"The justices, many of whom are among the most at-risk for COVID-19 given their age and underlying health conditions, remain in good health and continue to work on court business from home or their private chambers, Arberg told ABC News."
Hold on just one leaf plucking minute there! Aren't these the same geniuses who said that finding a cure is simple abstraction? Just pluck the right sprout off the DNA tree and use it to make a vaccine. These are routine, well understood and conventional practices! Not exactly as hard as lathing the trunk of the DNA tree into the shape of a baseball bat.
The above snarky remarks will need explication for those not familiar with the Alice/Mayo fantasy journey that the U.S. "Supreme" Court has embarked on. There was a patent case involving diagnostic detection of susceptibility to breast cancer by identifying so-called BRCA-1 and BRCA-2 genomes in the DNA of females. The Supremes determined that "isolating" these genomes was abstract and not deserving of patent protection. They saw the process as a simple one, like plucking the right leaf off of tree. This was arrogant and hubiristic. Since then, the Federal Circuit has ruled that no invention that fits into diagnostic testing "bucket" is patent eligible.
However, getting to the right genes, proteins, mechanisms for diagnosis and treatment are no simple walk in the park. See Race Against the Clock here
We should enlist the stable geniuses on the Supreme Court, pull them out of their cowardly hiding places, to help in the race against the COVID-19 virus.
When you walked into your garage and saw a solid physical object known as a garage door opener?
Sorry. It's not there anymore. It has been teleported into the abstraction dimension (a neighborhood of the Twilight Zone) by the astute judges of the Federal Circuit.
THE CHAMBERLAIN GROUP, INC. v. TECHTRONIC INDUSTRIES CO. LTD [OPINION Fed. Cir. - PRECEDENTIAL 2019-08-21]
According to the Fed. Cir., adding a wireless status reporting device to your garage door opener (more generally, your "barrier operator") is an abstract act that is not patent eligible.
What's being teleported away from us next? The kitchen garbage disposer? NO ooohhhhh.....
Normally it is the Fed. Cir. that accuses inventors of claiming a result without specifying exactly how it is achieved.
This time however, a role reversal is undertaken. It is the Fed. Cir. that dissects a claim so to only see the result without acknowledging exactly how it is achieved in accordance with the claim.
For more details about the specifics of the case you can link to here.
That aside, the real question is by what authority can the Fed. Cir. dissect a claim so as to pick and choose only the parts that will support their conclusion that the "only" novelty is "printed matter" and that the so-labeled "printed matter" has no relation to the substrate?
3) Examiners at the Patent office come up with all kinds of bizarre rejections, including under the Alice/Mayo doctrine and the KSR flexibility rule so as to make sure inventors spend lots of money, RCE after RCE, without ever getting anywhere.
4) Even if they initially do get a grant of a patent, inventors are subject to repeat post-grant reviews (PGRs).
5) Even if they get in front of a jury and win, inventors do not get the promised exclusivity via injunctions thanks to the eBay decision.
6) At the end of the day most inventors are left bankrupt, having spent their lives and fortunes fighting in the unsympathetic court rooms and appeal chambers.
In the mean time, the oligarchs who have set up this catch and kill system sit back and laugh. They take what they want and rarely if ever pay for it.
The Sct. Oil States decision depicts the greedy grubby inventor as no more than a troll who sets up a toll on a common thoroughfare (a bridge of course).
Such a toll troll deserves no more than a revocable franchise right according to the Sct. because this despicable creature is blocking the public from free passage through a common feature of commerce.
Justice Thomas writes:
"This Court has recognized that franchises can be qualified in this manner. For example, Congress can grant a franchise that permits a company to erect a toll bridge, but qualify the grant by reserving its authority to revoke or amend the franchise. See, e.g., Louisville Bridge Co. v. United States, 242 U. S. 409, 421 (1917) (collecting cases). Even after the bridge is built, the Government can exercise its reserved authority through legislation or an administrative proceeding. ... Thus, the public-rights doctrine covers the matter resolved in inter partes review. The Constitution does not prohibit [cough, cough] the Board from resolving it outside of an Article III court. ... Patents convey only a specific form of property right—a public franchise. See Pfaff, 525 U. S., at 63-64. And patents are "entitled to protection as any other property, consisting of a franchise." Seymour, 11 Wall. at 533 (emphasis added). As a public franchise, a patent can confer only the rights that "the statute prescribes." ....
