Wednesday, January 11, 2017

Innovation is Essential, Inventors are Not

Something was missing when "The Spirit of Kitty Hawk" soared out of President Obama's Farewell Address to the nation. The innovation was there but Wilbur and Orville were not.
Yes, innovation and its "spirit" are "essential" to the future prosperity of America. However innovation is not a faceless, inevitable phenomenon or spiritual effervescence of nature. Behind every innovation is a struggling one or more lone wolves who step out from the herd, take risks, absorb the cost of failures and hope for personal reward.

It is no secret that the Obama administration has not been a friend to lone wolf inventors. The passage of the America Invents (Not) Act or AIA was no gift to the inventor community. The positions adopted by the Obama controlled Patent Office were not for sake of making life easier for inventors. Quite the opposite.

And now President Obama has the audacity to look back on his legacy and talk about innovation being essential? About yes "we" can? ...

Who wants to give inventors a grace period? Not I, said audacious Obama.

Who wants to let inventors invent first and file later? Not I, said impatient Obama.

Who wants to take credit for the accomplishments of others, for what "we" did, for the tiny computer in everyone's pocket? Here I am, here I am, crowed nostalgic Obama.

___________________________________

"Take the challenge of climate change. In just eight years, we’ve halved our dependence on foreign oil [*n1.]; we’ve doubled our renewable energy [*n2.]; we’ve led the world [*n3.] to an agreement that has the promise to save this planet. But without bolder action, our children won’t have time to debate the existence of climate change. They’ll be busy dealing with its effects: more environmental disasters, more economic disruptions, waves of climate refugees [*n4.] seeking sanctuary.

Now, we can and should argue about the best approach to solve the problem [*n5.]. But to simply deny the problem not only betrays future generations, it betrays the essential spirit of this country ― the essential spirit of innovation and practical problem-solving that guided our Founders.

It is that spirit, born of the Enlightenment, that made us an economic powerhouse ― the spirit that took flight at Kitty Hawk [*n6.] and Cape Canaveral; the spirit that cures disease and put a computer in every pocket.

It’s that spirit ― a faith in reason, and enterprise, and the primacy of right over might [*n7.]..."

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Notes: *n1.: This is utter science-divorced nonsense. The atmosphere does not "care" (Obama-wise or otherwise) what nationality is assigned to the oil or other fossil fuels burned in our relentless lemming charge towards the ledge.

*n2.: As well known, 2 times zero is zero

*n3.: US representatives come kicking and screaming to all the climate change conferences.

*n4.: Yes, many more "spring" times for the Middle East.

*n5.: Nothing is being "solved" or mitigated. The can keeps getting kicked down the road. (The road that says This way to Lemming's Ledge.)

*n6.: A "spirit" did not take flight. Wilbur and Orville did, using their invented and non-abstract flight control mechanisms.

*n7.: Go tell the inventors in In re Bilski about that right over might thing.

Thursday, January 5, 2017

Depriving Inventors of Legal Counsel

Inventors are not like ordinary people.

You see, what inventors do is akin to weaving of witchcraft.

All that computer wizardry and unnatural rearranging of Mother Nature's designs in the genetic realm has to be magic.

More often than not it is dark magic. And must be stopped.

One way to stop it is by saying "No."

No, you inventors are not human. No, you self-proclaimed inventors are not entitled to legal counsel. After all, your legal eagles are merely the "familiars" of your trollish like witchcraft, helping you to hide your true truly evil nature by way of their deceptive scrivener's art.

As one enlightening web post explains: "For years, patent trolls [and their behind the scenes legal helpers] have been ... pure evil ...
And like most evil entities, they are almost impossible to stop. Even a 2014 U.S. Supreme Court decision [Alice v. CLS] that was highly critical of patent trolls has done little to slow their slimy, reptilian-like existence. ...

But a federal judge ... slapped a half-million-dollar bill on the [contingency fee] lawyers and said that they were personally responsible for paying it, not their client. ... Part of the patent-troll economic model is based on lawyers taking a contingency fee, meaning ... the lawyers [are] more of a partner than a traditional contractor ... By placing the fines on the lawyers personally — well, to be precise, on their law firms — it threatens to change the dynamics. If lawyers stop taking these cases, patent trolls will no longer have a viable way to threaten thousands of companies."

--Stated otherwise, those "Igor" legal helpers of the Frankensteinian inventor class are just as guilty and must pay. Frankensteins (read as those who tamper with the "natural" ways of the world) are not entitled to helpful Igors or to a contingency lawyers (same thing) or to any legal rights because, after all, these Frankenstein inventors are abominations. Subhumans, monsters, trolls (or witches) that is what they truly are! We need not belabor the point. It is a self-evident truth.

... SARCASM still under construction but see Fatal blow against patent trolls

Sunday, December 18, 2016

Fake law, fake science and fake friends of 2016 in review

History will look back at 2016 as the "BIG FAKEOUT."

Sure. We had USA election 2016. We had an international hack-o-thon. We attained frackutopia. We had the Fed tell us all is well and the economy is ready for rate hikes. We had the election winner tells us to get ready for really really great again things.

