By Dennis Crouch
Bard Peripheral v. W.L.Gore (Fed. Cir. 2012) (on rehearing)
In an important decision, the Federal Circuit has ruled that the “objective prong” of the test for willful patent infringement is a separate question of law. Moving forward, it will be the trial court’s duty to determine whether the defendant’s actions were objectively reckless. Further, the objective prong will now be subject to de novo review on appeal.
This new system somewhat parallels the judge-determined claim construction that must occur before a jury can determine infringement. As with claim construction, this new judge-focused sub-test will likely drive results in most cases. Because it will be prior-in-time, the judicial decision on objective recklessness will filter-out many willfulness allegations before they reach the jury. And the jury, once it is told that the judge has determined the behavior objectively reckless, is likely to find any infringed patent to be willfully infringed.
Right to Jury: The right to a jury decision on the issue of willfulness already stood on shaky foundation because, by statute, the judge decides the monetary award. The changes in the law brought about here in Bard coupled with those outlined in Seagate suggest that right may now be fully eroded. Further, the decision suggests that it may be proper to treat the entire issue of willfulness as a question of law.
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Treble Damages: The text of the Patent Act appears to provide courts with broad power to treble any damages awarded. The statute reads that “the court may increase the damages up to three times the amount found or assessed.” Although the text offers no limitation on that power, the Federal Circuit has limited the use of enhanced damages to only apply when the adjudged infringement is found to be willful. In Seagate, the Federal Circuit defined a two-prong test for willfulness that requires clear and convincing evidence (1) “that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent” and (2) that the infringer had knowledge (or should have known) of this risk.
Willfulness is a question of fact that has been traditionally decided by a jury. However, as the statute suggests, it is the judge who determines the extent of any enhanced damages (with the limit of three-times the compensatory damage award). Here, the infringer argued that a court (rather than a jury) should first decide the sub-question of whether there existed (at the time of the infringement) an objectively high-likelihood that the infringer’s action’s constituted infringement. The appellate court agreed:
After reviewing the Supreme Court’s precedent in similar contexts, as well as our own, we conclude that simply stating that willfulness is a question of fact over-simplifies the issue. While the ultimate question of willfulness based on an assessment of the second prong of Seagate may be a question of fact, Seagate also requires a threshold determination of objective recklessness. That determination entails an objective assessment of potential defenses based on the risk presented by the patent. Those defenses may include questions of infringement but also can be expected in almost every case to entail questions of validity that are not necessarily dependent on the factual circumstances of the particular party accused of infringement.
In considering the standard applicable to the objective prong of Seagate, it can be appreciated that “the decision to label an issue a ‘question of law,’ a ‘question of fact,’ or a ‘mixed question of law and fact’ is sometimes as much a matter of allocation as it is of analysis.” Miller v. Fenton, 474 U.S. 104, 113-14 (1985). When an “issue falls some-where between a pristine legal standard and a simple historical fact, the fact/law distinction at times has turned on a determination that, as a matter of sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.” Id. at 114; see also Markman v. Westview Instruments, Inc., 517 U.S. 370, 388 (1996) (applying this test to determine that claim construction is best left to the judge). We believe that the court is in the best position for making the determination of reasonableness. This court therefore holds that the objective determination of recklessness, even though predicated on underlying mixed questions of law and fact, is best decided by the judge as a question of law subject to de novo review.
On remand, the district court will be required to specifically consider the question of objective recklessness.
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Clear and Convincing Evidence Standard for a Question of Law?: Seagate requires that objective recklessness be proven with clear and convincing evidence. As the en banc court wrote in 2007 “to establish willful infringement, a patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.” Normally, clear-and-convincing evidence is a standard for proving facts. Here in Bard, however, the court now holds that the objective recklessness prong is a question of law. Since the panel here has no power to modify Seagate, the odd joining of these decisions is that the issue of law must still be proven by clear and convincing evidence. In a concurring opinion to the i4i decision, Supreme Court Justice Breyer wrote on this topic – noting that the clear and convincing evidence standard of proof “applies to questions of fact and not to questions of law.” The panel opinion here in Bard either did not recognize this problem or chose to ignore it. The tension here between Seagate and Bard is genuine.
