Friday, March 24, 2017

The Hitchiker's Guide through the Judicial Hall of Patent Pending Shame

One ancient adviser said, "Forgive them for they know not what they do."

Is that the correct stance?
Do they forgive others as they willst forgiveness unto themselves?

Or maybe we should say, "Understand them for they know not what they do, but forgive them not"?

Welcome to the Judicial Hall of Patent Pending Shame.

First up on our wall of shame is Justice Stephen Breyer, philosopher king and historian extraordinaire .... According to Breyer J. Egypt's King Tut had an all powerful Abacus Man. Breyer's 'Bacus Man could do extraordinary things. Like tallying up all the chits in Egypt's entire kingdom on his tiny 4 beads per symbol bronze abacus machine. Breyer's 'Bacus Man could also telepathically connect instantaneously to all corners of the realm so that he knew in real time when "solvency" ceased to exist for any of the kingdom's numerous accounts. What a man!

We should try to "understand" the debating points made by the Honorable Breyer J. After all, he majored in "philosophy" while going for his undergraduate at Stanford and then in a combination of "philosophy" and "economics" at Magdelen College at Oxford University.

Mind you there is nothing "fundamentally" wrong with studying "philosophy" and "economics" except for one minor detail.

You see, these areas of scholastic effort are wholly divorced from physical reality.

They don't account for the friction between the shell beads and bronze rods of the Tut's 'Bacus Man abacus. Or for the amount of energy needed to make those beads whiz back and forth along the metal rods as the chit data comes flashing in by carrier pigeon at 100,000 bead bits per second. Then there is the wear and tear on these parts and time out for repair and replacement.

Of course, in Plato's cave all is merely shadow flashing as illusions on the cave wall. So Breyer is freed from concerns about physics, metallurgy, chemistry, thermodynamics, Shannon's theory of information transfer and what not. He can make up fantastical hypotheticals that include characters with omnipotent powers and tunnel visions. The Supremes themselves have tunnel vision when they don't want to admit that Le Roy v. Tatham (SCt. 1852) got "metallurgy" wrong. The strain cooled lead is different from cast lead. Strain cooled lead can have a significantly different micro-structure. But heck. What's reality got to do with it when you enter Philosopher Breyer's cave?

Second up on our wall of shame are the dumbnamic duo of Justice Anton Scalia and Clarence Thomas.
No one celebrates the recent passing of Justice Scalia.
However, that said, it can't be ignored that this "originalist" deliberately ignored the Constitutional recognition of inventors having "rights" to "their" respective discoveries per Article I, section 8, clause 8 of that sacred document.

Sunday, March 12, 2017

Silence of the Autistic Savant Lambs

Why do inventors get taken advantage of?

And by advantage, I don't mean simply in the business world.

Calling inventors, autistic savant lambs is an extreme exaggeration of course. Most are not Rain Man. Instead some may have a slight tint of introversion, preferring to deal with things as opposed to people.

There are however, many a ruthless business people all too eager to take advantage of the lack or lessening of people skills among the inventor class. That constitutes taking advantage at level one of Dante's underworld.

Way way lower, deeper in the bowls of Dante's realm, reside those who are supposed to be acting in loco parentis, to protect the legal rights of the inventor class. These include the courts, the Patent Office and the IP centric academia.

We are talking about those who, instead of protecting, take gleeful joy in dissecting and destroying the vulnerable inventor class.

(("Nice of you to ask Clarisse. I'm having an old friend for dinner."))

Food for thought (so to speak) ... still under consideration and construction

Friday, March 10, 2017

Loath and Disdain cause inventor dared Coin a Name

The mere fact that the inventor applied coined labels to conventional structures does not make the underlying concept inventive. See, e.g., Alice, 134 S. Ct. at 2352 n.2, 2360 (finding the claims abstract despite the recitation of technical sounding names such as "shadow credit record[s]" and "shadow debit record[s]").

INTELLECTUAL VENTURES I LLC V. CAPITAL ONE

The right and ability of every inventor to be his own lexicographer has been a cornerstone of the American patent system since its inception. Otherwise, what do you call the thingamajig that did not exist before, is "new and useful" and promotes the progress of science and the useful arts? "Spinning Jenny"?

Now, in a rash of inventor loathing opinions, we see the federal judiciary thrashing inventors for having the audacity to coin terms for things that the inventors believe to be new, useful and nonobvious.

That begs the question. Who fostered this rising wave of hatred among the judiciary and how did they do it?

