Thursday, December 18, 2014

Discovery Death Squads

IN RE BRCA1- AND BRCA2-BASED HEREDITARY CANCER TEST PATENT LITIGATION

"We do not read the Supreme Court’s opinion in Myriad as conferring patent eligibility on composition of matter claims directed to naturally occurring DNA strands under such circumstances. A DNA structure with a function similar to that found in nature can only be patent eligible as a composition of matter if it has a unique structure, different from anything found in nature. Myriad, 133 S. Ct. at 2116–17 (citing Chakrabarty, 447 U.S. at 309–10). Primers do not have such a different structure and are patent ineligible."

Ah yes.
The judicial ego.
Know it alls spawned from their own mental test tubes.

Electrons are real.
Molecules have wavefunctions as part of their "structural" makeup.
An in-DNA strand is not "structurally" the same as an isolated snippet.
But then again, what do so-called "scientists" know when in the presence of Mount Olympus giants?

Saturday, December 6, 2014

This is not a kiosk?

From Judge Mayer's dissent in DDR Holdings:
This is incorrect. DDR’s claims do, in fact, simply take a well-known and widely-applied business practice and apply it using a generic computer and the Internet. The idea of having a “store within a store” was in widespread use well before the dawn of e-commerce. For example, National Leisure Group, Inc. (“NLG”), one of the defendants here, previously “sold vacations at . . . BJ’s Wholesale Clubs through point of purchase displays in the 45 BJ’s Clubs along the Eastern Seaboard.” Br. of Defendants- Appellants National Leisure Group, Inc. and World Travel Holdings, Inc. at 4. DDR’s patents are directed to the same concept. Just as visitors to BJ’s Wholesale Clubs could purchase travel products from NLG without leaving the BJ’s warehouse, the claimed system permits a person to purchase goods from a third-party vendor, but still have the visual “impression that she is viewing pages served by the [original host merchant].” ’399 patent col.3 ll.23–24; see ante at 3 (explaining that DDR’s claimed system “permits a website visitor, in a sense, to be in two places at the same time”). Indeed, any doubt as to whether the claimed system is merely an Internet iteration of an established business practice is laid to rest by the fact that one of the named inventors acknowledged that the innovative aspect of his claimed invention was “[t]aking something that worked in the real world and doing it on the Internet.” J.A. 03208.

Representative claim 19 of the ’399 patent recites:

19. A system useful in an outsource provider serving web pages offering commercial opportunities, the system comprising:
(a) a computer store containing data, for each of a plurality of first web pages, defining a plurality of visually perceptible elements, which visually perceptible elements correspond to the plurality of first web pages;
(i) wherein each of the first web pages belongs to one of a plurality of web page owners; (ii) wherein each of the first web pages displays at least one active link associated with a commerce object associated with a buying opportunity of a selected one of a plurality of merchants; and
(iii) wherein the selected merchant, the outsource provider, and the owner of the first web page displaying the associated link are each third parties with respect to one other;
(b) a computer server at the outsource provider, which computer server is coupled to the computer store and programmed to:
(i) receive from the web browser of a computer user a signal indicating activation of one of the links displayed by one of the first web pages;
(ii) automatically identify as the source page the one of the first web pages on which the link has been activated; (iii) in response to identification of the source page, automatically retrieve the stored data corresponding to the source page; and
(iv) using the data retrieved, automatically generate and transmit to the web browser a second web page that displays: (A) information associated with the commerce object associated with the link that has been activated, and (B) the plurality of visually perceptible elements visually corresponding to the source page.

In other words, according to Mayer J.,
Every night,
When the little boys and little
other surfers of the Internets things
go to sleep ...

Little elves appear in a big ole' warehouse and build a whole new BJ "store", and a kiosk in the store and ship the whole mere little ole' "store" things to wherever next our little boys and little other surfers of the Internets things will be the next day.

Joy to the world.
All the boys and girls.
Jeremiah really was a bullfrog
and a good friend

Wednesday, November 19, 2014

Sucking On the Ole' Abstractionist's Pipe

Hat tip to an unwitting patent-hater on Gene Quinn's blog

It seems he's stumbled onto the post-modernistic abstraction/ reality dilemma.
Our judges can no longer distinguish between the pipe and the painting thereof.





To be, or not to be continued? (Time will tell)

So, somewhere deep in the latest Ultramercial decision,
Judge Lourie says,
"We first examine the claims because claims are the definition of what a patent is intended to cover."

(Not exactly correct, but at least somewhat close to the mandate of 35 USC 112: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.)

The patent statute (section 112) teaches us that claims are intended to provide, with English words, a bill of particulars that "particularly point out" the subject matter which the inventor (not the judges) regards as the invention.
The patent statute (section 112) also teaches us that claims are intended to distinguish the subject matter (to "distinctly claim") over prior art and over what the inventors does not regard as the invention.

Soon after in the Ultramercial decision, Judge Lourie says,
"Without purporting to construe the claims, as the district court did not, the steps include: (1) receiving ... from a content provider; (2)selecting ... after consulting an activity log to determine whether ... played less than a certain number of times; (3) offering ... on the Internet; (4) restricting ... access (5) offering ... in exchange for watching the selected ad; (6) receiving a request ...(7) facilitating display... (8) allowing access to the media; ... (10) updating the activity log; and (11) receiving payment ..."

Whoa! You're going to not construe, but you're going to construe but you're not going to PUPORT to construe?
What kind of 1984 double speak is that?