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The majority opinion was written Judge Gajarsa (Senior Judge) and joined by Judge Linn. Judge Newman wrote in dissent and argued that there was no need for a remand because the jury willfulness determination was clearly wrong.
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This case has been brewing for 38 years! Initially it was an inventorship dispute that took 28 years to settle at the PTO, followed by a litigation battle for the past 8 years. The patent covers a prosthetic vascular graft used in bypass surgeries and was originally filed as an application in 1974. U.S. Patent No. 6,436,135.
My vote is for the 90% eplectic rage rambler MM.
“What arrogance that you make demands of others”
I’m pretty sure that I have less arrogance than you who makes questions of others and still as of yet, now greater than a month out has FAILED to provide answers (read that as not merely responses, but answers) to Anon’s questions.
He had even politely called you out on it and said point blank that what you did was not enough and that he was still expecting answers.
It’s pretty arrogant of you to say that you will answer each and every question, and then hide behind fallacious responses.
So Ned, prove your “non-arrogance” and finally deliver the answers you promised so long ago.
” I will not repeat post I’ve made to generic-term, moniker posters again and again and again and again for your amusement.”
Mr. I post under my real Name:
The only post you have repeated “again and again” is a post saying you have already made the post. Pathetic!!! In the time it took to claim you made the post you could have simply provided the citation to the “holding”! And even if you claim you have already made it in this thread you could have simply posted the date and time link so all could look it up. But nooooooo…you can’t and you won’t because you are a dishonest lying , shillling, charlatan, POS, that can’t back up what you say.
The FACT is the Prometheus Court NEVER held that conflating 101, 102, 103, and 112, or ANY combination thereof was now the law of the land.
Debate over.
You lose.
EVERYONE ELSE WINS!
A vote for Ned, MM attempted far fewer comebacks after being pwned.
See from this very thread:
On Jun 19, 2012 at 08:31 AM:
Duplicity, thy name is Ned said in reply to Ned Heller…
Why is it that Ned Heller clings so tightly to this imagined distinction between holding and dicta in Chakrabarty and yet ignores that very difference and places strict measure on the dicta from Bilski on the exact turn of phrase regarding eligibility?
The holding in Bilski was clear and unequivocal: what Bilski claimed was abstract. Any discussion there on business method eligibility of that particular claim, any “carefully chosen wording,” was dicta, as once the holding of “abstract” was in place, all else could fall away.
And yet Ned repeatedly demands an unholy allegiance to the exact turn of phrase in Bilski (and further, conflates the phrase from the singular to the entire group category; but that’s a tale already well told).
And yet, here concerning Chakrabarty, where the turn of phrase is far less convoluted, Ned wants to clench his eyes tight, stick his fingers in his ears, and chant at the top of his lungs “Holding Holding Holding.”
Admitting to the Court holding the very belief that dismisses his point of view, he clamors for a holding, as if what the Court clearly and steadfastly believed is somehow not good enough.
and then in reply on Jun 19, 2012 at 10:03 AM
Ned Heller said in reply to Duplicity, thy name is Ned…
Mr. duplicity, good point there about Bilski. The actual holding the case was that the claims were abstract. The discussion about a business method exclusion was in response to the Stevens “dissent”.
Shock and dismay what the holding was. Unless of course you have known all along that your arguments to the contrary for the past two and a half years were based entirely on less-than-dicta (being as it is mostly based on Steven’s “dissent” which does not even qualify as dicta)….
So which is it Ned? Fool or Liar? Your choice.
Tranlation:
Ned finds it more than annoying when his posts receive scrutiny that reveals that he his making things up.
He thinks it is ridiculous that he would have to actually check things out before he posts. He thinks it is ridiculous that reality should get in the way of his version of how things “are.”
btw, have you even read the Sweet decision yet? Are you even a lawyer?