Missing from the holy lips of our Saint Thomas are three simple Latin words: QUID PRO QUO
Saint Thomas Inquisitor instead sees the playing field as this:
"As this Court has long recognized, the grant of a patent is a matter between "the public, who are the grantors, and . . . the patentee." Duell, supra, at 586 (quoting Butterworth v. United States ex rel. Hoe, 112 U. S. 50, 59 (1884)). By "issuing patents," the PTO "take[s] from the public rights of immense value, and bestow[s] them upon the patentee." United States v. American Bell Telephone Co., 128 U. S. 315, 370 (1888). Specifically, patents are "public franchises" that the Government grants "to the inventors ..." ... To Be Continued
Till recent times it was the inventor who was the giver and the public the taker. QUID PRO QUO
The inventor gives his passions, sweat, life blood, time, money and all his know how (his best mode) to the public as part of an offer and acceptance contract deal.
All he gets for it is a stupid piece of paper.
It is the public who are the takers and the benefactors of the deal. The inventor cannot un-ring the bell by retrieving that which he trustingly handed over to the public, the thing we used call his intellectual "property" (IP). According to the Supremes however, the public can re-neg on their end of deal and freely take back that stamped piece of worthless paper.
An unsecured franchise!
One that can be revoked at whim of privy counsel or political hacks of the crown.
Never you mind that Constitution behind the curtain.
Pay not attention to the part about securing inventors.
WE control the horizontal. WE control the definitions.
Revocable franchise is all you get. Got it? Go.
"... In short, patents have clearly been at the heart of successive waves of critically important American commercial innovation and continue to make enormous contributions to the American economy.
But today, unfortunately, U.S. patent rights are under serious threat.
For starters, a series of Supreme Court decisions over the last 15 years have made it harder to obtain and defend a patent."
ALL claims, meaning absolutely all claims “are” abstract.
They are merely words scrivenered on parchment (e.g., in the English language) to represent the concept of a corresponding invention.
This is not a pipe. Get it? If not, link to the following or similar explanations of the existentialist concept:
https://en.wikipedia.org/wiki/The_Treachery_of_Images
What is important to understand is that Judge Hughes (of Visual Memory v. Nvidia) possesses a rare and magical field direction indicating compass.
Instead of the usual N, E, S, W markers found on a normal compass, his magical compass denotes the major circle points as A, A, A and A; where “A” means Abstract. A select few angular micro-strokes on the circle get the NA notation, meaning Not Abstract. Only judge Hughes and those secretly sworn into his power group know where those are. They know them when they see them.
Whenever confronted with the words of a claim, the good Judge pulls out his magical mystical compass, rides it above the words and its needle quickly and without belaboring itself too much aligns with the hidden field forces of the words and tells the Judge what those words are “directed to”.
Yes, of course it’s almost always “A”. But that is not the fault of the good Judge. It is the reality of the universe as reflected by the angle markings on his pocket compass.
No point swearing to the G-d you worship. It is as He hath willed it. The universe is just full of mysterious abstract misdirections.
Which came first, the chicken or the unscrambled egg?
The abstract idea or the adding on of the generic computer?
The irrational thought or the false logic?
Ignorance or basking in its bliss?
Those skilled in the rhetorical art of false choice menus will appreciate that many a proposition are defective even before they are hatched. For example, by proposing that the abstract egg came first and then the generic hen was added on to sit on that egg for reason of conventional and routine development ignores the possibility that the egg came from someplace, perchance a non-abstract and non-conventional laying hen. A something more of significance to those who can comprehend it.
the question is whether the claims are an independent shell with no connection to the specification (a black box onto itself) or whether the claims are part of an integral whole in which the specification concludes with the claims.
