Mirror mirror on the wall, we are the fairest of them all

Patent cases expose a number of embarrassing attributes about we human creatures.

First we tend to be very vane. Ninety percent (90%) of us think we place in at least the top 50% of our population if not in the top 10% or top 1%.

Second we are incompetently blind to almost all the things we are incompetently blind to. (How many of you are picking up the IR wavelengths now coming off your screen or hearing the ultrasonic vibrations?)

Third we crave social admiration. (Mirror mirror on the wall, who is the most admired of us all?).

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.

Rise of the New Romantics

It is not at first obvious, this newly re-surging undercurrent of disdain for scientists, inventors and tools of modernity such as computers, social media networks and biotechnology.

For historians however, the emergence of a counter culture reaction to science and enlightenment is no surprise. Ours is not the first time that a social movement (i.e the Luddite movement) emerged to reject rational thought and instead adopt a mystic worship of things more "natural".

Back in the mid-1800's, an emergence of a similar shift to "Romanticism" is seen in the anti-inventor bent of the Supreme Court patent case of Le Roy v. Tatham (SCt. 1852). The nature adoring majority in that case saw the inventor's claim to the essence of the leaden pipe as reaching in to greedily grasp a "natural" fundamental of Mother Nature herself. They saw in Mother Nature, certain "principles", "fundamentals", "natural elements of power" and motives that they believed should be free for all and not the exclusive domain of another Frankensteinian tinkerer in the Alchemical arts.

Still under construction ... re other Law of Nature cases

Origins of Alice, The Gobbledygook and Illuminatiasm of Le Roy v. Tatham

As the more geeky of patent law watchers know, the "abstract ideas" part of the Alice in Blunderland Supreme Court (SCOTUS 2014) decision finds its roots in Le Roy v. Tatham (1852).

One might assume that the Floundering Ancient SCOTeti Fathers of the 1852 version of SCOTUS were more reserved, scholarly and enlightened than our current crop of "New Romantics" like Clarence the Clown and 'Bacus Brain Breyer. But not so.

They too, at the dawn of the Industrial Revolution misunderstood science, technology and instead had mystical Illuminati beliefs in 'principles', symbolisms, confluence with Mother Nature and abstractions emanating from the shining eye on top of the pyramid of power. They write:

“A patent for leaden pipes would not be good, as it would be for an effect, and would, consequently, prohibit all other persons from using the same article, however manufactured. Leaden pipes are the same, the metal being in no respect different. Any difference in form and strength must arise from the mode of manufacturing the pipes. The new property in the metal claimed to have been discovered by the patentees, belongs to the process of manufacture, and not to the thing made.” --at 176

Clearly the SCOTeti of days yore did not, could not understand metallurgy or product by process. Nonetheless they considered themselves smarter than everyone else, even the inventor a.k.a. discoverer. How times have changed (not).

The 1852 SCOTeti go on to proclaim:

"The word principle is used by elementary writers on patent subjects, and sometimes in adjudications of courts, with such a want of precision in its application, as to mislead. It is admitted, that a principle is not patentable. 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. Nor can an exclusive right exist to a new power, should one be discovered in addition to those already known. Through the agency of machinery a new steam power may be said to have been generated. But no one can appropriate this power exclusively to himself, under the patent laws. The same may be said of electricity, and of any other power in nature, which is alike open to all, and may be applied to useful purposes by the use of machinery.

In all such cases, the processes used to extract, modify, and concentrate natural agencies, constitute the invention. The elements of the power exist; the invention is not in discovering them, but in applying them to useful objects. Whether the machinery used be novel, or consist of a new combination of parts known, the right of the inventor is secured against all who use the same mechanical power, or one that shall be substantially the same.

A patent is not good for an effect, or the result of a certain process, as that would prohibit all other persons from making the same thing by any means whatsoever. This, by creating monopolies, would discourage arts and manufactures, against the avowed policy of the patent laws.

A new property discovered in matter, when practically applied, in the construction of a useful article of commerce or manufacture, is patentable; but the process through which the new property is developed and applied, must be stated, with such precision as to enable an ordinary mechanic to construct and apply the necessary process. This is required by the patent laws of England and of the United States, in order that when the patent shall run out, the public may know how to profit by the invention. It is said, in the case of the Househill Company v. Neilson, Webster's Patent Cases, 683, "A patent will be good, though the subject of the patent consists in the discovery of a great, general, and most comprehensive principle in science or law of nature, if that principle is by the specification applied to any special purpose, so as thereby to effectuate a practical result and benefit not previously attained." In that case, Mr. Justice Clerk, in his charge to the jury, said, "the specification does not claim any thing as to the form, nature, shape, materials, numbers, or mathematical character of the vessel or vessels in which the air is to be heated, or as to the mode of heating such vessels," &c. The patent was for "the improved application of air to produce heat in fires, forges and furnaces, where bellows or other blowing apparatus are required."

In that case, although the machinery was not claimed as a part of the invention, the jury were instructed to inquire, "whether the specification was not such as to enable workmen of ordinary skill to make machinery or apparatus capable of producing the effect set forth in said letters-patent and specification." And, that in order to ascertain whether the defendants had infringed the patent, the jury should inquire whether they, "did by themselves or others, and in contravention of the privileges conferred by the said letters-patent, use machinery or apparatus substantially the same with the machinery or apparatus described in the plaintiffs' specification, and to the effect set forth in said letters-patent and specification." So it would seem that where a patent is obtained, without a claim to the invention of the machinery, through which a valuable result is produced, a precise specification is required; and the test of infringement is, whether the defendants have used substantially the same process to produce the same result.

