Monday, September 10, 2007

Patent Insecurity and Over Hauling Act of 2007

"Secure": a verb: (1) to relieve from exposure to danger : (2) act to make safe against adverse contingencies : (3) to put beyond hazard of losing or of not receiving.

QUOTE: "Congress shall have power . . . To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." --U.S. Constitution, article I, section 8, clause 8

ACTION by Congress: HR 1908

Friday, August 24, 2007

US Department of Patent Extension Denial (DOPED)

In these days of hysterics and panic, perhaps a return to basics is warranted:

35 USC § 120. Benefit of earlier filing date in the United States

An application for patent for an invention
disclosed in the manner provided by the first paragraph of section 112 of this title
in an application previously filed
in the United States, or as provided by section 363 of this title,
which is filed by an inventor or inventors named in the previously filed application
shall have the same effect,
as to such [disclosed] invention,
as though filed on the date of the prior application,
if filed before
the patenting or abandonment of or termination of proceedings on the first application or
[before the patenting or abandonment of or termination of proceedings] on an application similarly entitled to the benefit of the filing date of the first application
and if it contains or is amended to contain
a specific reference to the earlier filed application.

No application shall be entitled to the benefit of an earlier filed application under this section unless an amendment containing the specific reference to the earlier filed application is submitted at such time during the pendency of the application as required by the Director. The Director may consider the failure to submit such an amendment within that time period as a waiver of any benefit under this section. The Director may establish procedures, including the payment of a surcharge, to accept an unintentionally delayed submission of an amendment under this section.

35 USC § 131. Examination of application

The Director shall cause an examination to be made of the application and the alleged new invention; and if on such examination it appears that the applicant is entitled to a patent under the law, the Director shall issue a patent therefor.

35 USC § 111. Application

(2) Contents.— Such application shall include—
(A) a specification as prescribed by section 112 of this title;
(B) a drawing as prescribed by section 113 of this title; and
(C) an oath by the applicant as prescribed by section 115 of this title.

Tuesday, July 31, 2007

The Board of Patent Inquisitions

Link (pdf of proposed new rules)

Caption: If the Examiner is giving you the run around, you can come to us for relief.

Monday, July 30, 2007

HP exec (the "invent" co.) & Houston Paper not above Downright Lying to Texas Football Fans

According to an opinion written by HP exec Ted Clark:
The last major updating of our patent system was in 1952. Back then, no one had heard of The Beatles and a long-distance telephone call was considered "high-tech." Yet this same system [1952 Patent Act] is expected to perform in today's faster paced, technology-based economy.

The Fourth Estate (newspaper editorials) seems to have been taken over by a Corporate Ministry of Doublespeak Truth right out of 1984. So it is up to the Blogosphere to holler a good ole fashion "foul" when the paper downright lies to its underinformed readers. Democracy can't work if the people are repeatedly lied to.

According to one historical site {IP Mall}, there have been amendments to the 1952 Act every couple of years:

1984 --Hatch Waxman add ons
1990-1994 (every year)
--Of these, the last two were for NAFTA and GATT (20 year term)
1999-- The American Inventor's "Protection" Act, a major set of changes

For more misleading statements to the public, one can go here and see what Mr. Smith Goes to Washington says:

Arguably, it [Patent Reform 2007] represents the biggest change since the 1952 act was written. The subcommittee has undertaken such an initiative because the changes are necessary to bolster the U.S. economy and improve the quality of living for all Americans. The bill will eliminate legal gamesmanship in the current system that rewards lawsuit abuses over creativity. It will enhance the quality of patents and increase public confidence in their integrity. This will help individuals and companies obtain money for research, commercialize their inventions, expand their businesses, create new jobs and offer the American public a dazzling array of products and services that continue to make our country the envy of the world. All businesses, small and large, can benefit. All industries directly or indirectly affected by patents, including finance, high tech and pharmaceuticals, can also profit.

Saturday, July 28, 2007

Reform Rationale Calls for Eradication of Human Race

A few bad apples are reason enough to remove the whole barrel according to certain pest control experts who wish to "reform" the 200 year old American patent system.

AP reporter Erica Werner warns her readers of the patent plague that confronts our nation. In a recent fair and blanched report she opens with the following line of plagiarized rhetoric:

Crustless peanut-butter-and-jelly sandwiches, a way to move sideways on a swing, a technique for exercising cats using a laser pointer - these are among the inventions patented in the United States over the years. Now Congress is trying to cut down on poor-quality or downright ridiculous patents, and at the same time adapt the patent system to a high-tech era in which computers and other electronic devices may contain thousands of patentable parts.

With millions of patents having been served out by the underfunded and overwhelmed US Patent Office, the enviro-friendly daft reporter has "discovered" all on her unbiased own the dastardly few patents that warrant eradication and total makeover of the whole system.

Of course, by that logic, it would make sense to exterminate the whole of the human race. After all, news reporters such as Erica are constantly uncovering examples of unsavory human beings. Does it not make sense to once and for all eliminate those pests as well? They pollute the air and poison the children. They commit crimes and lie, cheat and engage in acts of moral depravity.

And besides, if we leave alive a few independent inventors; why they might multiply and spread their contagious ideas around the whole world. Who wants free thinkers in an age of corporate mind control and global domination?

Monday, July 9, 2007

Today's Hipocracy

A copyrighted book entitled "Innovation Without Patents: Harnessing the Creative Spirit in a Diverse World" by Uma Suthersanen, et al. Amazon asking price: $100. The book suggests that IP laws are unnecessary for fostering creativity and innovation. However, the copyright page at the front of the book suggests that you will have your creative juices zapped by legal process if you creatively lift these authors' work product and palm it off as your own. (Another example of: What's mine is mine, what's yours is mine; or in short, hipocracy --rule by the hip and cool.)

Hat tip to IPBiz for raising the issue of economic enlightenment regarding innovation and its malcontents.

Saturday, June 30, 2007

"Obvious to Try" is Oxymoronic and Fatally Flawed

Three hikers are heading back to town along an unfamiliar back country trail when one of them is bit by a snake. The other two fashion a tourniquet and makeshift a stretcher for transporting their mate quickly to town, to a doctor's office about 5 miles away.

Alas they come upon an unmarked fork in the trail. No sign arises from its dirt to explicitly point the way to the correct choice. Just a mail box stands there, in the middle of nowhere.

Amazingly, they hear singing coming up from behind them. An old man is moseying his way towards the lone mailbox, letter in hand and entertaining himself with an old folksong.

"Quickly old man, please tell us which path is the quickest way back to town. Time is of the essence."

"Wish I could help you," sighs the elderly gent, "but it's been a long time since I traveled beyond this mailbox. If I recall correctly --and I'm not sure-- one of these paths leads to nowhere, a dead end if you please. With the other it's about a half hour to town. You know what? The McGuiver sisters know the answer. They are identical twins and one of them is sure to be along any minute now to drop her letters off. Problem is, one of them always lies and the other always tells the truth. And neither is willing but to answer one question a day."

At this juncture the injured hiker raises himself from the stretcher and says, "Let me ask the one question, after all it is my life on the line."

What one question does he ask?

A hat tip to the Fired-Up Genius for resurrecting the issue of "obvious to try".

Why not try just any old path? Flip a coin. There is after all, a 50-50 chance of being right.

But then again, in our example, what is the "cost" of being wrong? It could mean one's life.