STEP 1: Label them as trolls

STEP 2: Devise a vague troll detection test

STEP 3: Encourage the haters to devise their own, more sophisticated tests.

Monday, March 6, 2017

What do Trump and the Supreme Court have in common?

U.S. President Donald Trump tries to garner all the attention to himself through the use of "alternative facts".

Which is not not really fair. The Justices of the US Supreme Court (SCOTUS) should sue him for stealing an idea (a truly abstract and fundamentally principled idea) that was originally all theirs.

When it comes to the "I heard it through the grapevine" meme and the converting of such allegedly expert hearsay into court admitted expert testimony or "facts", no one, no one (perhaps), outdoes the SCOTeti.

Their ear to the wall sources include the so-called "friends" of the Court filings (amicus curie briefs).

There is no fact check verification process for amicus curie briefs.

This post ... still under construction

One area in which the SCOTeti regularly convert the "I heard it" fantasies into unassailable "facts" comes in the area of patent law.

Take the Wonderland decision in Alice v. CLS (please) as an example. The court has heard, from trustworthy sources, trust worthy we tell you, that Mother Nature has "laws" that she hands down from Mount Olympus, that Mother has "phenomenon" that are "natural" and thus hers alone, not things due to human intervention. Also the court has heard, that human "minds" can have "abstract" ideas. ...

Friday, March 3, 2017

Mirror mirror on the wall, we are the fairest of them all

Patent cases expose a number of embarrassing attributes about we human creatures.

First we tend to be very vane. Ninety percent (90%) of us think we place in at least the top 50% of our population if not in the top 10% or top 1%.

Second we are incompetently blind to almost all the things we are incompetently blind to. (How many of you are picking up the IR wavelengths now coming off your screen or hearing the ultrasonic vibrations?)

Third we crave social admiration. (Mirror mirror on the wall, who is the most admired of us all?).

Supreme Court Justices are susceptible to all these vices (shallowness, vanity, narcissism, ...) and succumb to them on a regular basis.

Yes. They all have very high IQ’s and are among the top 10% smartest people in our population.

But so too are all the young among our population who pursue advanced studies in the hard sciences (e.g. physics, chemistry, electronics, …). Why does it take our young ones (those with super high IQs) so many years to “get it”? Answer: because it’s hard hard stuff and our biological brains can only do so much and not much more.

If you were a Justice sitting on the SCOTUS and all your “friends” (amici curie) complemented you on how smart and clever you are and convinced you that molecular biology is no more complicated than plucking a leaf off a tree, wouldn’t you believe them?

And if some non-“friends” tried to explain to you that molecular biology is hard and that is why our high IQ youths take so long to earn their PhDs and that is why you, one of the “Supremes” may never understand it; wouldn’t you discount everything they argue?

So sure. At the end of the day all the complex stuff reduces to “generic” computers doing no more than conventional and routine operations, ones that 2nd year coders do every weekend without breaking a sweat. All those so-called smarty pants inventors out there and their devious scriveners cannot possibly be smarter than we the Supreme SCOTeti. They are merely trying to hoodwink us with their voodoo witchcraft and obfuscating language.

Aha. We can see right past them by devising a simple framework for witchcraft detection. First we dangle an oblong magic shard at the end of a string, slowly move it over the claim and give it a twirl. If it points in almost any direction but one secret one, the claim is clearly “directed to” skullduggery.

But just to be fair (because after all, our mirror tells us we are the fairest of them all) we will apply a second test. We submerge the claim in holy witch water to see if it has that elusive “something more”. You see, witches are made of wood and thus they float. Only those that have that “something more” stay under.

So after all that, why are all those cry baby inventors complaining? We have been imminently fair. After all, “we” are Supreme and in that top 1% number. Clearly they are not. Sigh.

Saturday, February 25, 2017

Rise of the New Romantics

It is not at first obvious, this newly re-surging undercurrent of disdain for scientists, inventors and tools of modernity such as computers, social media networks and biotechnology.

For historians however, the emergence of a counter culture reaction to science and enlightenment is no surprise. Ours is not the first time that a social movement (i.e the Luddite movement) emerged to reject rational thought and instead adopt a mystic worship of things more "natural".

Back in the mid-1800's, an emergence of a similar shift to "Romanticism" is seen in the anti-inventor bent of the Supreme Court patent case of Le Roy v. Tatham (SCt. 1852). The nature adoring majority in that case saw the inventor's claim to the essence of the leaden pipe as reaching in to greedily grasp a "natural" fundamental of Mother Nature herself. They saw in Mother Nature, certain "principles", "fundamentals", "natural elements of power" and motives that they believed should be free for all and not the exclusive domain of another Frankensteinian tinkerer in the Alchemical arts.

