Supreme Court Grants Cert in Already v. Nike

By Jason Rantanen

This morning the Supreme Court granted certiorari in Already, LLC dba Yums v. Nike, Inc., No. 11-982, an appeal carrying the potential for profound implications for patent law.  The question presented asks:

Whether a federal district court is divested of Article III jurisdiction over a party’s challenge to the validity of a federally registered trademark if the registrant promises not to assert its mark against the party’s then-existing commercial activities.

The Petition focused on a split between the Second and Ninth Circuit, but similar disagreements have simmered in the Federal Circuit.  Under controlling Federal Circuit precedent, it has long been the law that a patent holder can divest a federal court of Article III jurisdiction over the defendant's counterclaim for a declaratory judgment of patent invalidity by promising not to sue.  See Super Sack Mfg. Corp. v. Chase Packaging Corp., 57 F.3d 1054, 1059-60 (Fed. Cir. 1995).  A subsequent dissent by Judge Dyk, however, urged the abandonment of the Super Sack rule.  See Benitec Australia, Ltd. v. Nucleonics, Inc., 497 F.3d 1340, 1350-55 (Fed. Cir. 2007) (Dyk, J., dissenting). 

Should the Court agree with Petitioners, it thus would very likely spell the end of the so-called Super Sack covenant, making it harder for patent holders to withdraw their patents once placed into litigation. 

Notes:

368 thoughts on “Supreme Court Grants Cert in Already v. Nike

  1. Let’s see if suckie can get his sh-t together and provide some answers.

    Since the ACLU folk were nice enough to get their sh-t togethr and provide some answers, can we expect you to get your sh-t together and provide some answers?

    Or do you only ask questions?

  2. ” you recall why, in Prometheus, the Supreme Court held 9-0 that the indisputably transformative steps were “not enough” to rescue the claim from ineligibility?”

    Yes, Integration. From the syllabus:

    “(b) A more detailed consideration of the controlling precedents rein- forces this conclusion. Pp. 11–19.
    (1) Diehr and Flook, the cases most directly on point, both ad- dressed processes using mathematical formulas that, like laws of na- ture, are not themselves patentable. In Diehr, the overall process was patent eligible because of the way the additional steps of the pro- cess integrated the equation into the process as a whole. 187. These additional steps transformed the process into an in- ventive application of the formula.”

    Prometheus claims simply described the law of nature then adds steps for applying it. Similar to Flooks claims. But as you can see this is not enough. The law of nature, natural phenomenon, or abstract concept must be fully integrated in the claim from start to finish. Otherwise the Court will declare the added application, transformation, machine, or technology steps to be extra solution activity.

    Interestingly enough it appears that the Supreme Court and their Clerks were listening to Actual Inventor and not MM, Malcolm Mooney or Ned Heller, since they used the DCAT, AI’s Diehr Concept and Application Test/analysis to make their ruling, and not any mental steps test or MOT from MM and Ned. So in reality It should be AI on here shouting 9-0 DCAT! Most on point in this thread is that the Prometheus Court did not rule products of nature to be patentable subject matter. And those are the facts.

  3. Ned,

    You do realize that you are talking about process claims and even under the Products of Nature sxclusions ot patent eligibility processes of making Products of Nature may very well be patent eligible, right?

    But none-the-less it was a valient attempt at kicking up some dust.

  4. Ned Needs His Widdle Hand Held Too, The Questions Are Getting Too Scary and His Agenda Is Crumbling says:

    Maybe it’s the same reason you refuse to engage in meaningful conversation on tough issues.

    Maybe not.

    Do you ask someone how they feel when they step on an anthill? Because, that’s about the scope of you rlegal arguments and ability to entertain those who question those arguments.

    You want more respect? Give more respect to those who ask you questions. Answer fully. Answer honestly. Leave out the legal hijinks. Don’t be so brazen when you pervert the law and own up to it when people nail you for what you are attempting. It’s not like you are dealing with little children in awe of you rname and who think that just because you say something, it must be so.

