103 thoughts on “Debate on H.R.1249 in Senate

  1. Joe, under the current first-to-invent system, what odds do you give the second-to-file applicant who has the opportunity to prove he was the first-to-invent? Have you seen the stats on that? As a practical matter, we already have something very close to first-to-file.

  2. Thanks to the unions the post office is now doing so well that they can close 3000 branches and cut Saturday service meaning loss of jobs for tens of thousands of postal workers. Hurray for the unions!

  3. As a patent litigator then you should know the importance of the protection afforded to the “first to invent” as opposed to the “first to file”. How well off will your independent inventor clients be if some large corporation that can afford to spend millions developing ideas into patentable products or processes steals some of their ideas before they have chance to gather the required information for filing for a patent? Under a “first to file” system, the thief gets the legal protection and the actual inventor gets nothing. Under the current “first to invent” system, your client is the one who is entitled to legal protection if someone steals his ideas and he can prove he was “first to invent”.

    So tell us again how your inventor clients would be unaffected by this change.

  4. "Anonymous has replied to your comment:

    Without looking at 282, I would just point out that people challenge on the basis of Sec. 101 all the time.
    It would exactly the same sort of challenge. You simply argue that the issuance of the particular biotech related patent violates this new statute."

    You really need to take a look at 282.  I think you will be reassured.  The statute limits the grounds for invalidity by reference to chapter and title and to "patentablity."   If you decode the references, this means only 101, 102, 103 and 112.  You will note, for example, that Section 132 prohibits the inclusion of new matter.  But violation of 132 is not grounds for invalidity.

    Your worries are misplaced, methinks.

    Ned 

  5. Having now looked at 282 because you asked me to, simply see paragraph (4):

    (4) Any other fact or act made a defense by this title.

    The word “title” refers to the entire patent act.

  6. Without looking at 282, I would just point out that people challenge on the basis of Sec. 101 all the time.

    It would exactly the same sort of challenge. You simply argue that the issuance of the particular biotech related patent violates this new statute.

  7. Anon, take a quick look at Section 282.  The grounds for holding a patent invalid are set forth there.  How would a potential challenger frame the issue?

    Just for example, if the Director issues a patent in violation of the rules, that patent is not invalid.  Violation of the rules is not one of the listed grounds.  

    Neither is the new statute we are discussing.

  8. I doubt the PTO will reject any applications based on the interpretations being argued within this blog.

    I do NOT doubt, however, that a defendant will eventually challenge future-issued biotech related patents on this basis.

    The argument for invalidating future issued patents would simply be that they shouldn’t have issued in the first place. Sometimes, the PTO oversteps its authority (or simply makes a mistake) – that’s what a defendant would argue.

  9. Anonymous, I am not pretending to give a legal opinion here, which would require a rigorous review.  That will only have to be done by the PTO, however.  If they deny a patent application on the basis of the statute, then it  will become quite important what the legislative history means.

    However, to anyone who has an issued patent or who is prosecuting a case and who had not had his application rejected, this statute is a non issue.  The statute does not provide a basis for invalidating issued patents, but only directs that certain new patents not issue in the first place.

    But, it seems clear the statute implements PTO policy that has been in place since 1987.  So, I would hardly expect the
    PTO to do anything radical here.

  10. That passage is the view of Lifenews. I saw that article before I made the original post about this section of the manager’s amendment.

    I have seen no proof that such explanation is contained in the actual legislative record, however. I’m not saying it’s not there – I just have not seen it.

    In short, before concluding that some random website solves anything with respect to the interpretation of the statute, I think one would need to check the actual record. Of course, though, following statutory construction canons, the actual language of a statute is looked to first, and the legislative history is only consulted as a secondary consideration.

  11. Those are directed to something that has missed its chance to become a human organism. They’ll probably be the only statutory type of manufacture under the new law.

