Rise of the Chimerical PHOSITA

In this post-modern patent world,
our judicial truth seekers have cobbled together a new creature.

Behold Super-PHOSITA
(the alien cyber-robotized super humanoid who came to this planet in order to pretend to be a meek and mild artisan having "ordinary" skill in his/her specialized field of routine endeavor, but who underneath it all is actually ... Shhh. Don't tell. It's a secret.).

Super-PHOSITA is all knowing and all powerful.

Super-PHOSITA is at the same time meek, mild and ordinary.

Super-PHOSITA spends his/her time engaged in the "routine" activities of his/her "art".


Super-PHOSITA simultaneously spends his/her time ruminating about ALL publications, analogous or in his/her field and ALL possible combinations of these publications in constant look out for recognition of those permutations which are "obvious" and those few which are not.

See, 2013-10-30 12-1611 PATO RANDALL MFG. v. REA [OPINION] Precedential

"In KSR, the Supreme Court criticized a rigid approach to determining obviousness based on the disclosures of individual prior-art references, with little recourse to the knowledge, creativity, and common sense that an ordinarily skilled artisan would have brought to bear when considering combinations or modifications. KSR, 550 U.S. at 415-22. Rejecting a blinkered focus on individual documents, the Court required an analysis that reads the prior art in context, taking account of “demands known to the design community,” “the background knowledge possessed by a person having ordinary skill in the art,” and “the inferences and creative steps that a person of ordinary skill in the art would employ.” Id. at 418. This “expansive and flexible approach,” id. at 415, is consistent with our own pre-KSR decisions acknowledging that the inquiry “not only permits, but requires, consideration of common knowledge and common sense.”"

"Once it is established that a prevalent, perhaps even predominant, method of stowing a bulkhead panel was to raise it to the ceiling, it is hard [[for us post-modern judges to now ]] .. see why one of skill in the art would not have thought to modify Aquino to include this feature— doing so would allow the designer to achieve the other advantages of the Aquino assembly while using a stowage strategy that was very familiar in the industry."

If I don't Know "IT" When I see "IT", then Abstract must "IT" be

Most everyone has heard of the US Supreme Court Judge who proudly admitted that he could not define a certain something but nonetheless, he knew "IT" when he saw "IT".

Now comes a new generation of jurisprudential savants
with a similar line about Information Technologies ("IT"):
'If I don't Know "IT" When I see "IT", then Abstract must "IT" be'

First let's peek at the "IT" patent they refer to:
U.S. 7,013,284 ("Component based interface to handle tasks during claim processing ")

Figure 2A of that patent shows a "client" and a "server".
The server hosts a "database".

Here is a small block taken out of the long and complex text of the specification. As can be seen, a "database" involves "records" and "searches" and result retrival issues:

Large Result Set
When retrieving records from a database, if the search criteria is too broad, the amount of data required to be retrieved from the database and passed across the network will affect user perceived performance. Windows requesting such data will be slow to paint and searches will be slow. The ... By designing the controllers that present the database queries intelligently, the queries that are presented to the database server do not return a result set that is large enough to affect user perceived performance. ... The scrolling retrieval of a large result set is the incremental retrieval of a result subset repeated as many times as the user requests or until the entire result set is obtained. Results are retrieved by the Bounded Query Approach where the first record is determined by a where clause with calculated values.

Here is what the majority understands in the subject case of ACCENTURE GLOBAL SERVICES v. GUIDEWIRE SOFTWARE

Accenture only points to system claim 1’s inclusion of an insurance claim folder, a task library database, a server component, and a task engine in attempting to show that the system claim is meaningfully different from the ’284 patent’s method claims. However, these software components are all present in the method claims, albeit without a specific reference to those components by name. ... The insurance transaction database of method claim 8 also stores insurance claims in a structured environment and decomposes them into different levels. Thus, the claim folder only provides insignificant activity that does not meaningfully differentiate the system claim from the method claim. ... the task library database is simply a formalized collection of the rules that are present and applied to the insurance transaction information in method claim 8.