Vanity be not Proud

Is it "maths" or processing of real physical electric signals (i.e. electrons) with real electronic circuits?
Some believe the battle line for debate is drawn at that intersection.

Perhaps though, the battle line plays out at the intersection of judicial vanity and judicial ignorance.

Most judges consider themselves to be very smart (High IQ). And they are.

But High IQ alone is not enough. No matter how smart one is, no matter how credentialed, the human brain (a biological organ) is of finite size, of finite speed and of finite (as well as age diminishing) ability to rewire itself (a thing referred to as plasticity).

No matter how hard they try, many an elder judge (or other arbiter) will never comprehend "computers," will never grasp modern biogenetics, will never fully appreciate modern physics and science.

There is a reason why almost all of our best and brightest (same high IQ) young PhD earners take so many years to finish their studies and finally get into the work world.

It’s because this is hard hard, brain straining stuff. The biological human brain organ is not a silicon based digital electronic computer and vice versa the computer is not a replica of the human brain. The notion of abstraction, of “mind” and of being able to do stuff with pencil and paper are delusions. These delusions appeal to the judge’s vanity by making them “feel” smart. (Gee now I get it, molecular biology is just like plucking a leaf from a tree.)

But they are not anywhere near that smart and all knowing. They are simply parading proudly in arrogant, asinine and vain ignorance. They just don’t know it. We see it. They don’t. Will they ever see it? (Ask the Bruce Willis character in the movie, “The Sixth Sense”. Spoiler alert, he is one of those ignorant lost ghosts.)

The Post Modern Inquisition

The purpose of an Inquisition is to create general hysteria, ferret out those who might pose a threat to The Inquisitive Powers That Already Be (TIPTAB) and establish a permanent bureaucracy for sustaining the Inquisition.

Inquisition panels often use the pretext of law and regulations. However, their true purpose and effect is to create a climate of Fear, Uncertainty and Doubt (FUD) while consolidating the power of final judgment exclusively to themselves. (Only we can know it when we see it, that elusive something significantly more that is needed for you to prove your innocence, that you are not a member of a very very (believe us) short list of suspect categories comprised of: (1) witches, (2) warlocks, (3) radicalized islamo-facists, (4) sexual deviants, (5) fake news reporters, (6) fake inventors, (7) devil worshipers, (8) terrorists, (9) heretics, (10) trolls, (11) apostates and (12) ....)

Sounds just like what PTAB death squads do, right?

Well D'oh. Yeah. Is that a surprise?

Confluence of Fibs and Fabulations

Before we start our leisurely white waters rafting trip down that roaring river of level four lies and level five false fabrications, please remember to put on your sanity safety helmet lest you fall, flail and lose sight of that which you should have known in the first place before we started tripping down into Alice's Falls. It's a bottomless pit of fibs, fabs, lies and deceptions.

We shouldn't, after all, trust them who are supposed to be here to protect us when they tell us they are from the government and they arehere to protect us. Beware these deceivious scriveners of new false law. Beware their jabberwhack skulduggery.

Take for example what Clarence the Clownish rafting guide tells us upon embarking down through Alice Falls about us always having had for over 150 years these newly frameworked exception rules that never existed beforehand. (Hold your breath.)

"[*1] We have long held [oh really? that long?] that this provision [§101] contains an [*2] important implicit exception: Laws of nature, natural phenomena, and [*3] abstract ideas are not patentable." Association for Molecular Pathology v. Myriad Genetics, Inc., 569 U. S. , (2013) (slip op., at 11) (internal quotation marks and brackets omitted). We have interpreted §101 [*4] and its predecessors in light of this exception for more than 150 years. Bilski, supra, at 601-602; see also O'Reilly v. Morse, 15 How. 62, 112-120 (1854); Le Roy v. Tatham, 14 How. 156, 174-175 (1853).

... in applying the §101 exception [*5], we must
[most assuredly indefatigably must] .....
(click below "Read More" for more)

You have proven nothing, I haz "alternative facts"

One anti-inventor gadfly writes with respect to patent "eligibility" and the "information" arts:

“Nobody has “proven” anything ……… smart people are all over the map on this clearly political question.”

This gadfly appears to believe that everyone can have their own “alternative facts” in their privately owned “alternative universes” and that's OK because such is politics as usual and politics trumps reality.

However,
FACT: US patent law is encoded in Article 1, section 8, clause 8 of the US Constitution and in Title 35 of the US Code (e.g. 35 USC 100, 101, 102, 103 and 112 being the most important sections with respect to definitions and examination of patent applications in the USPTO)

FACT: 35 USC 101 is a statute passed by the US Congress. It states, “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 [meaning 35 USC].”

FACT: The US Constitution provides for separation of powers and vests the legislative power exclusively in the hands of Congress, not in the Supreme Court.

What was being discussed in the associated blog was the grabbing of illegitimate power by the Supreme Court (SCOTUS), by the lower federal courts (CAFC and DCs) and by the US Patent Office (USPTO) to write their own laws, the so-called Alice/Mayo framework laws that transform a solid MRI “machine” into an abstraction.

What was being discussed was that they (SCOTUS and minions thereof) have also taken over the fundamentals of science by conjuring up these so-called “fundamental building blocks of ingenuity.”

Yes in one sense this is politics because it involves the grabbing of power. But it is also law in that it raises the question of the Constitutionality of this power grab.

And it is also a question of how “smart” these people are because they are destroying the American patent system, tearing down the fabric of America itself (obliterating separation of powers) and they are too full of themselves to understand that this is what they are doing. Forgive them (not) for they know not what they do.