Before you poo pooh the issue as being a mere fantasy, consider the real life story of Silicon Valley entrepreneur, James Kim who tragically lost his life in December 2006 because his family had driven up the wrong "via". (Via means "path" in Latin. Ob-Via means to come upon the one path. In that case your next step forward is "Ob-Via-ous".

As for the answer to the twin-sisters riddle, it's obvious. (Obvious in hindsight if someone told you the answer).
One sister is an Inverter of the truth. The other is a double inverter. Hook up the three (3) inverters in series and you get a deterministic logical outcome. Familiar objects operating in predictable ways. In fact, we gave away part of the answer "three" as the very first word in the story. A person of ordinary intelligence would have seen that and would have combined it with the well known logical operative of "NOT".

The injured hiker asks: If I had asked your sister which road is the quickest way back to town, which way would she point, left or right? The lying sister would point to the wrong road because her sister would point to the right choice. The truth telling sister would point to the wrong road because her sister would lie and point to the wrong road. Simple logic ... in hindsight.

Thursday, June 28, 2007

Provisionally Inaccurate

The urban legend continues in regard to provisional applications. One advice article (by an unknown author) puts it this way for its unwary readers:
Less expensive and easier to file than a full (non-provisional) patent application, a provisional application filing buys you time (up to 12 months) to figure out how to market your newest invention and raise much needed capital, while allowing you to claim ownership of the idea as of the date of the filing. Securing a priority filing date is critical because as far as the U.S. government is concerned, ownership rights go to the person who can prove he or she came up with the idea first.

Saturday, June 23, 2007

Schlafly, Phyllis Fingers the Harm-my-Nation Deformists
Jun 22,2007
So-called patent reform cheats U.S. inventors
by Phyllis Schlafly

The globalists are making a new attempt to circumvent and weaken a right explicitly recognized in the U.S. Constitution: Americans' exclusive ownership of their own inventions.

Fortunately, Sens. Tom Coburn, R-Okla., Charles Grassley, R-Iowa, Jon Kyl, R-Ariz., Jeff Sessions, R-Ala., and Sam Brownback, R-Kan., have exposed this mischief and called on Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., Sen. Arlen Specter, R-Pa., to slow down and discuss the proposed legislation before making costly mistakes.

As we've learned with "Comprehensive Immigration Reform," we should all be on guard any time politicians patronize us with pompous talk about "reform." The so-called Patent Reform Act of 2007 is not reform at all; in one package, it betrays both individual rights and U.S. sovereignty.

It's no accident that the United States has produced the overwhelming majority of the world's great inventions. It's because the Founding Fathers invented the world's best patent system, which was a brilliant stroke of inspired originality when the Constitution was written in 1787, and still is stunningly unique in the world.
The political pressure for the new bill comes from the "world is flat" globalists who want to level the U.S. patent system with other countries. "Harmonization" is a favorite trigger word in their arguments.

For example, in introducing new bill, Rep. Howard Berman, D-Calif., said it will "harmonize U.S. patent law with the patent law of most other countries." The explanation of the bill issued by Leahy's office states that the bill's purpose is to eliminate "a lack of international consistency."

But because the U.S. system produces more important inventions than the rest of the world combined, why should we legislate "consistency" with inferior foreign policies?

The uniqueness of the American system is that "inventors" are granted "the exclusive right" to their inventions "for limited times" (usually about 18 years) after which the invention goes into the public domain. Exclusivity was assured because U.S. courts would uphold the inventor's patent against infringers, and the U.S. Patent Office would not disclose any information in a patent application unless and until the legal protection of a patent was granted. Rejected patent applications were returned to the applicants with their secrets intact.

The so-called patent "reform" of 1999 radically changed this to allow the U.S. Patent Office to publish the details of inventions 18 months after they are filed, unless the inventor agrees NOT to file a patent application in another country. Other countries do not respect inventors' rights granted by the U.S. Patent Office.

Inventors say the U.S. Patent Office is now taking an average of 31 months to grant a patent! So, when the Patent Office publishes (i.e., posts online) a patent application before a patent is granted, this gives patent pirates all over the world an average of 13 months (31 minus 18) to study detailed descriptions of virtually all U.S. patent applications, steal and adapt these new American ideas to their own purposes, and go into production.

Foreign governments, foreign corporations, and patent pirates are thus able to systematically "mine" U.S. patent applications and steal American-owned inventions. The 2007 "reform" bill's "harmonization" is a fraud because it does nothing to require or induce other countries to respect U.S. patents.

The unconscionable delay in processing patent applications resulted when Congress diverted the fees paid by inventors into pork and other pet projects. That meant the Patent Office could not hire the additional examiners it needed to process the rising number of domestic and foreign patent applications, and so a massive backload built up.

What recourse does the inventor have? If the infringer is in another country (China is a notorious thief of intellectual property), the U.S. inventor must have filed a patent application in that other country and the lawsuit must be filed there.

The proposed Patent Reform Act of 2007, sponsored by Sens. Leahy and Orrin Hatch, R-Utah, and Reps. Berman and Lamar Smith, R-Texas, would further reduce inventors' rights. For the sake of "international consistency," it would convert the U.S. system to a "first to file" system, thereby replacing our unique and successful U.S. "first to invent" system.

The U.S. gives priority to the first one who actually invents something rather than to one who simply files papers about what he plans to invent. The change to "first to file" would create a race to the Patent Office and would severely disadvantage the small and independent inventors who lack the resources of big corporations.

Much more is wrong with the Patent Reform Act of 2007, but I've run out of space, so stay tuned.
- - -

Phyllis Schlafly is a lawyer, conservative political analyst and the author of the newly revised and expanded "Supremacists." She can be contacted by e-mail at
Steppy note: OK. A constitutional law scholar she is not. But nonetheless Schlafly drills the emotional outrage into the minds and hearts of her ordinary readers.

Friday, June 15, 2007

OPIP: Other People's Intellectual Property

The Captains of Capitalism have a neat little rule. It goes like this:

What's your's is mine.
What's mine is mine.

This rule applies especially to Other People's Intellectual Property (OPIP) and more so if those other people are weak and incapable of defending themselves. "If thou can profit from depossessing a baby of its candy and yet avoid facing the outrageous arrows of litigation for thy transgressions, then do so. It profits one not to have a lesser bottom line."

Of course, one does not use violence to shift ownership away from the baby and into one's own pocket. These things must be done "delicately" as they say. A true Captain of Capitalism phrases it under the guise of righteousness:

It is essential that this legislation is adopted this year to help maintain our country's innovation leadership by reducing excessive litigation, limiting damages awards, and improving the quality of U.S. patents. (Locally, we're very proud of the hundreds of high-quality patents that IBM researchers in Vermont earned last year.)

The world is divided into two kinds of people: us and "them". The "them" are not truly deserving of anything. Whatever they claim to have invented, we would have invented first because it was obvious to us. Therefore, what's theirs is really ours you see. They merely abuse the court system to take away from us all the monies that are truly and rightly ours, only ours:

If a case does go to court, Sen. Leahy's bill would give judges and juries a more reasonable way to determine damages -- by figuring out how much the infringed intellectual property is really worth.

Nothing quite frankly. Besides, the "Them" should not really be allowed to go to court in the first place. Courts are places where only noble folk such as ourselves go to take more of what is truly and always was ours to begin with:

Until now, there has been no real alternative to the courtroom in which to hash out these controversies. If a company is found to be infringing someone else's intellectual property, court and jury-ordered awards can be huge, often out of proportion to the value of the patent. In fact, patent litigation yielded $3.4 billion in awards in 2006.
These litigation awards and legal expenses shouldered by businesses impose a kind of tax on our economy and products. Money that could be spent innovating is diverted to legal bills.
Consequently, Vermont companies, as well as other U.S. companies subject to these same pressures, may be rendered less competitive globally.