  12. Except that claims to methods of combing your hair will no longer be allowed, since hair is a human organism.

  13. Stop,

    The statute doesn’t say that patents directed to human organisms are invalid. It just says to the patent office stop issuing them. But this provision is not new in the law. It is been around since 2003, and is consistent with PTO policy since 1987. What I suggest to you is this, that since the statute is consistent with longtime patent office practice, that nothing will change.

  14. Oh and I still can’t get over the Fake Wedding,on top of the Peabody. And another Grisham Movie set in Memphis. But who will be able to afford to see it? Of course the Chinese.

  15. So as Tamai goes hee hee… Wenzel does research and says How lucky can I get? Then when I go to the second one.. Wenzel says how unlucky can I get. The DOD then gets it. but Canada says tuff tooties. FTF here, not our problem how it was done, that’s your problem!
    So this one is pushing for Canada. And the others are pulling for USA. Then little Rich and Big Rich, Mikey and Sue. And John and Moe. Phyllis and Tom, and then the Mannings find out. Lawyers everywhere Manning, Farci, not to mention all the others. So they dump my Trademark and Aluit’.

    Oh but now there is Doctor RUTH? And there is no privilege there. Now I get why She was fit to be tied. He must have told Her. Is there more Dr.Ruth? I sure hope so.
    And what they have filled me with.

  16. From the Mooney article:

    Instead of continuing to receive funds through the Commerce, Justice, and Science (CJS) Appropriations bill, the USPTO would fund the issuance of patents through user fees.

    Take what you will from the caliber of writing…

    Maybe you should have spent a little more time…

  17. I assume all of the above is in the legislative history somewhere

    That would not be a correct assumption. As astutely pointed out by Malcolm on the other thread, the congressional record is EMPTY on this point.

    Hence, the call for the stoppage of hand-waiving and other unsubstantiated conjecture – this will be a pure and simple statutory construction and the definitions “pooh-poohed” will be those that govern.

    Whether anyone is “comfortable” or not is rather besides the point.

  18. You’re preaching to the recently converted, Ned. I’ve learned today that the new bill bans patents on pharmaceuticals, and can even be interpreted to outlaw claims to improved methods of combing your hair! When you consider the full implications of this, the switch to first-to-file is really a minor aspect of the bill.

    The only thing I’m confused about is why none of the half-dozen or so posters that so kindly stepped up to educate me will answer my question about whether he or she would be comfortable presenting those interpretations in court. What do you think that means?

  19. Stop, check the below. It seems the provision is supposed to implement the PTO ban on patenting humans implemented in 1987. I don’t recall that ban have any affect on the patenting of either DNA or of pharma…

    So, it seems we have little to worry about in fact. Besides, the PTO will implement the law. If it views the ban to be consistent with its current practice, nothing at all will change or be affected by the new statute.

    “On June 23, 2011, during consideration of the America Invents Act (H.R. 1249), a bill to update patent law, the U.S. House of Representatives approved the Manager’s Amendment, which included a provision to prohibit the patenting of a human organism: “Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism” (Sec. 30(a)).

    This provision codifies in permanent law a policy that has been in appropriations law since fiscal year 2004, through an amendment offered by Rep. Dave Weldon (R-FL). The Weldon Amendment reflects a U.S. Patent and Trademark Office (USPTO) policy in place since 1987. This policy states in part: “A claim directed to or including within its scope a human being will not be considered patentable subject matter under 35 U.S.C. 101. The grant of a limited, but exclusive property right in a human being is prohibited by the Constitution.”

    On March 8, 2011, the U.S. Senate passed its own version of the America Invents Act (S. 23). The Senate bill does not incorporate the Weldon Amendment ban on patenting a human organism. The differences between the Senate and House bills must be reconciled in some way before the America Invents Act can become law.”

  20. Please remind me again why I quit this brokeback site so long ago.

    Because Gene Quinn’s site had better snacks.

  21. “that explains why your wife walks on all fours”

    @MM

    Please remind me again why I quit this brokeback site so long ago. Did it have anything to do with an unnamed troll who hangs out here and turns every conversation into his idea of a Mad Hatter Tea Party?

