Alice Omelette Poured Generously Over Graham Eggshells

At the time that Graham v. Deere (1966) was decided, section 103(a) read as follows:

35 U.S.C. 103 Conditions for patentability; non-obvious subject matter. "(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made."

Alright, said the Supremes to themselves.

We don't know much about biology, history or zoology. Don't know deep algebra, just that 1 plus 1 is two. But about the English language we know a thing or three. We know how to parse a sentence.

It says in this section 103(a) something about "having ordinary skill in the art".
Somebody has got to figure out what that ordinary skill is, what its level is, and they need to do so by presenting "evidence".

It says in this section 103(a) something about "differences" and about the subtractant being "the prior art".
Somebody has got to figure out what the prior art is, what is its scope and content, and again they need to do so by presenting factual "evidence".

It says in this section 103(a) something about "the time the invention was made".
Somebody has got to figure out what that time is. Clearly the ordinary guy could not know what comes after. We best be wary of hindsight and allow for secondary considerations.

The Supremes of the Graham v. Deere era walked on eggshells. Careful not to overstep what the text of the statute said.

Now let's compare that against what the Supremes of Alice v. CLS did ...

Dismantling America. So we can be "Great". Again. Like we were before we had patents.

Not long ago, it was turnstile news that the world waited with baited breath for the next great thing coming out of America's technology mill.

It wasn't always that way.

Back in the day of our Philandering Fathers, America was a 3rd world back in the hillbilly woods agricultural society.

It was we who waited with baited breath for the next great technological advance to trickle down to us as soon as the "Great" Britain magnanimously decided to so do.

Then our Tinkering Fathers (e.g. Ben Franklin, ...) had a stroke of some kind. Eureka. Aha. If we gave out patents to "our" tinkerers and inventors we wouldn't be waiting around for Great Britain.

Today. We have great thinkers who want to make America "Great" again by going back to the old ways. By doing away with patents. By rolling back the clock to the good ole boy days when we waited with baited breath for them instead of them for us.

The Myth and the Magic

"I think it, therefore it is." (... true, that is)

Descartes didn't say that.

However many a modern day magical thinker believes it.

8 JUSTICE KENNEDY: Suppose I thought - and,
9 again, it's just a thought because I don't have the
10 expertise - that any computer group of people sitting
11 around a coffee shop in Silicon Valley could do this
12 over a weekend.

In other words:
The Myth of Basic Science
("The implications of this new way of seeing technology—as an autonomous, evolving entity that continues to progress whoever is in charge—are startling. People are pawns in a process. We ride rather than drive the innovation wave. Technology will find its inventors, rather than vice versa.")
Blogger's Note: So I need not have bothered writing this piece because inevitably someone else would have. And you need not have read this piece because inevitably someone else would have (read the other chap's piece). Pawns are expendable. Sit back, relax and just chew your cud.

Or is the rebuttal the correct point of view?
The “myth” of basic science?
("This is a profound misunderstanding of how basic science is translated into useful products. For instance, it is true that there were steam engines before the laws of thermodynamics were worked out, ... In turn, engineering improvements in the steam engine contributed to the understanding of thermodynamics during the 19th century. ... Basically, Ridley postulates the “myth” of basic science as a means of arguing that current patent policy is too stringent and protects monopoly")

Blogger's Note: So let's unilaterally disarm. Throw away our patent laws. Throw away our inventors and their cunning draftsmen lawyers. Sit back and wait for Them to inevitably invent. Piss in our pants when They arrive on our shores with their new inventions ... and then annihilate "Us" slackers. Good idea. Brilliant. Thank you Little Anthony and Clarence the Clown.

Is "innovation" inevitable?
Do patents "stifle" it?
Is the individual inventor irrelevant?
Another Edison or Bell would have surely come along?
Another Newton, Einstein, Darwin, Galileo was queued up and ready to go?

On whose shores?