But that is not what this blog is about.
It's about patent law. Or more correctly in recent times about unconstitutional fake law which is promulgated as if it is real by almost all involved including the US Supreme Court (SCOTUS), the Court of Appeals for the Federal Circuit (Fed. Cir.), the federal district courts (DC's), the US Patent and Trademark Office (USPTO/ptab) and many a fake law professors.

So let's try to review some of the big patent fakeouts of 2016 ...

(1) First there is Ariosa v. Sequenom.

(1.1) All agree that it was a breakthrough discovery.

(1.2) The US Constitution specifically empowers Congress to secure "discoveries".
Article I, Section 8, Clause 8: 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

(1.3) Section 100 of the Patent law (Title 35) tells us that:
When used in this title unless the context otherwise indicates - (a) The term "invention" means invention or discovery.
(b) The term "process" means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.
... (f) The term "inventor" means the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.

(1.4) Section 101 of the Patent law (Title 35) tells us:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

Despite all this guidance from the statutory law, the Fed. Cir panel in Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371 (Fed. Cir. 2015) found that: ...

Monday, December 5, 2016

Sanity: Prometheus Bound Back to his Rock

Sanity at last: Prometheus Bound Back to his Rock
Tech Center 1600 Biotechnology and Organic Chemistry
Art Unit: 1645 Ex Parte McBride et al 12/377,926
REVERSED

"The facts distinguish the present case from Funk Brothers, where the claims were directed to the mere packaging of a plurality of selected, naturally occurring strains of different bacteria that were mutually non- inhibitive. Here, the individual components are bound together to form an immunogenic unit that is not naturally occurring. Here, the "discovery is not nature's handiwork" and "accordingly it is patentable subject matter under § 101." Diamond v. Chakrabar, 447 U.S. 303, 310 (1980). Here, the polynucleotide (or antibody) and either the solid support or the detectable label are bound together"

Sunday, November 20, 2016

The Libertarian Delusion re Physical Possession and Ownership

This Libertarian article (here) insists that intellectual property is "different" from other kinds of claims of rights of exclusivity.

Let's test that hypothesis by considering land ownership.

On Monday morning billions of molecules of air rest above your farm.
Large clunks of top soil sit below them.
The flowers stand tall, proud and full of nectar.
All these things, you the farmer claim to be yours, yours alone.

Then on Tuesday a mighty wind comes.
Replaces the original air molecules with those stolen from nearby other farms.
Blows away some of your top soil and replaces it with that which belonged to others.
The bees come and rob you of the honey nectar oozing from "your" plants.
How dare they!
This is violence to your god given property rights!

But then you realize.
None of it was yours.
You merely have a claim to fictional lines drawn on a map.
Your ownership and tightfisted possession of all that resides within those lines is an illusion. An intangible. Gee. Just like IP rights.

(Click on image to hear colors of the wind)

Friday, November 18, 2016

Oh really?

From Federalist speech by Justice Thomas:
OUR ROLE AS JUDGES WAS TO BE CONFINED TO THE WORDS OF THOSE WHO DRAFTED THE CONSTITUTION OR ENACTED THE LAW IN QUESTION AND WHAT THOSE WORDS MEANT TO THE PEOPLE WHEN THEY WERE DRAFTED. IN SHORT, THE ORIGINAL MEANING. WE AS JUDGES DO NOT GET TO FREELANCE OR PUT OUR PERSONAL GLOSS ON THESE LAWS. EVEN IN AREAS IN WHICH OTHERS MIGHT JUST TUNE OUT FROM BOREDOM, SUCH AS [patent law,] JURISDICTION, STANDING, OR RIPENESS, JUSTICE SCALIA WAS EVER VIGILANT, GUARDING AGAINST JUDICIAL POWER BEING EXERCISED WHERE JUDGES HAD NO AUTHORITY. THUS ENCROACHING ON THE AUTHORITY OF OTHER BRANCHES OR THE STATES. ONCE THIS ABIDING CONCERN IN JUSTICE SCALIA'S COMMITMENT TO THE CANNONS OF -- CANONS OF STATUTORY CONSTRUCTION WHO ELSE WOULD LABOR SO DILIGENTLY AND EXHAUSTIVELY ON A BOOK ON THE 57 CANONS OF CONSTRUCTION? AS AN ASIDE, I WATCHED ON A NUMBER OF OCCASIONS AS HE DRAGGED HIMSELF OUT OF HIS OFFICE AFTER LABORING OVER HIS COURT WORK ONLY TO WORK ENDLESS HOURS ON HIS BOOK, "READING LAW." AS COMPLICATED AND INTRICATE AS THESE CANONS MAY SOUND, THEY ALL SERVE A SINGLE PURPOSE, UPHOLD THE STRUCTURAL CONSTRAINTS OF THE CONSTITUTION IN ORDER TO PROTECT OUR LIBERTIES. WE AS JUDGES EMPLOY THE CANONS TO DISCERN THE COMMONLY UNDERSTOOD MEANING OF THE WORDS CHOSEN BY CONGRESS. WE DO NOT RESORT TO OUR OWN PREDILECTIONS TO DIVINE WHAT CONGRESS MIGHT HAVE INTENDED.

Oh really?
And that's what you guys did in Alice, in Bilski, in Myriad?

Wednesday, November 16, 2016