Simple is as simple talks.
(Particularly when one sits on the "bench")

The majority doesn't even know how to point to the correct figure (2A):

Further, although the patent’s Figure 1 shows a schematic diagram of the invention, one that includes computer hardware, the schematic’s hardware is merely composed of generic computer components that would be present in any general purpose computer.

And finally, the coupe de grace:

Indeed, in this case “[t]he system claims are [akin] to stating the abstract idea [of the method claim] . . . and adding the words: ‘apply it’ on a computer.” CLS Bank, 717 F.3d at 1291 (plurality opinion) (citing Mayo, 132 S. Ct. at 1294). Because the system claim and method claim contain only “minor differences in terminology ... they rise or fall together.

Hunting for FOXSEs under Troll Tale Bridge

Once Upon a Time ...

a FOXSE
was asked to
write a business plan
on cleaning out the hen house.

The FOXSE (What is a FOXSE?)
proposed to eliminate the hens
and to pile on more and deeper Sh8 (PhD)
in order to hide the fact that the
real producers (the hens) were gone.

All the King's men
and all the full of Sh8 rears of horses
loved the "innovative" new idea.

If you shovel enough of the stuff
it will bury the truth.
(That the real producers are gone and
the facility is now 100% filled with PhD stuff.)

(What is a "FOXSE"?)
A FOXSE is a Full Of Xtra-Sh8 Entity
One that likes to make up Tall Troll Tales
instead of dealing with truth ...

One truth is that many a FOXSE don't
even know what a "patent" is.
(Click "More" for details)

Room for Whom More on Maroon Island?

A big tent
sits atop
Maroon Island.

It is not
only the
"econo-
mists" who
spell it with
just one "O".

Consider the legal scholar
to the right, or more
precisely, his position paper
on abolishing software patents.

He writes:
"[For] pharmaceutical and biotech companies, ... patents are clearly necessary to encourage innovation,... [The] exclusion [of "software patents"] from the patent system would [yes,] discourage some software innovations, but the saving from litigation costs over disputed patent rights would more than compensate the economy for that cost. Moreover, some software innovations would be encouraged because the inability to patent software will eliminate uncertainty over whether someone else with a similar patent will sue and do battle [with the copyists]in the courts."

Compensate "THE ECONOMY"?
What about the inventor?

Eliminate "UNCERTAINTY"?
What venture doesn't have uncertainty?

Eliminate LAWSUITS?
Maybe first we wipe out all the "judges" (and then the lawyers ala Shakespeare)?

Posner's (mis)understanding of what the patent system is about? Click more (below).

Marooned --On Science Illiteracy Island

It's tempting to take the "O" out
of "maroon" when talking about
them who are scientifically illiterate.
Often, the marooned don't know
they are missing an "O".

Consider the "cure cancer"
theory of the economist
to the right (at 4:50/16:28)






(If you don't want to watch, he says basically that increased size of the free marketplace (to the "Global" scale) is what incentivizes all manner of scientific advance: in medicine, in computers, in energy, etc. The mind just boggles.)

Failed Economists Seek Inventor Scape Goat

With ...

the sustainability
of their "dismal science"
in serious doubt, ...

the ever inventive
theorists of "econumbnics"
have embarked on a witch and troll hunt.

And at last they have found their scape goat ...
the software inventor.

Who better is there to blame for the collapse of Western Industrial Civilization then the ones who keep the complexity going with their bits and bytes?

The objective number crushers have even come up with an emotion packed pack of lies to support their Inquisition. There are no patents in the food industry? Seriously?
Give us all a popcorn-popping Ron Popeil break! This is what you call objective rationalism? Ayn Rand roasts and rotates in her graveyard rotisserie over this kind of fantasy fiction. Some of these so-called econo-numb-nuts pull convenient, but unsupportable "facts" out of their dismal derrieres.

Real Science? Get that junk out of our courts sir!

"I have been a professor of organic chemistry for nine years ... I cannot accept a Supreme Court decision that trivializes chemistry and elevates [misunderstood] biological ”information” over [the real science of] chemical structure in patent law, and that usurps the role of Congress and creates a new class of patent-ineligible subject matter by judicial fiat."

So writes one scientist in his
Chemist's View of the Supreme Court's Gene Patent Decision

(Pictured above is Galileo's Recant)