Aw Shucks Judge Double Dashes Down the Rabbit Hole

One newspaper article describes him as an "aw shucks charm" kind of "normal, regular guy" who nonetheless has a "fierce legal mind" that makes him a "tremendous writer and a tremendous thinker."

Apparently his mantra is not to rush to judgment. "Our primary objective is not to get it fast. It's to get it right. If I have to sacrifice a little speed for care, that's what I'll do."

It is with that kind of razor sharp deliberateness and care that we find him racing down the rabbit hole once again in FairWarnings Part Deux

"FairWarning attempts to re-litigate the validity of the '500 patent and to demonstrate that "the prior case was one of those relatively rare instances where the courts wholly failed to grasp the technical subject matter and issues in suit." (Doc. 45 at 5)"

What?



Dare you suggest that Clarence the Clown and Little Anthony fail to grasp technical subject matter?

Unbelievable.
It is a well known fact of "science" and even a "law" of Nature that any Mount Olympus whiz can ease on down that road to yonder coffee dispensary, pick out any java sipping geek, point to any "generic" computer, mumble any abstract concept, utter the magic words, "Apply it" and within weekend's time it is made so.

Alice Oral arguments:

7 JUSTICE KENEDY: Well, let me put it this
8 way. If you describe that to a second-year college
9 class in engineering and said here's - here's my idea,
10 now you go home and you program over this weekend, my
11 guess is - my guess is that that would be fairly easy
12 to program.
13 MR. PHILIPS: I don't disagree with it,
14 Justice -
15 JUSTICE KENEDY: So the fact that the
16 computer is involved, it - it seems to me, is necessary
17 to make it work. But the - but the innovative aspect
18 is certainly not in the creation of the program to make
19 that work. All you're talking about is - if I can use
20 the word - an "idea." ...
8 JUSTICE BREYER: Why is that less abstract?
9 I mean, imagine King Tut siting in front of the pyramid
10 where all his gold is stored, and he has the habit of
11 giving chits away. Good for the gold, which is given at
12 the end of the day. And he hires a man with an abacus,
13 and when the abacus keeping track seems that he's given
14 away more gold than he is in storage, he says, stop.
15 You see?
16 Or my mother, who used to look at my
17 checkbook, when she saw that, in fact, I had written
18 more checks than I had in the account, she would grab
19 it. Stop. You see?
20 So what is it here that's less abstract that
21 the computer says, stop?
22 MR. PHILIPS: It is -
23 JUSTICE BREYER: How is that less abstract
24 than King Tut, if we had the same thing with a grain
25 elevator, if we had the same thing with a reservoir of ...

1 (Laughter.)
2 JUSTICE KENNEDY: - is - is whether or not
3 you could have patented that system, idea, process,
4 method, without attaching a computer program.
5 MR. PHILIPS: You cannot, absolutely cannot
6 do that with this system, because it is so complex and
7 so many interrelated parts.
8 JUSTICE KENNEDY: Suppose I thought - and,
9 again, it's just a thought because I don't have the
10 expertise - that any computer group of people sitting
11 around a coffee shop in Silicon Valley could do this
12 over a weekend. Suppose I thought that.
13 MR. PHILIPS: You mean wrote the code?
14 JUSTICE KENNEDY: Yes, right.
15 MR. PHILIPS: Well, that's absolutely -
16 I'm certain that's true.
17 JUSTICE KENNEDY: Well, then - then -
18 MR. PHILIPS: But that's true of almost all
19 software.
20 JUSTICE KENNEDY: Then why is the computer
21 program necessary to make the patent valid?

Fair Warning: They Know Not What a Human Mind is Because They have One

"Know Thyself"
is what is advised
by some self reflective
philosophers.

Can one know oneself
merely by 'thinking'?

Many a self-absorbed court
believe it is so
and beyond questioning.

After all,
DO IT YOURSELF BRAIN SURGERY
is not "Rocket Science"

If you have a "mind"
If you use it every day
Then surely you know how it works!

