New Patent Regime Signed into Law

Patent2011021This morning, President Obama signed the Leahy-Smith Patent Reform Act — enacting it into law. The provisions of the new law have a variety of effective dates.  Some changes to the law happen immediately and the increased patent office fees will be instituted on September 26, 2011.  Other changes will not be implemented until 2012 and 2013. These include the revised post-grant opposition procedures and the rewriting of the rules of novelty and nonobviousness.

202 thoughts on “New Patent Regime Signed into Law

  1. “It is sweet serenity that Malcolm and Ned have their tails tucked between their skirted legs on this thread because, after all, what can they say? Their favorite theories are eviscerated by the reasoning of this case.”

    Oh yes and how sweet it is! I am surprised that loopy 6 didn’t proclaim victory after reading this case, as he usually does when he gets bludgeon by the Court. But he has posted enough garbaged to make up for it.

    And Nedo, what a shameless coward. He couldn’t even finish challenges that he started in this thread. But hey, what could he do when faced with defeat but run hide behind MM’ Skirt. Notice how Ned ( Curly of the Bunch) called out to Moe as soon as this decision came down only to get the two fingers in the eye!

    lol

    As Mooney would say. It’s been a great month for Patents! :-D

  2. … I would however inform you of that fact, if they are of the same manufacturing run and to within manufacturing tolerances, and provide you with this evidence that such is the case if you should so desire.

    Your argument to the question “Are these machines identical?” is “No, but they were identical before one of them was altered to meet the terms of the claim”? Great strategy, 6. And just so you know, offering to produce new evidence at the appellate stage is probably not the best way to impress the panel either.

  3. “Their favorite theories are eviscerated by the reasoning of this case. ”

    Lol wut? There is no “reasoning” in this case. It is proclamation, of Rader’s views I should note, and nothing more.

    “Those seeking to obscure law and conflate the segments of law are taken to the woodshed. ”

    Rader even admits that it is a murky area of the law.

    Their illegal attempts to overrule the USSC will not last forever. It may take a decade for someone to grow the balls to question it at the USSC, but meh, so is life. You put patent protectionists on the judiciary and this is the kind of horse sht you get.

    “Those seeking to play House with “one computer is the same as any other computer” are taken to the woodshed. The fallacy of that inane argument should be crystal clear by now.”

    Again, that’s not an “argument”, it is a fact.

    You can, as MM says, take it to the bank AI.

  4. Another “fly in the ointment” that is deceptive in the AIA, namely what is the “true” effective date of the microentity discount. The microentity discount won’t actually take effect until Kappos exercises his fee setting authority pursuant to Section 10 of the AIA. See below (from USPTO FAQ on the AIA):

    Question FEE4: If I meet the micro entity of the AIA, will I be able to pay a micro entity fee beginning on the date of enactment – September 16, 2011?

    No. The AIA does not permit the USPTO to apply the 75% micro entity fee discount until the micro entity fee for a specific item is set or adjusted using the fee setting authority provided in section 10 of the Act.

    So while the microentity provision effective date is September 16, 2011, the fee reduction benefit of being a microentity won’t happen until Kappos exercises his fee setting authority under Section 10. Wonderful (and if you detect sarcasm in my comment, you’re correct).

  5. I’m pretty sure the PTO is correct. If something is filed on a Thursday and you have 1 week to respond, the response is due on the follow Thursday, not Friday. If something is filed on Sept. 16th and you have 1 month to respond, your response is due on Oct. 16th. So for the provisions that go into effect 18 months later, the effective date is March 16, 2013.

    Your date would make the bill go into effect 18 months and 1 day later.

  6. The bill was signed on September 16, 2011. The 18 month period starting that day would apparently expire on March 16, 2013, making March 17, 2013 the effective date of the first-to-file provisions. However, the PTO website lists March 16, 2013 as the effective date. Does anybody else read the statute the way the PTO does, or do they have it wrong?

    link to uspto.gov

  7. What are you crying about?

    6, you are truly clueless. Your tears, your posturing, your making up conspiracy theories of one sort or another, all of it just gets flushed away by the reading of the law.

    It is sweet serenity that Malcolm and Ned have their tails tucked between their skirted legs on this thread because, after all, what can they say? Their favorite theories are eviscerated by the reasoning of this case.

    Those seeking to obscure law and conflate the segments of law are taken to the woodshed. Count the number of times the Judge is explicit in directing that 101 should not be conflated with 102, 103 and 112.

    Those seeking to minimize Alappat are taken to the woodshed. The “new machine stance is shown as a holding, with wide applicability, not a mere dictum pertaining only to the Alappat case, and certainly not “overruled” as Ned has crowed.

    Those seeking to play House with “one computer is the same as any other computer” are taken to the woodshed. The fallacy of that inane argument should be crystal clear by now.

    Those seeking categorical exceptions to patent eligible subject matter are taken to the woodshed.

    Those seeking to read into the patent laws limitations and conditions which the legislature has not expressed are taken to the woodshed.

    Those seeking to butcher and twist the Supreme Court line of cases and pervert the DCAT (with a nod to Actual Inventor) are taken to the woodshed.

    Did I mention that those seeking to conflate (the whatever or take your pick legal “theorists”) are taken to the woodshed? Yes I did – but it is worth repeating.

  8. I would like to know does NIT mean “NEW IN TOWN” and I would like to vote, and “NEW IN TOWN” and I would surely vote again?
    And does CIT mean already “COUNTED IN TOWN” as in VIA the Census. Now I really get just how important that was for non Slaves. But I suggest you send me mine now. because I promise you I COUNT!
    PS If I have it backwards on the CIT NIT please advise.

  9. Ned threw down the gauntlet about naming 5 SCOTUS members and when “Supreme Court” named 10 Ned just ignored it. Typical Ned. When the heat is on he flees the kitchen.

  10. “The people, and congress, never included software of business methods in patents. ”

    Yes they did 6. You seem to be trying to piecemeal the arguments from the Amicus briefs and references on the losing side of Scotus Bilski, along with Stevens now meaningless dissents. But lack the intellectual chops to put together a cogent argument of your own which is evident when you are pressed for examples, and challenged to elaborate.

    You occasionally do an adequate job of parroting or mimicking some of the things you read. But it’s apparent you lack a single original creative thought. You could not even explain your so called pre-emption doctrine when pressed on that issue. You totally wilt whenever faced with any question that will require more than skimming other people’s work and trying to use it as evidence for your own backwards thinking.

    Oh and “6 is a…..” was right!

  11. Great Conspiracy? Um, no. Great patent bar desire to expand patents and protect those on the books. And, in this particular case, a desire of the attorney to not overly PO the judge that is handling his client’s case. It is hardly a conspiracy.

    I do love how the attorneyta rd tries to dodge the simple question so as to not continue to PO Rader.

    What is also funny is that this guy thinks that Ultramercial figured out a way to stop internet piracy. Lulzlulzlulzlulzlulz. Apparently all you had to do was make the person view an ad! Lulz.

  12. What are you crying about? Rader is using his bully pulpit to try to enforce his illegal patent protectionist scheme, that’s no reason for you to cry. But I guess you guys will cry about anything.

  13. waiting on someone to provide evidence against so we can overrule, or have the USSC overrule.

    But… but… but… no one will ever do that, because of the GREAT CONSPIRACY.

  14. Lulz indeed because the attorneyt ard didn’t have the bal ls and evidence to refute whatever ga rbage Rader was about to spout in re him answering factually. Had he come prepared then I would like to see the outcome of that particular convo going down.

    Rader: “You wouldn’t argue that these are identical machines would you?”

    Attorneywhoisnotat ard: “I would not argue that no, I would however inform you of that fact, if they are of the same manufacturing run and to within manufacturing tolerances, and provide you with this evidence that such is the case if you should so desire”.

    Rader (flustered): But, but, but, but, ALAPPAT matters, not facts! We’ve based a decade of patent policy on that decision and to change it now would look totally bad!

    Alappat. Just begging for someone who isn’t retar ded to have a go at the “argument”.

  15. Lulz indeed because the attorneyt ard didn’t have the bal ls and evidence to refute whatever ga rbage Rader was about to spout in re him answering factually. Had he come prepared then I would like to see the outcome of that particular convo going down.

    Rader: “You wouldn’t argue that these are identical machines would you?”

    Attorneywhoisnotat ard: “I would not argue that no, I would however inform you of that fact, if they are of the same manufacturing run and to within manufacturing tolerances, and provide you with this evidence that such is the case if you should so desire”.

    Alappat. Just begging for someone who isn’t retar ded to have a go at the “argument”.

  16. “Best line: “Alappat told you.”"