It is goooood to be a Captain of Capitalism. The world is our oyster.

Sunday, June 10, 2007

Stifling the Innovators


That was Archie Bunker's favorite verb. "Stifle Edith, stifle." We don't want to hear your squeaky voice talking truth to power. It's embarrassing. Not to you. To us. We the armchair powerful get oxymorononically upset when upstarts such as yourself start upsetting the status quo. If the good Lord had meant for people like you to be heard, He would have given people like us empathy --whatever that means. But He didn't. And frankly Edith, we don't give a care. So stifle.

Words like "stifle" and "innovation" are all the rage in the right wing anti-inventor talk circles now a days.

Here is what Patent Lier, Tim B. Lee[ry] writes in the New York Times Op-ed section recently (6/9/2007):

Only patent lawyers benefit from this kind of arms race. And Microsoft’s own history contradicts Mr. Smith’s claim that patents are essential for technological breakthroughs: Microsoft produced lots of innovative software before it received its first software patent in 1988. As more and more lawsuits rock the industry, we should ask if software patents are stifling innovation. Bill Gates certainly thought so in 1991, even if he won’t admit it today.
Timothy B. Lee is an adjunct scholar at the Cato Institute.

TB Lee is not alone. Here is the US Supreme Court extolling the "stifle" word in KSR v. Teleflex:

" We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from [ever] higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts."
[emphasis added]

In light of recent attempts by the same Archie Bunker Supreme Court to stifle Edith and her feminist friends from suing for equal pay, one must ask whether the "true" intent of the Court is to stifle innovators rather than to worry about stifling "true innovation". Indeed, the concept of "true innovation" inherently invokes the counter example of "false innovation". What is "false innovation"? It is when a group of powerful business people who never themselves invented anything commendable, seek to substitute their names in as the parents of a brain storm baby that was birthed in a barnyard by a lonely independent inventor. Success has many parents. Logic tells us that most such parents are innovators of falsehood.

One must pause and pay tribute to whichever think tanking organization spawned the issue framing phrase regarding the "stifling of innovation". Was the Edith-putdown epitaph first innovated here or here or here?

Friday, May 25, 2007

Post KSR Principles of Law


“[T]he examiner bears the initial burden, on review of the prior art or any other ground, of presenting a prima facie case of unpatentability.” In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).

To satisfy the written description requirement of 35 U.S.C. § 112, ¶1, the disclosure of the application as originally filed must reasonably convey to any person skilled in the relevant art that the applicants, as of the filing date of the original application, had possession of the claimed invention. In re Alton, 76 F.3d 1168, 1172, 37 USPQ2d 1578, 1581 (Fed. Cir. 1996); In re Kaslow, 707 F.2d 1366, 1375, 217 USPQ 1089, 1096 (Fed. Cir. 1983).

A claim is definite, and thus complies with 35 U.S.C. § 112, ¶2, if it would have reasonably apprised one skilled in the relevant art of its scope. Amgen, Inc. v. Chugai Pharmaceutical Co., Ltd., 927 F.2d 1200, 1217, 18 USPQ2d 1016, 1030 (Fed. Cir. 1991). Claim definiteness is not analyzed “in a vacuum, but always in light of the teachings of the prior art and of the particular application disclosure as it would be interpreted by one possessing the ordinary level of skill in the pertinent art.” In re Moore, 439 F.2d 1232, 1235, 169 USPQ 236, 238 (CCPA 1971). That is, a claim complies with the second paragraph of Section 112 if, when read in light of the specification, it would have reasonably apprised those skilled in the relevant art of the scope of the invention. Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1385, 231 USPQ 81, 94 (Fed. Cir. 1986).

The factual inquiry into whether claimed subject matter would have been obvious includes a determination of: (1) the scope and content of the prior art; (2) the differences between the claimed subject matter and the prior art; (3) the level of ordinary skill in the art; and (4) secondary considerations (e.g., the problem solved) that may be indicia of (non)obviousness. Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17-18 (1966).

Recently, the Supreme Court of the United States stated that the “analysis [of whether the subject matter of a claim would have been obvious] need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l v.. Teleflex, Inc., 127 S. Ct. 1727, ___, 82 USPQ2d 1385, 1396 (2007); see also DyStar Textilfarben GmBH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1361, 80 USPQ2d 1641, 1645 (Fed. Cir. 2006)(“The motivation need not be found in the references sought to be combined, but may be found in any number of sources, including common knowledge, the prior art as a whole, or the nature of the problem itself.”); In re Boesch, 617 F.2d 272, 276, 205 USPQ 215, 219 (CCPA 1980)(“[D]iscovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art.”); In re Bozek, 416 F.2d 1385, 1390, 163 USPQ 545, 549 (CCPA 1969)(“Having established that this knowledge was in the art, the examiner could then properly rely, as put forth by the solicitor, on a conclusion of obviousness ‘from common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference.’”); In re Hoeschele, 406 F.2d 1403, 1406-07, 160 USPQ 809, 811-812 (CCPA 1969) (“[I]t is proper to take into account not only specific teachings of the references but also the inferences which one skilled in the art would reasonably be expected to draw therefrom...”).

“When the PTO shows prima facie obviousness, the burden then shifts to the applicant[s] to rebut.” In re Mayne, 104 F.3d 1339, 1342, 41 USPQ2d 1451, 1454 (Fed. Cir. 1997). “Such rebuttal or argument can consist of a comparison of test data showing that the claimed compositions possess unexpectedly improved properties or properties that the prior art does not have...” In re Dillon, 919 F.2d 688, 692-93, 16 USPQ2d 1897, 1901 (Fed. Cir. 1990)(en banc).


I. Written Description: Claims 5, 10, 15, and 20 ...

source: here

Wednesday, May 16, 2007

Obvious as the Light Passing through the Donut Hole

Here is part of what the BOPAI ruled in Ex parte PEEYUSH MAHESHWARI, et al

Appellants do not take issue with the Examiner’s legal conclusion that it would have been obvious for one of ordinary skill in the art, based on Bongiovanni, to add cornmeal to the dough of Hayes-Jacobson. Also, Appellants make no argument that it would have been nonobvious, based on the disclosures of Lee and Pesheck and the state of the prior art, to add bread crumbs to the product of Hayes-Jacobson. Rather, the sole argument advanced by Appellants is that none of the references provides “any insight or instruction to one of skill in the art that the inclusion of bread crumbs inside a pre-cooked dough will help to reduce boil-out of an internal filling during microwave heating of a microwavable dough product”

More of what the Board held:

[I]n the present case, the fact that Appellants may have discovered a new advantage for adding bread crumbs to the filling of a dough product does not result in the metamorphosis of an obvious food composition comprising bread crumbs into a different, nonobvious composition. Significantly, Appellants have not proffered any objective evidence which establishes unexpected results attributed to the addition of bread crumbs into the filling of the dough product of Hayes-Jacobson, let alone evidence of sufficient probative value to outweigh the obviousness of doing so. See In re May, 574 F.2d 1082, 1092, 197 USPQ 601, 609 (CCPA 1978); In re Nolan, 553 F.2d 1261, 1267, 193 USPQ 641, 645 (CCPA 1977).

