Sunday, December 18, 2016

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: ...

"The written description supports the conclusion that the claims of the '540 patent are directed to a naturally occurring thing or natural phenomenon. In the Summary and Objects of the Invention section of the '540 patent, the patent states that "[i]t has now been discovered that foetal DNA is detectable in maternal serum or plasma samples."2 '540 patent col. 1 ll. 50-51. The patent goes on to state that "[t]his is a surprising and unexpected finding; maternal plasma is the very material that is routinely discarded by investigators studying noninvasive prenatal diagnosis using foetal cells in maternal blood." Id. col. 1 ll. 51-55. In the discussion, the patent notes: In this study we have demonstrated the feasibility of performing non-invasive foetal RhD genotyping from maternal plasma. This represents the first description of single gene diagnosis from maternal plasma. Id. col. 10 ll. 53-58. Further, the description of the invention notes: "[w]e have demonstrated that foetal DNA is present in maternal plasma and serum," id. col. 13 ll. 6-7, and "[t]hese observations indicate that maternal plasma/serum DNA may be a useful source of material for the non-invasive prenatal diagnosis of certain genetic disorders," id. col. 13 ll. 11-13. The patent also states: "[t]he most important observation in this study is the very high concentration of foetal DNA in maternal plasma and serum." Id. col. 16 ll. 12-14. Thus, the claims at issue, as informed by the specification, are generally directed to detecting the presence of a naturally occurring thing or a natural phenomenon, cffDNA in maternal plasma or serum. As we noted above, the claimed method begins and ends with a naturally occurring phenomenon."

"... Like the patentee in Mayo, Sequenom contends that the claimed methods are patent eligible applications of a natural phenomenon, specifically a method for detecting paternally inherited cffDNA. Using methods like PCR to amplify and detect cffDNA was well-understood, routine, and conventional activity in 1997. The method at issue here amounts to a general instruction to doctors to apply routine, conventional techniques when seeking to detect cffDNA. Because the method steps were well-understood, conventional and routine, the method of detecting paternally inherited cffDNA is not new and useful. The only subject matter new and useful as of the date of the application was the discovery of the presence of cffDNA in maternal plasma or serum."

"... The Supreme Court has made clear that the principle of preemption is the basis for the judicial exceptions to patentability. Alice, 134 S.Ct. at 2354 ("We have described the concern that drives this exclusionary principal as one of pre-emption"). For this reason, questions on preemption are inherent in and resolved by the § 101 analysis. The concern is that "patent law not inhibit further discovery by improperly tying up the future use of these building blocks of human ingenuity." Id. (internal quotations omitted). In other words, patent claims should not prevent the use of the basic building blocks of technology — abstract ideas, naturally occurring phenomena, and natural laws. While preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility. In this case, Sequenom's attempt to limit the breadth of the claims by showing alternative uses of cffDNA outside of the scope of the claims does not change the conclusion that the claims are directed to patent ineligible subject matter. Where a patent's claims are deemed only to disclose patent ineligible subject matter under the Mayo framework, as they are in this case, preemption concerns are fully addressed and made moot."

Observe in the above verbosity the hidden in plain sight lie.

Not new and useful?
No one else was practicing the method before.
It was an improvement.
And if it wasn't "useful" (i.e. in commerce) why is everyone fighting bout it?

The "only" ... was the discovery of the presence of cffDNA?

What about the discovery of the "feasibility" of the procedure?
Was it "inherent" that any and all procedures would work for the intended goal?
How much blood do you need to draw from the pregnant female? What is the probability that enough particles of extremely rare cffDNA particles will be captured to be workable for isolation and PCR amplification?
At what stage of gestation do you draw? From what part of her body?
How do you preserve it? At what temperature?
How do you filter it? Will a centrifuge work? At what RPM?
Ask them Federali. They know.
They are all wise, all smug ... and falling down that Rabbit Hole faster than the "natural" speed of gravity.

A common misconception by science-free lay persons (and judges) is that once you have an "idea" or "information", the rest is a cake walk. We see that misconception in Alice when Justice Kennedy proposes his 2nd year engineering student and when Justice Breyer creates his omniscient King Tut abacus man. See also comment number 9 at

Truth is we do not know what constitutes a "natural" woman.
One cannot have "natural phenomenon" if one does not first start with a "natural" woman.
But almost all women of the modern age are artificial ones, propped up by the artifacts of modernity.
Will cffDNA be "naturally" present as "natural phenomenon" in a "natural" woman?
We simply don't know.
The judges arbitrarily make up stories about what is "natural" and what is not.
The term "natural" does not have scientific veracity. It is one best left for the poets.

(2) Second place in the great patent law fake outs of 2016 can go to many qualified candidates. ELECTRIC POWER GROUP, LLC v. ALSTOM S.A is representative. Here a computer is used to determine real time reliability of a complex electric power grid and the judges minimize it to a mere "computer implemented" reality-revealing process using "generic" components. What does "generic" mean? No one knows. But like the cowardly loyal subjects in Christian Anderson's, The Emperor's New Clothes, no one wants to admit it.

Since the dawn of history, the human creature has been deluded into believing that what his or her lying eyes saw had to be the "truth".

Modern science teaches us that it is the brain organ, not the eyes, that sees. Mainly it sees only that which it wants to see or can comprehend when seeing; which is very little.

The "informational sciences" have brought vast improvements to what the human brain can "see". The invention of the microscope enabled the human brain to see microbes and to start improving its health care. The invention of the telescope enabled the human brain to see over long distances and improve its understanding of its place in the cosmos. The invention of the oscilloscope enabled the human brain to see to electronic waveforms, build radios, televisions, computers, networks.

At each step of the way, a device that helped the feeble human brain to see, comprehend things it otherwise could not; has changed the world for the otherwise incapable human brain.

Now there comes forth a crop of know-it-all pompous property judges. They take it as a given that the human brain is an all powerful, all omniscient, error-free computational "mind".

... [still under construction]

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