  22. Except Ned, the link is to CURRENT law and thus, under normal statutory construction (and given the LACK of actual Congressional Record), the NEW law MUST mean something else – something MORE.

  23. The whole statute, Leo, is replete with terms that have no well understood meaning in patent law. I am reminded of the minor change recently to 102(g) to add “inventor” to modify “another.” I don’t know why this was done, and the legislative history is blank on the topic. But it had an unforeseen and dramatic affect on whether a reduction to practice of the invention in the US had to be be by the inventor? On the whole, such consequences were entirely unforeseeable and unfortunate.

    But we now will have a whole statute that from one end to another is whole cloth. People who speak that this will have only small changes in the patent law assume a certain meaning. But since even small changes can have such dramatic consequences, what can we expect when we have such large changes?

    All I know is that we will be litigating this statute for decades as we test the meaning of the words. Until each new word has been tested in context, we are not going to really know what the law is.

  24. step back, check the link Malcolm provided. It has further information where all this came from and what “human organism” is intended to mean. If this congressional history is at all relevant, we should all be safe from extreme and unexpected constructions.

  25. If you are sued under the new law for infringement and hire me as your attorney, I will leave no stone unturned (especially if the patent owner is low on funds and you have a large war chest

    No, no, hire ME as your lawyer, Ned! I will make even stxpxder arguments! And then when you lose, we’ll appeal and say that the judge didn’t know how to read a statute or dictionary and he’s not reasonable!!!!! And when you lose again, we’ll appeal again! And then we’ll file some really, really stxpxid appeals that go nowhere but still I will never give up on you, Ned!!! and we’ll just keep doing that!!!!1! It will be teh awesome. All this assumes, of course, that the war chest is really large and you aren’t going to get get cheap on me or sue me for being incompetent. If you’re thinking about doing that, then go xxck yourself. Otherwise, what are we waiting for??? Let’s steal some pharma IP now and get this train rolling! NO STONE UNTURNED!!!! NO STONE UNTURNED!!!!!

  26. The difference between the PTO and the PO is one is bursting at the seems with business and the other is in serious need for downsizing as its business model becomes increasingly obsolete. We should consider simply pulling the plug on the PO and giving it 5-10 years to wind down/sell off it operations.

  27. Malcolm, thanks for the link. From the linked page,

    “A manager’s amendment to H.R. 1249 would codify Weldon Amendment language, making the prohibition against patenting human organisms at any stage of development a permanent law. Under the Amendment, the term “human organisms” includes human embryos, human fetuses, human-animal chimeras, “she-male” human embryos, and human embryos created with genetic material from more than one embryo. The term does not include human stem cells (adult and embryonic), non-human organisms, and does not prevent patents on human cells (including stem cells), human genes, or the processes of creating human embryos.”

    I assume all of the above is in the legislative history somewhere. It seems to clarify the issues just a bit.

  28. I hear you, step. So, please, answer me this: would you be comfortable arguing to a federal district court judge that the provision at issue prohibits the issuance of a claim to a methods for using a comb?

  29. Ned,

    Exactly.
    Why not?

    If you are sued under the new law for infringement and hire me as your attorney, I will leave no stone unturned (especially if the patent owner is low on funds and you have a large war chest) and I will certainly entertain a defense that says the patent should have never issued in the first place because any arbitrary one of its many claims is “directed” to an organism that I allege to be a human organism.

  30. step back I personally do not know what is meant by an “organism” and how you … can determine if the organism thing is “human” or not.

    I guess that explains why your wife walks on all fours and has a tail.

  31. Ned: Malcolm was of the opinion that a human organism meant a human being or a human cell

    Be careful, Ned, lest you put my foot in your mouth. You need to understand that if you try to claim “A human cell, wherein said cell comprises ….” that the USPTO will reject the claim under current the current rules.

