First Mover Advantage and the Tooth Fairy

http://www.newsweek.com/lesson-hoverboard-knock-offs-409117

According to above Newsweek article:
"Absent the government regulation, how can innovators make money? They have the first-mover advantage."

"The hoverboard, like the cotton gin, is in enormous demand. All the government [patent] power in the world will not prevent hundreds of manufacturers from making them, driving the price down and down until everyone can afford one. That one million per week that Razor is spending on trying to stop copycats is probably better spent on marketing and innovation—actually making and selling stuff rather than trying to prevent others from making and selling stuff."

Above Newsweek article concludes:
"It is common wisdom to say that the patent system is broken. But what is broken about it? It’s not that the system is abused. It is that it is used at all. Industrial monopolies achieved through government grants of special [patent] privileges create waste—and the ongoing lawsuits concerning the hoverboard are a case in point.

Whether it is ginning cotton or zipping around on city sidewalks, a true innovative society encourages as much production and innovation as possible, in service of the masses who love the newest and coolest thing."

--Jeffrey A. Tucker is a distinguished fellow at the Foundation for Economic Education.

Problem is ...
All this fancy echo chamber talk about first mover
Doesn't get you past the 800 Pound Guerrilla.

He will crush you.

"Joy" (maybe) to Inventors One and All

Spoiler alert
Jennifer Lawrence of Hunger Games fame plays an inventor housewife.

However for you patent practitioners out there, plot holes abound.

Merry X-Power-Mas

USPTO Systems Status and Availability

Check this page for the latest information on operating status and availability of Online Business Systems. For Standard Hours of
Availability for Online Business Systems, System Descriptions, and Operating Requirements/Compatibilities, see the links at left.
Current Status
Wednesday Dec 23, 2015

Update from Patent Docs:
Anyone heard how the USPTO plans to fix the ecommerce system problems?
I understand from [SCOTUS] Justice Kennedy that it should only take a weekend for a 2nd-year college student whose taken a class in engineering to fix a typical problem with an e-commerce system [like this one].

USPTO Power Outage Update

Statement updated at 9:30 a.m. ET December 24, 2015 to reflect that USPTO fax line is now operational.

A major power outage at USPTO headquarters occurred Tuesday, December 22, resulting in damaged equipment that required the subsequent shutdown of many of our online and IT systems. This includes our filing, searching, and payment systems, as well as the systems our examiners across the country use. However, we are now able to receive faxed documents. We are working diligently to assess the operational impact on all our systems and to determine how soon they can be safely brought back into service in the coming days. We understand how critical these systems are for our customers, and our teams will continue to work around the clock to restore them as quickly as possible, though we are currently estimating that these systems will be impacted at least through the Christmas holiday on
Friday, December 25.

In light of this emergency situation, the USPTO will consider each day from Tuesday, December 22, 2015, through Thursday, December 24, 2015, to be a “Federal holiday within the District of Columbia” in accordance with the description and regulations in this official notice posted here: http://www.uspto.gov/blog/ebiz/.

Further status updates will be issued on this page as they become available, as well as on our Facebook (www.facebook.com/uspto.gov) and Twitter (www.twitter.com/uspto) accounts.

Thank you for your patience as we work to restore full service as soon as possible. Shutdown of Certain Electronic Systems of the United States Patent and Trademark Office from Tuesday, December 22, 2015 through Thursday, December 24, 2015

Astute Alice/Mayo Judges, Rise of the Juggernaut

According to one recent article:
"Judges across the country are striking down software patents in the name of a U.S. Supreme Court decision [Alice] that is changing how some tech companies protect their ideas.

... In her reasoning [in the Cleveland Clinic Foundation case], U.S. District Court Judge Patricia Gaughan cited Alice in an opinion that questioned whether the patent would pass validity standards set by both Alice and a 2012 Supreme Court decision called Mayo Collaborative Services v. Prometheus Laboratories Inc.

... The same judge ruled on the Datatrak and MacroPoint cases. In short, she ruled that the companies were using software to do things that humans have done for ages: Datatrak, she said, was organizing data; MacroPoint was relaying it. ... MacroPoint put out a news release .. [Alice/Mayo are hurting] innovative companies like MacroPoint that are the original inventors of a credible and viable product"

Off with their heads.

You might think that StanaCard (introduced below with its Lassie adoring law giver) is a one off. Not so. As the article points out, all too many district court judges and administrative agency bureaucrats are beyond eager to join up with the Medieval Minded Justices of Mount Olympus.

But first back to StanaCard and what its claim actually recited.