FAIRWARNING IP v. IATRIC SYSTEMS

(FLA. Blog post on same here)

To be continued if thou willst it.

"In a strained comparison, FairWarning argues that the '500 patent "provides a solution to a technological problem, namely, identifying potential snooping and identity theft by authorized users." (Doc. 52 at 10) However, DDR Holdings is inapposite because the '500 patent is not "necessarily rooted in computer technology." FairWarning asserts that "analyzing audit log data is not like analyzing human behavior, as audit log data examines the electronic footprint or trail of activities that are executed in a computer environment." (Doc. 52 at 7) But, as Iatric states, the '500 patent "is but a modern spin" (Doc. 50 at 16) on reviewing activity to detect suspicious behavior, an activity that existed in the "pre-Internet world."[2]"

Twilight Zone Make IT Go Away Lawyer Rebuffed by Reality Cognizant Judge

Remember that Twilight Zone episode where the little boy has the power to make real things and real people "Go Away" simply by wishing it to be so?

All the adults are scared to death of Little Anthony.

Modern times have their own Little Anthony except that he sits on the Supreme Court with Clarence the Clown.

At long last a brave but lowly District Judge has said "No" to Little Anthony and his minions.

No. Reality doesn't go away simply because you wish it away with your Twilight Zone powers (i.e animating Alice's White Rabbit).

"Plaintiff responds by arguing that the “summary [of the claim] must include the core features of the claim.” (Resp. at 5.) Plaintiff also argues that the “text of the patent claims refutes Defendants’ assertion [that the clai ms are directed to an abstract idea] because each claim includes key features that are ignored in Defendants’ summary.” (Id. at 6.) Further, Plaintiff argues that “[a] person reading Defendants’ summary would have no idea that the claimed inventions required a central broadcast server, associated data channels, or transmitting data to a remote computing device whether it is online or offline to a data channel.” (Id.)


The Court does not disagree that the patented inventions, at some level, contain an implementation of the abstract idea of “packaging and transmitting information.” However, every invention can be reduced to some form of an abstract idea.
See Alice, 134 S.Ct. at 2354 (“At some level, ‘all inventions ... embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.’ ”). The question before the Court, according to the Ineligible Concept Step of the Alice test, is not whether the Court is able reach into a patent and extract an abstract idea from which to determine patent-eligibility; such an exercise would render the Ineligible Concept Step a mere formality. Instead, the Court is directed to examine the Patents–in–Suit and to determine whether they are directed to an abstract idea. See Alice, 134 S.Ct. at 2355.
After considering the arguments and the evidence in the record, the Court finds that the Patents–in–Suit are not directed to an abstract idea.

Planet of the ... Panel Posits on Non-Physicality of Mind, Ideas and Abstract Ideas

Too bad a transcript is not yet available for the recent oral hearings in Amdocs v. Openet Telecom.

You can download the voice recording from here.

In the oral discussions you will hear judge and lawyer pondering over their understandings of "mind", "ideas" and "abstract".

Trouble is that none of them know what they are talking about and clearly they are scientifically incompetent to delve into the science neuro-biology.

Who is "me" and is that part of my brain deluded into thinking it is "mind" and has "ideas" of both abstract and real natures?

Are you really there or are you just an abstract idea in my mind of some lawyer being present at the podium? Can I have abstract ideas about abstract ideas? What the heck does that even mean?

You idiots. You maniacs. Did you not know how incompetent you were? Go ask Alice
... When she was 10 feet tall.

Don't Save the Cheerleader (Save the Inventor)

If the world needs savin'
and tech's the way
Who yah gonna call?
The Cheerleader?
Save the Inventor,
(not the Cheerleader).
Save the World.

Scientists Report Another Mystery Teleportation

It's amazing.



Scientists Report
Another Mystery
Teleportation of a
"real" thing into the Go Ask Alice Wonderment World

If one time were not enough, amazingly it's happening more and more often. (Track it here.) Through shear mental power, some Judicial Reborn Heroes are exhibiting strange supernatural powers to teleport real objects (e.g. electronic equipment such as the transaction entry device shown to the right) into other worldly dimensions.