    Anyhow, before I say more, I would appreciate a link to that other discussion so that I can get up to speed on this issue.

    Or you could just ignore the discussion because it’s really not that interesting. I mean, the asxnxne comments by “anon” and company are sort of interesting for their sheer denseness, but the actual statute is not interesting — at least not for the reasons the commenters claim.

    The statute *is* interesting, as I noted above, as a useful propaganda tool for fetus worshippers. For example,

    link to lifenews.com

    Gee, that didn’t take long.

  32. “I plead temporary insanity. Sorry.”

    Leo,

    We appear to have, all too quickly, lost focus on what this discussion was first “directed to”.

    It was directed to the issue of a Congress passing a set of laws without looking at the fine print and explaining with specificity what it means.

    I personally do not know what is meant by “a claim directed to …”. I personally do not know what is meant by an “organism” and how you (or more importantly a bureaucrat at the fee-diverted PTO) can determine if the organism thing is “human” or not.

    Before some poor judge gets his hands on this statutory language, the bureaucrats at the fee-diverted PTO will lay their blessed appendages on it and render whatever twisted interpretation to it that they wish.

    Also before some poor judge gets his hands on this statutory language, an alleged infringer will be defending based on whatever twisted interpretation of it that they need. So yes, you will see interpretations saying that “directed to a human organism” is a generic phrase that includes under its broad statutory umbrella, a claim whose subject matter somehow has anything to do with any part of the human body. A method of using a comb is “directed to” a human organism, namely, the elongated keratin extension of the hair follicle cell (a.k.a. hair).

  33. Rather than simply standing around, slackjawed,

    Slackjawed at your idixcy, to be clear.

    let’s see a cogent legal argument. Anything to base “reasonableness” on

    Already been done, schlub. Keep drinking.

  34. FYI – the amendment in question was introduced by Lamar Smith from Texas.

    According to Wikipedia:

    Smith has consistently supported restrictions on abortion. In 2009, Smith voted to prohibit federally funded abortions.[1] In 2006, Smith voted for the Abortion Pain Bill, which would “ensure that women seeking an abortion are fully informed regarding the pain experienced by their unborn child,” [2] and the Child Interstate Abortion Notification Act, which would “prohibit taking minors across State lines in circumvention of laws requiring the involvement of parents in abortion decisions.” [3] In 2008, the National Right to Life Committee, a strong advocate for the rights of the unborn,[4] gave Representative Smith a rating of 100 on a point system in which points were assigned for actions in support of legislation they described as “pro-life.”

    Not a far stretch to guess that Smith might intend to throw a wrench into certain biotech related areas of research (such as related to stem cells, genetics, etc.).

  35. Regarding the new statute on “human organism,” I must have missed that discussion.

    Malcolm was of the opinion that a human organism meant a human being or a human cell, and probably all parts between the two. But, why a cell, and not its constituents? Why not human blood, antigens, antibodies, hormones, DNA, RNA, proteins, everything that we know exists that makes up the human organism? If if it part of a human organism, it seems “directed” to an human organism.

    Anyhow, before I say more, I would appreciate a link to that other discussion so that I can get up to speed on this issue.

  36. Following statutory construction principles (similar to claim differentiation), if “encompassing human beings” prohibits patenting related to the cloning of human being you suggest, then the “directed to” language most likely can’t have the same meaning.

    Moreover, the first thing you do when interpreting a statute is to look at the literal language. You suggest that this shouldn’t be done in a vacuum, but legislative history is only a minor factor in statutory construction (and, under S.Ct. law, is supposed to be ignored if the statute is otherwise clear). In any event, what or where is that history here?

    The whole point of one of the problems here is that reasonable people can interpret this statutory language differently (don’t mistake this as me calling you reasonable, Malcolm). This guarantees protracted uncertainty.

    “[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat’l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, “when the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’” 503 U.S. 249, 254.