    You want more respect? Earn it.

    Deal?

  5. Ned, does it really matter who you are talking to? As if that makes a difference whether you will actually address the issues being raised?

    DOn’t you think that if you really wanted to set the record straight, that you would have engaged the issues being put forth?

  6. Ned Heller,

    Not at all. But when I have in fact explained things to you, how else do you wish to have me phrase my reminder to you?

    As for insulting, your actions are what are insulting. As I mentioned, you should not lecture anyone on respect when you cannot perform with a minimum of that quality.

    It is insulting to recycle points of your arguments that have been shown to be false and baseless. So instead of the apology I and other readers should be getting from you, you deign to give lectures on proper behavior.

    It’s quite some chutzpah you are demonstrating.

  7. “Is water “known?” Could it be that the statement that one cannot patent “water” have something to do with the fact that water is known?”

    No. It does not matter.

    It’s still water.

    It’s still a phenomenon of nature.

    It’s still an exception to patentable subject matter.

    There is no legal way around this.

  8. The ad hominem fits.

    It’s hardly a personal attack, when you deluge the boards with your utter nonsense and refuse to address those who make counter points.

    You should be more concerned with what that says about you.

  9. Mr. 7, water is a concept?

    Regarding Funk Brothers, http://scholar.google.com/scholar_case?case=15445131955420619562&q=funk+brothers&hl=en&as_sdt=2,5

    Funk Brother was concerned with patenting a law of nature, the fact that certain bacteria were not mutually inhibitive.  The following passage (p. 130) says it all,

    "The qualities of these bacteria, like the heat of the sun, electricity, or the qualities of metals, are part of the storehouse of knowledge of all men. They are manifestations of laws of nature, free to all men and reserved exclusively to none. He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end."

    Law of nature and natural phenomena are the same thing.

  10. Mr. Water,

    Is water "known?"  Could it be that the statement that one cannot patent "water" have something to do with the fact that water is known?

    As to the frog, if no one knows of the frog because it exists, or existed at one time, only in the laboratory of the inventor, how can one say that the chemical found in the frog is not subject to being patented on the theory that all men have a right to the frog chemical even though the only frog that has that chemical is owned by the inventor, who does not want to share?

  11. Malcolm, just in case I was not clear, I was talking about the man-employed process to create the claimed composition in the first place.  Your hypo suggested 28 steps.  

    How nature makes the same composition is irrelevant.  It also does not matter if the composition were accidentally made by other before the inventor.

    The only question pertinent is whether the claimed composition was known, whether how to make it was known and whether its utility was known.  Cf, Tilghman v. Proctor, http://scholar.google.com/scholar_case?case=16571243265392971238&q=Tilghman+v.+Proctor&hl=en&as_sdt=2003

    "We do not regard the accidental formation of fat acid in Perkins's steam cylinder from the tallow introduced to lubricate the piston (if the scum which rose on the water issuing from the ejection pipe was fat acid) as of any consequence in this inquiry. What the process was by which it was generated or formed was never fully understood. Those engaged in the art of making candles, or in any other art in which fat acids are desirable, certainly never derived the least hint from this accidental phenomenon in regard to any practicable process for manufacturing such acids.
    The accidental effects produced in Daniell's water barometer and in Walther's process for purifying fats and oils preparatory to soap-making, are of the same character. They revealed no process for the manufacture of fat acids. If the acids were accidentally and unwittingly produced, whilst the operators were in pursuit of other and different results, without exciting 712*712 attention and without its even being known what was done or how it had been done, it would be absurd to say that this was an anticipation of Tilghman's discovery."

  12. Mr. Almond, since you have revealed your true identity in "Are you even an attorney?" tag line , I know you have no genuine interest in anything I have to say.

    Bye. 

  13. MM’s prediction is that the CAFC will return a decision saying that the Myriad case is not a case concerning 101 at all

    That’s not my prediction. Claim 20 is a method claim and may very well implicate 101.