Wednesday, May 2, 2007

Ob Via

I'm not a Latin scholar. Nonetheless, the root word "ob" apparently means to come directly upon, to face against such that it is easily within reach. The root word "via" means way or path.

The combined term, obviam or "obvious" comes to mean the path or way that is directly in front of you and hence makes it easy to know what your next step forward should be.

Among the many dictionary defintions is this one: easily discovered, seen, or understood (Merriam Webster's)

Some more enlightening definitions: Easily perceived or understood; quite apparent. See synonyms at "apparent"; Easily seen through because of a lack of subtlety; transparent: an obvious political ploy. ETYMOLOGY: From Latin, from obviam, in the way, within reach : ob-, against; see ob– + viam,

Monday, April 30, 2007

KSR v. Teleflex (deeper diggings)

As Curly in the movie, City Slickers, said, you got to figure out what your "one thing" is, just one thing. Everybody is going to have some key word or sentence they focus on within the KSR decision. For me. the following paragraph is where the paydirt (the gold) is buried. You got to ask yourself, what are you going to do to preserve your "genuine issue of material fact"? How are you going to fashion your expert affidavit? That's true even if all you do is patent prosecution:

To the extent the [Fed. Cir.] court understood the Graham approach to exclude the possibility of summary judgment when an expert provides a conclusory affidavit addressing the question of obviousness, it misunderstood the role expert testimony plays in the analysis. In considering summary judgment on that question the district court can and should take into account expert testimony, which may resolve or keep open certain questions of fact. That is not the end of the issue, however. The ultimate judgment of obviousness is a legal determination. Graham, 383 U. S., at 17. Where, as here, the content of the prior art, the scope of the patent claim, and the level of ordinary skill in the art are not in material dispute, and the obviousness of the claim is apparent in light of these factors, summary judgment is appropriate. Nothing in the declarations proffered by Teleflex prevented the District Court from reaching the careful conclusions underlying its order for summary judgment in this case.

Everything in the law is a double edged sword. The Supremes declared that PHOSITA is not an automotan. He (or she) is a "person". A person who comes with some degree of "ordinary" creativity. But then again, also a "person" who comes to the stage with other characterisitics of "ordinary" personhood, like being a 'follow the crowd' kind of guy/gal ... to be continued

KSR v. Teleflex (RIP U.S. Patent system) --First Thoughts

The second from last paragraph in the Supreme Court (of Jesters) ruling of KSR v. Teleflex (4/30/2007) caught this fool's eye:
["]We["] build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of ["]our["] shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from [ever] higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts. See U. S. Const., Art. I, §8, cl. 8. These premises led to the bar on patents claiming obvious subject matter established in Hotchkiss and codified in §103. Application of the bar must not be confined within a test or formulation too constrained to serve its purpose.

It ties in nicely with what some refer to as The Religion of Perpetual Progress. Simply put, the fundamentalist believers in this religion use their "common sense" to conclude that "progress" is everlasting and guaranteed to continue in perpetuity while exponentially accelerating towards The Technological Singularity. Regretably, there are only handfuls of people outside the walls of the Supreme Court of Jesters who are aware of dark clouds gathering and threatening the very existence and continuance of the human race let alone perpetuation of the notion that, like diamonds, "Progress" is Forever. The only thing that can be said for the legal geniuses who sit on our Supremist of courts is: Forgive them, they know not what they do.

You can see the exuberent ignorance in their boastful congratulations to themselves. They brag about how "We" build and "We" create. They crow about how we use "instinct" and "inference" to raise our divine selves to ever higher and more glorious plateaus of technological achievement. The sad fact though, is that these Jesters of the Highest Court do not build anything except self aggrandizing words. You can see in their tones that they have not a clue about how the inventing process proceeds. They are so far removed from the trenches that they float on clouds of "palpable reality". Lucky for them, they are not alone. Wiley Coyote hangs there too.

Tuesday, April 24, 2007

Functional / Non-functional DoubleTalk / Non-Double Talk

Is it just me, or does this run of logic from a recent BOPAI decision make any sense to you?

"When non-functional descriptive material is recorded on some computer-readable medium, in a computer or on an electromagnetic carrier signal, it is not statutory since no requisite functionality is present to satisfy the practical application requirement. Merely claiming non-functional descriptive material, i.e., abstract ideas, stored in a computer-readable medium, in a computer, on an electromagnetic carrier signal does not make it statutory. See Diamond v. Diehr, 450 U.S. 175, 185-86, 209 USPQ 1, 7-8 (1981) (noting that the claims for an algorithm in Benson were unpatentable as abstract ideas because “[t]he sole practical application of the algorithm was in connection with the programming of a general purpose computer.”). Such a result would exalt form over substance. In re Sarkar, 588 F.2d 1330, 1333, 200 USPQ 132, 137 (CCPA 1978) (“[E]ach invention must be evaluated as claimed; yet semantogenic considerations preclude a determination based solely on words appearing in the claims. In the final analysis under 101, the claimed invention, as a whole, must be evaluated for what it is.”)"

First off, how does one store "abstract ideas" in a physically real storage medium? If they are abstract, the ideas don't exist in the real world. They belong to the existentially abstract nether world. So what is the PTO's BOPAI talking about?

And speaking of double talk, how can something be "descriptive" and yet non-functional? Doesn't being descriptive inherently provide the function of describing something? What makes a functionality a "requisite" one? Isn't that just circular logic where the rejection supports itself by powers of self-levitation?

Makes no sense to me. But then again, I am just another abstract entity on the abstract Internet. So please do not pay any attention to these rantings.

Friday, April 6, 2007

Failure to Call a Witness for the Defense

Imagine yourself sitting in a courtroom, watching a murder trial.

The Prosecutor calls up a forensic "expert" to examine the blood trail, the collections of carpet fibers and to offer an expert opinion on how obvious it is that the Defendant did it. With that damning testimony in place, the Prosecution rests.

Now the Judge calls upon defense counsel. "You may call your first witness."

"We have no witnesses to call," the lawyer confesses. "We believe that overwhelming evidence and arguments are already in place for us to easily win the case. The Defense rests your Honor."

You rub your eyes. What? No witnesses? No testimony on behalf of the accused? Boy, this poor bastard is going to fry. What kind of self-proclaimed lawyer fails to mount a defense?

On very rare occasions the answer might be, a very clever one. However, in most cases, the lawyer would be a fool to not call up an expert of his own to counter what the other side's alleged expert found to be "obvious".

Time to de-suspend your not too suspended disbelief. This after all is a patent blog. So "obviously" we are not going to be talking about murder trials. But how about appeals in front of the USPTO's BOPAI? How often does the defense fail to call up an expert witness in rebuttal against what the PTO's "expert" (a.k.a the Examiner) found to be "obvious"? Answer: All too often.

Here is a case in point. The BOPAI rules as follows.

For the foregoing reasons and those stated in the Answer, we determine that the Examiner has established a prima facie case of obviousness in view of the reference evidence. Appellant has argued that unexpected results have been demonstrated. Therefore, we begin anew and consider the [totality of the record] evidence for and against obviousness. See In re Oetiker, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). We do not find Appellant’s "evidence" persuasive for the following reasons. Expected beneficial results are evidence of obviousness, just as unexpected beneficial results are evidence of unobviousness. See In re Skoll, 187 USPQ 481, 484 (CCPA 1975); In re Skoner, 186 USPQ 80, 82 (CCPA 1975). Here [we find that the] Gleave [reference] teaches that improved results will occur by substituting the VAC thickener for a conventional PMM thickener (see factual finding (7) listed above). Additionally, Appellant’s "evidence" of nonobviousness that is not commensurate in scope with its claims cannot overcome the rejection of those claims. See In re Boesch, 205 USPQ 215, 219 (CCPA 1980) ... [rest of 103 affirmance is here.]