    Yeah, he should have said:

    “We said some factually unsupportable assertions in Alappat that are waiting on someone to provide evidence against so we can overrule, or have the USSC overrule. And we disquised them as a “holding”.”

  17. I am glad my work on this blog is making a difference. Now if only someone from the PTO is paying attention to 6 and MM, we might able to clean out some of the old Dudas cobwebs.

  18. You wouldn’t that these are identical machines, would you?” 28.04

    LULZ – haven’t we seen that very challenge on these threads? A grand hall comes to mind, one that only 6 even walked down (before he had his hat handed to him).

    The word of Ping.

    Repent Non-believers, repent, for your end is near.

  19. But what about if an entity (with a sufficient “interest”) declares, in place of an inventor, and thereby avoids the whole “false declaration” theory?

    Since the entity can fully act in its best belief without the personal “falseness” or affirmative egregious misconduct that triggers the exception, there would be no inequitable conduct or fraud on the Patent Office.

  20. link to youtube.com

    If you guys want to see one of the coolest inventions of ever check out :30.

    Although, since it was made by an architect it lacks what would make it soopar awesomezors! 5 pts if you know what it needed and what needed to go.

  21. “This case is about the BPAI that looks at a rejection by the Examiner, decides it is crxp, and then proceeds to rewrite while passing it off as an affirmance. When Appellants says, “hey, this is a new grounds of rejection,” the BPAI just shrugs … “nah, its not.” I’ve seen this fact pattern too often.”

    I know what the case is about thx.

  22. “I did read it.”

    The relationship of “diapers” to the issues discussed by the Federal Circuit was de minimus. If the most interesting thing you took out of this case was “diapers,” it tells us where your thinking trends.

  23. “I could be mistaken about that though”
    Now we are talk’n ….

    This case is about the BPAI that looks at a rejection by the Examiner, decides it is crxp, and then proceeds to rewrite while passing it off as an affirmance. When Appellants says, “hey, this is a new grounds of rejection,” the BPAI just shrugs … “nah, its not.” I’ve seen this fact pattern too often.

    You may ask, why does it matter? The application is still rejected. However, labeling a rejection as a new grounds is beneficial for a few reasons. 1) there is patent term adjustment considerations, 2) labeling a rejection as a new grounds sends a message to the Examiner that the prior rejection was crxp, 3) it is a lot easier to argue “the BPAI is wrong because of X and Y” when X and Y are new findings of fact when it is clear that these findings were not made by the Examiner. The reason is because the BPAI oftentimes doesn’t understand the art and makes findings that are nowhere close to being right. The Examiner knows this so it is easier to make those arguments when you are arguing that the BPAI’s new findings are wrong than arguing that the BPAI’s affirmance of the Examiner’s rejection is wrong.

    You may ask, why does it matter? The application is still rejected. However, labeling a rejection as a new grounds is beneficial for a couple of purposes. 1) there is patent term adjustment considerations, 2) labeling a rejection as a new grounds sends a message to the Examiner that the prior rejection was crxp, 3) it is a lot easier to argue “the BPAI is wrong because of X and Y” when X and Y are new findings of fact when it is clear that these findings were not made by the Examiner. The reason is because the BPAI oftentimes doesn’t understnad the art

    Finally, I’ve been given the impression that the BPAI is discouraging “new grounds” in decisions (wastes time and the BPAI has a backlog to work through). If more Applicants challenge this, the BPAI may decide to stop lending a hand to Examiners when the rejection is crxp and let the Examiner reopen if they want to institute a new grounds of rejection.

  24. The funniest thing about that decision is that it appears that the examiner did notice that they used a product-by-process limitation in the last big limitation followed by a chemical limitation whereas the board did not recognize that and thus threw themselves into what looks from the outside to be a new grounds of rejection.

    I noticed that. The good news is that even if this terribly drafted claim survives the PTO, in order to infringe you have to carry out the recited steps. Are there any diaper manufacturers out there that are “cold caustic extracting” their own wood pulp?

  25. “Nobody could have imagined that our eternally whining, crying sockpuppets would appreciate the latest in diaper technology.”

    It pays to read the case — too bad you never let the facts get in the way of a good blathering.

  26. The funniest thing about that decision is that it appears that the examiner did notice that they used a product-by-process limitation in the last big limitation followed by a chemical limitation whereas the board did not recognize that and thus threw themselves into what looks from the outside to be a new grounds of rejection.

    Idk, I could be mistaken about that though, maybe they just straight up did change the grounds of rejection. But that’s what it looked like happened to me.

  27. I’m impressed. A useful post for a change

    Nobody could have imagined that our eternally whining, crying sockpuppets would appreciate the latest in diaper technology.

  28. Not if there are no grounds for holding the patent invalid, and there are none without 102(f).

    Have you never heard of “inequitable conduct” and “fraud on the Patent Office”? It would seem to me that filing a false declaration naming a person who is not an inventor would fall under Therasense’s “affirmative egregious misconduct” exception.

  29. “I am saying that you appear not to even care about whether you are right or wrong anymore,”

    Well I might appear that way. But not really. I’m merely pointing out that the issue is, as Ned noticed, sort of a political one. One might call it a “patent politics” issue.

    The one side believes that writing (wanking?) down on a sheet of paper some new functionality of a computer in legalese somehow advances a useful art, even though it doesn’t in reality. This side BELIEVES this. They don’t know it. They have no evidence for it.

    The other side believes that writing (and wanking) down on a sheet of paper some new functionality of a computer in legalese does not advance a useful art. This side BELIEVES this. They know it. They even have evidence for it.

    These are the two sides. The fundamental difference between them though is simply a belief.

    However, that said, I do have a heavy focus on what we can “get away with” without tards like yourself having a cow because our leadership in congress doesn’t have the balls to simply set the record straight by either explicitly excluding or including software etc.

    “Romanian technology stagnated. That was the problem.”

    Says whom? Also note that “Romanian” technology is not the same as “Roman” technology. Perhaps you’ve heard of the country called “Romania”?

  30. Is Ping still on here? Hey Ping.

    6, MM, dope3, etc. Shhhh…

    6: I am saying that you appear not to even care about whether you are right or wrong anymore, but rather whether or not you can get away with it, just like the Cybersource “judges.”

    Ned: information transformation is technology.

    Dope above regarding Rome: Romanian technology stagnated. That was the problem. Not that they didn’t have a lot, but that it stagnated. They were good at stealing it from others and invented a couple of important technologies, but rather than progressing they stagnated.

  31. attempt to follow Supreme Court precedent

    Does this include the bastardization of Supreme Court precedent that was “followed” in Cybersource?

    Wasn’t the Rader approach the actual approach used by all nine Justices in Bilski?

    The answers to these questions makes me wonder whether the conservative/radical labels are not simply backwards.

  32. 6:”You probably won’t. Because you sux at business. But if you were good at business then you’d do it the same way everyone else does.”

    AI: You mean I can make money on a business selling hamburgers that has gone out of business? And out of business because a bigger McDonald’s stoled my invention that enabled me to compete nonetheless?? And you say everyone is making money on businesses that are closed and out of business? I have never heard of such 6. Can you provide one real world example?

    6: ” If you try to bust up ins word processing then yeah, you might pull a patent hawk and you might get your “inventionlol” stolen. And then the judiciary might sanction the “theft”. And I might lulz.”

    AI: So you just admitted that you don’t care if MS steals software inventions from little inventors. And I pressume you feel the same about big comps stealing business methods as well. Well then there is no reasoning with you eh 6? You have no ethics, no moral compass, no integrity whatsoever. You believe in theft, and discrimination.

    6. “Because they’re abstractions. You even just admitted it.”

    AI: You have evaded the point that once abstractions,( which all inventions are at conception) are applied, once reduced to practice, they are no longer abstract.

    You must evade this point because your unethical philosophy of IP piracy, theft, and discrimination can’t stand when confronted by the law.

    You must evade this point because your intellectually impotent ideas like your phony pre-emption doctrine falls like a house of cards when forced to identify and provide examples of abstractions in a claim.

    You must now cut and run since you can reply with anything but juvenile invectives and more evasion.

    You may now join Malcolm and Ned in the Club. NAL would be so proud of you.

    :: Gives 6 His Skirt::

  33. Actual Inventor said in reply to Ned Heller…
    Ned: “Does anybody seriously agree with this?”

    I agree Ned. And I would “honestly” like to see you respond to the “The Supreme Court’s: comment below.”

    Hey Ned:

    Welcome back. Did you have a good weekend? I was wondering why did you duck the point the commenter “Supreme Court” made in response to your challenge?

