Saturday, August 9, 2014

How the Supreme Court declared and won its war on the US Constitution

Dear History Students,

Today we will look back at a small part of the early 21st Century in our study of the Disintegrated States of Corporate America (DSCA).

As you will recall,
the height of American technological advancement
in the 1980's was actually a foreshadowing of its
imminent demise.

Once the Americans adopted computer technology,
they stopped doing things known as "reading" and "thinking".
They gave over their brains to popularity polls, and
to text-free me-Tube videos.

There was no need anymore to read the prime directives
of the US Constitution.
Feckless talking heads would tell the masses what the Nine
Black Robed Ones had declared and the no longer literate
would accept it as gospel.

Take for example the written mandate in the Constitution
for the American Congress to write the laws regarding
how best to "secure" for American inventors,
the exclusive rights to "their" discoveries.

Article 1, Section 1.
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

... Section 8. The Congress shall have power ...
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;

... as usual ... still under construction

Well, it was in an acid-trip decision known as Alice
that the Nine Black Robed Ones (a.k.a. SCOTUS) declared
they knew better than all others what the American inventor
had "truly" invented and how it was "drawn"
to mere "abstraction".

SCOTUS declared by fiat that inventing was
no more than mere "coding" over weekend's time
of simpleton "ideas" that called for a "generic computer"
and utterance of magic words, "just do it".

No one dared challenge their holy words.
To do so would be irreverent.
And might get your head chopped off if ever you needed a last minute stay from SCOTUS just before the Constitution-following government tested some of its new execution chemicals on you following conviction by a kangaroo court peopled by a Corporations-are-persons jury.

Word got out.
Soon fewer and fewer inventors disclosed their inventions.
Why bother when it can be snuffed out by fiat declaration of abstractionism?
Eventually America (DCSA) became a disintegrated 3rd world mess, as well you know dear history students.

Friday, July 25, 2014

US Constitution and Power of SCOTUS to re-write Patent Law

The Federal government of the United States of America has 3 (and a half) co-equal branches, none of whom, alone or even together are above the Constitution of the USA:

(1) The Executive Branch (The President and the Departments under his control)
(2) The Legislative Branch (which is further broken into the Senate sub branch and the House o’ Representatives sub branch)
(3) The Judiciary
(4)(and the various alphabet soup Administrative Agencies SEC, IRS, FDA, EPA, … USPTO)

Given this structure, not even the top court (SCOTUS) has the lawful power to take over the enumerated and limited powers granted exclusively to the Legislative Branch under Article 1, Section 8 of the Constitution:

where the latter includes:
To promote the Progress of Science and useful Arts, by securing for limited Times to … Inventors the exclusive Right to their respective … Discoveries;

The above discussion brings to mind an argument that Thomas Jefferson made a long time ago about the powers of the US Supreme Court:
“[Re SCOTUS decision in Marbury:] You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.


In the case of Alice v. CLS it should be recalled that the US Constitution leaves to the Congress, the job of “*** securing*** for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

To this end (of “securing” rights), Congress passed 35 USC 101.

Now comes a despotic SCOTUS with aim and act of de-securing IP rights already granted by the Executive branch via the US Patent office.
How does SCOTUS have powers even beyond that granted to Congress (of “*** securing*** for limited Times to …. Inventors the exclusive Right to their respective …. Discoveries.”) ?

Sunday, July 6, 2014

Extinction Level Developments (ELDs) for Patents and Inventors

If you are a fan of ELE's (Extinction Level Events) for humanity in general,
there is no shortage of web sites discussing the possibilities,
be they by collision with near-Earth large objects or emergence of unstoppable microbial pathogens.

But enough with the happy talk.

Let's talk about Extinction Level Developments (ELD's) for Patents and for Inventors

What are they, now or in the future?

A number of more publicized movements quickly come to mind:

(1)First let's kill the software patents?

(2) First let's kill the patent attorneys?

(3) First let's recognize the corporation as the sole inventor?
(One having exclusive rights of free political speech and religious exclusion?)

(4) First let's kill the Federal Circuit?

(5) NO. Let's kill it all. DESTROY IT ALL --according to two "economists".

Historical precedents
Endings for progress, inventing, innovation enlightenment and their promotion are not without precedent in human history:

(a) Burn-down of Library of Alexandria

(b) European Dark Ages

(c) Islamic Dark Ages

Descent into Dark Age usually begins
with collision between State Religion and Progressing Science
Think Galileo versus the Spanish Inquisition
Think End of the Islamic Golden Age
Think the burning down of the Library in Ancient Alexandria Egypt

What is our State Religion?

Hint: Look up "market forces" in KSR v. Teleflex

Monday, June 30, 2014

Incompetent Ball Players (of Judicial Kind) in the Outfield

What if
some of our players
in the judicial arena
are fielding questions
outside their field of competence?


Consider the dissenting opinion filed by Circuit Judge REYNA ...

" ... Rather, the examiner [of a separate patent prosecution] understood that the patents-in-suit [when used as 103 references in that separate patent prosecution] did not include [an explicit teaching of] wireless communications, which necessarily means [from my common sense point of view] that he did not consider the “datalink” [39] disclosed in the patents-in-suit to 'reach' such wireless technology. The majority [here] fails to acknowledge the full scope of the examiner’s [extrinsic] statements, which were made by an uninterested party outside the scope of the present litigation, [and thus from my common sense point of view, that should be] a material element in the analysis of the evidentiary record [for carrying out "claim construction" here]." [Text in brackets added]

There is much more that Judge Renya argues in his dissent.
(The text in question discloses: In one embodiment of the invention, the bed input signals 33 are received as hard wired inputs ... The bed message created by processor 140 is then sent through the bed junction box 37 to the wall interface unit 40 over serial datalink 39.)