Appellate Judge HUGHES(dissenting) argues:
"Claim 1, for instance, claims a system comprising a main memory and a cache connected to a bus, with a "programmable operational characteristic" that "determines a type of data stored by said cache." '740 patent col. 6 11. 28-38. The claim does not provide any specific limitations on the "programmable operational characteristic," making it a purely functional component. The "programmable operational characteristic" is nothing more than a black box for performing the abstract idea of storing databased on its characteristic, and the patent lacks any details about how that is achieved. The remaining computer elements in the claims (cache, memory, bus) are nothing more than a collection of conventional computing components found in any computer."
Blindsight is of course 20/20 times * zero (0).
The subject US Patent 5953740 dates back to 1990 and
uses an archaic Computer Design descriptor Language known as CDL
The microfiche of the patent describes in detail the modules of Fig. 2 using the CDL language.
Yes, you sucker-born-yesterday inventors worked hard to come up with your inventions in the first place.
Yes, you gullible-believer inventors paid large moneys to your attorneys to scriven up the detailed applications.
Yes, you trusting inventors fought hard with the Patent Office to get your claims allowed (and paid the Patent Office AND your lawyers for the entire process).
It was a hard fought upward battle.
Yes, the US Government stamped your applicationsapproved and led you to believe you had "exclusive" rights in "your" inventions.
Yes, the US Constitution says its your invention or discovery and the government is supposed to "secure" exclusive rights for you in "your" respective invention or discovery.
But as they say, ha ha, a new sucker is born every day.
Easy come, easy wipe out.
"In sum, all the claims are directed to the abstract idea of receiving, authenticating, and publishing data, and fail to recite any inventive concepts sufficient to transform the abstract idea into a patent eligible invention."
Science requires that the proponent of a new theory/hypothesis lay out all his/her cards on the table so that others can rigorously test it.
If you say that you have a new data encryption scheme that others cannot easily crack with current technology then put it out on the table and let the hackers have a go at it.
What Mr. Levy is proposing (in this web positing) is anti-science. It is the anathema of real science for biotech companies to forever hide their secret sauces and not let others test them.
This exactly why patents are necessary.
So that real science can take place on a transparent playing field.
It would not be an insurmountable problem if it were JUST the leader of the "free world" who was scientifically illiterate.
Or if it was also the Supreme judges who were scientifically illiterate. (Which they clearly are.)
It's the fake news aping press that's the problem.
Even these critters, the ones who are supposed to stand guard at the gates and yell about the Emperor marching with no clothes on in cases where all other checks and balances have failed, they too can't get anything right. That is a grand scale insurmountable problem.
Take this Gawker article where the author gets it 180 degrees wrong.
It wasn't Justice Scalia who was half way off his rocker. It was the rest of the Supreme bench and the reporter as well. Scalia to his credit was having a tinge of doubt where in fact the rest of the Court was in the wrong chemistry class (the fake science class). An "isolated" molecular fragment is not identical to the long chain compound from which it was selectively cleaved. (Hint: methane is not "identical" to heptane. If you think otherwise you fail organic chemistry 101.)
Or take this other article posted under the name of the American Council on Science and Health.
They got part of it right in noting: "The [Supreme Court] Justices tried to simplify the argument by making analogies to things like chocolate chip cookies, Amazonian jungle plants [plucking leaves off banana trees] and [lathing] baseball bats."
But then they go on to back up one of the Justices: "Justice Sonia Sotomayor said that if someone invented a new way to extract the ingredients of a cookie, a company still wouldn't be able to patent its ingredients. I can't imagine getting a patent simply on the basic items of salt, flour and eggs, simply because I've created a new use or a new product from those ingredients, she said."
At the end to their credit, they question the wisdom of the Myriad decision: "... preventing innovators, even (or especially) in biologicals and biotechnology from making sufficient profit on their work will have a strong chilling effect on R&D in this field."