  37. Ah, IANAE, I enjoyed your reference to T0190/99 and its progeny.

    Might it help readers to complete the quotation from the citation of the principle of synthetical propensity (technically sensible, and building up rather than tearing down), viz. “a mind willing to understand not a mind desirous of misunderstanding”.

    In these threads I do detect quite a few minds that, perhaps looking for fun and amusement, are “desirous of misunderstanding”. All grist to the grind of practice as an attorney-at-law, eh?

  38. Mr. or Ms. But, I’ve now been told by 4 or 5 commentors now that my feeble arguments have been negated. That’s pretty close to unanimity, so I yield the point. Those feeble arguments are all I’ve got – sorry.

    But can I ask you the same question I asked Legal Grammarian: Given that this provision becomes law, would you be comfortable arguing to a federal district court judge that this provision bans the patenting of pharmaceuticals?

  39. Rather than simply standing around, slackjawed, let’s see a cogent legal argument. Anything to base “reasonableness” on, anything, that is, except mere conclusions like “Well, that cannot mean that, can they?”

  40. LG – serious questions: Is this an argument that you would be comfortable making to a federal district court judge? Given that this provision becomes law, would you advise a client that this provision can be reasonably interpreted to ban the patenting of pharmaceuticals?

  41. Do you honestly think it’s sane or worthwhile to debate whether this provision is intended or would ever be interpreted to ban iPhones because they are intended for use by a human?

    No, I don’t. I plead temporary insanity. Sorry.

  42. The best month ever August has soured into somber September.

    For you, maybe. For me, the Patent Reform is the icing on the cake if only because it brings the real nuts out of the fruitcake.

    And IBP, your thrashing of him on the Classen thread is one reason he has reverted to his usual caustic self.

    You mean the thread where IBP agreed with me that claims in the form of Prometheus’ asserted claims must be found unenforceable if they are not invalidated under one of the other patent statutes?

    Was that a “trashing”? If so, more please!

  43. Do you honestly think it’s sane or worthwhile to debate whether this provision is intended or would ever be interpreted to ban iPhones because they are intended for use by a human?

    Your theory is about as silly as AI’s theory that every patent is a business method patent (except Bilski’s, because he lost in court) because it claims a thing you can sell.

    St. Reagan just killed a kitten because your comment was so uncivilized.

  44. “directed to”

    OR

    “encompassing”

    The use of “or” indicates that either condition will suffice, or here, that both are not permitted.

    Notwithstanding Stepback’s parse of “directed” from “to,” the phrase “directed to” has a specific meaning.

    That meaning was listed on the previous thread.

    That meaning still has not been negated by any proffered interpretations on that thread or on this thread. The point has been made that without the Congressional Record indicating otherwise, the normal meaning of the phrase will be the legal meaning.

    The phrase “no patent may issue on a claim” means that a patent may not issue with a claim…

    While a claim is a legal concept, the context of a claim is more than just a legal concept. Refer to the discussion of claims in Section 112, Paragraph 2: pharmaceuticals are indeed “subject matter” of claimed inventions.

    As to how the pharmaceutical industry has missed this monumental change to the law, that is precisely the point that Stepback makes: the bill is loaded with “vague and twisted language.”

  45. And if I have a method claim that uses a display device to project an image for receipt by human eyes (whether explicitly or implicitly stated) is that a claim “directed to” a human organism?

    Do you honestly think it’s sane or worthwhile to debate whether this provision is intended or would ever be interpreted to ban iPhones because they are intended for use by a human?

    Your theory is about as silly as AI’s theory that every patent is a business method patent (except Bilski’s, because he lost in court) because it claims a thing you can sell.

    If there’s one aspect of US patent law that truly needs to be harmonized, we desperately need to import the concept of the “mind willing to understand”.

  46. @Leo

    It becomes frustrating when people keep making up their own versions of the soon-to-be-passed (?) law and their own versions of definitions of words.

    Here is the last version of the bill section that I saw:

    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.