Now you might say to yourself, this is an aberration, not the norm. Actually, I took a quick sampling of several 103 affirmance cases decided in early April 2007 and found the same pattern repeated again and again. Look also here and here and here and here.

Sunday, March 11, 2007

What is "software"? (Part II)

Suppose you had a wooden toy; one made of a "hard" wood.

Suppose you carved hardened grooves down a set of wooden ramps and you let a ball roll down the path defined by those hardened grooves.

This contraption is a "machine" of sorts. It has a moving part, the ball. It has a useful purpose: entertainment and education about the laws of physics.

Assuming there is no prior art, few would question whether such a "machine" and its "method" of use are patentable subject matter under 35 USC 101.

It should be "obvious" where I'm next going with this.

We are going to make the path that the ball follows less fixed, less hard. For example we can put a number of spring-closed trap door holes at spots along the upper and middle ramps. We can let the child use a set of strings connected to the trap doors (the monostable unlatching means) to determine ahead of time or dynamically in real time which trap doors pop open and which remain closed at least until after the rolling ball has passed that position.

The contraption is still a "machine", albeit a slightly more complex one. The ball still follows the laws of physics and moves towards the point of least energy. However, this time the path is defined in a "soft" way depending on how our innocent child pulls the strings.

What we have now is a tangible machine in combination with a pattern of dynamically changing or fixed energy states. The energy states are those of the monostable unlatching means, the spring-closed trap doors.

Consider next a machine whose moving balls are constituted by electrons, whose hardwood grooves are constituted by fixed wirings, and whose spring loaded trap doors are constituted by latch driven AND gates. What's the difference?

Saturday, March 10, 2007

What is "software"?

The word "software" appears in the phrase "software patents".

Unless you've been living under a large boulder, you probably know that things known as "software patents" are a source of great contention.

Some people hate "software patents" with a passion while others come to the defense of these hypothetical monsters with equal vigor.

Before tackling the topic of "software patents" per se, one must first come to grips with the definition of "software" itself.
What is software?

Like the proverbial blind men circling the elephant, everyone seems to have a personal encounter with "software" and an explanation that satisfies, well at least their own personal curiosity.

A lay person may explain it this way:
"Well I went into the store and asked the fella where they keep their wordprocessing software. He pointed me to the aisle and I bought the box. Then I stuck this disc thing into my computer, and to my great satisfaction, my home computer became a sophisticated typing machine. That's software for you. It comes in a box. You buy it. You put it in your computer. It makes you happy.
From the Supreme minds of the Supreme Court of the land of the USA come these observations on "software":
JUSTICE GINSBURG: ... as I understand it, that what you call the object code appears in the -- in the computer that it's -- that is what is sent, along with the master disk, and the object code is the critical component, according to AT&T. In fact, wasn't that the first question that you raised, whether digital software code, an intangible sequence of 1's and 0's may be considered a component of a patent, patented invention? ... JUSTICE STEVENS: Well, I'm a little confused, ... I thought it was the software which was arguably the component, not any physical manifestation. ... MR. OLSON: ... Three decades of patent jurisprudence have authoritatively recognized software to be a physical and structural component of patented machines. ... MR. OLSON: ... people use the word "software" in two different ways. One of which, they use it as the intangible series of 1's and 0's. We submit that the correct way to understand the word "software" is the physical manifestation of that what is called source code, which is made into object code, which is made into machine readable code. ... JUSTICE SOUTER: In other words, the disk plus the -- plus the coded instructions. ... JUSTICE STEVENS: Your time is up, but I want to ask you one yes or no question. In your view is software patentable? MR. JOSEFFER: Standing alone in and of itself, no. JUSTICE STEVENS: Thank you.
There is more in the comments as well in the next post above.

Wednesday, March 7, 2007

First In the Hearts of his Inventor Countrymen

March 7, 2007
Testimony by W. Gates, III:
B. Rewarding innovation "In addition to investing in innovation, we must also reward innovators. This means giving inventors the ability to obtain intellectual property protection for their innovations, and to enforce these rights in the marketplace. America is fortunate that our leaders recognize the importance of intellectual property rights and the need for these rights to be respected, both at home and abroad. I know I join many other Americans in thanking this Congress and this Administration for their tireless efforts to promote intellectual property protection. In this regard, I would briefly note Microsoft’s support for current efforts in Congress to reform the U.S. patent system to meet the needs of the 21st century. Microsoft and other technology companies are working closely with Chairman Leahy and Senator Hatch on the Senate Judiciary Committee, and with the leadership of the House Judiciary Committee, to advance legislation on needed reforms. Although I will not delve into the details here, the reforms supported by Microsoft and many others will improve patent quality, reduce excessive litigation, and promote international patent harmonizationreforms that are vital if America is to retain its pre-eminence in technology innovation." Full text is here. Video is here.

Sunday, March 4, 2007

Swift Tech Boat Tricks

Larry Ebert beat me to the punch on this Dirty Tech Troll Trot. There is dirty pool and there is truly troublesome playing of dirty pool. The Dirty Tech guys have crossed the line. Study their opening paragraph for rhetorical technique rather than substance:
A reader sent in a defense of patent trolls, written by (surprise, surprise) an IP lawyer. He trots out a number of different points which not only conflict with each other, but don't make very much sense. He flat out says that "Far from stifling innovation, [patent] trolls foster it," though he fails to actually back up that statement. He starts out by denying that patent trolls exist, because there's no real definition for them, which seems like an odd way to go about defending them. Later on, he even tries to claim that critics are doing a lot more harm to innovation by using the phrase patent trolls, because it's such a negative term -- and it's such a shame that public perception is against these poor trolls, because it makes it more difficult for them to settle lawsuits and get the hundreds of millions they deserver for, you know, not actually bringing anything to market.
This is a multi-layered school yard bully attack. They can't win on substance. So they go for name calling. Step back for a moment and realize that trolls don't exist. Trolls are yet another Grimms Fairy Tale fabrication just as are the Evil Eyed Talking Tech Dolls (of Chucky's Seed fame) and the Flying Monkeys from the Wizard of Oz. The Dirty Tech doll guys are using something known as the "ad hominem" attack. It's quite simple. Very effective. Try to make fun of the person and get everyone worried they might be next. If you fall for their swift boat bullying attack, it is only because you are a cowardly lion with a straw filled head. You should know better. Despite their repeated insistance, the fabled troll from under Billy the Bully Goat's bridge really does not exist. And if you don't get a patent first before trying to bring something to market, there is nothing to stop the Greed-is-Good Goliaths from snatching it out of your cradle. The Dirt Talking Tech guys are with Goliath. Who's side are you on kimosabee? Think about it.

Tuesday, February 27, 2007

Mucky Mucks Mount Summit Offensive Against US Patent System

[Congressman] Berman [D-CA] is optimistic about the prospects of getting enough Republican votes to pass a [Patent "Reform"] bill in this year's new Democratic Congress. The tech industry will be thankful if some legislation makes it through soon that would get the sand out of the patent processing gears..
Yup, according to this unbiased report about the invitation-only Tech Policy Summit, the most prestigious leaders of world wide technology have hob nobbed together, looked deeply into the heart of the patent system, spotted its "gears" and found that "the system is broken" because there is sand in the gearbox.

