I would truly appreciate your refraining from your continuing gratuitous suggestions/statements that because I was many years ago associated with practicing, among others areas of law, the gamut of patent law that I am somehow invested in the system and it colors my opinion and judgment. This is simply untrue, as would be readily apparent were you to sit down with me and engage in a face to face conversation(s). Communications over the internet simply do not admit to comprehensive discussions and nuances associated with points made during such discussions.

Do I regularly disagree with broad brush strokes that an issued patent is blatantly obvious? Yes. Do I believe that such patents should have been issued because they are manifestly new, useful and non-obvious? Of course not. The issuance of a patent enjoys a presumption of validity under law, but like any presumption it can be rebutted by the presentation of evidence to the contrary, with the key word being evidence and not ethereal opinion. A validity analysis, even in cases where a patent causes one to scratch their head wondering “how did this issue” involves much more than simply reading a patent as issued and using only it to draw an invalidity conclusion. Except in very highly unusual and exceedingly rare circustances, ending any inquiry there would almost certainly constitute malpractice. You need to read the patent, you need to read the file wrapper, you need to read the applied references, etc. The same is generally true of an infringement analysis.

As for your reliance on a comment attributed to Judge Rader, it should be noted it was a jocular comment made before an assembly of attorneys. This is not at all uncommon in casual, informal settings. But once outside such a setting comments are much more carefully offered and explained, and in the many cases upon which you seem to rely a close reading of all the opinions reveals that stated reversals are not all that a layman might think them to be.

KSR has been described as a landmark, and yet in the final analysis it is in my view largely a minor bump in the road of little meaningful effect (though I do have colleagues who hold contrary views). “Common knowledge” has always been available as one of the bases upon which a pending claim can be rejected. However, it is incumbent upon a patent examiner to demonstrate why it is common knowledge and present supporting evidence for entry into the evidentiary record. This is entirely consistent with what you demand when one proclaims that patent law is a necessary part of our economic system. You want documentary proof, and not unsubstantiated statements. Practice before agencies and courts in no different.

eBay is seen by some as lecturing the CAFC regarding the grant of permanent injunctions. Even this is misleading as is only too apparent from reading the concurring opinion by Chief Justice Roberts. If this is a slap down of the CAFC, then the same will certainly be said when and as Medimmune is applied to copyright cases moving through the legal system via courts other than the CAFC where the same general rule applied pre-eBay concerning patents is currently being almost uniformly applied when copyright infringement is found.

Medimmune was a reversal of the CAFC, and yet the CAFC is associated with that “honor” only because it was the first appellate court where the issue was sufficiently set for presentation to the Supreme Court. It could just as easily have arisen from a decision by a regional circuit court in a case having nothing to do with patent law.

Finally, with regard to your reference to “wind” the only comment I have is to ask “What wind? The air is still.”