Reminds me, Mr. Way, that you really need to get a grip. Your ridiculous posts are more than annoying.
Mr. Hold, I think you know where to get off, and you know where to shove it.
What arrogance that you make demands of others but never, not once, support your own views with any authority.
Take a flying leap.
Mr. Annoying;
You do exist in your own fantasy world. Make things up, do we?
Reminds me of the time that Ned had no clue that the CAFC version of Tafas had been vacated and he thought it was still good law.
It was only the top patent news story of the time. How was Ned to know what was going on?
“do not win arguments with grandiose proclamations backed up with nothing but insults and evasion”
Good enough for Malcolm. He is not about actually winning arguments. He is only about winning arguments in his own mind.
You forgot about the part of him being a self-centered pr1ck (and the related over-compensation factors).
“What is the holding in Benson?”
Does this help:
“We do not hold that no process patent could ever qualify if it did not meet the requirements of our prior precedents. It is said that the decision precludes a patent for any program servicing a computer. We do not so hold.”
WHEN ONE BREAKS THE LAW AND IS CANNED BECAUSE HE WAS TRYING TO STEAL HER PATENT CLAIMS, THE CLIENT SHOULD BE TOLD THAT ANOTHER LOLOLOL ATTY.. BUT NOW TRULY A REAL LIFE AGENT( NOT ONE THAT TELLS HER HE IS HER ATTY BUT REALLY ISN’T) BUT NOW ONE THAT DOESN’T TELL HER HE IS NOW HER AGENT BECAUSE OF WHAT THE OTHER DID. AND NOW HE TOO MADE HER LIFE AN EVEN BIGGER H@LL. TOO BAD YOU DIDN’T DO IT CORRECTLY. MM/MCCRACKIN. IF I WAS TOLD I WOULD HAVE REALIZED WHAT WAS GOING ON. NOW THE FILES WILL HAVE TO BE RETURNED TO ME BY BOTH OF YOU.. AND FINALLY THE TRADEMARK FILE WILL BE MINE AND YOU WILL NOW BE IN A BOX! PUFFFFFFFFFFFFFF!
I think that you are right. Ned is playing the dance all over the place game instead of simply giving the holding. A sure sign that he either does not know what the holding is or has been caught in yet another L I E about case law in his attempted crusade against computers and the software arts.
“quoted the opinion”
Great. Wonderful. Excellent.
Only thing is no one is asking you to quote the opinion. People are asking you to give the holding.
Do you recognize the difference between an opinion and the holding?
Are you even a lawyer?
“Why should I respond to people who don’t even know what prior art is?”
Easy. To prove you know what the holding is.
After two and half years of your prolific arguing on Bilski, you just recently realized what the holdin was in that case.
Let’s save two and a half years of additional prolific posting by making sure you know what the holding is in Benson before you concoct some wild-@ss theories based on nothing more than Ned-created dicta.
Sounds like a win for all involved.
Have you even seen his decision?
Look at Section V, pages 94-124.
“you are annoyingly stu **pid.”
So says the guy who employs a legal argument of defining the answer he wants to prove.
If such were allowed, no one would ever lose any arguments. “I define that I am right.”
“difference in kind” was established in Parke-Davis by Learned Hand to distinguish purified adrenaline from the prior art extracted adrenaline.”
Close but a small error: it was to distinguish the claimed invention from the Product of Nature. The fact that other extracted adrenaline existed is a red herring.
I hear people saying the same thing about Ned Heller. There is no way that guy is even an attorney.
“They are certainly part of the equation.‘
No, they are not. No one on either side has that item as an issue. The court treats it as a non-issue. Only you in your grasping at straws have introduced it as an issue. You are trying to kick dust while standing in a swamp.
It looks downright foolish.
Mr. sock puppet, since you are a know it all, one as you tell us how Sweet viewed Parke-Davis? Quote the language that supports your view.
