The U.S. Supreme Court on Nov. 30, 2012 granted cert. for only one
warm and fuzzy question:
1. Are human genes patentable?
The chemists among us are left to ponder:
(1) What makes any given chemical compound "human"?
(2) What makes any given chemical compound a "gene"?
(3) How do I prevent my chemical compound from being pejoratively labeled as "human" and a "gene"?
Brief by Myriad in Opposition to Grant of Cert. here
'You must also pay the lawyer fees of the trespasser'.
What more can an appeals court do to twist the dagger deeper into the heart of a stabbed inventor?
We speak here of INVENTIO AG v. OTIS ELEVATOR (Fed. Cir. Decided: November 27, 2012) ["Costs to Otis"]
And the dagger to the heart?
That comes with an "appeals" court deciding de novo issues of fact including, how did the person of ordinary skill in the art think at the time of invention.
The jury found in favor of the inventor, that the invention was not obvious.
Au contraire says the "appeals" court:
"So how could it not “logically ... commend[] itself to [the ’094] inventor’s attention in considering his problem” of seamlessly controlling access
to elevators? ... We need not decide the question because, based on the jury charge, a reasonable juror could not conclude that the RFID prior art was nonanalogous. ... Because the jury should have found the RFID prior art analogous, the conclusion becomes inescapable that ’094 patent is a clear example of a “combination of familiar
elements according to known methods [yielding] no more than . . . predictable results.” KSR Int’l Co. v. Teleflex Inc., ..."
Glorious Patriots:
Our War on Science Continues
with fresh news of grand victories on all fronts!
Today's victory story comes to you thanks to the efforts of those good folk stting on the bench of the US Court of Appeals that reviews patents.
Thank heavens they know abstraction when they see it:
PERKINELMER v. INTEMA
Need we even quote their ever vigilant insights?
Process claims fail this requirement [for "something more"] if, apart from the ineligible concept, they contain nothing more than “well-understood, routine, conventional activity previously engaged in by researchers in the field.” Id. Because they merely describe the ineligible concept, amounting to a claim on the concept, such claims run afoul of section 101. That is the case here.
And note how unscientific and foolish are the clown inventors:
Intema responds that the claims are directed to a specific medical test, not to an abstract method. Intema contends that the machine-or-transformation test is satisfied by the “assaying” measurement because the sample is chemically transformed. Intema also believes that the measurement of an ultrasound scan involves the transformation of data into a visual depiction
Oh clever inventors and your dangerously devious lawyers, do you honestly think you can fool us?
Since Intema’s claims recite mental processes and natural laws, we must decide if Intema added enough to the statements of ineligible subject matter to direct the claims, not to the ineligible concepts themselves, but to applications of those concepts. We think not.
WE THINK NOT
Can any one liner capture our essence better than this?
=======================
Mother Nature: She be a Giver of Laws.
Inventors: They be abusive takers.
Nature: Seen through the eyes of transformative metaphors:
In a "Nova Nation", energy; for lack of a better term,
is produced
by the incantation of
innovative words.
Sen. Murkowski (at 29:57): "Let's use our ingenuity to advance ... an all-of-the above approach ... spend more on innovation"
FULL COMMITTEE HEARING: The Government's Role in Energy Innovation (SD-36 --the meeting starts at 25:47 into the video, so click there to view. "About" the Committee is here.)
Two Smarter-than-a-5th-Grader
words appear in this post's title:
"vicarious" and "innovator".
If you recall your high school SAT study guide, one of the meanings associated with "vicarious" is that of "delegating" to others (to your vicar, if you are king) an accomplishment that you later pretend to have had yourself.
Our public discourse is filled with vicarious "we" talk.
Example:
"If we are to remain the strongest nation on Earth, we must remain the most innovative nation on Earth"
--a 2012 US Presidential candidate.
Another example:
“None of us can predict with certainty what the next big industry will be, or where the new jobs will come from. Thirty years ago, we couldn’t know that something called the Internet would lead to an economic revolution. What we can do – what America does better than anyone – is spark the creativity and imagination of our people. We are the nation that put cars in driveways and computers in offices; the nation of Edison and the Wright brothers; of Google and Facebook. In America, innovation doesn’t just change our lives. It’s how we make a living.”
--President Barack Obama, The State of the Union, 1/25/11
Indeed, there are some
who believe "innovation"
naturally grows on a forest
full of many fruitful trees,
all placed there by
the "ingenuity"-rich "we".
They believe that a band of
terrifying "trolls"
then run amok through these forests,
plucking the otherwise "naturally" occurring fruits
and hording the same for their greedy selves.
[W]e have created a [broken] patent system that gives innovators a temporary monopoly overwhat they create, which encourages them to hoard their knowledge, lest they help a competitor.
--Joseph Stiglitz
For you see, there is no "inventor" inside of "inNOvation".
It is the ingenious "WE" who vicariously create all the "inNOvation".
"Inventors" are merely greedy hoarding trolls who take false credit for what the ingenious "WE" vicariously created through mental manipulation of their robot bodies.
They deserve nothing.
"WE", the vicarious "innovators" deserve it all.
Bwaaahaha.
(... post is still under construction)
This week the number 5 weighs heavy
in US patent law.
May 5th (Cinco de Mayo) will mark roughly 5 years and 5 days since the infamous KSR v. Teleflex decision.
The (AIA) 'Seeds of Chucky' revealed their true colors this week ...
It was a fab five who rendered the bombastic Bilski decision (though it could have been much worse had the more anti-inventor other 4 had their way).
And then we have the newest creme de la creme of patent logic signed by all 9 of the anti-inventor Amigos: Mayo v. Prometheus (MVP) ....
Oh to have been that proverbial fly on the wall and listened in as the 9 Amigos deliberated over the fate of pharama in the MvP star chamber.
