Fake law, fake science and fake friends of 2016 in review

History will look back at 2016 as the "BIG FAKEOUT."

Sure. We had USA election 2016. We had an international hack-o-thon. We attained frackutopia. We had the Fed tell us all is well and the economy is ready for rate hikes. We had the election winner tells us to get ready for really really great again things.

But that is not what this blog is about.
It's about patent law. Or more correctly in recent times about unconstitutional fake law which is promulgated as if it is real by almost all involved including the US Supreme Court (SCOTUS), the Court of Appeals for the Federal Circuit (Fed. Cir.), the federal district courts (DC's), the US Patent and Trademark Office (USPTO/ptab) and many a fake law professors.

So let's try to review some of the big patent fakeouts of 2016 ...

(1) First there is Ariosa v. Sequenom.

(1.1) All agree that it was a breakthrough discovery.

(1.2) The US Constitution specifically empowers Congress to secure "discoveries".
Article I, Section 8, Clause 8: 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

(1.3) Section 100 of the Patent law (Title 35) tells us that:
When used in this title unless the context otherwise indicates - (a) The term "invention" means invention or discovery.
(b) The term "process" means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.
... (f) The term "inventor" means the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.

(1.4) Section 101 of the Patent law (Title 35) tells us:
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.

Despite all this guidance from the statutory law, the Fed. Cir panel in Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371 (Fed. Cir. 2015) found that: ...

Sanity: Prometheus Bound Back to his Rock

Sanity at last: Prometheus Bound Back to his Rock
Tech Center 1600 Biotechnology and Organic Chemistry
Art Unit: 1645 Ex Parte McBride et al 12/377,926
REVERSED

"The facts distinguish the present case from Funk Brothers, where the claims were directed to the mere packaging of a plurality of selected, naturally occurring strains of different bacteria that were mutually non- inhibitive. Here, the individual components are bound together to form an immunogenic unit that is not naturally occurring. Here, the "discovery is not nature's handiwork" and "accordingly it is patentable subject matter under § 101." Diamond v. Chakrabar, 447 U.S. 303, 310 (1980). Here, the polynucleotide (or antibody) and either the solid support or the detectable label are bound together"

The Libertarian Delusion re Physical Possession and Ownership

This Libertarian article (here) insists that intellectual property is "different" from other kinds of claims of rights of exclusivity.

Let's test that hypothesis by considering land ownership.

On Monday morning billions of molecules of air rest above your farm.
Large clunks of top soil sit below them.
The flowers stand tall, proud and full of nectar.
All these things, you the farmer claim to be yours, yours alone.

Then on Tuesday a mighty wind comes.
Replaces the original air molecules with those stolen from nearby other farms.
Blows away some of your top soil and replaces it with that which belonged to others.
The bees come and rob you of the honey nectar oozing from "your" plants.
How dare they!
This is violence to your god given property rights!

But then you realize.
None of it was yours.
You merely have a claim to fictional lines drawn on a map.
Your ownership and tightfisted possession of all that resides within those lines is an illusion. An intangible. Gee. Just like IP rights.

(Click on image to hear colors of the wind)

Oh really?