Thank goodness. At least somebody is doing the hard hard quality work of collecting numbers, collecting facts, and arriving at rationalized assessments. You would hate to think that our "leaders" are not paying attention to all the unemotional evidence and instead they are being run rougshod over by the K street mind benders.

According to yet another report:

Congressman Howard Berman from Los Angeles, the chairman of the House of Representatives judiciary subcommittee on courts, predicted that the new Democratic Congress would deal with patent reform during the current legislative session. In an on-stage interview at the Tech Policy Summit with Time magazine national political correspondent Karen Tumulty, Berman noted that the pharma companies have opposed patent reform while the tech companies favor it. Berman said that Republicans in league with the pharma companies here-to-date held up the patent reform bill. But technology and financial services companies joined forces to create a groundswell of support for reform. He said that current patent office practices can be detrimental to innovation and the growth of the economy. He is troubled by business method patents and other frivolous patents such as the Double Click patent. .

Yet another unbiased observer was troubled that the Mucky Mucks were "trying to make patent trolling respectable". Obviously the panel failed to realize that "the current patent system had a chilling effect on patent infringement." My oh my. Something needs to be done about this. We can't have a system that chills infringement! "[N]o one on the panel was willing to note that the patent system all too often represents a net negative to innovation." Some more "dirt" on the Summit can be found here. And here and here.

Friday, February 23, 2007

"B" said I, 1.5 Big ones (Jury rules against Microsoft)

Abstract of US5341457 A technique for the masking of quantizing noise in the coding of audio signals is adapted to include geometric interpolation between the thresholds for a tone masking noise and for noise masking a tone, in order to reduce use of bit-rate capability where it is not necessary for transparent or high quality. The technique is usable with the types of channel coding known as "noiseless" or Huffman coding and with variable radix packing. The stereophonic embodiment eliminates redundancies in the sum and difference signals, so that the stereo coding uses significantly less than twice the bit rate of the comparable monaural signal. The technique can be used both in transmission of signals and in recording for reproduction, particularly recording and reproduction of music. Compatibility with the ISDN transmission rates known as 1 B, 2 B and 3 B rates has been achieved. Claims of US5341457 We claim: ... 10. A storage medium manufactured in accordance with a process comprising the steps of: (a) processing an ordered time sequence of audio signals partitioned into a set of ordered blocks, each said block having a discrete frequency spectrum comprising a first set of frequency coefficients; and (b) for each of said blocks: (1) grouping said first set of frequency coefficients into at least one group, each group comprising at least one frequency coefficient; (2) generating at least one tonality value, each group having an associated tonality value, said at least one tonality value reflecting the degree to which said time sequence of audio signals comprises tone-like quality; (3) generating at least one noise masking threshold, each said at least one noise masking threshold being based upon at least one tonality value; (4) quantizing at least one frequency coefficient in said at least one group resulting in a set of quantized frequency coefficients, said quantizing based upon said at least one noise masking threshold; (5) applying a recording signal to said storage medium, said recording signal comprising signals representing said set of quantized frequency coefficients; and (6) recording said recording signal onto said storage medium.

Wednesday, February 21, 2007

Supplying Components for the Globalized 21st Century

The AT&T v. Microsoft hearing transcript is up on the net. Two words: 1. component 2. supplying Many questions: 1. Is "software" a "component" of a computer? 2. What is "software"? 3. Where does "supplying" (or "causing to be supplied" of 271(f)) end and "assemblying" begin? 4. Which attorney had the compelling argument in DeepSouth Packing? 5. Which attorney had the compelling argument in AT&T v. Microsoft?

Tuesday, February 20, 2007

Ex parte Bilski meets Zurko (5 USC 706)

One anonymous reader brought the ghosts of In re Zurko back into mind. For those who don't remember, Zurko went all the way to the US Supreme Court (Dickinnson v. Zurko). The linchpin of the Zurko decision was 5 USC §706:
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES PART I--THE AGENCIES GENERALLY CHAPTER 7--JUDICIAL REVIEW Sec. 706. Scope of review To the extent necessary to decision and when presented, the reviewing court [i.e. the Fed. Cir.] shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall-- (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be-- (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 393.)
Following on the heels of Zurko's I-III, one can find the following in the MPEP:
"[T]he Board cannot simply reach conclusions based on its own understanding or experience-or on its assessment of what would be basic knowledge or common sense. Rather, the Board must point to some concrete evidence in the record in support of these findings."
In Ex parte Bilski we find numerous references to "machine" with a concommitant assumption that human beings can never be viewed as falling under the definition of "any" machine and that process carried entirely by operation of the human machine can never qualify as "any" process. More to the point, at pages 6-7 the Bilski panel concludes:
We do not believe the outcome of this case is controlled by ... State Street and ATT v. Excel because ... those cases involve the "special cases" of transformation of data by a machine. ... In recent years the USPTO has been flooded with claims to [alleged] "processes", many of which bear scant resemblance to classical processes of manipulating or transforming compositions of matter or forms of energy [Did you catch that about "energy"?] from one state to another.
And then midway into page 8 we fumble but then catch hold about this deep insight regarding the Heimlich Manuever and its ilk:
Still other process claims involve [mere] physical human activity --methods of throwing a ball or causing a fumble. Do these process claims cover patentable subject matter? Must [we, the poor, the hudled, and the tired USPTO] analyze such claims for compliance with written description and enablement requirements, and [oh my] search the prior art for "evidence" of novelty and nonobiousness [oh my]?
(The sarcasm in brackets [..] is obviously added here. The point is to get you people out there to slow down your speed-reading habits and to start critically analyzing some of the absurd assertions made even at the Board level of the USPTO. Are these assertions founded on "evidence" in the record and on sound logical reasoning? Or are we witnessing a hysterical PTO, drowning under the "flood" of such recent "process claims"?) At the bottom of page 9 comes this imparting of wisdom: "The Fed. Cir. cannot address rejections that it does not see." ... To Be Continued (page 31, item (24) ... page 35 bottom the Board is not bound by guidelines ..but does like to watch Pirates of the Caribbean ... pg 43: the steps of c1 do not transform ... )

Friday, February 16, 2007

Ex parte Bilski --What computer? I don't see no computer.