Then Judge Lourie switches from his purporting (through an Interstellar wormhole?) that a claim "defines" to instead seeing a claim as a "recitation":

"This ordered combination of steps recites an abstraction—an idea, having no particular concrete or tangible form."

So basically, our poetry-reciting judge has thrown out all the particulars that the inventor has bothered to "particularly point out" and replaced them with invisibility, with mere but poetic abstraction.

And then he says, Why lookie here, we taint got nottin but abstractionism.

Whoa!
Who's inhaling too deeply on the surrealistic pipe now Watson?

Saturday, November 15, 2014

Salem Witch Hunts in a Post-Technological World

Struggle Struggle.
Troll and Bungle.
Slowly the Ouija cauldron churns.

"Oh Great Ouija, Oh conduit to the spirit world,
couple us wilt though to the spirit of the great and powerful J Giles Rich"

"Is that you for real Giles?
Do you see the auras emanating from this here patent claim?

Oh pray tell us ghostly Giles,
Is it abstract or even more abstract?
Or perchance
Perchance
Is there something ... something more?
Something so significantly more ...
that it makes one wish to pass mustard?"

"We are so lost Giles,
since Alice has gone off to Blunderland.
These Ultra-Myrtles give us ultra migraines."

"How are we to divine the direction of each claim?
Oh it bee-ith so TECH-NO-NO Logical
and yet anciently conventional at the same time.
What should we do oh spirit of the Great Giles?
What should we do?"

"What's that oh apparition?
You prefer geriatrically generic catchup?
Not mustard?

So, all kidding aside,
and tongue withdrawn from Shakespearean cheek,
we have moved into a post-technological era
in which geriatric judges who knoweth not even how to use the emails
have come to conclude that they know what them there Internets are all about.


They know an "abstractly directed" patent claim when they see one.
They know when the crafty patent practitioner drafstmen have failed to give them something of greater significance and "preciseness" (the new catch word of Ultramercial).

Better watch out this XMAS holiday season, they even know when you have been bad or very very judge-bribing bad.
To be ... as usual ... continued (some day)

Thursday, November 6, 2014

Disembodied Ideations

I have not figured yet how to best introduce this post's topic. (Perchance it is because I am too unliberated and feel myself trapped in the reality dimension.)

Numerous voices out there seem to proclaim that "ideas" spontaneously come into being from a mere coalescence of other ideas and all are divorced from physical essence, physical reality and the rules of physics.

Take for example a book by Steven Johnson "How we got to now, Six innovations ...". In the linked-to Book TV video he proclaims that problems get solved once we have the right "constellation of ideas" coalescing on what the problem is (what the "next" is) and then the rest (the innovation) is inevitable (see 48:50/55:26 of the video) once this right set of "ideas" come into the mix --see 40:00/55:26 of the video, in the Q&A section. Is that right? Is it merely "ideas" divorced from brick and mortar reality that are needed for "innovation"? Should we get rid of patents as Mr. Johnson suggests in his Q&A session so that ideas become "free" to be spread and to be built upon? (See also, "Information Wants to Be Free" in Economy of Ideas)

Some proponents of this concept of disembodied and free floating ideas perhaps have experienced "out of body" existence where they feel themselves freed and floating apart from their mortal anchor.
Maybe they have come to conclude that "mind" is separate from body and that "ideas" alone is all it takes to get to the "next" great thing? Frankly I don't know. But if that is how they "feel" about the workings of the universe then they are greatly deluded. There is no such thing as a "free" floating idea. There are no free lunches in this universe. Maybe in another one. Not in this one.

Let's start with a simple "scientific" experiment.
Clamp your fingers shut tight on your nose (step 1)
Shut up your mouth and keep it that way (step 2)
Start thinking of some free floating "ideas" (step 3)
Measure on a clock how long you can sustain this free lunch idea generating process (step 4)

You gave up. Right?
That is because the universe abhors free lunches.
At the very minimum you need a thing called "energy" to have ideas.
In truth you need and use much more than that to have and generate ideas.
The experimental proof here is that your "mind" is not divorced from your physical body and your lungs had better be supplying not-free oxygen to your brain if you want to keep the idea factory going.

Where will this road of inquiry into disembodied ideation lead when done?
To Alice of course.
To the "abstract ideas" aspect of Alice v. CLS and to the astral projectionists who provide Alice's notion of disembodied and "abstract" ideation.

Sunday, October 5, 2014

First Monday in Halloween's Orb

The sub-title of this post could be "Scared New World" in contra distinction to the notion of a "Brave New World".

Ebola,
ISIS,
Patent Trolls,
Scholastic Zombies.
What's next?
... the world has become a scary, amygdala-tickling place.

Will SCOTUS declare itself the exclusive giver of all laws?
Stay tuned.
The first Monday in the Orb of Halloween cometh.

Tuesday, September 30, 2014

Electronic Scholarship Denies Existence of Electrons

Good news fellow members of the Second Dark and Medieval Ages. You can use your electronic computer to go online and electronically download a self-proclaimed piece of "scholarship" that argues against the existence of electrons.

Just use your non-physical pointing device (mouse) to point to and non-physically click on this hyperlink so that the powers of magic can cause an electronic transfer of "knowledge" into your non-physical brain.

Well?
Did your magical and non-physical incantations work?

Do you see in your crystal ball viewing device where the article, "What Is a Software Patent?" promises to tell you what a software patent "is" and then doesn't?

Do you see how it explains about a "physical world" that excludes electrons?

Do you see how it calls upon the spirits of ancient texts to prove its point?

These are indeed good and relished times in the Second Dark and Medieval Ages fellow believers. Rejoice!