    Nice try, though.

  14. You obsession with this line of arguing is just as crazy as your old notion that business methods were not patent eligible.

    Ned needs a new hobby since Duplicity, Thy Name Is Ned Heller shattered Ned’s hold on reality by disclosing what the actual holding of Bilski was.

    It’s really quite sad.

  15. Water is a concept of a composition of matter. You can get a patent on an application of the concept such as water in a cooling system or rubber curing mold. Someone already mentioned ice cubes I think. But you cant get a patent of the water itself. Wasn’t it Funk Bros that said you can’t get a patent on a new mineral found in the earth? I think water fits in that as well.

  16. Yes water exist as a phenomena of nature. ( Ask any Quantum Biologist )

    Yes water exist a law of nature or formula ( Ask Archimedes) or see ( H2O),

    Yes water exist as a composition of matter. ( Eat some ice )

    However you can’t patent any of the above. You might be able to get a patent on the use of any of the above in a process, providing there is something more than the law of nature and the natural phenomenon itself. Which could be the case if you have integrated the concept in a way that makes the process an inventive application of the concept. ( See Prometheus)

    But once and for all Ned,

    You can’t patent chemicals in a frog.

    You can’t patent water.

    You can’t patent anything found in nature.

    You obsession with this line of arguing is just as crazy as your old notion that business methods were not patent eligible.

  17. So MM’s prediction is that the CAFC will return a decision saying that the Myriad case is not a case concerning 101 at all and that 102 and 103 are perfectly equipped to deal with the case and will be so decided purely on those grounds.

  18. And as I’ve already pointed out (and the Supreme Court clerks already know) there is no need for such a test when 102 and 103 are perfectly equipped

    LOL LOL LOL LOL

    And as already been pointed out by the Supreme Court itself, the enumerated categories DO NOT get preferential treatment one to another. That is the way of the lawyer’s craft getting in the way.

    LOL LOL LOL LOL

    Your attempt at passifying yourself is a JOKE.

  19. Clearly from your example, if it takes a man made process to produce the resultant claimed composition, the claimed composition cannot be the same as the composition that exists in nature.

    Clearly this is flat out wrong.

    A composition made by man can be EXACTLY the same composition that exists in nature.

    Any one who understand basic chemistry would understand this.

    Why is it that we do not know the answer

    You do not know the answer because you refuse to listen to reason.

    It’s that simple.

    The parameters of a novelty test

    You keep on making the same mistake of wanting only to look at 102. The Supreme Cour has been clear on this: you must use 101. The CAFC has been clear on this: the issue is 101.

    You and MM are the only two in the entire world running from 101.

    It is pure delight that you two were also the ones so exuberantly celebrating Promethues. Exuberantly embracing the WHUT-EV conflation!

    You are now reaping what you had sown.

  20. Ned Clearly from your example, if it takes a man made process to produce the resultant claimed composition, the claimed composition cannot be the same as the composition that exists in nature.

    I’m not sure what you’re referring to, Ned. Nothing in my example suggests that “it takes a man-made process” to make any of the compositions referred to therein. The patented composition referred to in my example was certainly first “made by man” before its first description in the patent application. But the identical composition was equally indisputably “made by nature” afterwards, unless one wishes to argue that oxidation (for example) is “unnatural.” Such an argument is representative of the sort of logical absurdity that the USPTO and courts will inevitably need to deal with should they choose to adopt any of the ill-considered “product of nature” tests for patent eligibility which have been proferred thus far. As I’ve already pointed out (and the Supreme Court clerks already know) there is no need for any such test when 102 and 103 are perfectly equipped to deal with overly broad composition claims (in stark contrast to method claims which implicate ineligible subject matter, e.g., claims in the form [oldstep]+[newthought]).

  21. Ned Clearly from your example, if it takes a man made process to produce the resultant claimed composition, the claimed composition cannot be the same as the composition that exists in nature.