The image to the right (click to enlarge) is Figure 2 of 5 as shown at the WIPO site for a different Bilski patent app. It's not the same as Bilski US app 08/833,892. (To err is human. To really make a fool of oneself calls for blogging on the Internet.) The reason for my interest in the Bilski case is so that we can test the rhetoric of the Ex parte Bilski panel of 5 against the facts. They seem to imply that Bilski's "invention" does not have physicality, but rather that it is mere abstraction at its core. But before doing the deep dive in that direction, let us step back and examine 35 USC 101. It seems that too many people insist on interpreting 101 as a definition of "what" can or cannot be patented. I apologize for refusing to go along just to get along.
§ 101. Inventions patentable Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Firstly, for those of you out there who are going to insist that 101 is the "exclusive" provision governing what can or cannot be patented, here is a little monkey wrench for inclusion in you imagine-notions:
§ 161. Patents for plants Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor, subject to the conditions and requirements of this title. The provisions of this title relating to patents for inventions shall apply to patents for plants, except as otherwise provided.
Careful attention to language will show that 101 establishes an open-ended class of people, the "Whoever" who "may" obtain a patent. 101 does not say these are the only people. It says, at least these people who have performed one of an enumerated set of acts, is a person who may obtain a patent. 101 does not say anything about claims. It does not say what an inventor may not claim. It merely says that a "Whoever" who performs the act of inventing or discovering may obtain a patent for having done so. The act is that of inventing or discovering "any" process, "any" machine, "any" manufacture, or "any" composition of matter or "any" improvement thereof (not "therefor") that is new (novel) and "useful". So does Bilski's rejected claim recite an "any" process that is "useful" and novel? Lets' review an annotated copy of Bilski's claim 1:
1. A method for managing the consumption risk costs of a commodity sold by a commodity provider at a fixed price comprising the steps of: (a) initiating a series of transactions between said commodity provider and consumers of said commodity wherein said consumers purchase said commodity at a fixed rate based upon historical averages, said fixed rate correspoding to a risk postion of said consumer; (b) identifying ... (c) initiating a series of transactions between said commodity provider and...
Page 5 of the Bilski panel-of-5 decision is entitled: "Non-machine Implemented Methods". (Call me stupid, but aren't methods of administering therapeutic dosages of known chemical compounds (medicines) also "non-machine" implemented ones? Isn't the Heimlich manuever a non-machine implemented method? That said, let's keep going.) The BOPAI panel further asserts without any deep digging into definitions that machines, manufactures and compositions of matter "represent tangible physical things". So I suppose that if I invent a new composition of gases for release into the atmosphere everyone will immediately see such stuff as being "tangible". OK. And I guess if I release this novel tangible stuff into the atmosphere by means of removing my thumb from the top of a containment vessel (i.e. a plastic soda bottle with no machine valve on it), that is a "non-machine implemented method". And when the gases disseminate into the atmosphere that is a physical event. However note that at the top of page 6 the Bilski panel says that "non-machine implemented methods [are] abstract in nature [and thus] present 101 issues". Aha. One can see that sheer genius is at play here. Continuing at page 6 of the Bilski panel-of-5 decision, the panel finds:
"The steps of claim 1 do not recite any specific way of implementing the steps".
Hoo Ha there boys. Please ease back on the throttle of your intellectual race car. Here is an example of a claim that does not recite any specific way of implementing its steps:
What is claimed is: A method of doing stuff comprsing: (a) performing a first step, (b)performing a second step, and (c) performing a third step.
Got it? Get it? Good. I want people to insert fresh new batteries into their run-down thinking caps. Where has all the "critical thinking" gone? Are you all stoned out of your minds on that Beltway Booze? I apologize for being "irreverant". However, too much PC is a bit like too much Kool Aid at Reverend Jones's Guinea Getaway. Moreover at page 6, the Bliski-bashing brotherhood finds:
"The steps of claim 1 do not ... expressly or impliedly recite any physical transformation of physical subject matter, tangible or intangible (??) from one state into another".
Now wait one fiberous plant picking moment there. If I initiate another human being (i.e. a commodity provider or a consumer) into engaging in a "transaction", have I not caused a transformation of physical state, shifting the physical object (the human being) from the energetically lower state of "not transacting" to the energetically higher state of "transacting"? Have I not altered the thermodynamics of the situation? Is it possible to engage in a "trans-action" without the action of even a single muscle? How can one say there isn't "any physical transformation ... from one state into another"? Again. There used to be a thing called critical thinking. Where has all the critical thinking gone, long time not seen? The answer my friends is blowing in the ... oh never mind. Yet further at page 6, the Bliski-bongling brotherhood finds:
"The steps of claim 1 do not ... recite [hey where's the good 'ole directly or indirectly?] any electrical, chemical or mechanical acts or results
Once again fella's hold back on your fiberous plant plucking ways. If I initiate another human being (i.e. a commodity provider or a consumer) into engaging in a "transaction", have I not inherently caused at least an electrochemical act in the cranium of that being by initiating the "act" of trans-"acting"? P.S. Have I initiated any electrochemical acts in the craniums of you readers out there? Huh? Have I?

Thursday, February 15, 2007

Ex parte Bilski --rotten to the core

Where to begin on this 71-page masterpiece? Maybe the best place is with Judge McQuade's concurrence on page 71:
Considered collectively, these are powerfully persuasive factual indicators (not tests) that the method recited in claim 1 is, at its core, a disembodied business concept representing nothing more than a non-statutory abstract idea. That the "initiating" and "identifying," steps recited in the claim are drafted as acts required to be performed is of no moment. Given the full context of the claim, these- acts are nominal in nature and merely serve to superficially couch the appellants' abstract idea in a method or process format. For these reasons, the examiner's determination that claim l, and claims 2-11, which stand or fall therewith, are directed to non-statutory subject matter under 35 U.S.C. §101 is well founded.
That's the ticket then. We will start with the evil applicant's "abstract idea" and then clothe it with these "nominal in nature" acts (initiating, identifying, initiating) and then we will strip away the clothing --all the while seeing the claim in its "full context"-- and then whalla, we are back staring at the "abstract idea" which fills the rotten core of this applicant's apple. Heck, apples are circular. Apples are phenomenon of Nature. Therefore this kind of circular logic is perfectly natural and "well founded" on stilts of solid logic. Makes sense to me. With that "powerfully persuasive" chapter out of the way, we can proceed to the majority conclusion on page 65 regarding oral arguments: ... to be continued

Ex parte Bilski --initiating a transaction is not real

Sorry folk. I'm not going to have time to expound on this one today. (Have to do that evil stuff today, you know, billable hours.) According to a recent "informative" opinion published by the Board of Appeals, Ex parte Bilski, a method claim that includes the real world action of initiating transactions between real consumers and real commodity buyers is a dream, a mere abstarction. --I haven't read deeply into it. This is just a fast & furious peek. It's a post Lundgren decision that resurrects the "technological arts" rejection. Back later. See ya.

Wednesday, February 14, 2007

Jurassic Jumbo-Mumbo

Michael Crichton is allegedly an admitted plagiarist with an anti-science bend. He is also a crafty manipulator of words and emotions. The New York Times recently published Chrichton's opinion on "gene patents", aka: "Patenting Life". How does Chrichton get away with such Jurassic Jumbo-Mumbo? Let us study his ways. Here are his opening two sentences:
YOU, or someone you love, may die because of a gene patent that should never have been granted in the first place. Sound far-fetched? Unfortunately, it’s only too real.
Speaking of "YOU" --and we just love this topic, don't we?-- it is quite evident that you are "smart". After all, You read THE New York Times. You are conversant in matters of technology, law and public policy. You enjoy a good debate that flexes the old cerebral cortex muscle. This right up your alley. So how long did it take for the smart you to read Crichton's opening sentences? (Did I say two? Did you trust me? Did you count? Actually there are three.) So how long did it take you? What do you say? Maybe 2-5 seconds? Why so slow? Perhaps you took one of those speed reading courses that makes you special, makes you faster than ordinary mortal men? That's right. Admit it. You are special. You zipped through that baby in under 1.718 seconds. Retention rate was a cool 100%. That's right baby! High five. Conscious comprehension? Close to zero. Huh? Zero? What did YOU miss? Did you notice that Crichton is methodically firing up the different parts of your brain so as to get an emotional rise out of you? He immediately mentions "you" and "love" and fear of "death"; followed by a "because" that fools your brain into thinking that an actual "reason" follows close behind. It doesn't. Instead what follows is more mixed messaging into the different parts of your brain. First Crichton conjures up some undefined "gene patent" as the cause of your death (or of your loved one's demise). Then Crichton injects a backward in time suggestion about this evil "gene patent" being something that --assuming it exists, which it doesn't because Crichton is talking about specualtive events in the future, i.e. your death and the existence of this allegedly causal patent-- as if it already happened. Did "you" notice the mid-sentence switch in tense? First Crichton is describing the future (your imminent death) and suddenly he is in the "should have been" past. He convinces your brain that this after-the-future past actually occurred "in the first place". And you buy it without a second's hesitation. Why else did he insert that gratuitous phrase, "in the first place"? Did "you" have time to think about it? Well maybe not you. But you and you (those other parts of your brain) did catch all of that and they started processing it. However, in the split second before your brain might start questioning what is going on, Crichton throws you a suspension of disbelief pitch: "Sound far-fetched? Unfortunately, it’s only too real." Yup mind manipulation is only too real. But go ahead and laugh it away. Ha ha ha. No, not me. I'm not fooled by these psycho-linguistic tactics. I'm special. Why I spotted them right away. None of that can work on me. I did love his movies though. Especially the parts where the drum beat goes up and my heart beat subconsciously increases in response and then my brain senses that I'm scared or excited or both. Ha ha.