For the present analysis we simply want to note an example of CAFC sitting judge not "getting it" with regard to many basics of patent law (what "In one embodiment" means), and demonstrating a lack of competence in a technical field that is apparently outside his range ... just scary (Will the real Judge Rader please come back, please come back? ... to be recited in the tune of the real slim shady, eminem)

This is not to get down on Judge Renya.
There is much that he says, that from a lay person's point of view, makes "common sense".
However, from the point of view of one skilled in the art of networked computer systems, his take on the meaning of a "serial datalink" is nonsensical and embarrassing. The other 2 judges on the CAFC panel try to be be polite and less than thorough in dissecting Judge Renya's 'dissent'.

Such observation begs the next level question:
What if we are in a higher level court,
Where none on the panel are competent
in either of
patent law or
the scientific field of endeavor,
and their decision is more far reaching?

"When deh truth is found to be lies
and all deh hope vitin you dies
- then vat?"
-Rabbi Marshak, A Serious Man

Then what?
Go ask Alice

Friday, June 27, 2014

Perky Parrots of the Patent-Haters Club

The nonsensical parrot noises
frothing from the beaks of
our Magnificent Nine ...

could not reasonably have come
from reasonable minds.

And that begs the question:

Where did the nonsensical, patent-related
gobbledygook really come from?

One need look no further than
the amicus briefs of the so-called
"frenemies of the court".

... Parrot hears, parrot parrots:

"Generic" computers and graphic claims that are "yawn-drawn" indeed!

The EFF Brief
"B. At a Minimum, Performance of an Otherwise Abstract Idea “on a Computer” or “on the Internet” [performance stage] Should Not Make that Idea Non- Abstract
In effort to avoid preemption, courts have rightfully found that performing an abstract idea on a general purpose computer, without more, does not make that invention patent-eligible. For example, in Dealertrack, ... The claims at issue here, like those in Dealertrack, Benson, and Bilski, take an abstract idea—using a third-party intermediary to settle risk— and merely tie that idea to a general “data processing system” (in the system claims) and a “computer program ... comprising a computer readable storage medium” (in the media claims). CLS Bank Br. at 48-51. Nevertheless, five judges on the Federal Circuit would have found these system claims patent-eligible. ..."

Saturday, June 21, 2014

Alice in Blunderland, How SCOTUS came to be so Patently Incompetent

You would think that by now,
SCOTUS would have become
so embarrassed in how
it blunders its way through patent related matters that it would cease and desist from shaming itself more(e.g.:
... KSR,
... Bilski,
... and now, Alice.
But not so.

In connecting the recent historical dots, we see a SCOTUS (Supreme Court of the US) of ever increasing incompetence in things scientific and patent related. The Court has no clue how incompetent it is. (See Dunning–Kruger effect.) Egged on by equally incompetent journalists (those who don't know a trademark from a trade secret or a patent), it parades naked and unafraid into a perilous blight of intellectual bankruptcy.

Instead of honestly admitting they know not of what they speak (exception being Scalia J. in Myriad), the Justices have become down right proud in their growing ability to fling with golden tongues, totally and patently nonsensical jargon about claims being "drawn to" some self-conjured up "abstraction" or about there being a penultimate "generic" computer that the "coders" out there can over weekend's twilight, re-code to "make it so" with respect to any "simple-is-as-simple-does" idea imparted to their keyboard-shackled hands on a Friday night from a hindsight ignobled Court.

Indeed, in SCOTUS mind, all computer-implemented inventions are mere child's play; starting with a hindsight enunciated "idea" and then adding to it the SCOTUS recipe ingredient of doing "not enough" aside from making such so upon thine generic computer (a.k.a. general-purpose computer); whereby one's hindsight genius mirror inevitably shows a not-quite-inventive invention that is rendered patent "ineligible" and obvious to boot by a know-it-when-I-see-it intellectual process. Potter Stewart is proud of you oh brethren of the corn ... (Click on 'Read More' below)

Thursday, June 19, 2014

A Court Drawn to Horse, Buggy and Total Technical Incompetence

It seems inevitable that our collective elevator ride back down to those future-shocking New Medieval Ages
should include a stop over at that retail sell-out floor called
Patently Incompetent SCOTUS Justices On Sale Here (the PIS-JOSH floor).

Today's Supreme Court (SCOTUS) decision in Alice Corporation Pty. Ltd. v. CLS Bank International (2014) does not surprise. After all, we saw in the oral arguments how naive the Justices were with respect to giving a coffee clutchful of Silicon Valley "coders" an "idea" and telling them to "make it so" over the weekend on a "general purpose computer". (a.k.a. the "generic" computer") ... The Alice-in-Blunderland Supremes summarized their holding in the following:

"Viewed as a whole, these method claims simply recite the concept of intermediated settlement as performed by a generic computer. They do not, for example, purport to improve the functioning of the computer itself or effect an improvement in any other technology or technical field. An instruction to apply the abstract idea of intermediated settlement using some unspecified, generic computer is not “enough” to transform the abstract idea into a patent-eligible invention. Id., at ___. Pp. 14–16."

As Forrest Gump was known to quip, 'simple is as simple thinks' or something generically like that.

Patent law pundits are all over the map on this one:
Don't Ask Alice, What did our Supreme Humpty Dumpties mean?

Some say "software" patents have been severely set back

Others say "software" is not at all affected because the Supremes didn't say the S-word

Yet others (the EFF) celebrate the end of all "software" patents.