Sunday, February 28, 2016

Misinformative Information

The telegraph,
The telephone,
The radio,
The television,
The internet.

What do these game changers have in common?
They all deliver "information" to the end user.
Ergo, according to a recent "insightful" analysis they belong to the nonpatentable "Information Age".

"Subject Matter Eligibility in the Information Age"


PDF link to paper here

See also "Would Diehr and Morse Be Invalid Under the §101 Mayo Test?"

Sunday, February 21, 2016

First assume a hole

First, assume a hole.

Now assume yourself deep down in that hole.

To get out, you must show true effort.

Something "significantly more" than normal or routine effort.

The burden is on you to prove yourself worthy.
(Why? Because it doesn't say so in the statute --35 USC 102(a) "entitled")

Who is Alice and why is she driving patent attorneys mad?

Monday, February 15, 2016

Ready for Prime Time Save the Inventor Ad

Recently spotted on prime time TV:
Save Inventor Ad

More from American Inventor:

Counter from Anti-American Inventor site (left click to enlarge):

Post Scripts:

Big Guns win after CES Hoverboard Seizure

Death Squads target Pharma fundamentals

Sunday, February 14, 2016



"I agree with the Chief Justice. It is misleading to say that the whole world is embraced within these three nouns, teaching, suggestion, or motivation, and then you define teaching, suggestion, or motivation to mean anything that renders it nonobvious. This is gobbledygook. It really is, it's irrational." --Excerpts from the oral arguments before the Supreme Court in KSR v. Teleflex

"I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature." --Myriad Genetics

"Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall." --10 quotes

"Just as I can decide patent cases ... what do I know? nothing ... the adversarial system ... the counsel have to be experts ... bring best evidence possible to judges" --Originalism and Historical accuracy and Deciding Patent cases at 44:41/1:00:48

"Hardest case? Probably a patent law case." --IP Watchdog Hard Case

"Why isn't doing it through a computer not enough? I mean, was the cotton gin not an invention because it just means you're doing through a machine what people used to do by hand?" --Alice skepticism

Friday, February 12, 2016

The Alternate Universe of Internet Scholars

A nice thing about the Internet, the saying goes, is that no one knows you're a dog.

You can write anything:
"The case for patent law ... exceptionalism in the administrative state" --Washington Post?

The USPTO does not promulgate rules pursuant to the APA? Really?

Is Intellectual Property Law Administrative Law? --Duke Law Journal Symposium (2/12/2016): Panel #1: S. Benjamin and A. Rai (presenters) & C. Walker (discussant)

Fixing Innovation Policy? --George Washington Law Review?
(In this Article, Professors Benjamin and Rai analyze how government policy on innovation should be structured. ... one might imagine that Congress would have created an entity with substantial expertise that would focus on how patents could best promote innovation. But that is not the case. Currently, neither the Patent and Trademark Office (“PTO”) nor the United States Court of Appeals for the Federal Circuit (which hears all patent appeals) has the capacity to promulgate such policy. The PTO lacks social science expertise, while the Federal Circuit not only lacks such expertise but typically disavows any role in articulating policy. )

Post Scripts:
Follow up article by Orin Kerr:
"the Supreme Court’s decision in Alice v. CLS Bank dramatically altered the rules governing the patentability of software and business methods. ... Because most of the key phrases in the Patent Act exude textual ambiguity, applying the deferential Chevron standards to the PTO would permit the PTO to adopt any “reasonable” interpretation of the Patent Act it chooses, at any time, and without explanation. "

Tuesday, February 9, 2016

Missile Launch is Ruse for Demoting Progress in Science, Useful Arts

Vice President in charge of "Moonshot" admits aim of taskforce is to "break silos" and force sharing of results.

"That’s the goal of this moonshot."
"The task before us is to break through some of the barriers and do what we can to help speed up the progress, so that we can deliver treatments and increase access to these new [cancer treatment / prevention] approaches for millions more people."

Hat tip to "But Where is the Patent Power?"
As practitioners in the patent practice know, it is the publication of patent disclosures that break down trade secret silos and disseminate know how to the rest of the world. Bureaucratic taskforce meetings disseminate hot air, not enabling know how in the useful arts.

However with the Supreme Court decisions in Myriad and Prometheus in view, it would be foolish for researchers to reveal any of their discoveries in the biochemical realm by way of patents.

The patent busting policies of the current administration result in the exact opposite of what they preach. Barriers are not broken down. Trade secret walls are going up again as we speak.

H.R.3326 - Defend Trade Secrets Act of 2015

Sunday, February 7, 2016

Crony Capitulators

Hardly anything is accurate in this Forbes article about software related inventions.
They did get one thing right though by noting:

"Similarly, the PTO has been (almost gleefully) following the lead of the courts in rejecting computer-related inventions [under Alice v. CLS]. The American Bar Association's "Post-Alice Task Force" has found that the majority of PTO Section 101 rejections citing Alice have been boilerplate rejections, without ... specifically addressing the claims at issue."

And why not be "gleeful"?
After all, if you are an overburdened examiner, here is a "no brainer" tool for lightening you work load.

(Except that by shutting off your brain, you become a "tool" of them that don't like intellectual property too much.)

Harried District Court judges also gleefully jump on the Alice-so-good-for-us band wagon.

What better way to simplify your docket than by seeing a quick rabbit hole path to summary judgment and immediate disposal of the case? Of course the invention is "directed to" an abstract idea and fails to recite "significantly more". If the Supremes can declare it so, surely I can make it so too.

Thursday, February 4, 2016

Coding the heck out of code

Justice Kennedy's 2nd yr engineering student does it.
Birds do it.
Obama's future kids do it.
Let's do it.
Let's "code" the heck out of stuff.

"Coding" is the new code talk among politicians and judges to explain what the whole "technology" thing is all about.

According to President Obama, all we have to do is get our elementary school kids busy "coding" and the future is ours.

According to Supreme Court Justice Kennedy, "coding" is what all 2nd year engineering students know how to do on their generic computers for implementing any and all abstract ideas. Give them an abstract idea. Mutter the magic words, "apply it". In no time (well, actually it might take a whole weekend but no more) the thing is done. Obvious. Simple. Easy. That's why birds do it and even elementary school kids can do it. Let's all do it. Let's code up our lives.

(work still in progress ... perhaps)