    SC answered your question and you still cut and run. You have now officially earned your skirt. Go join Malcolm in the club.

  34. Night, we have people who attempt to follow Supreme Court precedent and decide 101 cases based on rules of law, vis-a-vis the Rader approach of no rules, but we call it as we see it (the “not so manifestly abstract” test), and you want impeach the conservative judges and applaud the radical?

  35. A negative of the renaming and separation is that the Qwikster.com and Netflix.com websites will not be integrated.

    I wonder if they’ll patent this new arrangement?

    ROTFLMAO.

  36. NWPA their conduct rises to the level that I think a non-frivolous impeachment claim could be made against the entire panel of “judges.”

    Good luck with that, Night Wiper.

  37. I have just listened to James Dyson on the given link to Bloomberg. I liked his definition of “technology” and his inclusion in it of “software technology”.

  38. The PTO has released its fee schedule effective September 26th, at link to uspto.gov , but curiously it makes no mention of any 75%-reduced microentity fees, even though Sec. 10 of the Act is supposed to take effect immediately on the date of enactment. Am I missing something here?

  39. No part of it at all. I wonder, Shape, whether indeed you can tell the difference between the particular and the general, and have you yet read Rader, from start to finish? The utterance I’m on about (quoted at the outset of this intercourse) might be obiter dicta but, nevertheless, it is CJ Randall Rader writing real words in real ink, and signing it afterwards.

  40. “We now have “people” on the federal circuit that should clearly not be there. ”

    Don’t be so mean to Rader bro, he’s only got his head on backwards in like a few major issues.

  41. The people, and congress, never included software of business methods in patents. Which is my point tard. You think they did because you’re a tard, but they never did. Do you think Congress hid the elephant of “financial arts” in “useful arts”? Do you also think that they hid the elephant of “software” in the stat classes? Because those are some large arse elephants hidden.

  42. “But 6, how will I make money if McDonald’s can legally take my business method and then use it to put me out of business?”

    You probably won’t. Because you sux at business. But if you were good at business then you’d do it the same way everyone else does.

    “Actual Inventors will be reluctant to spend toiling on an invention without the possibility of a patent.”

    OH NOES! RELUCTANCE! THE WORSTEST THING IN THE WORLD!

    “Because if the example is of a non-corp individual programmer Vs Microsoft, MS will steal the software and sell it on the market before the non-corp individual programmer can even get it out of the garage. ”

    WHAT? We see an entire list of indie dev’s on nothing but the apple store. Trust me, MS doesn’t “steal” everything. If you try to bust up ins word processing then yeah, you might pull a patent hawk and you might get your “inventionlol” stolen. And then the judiciary might sanction the “theft”. And I might lulz.

    “So why should they then not be eligible for patents under 101?”

    Because they’re abstractions. You even just admitted it.

    “on the merits”

    The merits? You have no merits old man. Just laziness and entitlement mindedness.

    AI look dawg, I got stuff to do man, so carry on with your lazy arse entitlement minded nonsense. You old guys just can’t get out of the way fast enough.

  43. “your take away from the interview illustrates what a dope you are. When you listen to an acommplished man (not dopey boy), you listen carefully to what the drivers of success are.”

    Oh you mean the ease of trolling/setting up obstacles? What were they tard? Oh, no, the driver of success for him was $$$ made in the market.

    “Watch the Charlie Rose show which is expert in asking questions not about a person speculation on issues that they do not have experience with, but about what they have succeeded at.”

    Now I need to watch a whole other show about this clown? Is he as on the spot as he was in this one? Because if so, I’ll just skip.

    “In the interview: big take away, corporations were lazy and didn’t care about innovation, patents enable him to exclude others who want his invention from making it without him, patents too hard to enforce.”

    Sooooooo… what? What NWPA? I’m aware that there are “lazy” companies in the world. What of it son? Is that a revelation to you old timer?

    “Read this article and you get an idea why the teabaggers on here are feeling less and less of the need to be intellecutal honest or for that matter intellectural at all. 6, MM, dope3, etc. you should you should read this article and see yourself as the blockheads. ”

    Oh, so now an article justifies not being intellectual? Gotcha, tard. That’s great reasonin’.

    What’s funny about that article is that you’re the Eastern Blockhead. And you don’t even know it. Lulz.

    The guy with no balls coming to tell the guy with balls he has no balls. I admit, your balls might be considering dropping sometime soon.

    And just btw, I’m certainly not voting for Obama. I sent him there to bring troops back and end wars. Bang up job. If we’re simply going to have to be there no matter who is in office I’d just as well have ol Parry in. That’s with an a mo fo.

    On the other hand, I really can’t say I’m impressed he shot a coyote. Now, if he’d have killed it with his own bare hands then I’d be impressed.

    I have to be a little bit curious though NWPA, even the article seems to admit that the “no nonsense ballsy” republican/teapartier folks are basically stu pid. So, are you trying to convince us that you’re ballsy but stu pid? I mean, what are you trying to convince us of?

  44. It’s OK to say Yes.

    It’s also OK to NOT say anything.

    Really.

    What part of “does not opine at all” are you having difficulty with?

  45. Sense of avoidance on the abundance of points made against Ned’s pet theories, anyone?

  46. Then why did our man Randall gratuitously write on 103 (as such, and NOT in relation to this particular claim) as he did then: was it just to get us excited, to provoke debate, to have a laugh, or was it to tee the issue up for later, to sound out opinion? Is this how the CJ of the CAFC operates? It’s OK to say Yes.

  47. By the way, I think that the “judges” in Cybersource are clearly “blockheads”, and that their conduct rises to the level that I think a non-frivolous impeachment claim could be made against the entire panel of “judges.”

    We now have “people” on the federal circuit that should clearly not be there.

  48. 6, your take away from the interview illustrates what a dope you are. When you listen to an acommplished man (not dopey boy), you listen carefully to what the drivers of success are. What motivated him? What does he see as the big problems? What did he figure out that made him successfuL? Watch the Charlie Rose show which is expert in asking questions not about a person speculation on issues that they do not have experience with, but about what they have succeeded at.

    In the interview: big take away, corporations were lazy and didn’t care about innovation, patents enable him to exclude others who want his invention from making it without him, patents too hard to enforce. Listen, boy, to what he says about what he knows. Dope.

    Read this article and you get an idea why the teabaggers on here are feeling less and less of the need to be intellecutal honest or for that matter intellectural at all. 6, MM, dope3, etc. you should you should read this article and see yourself as the blockheads.

    link to nytimes.com

  49. Mal, you have a point there MAL. The Romans were indeed famous for many technical advances, the bulk of them in civil engineering. Why, the Brits never really understood the Roman sewer/aqueduct systems until the mid 1800′s. Road building resumed about this time as well.

    A lot of the technology was invented and maintained by the army. When it disentigrated, so did civilization.

  50. I think the words of “This decision does not opine at all on the patentability of the claimed invention under the substantive criteria set forth in § 102, § 103, and § 112.” tell you the level of “reading into” that should be attempted.

    Not all leaves are tea leaves.

  51. Glad you asked, Shape.

    I’m seeking indications, clues, evidence as to the way the wind (speaking metaphorically) is blowing, between Rader’s left and right ears. I quoted his Ultramercial 103 musings somewhere above. Something about a “technological advance” being the touchstone of novelty, and a sufficient “technological advance” being needed for satisfaction of 35 USC 103.

    It just reminded me of the by now defunct German test for patentability, something which, in English translation, comes out as “technical progress”.

  52. why I enquired above as to Rader’s view on the patentability (103, 112)

    It was Eyes Wide Shut that injected the (103, 112) bit. Prior to that the conversation was on 101.

    In Ultramercial, the issue decided was a 101 issue. As to (103, 112), the case explicitly states “This decision does not opine at all on the patentability of the claimed invention under the substantive criteria set forth in § 102, § 103, and § 112.

    What “evidence” in Ultramercial are you referring to?

  53. by reading your own words on Cybersource

    These are the important words that all should read: “However, Cyborsource is replete with its own issues and is not expected to stand.”

    As you no doubt are aware, Cybersource was not written by Rader. If you want to obtain a consistent Rader view, you must throw Cybersource out (which will be done for obvious reasons).

  54. Perhaps you see now anon, by reading your own words on Cybersource, why I enquired above as to Rader’s view on the patentability (103, 112) of “pure” business methods, as evidenced by his more recent writings on this subject, in Ultramercial.

  55. ” Well, 6 without the incentive of a patent you wont get both pieces of software, or business methods”
    You repeat that fallacy as if it is some sort of thing set in stone.”