Mr. Mr. good advice, "difference in kind" was established in Parke-Davis by Learned Hand to distinguish purified adrenaline from the prior art extracted adrenaline.
Mr. sock puppet, you are annoyingly stu **pid.
Mr. sock puppet, I have quoted the opinion so many times to you that refused to do so again.
Why should I respond to people who don't even know what prior art is?
Mr. don't, you are quoting a sock-puppet, you are not quoting me. I agree with you that the poster who made that post was brain-dead.
Mr. latest, the starting bacteria were prior art. They are certainly part of the equation.
Mr. sock puppet, I have quoted the relevant passages of Prometheus a number of times to generic-term, moniker posters. Since I cannot tell who you are I will assume that every one of you is the same person. I will not repeat post I've made to generic-term, moniker posters again and again and again and again for your amusement.
Mr.'s Annihilation, your notion of what constitutes prior art is so ludicrous and bizarre that it is more than obvious that not only are you not an patent attorney or patent agent, you are more probably a rascally urchin trolling this for them for your amusement.
Real questions that MM doesn’t have answers for. Time to run!
“since the “doctrine” exists only in your tiny mind.‘
Another prediction MM? That the Product of Nature doctrine is not real?
Chakrbarty wants a word with you.
What Ned won’t tell you: the holding was that themathematical equation pre-empted all uses of themath ans was therefore a claim onthe math itself. A claim on math is abstract, and thus not patant eligible.
That’s it.
There is no HOLDING on computers. Ned’s view that Rich challenged the holding of Benson is pure hornswaggle.
“Even Sweet recognized it as such.”
Twice in on eday an absolutely cllueless comment. which only goes to show that you have not read teh Sweet decision at all. For if you had, you kow tha tyou could not have made the statement you just have.
“Mr. day, with all due respect, “a difference in kind” is required when considering whether a claim compositions patentable over the prior art”
No Ned. A difference is needed for patentability over prior art. Difference in kind is a term of art. You have been misusing the term of art all day today. It shows a vast ignorance of the entire subject matter.
I suggest you retire from posting until you can learn just what it is that you are posting about.
“by definition.”
What a schmuck. Trying to define the very thing to be proven.
“Do you want me to re-quote the opinion?”
Why would you think I want that when you have been asked several times strictly for the holding without you radditional frolics.
Give the holding and ONLY the holding.
And what part of that was the holding. Rmember holding is only tha twhich is necesary (hint no computer was invoved in the holding).
“The extracted adrenaline was HELD not be known or prior art based on the fact that it was different in kind.”
Are you seriously having brain lessions?
Your statemetn proves my point. Held = different in kind = NOT product of nature. Product of natuer was known. ergo, prior art is meaningless and the holding is that the item was allowed to be patented over the PRoduct of Nature because it was differetn in kind.
“How are these well known bacteria having well known properties not prior art to the claimed invention?”
It’s not the right question. No one has ever said the “atarting materials” is part of the equation.
“starting materials ”
You do realize that the claimed invention, the nonstarting materials was different in kind as was NOT prior art.
The converstaion has never been about “starting materials”.
YOu are not even in the right ballpark on this conversation.
Are you even a lawyer?
“I read you chapter and verse from Prometheus where that theory was rejected.”
LOL. No you did not.
Funny how you always have time to say you already did though. lol 🙂
“Where do you get off?”
The same imaginary place you and MM go when asked to cite the holding in Prometheus.
Ms. Ann N. Hilarious,
We will agree that the inventor created something new FROM the starting materials which we should also agree were well known bacteria having specific well known properties.
How are these well known bacteria having well known properties not prior art to the claimed invention?
I believe that Parke-Davis established the proposition that to be patentable over known prior art compositions, the claimed compositions must be different in kind for novelty purposes.
Why wasn't then Chakrabarty about prior art? Why was it converted into a case about a previously non existent product of nature exception? It appears that the Supreme Court may have made a serious error.
Rich separate doors doctrine?