    I’m not sure what you’re referring to. Nothing in my example suggests that “it takes a man-made process” to make any of the compositions referred to therein. The patented composition referred to in my example was certainly first “made by man” before its first description in the patent application. But the identical composition was equally indisputably “made by nature” afterwards, unless one wishes to argue that oxidation (for example) is “unnatural.” Such an argument is representative of the sort of logical absurdity that the USPTO and courts will inevitably need to deal with should they choose to adopt any of the ill-considered “product of nature” tests for patent eligibility proferred to date. And as I’ve already pointed out (and the Supreme Court clerks already know) there is no need for such a test when 102 and 103 are perfectly equipped to deal with overly broad composition claims (in stark contrast to method claims which implicate ineligible subject matter, e.g., claims in the form [oldstep]+[newthought]).

  22. Ned Needs His Widdle Hand Held Too, The Questions Are Getting Too Scary and His Agenda Is Crumbling says:

    Mr. Neller:

    NOT answering the questions put to you: a signature weakness.

    Svcks to be you!

  23. The Supreme Court clearly disagrees with you.

    Why should anyone take your word over the government body charged with making the official determinations of what the law of Congress means?

    You offer nothing but broken and over-extended dicta to create a legal position that cannot and will not match the position clearly stated by the proper authorities.

    You cannot possibly convince any sane rational objective person that your view should triumph.

  24. Ned, your posts is confusing and you seem to be all over the place. Well, where do we start? Here let’s just deal with this one problem first.

    “The composition was previously unknown and therefor not prior art under 102. ”

    Ned, Prometheus made it clear that the “exceptions” to patentable subject matter is strictly a 101 issue, and not 102. Which makes your reliance on Bergstrom to prove Novelty, irrelevant.

    Now that you have been defeated on Benson, Leroy V Tatum, and Bergstrom, you have no more case law authority to base your argument on.

    So what do you have to say?

  25. Malcolm, I’m not so sure we really understand the ACLU position. Clearly from your example, if it takes a man made process to produce the resultant claimed composition, the claimed composition cannot be the same as the composition that exists in nature.

    That brings us to the next question:

    If the exception does indeed exist, What is it?

    Why is it that we do not know the answer to this question from the likes of Chakrabarty and Prometheus?

    In contrast, we have a wealth of Supreme Court cases, and we have Parke-Davis and we have Merck and we have Bergstrom, that all relate in one way or another to known products, albeit extracted from nature, and whether the claimed compound was patentable in face of the known compound. The parameters of a novelty test vis-a-vis prior art are set forth in the cases.

    The outlier is the dicta in Chakrabarty. That cases seemed to suggest a 101 product of nature exception, when, even in that case, the real question the SC answered was whether the manufactured bacteria was different in kind from the known bacteria. That was the question they answered as they had no way of knowing whether the claimed bacteria was novel over all other bacteria in nature — that being impossible to know.

    In Myriad, the question really should be is whether the BRCA gene (albeit, not necessarily its sequence) and its association with breast cancer was known. If it was not, the inventors had every right to patent the gene, particularly in the form that results from the man made isolation or purification process.

    If it was known, i.e., both the gene and its use, then there is a question of obviousness that has to be resolved.

    But that is a question, again, of prior art and of 102/103, not of 101.

  26. To be patent eligible, they must be applied to one of these. In contrast, compositions of matter are patent eligible by statute.

    From the onset of this discussion it was made clear that the judicial exceptions apply to all of the enumerated categories and apply regardless if all other portions of the patent law being met.

    You are going backwards in your reeling attempts to find some foundation for a position that will find none. Repeating once more this notion that compositions of matter are patent eligible by statute is meaningless drivel. Processes are patent eligible by statute. The judicial exceptions apply even if something can be placed in one of the enumerated categories.

    You are in a logic freefall.

    You are rambling incoherently.

    You are a sad and desparate man.

  27. Ned,

    Your response of the word word “ditto” concerning your continued choice to ignore the carefully chosen words of the Supreme Court when they chose the word “IMPLICIT” does not make any sense whatsoever.