    AI: 6 you are taking my quote out of context. There is no fallacy here. You say you want more software and business method inventions. I am saying that in order to get inventors to invent you will need the incentive of a patent. For you to claim to work in the Patent Office and not believe patents are an incentive for inventors to invent is like being a doctor and not believing in saving human life. Why are you in the job? Quit and do it today, please.

    “Oh and tard, time, trial and error are not a toll booth”

    AI: No 6, time, trial and error equates to money. Money Actual Inventors will be reluctant to spend toiling on an invention without the possibility of a patent.

    “So why should I open a business with a new method for making hamburgers, faster, cheaper, and tastier and allow McDonald’s to just steal it?”
    To try to make money you lazy ar se f.”

    AI: But 6, how will I make money if McDonald’s can legally take my business method and then use it to put me out of business?

    “I was not implying that it was a bigcorp. I was implying that it was a non-corp individual programmer (for example). But being a tard I know you have a hard time recognizing this. However, even in the bigcorp example, why bother with patents at all in that situation? If they’re both going after it, f it, let them take it to the market as it were.”

    AI: “Because if the example is of a non-corp individual programmer Vs Microsoft, MS will steal the software and sell it on the market before the non-corp individual programmer can even get it out of the garage. You can’t possibly be so naive to think a small programer is on an equal playing field with big corps like Microsoft and Google. And even if you do, you still have not justified from a policy perspective why Software, and business methods too for that matter, should not receive the same rights as other sub categories of the process, such as machine, manufactures and compositions.”

    “What about Postits? Or the concept of a drive though window? How about the idea of overnight delivery of boxes and letters? ”
    A decent invention, an abstraction, and an ancient abstraction from early history respectively.”

    AI: The latter two may be concepts in the abstract but once applied they are no longer abstract. So why should they then not be eligible for patents under 101? And leave ancient history out of this because we are talking about 101 and not 102 Novelty.

    “Other than that AI, I really have nothing else to say to you bro, you’re living in a fantasy world, not reality of 2011”

    Of course you have nothing else to say because you have lost this debate on the merits and lacking the facts and intellectual depth to continue choose simply to run away. That’s your pattern here 6. Classic.

  56. I will tell you what is irrelevant. Your exclusion from the useful arts of business methods and software. What is irrelevant is your thoughts on exceptions when the law is plainly adverse to your wants.

    It is what the people want that matters.” I see. So the people have just spoken (through the elected representatives and now fine and dandy business methods and software have been point blank outlawed, right? What? They haven’t? Well, I guess 6, you are just going to have to deal with “what the people want.”

    T O O L

  57. ” Well, 6 without the incentive of a patent you wont get both pieces of software, or business methods”

    You repeat that fallacy as if it is some sort of thing set in stone. I get quite a lot of software, and business methods without patents. I have personally created some of the ones I’ve recieved ffs. I know good go d dam well that factually speaking, you are in error and I can personally produce evidence the contrary. (As could you obviously though you don’t want to admit it).

    Oh and tard, time, trial and error are not a toll booth.

    “So why should I open a business with a new method for making hamburgers, faster, cheaper, and tastier and allow McDonald’s to just steal it?”

    To try to make money you lazy ar se f.

    “If the big corp indeed is first to invent new software, or a new business method they should have the patent on it. And the same for the lil guy. Then let them both compete, for funding, and the hearts and minds of the customer.

    I was not implying that it was a bigcorp. I was implying that it was a non-corp individual programmer (for example). But being a tard I know you have a hard time recognizing this. However, even in the bigcorp example, why bother with patents at all in that situation? If they’re both going after it, f it, let them take it to the market as it were.

    “What about Postits? Or the concept of a drive though window? How about the idea of overnight delivery of boxes and letters? ”

    A decent invention, an abstraction, and an ancient abstraction from early history respectively.

    Other than that AI, I really have nothing else to say to you bro, you’re living in a fantasy world, not reality of 2011. That is, we have a fundamental different outloook on the world, it is practically a different political belief. You think people won’t do anything without the promise of immediate reward, even if that something is nothing but writing down a bunch of nonsensical legalese relating to some business abstraction. You may well be right that they’ll stop doing such things, but that doesn’t mean that the subject matter recited will not pop up in the market when someone slightly less lazy and with more ability will come along and make some $$$.

    In short, I simply don’t respect the lazy “inventors” doing nothing more than putting pen to page, and you hold them in the highest esteem. You are pathetic. And if you were before me I would spit into your eye. And you would take it because you are shamed.

  58. I make an exception for the Useful Arts NIMBY. And I’ll tell you why. Because those disclosures are VALUABLE. That is, the disclosure, the publication, itself, the fact that it is published, is valuable.

    That cannot be said of pretty much any business methods and it cannot be said of the vast vast majority of software “inventionlols”.

    Now, as I’ve noted, perhaps, just perhaps, congress would also like to make those arts a deal for their disclosures. Perhaps it will involve a more stringest examination, or a less stringent examination, or just a different examination, and/or perhaps a subjective determination on the part of the gov. whether or not it feels like it would like to be able to publish something in exchange for something else, perhaps an exclusive right for awhile, or perhaps simply some cash. I would caution away from making this an entitlement program like the patent system is, but that is up to the congress.

    The bottom line is, software and business methods were never included in patents and it is wrong to shoehorn them in. If you want exclusive rights, then ask congress for them.

    And no, I don’t have to do any better than mere “want”. It is you that needs to do better than mere “want” as you are the one trying to shoehorn in arts that are not the Useful Arts into a system made exclusively for the Useful Arts.

    Also, I need not do any better than mere want because my want, or my rational analysis or whatever you think I’d need to do better is irrelevant, it is what the people want that matters. And they need no rational basis on which to take action. In fact, emo basis for action is the one that most gets the crowd a movin’.

  59. And, doubtless, those at the Treasury are looking forward to a probable increase in fees.

    Fixed (fee diversion still in place).

  60. One of the few helpful measures that I see contained in this legislation is a provision requiring a showing of “competitive injury” in order to obtain standing in a false marking suit. This should prove effective in reducing (if not eliminating) the new scourge of false marking patent trolls. And, doubtless, those at the USPTO are looking forward to a probable increase in fees. But, from what I can tell, the rest of this bill is a wash.

  61. First we have Mal and 6 double teaming Ned, and then you jump 6 from behind.

    Wow! The Anti Patent crowd is really coming unglued.

    Maybe its the string of recent defeats handed down by the courts.

    It’s like the Stoooges in full fight mode, hammers to the head, eye pokes, hair pulls and all!

  62. 6:I want to leave the fields with ~0 innovation costs open to all, without allowing toll booths to be setup.

    AI: Eliminating business methods and software from the patent eligible processes will not “leave those fields with 0 innovation costs.” It will always take at least time, trial and error to invent, and time is always money in the business world. So the basis for your policy change is without commercial and economic merit.

    6: “You have a great business method, COOL AS F. Now go open your business and see how it works.

    AI: So why should I open a business with a new method for making hamburgers, faster, cheaper, and tastier and allow McDonald’s to just steal it? Especially when its obvious they never thought to try it or could invent it for themselves. Seriously 6, why should this big McCorp never have to compete with small corps on innovation of new business methods?

    6: “You have a new software function? COOL AS F. Now go write it and put it on the interwebs and see if you can turn a dollar.

    AI: Why should I put up my web site only to have YouTube, Hulu, and Google steal the idea and make billions off my software? I am the little guy that worked in my garage without health insurance, a salary, and a life to finally invent something the world finds useful, and now has to watch as it taken by big corps and exploited for billions. There is no incentive for me to invent. And there is little practical use of me spending the cash in my savings account to open a business that will be wiped out in months, by a few big comps.

    6: “I don’t want people that come after these people to have a toll setup on them doing the same exact thing.”"

    AI: Then you must be against patents because isn’t that what happens when an inventor is granted his/her 20 year monopoly? And from a policy perspective if you deny small businesses the same rights enjoyed by big businesses, by virtue of their might, then where will the new innovations and jobs come from? 6, surely you can’t expect the small guy/Actual Inventor to keep feeding the big goliath comps their ideas only so the big comps can remain in power forever? Then big comps will then have no reason to change or innovate, or think of anything on their own. And they will not have any reason to hire any new employees, especially when they can get ideas for free. And us lil guys will have no cash or incentive to start our own businesses and hire employees to help make it run. And this just hurts America, and our position in the world. Since something like 85% of all new jobs are created by small businesses.

    6: I WANT different implementations of “inventionlols” like this, and I want a lot of them. I don’t want anyone discouraged to make a new piece of software because they’ll get shut down by Small Corp AI Inc. because they totally “invented” it first!