From Federalist speech by Justice Thomas:
OUR ROLE AS JUDGES WAS TO BE CONFINED TO THE WORDS OF THOSE WHO DRAFTED THE CONSTITUTION OR ENACTED THE LAW IN QUESTION AND WHAT THOSE WORDS MEANT TO THE PEOPLE WHEN THEY WERE DRAFTED. IN SHORT, THE ORIGINAL MEANING. WE AS JUDGES DO NOT GET TO FREELANCE OR PUT OUR PERSONAL GLOSS ON THESE LAWS. EVEN IN AREAS IN WHICH OTHERS MIGHT JUST TUNE OUT FROM BOREDOM, SUCH AS [patent law,] JURISDICTION, STANDING, OR RIPENESS, JUSTICE SCALIA WAS EVER VIGILANT, GUARDING AGAINST JUDICIAL POWER BEING EXERCISED WHERE JUDGES HAD NO AUTHORITY. THUS ENCROACHING ON THE AUTHORITY OF OTHER BRANCHES OR THE STATES. ONCE THIS ABIDING CONCERN IN JUSTICE SCALIA'S COMMITMENT TO THE CANNONS OF -- CANONS OF STATUTORY CONSTRUCTION WHO ELSE WOULD LABOR SO DILIGENTLY AND EXHAUSTIVELY ON A BOOK ON THE 57 CANONS OF CONSTRUCTION? AS AN ASIDE, I WATCHED ON A NUMBER OF OCCASIONS AS HE DRAGGED HIMSELF OUT OF HIS OFFICE AFTER LABORING OVER HIS COURT WORK ONLY TO WORK ENDLESS HOURS ON HIS BOOK, "READING LAW." AS COMPLICATED AND INTRICATE AS THESE CANONS MAY SOUND, THEY ALL SERVE A SINGLE PURPOSE, UPHOLD THE STRUCTURAL CONSTRAINTS OF THE CONSTITUTION IN ORDER TO PROTECT OUR LIBERTIES. WE AS JUDGES EMPLOY THE CANONS TO DISCERN THE COMMONLY UNDERSTOOD MEANING OF THE WORDS CHOSEN BY CONGRESS. WE DO NOT RESORT TO OUR OWN PREDILECTIONS TO DIVINE WHAT CONGRESS MIGHT HAVE INTENDED.

Oh really?
And that's what you guys did in Alice, in Bilski, in Myriad?

Transitioning to a Brave New (Patent Free) World

Transition?
Migration?

Poe-tato?
Pah-tata?

No difference.
Let's call the whole thing an abstract kind of love.

TRANXITION, INC. v. LENOVO (UNITED STATES) INC. [OPINION]

From Salem to Sequenom, Following the Whack'o Witch Hunting Trail

To all yea' hunters of the supernatural (be it of generic computer abstraction-ism or un-natural genetic phenomenon),
Happy Halloween!

As is well known, there are certain things that should never have been allowed to be in the first place.

Patenting of unfathomable software magic is one of them.

Monopolizing of DNA prestidigitation (no matter how remarkable) is another.

Our hunters of the judicial exceptionalisms are vigilantly on the war path lest some crafty scrivener weave the devil's satanic verses into some obtuse patent claim language. It is imperative to unmask all claims by stripping away their conventional coverings so as to behold the truth of what they are truly "directed to." Only if divine intervention reveals something "significantly more" can they be saved from the gallows. All witches and all claimers of witchcraft must hang.

No need, course; to belabor the brilliant and self-elevating boastful brains of our vigilante judicials with technical details. All code is no more than that witch any 2nd year engineer student will finish before weekend's last dusking. And fishing out pathological genetic code from DNA strand tis no more than a pluck of leaf off yonder tree. Neither deserves chance to prove otherwise. Those who dare question our Blunderland framework of exceptionalism detectionism are but apostates and blasphemers. Hang them all. Happy Happy is our Halloween.

Subject to ... legislative whims of judges gone wild

Actually, the statute 35 USC Section 101 ends with “subject to the conditions and requirements of this title.”
But one would never know that in reading from the latest of the firestorm ignited by Bilski, Alice and Mayo.

Real legislation takes years to perfect. Debates and hearings are held over the years. Experts are consulted. Affected parties are listened to. Amendments are proposed and adopted or not after further debate. Those responsible understand that new legislation can impact the lives of millions of people. They do not lightly tread into passage of new laws.

Not so in the judicial branch.
New laws can be promulgated without notice or hearings. They can be based on the arbitrary and capricious whims of the judiciary and on the ignorance and arrogance of same with respect various matters of complex feed waters and socioeconomic ecological systems.

So what if it takes the best and the brightest of our students years of post-graduate study to understand subtle facets of molecular biology and computer engineering? Our uber-super judiciary can come to grips with the same subject matter in just a few hours. Isolating a medicinally relevant gene sequence? Why that is the same as hiking through the jungle, spotting a banana tree ripe with fruit and plucking off one of the bananas. Mere child's play.

Configuring a complex computer system to operate correctly? That too is mere child's play. Just walk into any ole' coffee shop and grab hold of any 2nd year engineering student. One weekend is more than enough time to "code" it up. Simple as grandma's apple pie and King Tut's accounting system. Why all the fuss?

