Friday, March 24, 2017

The Hitchiker's Guide through the Judicial Hall of Patent Pending Shame

One ancient adviser said, "Forgive them for they know not what they do."

Is that the correct stance?
Do they forgive others as they willst forgiveness unto themselves?

Or maybe we should say, "Understand them for they know not what they do, but forgive them not"?

Welcome to the Judicial Hall of Patent Pending Shame.

First up on our wall of shame is Justice Stephen Breyer, philosopher king and historian extraordinaire .... According to Breyer J. Egypt's King Tut had an all powerful Abacus Man. Breyer's 'Bacus Man could do extraordinary things. Like tallying up all the chits in Egypt's entire kingdom on his tiny 4 beads per symbol bronze abacus machine. Breyer's 'Bacus Man could also telepathically connect instantaneously to all corners of the realm so that he knew in real time when "solvency" ceased to exist for any of the kingdom's numerous accounts. What a man!

We should try to "understand" the debating points made by the Honorable Breyer J. After all, he majored in "philosophy" while going for his undergraduate at Stanford and then in a combination of "philosophy" and "economics" at Magdelen College at Oxford University.

Mind you there is nothing "fundamentally" wrong with studying "philosophy" and "economics" except for one minor detail.

You see, these areas of scholastic effort are wholly divorced from physical reality.

They don't account for the friction between the shell beads and bronze rods of the Tut's 'Bacus Man abacus. Or for the amount of energy needed to make those beads whiz back and forth along the metal rods as the chit data comes flashing in by carrier pigeon at 100,000 bead bits per second. Then there is the wear and tear on these parts and time out for repair and replacement.

Of course, in Plato's cave all is merely shadow flashing as illusions on the cave wall. So Breyer is freed from concerns about physics, metallurgy, chemistry, thermodynamics, Shannon's theory of information transfer and what not. He can make up fantastical hypotheticals that include characters with omnipotent powers and tunnel visions. The Supremes themselves have tunnel vision when they don't want to admit that Le Roy v. Tatham (SCt. 1852) got "metallurgy" wrong. The strain cooled lead is different from cast lead. Strain cooled lead can have a significantly different micro-structure. But heck. What's reality got to do with it when you enter Philosopher Breyer's cave?

Second up on our wall of shame are the dumbnamic duo of Justice Anton Scalia and Clarence Thomas.
No one celebrates the recent passing of Justice Scalia.
However, that said, it can't be ignored that this "originalist" deliberately ignored the Constitutional recognition of inventors having "rights" to "their" respective discoveries per Article I, section 8, clause 8 of that sacred document.

Scalia writes: "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." --ASSOCIATION FOR MOLECULAR PATHOLOGY v. MYRIAD GENETICS, INC. (SCt. 6/13/2013)

JUSTICE THOMAS delivered the opinion of the Court and writes: "For the reasons that follow, we hold that a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, ... the study of genetics can lead to valuable medical breakthroughs. ... Myriad after it made one such medical breakthrough. Myriad discovered the precise location and sequence of what are now known as the BRCA1 and BRCA2 genes. ... Myriad was not the only entity to offer BRCA testing after it discovered the genes. ... Judges Lourie and Moore agreed that Myriad's claims were patent eligible under §101 but disagreed on the rationale. Judge Lourie relied on the fact that the entire DNA molecule is held together by chemical bonds and that the covalent bonds at both ends of the segment must be severed in order to isolate segments of DNA. This process technically creates new molecules with unique chemical compositions. ... Myriad did not create or alter any of the genetic information encoded in the BRCA1 and BRCA2 genes. The location and order of the nucleotides existed in nature before Myriad found them. ... Myriad did not create anything. To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention. ... Myriad found the location of the BRCA1 and BRCA2 genes, but that discovery, by itself, does not render the BRCA genes "new . . . composition[s] of matter," §101, that are patent eligible. ... "

Sunday, March 12, 2017

Silence of the Autistic Savant Lambs

Why do inventors get taken advantage of?

And by advantage, I don't mean simply in the business world.

Calling inventors, autistic savant lambs is an extreme exaggeration of course. Most are not Rain Man. Instead some may have a slight tint of introversion, preferring to deal with things as opposed to people.

There are however, many a ruthless business people all too eager to take advantage of the lack or lessening of people skills among the inventor class. That constitutes taking advantage at level one of Dante's underworld.

Way way lower, deeper in the bowls of Dante's realm, reside those who are supposed to be acting in loco parentis, to protect the legal rights of the inventor class. These include the courts, the Patent Office and the IP centric academia.

We are talking about those who, instead of protecting, take gleeful joy in dissecting and destroying the vulnerable inventor class.

(("Nice of you to ask Clarisse. I'm having an old friend for dinner."))

