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"
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.
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?
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.
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?
Patents that incentivize broader communication actually chill free speech? Really?
Let's put on our clown thinker caps, step back a bit, and ponder on that.
Before there was the telegraph. (Thank you Samuel F. Morse.)
Before there was the telephone. (Thank you Alexander G. Bell --or Elisha Gray?)
Before there were emails via Internet and cell phone. (Thank you unappreciated many others.)
One had to rely on snail mail (rush shipped by pony express).
Or face to face, if perchance such meeting ever happened.
Then a bunch of miracles happened.
Inventors.
Inventions.
Long distance real time communications!
All spurred by patents.
But Creepy Clown No. 1 at the Fed wants you to believe the opposite.
That inventions "directed to" improving communications should NOT be patent eligible.
'Cause you see, cause ipso logistico absurdum, patents that incentivize improving real time collaborative communications stifle at least one clown's First Amendment rights to fool everyone else!
Patent Docs opines on IV v. Symatec here
"In terms of determining what is conventional, it seems that the Court can characterize the claims in a way to achieve a desired outcome."
"Judge Mayer’s concurrence is worth reading in full because he delves into the political and philosophical arguments that are behind every patent-eligibility decision, but that are often not openly discussed." --swip_report
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.