    You are rambling incoherently.

  28. Ned Heller,

    Thou doth protest too much.

    If “explained to you” is considered being disrespectful, then you do not understand the concept of respect.

    For it is exactly accurate and true that I “explained to you” why your views were not appropriate. If anything, your reuse of those views AFTER you have been shown the error of them is disrespectful, as you show no concern for truth by purposefully using known false positions in your legal arguments.

    Such would earn you a censure in a professional context.

    Do not lecture others on “respect” when you cannot perform with a minimum of that quality.

  29. Further,

    Your response ignores the fact that I called you out for misrepresenting the holding of the case.

    If you are goiing to engage in talking with other people, the bare minimum common courtesy is to acknowledge when your stated position no longer holds true.

  30. You do not apperantly understand the narrowness of the scope of the holding.

    You are trying to take this case as some example of the limits of the judicial exception.

    It is preposterous what you are trying to do.

    Are you even an attorney?

  31. By your own admissions then, you are choosing case law as authority that does not have the authority you say it does.

    Further, you continue to base you legal theory on dicta from this case law. You continue to ignore the holding and its scope.

    You continue to ignore the Supreme Court words for real authority. You continue to ignore the meaning of the word “IMPLICIT” and the source of authority for all of the Supreme Court’s judicial excpetions. An answer of “ditto” later in this thread is no answer at all.

    Are you even an attorney?

  32. Mr. Almond, clearly the court held that the purified compositions were novel (a 102 issue) even if the art knew that von Euler prostaglandin had something in it that had the beneficial effect.

    Here is the precise holding from the opinon:

    "whether the claimed pure materials are novel as compared with the less purematerials of the reference." [Emphasis supplied.] It seems to us that the answer to that question is self-evident: by definition,[10] 1402*1402 pure materials necessarily differ from less pure or impure materials and, if the latter are the only ones existing and available as a standard of reference, as seems to be the situation here, perforce the "pure" materials are "new" with respect to them.

  33. Mr. Almond, if you would like me to publish n.7 in its entirety, I will.  But the argument was made that the art KNEW that something in von Euler's prostagladin had the disclosed beneficial effect.  They just didn't know what it was.

    This is an argument about prior art.  

    Moreover, the court opined, that even if the impure compound that caused the beneficial effect was somehow KNOWN,  the court held in the main opinion that the claim to the pure compound to be novel, just as Hand held the purified form of adrenalin was NOVEL in Parke-Davis.  The claims were NOT directed to impure forms of the compositions.

    All of this is about  prior art and not about some witless product of nature exception.

  34. Water is a composition of matter and hardly a phenomena of nature as that term was used by the SC.  A phenomena of nature is essentially the same thing as a law of nature.  It describes the way things work:  e.g., one does this, and that happens.

  35. I urge you to read Bergstrom which had almost the exact facts as the frog example.  There the CCPA did not agree that claimed composition was unpatentable based on a product of nature theory.  Why?  The composition was previously unknown and therefor not prior art under 102.  Moreover, there is no 101 novelty test different from 102.  If the compostion is not prior art under 102, it is not new under 101.

    That ends the debate, or at least it should.  

    Then the Supreme Court gets lost in dicta in Chakrabarty.  Now we do indeed have a mess.  But why?  The fricken USPTO, that is why?  Since Latimer, they believed their was an exception for products of nature.  The PTO has never understood the problem all along was prior art.

    Back to compositions of matter, they are not the same thing as laws of nature at all.  Laws of nature are not machines, processes, manufactures or compositions of matter.  To be  patent eligible, they must be applied to one of these. 

    In contrast, compositions of matter are patent eligible by statute.  The only statutory exception is prior art and lack of utility.  Period.

  36. Mz. Nature, "explained to me?"

    Mz. Nature, if you wish to engage in a conversation, do so.  But if you insist on being disrespectful, you will get no response.