Food for thought (so to speak) ... still under consideration and construction

Friday, March 10, 2017

Loath and Disdain cause inventor dared Coin a Name

The mere fact that the inventor applied coined labels to conventional structures does not make the underlying concept inventive. See, e.g., Alice, 134 S. Ct. at 2352 n.2, 2360 (finding the claims abstract despite the recitation of technical sounding names such as "shadow credit record[s]" and "shadow debit record[s]").


The right and ability of every inventor to be his own lexicographer has been a cornerstone of the American patent system since its inception. Otherwise, what do you call the thingamajig that did not exist before, is "new and useful" and promotes the progress of science and the useful arts? "Spinning Jenny"?

Now, in a rash of inventor loathing opinions, we see the federal judiciary thrashing inventors for having the audacity to coin terms for things that the inventors believe to be new, useful and nonobvious.

That begs the question. Who fostered this rising wave of hatred among the judiciary and how did they do it?

STEP 1: Label them as trolls

STEP 2: Devise a vague troll detection test

STEP 3: Encourage the haters to devise their own, more sophisticated tests.

Monday, March 6, 2017

What do Trump and the Supreme Court have in common?

U.S. President Donald Trump tries to garner all the attention to himself through the use of "alternative facts".

Which is not not really fair. The Justices of the US Supreme Court (SCOTUS) should sue him for stealing an idea (a truly abstract and fundamentally principled idea) that was originally all theirs.

When it comes to the "I heard it through the grapevine" meme and the converting of such allegedly expert hearsay into court admitted expert testimony or "facts", no one, no one (perhaps), outdoes the SCOTeti.

Their ear to the wall sources include the so-called "friends" of the Court filings (amicus curie briefs).

There is no fact check verification process for amicus curie briefs.

This post ... still under construction

One area in which the SCOTeti regularly convert the "I heard it" fantasies into unassailable "facts" comes in the area of patent law.

Take the Wonderland decision in Alice v. CLS (please) as an example. The court has heard, from trustworthy sources, trust worthy we tell you, that Mother Nature has "laws" that she hands down from Mount Olympus, that Mother has "phenomenon" that are "natural" and thus hers alone, not things due to human intervention. Also the court has heard, that human "minds" can have "abstract" ideas. ...

Friday, March 3, 2017

Mirror mirror on the wall, we are the fairest of them all

Patent cases expose a number of embarrassing attributes about we human creatures.

First we tend to be very vane. Ninety percent (90%) of us think we place in at least the top 50% of our population if not in the top 10% or top 1%.

Second we are incompetently blind to almost all the things we are incompetently blind to. (How many of you are picking up the IR wavelengths now coming off your screen or hearing the ultrasonic vibrations?)

Third we crave social admiration. (Mirror mirror on the wall, who is the most admired of us all?).

Supreme Court Justices are susceptible to all these vices (shallowness, vanity, narcissism, ...) and succumb to them on a regular basis.

Yes. They all have very high IQ’s and are among the top 10% smartest people in our population.

But so too are all the young among our population who pursue advanced studies in the hard sciences (e.g. physics, chemistry, electronics, …). Why does it take our young ones (those with super high IQs) so many years to “get it”? Answer: because it’s hard hard stuff and our biological brains can only do so much and not much more.

If you were a Justice sitting on the SCOTUS and all your “friends” (amici curie) complemented you on how smart and clever you are and convinced you that molecular biology is no more complicated than plucking a leaf off a tree, wouldn’t you believe them?

And if some non-“friends” tried to explain to you that molecular biology is hard and that is why our high IQ youths take so long to earn their PhDs and that is why you, one of the “Supremes” may never understand it; wouldn’t you discount everything they argue?

So sure. At the end of the day all the complex stuff reduces to “generic” computers doing no more than conventional and routine operations, ones that 2nd year coders do every weekend without breaking a sweat. All those so-called smarty pants inventors out there and their devious scriveners cannot possibly be smarter than we the Supreme SCOTeti. They are merely trying to hoodwink us with their voodoo witchcraft and obfuscating language.

Aha. We can see right past them by devising a simple framework for witchcraft detection. First we dangle an oblong magic shard at the end of a string, slowly move it over the claim and give it a twirl. If it points in almost any direction but one secret one, the claim is clearly “directed to” skullduggery.

But just to be fair (because after all, our mirror tells us we are the fairest of them all) we will apply a second test. We submerge the claim in holy witch water to see if it has that elusive “something more”. You see, witches are made of wood and thus they float. Only those that have that “something more” stay under.

So after all that, why are all those cry baby inventors complaining? We have been imminently fair. After all, “we” are Supreme and in that top 1% number. Clearly they are not. Sigh.