1. A method comprising
[a] detecting an identity of a caller;
[b] receiving an assigned incoming telephone number;
[c] identifying a recipient associated with the assigned incoming telephone number and the identity;
[d] connecting the caller and the recipient;
[e] wherein said caller has a plurality of assigned incoming telephone numbers to choose from, at least one of said plurality of assigned incoming telephone numbers being associated with said recipient,

[f] wherein each assigned incoming telephone number is associated with multiple recipient telephone numbers, a particular telephone number of a recipient being determined solely by a particular assigned incoming telephone number used by a particular identified caller and without input of further data by said caller,
[f] whereby said caller is not required to be within a particular network for making calls.

As you might recall, the judge said this exactly like what happens in Lassie's network.

Astute Alice Judges Position Their Rabbit Hole Beliefs at Center of Universe

In the classic movie, The Princess Bride, a s-elf styled intellectual giant positions himself as a know it all about all things in the Universe.

"I happen to know," he says, "that the poison iocane comes from Australia, and as everyone knows, Australia is entirely peopled with criminals, and criminals are used to having people not trust them, as you are not trusted by me, so I can clearly not choose the wine in front of you. ...

But it's so simple. All I have to do is divine from what I know of you.
Are you the sort of man who would put the poison into his own goblet or his enemy's? Now, a clever man would put the poison into his own goblet, because he would know that only a great fool would reach for what he was given. I am not a great fool, so I can clearly not choose the wine in front of you. But you must have known I was not a great fool, you would have counted on it, so I can clearly not choose the wine in front of me."

Much as he knows for sure that he is in a "game" of wits and that one cup is free of poison --"it just ain't so" to quote Mark Twain. There is no game. Both cups contain iocaine and his adversary is immune to it. A fatal mistake by one who is 101% sure about something he knows close to nothing about.

There are similar know-it-alls in Alice's Blunderland:

'Clever' Long-Distance Call Patent Abstract, Judge Finds

Stanacard v. Rubard

The judge recalls from perfect, non-cross-examined memory:

"When I was a child I watched Lassie on television. Whenever June Lockhart, playing Ruth Martin, wanted to reach someone by telephone, she rang Jenny at Central and got herself connected to whomever she wished just by saying "Can you get the doctor?" or "I need to speak to Timmy's teacher, Miss Jones." Ruth didn't have to dial any numbers at all. Jenny, the intermediary, recognized Ruth as the caller from the line that rang at Central, and she knew which receptacle to plug Ruth's line into so that Ruth's call to Central would be forwarded to its intended recipient.

Nothing different happens here, except that [them new fangled] switching machinery and computers (none of which is [sic] claimed) recognize who the incoming caller is and to whom she wishes her call forwarded.
As defendant points out, a room full of telephone operators with sheets of paper containing the look-up tables could accomplish the same result- expensively, true, but the same result, using the same process."

Only the Echos of Their Abstractinating Minds

Midnight cowboys know that the day after, all that remains are the scratches on the vinyl recordings from the oral hearings.

A couple of post phonic analyses of McRO v. Bandai may be found here and here.

Which of the possible reverberations sums it up?

Syncopation?

Synchronization?

Morphed ideations?

Or, was it a silent conspiracy between accused and judge to sweep the details under the rug?

At the end of the day, District Judge Wu found himself not fooled by the details (or by a subconscious desire to summarily dispose of the arduous labor of full trial) and found the claims "directed" to:
the abstract idea of
"lip synchronization
using a rules-based morph target approach"

How convenient for both judge and the accused defendant who formulated that contraction.

At the close of appellate oral arguments, McRO's lawyer wanted to know what ever happened to the separate ideas of sequence and timing and transition curves? Where was that as a routine in the prior art? Why did all the claim details disappear?

Silence.

Upcoming 101 Oral Arguments

Question that should have been presented: Are claims of patent "directed" to intrinsic patent disclosure of which they are an integral part or are they "directed" to an arbitrary extrinsic concept made up by a "trust my subjective judgment" judge, examiner or; more often, accused infringer?

From http://www.cafc.uscourts.gov/argument/upcoming-oral-arguments :

Panel O: Friday, December 11, 2015, 10:00 A.M., Courtroom 203
15-1080 DCT McRo, Inc. v. Bandai Namco Games America

Should be an interesting one

Link to District Court 101 PDF holding here

PatentDocs review of DC 101 ruling here.

News brief here

p.s. of 12/11/2015: Oral hearings recording here.

UPDATE: Patent Arcade's Summary of Oral Hearings is here.