  37. MM,

    This thread at Jun 28, 2012 at 03:34 PM

    Anytime you want to prove that you are not a “d–chebag and a troll” and answer the questions put to you, by all means, have at it.

  38. Consider bergstrom held such a chemical patent eligible

    This is incorrect. See my post infra. You are using the legal term “held” incorrectly.

  39. I can’t satisfy you

    translation: yes, MM is afraid to put forth any type of honest answer.

  40. In the end, I think the simple answer is provided by In re Bergstrom in combination with Parke-Davis

    Ned, your own application of In re Bergstrom falls victim to the very misapplication of dicta to arrive at what you consider the law to be.

    See Footnote 7. The holding rests purely [pun intended] and narrowly on the fact that the purified form was different in kind from the unpurified form (and thud, different in kind from that which exists in nature). This falls completely within the doctrine of Product of Nature exclusions from patent eligible subject matter. Further, the purified item was not known prior further sinking your “novel” theory. Had the PGE2 and PGE3 been later found to have existed in nature, (aka been determined to be Products of Nature), then they would have been berift of patent eligibility as the Supreme Court has determined under 101.

  41. “And trace this it’s origins and it has nothing to do with a product of nature exception.”

    It does not even have to rise to the debate of what’s a product of nature since water is still a phenomena of nature under your origins theory.

  42. Inventor receives a patent on new composition X, a synthetic chemical which requires more than 20 steps in the laboratory to synthesize. Composition X is proven to be effective in the treatment of childhood leukemia.

    Inventor sues infringer for selling composition X ten years after the patent grants. Three years into the case, the infringer argues that composition X is a “product of nature.” He presents as evidence indisputed data showing that when one hundred pounds of composition Y is exposed to air for three years, 0.0001 micrograms of composition X is formed “naturally.” According to your analysis, the patent is now ineligible.

    Please introduce whatever caveats you deem necessary to avoid this outcome, if you perceive the outcome to be undesirable. If you believe the outcome is desirable, please explain why. Include in your explanation a description of how your analysis promotes progress in the art of developing useful compositions of matter.

    Good luck, suckie.

  43. suckie you have never provided a clear prediction

    LOL. I can’t satisfy you, suckie. Nobody can. And we all know why. Hint: rhymes with “bowl.”

    Here’s another hint, suckie: if you could articulate a coherent “product of nature” test that doesn’t logically and indisputably lead to the inevitable ineligibility of essentially all chemical compositions (and many other classes of compositions as well), you might begin to recover some of your long-lost credibility in this broad topic area (that would be patent law).

    Maybe you just need to try harder. Yeah, that’s it.

    LOL.

  44. “”Just as man cannot patent water?”

    What is the legal basis for this statement? ”

    “Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not pa­ tentable, as they are the basic tools of scientific and tech­ nological work.” Gottschalk v. Benson, 409 U. S. 63, 67 (1972).”

    Ned: “Mr. Want to See, I have just posted on the origin of the “phenomena of nature” exception. It is the equivalent of a law of nature exception in the original Supreme Court case that first announced a law of nature exception. See, Le Roy v. Tatham.”

    Ned,

    Okay let’s take your theory to it’s logical conclusion, using your frog chemical as an example. The chemical inside the frog is a natural phenomenon. No one denies that. Now the chemical after being extracted is still the same same chemical and is still a natural phenomenon. No one denies that.

    A bio chemist can then describe the frog extract in a formulae and chemical equation but according to your own logic this would be nothing more than a law of nature via Le Roy v. Tatham.

    And according to Gottschalk v. Benson, 409 U. S. 63, 67 (1972). ( Natural Phenomenon)

    So using your theory of Le Roy v. Tatham ( Law of Nature ) being the equivalent of a ( Natural Phenomenon) the frog chemical is still non statutory subject matter and thus patent ineligible.

    See Ned?

    Even using your own logic defeats you!

  45. MM,

    Since you have never provided a clear prediction, how can anyone ascertain any meaning to your statement of “ It looks like we’re in for a repeat. Good times.“?

