology ]

    • identicon
      Michael, 2 Apr 2010 @ 5:18am

      Re:

      "Ever hear of the term "mob rule", fortunately that's not how the law works,"

      I'm not sure how this is part of your argument. I don't think Mike was saying that the law should work the way a group of people think it should (although I could argue that is democracy).

      The post was indicating that the idea being patented was obvious. Lots of companies thought of it and dismissed it as being a bad idea. The one company that decided to try it should not be granted a monopoly simply because they were right.

      Patents grant a monopoly as a reward for being innovative in an attempt to promote future innovation. They are not a reward for being right when you try an idea that lots of people simply thought was a bad one. That would have the opposite effect - it would promote trying seemingly bad ideas while hoping that everyone is wrong.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Apr 2010 @ 7:11am

      Re:

      I have a patent pending on including a free hockey stick when you buy running shoes. No one's ever tried it before, but there's a hidden market of Canadian cross-trainers I think might exist.

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 2 Apr 2010 @ 9:16am

      Re:

      Ever hear of the term "mob rule", fortunately that's not how the law works, courts apply and interpret the written and agreed upon laws. They DONT and should not bend to public opinion, law is not a 'vote' about what you think is right or wrong.

      Huh?!? I said nothing about mob rule making the decision here. The *law* says the question is whether or not it was obvious or not. My point was simply that just because no one has done something before, it does not mean that it is not obvious.

      I said absolutely nothing about mob rule.

      So that judge did the right thing to question and enquire all details, and to disregard public/popular opinion.


      No one said that the judges were influenced by popular opinion. You seem to have not read what I wrote.

      Again, this is just the application of laws, you dont have to like them, or agree with them. But you do have to abide by them.

      And did you not notice the law, in this case, actually agreed with my position?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Apr 2010 @ 10:03am

        Re: Re:

        And did you not notice the law, in this case, actually agreed with my position?

        The law did not agree with your position. Two appellate judges agreed with your view of certain facts.

        This is in a way a bit troublesome in that the majority on the court gave short shrift to the role juries play in our legal system. Namely, it is the role of juries to serve as the triers of fact. Removing juries from the process is certainly not something that should be done lightly.

        In view of the status of the case as based upon a motion for summary judgment, your critical remarks concerning Judge Raeder are unwarranted and off base.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Apr 2010 @ 5:25am

    Mike, I suspect your site is being hacked again?

    reply to this | link to this | view in chronology ]

  • identicon
    Speaker, 2 Apr 2010 @ 6:15am

    Trading Cards or Relics

    There was big business on the sale of relics in the middle ages. From a business model stand point how is selling some religious memorabilia and a small piece of a relic any different?

    reply to this | link to this | view in chronology ]

  • icon
    nasch (profile), 2 Apr 2010 @ 7:36am

    Has Ronald not seen this yet? Nothing about "patent deform legislation" or the "big guy stealing from the little guy"?

    reply to this | link to this | view in chronology ]

  • identicon
    C.T., 2 Apr 2010 @ 7:51am

    Procedural Posture Matters

    I think it is worth pointing out that the CAFC was hearing an appeal of a summary judgment ruling. In that context, Judge Rader's arguments make a lot more sense than you are giving him credit for. Your criticism of Judge Rader's dissent makes little sense when viewed in the proper context.

    You write:

    In this dissent, he seems so focused on nitpicking that he misses the big picture (which is the kind of thing that the Supreme Court has appeared to be annoyed about in its recent rulings repeatedly slapping down CAFC). His argument is that because no one had tried to sell cut up memorabilia with trading cards before (and some even thought it was a bad idea) that made it not obvious.

    But, because of the posture of this case, the court SHOULD be nitpicking. In ruling on a summary judgment a court is to view evidence in the light most favorable to the non-moving party. Rader wasn't making an assertion that disputed patent was in fact obvious. He was simply positing that the evidence presented was sufficient to allow a jury to make a decision about whether or not it was obvious.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Apr 2010 @ 9:44am

      Re: Procedural Posture Matters

      This is a situation where clearly an understanding of the federal rules of civil procedure, together with the primacy of submitting questions of fact to a jury, is sorely lacking.

      Judge Rader was not saying that the invention was new, useful and non-obvious. He was addressing a more fundamental issue associated with the legal process itself.

      People are free to form whatever opinion they wish on the merits and demerits of the patent based upon whatever facts they may choose to rely. In the context of a legal proceeding, the "people" are the jury, and it is the jury that should be forming their collective opinion based upon the evidence produced at trial.

      Do I personally believe the patent was valid as having met all the statutory prerequisites for its issuance? Probably not. Does this mean that reasonable people sitting on a jury hearing the evidence produced at trial would reach the same conclusion. I honestly do not know the answer, and for at least this reason I believe the case should not have been dismissed at the summary judgment stage.

      It is always a matter of concern under our judicial decision when the role of a jury is usurped, and this is particularly so given the standards to be applied in the context of a motion for summary judgment. All contested issues of fact are to be viewed in the light most favorable to the party opposing the motion. I believe Judge Raeder is correct in dissenting with his colleagues on the issue of jury usurpation.

      reply to this | link to this | view in chronology ]

      • icon
        Mike Masnick (profile), 2 Apr 2010 @ 11:09am

        Re: Re: Procedural Posture Matters

        Do I personally believe the patent was valid as having met all the statutory prerequisites for its issuance? Probably not. Does this mean that reasonable people sitting on a jury hearing the evidence produced at trial would reach the same conclusion. I honestly do not know the answer, and for at least this reason I believe the case should not have been dismissed at the summary judgment stage.