I read you chapter and verse from Prometheus where that theory was rejected. Where do you get off?
Mr. Hand, you truly are a strange animal. Your skill is green and you have antennas. What planet do you hail from?
Your post here is so off the wall as to be beyond humorous:
"The extracted adrenaline was HELD not be known or prior art based on the fact that it was different in kind. Adrenaline of a different kind was known. You are confusing yourself."
Mr. Planet, Alright, cite the case, any Art. III court case other than Myriad, where a claimed invention was held unpatentable because it was directed to a product of nature. It should be easy, as you say the exception exists.
Do not cite dicta, or any case citing another case for authority. Cite a case that makes the holding.
Please.
Chakrabarty’s invention involved new bacteria and plasmid combinations that may have had known strating materials but the invention was not the starting materials. It was what he did with the oold starting materials that created something different in kind that was not known or prior art.
You are 0-2 on these cases.
Mr. Heller:
The Prometheus Court has already ruled and you have lost.
And there is no petition to the Supreme Court for any case arguing 101 and 112 should be combined or conflated.
So you have no opportunity for future victories.
Couple the above facts with the Congress not making any changes to the Rich separate doors doctrine in the AIA, and it’s clear this battle is over before the war could even begin
The extracted adrenaline was HELD not be known or prior art based on the fact that it was different in kind. Adrenaline of a different kind was known. You are confusing yourself.
Get the case right.
“there is no product of nature exception. There is no 101 issue”
The courts say differently.
Reminds me of the ceramic doorknobs case.
Only you would know, suckie, since the “doctrine” exists only in your tiny mind.
Test?
The markedly different test was required historically because the starting material we prior art. They were also in Chakrabarty.
Test?
The dicta I point to is the statement by the court that the claims defined over any product of nature. How did they know that? All they knew that they defined over the specific known bacteria, which were products of nature.
This is the problem with Chakrabarty, everything they said about products of nature, everything, is dicta.
As Hand said in Parke-Davis, the purified adrenalin there was markedly different from the known extracted adrenaline. This was a novelty issue. Even Sweet recognized it as such.
The problem with Chakrabarty was that they converted a prior art issue under 102 into a statutory subject matter issue under 101. They simply assumed there was a product of nature exception when there was no prior authority anywhere for such an exception — except, of course, In re Latimer.
Parke-Davis, the inventor was invited to assist in purifying adrenaline from extracted adrenaline, something the extractors had been unable to accomplish for years. He did so. Extracted adrenaline was known. That is why it was prior art.
Chakrabarty involved man made incorporations of existing materials from known bacteria into a new bacteria.
In both cases, the starting materials were publicly known and prior art.
You statements that they are not prior art are ridiculous.
I am sorry, you are still pretending not to get it.
The point is, there is no product of nature exception. There is no 101 issue.
Malcolm, this is where I need your help.
How hard is it to determine the structure of a known gene?
Holding: I've quoted it many times. In essence, mathematical are like laws of nature, unpatentable subject matter. To be patentable, they must be applied to a new and useful end… The claims in Benson were not so limited, but could be applied to any end use, and were not limited to a specific machine.
Do you want me to re-quote the opinion?
Ned, It was critical to the result, because it was the very test that gave the result.
It was not dicta. It was holding.
Parke-Davis — extracted adrenaline was known.
Um, no. The extracted adrenaline was different in kind and thus was not known or considered prior art.
“Chakrabarty — the prior art bacteria were known”
Um, no. Ditto, Chakrabarty was cosniders soemthing new and not known of considerd prior art.
For at least these two cases the HOLDING was that the Product of Nature and the invention were different in kind and that the prior art argument was inapposite, since the the one was not prior art to the other.
Each time you lean back to “prior art” you lean back in error.