    AI: The best way to achieve your goal then is to make the patent process open to all and an equal playing field between big Corps and Actual Inventors. If the big corp indeed is first to invent new software, or a new business method they should have the patent on it. And the same for the lil guy. Then let them both compete, for funding, and the hearts and minds of the customer.

    6: ” No, I want both mo fin pieces of software, and hopefully the new guy made a better version than Small Corp AI Inc. and then I will use it instead of Small Corp AI Inc’s version. Same goes for business methods.”

    AI: Well, 6 without the incentive of a patent you wont get both pieces of software, or business methods. The small AI Inc. will not want to invent if it’s obvious that the invention will be stolen. So if you truly want innovation in software and business methods from both sides then you must change your attitude and let both sides wet their beak,. We all must be able to draw water from the well, as Don Barzini would say. Or as I, Actual Inventor says. Patents for all or patents for none!

    6: “You talked about an invention for bringing the smells of doughnuts to customers. Cool, I want all doughnut owners to implement that without paying sht to anyone. And then I will decide who to buy a doughnut from based on whether or not I like their doughnuts and whether I like the employees/owner, just like “I” have for generations.”

    AI: Okay if everyone from Krispy Kreme to Dunkin can all steal my idea, and make money from it, how am I going to make a living? Your policy just cost me a job, my life savings, my childrens future. Your policy of denying my business method patent cost everyone I could have hired a job as well. And most important to you, your policy just cost you the freedom to enjoy the very invention you want to have a right to enjoy, because I, the Actual Inventor had no incentive to invent it.

    6: “People have plenty of incentive to make these “innovations” on their own, there is no need to reimburse people with a patent for putting up a vent to vent air to customers and thus having “invented” your new business method. Or for having taken a day or week to write a program. There is absolutely 0 reason to provide a 20 year monopoly just have those kinds of things written down (published) either. This is arse backwards from “actual” inventions where there is technical knowledge to be gained from the disclosure. It isn’t just some “make a computer do this” or “do this to collect more money”. It’s “do this to make a better/different product”.

    AI: Well now 6, there is absolutely zero correlation between the perceived or actual complexity of an invention and its quality or uniqueness. And if I am correct there is nothing in the statute or case law that says an invention has to be deemed with a certain degree of complexity to be eligible sub matter. Am I right? After all some very simple inventions have really changed the world and made it a better place. What about Postits? Or the concept of a drive though window? How about the idea of overnight delivery of boxes and letters?

    When all of these ideas are reduced to practice they promote the progress of the useful arts. They make the world a better place and provide benefits to all. As Rader would say, “”[I]nventions with specific applications or improvements to technologies in the marketplace are not likely to be so abstract that they override the statutory language and framework of the Patent Act”;

    6:” That, and “technicalities” of patent law reasons as well.”

    We all know you have completely lost on the law. Business methods and software are patent eligible subject matter. You have to let them thru providing they meet 112, 102, and 103.

    But I am curious 6, since you have made your personal bias so clear here today, do you really reject patents for business methods and software simply because of the subject matter? I know even if you do you will eventually be forced to issue said patents . The AI may have to spend more time and money but for you to ignore the law and purposely, willfully reject a patent because you do not personally like the subject is unethical to say the least. It’s not unlike a job interviewer that rejects applicants because of the color of their skin or sex, even though the laws say you are not allowed to do it. It’s repugnant and downright unAmerican.

  63. I don’t want people that come after these people to have a toll setup on them doing the same exact thing

    The EXACT same thing for the EXACT same reason can be said for ANY art field covered by patents.

    ANY.

    You will have to do better than mere “want.”

  64. “6 Why are you against business methods and software inventions? ”

    Because the very notion of them offends the sensible mind.

    And a few other things but I’ll just leave it at that.

    “Dyson specializes in new uses for old and known inventions, like combining a rubber ball and a vacuum cleaner”

    And I have no problem with him doing that.

    “For you to be against the two core subcategories of processes only shows you do not want to promote the progress, but instead, retard it”

    No tard, I want to leave the fields with ~0 innovation costs open to all, without allowing toll booths to be setup. You have a great business method, COOL AS F. Now go open your business and see how it works. You have a new software function? COOL AS F. Now go write it and put it on the interwebs and see if you can turn a dollar. I don’t want people that come after these people to have a toll setup on them doing the same exact thing. I WANT different implementations of “inventionlols” like this, and I want a lot of them. I don’t want anyone discouraged to make a new piece of software because they’ll get shut down by Small Corp AI Inc. because they totally “invented” it first!

    No, I want both mo fin pieces of software, and hopefully the new guy made a better version than Small Corp AI Inc. and then I will use it instead of Small Corp AI Inc’s version. Same goes for business methods.

    You talked about an invention for bringing the smells of doughnuts to customers. Cool, I want all doughnut owners to implement that without paying sht to anyone. And then I will decide who to buy a doughnut from based on whether or not I like their doughnuts and whether I like the employees/owner, just like “I” have for generations.

    Call it political if you will. People have plenty of incentive to make these “innovations” on their own, there is no need to reimburse people with a patent for putting up a vent to vent air to customers and thus having “invented” your new business method. Or for having taken a day or week to write a program. There is absolutely 0 reason to provide a 20 year monopoly just have those kinds of things written down (published) either. This is arse backwards from “actual” inventions where there is technical knowledge to be gained from the disclosure. It isn’t just some “make a computer do this” or “do this to collect more money”. It’s “do this to make a better/different product”.

    That, and “technicalities” of patent law reasons as well.

  65. Before one puts any credence whatsoever in SCOTUS about any manner concerning technology let us not forget that no sooner did they render a decision that it is obvious to subsitute an electronic equivalent device for a known mechanical device in terms of accelerometers that people started being killed in Toyota cars with electronic accelerometers that malfunctioned. Perhaps they weren’t known equivalents after all.

  66. “But I haven’t watched the Dyson interview yet.”

    Lulz, no wonder you didn’t find it funny. Maybe u should watch the fin interview before “calling me out”. I didn’t say he was an id iot, I said he came across as one. Or he was just on the spot. Either or, or both.

  67. “He might be old but on this subject he knows quite a lot more than you do, my son.”

    Lulz, I’m sure he does, I know he was a famoose inventard a long time ago.

    The bottom line was that his incoherent rambling about the system in that interview made no sense and was substantially hilarious.

  68. Is that it? That all you’ve got to counter Rader’s little walk in the 103 park? OK then, I can well accept that end to our conversation thanks.

  69. Rubber Ball Vacuum Cleaner… Why didn’t you think of it Max. That is the most Awesome Vacuum i have ever seen. Why don’t you Vacuum for a few weeks with an Electrolux.
    And then go on and try a few are Canister Vacuums.
    Vacuuming to good for yah?

  70. As I travel through the oceans,
    go from Sea to shining Sea.
    I was into the notion,
    of Constitutionality.
    How silly of me… I am truly a Mays d.

  71. The Supreme Court is technically incorrect – but only in regards to naming five members of the Court that agree with the contemporary defining doctrine. He was incorrect in saying that he can name five. He named ten members of the Court that agreed.

  72. Don’t follow.

    MaxDrei, your horse has been led to the well. You have been given pincites and the concept of which terms depend on definitions of contemporay meaning. If you cannot connect the dots to see that “useful arts” follows the contempory meaning of that term, and that that meaning includes more than “technological arts,” then you must remain thirsty.

    No one can force you to drink from the well that lies in front of you.

  73. Methods of thinking – that are entirely within the human mind. See Cybersource (“steps can all be performed in the human mind. Such a method that can be performed by human thought alone is merely an abstract idea and is not patent-eligible under § 101″).

    However, Cyborsource is replete with its own issues and is not expected to stand. See the particular threads discussing the problem of not citing the entire state of the law on 101 (e.g. omitting Diehr from the analysis).

    In fact, the only way that Cyborsource did not run afoul of the earlier decision of Research Corp. Techs (which was binding on the Cyborsource panel), was to constrain the “entirely within the human mind” aspect with an additional point:

    “machine ‘must play a significant part in permitting the claimed method to be performed.’”

    So what is this “significant part,” one may ask.

    In Cyborsource the “significant part” can be a mere “practical matter” (“This is entirely unlike cases where, as a practical matter, the use of a computer is required to perform the claimed method“, and “the method could not, as a practical matter, be performed entirely in a human’s mind.

  74. Translation:

    Mal states “I’ve provided more profanity, accusations, handwaiving and conflation of legal concepts regarding my positions than any other contributor to the comments here.

    Yup. Hands down. Mal is certainly the most prolific at profanity, accusations, handwaiving and conflation of legal concepts. Bar none.

