Genuinely Insignificant Thoughts from Genuinely Insignificant Minds

SubTitle: Mayo v. Prometheus or How I stopped worrying and learned to love the Idiocracy)

(The above first link is to all things Mayo v. Promo (a Google search). This following link: here provides the decision in HTML accessible format as opposed to PDF format here: Mayo v. Promo. Left click on image at right to see list of Briefs filed before the US Supreme Court.) Click on summary bullet number to jump to section.

It is the patriotic duty of an informed public to loudly protest when a governmental body, even the US Supreme Court, comes out with a Stinko-da-Mayo result such as this one.

Overview: Sadly, what this post will show is that:

• 1. The US SCt does not know, or intentionally misinforms on what a "patent" is (patents are not self executing monopolies), • 2. The US SCt does not know, or intentionally misinforms on what function a "patent claim" is supposed to perform, • 3. The US SCt does not know, or intentionally misinforms on what a "method step" is, • 4. The US SCt does not know, or intentionally misinforms on what a "Law of Nature" is • 5. ... (to be continued/updated)

(Left & Right barbed wire images will jump you Back & Forward in section numbers)

Why even care?
Because soon they will be hanging a new BANNER,
"NoT-BIO-DH"
draped across the entrance to the SCt. Building:
(Not To Be Invented Or Discovered Here)

Indeed, a claim for "Barbed Wire" recites nothing more than Laws of Nature:


1) A ductile metal bent into shape retains its shape
2) If you bump into a sharp point, you will bleed

American inventors are being slowly bled to death by one unkind SCt. cut and then a thousand more like it: Benson, Bilski, Prometheus, ... and what is next?

Perhaps a blog post that sums up the situation most succinctly (for patent experts) is Patent Doc's lament: "We have met our 'Benson' and its name is 'Mayo' " (paraphrased). For more Patent Doc laments, see here

__________________________ Detailed analysis:

In the "Legal Universe", when the US Supreme court speaks, its words trump the very "Laws of Nature".

On the other hand, in the more humble world of "Science" (should you even be so lame brained as to believe in that most-obvious of "hoaxes" /sarcasm),

(1) Mother Nature always bats last,

(2) always bats first and

(3) is at bat throughout the almost-endless baseball game.

In that game, she often moves in a way that blocks scientists from seeing exactly how (or getting to understand exactly how) Mother Nature bats.

If lucky, they get a glimpse of the ball's trajectory after Nature has cracked her bat against it.

Then they go at it by making up stories, rules, abstract theories about what they think Mother was doing, how she was doing it and what she will do if confronted in the future with similar inputs. (The last part is called predictive modeling --calling the ball's trajectory even before Mother Nature bats its out of the ball park).

Mother doesn't care one owl's hoot about what the scientists' abstract theories say.

She does her thing irrespective of the noises the monkeys make amongst themselves.

Mother has no plans of coming down from the mountain top with stone tablets in hand, merely for the sake of proclaiming her "laws" to one tribe of monkeys or another. No one knows if her laws can even be expressed in a manner that the human mind can grasp. That possibility is one that Mother does not fret over.

Stepping boldly forward into this arena there come the "Magnificent Nine" (M9). These 'Wisdom-spewing' lords and ladies arrive gowned in black robes and steeped in learned chanting of laws of the 'legalized mind'.

They stare unblinkingly at Mother Nature as she stands in the batter's box. They throw their curve straight at her face, fully expecting Mother to step back and to show some humble deference before the awesome powers of the "Magnificent Nine" (M9). They utter legal-eagle incantations about Her "laws". They fail to see that she steps back not. Their curve balls vaporize into hot air before even coming close to Mother Nature's batting position.

Read more ... here Read the Supreme Court opinon itself by clicking the below: MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC.

One more herring, not red

Link to the engrossed version of HR 1249

Link to judiciary.house.gov page for HR 1249

Some random bits of herring:

‘‘§ 115. Inventor’s oath or declaration
‘‘(b) REQUIRED STATEMENTS.—An oath or declaration under subsection (a) shall contain statements that—
‘‘(2) such individual believes himself or herself to be the original inventor or an original joint inventor of a claimed invention in the application.

‘‘(c) ADDITIONAL REQUIREMENTS.
—The Director may specify additional information relating to the inventor and the invention that is required to be included in an oath or declaration under subsection (a).

‘‘(2) COPIES OF OATHS, DECLARATIONS, STATEMENTS, OR ASSIGNMENTS.—
... the Director may require that a copy of the executed oath or declaration, the substitute statement, or the assignment filed in connection with the earlier-filed application be included in the later-filed application.

SEC. 10. FEE SETTING AUTHORITY.
(a) FEE SETTING.—
(1) IN GENERAL.—The Director may set or adjust by rule any fee established, authorized, or charged under title 35, United States Code, or the Trademark Act of 1946 (15 U.S.C. 1051 et seq.), for any services performed by or materials furnished by, the Office, subject to paragraph (2).

‘‘(b) MAINTENANCE FEES.—
‘‘(C) Eleven years and 6 months after grant, $4,110.