Tuesday, February 13, 2007

Rocky Patent Horror Show (Part Deux)

We continue with our "stepped back" look at Janet Beth's scholarly work by focusing attention on this next paragraph at page 127:
What if we could reform the application process and guarantee better patents before costly litigation? What if we could ensure that only the most worthwhile inventions received twenty years of monopoly rights? What if we could offer a way to protect inventors’ investments while still safeguarding the market from bad patents? What if we could give the scientific community a voice in determining whether an invention was truly novel or obvious? What if we could make informed decisions about the scientifically complex issues posed by patent law before the fact?
What an interesting turn of phrase: "only the most worthwhile inventions". From what little I recall of logic and language construction, there can be only one invention that qualifies as the "mostest". All other inventions are at best, disgruntled runner ups in this beauty pageant. So which invention measures up? Which is the "mostest"? Sliced bread, the telegraph or the light bulb? All other inventions clearly need to wither away in the brilliance of these golden standards. And then of course, there is the promise of a money-back "guarantee" from this new peer-to-peer process. Somehow, the "truth" will come out as to which inventions are "truly" novel and "truly" nonobvious. Finally, but not the least important of points, "the markets" will be "safegaurded" just as surely as they are from bad meat and securities fraud. Now I feel so much safer with Janet Beth's peer-peer system in place to safeguard little 'ole me. After all, this is what it's about isn't it? It's all about "safeguarding" the little guy. Page 131, the stepped back examination continues:
An industry has arisen in Patent “Trolling,” where Participants Seek Patents Solely for the PurpoSe of Initiating Infringement lawsuits and extorting licensing fees from competitors without Producing any Product or bringing any Innovation to The Market. ... This means, for example, that the oil industry could patent solar energy inventions that will be put on the shelf and never used. Since “anything under the sun” can be patentable subject matter and more people are filing patents than ever before, the field is fertile for companies seeking to patent undeserving inventions and to profit from the threat of litigation rather than from productive research and development. Of course, patenting activity may also reflect productive invention. But a low quality patent over a fundamental research method, if issued, runs the risk of impeding downstream invention and hampering scientific innovation.
So there you have it. Janet is protecting us little guys from those evil, extortionist "trolls". You know how you read about it in the papers all the time. Some poor, penniless business man who is struggling to make his daily payroll is suddenly swept away by an under-the-bridge, low handed "Troll" who was sitting there with one Sole and souless intent festering in his troll-like corpse: to extort the life blood out of unwary innocents. In the mean time, the richest and most wealthy of corporations are never bothered by independent innovators (where the latter are conveniently transmuted from human beings into "trolls" thanks to the efforts of the corporate mind squads). Oh no. It is not possible that such corporations could be funding the "scholarly" and objective research of unbiased academicians. I would be shocked, shocked to think that something of this underhanded sort might take place in this great country of ours. I would be even more shocked to discover that trusted scholars are being encouraged to repeat certain catch phrases in their works over and over again. In Janet Beth's scholastic article: "peer" ... 127 times "scien"[ce]... 103 times "public" ... 85 times "community" .. 73 times "expert" .... 64 times "technolog"[y}. 51 times "quality" .... 46 times "REFORM" ..... 31 times "obvious" .... 26 times "innov"[ation].. 19 times "valu"[e] ... 18 times "social" ... 15 times "trust" .... 12 times "collective" .. 9 times "bad" .... 6 times "troll" ...... 2 times "worth" [-while, worthy] ... 6 times "examiner" ... 99 times "invent" ... 80 times Worse yet. I would be Profoundly Shocked, Perplexed and Stuperfied to discover some underlying psycho-linguistic implant Pattern (P-S-P-S-P-S) that accidentlay and out of toal random coincidence became fundamentally and collectively integrated into the writing.

Monday, February 12, 2007

Patent Horror Picture Show

Why pick on poor "Janet" Beth N. and her trollala article about Peer-to-Peer patent review as featured at Patently-O? I don't having anything personal against Janet Beth. She is probably quite a nice person. It's just the choice of language in her scholalry article (warning: pdf file) that gives me pause. Lets start with a sampling of the the opening paragraph in the "Introduction" (before we get to that luscious Chapter II. THE PARADE OF HORRIBLES: INFORMATION DEFICIT AND PATENT QUALITY):
There is a crisis of patent quality. Patents are being issued that are vague and overbroad, lack novelty, and fail the constitutional mandate “[t]o promote the Progress of Science and useful Arts.” Low quality patents generate excessive litigation and confer the economic rewards of monopoly on patent holders while providing little benefit to the public. [footnote points to another article about how "OUR BROKEN PATENT SYSTEM IS ENDANGERING INNOVATION AND PROGRESS"]
"Crisis" of quality? Oh my! That sounds like the alarm bell for emotional hysteria. But where are the quantitative numbers to back it up? What percentage of the over 7,000,000 US patents issued thus far have been adjudicated by a court of last resort as being "vague and overbroad"? (Yes, we all know that evil William F. Morse got his come upin's at the US Supreme Court for having had the audacity to think his "telegraph" thing was something worthwhile and that he should be entitled to all manner of use of the "electromotive force". But what after that? How many indefintiteness and overbreadth rulings out of the 7 million? Shouldn't we have numbers?) And if all these patents "lack novelty" (where is the proof?) does that not mean that all those Examiners at the esteemed US Patent and Trademark Office (USPTO) are asleep at the switch? Does that not mean they are all absent mindedly rubber stamping every application as "allowed"? No wonder our system is "broken". Look. There is even proof right here: As one can readily see, nearly 99 and 44/100th's per cent of all patent applications are being allowed without any examination and matters are clearly getting worse.

Sunday, February 11, 2007

Paradise Lost

My commenting wings have been clipped-off at Patently-O. I can no longer soar with the other commenting angels there and deposit my 30 cents worth of silver tongued-attitude. What to do?

Beg for forgiveness?

Or write an epic comeback worthy of Milton from my own little private hell spot? Truthfully, I'm not going have time for writing epics of the caliber of Paradise Lost.

This is just going to be a small, underwater vent hole from Hades.