  75. I note with interest your statement that:

    “any particular claim FROM ANY PARTICULAR category of methods may still fail 101.”

    and should be glad to know what considerations might cause a very specific and particular claimed method to fail 101. Methods of thinking perhaps.

  76. Between those two extremes lie TWO other important items:

    1) the rest of the Statute, specifically, the substantive requirements to be met: 102, 103 and 112, is, and always should have been, where the critical attention should be at.

    2) business method is merely a category of method. You sound like you are falling to the Ned Heller trap of “categorically” with your “Had SCOTUS declared without equivocation that every pure business method is unarguably within the Constitutional ‘useful arts’ .” That’s just not how it works, because any particular claim FROM ANY PARTICULAR category of methods may still fail 101. This was made explicit in the threads discussing medical methods. If you were to open your eyes, you would see that indeed SCOTUS has never “declared without equivocation that every [pick ANY category] method is unarguably within the Constitutional ‘useful arts.’”

    The whole point of this ongoing debate is that there simply is no reason to exclude business methods as a category under US law (and note, this has a distinctly different meaning from “categorically”). Let’s avoid the traps, shall we?

  77. Don’t follow. Please be more specific about where your chosen 5 endorse the patent-eligibility of a “pure” (ie not tied to computer implementation) business method. Seems a bit of a stretch of the Bilski opinions, and a hopeless over-stretch from Diehr.

    Had SCOTUS declared without equivocation that every pure business method is unarguably within the Constitutional “useful arts”, I think I would have heard more about it.

    I continue to think they are at pains to avoid the opposite. What they are at pains to avoid is an unambiguous declaration that every claim to any sort of business method unequivocably fails the 101 test.

    Between these two extreme positions lie the battles of the future.

  78. Rubber ball and vacuum cleaner? Wow, that really is inventive. I suppose that was an inventive new twist on his famous first invention, the ball + wheelbarrow BALLBARROW.

  79. So the Chain grows then. USC 17 1743 CHAPTER 2. Now I see that the BOX they designed for me is clearly now Their BOX. Now I get why I received my Copyright RR Cards so late. He was just waiting for me to be showing my Address so the USC 18 268 could be applied. And Pro Se was not even relevant because Slaves own nothing. I think you are going to need an even bigger BOX!

  80. Actual, why did you think I would never be “calling out” 6? Was it because 6 is my buddy, or because it isn’t my style?

    Mind you, I suspect that 6 quite likes being called out. I think he is deliberately provocative. I think he might have been trying to provoke an answer just like mine, and his plan therefore succeeded brilliantly. Anyway, no matter. Thanks to 6, I could get my point across.

    But I haven’t watched the Dyson interview yet. What’s all this about his being against patents on business methods. Curious, eh?

  81. Mal: “Go eff yourself sockie. I’ve provided more explanations and answers regarding my positions than any other contributor to the comments here.”

    Well, I checked, (googled) and you certainly have spent more time “effing yourself” than any other commenter on this blog.

  82. Max: “He might be old but on this subject he knows quite a lot more than you do, my son.”

    Maxie, kudos to you for calling out 6. Never thought I would see that happen. But kudos none the less.

  83. 6: “And so long as he’d leave softwarze and biz methods out then I’d be onboard with his patent system change train.”

    6 Why are you against business methods and software inventions? These sub categories of processes represent the greatest chance for new innovations and pioneering inventions that actually make progress. Dyson specializes in new uses for old and known inventions, like combining a rubber ball and a vacuum cleaner. And while I am all for patents that only comprise using old elements to create new uses, its processes that we need to solve our global problems and provide the great leap into the 21st century. For you to be against the two core subcategories of processes only shows you do not want to promote the progress, but instead, retard it. Which might explain your affinity for using the word “tard” so much on these blogs.

  84. James Dyson was famous in the UK long ago (when he was a lone young inventor in his (British) garage) for his outspoken complaining to Government about how the patent system was then being implemented (not about patents as such, but about how they are litigated).

    A string of successful products later (vacuum cleaners, Airblade hand dryers, turbulence-free, soundless cooling fans) he is a billionaire, all made out of his stream of products. He’s a seasoned old hand at patent litigation, all around the world, but he’s still saying the same things about how the patent system should be re-designed.

    He might be old but on this subject he knows quite a lot more than you do, my son.

    I don’t think he’s funny at all.

  85. ” I would think that this would also fundamentally deter inventive activity by anybody who did not have the wherewithal to go into business manufacturing and selling the product himself.”

    Ok Ned, and that’s fine, even though that view is halfway re tarded, I’d meet you halfway. Let us change the patent bargain a tad, an inventor who invents but does not commercialize can be assured a job with the guy who did have the balls to commercialize.

  86. “There was little technical progress.”

    LOL WUT? Compared to the world around them the Romans were go ds of innovation sir.

    Ned, you need to brush up on your history sir. Sure, they didn’t come up with things like the car, but they sure as sht came up with great military techs, aquaducts, etc. etc.

  87. “There was little technical progress.”

    LOL WUT? Compared to the world around them the Romans were go ds of innovation sir.

    Ned, you need to brush up on your history sir. Sure, they didn’t come up with things like the fking car, but they sure as sht came up with great military techs, aquaducts, etc. etc.

  88. “Notice that he says that without patents there won’t be any innovation. Also, notice that he says it is very difficult to enforce patent, and also that NPEs are a problem.”

    Lulz, I agree with him. And so long as he’d leave softwarze and biz methods out then I’d be onboard with his patent system change train.

    Even though he comes across in the video as substantially an idi ot.

    I liked the part about “technology you can’t see, necessarily”. So, it’s technology that exists, but you just can’t see it! Lulz.

    I also liked the part about “I don’t mean like google on the web, I mean like real artifacts”. That’s right, tell us about artifacts and leave the business methods and software out. Eh Dyson?

    And then, “I see a system that was designed by Henry the 8th”. Lulz. “and he insisted that they show everybody what you’ve done so they could get around it” (apparently he thinks 112 is a bad thing because YOU CAN’T SEE his inventions).

    A few other funny lines: “patents are too easy to get around” (maybe he should talk to his drafter about this one) “it’s too easy to troll and put up obstacles to someone trying to sue you for patent infringement”. So… wait, “it’s too easy to troll” and separately it is too easy to put up obstacles? Or does he think trolling somehow involves putting up obstacles?

    He’s a funny old man. Maybe he’s just “on the spot” in the interview.

    But on the whole, just a funny old man who halfway understands w tf is going on.

    The half he understands is: “it needs to change”.

  89. Very nice! Thanks NWPA. Dyson does a superb job of explaining the importance of patents for Actual Inventors to keep on inventing. I would not spend the time and money to created any improvements or come up with new inventions if not for the chance to have a patent and exploit my work. 6, MM and the rest could care less about Actual Inventors, innovation and progress. They invent nothing. They contribute nothing. And are a complete waste of space.

  90. Diehrbots United Most Belligerently , The Supreme Court, thank you for your scholarship, and diligence in keeping the discussion honest and based on the facts of law. You provide a great service to Actual Inventors, everywhere. And let us not forget the work of AI’s Diehr Diehrist! Where ever that good and noble keeper of Diehr supremacy be this morning. Sincerely, Thank you all!

  91. Ned: “Does anybody seriously agree with this?”

    I agree Ned. And I would “honestly” like to see you respond to the “The Supreme Court’s: comment below.

  92. Well Maxie:

    I think some of the other commenters have done a far better job than myself at shedding light on the philosophical underpinnings and historical context of “useful arts” and technology per se. But if you want an Actual Inventors take on it, then I simply see as Rader pointing out that the invention still needs to be Novel and Non Obvious to receive a patent.

    I believe that Rader’s use of the word technology is not limited to iron and wood objects and mechanical devices that comprised the bulk of patented inventions in the 1800′s. or at the time the Constitution was written.

    Rader, like all Actual Inventors, and proponents of the patent system realize that technology and the useful arts in general comprise complex information processing systems, and methods that advance progress in business and industry in a quantum mechanical age as opposed to an iron age.

    And that is were we are headed mate! Into a brave new world of innovation that creates jobs, improves the standard of living and provides economic prosperity for all.

    Sure there are some still in dark ages and living under a fading light bulb of socialism that wish to retard progress. But they are outnumbered by the true progressives and retiring and dying off .

    The age of quantum revolution has begun in earnest!

  93. Anent your linked article, on 10/5 the Supreme Court is set to hear arguments in the matter of Golan v. U.S.

    The case revolves around the constitutional power of the government to restore copyright in certain foreign works that were then residing within the “public domain”.

    Eldred v. Ashcroft demonstrates that “limited times” is not as limited as one might believe.