    Here is one dictionary definition for the word “directed”: having an assigned direction, as a segment or vector

    I have been practicing for more years than I want to admit and in all those years I have not seen a claim that is in the form of a vector or a line or an elongated bar. With that said, I have indeed seen many court decisions that talk about a claim being “directed to” this or that. But then again, judges can do whatever they want including declaring that genes are not compositions of matter.

    Rather than saying, “yawn, let’s move on to the next one”, how about you telling us what the definition of “organism” is is and how we decide if that thing is “human” or not.

    Is a person’s eyeballs a “human organism”? And if I have a method claim that uses a display device to project an image for receipt by human eyes (whether explicitly or implicitly stated) is that a claim “directed to” a human organism?

    Are you yet “seeing” what I’m asking here ? BTW, this question is intended to be directed to your brain. (Query: Is that a “human organism”? Why?)

  47. Are you serious, anon? The language of the bill is: “…no patent may issue on a claim directed to or encompassing a human organism.” That means you can’t have a claim directed to or encompassing (including) a human organism. That means you can’t have a claim where the subject matter of the claim is or includes a human organism.

    Yes, a pharmaceutical is directed to a human organism. But a pharmaceutical (physical compound) is not a claim (legal concept). So, my “admission” that a pharmaceutical is directed to a human orgamism is by no means an admission that a claim to a pharmaceutical is a claim directed to a human organism.

    Please explain more precisely where I’ve gone wrong. Assuming I am wrong, I’m curious as to how the pharmaceutical industry has missed this monumental change to the law.

  48. When one screens out the vitriol and removes the conclusory “I want” types of reasoning, there is just no substance left.

    Because it is worth repeating.

  49. Having a bad day?

    He’s having a bad month.

    The best month ever August has soured into somber September. And IBP, your thrashing of him on the Classen thread is one reason he has reverted to his usual caustic self. You really did rub his nose in his own foul waste, but such training only works with smarter animals such as puppies.

  50. And the sad thing FOR YOU… And right now you may say good riddance. But I will File where I live.. hopefully in Ireland. And I promise you this too is a Home Run. So much for Jobs in the USA!

  51. Yes, only because it takes me 20-30 seconds just to navigate to the end of the thread. I’m sure we’ll have another opportunity to discuss the identical issue(s) in the weeks ahead.

  52. there was no response to the post that negated your input. Specifically, it was Malcolm’s post that destroyed your notion that the “claims to human organisms” was what was at stake. Your admission here that “Yes, pharmaceuticals are “directed to” human organisms” is a point blank surrender.

    OMIGOD!!! GOLIATH JUST CRUSHED LEO UNDER HIS MERCILESS SANDAL!!!!!!

  53. (sigh)

    Once again, the conclusory statements of Malcolm mean nothing. Please leave out the _xx_ comments as they are likewise meaningless.

    Leopold,

    Yes, you did contribute – initially. But there was no response to the post that negated your input. Specifically, it was Malcolm’s post that destroyed your notion that the “claims to human organisms” was what was at stake. Your admission here that “Yes, pharmaceuticals are “directed to” human organisms” is a point blank surrender. So, I think yours simply cannot be the “leading” explanation.

  54. MM, the vitriol of your response was entirely disproportionate to measured tone of the original comment.

    Having a bad day?

  55. Statutory language is not read in a vacuum, anon.

    Clearly, at least Step Back sees a very real issue with the language of the pending law on this point.

    That’s nice. step back is cluelxss and so are you.

    You have not offered any substance to your conclusory statement.

    LOL. I offered “substance” in the previous thread, axxwipe. The “substance” is that if Congress said nothing about banning pharmaceutical patents, then there is no way in hxll that this language (“directed to … human organisms”) is going to be intepreted to ban pharmaceutical patents. If you continue to disagree, you are simply confused or ignorant or trying to be an axx.