You are applying the wrong doctrine.
a) You can’t get a patent on the red soil because it is a product of nature, A.K.A. God. You, nor any other man made the red soil, thus it is product of nature and an exception to patentable subject matter
b) You can get a patent on the pots, jugs, and dishes as articles of manufacture providing they are novel and non obvious. You can also get a design patent if the shape and look is truly unique.
c) Yes you can get a patent for making the pots, jugs and dishes out of the red soil providing the process is novel and non obvious. For example a manufacturing process would be as follows
1. Putting the red soil in a mold
2. Placing the mold with the soil in an oven
3. Monitoring the temperature
4. Determining when the temperature in the oven has reached a certain degree
5. Removing the mold from the oven
6. Allowing the mode to cool for a specified amount of time before removing the pots, jugs, and dishes.
You can even get the above process patent if all the steps are old but step number 4 is a new thought.
Now, a composition process is not as easy to get. For example simply taking the red dirt made by nature and mixing it with brown dirt and water made by nature would run a foul of the products by nature exception. The red dirt, brown dirt and water is part of the warehouse of nature and must remain accessible to all men. The composition itself is not enough. Just like the correlation in Prometheus is not enough. The composition, like the correlation is still a product of nature. Although you could still get a patent on the product made with the composition of red dirt, brown dirt, and water, using a product by process claim, providing that the finished product is novel and non obvious.
Most important to remember is the reason you can’t get a patent on the composition itself in this case is because all the elements are made by God, A.K.A. Nature.
Thomas Miller Ph.D Harvard
Product of Nature Expert
MM,
You realize of course that you have not addressed the “real point” that you cannot differentiate the man-made from the Product of Nature, right?
Such a simple thing and it sinks anyone trying to patent Products of Nature…
what if the old composition isn’t actually discovered prior to the application being filed?
Then it’s patentable.
How do you enforce it?
Ned,
I agree with Try Again. Let’s take this a step at a time. What is the holding in Benson?
MM, Are you the king of pouncing on typos and basking in the adulation of spambots?
I looked back at found the questions you never answered. Great questions. Outstanding questions even. Why, they are by me.
I put the questions to you after you made a typical grand proclamation of What Must Be at June 19, 10:30 PM.
My questions in response at 3:04 PM on the 20th:
For argument’s sake, let’s say the caveat that MM wants is in play and the patent for composition X is not invalidated under 101 grounds.
How do you enforce the patent for composition X, keeping in mind that there is a fully legal alternative to the patent holder’s version of composition X?
A corollary question: What does it mean to have exclusive rights that are not exclusive? That cannot be exclusive?
Further corollary questions:Does the patent for composition X become a de facto product-by-process patent? What if no process was provided? What if the provided process was not patentable (for example, itself old in the art or obvious)?
All of your typical BS aside, do you have answers for these?
“Mr. Self, you always seems to restate my arguments to mean exactly the opposite of what they actually mean. I have no idea why you do this on such a consistent basis, but you do.”
I suggest then, that you state the opposite of what you intend, so that you will be stating the law correctly.
You yourself have pointed out that the case is a 101 issue. Not sure why you keep gravitating to 102/103… must be some destructive impulse of yours.
MM.
By a landslide of burning clay.
Don’t you mean that that is not going to viably happen?
What a puts.
T O O L
The very same effective sequence that had always been there or had been effectively a Product of Nature.
Makes no difference to the Whut-Ev doctrine.
“where the new composition doesn’t read on the old composition, you could get a patent on that new composition.”
This sounds just like the Products of Nature doctrine.
Only you would know, suckie, since the “doctrine” exists only in your tiny mind.
I suspect to most of the rest of the world, it looks more like 102 than any “product of nature doctrine”.
what if the old composition isn’t actually discovered prior to the application being filed?
Then it’s patentable.
suckie If the decision comes back that Myriad’s claims are not patent eligible
That’s not going to happen, suckie.
What’s next, suckie? Must I state on what page of the decision the “actual” holding will appear lest I will be accused of “failing to answer your question”?
Get a life, r-tard.
Man, this blog has the d-mbest trolls.
