Blawg Review #154 & Anonymous Comments

Blawg Review #154 is up at the Health Blawg, which covers health care law.  The Review's theme this week is World Health Day, but it also points to an interesting story related to anonymous blog comments.  SCOTUS Blog eliminated its comments feature -- click here for the SCOTUS post explaining their reasoning.  This is especially interesting because in October 2006, SCOTUS began requiring that commenters provide their full names before posting.  They hoped that this would stop "silly sniping" by anonymous commenters.  Unfortunately, after eighteen months, the sniping had not stopped.  So, they closed comments completely, although you can still email them comments and they will consider adding the best directly to the posts.

Unfortunately, the SCOTUS experiment suggests that civility may not be enforceable on the internet.  Perhaps the social constructs that maintain civility in real world conversations -- knowing that you will have to work with the target of your words the next day, watching your target's reaction in real time, or bystanders acting as civility referees -- cannot be duplicated online. 

Below is Crime & Consequences' take on the SCOTUS comments decision:

I, for one, enjoy exchanging ideas with people who can remain civil while disagreeing. Regrettably, commenting on blogs too often involves opening oneself to ad hominem attacks and choosing between letting a public attack go unanswered or wasting time responding. The choices for a blog that has this problem are to (1) let it go uncorrected; (2) police the comments, an expenditure of time that few sponsors wish to make; or (3) turn off the comments, as SCOTUSblog has now done. If the sponsor chooses to let the problem go uncorrected, what typically happens is that thoughtful people stop or greatly reduce commenting, and the insult slingers come to dominate the comments. Choices (1) and (3) lead to the same result, then, that a useful medium is eliminated either de facto or de jure.

So the decline in civility of our society claims another victim. The SCOTUSblog experiment shows that uncivil behavior is reduced when people have to show themselves in public, but it is not eliminated. I suppose the result was to be expected, but it is sad nonetheless.

Below is Crime & Consequences' take on the SCOTUS comments decision:

I, for one, enjoy exchanging ideas with people who can remain civil while disagreeing. Regrettably, commenting on blogs too often involves opening oneself to ad hominem attacks and choosing between letting a public attack go unanswered or wasting time responding. The choices for a blog that has this problem are to (1) let it go uncorrected; (2) police the comments, an expenditure of time that few sponsors wish to make; or (3) turn off the comments, as SCOTUSblog has now done. If the sponsor chooses to let the problem go uncorrected, what typically happens is that thoughtful people stop or greatly reduce commenting, and the insult slingers come to dominate the comments. Choices (1) and (3) lead to the same result, then, that a useful medium is eliminated either de facto or de jure.

So the decline in civility of our society claims another victim. The SCOTUSblog experiment shows that uncivil behavior is reduced when people have to show themselves in public, but it is not eliminated. I suppose the result was to be expected, but it is sad nonetheless.

Quanta v. LG: Commentary Roundup

The blogs are full of commentary about yesterday's Supreme Court patent exhaustion argument.  But no one is declaring a winner.  Instead, like my earlier post, people are focusing on trends in the Justices questions.  Here are some of the best commentaries:

  • Amster, Rothstein & Ebenstein has a guest post all over the blogs -- read it at Patently-O271 Patent Blog, and Philip Brooks' Patent Infringement Updates.
  • Anticipate This!
  • I/P Updates -- quoting Chief Judge Roberts:  "We've had experience with the Patent Office where it tends to grant patents a lot more liberally than we would enforce under the patent law."  Ouch.
  • ScotusWiki -- This is a companion to the well-known SCOTUSblog (which does not have any commentary about the argument posted yet).  ScotusWiki does not provide any commentary, but it is a great resource for information about this case, and any other Supreme Court case.
  • Troll Tracker -- predicting a 5-4 or 6-3 reversal of the Federal Circuit (although only "leaning" that way and only predicting a "slight" reversal) and, similar to my post, picking up on Justice Breyer's cycling theme, but without professing a love for the sport.

Obviousness Redux: Arm-chair Quarterbacking KSR v. Teleflex

KSR v. Teleflex, 550 U.S. __ (2007).

A unanimous Supreme Court rolled back the Federal Circuit's teaching, suggestion or motivation obviousness test in favor of the Court's prior, and substantially broader, test as set forth in Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966).  Justice Kennedy delivered the Court's opinion and called the Supreme Court's approach to obviousness "broad and flexible."  The Court also noted that because the parties did not dispute the prior art, the claim's scope or the level of ordinary skill in the art and because obviousness is a legal question, the district court was correct to grant summary judgment in this case.

In addition to bringing the Fed. Cir. down to size, the Supreme Court also took a swipe at the PTO:

We need not reach the question whether the failure to disclose [the prior art reference] during the prosecution . . . voids the presumption of validity given to issued patents, for claim 4 is obvious despite the presumption. We nevertheless think it appropriate to note that the rationale underlying the presumption - that the PTO, in its expertise, has approved the claim - seems much diminished here.

The KSR decision opens up obviousness and will make obviousness a much larger issue in patent cases.  And whatever else the "new" old law may do, it will keep patent litigators very busy for years to come.  You can download a PDF of the Court's opinion from the Blog's archives.

Here is a list of links to other KSR commentary across the internet, as you can see you could read about KSR all week:

Patently-O

Prof. Sarnoff via Patently-O

WSJ Law Blog (with interesting comments from several key players and practicioners)

Patent Docs

Infinite Monkey Theorem

File Wrapper

271 Patent Blog

Tech Dirt

Patent Prospector

Fire of Genius and here

Orange Book Blog (for the decisions effect on pharma patents)

Michael Barclay of Wilson Sonsini via the SCOTUS Blog

Dan Bromberg of Quinn Emanuel via the SCOTUS Blog

Chicago Tribune

DLA Piper Joins the Short List of AmLaw 200 Firms with Blogs

Ron Friedmann, of Prism Legal Consulting has created a list of "firm-branded blogs" -- he does not count AmLaw 200 attorneys that blog without displaying their firm affiliation -- in which he identifies nine AmLaw 200 firms that have a collective 30 blogs.  LexBlog's Kevin O'Keefe adds four more to Friedmann's list to reach 13 AmLaw 200 firms with 34 blogs:

Kevin's post also alludes to another blog from one of the AmLaw 50 that LexBlog will be going live with this week.  And as you can see from the addition of the DLA Piper logo to the Blog, this is it. 

Many friends and colleagues already know that I left my in-house position with Delphi's Technology Licensing & Litigation group in November and reentered private practice as Special Counsel to DLA Piper.  It has taken a little bit of time to get everything ready to go, but DLA has embraced the Blog and is very excited about being affiliated with it.  The Blog remains mine and that you will continue to get the same quality content.  The only differences are that I am back in Chicago and that I am now actively litigating IP matters in the Northern District of Illinois again.  It is great to be back in town and, as always, I welcome your comments.  And now that I am no longer inhouse, in addition to my thoughts (which remain solely mine and not necessarily those of DLA Piper or any of our clients) I can offer you my litigation services should you ever need them.

More Commentary on KSR v. Teleflex

I do not want the Blog to get off track, so this will be my last post for awhile on the subject, but here is a roundup of blogs discussing yesterday's argument:

Chicago's own 271 Patent Blog

SCOTUS Blog

Patently-O

Patent Baristas

I will be back at the Blog's traditional subjects tomorrow with Northern District case updates.