  56. I remember that discussion to, anon, as I think I participated in it. I wasn’t persuaded then and am not persuaded now that this this provision can be read to relate to pharmaceutical compounds. Yes, pharmaceuticals are “directed to” human organisms, but the bill’s provision doesn’t outlaw claims to things that are directed to human organisms. It outlaws claims to human organisms. That’s just plain language – I don’t think we need a lot of Congressional commentary to understand what’s going on here.

    I would like to think that my interpretation is now the “leading” explanation. What do you think?

    step, do you have any more examples of the evil that is lurking in this bill?

  57. Malcolm,

    I am just reporting the status of the discussion and where it left off. You are more than welcome to actually make a substantive comment and move the issue along.

    It really does not matter that you believe the discussion was aborted based on your view of “because nobody actually believes.” Clearly, at least Step Back sees a very real issue with the language of the pending law on this point.

    With all due respect, I trust Step Back’s legal insights more than I trust yours.

    This is clearly a matter of statutory law interpretation, and the record, or more specifically, the lack of record does not support your contention that pharmaceuticals are off limits from the reach of the soon-to-be law. You have not offered any substance to your conclusory statement.

    As for your descent into other philosophical tangents, no thank you – the emerging patent law has enough substance to support a decent discussion on its own.

  58. LOL – it’s the unions fault!!!!! The USPS would be rocking with profits if only they could pay postal workers $5 an hour, without benefits, no vacations and no pensions. Postal employees are such greedy bxstxrds!!!!!

  59. The discussion was “aborted” because nobody actually believes that the statute was intended to ban pharmaceuticals. The statute is intended to ban claims which read on engineered human organisms or cells of the human body. You know: human cloning and stuff.

    this phrase prohibits patents on pharmaceuticals, since such medicine is necessarily “directed to” human organisms.

    That’s ridiculous. Please run along now. I think Obama is taking your gun rights away. Or something.

    If you were serious, you might be concerned about rightwingers using the statute to interfere with embyronic stem cell research. But that issue is more about rightwingers than the statute. I mean, everyone knows that fetus-worshippers will will stop at nothing.

  60. The Patent Office has money (they are not yet in debt). The U.S. Postal Service is in debt. Congress needs $5 Billion to pay this month’s fee to the union calling the shots at the U.S. Postal Service retirement program.

    Concusion: The government postal union will get the money inventors pay in for services rather than the hard working U.S. patent employees.

  61. Step Back,

    A discussion on “directed to” was attempted on a recent thread, but was aborted when the plain meaning of the phrase was given and no response to the lack of any guiding limitations from the Congressional Record was forthcoming.

    As I recall the (currently) leading explanation, this phrase prohibits patents on pharmaceuticals, since such medicine is necessarily “directed to” human organisms.

  62. Leo,

    I’ve read; or more correctly –tried to read, through various parts of this humongous tome and have not yet been able to decipher some of the vague and twisted language in this bill.

    Perhaps after it passes (with or without amendment), you or some other legal scholars here can explain how the game is to be played under the new and supposedly improved rules?

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

    What is the definition of “a human organism”?
    What is the definition of “directed to”?
    What is the definition of “may issue on”?

    That is just one small and troubling portion of a tome filled throughout with such language.

  63. Who knows what evil lurks in the deep depths of this unexamined bill?

    Uh, those of us who have read it? Or is this one of those rhetorical questions?

  64. I empathize with your solo inventor friend, Patent Eagle. Senator Leahy makes me ill, and yes, I’m a registered Republican, but I’m not at all happy with my own party for supporting this oxymoronic AIA (and have expressed that view with the “bark left on” to my local Congressman, who also happens to be the Speaker of the House).

  65. I hope you’re right Andrew, I truly do. But as a patent prosecutor whose client base is over 95% small business/individuals, I’m much more pessimistic about the impact of the AIA.

  66. The Gong of Doom has now sounded. If only I could have Tom Coburn as my senator instead of the two “clowns’ I’ve got (Sherrod Brown and Todd Portune). Mark Twain was right; our Congress is truly “an insane asylum for the helpless,” bought and paid for by special interests.