However, consider next this Richard Dwakins Foundation article... "In one puzzling opinion, he [Justice Scalia] admitted that he wasn’t sure whether he accepted the reality of molecular biology. In another, he wrote that “creation science” (that is, creationism) was a legitimate “body of scientific knowledge” and that public schools can teach “whatever scientific evidence there may be against evolution.” And in a dissent contesting the federal government’s duty to combat climate change, he shrugged that the court’s “alarm over global warming may or may not be justified.”(to be continued)
One ancient adviser said, "Forgive them for they know not what they do."
Is that the correct stance?
Do they forgive others as they willst forgiveness unto themselves?
Or maybe we should say, "Understand them for they know not what they do, but forgive them not"?
Welcome to the Judicial Hall of Patent Pending Shame.
First up on our wall of shame is Justice Stephen Breyer, philosopher king and historian extraordinaire .... According to Breyer J. Egypt's King Tut had an all powerful Abacus Man. Breyer's 'Bacus Man could do extraordinary things. Like tallying up all the chits in Egypt's entire kingdom on his tiny 4 beads per symbol bronze abacus machine. Breyer's 'Bacus Man could also telepathically connect instantaneously to all corners of the realm so that he knew in real time when "solvency" ceased to exist for any of the kingdom's numerous accounts. What a man!
We should try to "understand" the debating points made by the Honorable Breyer J. After all, he majored in "philosophy" while going for his undergraduate at Stanford and then in a combination of "philosophy" and "economics" at Magdelen College at Oxford University.
Mind you there is nothing "fundamentally" wrong with studying "philosophy" and "economics" except for one minor detail.
You see, these areas of scholastic effort are wholly divorced from physical reality.
They don't account for the friction between the shell beads and bronze rods of the Tut's 'Bacus Man abacus. Or for the amount of energy needed to make those beads whiz back and forth along the metal rods as the chit data comes flashing in by carrier pigeon at 100,000 bead bits per second. Then there is the wear and tear on these parts and time out for repair and replacement.
Of course, in Plato's cave all is merely shadow flashing as illusions on the cave wall. So Breyer is freed from concerns about physics, metallurgy, chemistry, thermodynamics, Shannon's theory of information transfer and what not. He can make up fantastical hypotheticals that include characters with omnipotent powers and tunnel visions. The Supremes themselves have tunnel vision when they don't want to admit that Le Roy v. Tatham (SCt. 1852) got "metallurgy" wrong. The strain cooled lead is different from cast lead. Strain cooled lead can have a significantly different micro-structure. But heck. What's reality got to do with it when you enter Philosopher Breyer's cave?
Second up on our wall of shame are the dumbnamic duo of Justice Anton Scalia and Clarence Thomas.
No one celebrates the recent passing of Justice Scalia.
However, that said, it can't be ignored that this "originalist" deliberately ignored the Constitutional recognition of inventors having "rights" to "their" respective discoveries per Article I, section 8, clause 8 of that sacred document.
Scalia writes: "I join the judgment of the Court, and all of its opinion except Part I—A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief.It suffices for me to affirm, having studied the opinions below and the expertbriefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature." --ASSOCIATION FOR MOLECULAR PATHOLOGY v. MYRIAD GENETICS, INC. (SCt. 6/13/2013)
JUSTICE THOMAS delivered the opinion of the Court and writes: "For the reasons that follow, we hold that a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, ... the study of genetics can lead to valuable medical breakthroughs. ... Myriad after it made one such medical breakthrough. Myriad discovered the precise location and sequence of what are now known as the BRCA1 and BRCA2 genes. ... Myriad was not the only entity to offer BRCA testing after
it discovered the genes. ... Judges Lourie and Moore agreed that Myriad's claims were patent eligible under §101 but disagreed on the rationale. Judge Lourie relied on the fact that the entire DNA molecule is held together by chemical bonds and that the covalent bonds at both ends of the segment must be severed in order to isolate segments of DNA. This process technically creates new molecules with unique chemical compositions. ... Myriad did not create or alter any of the genetic information encoded in the BRCA1 and BRCA2 genes. The location and order of the nucleotides existed in nature before Myriad found them. ... Myriad did not create anything. To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention. ... Myriad found the location of the BRCA1 and BRCA2 genes, but that discovery, by itself, does not render the BRCA genes "new . . . composition[s] of matter," §101, that are patent eligible. ... "
And by advantage, I don't mean simply in the business world.