Have no fear. Uber judges are here.

Creepy Clowns Lurking in the Fed

Another creepy clown has been spotted, this time at the Fed. Cir. (to complement our old friend, Clarence the SCOTUS Clown):
www.ipwatchdog.com/judge-mayer-should-step-down

Patents that incentivize broader communication actually chill free speech? Really?

Let's put on our clown thinker caps, step back a bit, and ponder on that.

Before there was the telegraph.
(Thank you Samuel F. Morse.)
Before there was the telephone.
(Thank you Alexander G. Bell --or Elisha Gray?)
Before there were emails via Internet and cell phone.
(Thank you unappreciated many others.)
One had to rely on snail mail (rush shipped by pony express).
Or face to face, if perchance such meeting ever happened.

Then a bunch of miracles happened.
Inventors.
Inventions.
Long distance real time communications!
All spurred by patents.

But Creepy Clown No. 1 at the Fed wants you to believe the opposite.
That inventions "directed to" improving communications should NOT be patent eligible.

'Cause you see, cause ipso logistico absurdum, patents that incentivize improving real time collaborative communications stifle at least one clown's First Amendment rights to fool everyone else!

___________________________________________

Post Scripts:

"This is not entirely a nation of clowns, though it feels like that lately." --Kunstler
Speak for yourself, James. Speak for yourself. From this corner, yes it is.

Patent Docs opines on IV v. Symatec here
"In terms of determining what is conventional, it seems that the Court can characterize the claims in a way to achieve a desired outcome."

"Judge Mayer’s concurrence is worth reading in full because he delves into the political and philosophical arguments that are behind every patent-eligibility decision, but that are often not openly discussed." --swip_report

The Reason You’re Afraid Of Clowns

And cancer, yes we beat you (in our moonbeam minds)

Yeah.
"We" won!
Did another triumphant "Moonshot".
And beat that there cancer stuff for good.

USPTO Announces Cancer Moonshot Challenge Winners

Gotta hand it to us.
"We" are brilliant as moonbeams in our own deluded minds.

(** This post probably needs a bit of historical background to understand. There are a bunch of hubiristic, "Cancer we will beat you" commercials on TV as well as the Biden/Obama "Moonshot" project. It is a lot of celebrity and politician PR without substance. As if chanting, singing, running and wearing colored bracelets is going to do the trick. And now we have the US Patent Office joining the flash mob with announcements about "winners". Yeah us! We won. Right?)

Sanity pokes its tiny head up above ocean of insanity

At long last, a sign of hope.

In a break from a constant stream of insanities, the Fed. Cir. steps back and takes a more detailed look at preemption and specificity in McRO, Inc. v. Bandai

"It is the incorporation of the claimed rules, not the use of the computer, that “improved [the] existing technological process” by allowing the automation of further tasks. ....

"Further, the automation goes beyond merely "organizing [existing] information into a new form" or carrying out a fundamental economic practice. Digitech, 758 F.3d at 1351; see also Alice, 134 S. Ct. at 2356. The claimed process uses a combined order of specific rules that renders information into a specific format that is then used and applied to create desired results: a sequence of synchronized, animated characters. While the result may not be tangible, there is nothing that requires a method "be tied to a machine or transform an article" to be patentable. Bilski, 561 U.S. at 603 (discussing 35 U.S.C. § 100(b)). The concern underlying the exceptions to § 101 is not tangibility, but preemption. Mayo, 132 S. Ct. at 1301.

SciAm editors decry Anti-AmSci Politics

In a recent editorial (We hold these ___ to be self-Evident), the editors of the Scientific "American" noted the horrifying future that the "American" nation faces on account of our political climate changing to become ever more anti-American-Science.

They home attention on the twit-err following population.
But what about the Judiciously Anti-Science Judiciary?

What about the fact that our Supreme Court makes up its Medieval "mind" not on the basis of scientific "evidence" but rather on the basis of peeling banana tree stories out of the unsworn/ un-peer-reviewed profferings of amicus briefs? (See top of pg. 20 here.)