Judge Grants Motion on the Pleadings of Invalidity of Patent-in-Suit

"Because computer software comprises a set of instructions,2 the first step of Alice is, for the most part, a given; i.e., computer-implemented patents generally involve abstract ideas. The more difficult part of the analysis is subsumed in the second step of the Alice analysis, that is, determining whether the claims "merely recite the performance of some business practice known from the pre-Internet world along with the requirement to perform it on the Internet," or whether the claims are directed to "a problem specifically arising in the realm of computer technology" and the claimed solution specifies how computer technology should be manipulated to overcome the problem. DDR Holdings, LLC v. Hotels.Com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014)."

We Win! We Win! (Run Forest, Run!)

Let's do something highly unusual.
Let's think things out.

According to one chess board master, "We All Win!".

So let's say "We All" includes you, as a biochemistry researcher.
You just discovered an isolatable strand of DNA that allows people to think rationally.

You know you cannot patent it.
And besides Madison Avenue (Mad Men) would oppose it.

So what do you do?
1) Keep it a trade secret.
2) Write up secret private contracts which allow only a select few Illuminati persons to take the Limitless pill. The rest of humanity remains dumb as dipped pith. But hey they deserve it. Cause they're sure they win, they win! --By killing patents directed to genetic discoveries.
(Run Forest, Run!)

Limits of Language Evade Literalist Supremes

Supreme Court "originalists" would have you believe that an "original intent" can be derived from laws created in days gone by out infallible Founding Fathers.

At the same time otherwise disposed, Supreme Court "enlightened ones" would have you believe that they grok an enlightened spirituality extracted from those laws under the pretense that our infallible Founding Fathers would have wanted it that way.

In either case, what definition do our Founding Fathers give to the word, "computer"?
Is a "generic" computer different from just a "computer" and if so how?
What definition do our Founding Fathers give to the word, "science"?
Are there fundamental building blocks of "science" and if so, what are they and why?
How does originalism or enlightenment inform us?

Still under construction ...

Jingle Juggling Judge Junks 168 with Stroke of Alice Pen (Y'all go down the Rabbit Hole, Hear?)

One headline says,
"Junk patent ditched". Another crows, "Troll's wings clipped."

They proudly give the link
to the allegedly junk
US patent 6,266,674

And the link to
the juggling judge's
deeply analytical and
not merely conclusory
thought processes (here).

So exactly how deeply analytical is our Jingle Juggling Judge's thought process when dealing with claims that call for simultaneous user comprehension of when a usable "label" is coming in and when just the song is coming via the clock radio? Not at all.

Who is snoozing?
Who is losing?
Who is actually "thinking"?

(1) The first snooze to lose rule of Low Blow Fight Club is, If you can't win fairly use ad hominims. So DirtyTech pulls the troll card here.

Why bother with facts when you can sling mud?

(2) The second snooze to lose rule of Low Blow Fight Club is, Take ownership of the dictionary. Giving words their ordinary and customary meaning is for losers. Real champs invent arbitrary meanings on the fly.

In a footnote 2 (here) the dictionary jugglin' judge decides words don't need no interpretation and meaning to those skilled in the art can't impact his deep dive analysis. Data structure, abstract juncture.

Who cares?
I've made up my story. Gonna stick to it and facts ain't gonna change that there one hoot or holler.

(3) The third snooze to lose rule of Low Blow Fight Club is, Never look at the actual facts, they might confuse you. Resolute decider men make up their minds based on principle alone. Facts are for 'fraidy cats.

The disclosed apparatus has push buttons that cannot be pressed by human thought alone. A user listens to audio input, decides on the fly whether that portion is mere data or part of a labeling hierarchical structure and while listening, presses the appropriate push buttons to categorize the incoming sound. Abstract? Perhaps for some it's too much to contemplate. Best y'all move on now. Hear?