    Golan addresses the situation where something has entered the “public domain”, and then Congress comes along and plucks it out. See: 17 USC 104a

    It may be useful to consider what relationship, if any, these cases may bear upon the “trade secret…then patent” situation being posited here.

  94. Ned and 101:

    Thanks for the reply. You may be right. I was just trying to bounce arguments off the community without too much thought. I’m still not convinced that I couldn’t use 101 in the way I’m saying in litigation. I’m guessing there’s no case law since 102(f) would have been the more straight forward vehicle under the 1952 statute.

    Is there legislative history on this? It seems ridiculous to me that a third party can’t challenge inventorship. If not, then there would seem to be pretty good constitutional arguments, which I think you (Ned) have raised in past posts.

  95. To answer Ned’s question above,

    The five Supreme Court Justices that agreed with the contempory meaning of terms, including “useful arts” were:

    from Bilksi: Kennedy, Alito, Roberts, Thomas, and Scalia.

    from Diehr: Rehnquist, Burger, Stewart, White and Powell.

  96. Bilski at 7 (Majority opinion):

    The Court is unaware of any “‘ordinary contempory, common meaning,’” Diehr, supra at 182, of the definitional terms “process, art or method” that would require these terms to be tied to a machine or to transform an article.

    and

    Diehr 450 U.S. 175, 182 (reaffirmed in Bilksi, syllabus):
    “[u]nless otherwise defined, ‘words will be interpreted as taking their ordinary, contemporary, common meaning.’”

    Read and weap.

  97. Ned One only has to look to the Roman Empire to see a civilization without a patent system. There was little technical progress.

    I just rolled my eyes so hard that I pulled a muscle.

    Wanker of the Year nominee for sure.

    link to en.wikipedia.org

    The apparent period in which technological progress was fastest and greatest was during the 2nd century and 1st century BC, which was the period in which Roman power greatly increased. Innovation continued until the fall of the Empire, and it would take hundreds of years for all of its technological advancements to be rediscovered by other civilizations.

    I mean w t f? You’re sitting in front a computer typing up pure bxllshxt when it takes two seconds to check yourself? Fxxxkin A.

  98. Mal does not explain. Mal does not give real answers.

    Sockie loves to project. Go eff yourself sockie. I’ve provided more explanations and answers regarding my positions than any other contributor to the comments here.

  99. Ron Perhaps you might explain how you find “ridiculous on its face” the argument that extending one’s patent monopoly after years of secret commercial exploitation would not be reasonably challenged on constitutional grounds when several Supreme Court cases suggest constitutional grounding for holding that such activity must bar a patent.

    Is your position that because some argument appears in a Supreme Court case that the argument is per se not ridiculous on its face? If so, there is no point discussing anything with you.

    There is no fundamental right to a patent. The Constitution does not require that any patents be granted to anyone. It just indicates that the power to establish such a patent regime lies with Congress, not the States. There are no express restrictions on other commercial laws Congress may pass, unless you want to look to other articles/amendments.

    So what is the Constitutional basis for finding a patent law unconstitutional merely because, as you understand the law, it extends patent rights to people who have previously kept their inventions secret for some period of time?

    Just provide the reasoning. I’ll try not laugh. And no, citing to some Supreme Court dicta that barely analyzes the issues doesn’t cut it.

  100. Night Rider, I fundamentally agree with the commentator on some points. One only has to look to the Roman Empire to see a civilization without a patent system. There was little technical progress.

    I will also have to point out that a printing press and a viable court system also have a lot to do with the advancement of technology.

    Regarding NPEs, just assume for the moment that a nonpracticing entity could not enforce his patent whatsoever. I would think that this would also fundamentally deter inventive activity by anybody who did not have the wherewithal to go into business manufacturing and selling the product himself. Secondly, one of the primary reasons for investors to invest in a startup is the presence of patents which they can exploit even if the business does not succeed in making and selling products. So not allowing NPEs to sue would fundamentally deter invention.

  101. The shape shifter (um no, a new light, descriptor moniker, etc.) said the following:

      “First, keep in mind that advancing technology is only a subset of advancing the useful arts. We should be clear on that by now, even if this opinion is not.”

    Does anybody seriously agree with this?

  102. anonymous, perhaps you are right that §102(f) was superfluous, and that is why Congress repealed it.

    But I don't think this is a proper interpretation what Congress intended.  I believe a better interpretation would be that Congress intended to limit challenges to inventorship only to rival inventors who may have derived from each other.  They fully intended to prevent challenges to patent validity based upon inventorship.  I don't think there is a serious argument to the contrary.  Otherwise, the repeal of §102(f) is incomprehensible.

  103. Max, I think you make a telling point when Chief Judge Randall Rader opines that obviousness is about testing the degree in advance of "technology" when the subject matter of the invention itself is not technology, but he declares it patentable subject matter nevertheless.

    The man is internally conflicted.  Having to believe that two things that are the opposite of each other are the same must drive the man insane – either that, or he is playing games with us.

  104. link to bloomberg.com

    Here is an interesting take on patents from a real inventor. Notice that he says that without patents there won’t be any innovation. Also, notice that he says it is very difficult to enforce patent, and also that NPEs are a problem.

    Note the stark contrast to his comments from the trolls on this board such as 6, MM, dope3, etc.

  105. If I took your posts out of context and misconstrued them it was because your posts were unclear.

    I simply put the two ideas next to each other and was jarred with the dis-similarity.

  106. There’s much for the “Goliaths” to like in the AIA, JD, as they pushed hard (and spent the bucks) to get this malarkey passed.

  107. You misconstrued and took out of context what I said, looking glass. I just said the constitutional argument based on the trade secret/statutory bar provision in the AIA wasn’t “ridiculous on its face,” and not that it would likely have any significant traction with the courts (it likely won’t). There’s a big difference between “plausible” arguments that won’t get you sanctioned under FRCP 11, and “likely to be persuasive” arguments which you can reasonably count on to win the lawsuit.

  108. Allowing one’s prospective patent rights to extend potentially in “perpetuity” would seem to violate “on its face” the mandate of the Patent Clause that those rights be for “limited times.”

    but

    constitutional arguments in the patent law area have little traction with the courts

    W

    T

    F

    EG, do you realize that your first stated position is precisely one of those very constitutional arguments in the patent law area that has little traction with the courts? It seems that you have defeated your own position.

  109. Hang on gang. Are you saying that the new statute allows a company to practice an invention as a a trade secret for a number of years in a commercial way (i.e. to practice a method of making something and sell the something) and subsequently apply for and obtain a valid patent on that method? i.e. abrogating Metallizing Engineering and, as I recall the Auld medallion case?

    If so, wow. No wonder the big companies like this turkey.

  110. We have had difficulty deciding what 18th century “useful arts” are today.

    There is nonsense infused in this question.

    It does not matter at all what the 18th century viewed the “useful arts” as. The Bilski Supreme Court majority (yes the section that had five justices) made it clear that the meaning of “useful arts” that rules is the contemporary meaning.

    For a law so rooted in innovation and change to be so artifially constrained to only “useful arts of the mid 1700′s” is a bastardization that is not palatable and is per se false.

  111. Except, Anonymous, see the sectionin the new law that greatly liberalizes who can submit an oath for an inventor.

    The purpose of 101 is not to control other sections of the patent law as you are attempting to do here.

  112. how this notion of advancing technology

    First, keep in mind that advancing technology is only a subset of advancing the useful arts. We should be clear on that by now, even if this opinion is not.

    Second, “advance” does not mean “linear advance along the given trajectory.” “Advance” also can include alternate (and yes even inferiorly so) paths. The point is that innovation, that future innovation, cannot be known a priori, and that the promotion of the useful arts is achieved by the width of available solutions as well as the “technological” (as that term is often understood today) merit. A lesser solution of yesterday, due to some known or unknown constraint, may be the breakthrough and best solution tomorrow with an otherwise seemingly “trivial” advance in an otherwise seemingly unrelated (or even related) field.

    Even such “lesser solutions” merit the abundant and lavish encouragement that patent rights provide.

    However, a biography of Jefferson also shows his great love for invention, and as soon as he became more aware of the role of the patent office’s power to tremendously encourage invention, he became much more in favor of their use.

    Third, the notion that only “genius” level inventions are worthy of patents is an old one (and a false one). It was recognized as “anti-patent” as far back as the 1940′s and even though the notion was explicitly written out of US patent law in 1952, the notion survives today in those, who for various reasons, wish that patents were at least weakened, and generally preferably quashed altogether.

  113. method of forcing downloaders of scientific papers first to read adverts an ‘advance’ in ‘the technology’?