What about that our Supreme Court has self-anointed themselves as the Spiritual Guardians of the Lego tGruth "building blocks" of scientific understanding, progress and unassailable Laws "of Nature"?

What about that our Supreme Court has self-devined themselves as the premiere finders of the witchcraft in claims "directed to" the abstractitude and ultimate keepers of the "something more" balance scale?

Yes they tread carefully amongst us while stealthily destroying what little may be left of American Science.

Post Scripts:
_____________________________________
Despite US Constitution saying Government should "secure" rights for inventors (Art. 1, Sect. 8, Clause 8), inventor hate site says there is "Great News: Government screws inventors coming and going"

Study shows PTO is of two minds re software patents (here)

How many ineligible dancing trolls? My count same as your count.

How many ineligible dancing trolls are on the head of your pin?

That is the question.

According to the Appistry II judge, his count is the same as that of the Appistry I judge.

Bird brains of a feather coo together.

That is so reassuring.

Reciting Reality is a 'Dirty Trick'

"Watch out for these dirty tricks," warns
this anti-patents site.

Apparently, if a computer is used to control an industrial process (e.g. curing rubber) then such a "computer implemented" (CII) reality-transforming process is a "dirty trick".

Apparently, if a computer is used to convert ultrasonic echoes into human recognizable information (e.g. baby's first image) then such a "computer implemented" (CII) reality-revealing process is a "dirty trick".

Apparently, if a computer is used to determine if a vehicle operator is impaired (e.g. Vehicle Intelligence and Safety v. Mercedes-Benz) then such a "computer implemented" (CII) reality-revealing process is a "dirty trick".

Apparently, if a computer is used to determine real time reliability of a complex electric power grid (e.g. ELECTRIC POWER GROUP, LLC v. ALSTOM S.A ) then such a mere "computer implemented" (CII) reality-revealing process is a "dirty trick".

Remember. Don't let them fool you with facts and reality.
Inventing is an evil Satanic ritual and must be stopped.
Support your local AWWAIE (American Witches, Warlocks and Inventors Eradication) club!
Let's make America Salem again. Vote your fears not your rational mind.

Welcome Russcinites, Dah it is true

Recently this site has seen a "serge" (surge) of visits from Mother Russia.

I have no idea why. Maybe they are asking themselves:
Can the Yanks be so dumb that they are dismantling their own patent system?

Yes (Dah), Russcinites, it is true.
We in America have "supreme" fearless leaders who believe all computer stuff is "generic".

Our leaders do indeed believe that all technical people are also "generic".
Just find any random coffee drinking one at a Silicon Valley java bar.
Give them your abstract "idea".
Mutter the magic words, "Apply it".
And it shall be so.

Right after the weekend.
Because it should take no more time than that to convert any and all "ideas" into "code" popped into a "generic" computing device and thus instantly made available for the consumer market to consume and enjoy per our "free" market dynamics. (Oh by the way, you don't have to pay the java drinking scriptor for his or her efforts. They are more than glad to give of themselves for the greater good of the marketplace.)

Which is why the evil patent privileges should not be given to them who pursue trivial "ideas".
Because it is so trivial and simple you see.
Like King Tut and his abacus man you see?
Solvency.
What can't you get through your legally incompetent mind about that?
Everything is fundamental economic fundamentalism that is easily carried forward into the computer age by the magic muttering of "Apply it".

And for that reason, no soup or patents for you.

Dah, it is true.

Or merely with paper and pencil

According to some know-it-all judges, things done merely with paper and pencil constitute abstract idea, no different than what one does with one's "mind".

A slide rule made out of paper with pencil markings is merely an "abstract idea."

A flying contraption that can deliver messages is merely an "abstract idea."

Whitewash Powder Stuff for Washington Whigs

New patent deform must be fresh abrew in the air.

Appears it is time to tell tall tales of how the Alice pill made one small business man ten feet tall while other pills did nothing at all.
Don't believe it?
Go ask Alice (when she was small).

Supreme Court’s Alice decision protected my small businesses from patent trolls

Alice Helps Another Company Stop a Patent Troll
(Problem: Abstract Patents)

Beg or Stand Defiant?