Another report on the Oral Hearings is here: "Software Patent May Survive Scrutiny"

Link to text of McRO's US Pat. 6,611,278 here.
Link to Google copy of 6,611,278 here

From the 6,611,278 patent (col 4, line 32): "The method preferably comprises a set of rules that determine what the output morph weight set stream will be when any sequence or phonemes and their associated times is encountered. As used herein, a "morph weight set" is a set of values, one for each delta set, that, when applied as described, transform the neutral mode to some desired state, such as speaking the "oo" sound or the "th" sound. Preferably, one model id designated as the anchor model, which the deltas are computed in reference to. "

Judge L. Lets Loose his Laws re Laws of Nature and Abstarctitude

Like Prometheus bound to his rock and pecked at by dark demons, Judge L. of the Court of Appeals feels himself sentenced to an equal fate by the 9 Demigods of our Mount Olympus. He quails:

"I find no principled basis to distinguish this case from Mayo [v. Prometheus], by which we are bound. I write separately to express some thoughts concerning laws of nature and abstract ideas" --ARIOSA DIAGNOSTICS, INC. v. SEQUENOM, INC. (Fed. Cir Dec. 2, 2015 -another of infamy's dates) [For more discussion, check out IPWatchDog here.]

Based on rock solid rationale, he proclaims:

"Laws of nature are exact statements of physical relationships, deduced from scientific observations of natural phenomena. They are often represented by equations, and include such laws as the relationship between energy and mass (E=mc2), the relationship between current and resistance (Ohm's Law), that between force, mass, and acceleration (F=ma), Maxwell's equations, Newton's laws of motion, and many more."

He enlightens we the blind ones with this flash of genius:

"Abstract steps are, axiomatically, the opposite of tangible steps; that which is not tangible is abstract. But steps that involve machines, which are tangible, steps that involve transformation of tangible subject matter, or tangible implementations of ideas or abstractions should not be considered to be abstract ideas."

What's wrong with Judge L.'s ideas?

Let's start with one of his simpler "laws". Ohm's Law.
This so-called “Law” (and don't forget Moore's) cannot logically be part of the kit when Mother Nature finally comes down from the mountain top with holographic clay tablets clutched to bosom to declare her Universal absolutes. Rather it is merely one of our current delusions and illusions as seen through human eyes. Mass? Energy? E=mc^2? Is that “truly” how the Universe is put together or just our current projection onto Plato’s allegorical cave wall?
Clearly V=I*R (Ohm’s “law”) is a delusion because in the real world there is no homogeneous R device that has linear conversion of “current” to “voltage” over all ranges and all temperatures. It is merely a model, an idealistic or abstract model. Not a “law” that Mother would approve of.

Judge L.'s wrong headed notions about Laws "of Nature" (meaning proclaimed by Mother herself) are just a tip of the iceberg example of judges gone wild and bouncing off the walls of Plato's Cave.

First and foremost are the Royal Nine feeding us LSD-laced Mayo-naise about how response to dosage by humans with unique DNA combinations is totally predictable based on their own invented Law "of Nature" (their unspecified "correlations").

Anti-Patent Coders can never be wrong because they have purely logical biological brains

Let's face it.
To be human is to be fallible to the illogical.

To be human is to be susceptible to emotion rather than reason.

In this post we examine one particular article:
How to Misunderstand Free Software
which includes illogical, ill-informed anti-patent sentiments.

At one point the article proclaims:
"Copyright is very important ... Patents in software, on the other hand, are a very controversial concept. To put it shortly: there is no such thing as a "patented software". By registering for a patent, however, someone can claim ownership over a process. The patent then applies to all software that use this process, whether proprietary or free.

[Note: The author does not understand copyright law. A copyright protects a specific "expression" as affixed in a tangible medium. It does not protect inventions.]

[Note: The author does not understand patent law. One does not "register" a patent and one does not claim software per se becuse there is no clear definition of what software is. One "applies" for a patent for a new and useful machine, process, manufacture or composition of matter.]

At another point the article asserts:
"... software is just code, code is only math. Once you view software as useful math, an elaborate language, not like ordinary property, there is no reason to restrict others' use of it. Just like math (where nobody would claim property on an equation), software requires advanced knowledge to be adapted, improved, applied correctly."

[Note: The author does not understand physics. Software and code are not one and the same. Code is anything that at some point gets decoded or re-coded, for example Morse code is re-coded into alphabet letters. Software can come in many forms, not just source code. For example your passwords can be thought of as software. And yes Virginai, there are reasons to restrict.]

"Free software is not about killing incentives for programmers. It's about seeing code as knowledge which should not be hidden from the user."