SEC. 33. LIMITATION ON ISSUANCE OF PATENTS.
(a) LIMITATION.—Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.

Passed the House of Representatives June 23, 2011.

Nine Blind Bilski Justices, None with a stick, None with a Clue

Over at the IP WatchDog site, I posted the below somewhat irreverent proposal:

   

If I were to draw a picture of the 9 U.S. Supreme Court Justices circling the Bilski v. Kappos elephant, I would ...

 

   

place each one outside the 3 point basketball circle relative to the elephant and put a Geiger counter or compass in the hand of each blind Justice whereby each senses the “spin” around the Bilski claims but none of them actually touches and “gets it” directly (by hand or even with a blind man's walking stick). In this hypothesized cartoon, one Justice would be saying, “My Geiger counter says it ‘feels’ that the Bilski elephant is too “abstract”. I say the physical steps in Bilski were never there to begin with and certainly I don’t see them.” Another would say, “My sundial is foreshadowed by an ancient sun and indicates that the Founding Fathers would have frowned on this sort of progress. The business of patents is not business –irrespective of whatever the word “business” might mean”. A third would say, “My MRI spin machine indicates ... (Read more)

 

MOT is Apple Sauce

Outgoing Supreme Court Justice Stevens failed to garner a majority in Bilski v. Kappos. (Thank goodness.)

Today's decision was instead authored by a Kennedy-led "consensus" majority. The compromise-driven coalition majority clung to a mere 16 pages of veiled revelation so as to not lay bare their internal disagreements and foggy apprehensions about what clueless footholds might lie under the swampy murk of the patent eligibility world.

As usual, lay folk will want to know: What does it (the Bilski v. Kappos decision) mean?

Here are some semi-cryptic answers:
1. MOT has been whipped into apple sauce --still good for the gander, but not gravy for the patent-killing goose
2. The concrete sidewalk on State Street is demolished
3. Opaqueness is the new transparency
4. Bilski is a teacher and his claims "explain", tutor and educate.
5. "Invention" is to be divined through the eyes of the beholding judge/ examiner and not in accordance with claims read as a whole
6. As for Bilski himself and poor Yorick, alas we knew them well but they must hang.

Of course, to "make apple sauce" of something means to mash it up, to run it through the blender so that the original is no longer recognizable.


Bilski aficionados know that "MOT" stands for the Machine-Or-Transformation test, This was the eligibility test put forth by the lower US appeal court, the Federal Circuit. (See In re Bilski (Oct. 30, 2008)) as being the "exclusive" and only test for eligibility of a "process" claim under section 101.

The US Supreme Court has today mashed up the Fed. Cir.'s MOT test such that it is no longer usable for knocking down another's patent or application.

Also, Mott's happens to be a brand name of an apple sauce.

To say that MOT is no longer gravy for the patent-killing goose means that although MOT has been de-fanged as a test for knocking down someone's business/ software patent under 35 USC 101, the other edge of the MOT double edged sword remains sharp and wield-able. Patent owners can still use MOT to validate their patent claims under section 101.

This is good news for those seeking patents for methods of doing business and methods using machines that obey "software" commands.

Opaqueness is the new transparency.
What does that mean?
The US Supreme Court today "affirmed" the Fed. Circuit decision.
But in actuality, they reversed it.
Welcome to the new Mis-Information Age where words mean the opposite of what they say. Alice of the Wonderland Mirror would be right proud. More to follow. ... here

In the mean time if you wish to see what other bloggers are saying about Bilski, here is a link to such other views.

The Horse Whisperers

What can one say about the 11/9 oral hearings at the US Supreme Court in the matter of Bilski v. Kappos?

Were they just joking or is this the way they actually think? Only time will tell.

Bilski hearing transcript (as text)

Google of Latest blogs re Bilski patent

The 3-liner the USPTO doesn't want you to know about

On rehearing the Board stated that Buff’s wire 48 is a “transverse member” and not a "wire leg", and therefore that it [the member] need not have a displacing offset [as required by the claims]. Mr. Skvorecz states, and we agree, that Buff’s wire 48 is a "leg" of the Buff [prior art] structure. The Board’s contrary statement is unsupported by any evidence. In Re Skvorecz, (Fed. Cir. Sept 3, 2009)

In re Bilski / Part 2 / The fundamental fundamentals of "fundamental principles"

The In re Bilski majority notes: "Specifically, the [Supreme] Court has held that a claim is not a patent-eligible "process" if it claims [1] "laws of nature, [2] natural phenomena, [or] [3] abstract ideas." ...Such fundamental principles [footnote 5] are "part of the storehouse of knowledge of all men . . . free to all men and reserved exclusively to none." ... ("A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right.") --quoting Le Roy v. Tatham, 55 U.S. 156 (1852)

One must ask what the urgent need was for the Bilski majority to invent new terminology ("fundamental principle") for covering up and hiding the original triad of:
[1] "laws of nature",
[2] "natural phenomena", [and]
[3] "abstract ideas"?
Read more ...