Recently it has been suggested (here comment #7) that we must grovel as beggars at the feet of the all mighty SCOTUS and their appeasement-happy followers (i.e. the Federal Circuit panel of Rapid Litigation Management LTD v. Cellzdirect, Inc.)

Why should we?

We have THE POWER TO SHOUT !
To proclaim to all under our 1st Amendment rights what a bunch of incompetent and irrational doles our Supreme Fearless Leaders are when it comes to science, technology and patent law.
Maybe they have no shame.
But still we cannot stand by and be silent.
History will record them as shameful sycophants of the amici curie owners of the bought and paid for Court.
History will note that our SCOTUS elite allowed non-expert, unsworn and un-cross-examined opinions of so-called “friends” to influence them into to making de novo findings of fact at the appellate level with respect to plucking DNA leaves (or banana fruit) from trees, with respect to generic computers and java-juiced 2nd year students at the coffee shop, with respect to laws “of nature”, with respect to fundamental Lego blocks of “human ingenuity” and with respect to how patents might “stifle” their precious “innovation”. What a crock of BS. All of it.
We cannot shrink back and beg.
We must step forward (not back) and yell from the tops of our tenements. We are mad as heck and … we won’t take it any more.

_______________________
Post Script:
District Court: The Fed. Cir has given us guidance

And by the way,
HAPPY 4TH OF JULY to all yea inhabitants of the land of the free and the home of the brave!

Spirit Town

Washington DC is a spiritual town.
None know this better than Clarence the Clown.

Up high in the stratospheres float ethereal ideas.
Mother Nature's laws up there similarly all float surreal.

Down in the mud and crud below,
Leaves for the plucking naturally grow.

Those who truly understand the fundamentalist foundations that underlie the formative basis of "science"
Know it to be a set of building blocks drawn from up high with innate "ingenuity" and actualized with appliance ("Apply it" type appliance --after all, that's true science).

Natural phenomenon naturally self-implement on their own.
Merely relate them mentally to diagnostic blood, skin and bone.

Any questions oh yea irrational ones?
Just ask Clarence our Town Clown.
(He knows 'em when he sees 'em and he'll re-educate you accordingly.)

Women maybe, Inventors definitely not

Men, of course and without question, can have unwanted growths removed from their bodies.

Women, on the other hand, have lesser rights; "putative rights" as Supreme Court Justice Clarence Thomas puts it. If there is an unwanted growth in their bodies then the question becomes whether God wanted it to be there in the first place even in the case of rape and whether the State has the right to bar the doors to the abortion clinic. In a recent SCt. decision, Justice Thomas decries the arbitrary and capricious whims of his Court colleagues in making special rules for some but not others.

Of course hypocrisy knows no bounds. Because it is Clarence the Clown who consistently makes special rules for inventors and discoverers. To keep them as subhumans. To deny them equal protections of the law.

Inventors are "trolls" you see. They hire deceptive draftspersons (artful dodgers) to hide the plain and simple truth that they have invented or discovered nothing more than an abstract fundamental "principle" that forms the basic building block of something called "science". This "science" thing, according to Clarence the Clown and most of his Supreme Court colleagues includes laws "of nature" which Mother passes down from her mountain top and natural phenomenons that occur without any intervention by the hand of man (or woman, if you must).

BROKES-IT: The Great Unraveling

Picture in your head all the work that would go into hand knitting a sweater.
The patience.
The precision.
The creativity.
The organization of the whole body of work.

It doesn't take much for an immature adolescent to come along and unravel the whole thing.
Creating an elegant body of work is hard.
Destroying is easy.
Take that you stuffy snob nosed creator. BOOM. BANG. CRASH. Destroyed!

The adolescent feels great.
He has succeeded in being the bossy bull in the proverbial china shop.

Here's another group that feels good about themselves.
They are breaking apart the U.S. patent system.
The only good patent is a busted patent as far as they are concerned.
Take that you stuffy snob nosed creators (a.k.a. inventors). Be forewarned that the abacus man cometh for you.
We dun teached you about the laws of nature.
The great unraveling. Entropy.
BREXIT. BROKES-IT. BLOKES-IT.
Nothing matters.
Let's again warp back to the Medieval Times dance!