Saturday, February 25, 2017

Rise of the New Romantics

It is not at first obvious, this newly re-surging undercurrent of disdain for scientists, inventors and tools of modernity such as computers, social media networks and biotechnology.

For historians however, the emergence of a counter culture reaction to science and enlightenment is no surprise. Ours is not the first time that a social movement (i.e the Luddite movement) emerged to reject rational thought and instead adopt a mystic worship of things more "natural".

Back in the mid-1800's, an emergence of a similar shift to "Romanticism" is seen in the anti-inventor bent of the Supreme Court patent case of Le Roy v. Tatham (SCt. 1852). The nature adoring majority in that case saw the inventor's claim to the essence of the leaden pipe as reaching in to greedily grasp a "natural" fundamental of Mother Nature herself. They saw in Mother Nature, certain "principles", "fundamentals", "natural elements of power" and motives that they believed should be free for all and not the exclusive domain of another Frankensteinian tinkerer in the Alchemical arts.

Still under construction ... re other Law of Nature cases

Friday, February 24, 2017

Origins of Alice, The Gobbledygook and Illuminatiasm of Le Roy v. Tatham

As the more geeky of patent law watchers know, the "abstract ideas" part of the Alice in Blunderland Supreme Court (SCOTUS 2014) decision finds its roots in Le Roy v. Tatham (1852).

One might assume that the Floundering Ancient SCOTeti Fathers of the 1852 version of SCOTUS were more reserved, scholarly and enlightened than our current crop of "New Romantics" like Clarence the Clown and 'Bacus Brain Breyer. But not so.

They too, at the dawn of the Industrial Revolution misunderstood science, technology and instead had mystical Illuminati beliefs in 'principles', symbolisms, confluence with Mother Nature and abstractions emanating from the shining eye on top of the pyramid of power. They write:

“A patent for leaden pipes would not be good, as it would be for an effect, and would, consequently, prohibit all other persons from using the same article, however manufactured. Leaden pipes are the same, the metal being in no respect different. Any difference in form and strength must arise from the mode of manufacturing the pipes. The new property in the metal claimed to have been discovered by the patentees, belongs to the process of manufacture, and not to the thing made.” --at 176

Clearly the SCOTeti of days yore did not, could not understand metallurgy or product by process. Nonetheless they considered themselves smarter than everyone else, even the inventor a.k.a. discoverer. How times have changed (not).

The 1852 SCOTeti go on to proclaim:

"The word principle is used by elementary writers on patent subjects, and sometimes in adjudications of courts, with such a want of precision in its application, as to mislead. It is admitted, that a principle is not patentable. A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right. Nor can an exclusive right exist to a new power, should one be discovered in addition to those already known. Through the agency of machinery a new steam power may be said to have been generated. But no one can appropriate this power exclusively to himself, under the patent laws. The same may be said of electricity, and of any other power in nature, which is alike open to all, and may be applied to useful purposes by the use of machinery.

In all such cases, the processes used to extract, modify, and concentrate natural agencies, constitute the invention. The elements of the power exist; the invention is not in discovering them, but in applying them to useful objects. Whether the machinery used be novel, or consist of a new combination of parts known, the right of the inventor is secured against all who use the same mechanical power, or one that shall be substantially the same.

A patent is not good for an effect, or the result of a certain process, as that would prohibit all other persons from making the same thing by any means whatsoever. This, by creating monopolies, would discourage arts and manufactures, against the avowed policy of the patent laws.

A new property discovered in matter, when practically applied, in the construction of a useful article of commerce or manufacture, is patentable; but the process through which the new property is developed and applied, must be stated, with such precision as to enable an ordinary mechanic to construct and apply the necessary process. This is required by the patent laws of England and of the United States, in order that when the patent shall run out, the public may know how to profit by the invention. It is said, in the case of the Househill Company v. Neilson, Webster's Patent Cases, 683, "A patent will be good, though the subject of the patent consists in the discovery of a great, general, and most comprehensive principle in science or law of nature, if that principle is by the specification applied to any special purpose, so as thereby to effectuate a practical result and benefit not previously attained." In that case, Mr. Justice Clerk, in his charge to the jury, said, "the specification does not claim any thing as to the form, nature, shape, materials, numbers, or mathematical character of the vessel or vessels in which the air is to be heated, or as to the mode of heating such vessels," &c. The patent was for "the improved application of air to produce heat in fires, forges and furnaces, where bellows or other blowing apparatus are required."

In that case, although the machinery was not claimed as a part of the invention, the jury were instructed to inquire, "whether the specification was not such as to enable workmen of ordinary skill to make machinery or apparatus capable of producing the effect set forth in said letters-patent and specification." And, that in order to ascertain whether the defendants had infringed the patent, the jury should inquire whether they, "did by themselves or others, and in contravention of the privileges conferred by the said letters-patent, use machinery or apparatus substantially the same with the machinery or apparatus described in the plaintiffs' specification, and to the effect set forth in said letters-patent and specification." So it would seem that where a patent is obtained, without a claim to the invention of the machinery, through which a valuable result is produced, a precise specification is required; and the test of infringement is, whether the defendants have used substantially the same process to produce the same result.

Monday, February 20, 2017

Vanity be not Proud

Is it "maths" or processing of real physical electric signals (i.e. electrons) with real electronic circuits?
Some believe the battle line for debate is drawn at that intersection.

Perhaps though, the battle line plays out at the intersection of judicial vanity and judicial ignorance.

Most judges consider themselves to be very smart (High IQ). And they are.

But High IQ alone is not enough. No matter how smart one is, no matter how credentialed, the human brain (a biological organ) is of finite size, of finite speed and of finite (as well as age diminishing) ability to rewire itself (a thing referred to as plasticity).

No matter how hard they try, many an elder judge (or other arbiter) will never comprehend "computers," will never grasp modern biogenetics, will never fully appreciate modern physics and science.

There is a reason why almost all of our best and brightest (same high IQ) young PhD earners take so many years to finish their studies and finally get into the work world.

It’s because this is hard hard, brain straining stuff. The biological human brain organ is not a silicon based digital electronic computer and vice versa the computer is not a replica of the human brain. The notion of abstraction, of “mind” and of being able to do stuff with pencil and paper are delusions. These delusions appeal to the judge’s vanity by making them “feel” smart. (Gee now I get it, molecular biology is just like plucking a leaf from a tree.)

But they are not anywhere near that smart and all knowing. They are simply parading proudly in arrogant, asinine and vain ignorance. They just don’t know it. We see it. They don’t. Will they ever see it? (Ask the Bruce Willis character in the movie, “The Sixth Sense”. Spoiler alert, he is one of those ignorant lost ghosts.)

Saturday, February 11, 2017

The Post Modern Inquisition

The purpose of an Inquisition is to create general hysteria, ferret out those who might pose a threat to The Inquisitive Powers That Already Be (TIPTAB) and establish a permanent bureaucracy for sustaining the Inquisition.

Inquisition panels often use the pretext of law and regulations. However, their true purpose and effect is to create a climate of Fear, Uncertainty and Doubt (FUD) while consolidating the power of final judgment exclusively to themselves. (Only we can know it when we see it, that elusive something significantly more that is needed for you to prove your innocence, that you are not a member of a very very (believe us) short list of suspect categories comprised of: (1) witches, (2) warlocks, (3) radicalized islamo-facists, (4) sexual deviants, (5) fake news reporters, (6) fake inventors, (7) devil worshipers, (8) terrorists, (9) heretics, (10) trolls, (11) apostates and (12) ....)

Sounds just like what PTAB death squads do, right?

Well D'oh. Yeah. Is that a surprise?