        Only a lawyer abusing the system for his own profit could think that 8 years to dump an obviously bogus patent is too quick.

        I'm at a loss for words. You are trying to defend the indefensible.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 2 Apr 2010 @ 12:09pm

          Re: Re: Re: Procedural Posture Matters

          Let's not dictate the future based on what the artists or the scientists have to say; let's listen to the lawyers because they have society's best interests in mind.

          And I would like to clarify that I am not speaking about lawyers who are associated with the criminal justice system, you know, lawyers who defend or prosecute murders, rapists and actual thieves.

          Intellectual property lawyers are not very creative thinkers. They usually base their opinion on the law of a situation and not on the reality of a situation.

          But what do I know, as I'm just an artist who needs massive amounts of protection from the world and cannot possibly understand all these complex laws and such. I know, I know, back to my cave . . . .

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 2 Apr 2010 @ 12:35pm

          Re: Re: Re: Procedural Posture Matters

          Case filed in 2001 and summary judgment awarded to the defendant about a year later by the district court.

          Appeal taken to the CAFC where the district court was reversed and remanded to the district court in 2003.

          Reexamination requests filed with the USPTO.

          Case stayed by district court pending completion of reexamination.

          Reexamination requests resulted in issuance of Reexamination Certificates affirming original claims.

          District court resumed case and awarded summary judgment in favor of defendant.

          Appeal to CAFC filed in 2008.

          CAFC decision issued in 2010.

          The majority of the time since the lawsuit was commenced appears to have been taken up by the reexaminations by the USPTO. Actual time in court, both before the district court and the CAFC, was much shorter. Because this is a civil matter, the time spent before the courts is generally consistent with other civil matters since they are invariably subordinated by courts to criminal cases having a "speedy trial" constitutional requirement.

          Importantly, I am not defending anything other than the issue that gave Judge Raeder such concern. He did not pass upon the validity of the patents. His was a more fundamental issue concerning the respective roles of judge and jury, an issue to which the majority gave short shrift.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Apr 2010 @ 8:07am

    Never been done before

    Do you want fries with that?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Apr 2010 @ 11:03am

    And they wonder why no one respects, in the court of public opinion, intellectual property laws.

    "Laws are good because they are right and laws are right because they are good."

    reply to this | link to this | view in chronology ]

  • icon
    Justin Levine (profile), 2 Apr 2010 @ 1:57pm

    Summary Judgement vs. The Right of Juries To Decide

    Anonymous Coward - Regarding your post at Apr. 2, 9:44am: To quote the decision itself,
    "Summary judgment is appropriate if 'there is no genuine issue as to any material fact and . . . the movant is entitled to a judgment as a matter of law.' Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)...Whether an invention would have been obvious at the time the invention was made is a question of law, which we review de novo, based on underlying factual determinations, which we review for clear error, Takeda Chem. Indus., Ltd. v. Alphapharm Pty., Ltd., 492 F.3d 1350, 1355 (Fed. Cir. 2007), unless, as is the case here, no material facts are in dispute."

    Let's leave aside my personal belief that all reasonable people would have to conclude that this 'invention' was obvious. That does not change the fact that courts/judges have ALWAYS decided questions of "obviousness" as a matter of law and not given the question to the jury.

    Now - you can reasonably argue that this has been a mistake all along. Even though there are no "material facts in dispute" in this case, there is still a value judgment to be made as to how undisputed facts are to be applied to the law in the case of deciding what is "obvious". In that sense, perhaps a jury should be allowed to decide.

    But if that is the case, then this reasoning must be applied to ALL such questions in IP law - particularly the question of what constitutes "fair use".

    As I'm sure you are aware, judges don't allow juries to decide issues of fair use, despite its very flexible nature that allows for value judgments to be made. They decide fair use themselves through summary judgement. Again, this is the way it has always been (at least for as long as I can recall).

    If judges allowed juries to start ruling on fair use questions, the entire IP industry would shit their collective pants because they know that common notions of "fair use" are far broader than what most judges currently allow for.

    So while I sympathize with the general idea that juries should be fare more involved with IP law questions than the system currently allows for, that does not change the fact that long standing precedent has been allowing judges to make these decisions for years. As a result, the criticisms of the dissenting judge are well warranted.

    As a final side note, it is interesting to observe that the dissenting judge doesn't cite a single case in his own decision to try and back up his argument that such matters are a proper question for a jury.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Apr 2010 @ 2:24pm

      Re: Summary Judgement vs. The Right of Juries To Decide

      You left out of your quote from the majority opinion “In deciding whether summary judgment was appropriate, we view the evidence in a light most favorable to the party opposing the motion with doubts resolved in favor of the opponent".

      reply to this | link to this | view in chronology ]

      • identicon
        Justin Levine, 3 Apr 2010 @ 5:11am

        Re: Re: Summary Judgement vs. The Right of Juries To Decide

        I left out that part of the quote because it wasn't relevant to the point I was making regarding the debate over juries vs. judges deciding what is "obvious".

        reply to this | link to this | view in chronology ]


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