Calling inventors, autistic savant lambs is an extreme exaggeration of course. Most are not Rain Man. Instead some may have a slight tint of introversion, preferring to deal with things as opposed to people.
There are however, many a ruthless business people all too eager to take advantage of the lack or lessening of people skills among the inventor class. That constitutes taking advantage at level one of Dante's underworld.
Way way lower, deeper in the bowls of Dante's realm, reside those who are supposed to be acting in loco parentis, to protect the legal rights of the inventor class. These include the courts, the Patent Office and the IP centric academia.
We are talking about those who, instead of protecting, take gleeful joy in dissecting and destroying the vulnerable inventor class.
The mere fact that the inventor applied coined labels to conventional structures does not make the underlying concept inventive.
See, e.g., Alice, 134 S. Ct. at 2352 n.2, 2360 (finding the claims abstract despite the recitation of technical sounding names such as "shadow credit record[s]" and "shadow debit record[s]").
Now, in a rash of inventor loathing opinions, we see the federal judiciary thrashing inventors for having the audacity to coin terms for things that the inventors believe to be new, useful and nonobvious.
That begs the question. Who fostered this rising wave of hatred among the judiciary and how did they do it?
One area in which the SCOTeti regularly convert the "I heard it" fantasies into unassailable "facts" comes in the area of patent law.
Take the Wonderland decision in Alice v. CLS (please) as an example. The court has heard, from trustworthy sources, trust worthy we tell you, that Mother Nature has "laws" that she hands down from Mount Olympus, that Mother has "phenomenon" that are "natural" and thus hers alone, not things due to human intervention. Also the court has heard, that human "minds" can have "abstract" ideas. ...
Supreme Court Justices are susceptible to all these vices (shallowness, vanity, narcissism, ...) and succumb to them on a regular basis.
Yes. They all have very high IQ’s and are among the top 10% smartest people in our population.
But so too are all the young among our population who pursue advanced studies in the hard sciences (e.g. physics, chemistry, electronics, …). Why does it take our young ones (those with super high IQs) so many years to “get it”? Answer: because it’s hard hard stuff and our biological brains can only do so much and not much more.
If you were a Justice sitting on the SCOTUS and all your “friends” (amici curie) complemented you on how smart and clever you are and convinced you that molecular biology is no more complicated than plucking a leaf off a tree, wouldn’t you believe them?
And if some non-“friends” tried to explain to you that molecular biology is hard and that is why our high IQ youths take so long to earn their PhDs and that is why you, one of the “Supremes” may never understand it; wouldn’t you discount everything they argue?
So sure. At the end of the day all the complex stuff reduces to “generic” computers doing no more than conventional and routine operations, ones that 2nd year coders do every weekend without breaking a sweat. All those so-called smarty pants inventors out there and their devious scriveners cannot possibly be smarter than we the Supreme SCOTeti. They are merely trying to hoodwink us with their voodoo witchcraft and obfuscating language.
Aha. We can see right past them by devising a simple framework for witchcraft detection. First we dangle an oblong magic shard at the end of a string, slowly move it over the claim and give it a twirl. If it points in almost any direction but one secret one, the claim is clearly “directed to” skullduggery.
But just to be fair (because after all, our mirror tells us we are the fairest of them all) we will apply a second test. We submerge the claim in holy witch water to see if it has that elusive “something more”. You see, witches are made of wood and thus they float. Only those that have that “something more” stay under.
So after all that, why are all those cry baby inventors complaining? We have been imminently fair. After all, “we” are Supreme and in that top 1% number. Clearly they are not. Sigh.
Primary interests are in global scale issues like Peak Oil & Global Warming. Why do their "eyes glaze over" when you try to tell them? Demise of science, logic and the US patent system is another area of interest.