    You are asking the question with too much bias. The proper question in regards to the advance is: Does the enabling of someone to download something they otherwise possibly would not even have at all by employing some business method an advance?

    If you employ the proper “spin” of “enable to bring benefit,” then the answer is an obvious yes, this is an advance. And not only an advance, but one that resonates with the very fabric of the Constitutional IP Clause itself (a veritable poster child of a worthy advance). The comparison of not having something with having something on a shifted cost basis is definitely more than trivial.

  114. As Ron said, constitutional arguments in the patent law area have little traction with the courts, be it the Federal Circuit or SCOTUS (witness the failed lawsuit on fee diversion being a double tax on innovation, etc.), anon. But the argument about the trade secret/statutory bar provision in the AIA isn’t “ridiculous on its face,” especially compared to the nonsensical argument the ACLU is making in the Myriad (AMP v. USPTO) case, as well as in its amicus brief to SCOTUS in the Prometheus case, that patent-eligibility under 35 USC 101 is somehow a First Amendment issue (a truly “ridiculous” and inane argument “on its face” in my opinion).

  115. Yes Actual, I know all that. You’ve told me before, at least twice, if ma addition is still functioning.

    But back to CJ Rader, yesterday. I repeat:

    “Rader says that the claim (to a process of forcing downloaders to read adverts):

    “…would still need to withstand challenges that the claimed invention does not advance technology (novelty), does not advance technology sufficiently to warrant patent protection (obviousness), or does not…..”"

    Ned tried valiantly already, but would you now like to have a go at telling me how this notion of advancing technology is to be understood, as a gateway to patentability in the USA?

    Me, I’m just wondering (until somebody, you perhaps, disabuses me of the notion) that somebody in Germany has quietly fitted up your man Randall with a square head all of his own.

  116. Maxie:

    There is no technological arts test. There is no technology requirement in our Constitution. And there is no inventive step analysis in our statute. Diehrs claims as a whole doctrine applies to 101, 102, and 103.

    Now your Yankee heroes of Ned, Mooney and 6 may conflate their own personal philosophy, spurred by various losing opinions, ( dissents) and overturned and/or cabined cases, with current law. But that is just their opinion and wishes, not law. Bottom line if ya can’t cite it, it aint so.

  117. Thanks Ned, very much indeed. Back to Jefferson eh.

    I keep being told there is no “technological arts” test for 101 compliance. Is there one though, for 103 compliance?

    We have had difficulty deciding what 18th century “useful arts” are today. But Jefferson said “technology”. Now how would CJ Rader translate that into present day speech? Is a method of forcing downloaders of scientific papers first to read adverts an “advance” in “the technology”? And if so, is it high enough above trivial to be recognised as patentable?

  118. Ned:

    I don’t think I agree. In some sense, Section 102(f) was already unnecessary.

    Section 101 (which is not amended) 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.”

    Under your hypothetical, the patent should be invalid under section 101.

  119. Ron,

    Sure, I definitely feel that colorable arguments on Constitutional issues abound with this new law.

    If you spent any time on these boards you would quickly realize that Mal is Malcolm Mooney, and had been asked politely (and not so politely) to change his ways of discourse (which typically include profanity, accusations, handwaiving and conflation of legal concepts). I think most have learned to either ignore him outright or to push his buttons for a little drama.

  120. @anon:

    Whether one believes that the Supreme Court’s view on this topic may merely be persuasive authority rather than binding authority (and I certainly accept your point of distinction as reasonable), would you agree that the argument is not “ridiculous on its face,” as Mal contends?

  121. The same cases can and do apply to the new prior user statute that protects indefinite trade secret uses. Another case you might add to your quiver, Ron, is Kawanee Oil. Although that case involved the issue of preemption of state trade secret laws, the court did opine that it would frustrate the progress of the useful arts to substitute trade secret protection for the patent system where the trades secret involved patentable inventions.

  122. Mal, you and I have discussed this and you and I have not agreed: but the elimination of 102(f) means to me that a patent can be validly granted to named inventors who did not invent the subject matter claimed. But for the moment, set aside that disagreement and assume, arguendo, that the statute does allow patents to be granted to non-inventors, where the term inventor is accorded the meaning it has within Art. I, Sec. 8, of the constitution, then

    Where does Congress get such a power?

  123. Max, it is clear Rader gets Graham v. John Deere and the European “inventive step” analysis. I recall that whole discussion in this regard in another thread that obviousness was more than just whether the difference from the prior art was unknown, but whether the difference was an advance in the technology that was more than trivial, in the words of Thomas Jefferson quoted in Graham. If the specification describes no advance in the art, it might be difficult, if not impossible, to overcome an obviousness challenge.

  124. mmm, I will assume that you have no problem with granting a patent to an inventor who is not the first to invent. But, do you have any problem granting a patent to the first to file regardless that the first filer is not an inventor at all? 102(f) has been removed from the statute.

  125. Except EG and Ron, there is a clear difference between “prospective patent rights” and “patent rights.”

    Think of it this way:

    Prior to filing an application (trade secret), patent law simply does not apply. The moment an application is filed, the moment when patent law can apply, the subject matter has an absolute “limited times” possibility.

    There is conflation between the two different regimes or types of protections, but such conflation is not constitutional in nature, and thus, any views by the Supreme Court on this topic may merely be persuasive authority rather than binding authority.

  126. Nice “retort,” Ron. Allowing one’s prospective patent rights to extend potentially in “perpetuity” would seem to violate “on its face” the mandate of the Patent Clause that those rights be for “limited times.”

  127. Thanks, I wrote that article on Ultramercial for IPWatchdog. There’s also nothing “abstract” in what Rader is referring to. Instead, without referencing the statutes specifically, Rader is referring to the “substantive patentable merits” provisions of 35 USC 102 (novelty) and 35 USC 103 (obviousness). Put differently, what Rader is saying is that, even if the subject matter is deemed patent-eligible under the “coarse (minimal) filter” of 35 USC 101, it must nonetheless run the more significant “gauntlet” of 35 USC 102/103 to make it the “patentable” finish line. Does that help you?

  128. Mal: “I haven’t heard one argument yet that wasn’t ridiculous on its face. Is there a new one floating around today?”

    Perhaps you might explain how you find “ridiculous on its face” the argument that extending one’s patent monopoly after years of secret commercial exploitation would not be reasonably challenged on constitutional grounds when several Supreme Court cases suggest constitutional grounding for holding that such activity must bar a patent. See link to bit.ly .

  129. On 35 USC 101, I just read Rader in Ultramercial (thanks to the Watchdog).

    Rader says that the claim (to a process of forcing downloaders to read adverts):

    “…would still need to withstand challenges that the claimed invention does not advance technology (novelty), does not advance technology sufficiently to warrant patent protection (obviousness), or does not…..”

    Dennis, can we have a thread to discuss what he means by “advance technology”. Where does he get this abstract idea from? Since when was this a test of patentability in the USA? Is he drawing from SCOTUS jurisprudence? Or is it his own invention. I’m curious.

  130. Ned, I remember you saying that you had an idea who the main contributors / lobbyists to this bill were. I would be interested to hear it. Post it anonymously from a library if you are afraid of being misaligned or persecuted.

  131. I wonder who, if anyone, will file lawsuits contending the new FTF provision, the protection of trade secret users from patents are unconstitutional. We only get one shot at this, so we need to put our best foot forward and have our best arguments advanced.

    The “best arguments”? I haven’t heard one argument yet that wasn’t ridiculous on its face. Is there a new one floating around today?

  132. Probably the first time someone successfully defends on that ground.

    The likelihood of success on that front has to be approaching zero though. Nothing in the IP Clause of the Constitution requires any particular regime. Moreover, if you’re relying on the IP Clause and someone “invented” it before you, then you probably aren’t an “inventor” — more likely, you’re just a disclosure awarded a special status. At some level, the new regime is MORE constitutional.

  133. I wonder who, if anyone, will file lawsuits contending the new FTF provision, the protection of trade secret users from patents are unconstitutional. We only get one shot at this, so we need to put our best foot forward and have our best arguments advanced.

    It would indeed be unfortunate a firm that has a conflict on the issue due to its clientele takes the case. But what major firm doesn’t have a conflict?

  134. 18 months from today is March 16, 2013, which is a Saturday. So I assume you can receive a filing date on that Saturday and still be examined under the first-to-invent regime?

  135. let the games begin.

    So has anyone else noticed that you can pay the 4800 fee for prioritized examination next Monday under 35 USC 2(b)(2)(G), but that part of the code won’t become effective until 12mos and is only effective for issued patents (general enactment clause)?

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