Still under construction ... re other Law of Nature cases

Friday, February 24, 2017

Origins of Alice, The Gobbledygook and Illuminatiasm of Le Roy v. Tatham

As the more geeky of patent law watchers know, the "abstract ideas" part of the Alice in Blunderland Supreme Court (SCOTUS 2014) decision finds its roots in Le Roy v. Tatham (1852).

One might assume that the Floundering Ancient SCOTeti Fathers of the 1852 version of SCOTUS were more reserved, scholarly and enlightened than our current crop of "New Romantics" like Clarence the Clown and 'Bacus Brain Breyer. But not so.

They too, at the dawn of the Industrial Revolution misunderstood science, technology and instead had mystical Illuminati beliefs in 'principles', symbolisms, confluence with Mother Nature and abstractions emanating from the shining eye on top of the pyramid of power. They write:

“A patent for leaden pipes would not be good, as it would be for an effect, and would, consequently, prohibit all other persons from using the same article, however manufactured. Leaden pipes are the same, the metal being in no respect different. Any difference in form and strength must arise from the mode of manufacturing the pipes. The new property in the metal claimed to have been discovered by the patentees, belongs to the process of manufacture, and not to the thing made.” --at 176

Clearly the SCOTeti of days yore did not, could not understand metallurgy or product by process. Nonetheless they considered themselves smarter than everyone else, even the inventor a.k.a. discoverer. How times have changed (not).

The 1852 SCOTeti go on to proclaim:

"The word principle is used by elementary writers on patent subjects, and sometimes in adjudications of courts, with such a want of precision in its application, as to mislead. It is admitted, that a principle is not patentable. A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right. Nor can an exclusive right exist to a new power, should one be discovered in addition to those already known. Through the agency of machinery a new steam power may be said to have been generated. But no one can appropriate this power exclusively to himself, under the patent laws. The same may be said of electricity, and of any other power in nature, which is alike open to all, and may be applied to useful purposes by the use of machinery.

In all such cases, the processes used to extract, modify, and concentrate natural agencies, constitute the invention. The elements of the power exist; the invention is not in discovering them, but in applying them to useful objects. Whether the machinery used be novel, or consist of a new combination of parts known, the right of the inventor is secured against all who use the same mechanical power, or one that shall be substantially the same.

A patent is not good for an effect, or the result of a certain process, as that would prohibit all other persons from making the same thing by any means whatsoever. This, by creating monopolies, would discourage arts and manufactures, against the avowed policy of the patent laws.

A new property discovered in matter, when practically applied, in the construction of a useful article of commerce or manufacture, is patentable; but the process through which the new property is developed and applied, must be stated, with such precision as to enable an ordinary mechanic to construct and apply the necessary process. This is required by the patent laws of England and of the United States, in order that when the patent shall run out, the public may know how to profit by the invention. It is said, in the case of the Househill Company v. Neilson, Webster's Patent Cases, 683, "A patent will be good, though the subject of the patent consists in the discovery of a great, general, and most comprehensive principle in science or law of nature, if that principle is by the specification applied to any special purpose, so as thereby to effectuate a practical result and benefit not previously attained." In that case, Mr. Justice Clerk, in his charge to the jury, said, "the specification does not claim any thing as to the form, nature, shape, materials, numbers, or mathematical character of the vessel or vessels in which the air is to be heated, or as to the mode of heating such vessels," &c. The patent was for "the improved application of air to produce heat in fires, forges and furnaces, where bellows or other blowing apparatus are required."

In that case, although the machinery was not claimed as a part of the invention, the jury were instructed to inquire, "whether the specification was not such as to enable workmen of ordinary skill to make machinery or apparatus capable of producing the effect set forth in said letters-patent and specification." And, that in order to ascertain whether the defendants had infringed the patent, the jury should inquire whether they, "did by themselves or others, and in contravention of the privileges conferred by the said letters-patent, use machinery or apparatus substantially the same with the machinery or apparatus described in the plaintiffs' specification, and to the effect set forth in said letters-patent and specification." So it would seem that where a patent is obtained, without a claim to the invention of the machinery, through which a valuable result is produced, a precise specification is required; and the test of infringement is, whether the defendants have used substantially the same process to produce the same result.