No I mean the 7:17 questions that were not the questions concerned with my well publicized flailing and failing caveat. And yes, the same answers that were mere dust kicking.
Corrected.
Apparently, the only discovery of Myriad was the specific sequence.
i.e., the completely unpredictable structure with enormous patent-worthy utility.
“Maybe if I started using rxtard pseudoynms like”
Whew, man am I glad the really rxtarded ones like Malcolm Mooney or even MM weren’t listed, that would be really apeshtt rxtarded.
“where the new composition doesn’t read on the old composition, you could get a patent on that new composition.”
This sounds just like the Products of Nature doctrine.
But what if the old composition isn’t actually discovered prior to the application being filed? What if the old composition isn’t actually discovers until year 15 of the patent on the new composition?
Oh dear.
suckie You mean the 12:36 questions
No I mean the 7:17 questions that I answered at 12:36.
Man, this blog has the d-mbest trolls.
“Read the lower court opinion.”
This says NOTHING of the holding of Benson.
C’mon Ned, that was a SIMPLE question. There is no reason to go off on a frolic to a lower court decision or a subsequent decision to highlight your inability to actually identify a holding. There is plenty of time for you to screw up other cases after you have screwed up the Aupreme Court Benson case.
Try again.
Nothing like an equivocal escape hatch of an answer.
If the decision comes back that Myriad’s claims are not patent eligible, the whining of “But they did not use an ” viable “product of nature” theory ”
Whatever that means.
Mr. Self, you always seems to restate my arguments to mean exactly the opposite of what they actually mean. I have no idea why you do this on such a consistent basis, but you do.
The CCPA in Bergstrom rejected the notion that newly discovered products of nature were prior art to the claimed isolated compositions. The PTO argued that "new" in 101 required that the claimed compositions found in nature by the inventor were nevertheless prior art to the inventor. Bergstrom rejected that notion entirely, and held that new in 101 was to be determined under 102. There was no product of nature listed in 102. To be prior art, the compounds must be publicly known, etc.
In the end, there is no product of nature exception. The law has always been based upon prior art, i.e., the specific product of nature was know and therefor prior art to the claimed invention.
Wood-Paper — cellulose was known.
Parke-Davis — extracted adrenaline was known.
Funk Bros. (actually a law of nature case) — the prior art bacteria were known
Chakrabarty — the prior art bacteria were known
Merck — B12 was known, but not in its purified form
and the beat goes on. All cases are prior art cases but one, Bergstrom. Bergstrom held the fact that the products came from nature did not make them prior art to the claimed invention. They have to instead be prior art under 102.
Read the lower court opinion. He thought he was right that a programmed computer was a machine and therefor patent eligible without a specific end use, and for that reason method claims that called for programming a computer were patentable for the same reason.
After Benson, he advocated that programmed computers were special machines within the MOT of Benson. See, e.g., his dicta to that effect in Alappat.
6 is a no-show, IANAE quit too early, so while MM is pwned in massive ways, Ned is pwned on a steady, albeit lower intensity.
The vote is to Ned based on volume.
“application of Bergstrom, where the CCPA rejected a contention that products of nature were prior art”
Ned’s up to his self-annihilating tricks again.
Do you realze that you keep giving quotes that prove your version of reality is wrong?
The “prior art” angle is dead and has been dead. Difference in kind has to do with the claimed item not being the item that is the Product of Nature. It was the prior art argument that was buried in In re Bergstrom. It was not the Supreme Court judicial exception.
“They noted in that case that all that was required for patentability of compositions of matter where the compositions were unknown is that they be isolated.”
For this, I need a pincite. Not a citation to the case, but a pincite of this. And if you want to be consistent with your own rules, that pincite must show that this is the holding of the case.
“they did not know this to be true”
Doesn’t sound very much like your own rules that the Supreme Court carefully selected its words with purpose and intent.
Sounds more like you are making up a very strained interpretation of the actual words, the ones that were oh so carefully chosen.
Diggiing faster is not an answer to getting out of that hole.