Perhaps it went like this (a fictional dramatization)
Chief Justice Roberts: Sonia, you used to be married to a patent attorney, right? What the heck is a patent any way?
Associate Justice Scalia: I think I can help on that score because this history buff and medium does pay attention. Each night before I go to sleep, I talk things over with our Founding Fathers. I mentioned to them this business about not letting physicians bleed their patients as they wish.
Need I say that the FF's (Founding Fathers) were almost rolling out of their resting places? Why it is imperative and part of the Natural Laws that a doctor has every right to excise the harmful humors from an ill body. I say we put a stop to this outrage!
Associate Justice Kennedy: Whoa. Hold up there my brother Anton. I too am a medium or moderate of sorts. While I don't nightly consult with our FF's, I fear we may be going to far and too fast. Perhaps at the end of the day we need to outlaw the use of patents for anything and everything having to do with medicine. But at least for now, can't we come up with a more measured approach? I liked what you said about the "Natural Laws". And I liked what Sonia said about a patent claim reciting to an audience. Can we somehow combine those ideas and come up with a compromise?
Associate Justice Thomas: [nods head in agreement]
Associate Justice Breyer: While I am a bleeding heart liberal, I must in this case agree with my artery bleeding brother Scalia. We cannot let this patent law stuff interfere with a doctor's right to treat his patients as he wills, be it with 18th century medicine or something slightly more modern. I think I see a way to combine this idea of "Natural Laws" and of what a "patent claim" recites to its audience so as to reign in inventors who claim too broad of a taking from the public's right to Obama care. Why don't you guys let me chisel out the first draft? If you like it, sign it and put the final blame on me. OK?
Associate Justice Alito: My comic sense tells me I should leave my comedian's routine out of this.
Associate Justice Breyer: I'll include that notion in there as well.
Outcome: And so it came to pass that the Supreme Court wisely ruled that a patent claim is something that recites to an audience of doctors what the invention is and when it recites only "Natural Laws" and "routine" other things then it fails to genuinely recite that extra something significantly "more" which raises it to the level of deserving and being "eligible" for a patent.
Public acclaim: Moreover, the enlightened public was full of praise for the clear guidance that the 9 Amigos had once again cast over the confusing land of patenthood. (Click on image to the left)
to be continued ...
SubTitle: Mayo v. Prometheus or How I stopped worrying and learned to love the Idiocracy)
(The above first link is to all things Mayo v. Promo (a Google search). This following link: here provides the decision in HTML accessible format as opposed to PDF format here: Mayo v. Promo. Left click on image at right to see list of Briefs filed before the US Supreme Court.) Click on summary bullet number to jump to section.
It is the patriotic duty of an informed public to loudly protest when a governmental body, even the US Supreme Court, comes out with a Stinko-da-Mayo result such as this one.
Overview: Sadly, what this post will show is that:
|
• 2. The US SCt does not know, or intentionally misinforms on what function a "patent claim" is supposed to perform, • 3. The US SCt does not know, or intentionally misinforms on what a "method step" is, • 4. The US SCt does not know, or intentionally misinforms on what a "Law of Nature" is • 5. ... (to be continued/updated) |
Why even care?
Because soon they will be hanging a new BANNER,
"NoT-BIO-DH"
draped across the entrance to the SCt. Building:
(Not To Be Invented Or Discovered Here)
Indeed, a claim for "Barbed Wire" recites nothing more than Laws of Nature:
1) A ductile metal bent into shape retains its shape
2) If you bump into a sharp point, you will bleed
American inventors are being slowly bled to death by one unkind SCt. cut and then a thousand more like it:
Benson,
Bilski,
Prometheus, ... and what is next?
Perhaps a blog post that sums up the situation most succinctly (for patent experts) is Patent Doc's lament: "We have met our 'Benson' and its name is 'Mayo' " (paraphrased). For more Patent Doc laments, see here
__________________________ Detailed analysis:
In the "Legal Universe", when the US Supreme court speaks, its words trump the very "Laws of Nature".
On the other hand, in the more humble world of "Science" (should you even be so lame brained as to believe in that most-obvious of "hoaxes" /sarcasm),
(1) Mother Nature always bats last,
(3) is at bat throughout the almost-endless baseball game.
In that game, she often moves in a way that blocks scientists from seeing exactly how (or getting to understand exactly how) Mother Nature bats.
If lucky, they get a glimpse of the ball's trajectory after Nature has cracked her bat against it.
Then they go at it by making up stories, rules, abstract theories about what they think Mother was doing, how she was doing it and what she will do if confronted in the future with similar inputs. (The last part is called predictive modeling --calling the ball's trajectory even before Mother Nature bats its out of the ball park).
Mother doesn't care one owl's hoot about what the scientists' abstract theories say.
She does her thing irrespective of the noises the monkeys make amongst themselves.
Mother has no plans of coming down from the mountain top with stone tablets in hand, merely for the sake of proclaiming her "laws" to one tribe of monkeys or another. No one knows if her laws can even be expressed in a manner that the human mind can grasp. That possibility is one that Mother does not fret over.
Stepping boldly forward into this arena there come the "Magnificent Nine" (M9). These 'Wisdom-spewing' lords and ladies arrive gowned in black robes and steeped in learned chanting of laws of the 'legalized mind'.
They stare unblinkingly at Mother Nature as she stands in the batter's box. They throw their curve straight at her face, fully expecting Mother to step back and to show some humble deference before the awesome powers of the "Magnificent Nine" (M9). They utter legal-eagle incantations about Her "laws". They fail to see that she steps back not. Their curve balls vaporize into hot air before even coming close to Mother Nature's batting position.
Read more ... here Read the Supreme Court opinon itself by clicking the below: MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC.