[Note: The whole point of object oriented programming is to encapsulate and thus hide knowledge from users. Too much knowledge can be a dangerous thing.]

"Imagine purchasing a car whose hood you are forbidden to open. It does not matter whether you know how a car works – the point is that nobody will be able to check the engine. How can you trust your car, if no one is allowed to make sure that it's reliable, that it does not leak, that it's not harmful to the society and environment?"
"The idea is the same with software – except that code does much more than move cars. Software runs our computers, phones, TVs, media players and more, carrying information and our culture."

From another source:
"He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."

D'oh! Please share with your local town burglars the info of when you and family will be out of town for a prolonged vacation. Thank you Mr. Spock-like Know It all.

Alice Omelette Poured Generously Over Graham Eggshells

At the time that Graham v. Deere (1966) was decided, section 103(a) read as follows:

35 U.S.C. 103 Conditions for patentability; non-obvious subject matter. "(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made."

Alright, said the Supremes to themselves.

We don't know much about biology, history or zoology. Don't know deep algebra, just that 1 plus 1 is two. But about the English language we know a thing or three. We know how to parse a sentence.

It says in this section 103(a) something about "having ordinary skill in the art".
Somebody has got to figure out what that ordinary skill is, what its level is, and they need to do so by presenting "evidence".

It says in this section 103(a) something about "differences" and about the subtractant being "the prior art".
Somebody has got to figure out what the prior art is, what is its scope and content, and again they need to do so by presenting factual "evidence".

It says in this section 103(a) something about "the time the invention was made".
Somebody has got to figure out what that time is. Clearly the ordinary guy could not know what comes after. We best be wary of hindsight and allow for secondary considerations.

The Supremes of the Graham v. Deere era walked on eggshells. Careful not to overstep what the text of the statute said.

Now let's compare that against what the Supremes of Alice v. CLS did ...

Dismantling America. So we can be "Great". Again. Like we were before we had patents.

Not long ago, it was turnstile news that the world waited with baited breath for the next great thing coming out of America's technology mill.

It wasn't always that way.

Back in the day of our Philandering Fathers, America was a 3rd world back in the hillbilly woods agricultural society.

It was we who waited with baited breath for the next great technological advance to trickle down to us as soon as the "Great" Britain magnanimously decided to so do.

Then our Tinkering Fathers (e.g. Ben Franklin, ...) had a stroke of some kind. Eureka. Aha. If we gave out patents to "our" tinkerers and inventors we wouldn't be waiting around for Great Britain.

Today. We have great thinkers who want to make America "Great" again by going back to the old ways. By doing away with patents. By rolling back the clock to the good ole boy days when we waited with baited breath for them instead of them for us.

The Myth and the Magic

"I think it, therefore it is." (... true, that is)

Descartes didn't say that.

However many a modern day magical thinker believes it.

8 JUSTICE KENNEDY: Suppose I thought - and,
9 again, it's just a thought because I don't have the
10 expertise - that any computer group of people sitting
11 around a coffee shop in Silicon Valley could do this
12 over a weekend.

In other words:
The Myth of Basic Science
("The implications of this new way of seeing technology—as an autonomous, evolving entity that continues to progress whoever is in charge—are startling. People are pawns in a process. We ride rather than drive the innovation wave. Technology will find its inventors, rather than vice versa.")
Blogger's Note: So I need not have bothered writing this piece because inevitably someone else would have. And you need not have read this piece because inevitably someone else would have (read the other chap's piece). Pawns are expendable. Sit back, relax and just chew your cud.

Or is the rebuttal the correct point of view?
The “myth” of basic science?
("This is a profound misunderstanding of how basic science is translated into useful products. For instance, it is true that there were steam engines before the laws of thermodynamics were worked out, ... In turn, engineering improvements in the steam engine contributed to the understanding of thermodynamics during the 19th century. ... Basically, Ridley postulates the “myth” of basic science as a means of arguing that current patent policy is too stringent and protects monopoly")

Blogger's Note: So let's unilaterally disarm. Throw away our patent laws. Throw away our inventors and their cunning draftsmen lawyers. Sit back and wait for Them to inevitably invent. Piss in our pants when They arrive on our shores with their new inventions ... and then annihilate "Us" slackers. Good idea. Brilliant. Thank you Little Anthony and Clarence the Clown.

Is "innovation" inevitable?
Do patents "stifle" it?
Is the individual inventor irrelevant?
Another Edison or Bell would have surely come along?
Another Newton, Einstein, Darwin, Galileo was queued up and ready to go?

On whose shores?