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: ...

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"

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)

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?

Transitioning to a Brave New (Patent Free) World

Transition?
Migration?

Poe-tato?
Pah-tata?

No difference.
Let's call the whole thing an abstract kind of love.

TRANXITION, INC. v. LENOVO (UNITED STATES) INC. [OPINION]

From Salem to Sequenom, Following the Whack'o Witch Hunting Trail

To all yea' hunters of the supernatural (be it of generic computer abstraction-ism or un-natural genetic phenomenon),
Happy Halloween!

As is well known, there are certain things that should never have been allowed to be in the first place.

Patenting of unfathomable software magic is one of them.

Monopolizing of DNA prestidigitation (no matter how remarkable) is another.

Our hunters of the judicial exceptionalisms are vigilantly on the war path lest some crafty scrivener weave the devil's satanic verses into some obtuse patent claim language. It is imperative to unmask all claims by stripping away their conventional coverings so as to behold the truth of what they are truly "directed to." Only if divine intervention reveals something "significantly more" can they be saved from the gallows. All witches and all claimers of witchcraft must hang.

No need, course; to belabor the brilliant and self-elevating boastful brains of our vigilante judicials with technical details. All code is no more than that witch any 2nd year engineer student will finish before weekend's last dusking. And fishing out pathological genetic code from DNA strand tis no more than a pluck of leaf off yonder tree. Neither deserves chance to prove otherwise. Those who dare question our Blunderland framework of exceptionalism detectionism are but apostates and blasphemers. Hang them all. Happy Happy is our Halloween.

Subject to ... legislative whims of judges gone wild

Actually, the statute 35 USC Section 101 ends with “subject to the conditions and requirements of this title.”
But one would never know that in reading from the latest of the firestorm ignited by Bilski, Alice and Mayo.

Real legislation takes years to perfect. Debates and hearings are held over the years. Experts are consulted. Affected parties are listened to. Amendments are proposed and adopted or not after further debate. Those responsible understand that new legislation can impact the lives of millions of people. They do not lightly tread into passage of new laws.

Not so in the judicial branch.
New laws can be promulgated without notice or hearings. They can be based on the arbitrary and capricious whims of the judiciary and on the ignorance and arrogance of same with respect various matters of complex feed waters and socioeconomic ecological systems.

So what if it takes the best and the brightest of our students years of post-graduate study to understand subtle facets of molecular biology and computer engineering? Our uber-super judiciary can come to grips with the same subject matter in just a few hours. Isolating a medicinally relevant gene sequence? Why that is the same as hiking through the jungle, spotting a banana tree ripe with fruit and plucking off one of the bananas. Mere child's play.

Configuring a complex computer system to operate correctly? That too is mere child's play. Just walk into any ole' coffee shop and grab hold of any 2nd year engineering student. One weekend is more than enough time to "code" it up. Simple as grandma's apple pie and King Tut's accounting system. Why all the fuss?

Have no fear. Uber judges are here.