  67. “I don’t see that this legislation is a big deal for independent inventors.”

    The devil lies in the fine print. Who knows what evil lurks in the deep depths of this unexamined bill? Surely the Senate do not. (Render onto Caesar that which used to be yours. Ask not for whom the bell tolls.)

  68. It’s so hard on the outside to know what’s really going on, but I think that is a very good guess. I would imagine that some senators were really put off by how House Budget Committee Chairman Ryan was able to force the fee amendment onto H.R. 1249. I have no idea, though, if any such frustration will lead to an amendment in the Senate.

  69. Patent Eagle, I don’t expect you or any independent inventors to believe me in this, but let me just say that I don’t see that this legislation is a big deal for independent inventors. Yes, there will be some cases where it makes a difference, but I think they will be few.

    I say that as a patent litigator who has spend about 90% of his professional life representing independent inventors.

  70. They already have… giving the USPTO authority to set their own fees will allow them to charge $10,000 for the third continuation.

  71. I think you will see that the five “NAY” voters on the cloture vote include five of the wisest members of the Senate, bar none. Let’s all remember to say a prayer for these brave patriots tonight who, earlier this evening, did not let the tyranny of the majority sway them from their solemn duty to uphold the Constitution of the United States. If these guys are voting against this bill, then you KNOW it must be bad. They are not the sort of folks to cast votes merely for symbolic reasons. I salute thee, gentlemen! Let us not put down our weapons yet as the battle has just begun!

    Nay KY Paul, Rand [R]

    Nay OK Coburn, Thomas [R]

    Nay SC DeMint, Jim [R]

    Nay UT Lee, Mike [R]

    Nay WI Johnson, Ron [R]

  72. I thought the passage of the cloture motion meant that this was the end of the line and H.R. 1249 will become law. But then I saw this over at HuffPost:

    Patent Reform Refuses To Die, Congress Keeps Cashing In

    WASHINGTON — The seemingly endless congressional circus known as patent reform still carries on.

    On Tuesday, Senate Majority Leader Harry Reid (D-Nev.) announced he would allow senators to submit amendments to the legislation later this week, after the bill clears a filibuster. The legislation, which the Senate approved in March by a vote of 95 to 5, is all but certain to clear that filibuster in a vote scheduled for Tuesday night. But those fresh amendments, however few in number, indicate that Congress will capitalize on the massive special interest melee surrounding the patent bill for as long as it can.

    link to huffingtonpost.com

    Looks like it’s not quite over yet.

  73. My friend who is a major solo inventor just called. He was weeping and I could barely understand him. But he did communicate to me that he after he hung up the phone he was going to cut off his thumbs and send them to Senator Leahy to protest the bill. He said that the Patent Reform Bill was the equivalent of gathering all the small businesses together in the country together in one city and dropping an atomic bomb on it. He called it the “9-11 of Patent Law.”

    Needless to say I did my best to talk my friend down. I think he’s all right. I told him to have a beer and listen to a classic Toby Keith album, which has always calmed him down in the past. I think it worked. Please everyone take some time today to tell your inventor friends how much you love them and appreciate their patriotic work.

  74. My favorite part thus far was watching them call roll with maybe one senator in the room. I’m not even sure what was theoretically being accomplished, but I can’t imagine a legitimate reason to spend so much time reading out every Senator’s name.

  75. Missed this. Is this the same Vermont Senator who celebrated with IBM a couple of days after the Senate version passed the Senate this winter?

  76. Watching Senator Leahy, it hardly appears he should be allowed to be driving at this point, let alone be involved in creating legislation.

  77. I just tuned in, but so far just something from a Vermont senator on the floods. Was there debate earlier? Any amendments to H.R. 1249 proposed? The only potential hitch I see is if an amendment were to pass. That seems unlikely to me, but you never know.

  78. Does anyone else find it strange that they have now been “waiting for a senator to speak” for the last forty minutes?

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