1. LOL – an attack on EFF has no bearing on the anonymity of me. Nice dust kicking there. It is well known that EFF acts counter to any reasonable view of the good of a patent system.

2. OK, I delved into the possible dicta in the concurrence. None of the dicta there changes the larger holding of the case. As to the dicta itself, is there something specific that you wish to hang your hat on? Perhaps to a (mistaken) notion that only one form of IP protection could possibly apply, and that one has to choose between patent protection and copyright protection? Or perhaps the “closest analogue” portion of the concurrence? Are you co-opting a “privileged use” to be part of some new “fair use?” – or are you negating any consideration of “privileged use.” The larger takeaway of the concurrence is NOT in line with your expressed views. Merely referencing the concurrence does not help you stake out a position, let alone a position on the merits of the rule provide (which is a nice segue to your point 3).

3. Rule 59 stems from actions after submission to a jury (other rules carry some of the same actions prior to that point). You raise a valid point that this is not calling out an action for an appellate court to apply in relation to a case below. Nonetheless, the action that you would deny (a jury being overturned) is plainly contemplated with this rule. Timing is the aspect for Rule 59 (as opposed to pre-jury timing contemplated in JMOL, for example.

The long and short is that any “umbrage” that you seem to want to bank on then is simply a mirage.

For actions directly or specifically pertaining to the transition to an appellate level, we could visit the appropriate appellate rules of civil procedure. Alas, I see nothing on point there. Critically, I see nothing that would dissuade the content (or intent) of Rule 59 from being applied BY the appellate court in its “new” review of the matter below.

Returning to the lower court Civ Pro rules, perhaps you feel that Rule 62.1 provides a mechanism in regards to transfer to the appellate court… (but that does not help your larger contention that somehow overriding a jury’s finding is some calamity or unprecedented — in the non-legal sense — action.

In other words, you STILL have not made a case for your position. And someone else not proving a contrapositive does NOT make your case.

All in all though, I do appreciate your much more cogent replies (than is typical on this forum– from others) in our dialogue.