    Doesn’t such false bravado taste horrible in your mouth?

    Do you need someone to hold your hand and find the list of questions from me that you still have failed to answer? Are you that afraid?

  46. In response to my 10:17 post, suckie provides the usual non-answers and wrong answers. That was predictable.

    “Desirability” is immaterial.

    The issue, suckie, is whether you desire your test to die in the street with a giant bullet hole through its head, or whether you desire to give it another chance at life. In that sense, “desirability” is highly material. But it seems what you desire most is to keep trolling and proving to everyone that you are a dissembling id-jit.

    The notion of the judicial exemptions are geared to the limits of the patent system, and not to the promotion of the progress. Your invocation of that notion of promotion is a non-sequitur.

    LOL. Maybe you should read the Constitution again. And read the Prometheus decision again. And read the briefs in Prometheus again. And read the briefs filed in Myriad again. And go back and re-read your extensive whining, suckie, about how using 101 to kill [oldstep]+[newthought] claims was going to destroy American innovation forevah. You really do make me pewke, suckie.

    An answer you do not like is not a non-answer. Taking the answer to its logical conclusion merely proves that you are wrong. Your questions have been answered.

    LOL. Just because you say something is so, suckie, doesn’t mean that it is so. In fact, the opposite is true nearly every time. If I’ve made a mistake in interpreting your “product of nature” test, suckie, let me know exactly where that occurred. Or fix your test. It’s that simple. Otherwise the logical application of your test results in an absurdity that I guarantee you the Supreme Court is aware of and will never, ever abide.

    The Court has repeatedly denounced any such special treatment and warned against exactly what you think

    LOLOLOL. Remember when suckie was convinced that Prometheus’ claims would be valid under 101 because of the Supreme Court’s warnings in Diehr? That was fxcking hilarious. Sad for suckie, tho. It looks like we’re in for a repeat. Good times.

    LOL.

  47. Your reliance on the dicta/holding paradigm has been destroyed.

    The authority comes from Congress per the U.S. Supreme Court authority to interpret the words of law as written by Congress. No “holding” is required.

    You continue to ignore the carefully chosen word of IMPLICIT.

  48. Ned Heller, you post in vain.

    To reiterate, your last two points are completely bogus, and have been pointed out by many people whom you are afraid to directly address.

    I have carefully explained that there is a material difference between “laws of nature” and products of nature. “Laws of nature” are universal. “Products of nature” are local.

    Your careful explanation on this point was rent asunder and you lost this point. Badly. You ended up attempting a falt earth, localized “laws of nature” that was a direct contradiction to your premise.

    Don’t mess with me.

    The Court has mandated that the IMPLICIT law as written by Congress is the authority that Products of Nature are excluded as patent eligible materials. Further, the carefully chosen words range in examples from simple minerals to complex living things as plants and explicitly state that time is not a factor (through the careful and deliberate choice of the word “new”).

    Thus, your continued FALSE reliance on Holding/Dicta subterfuge is shorn of any impact.

    This has been explained many times. You have never countered these points.

    Your first two points have likewise been dismissed with comments that you have failed to address.

    There is no legal requirement that the judicial exceptions, the understanding of the IMPLICIT law as written by Congress cannot mature over time. Your nose has been rubbed in the crrp of your own Freudian slip of depending too much on early case law. The Supreme Court has been clear that Products of Nature are covered by the judicial exception, and the authority for that exception is unchallenged.

  49. Mr. Want to See, I have just posted on the origin of the "phenomena of nature" exception.  It is the equivalent of a law of nature exception in the original Supreme Court case that first announced a law of nature exception.  See, Le Roy v. Tatham.
     
    The fact that Chakrabarty seems to have gotten this wrong is not that important because that portion of Chakrabarty is mere dicta.

  50. Mr. Lady, with all due respect, you are misstating the facts.

    1. My position is that all Supreme Court authority except for Chakrabarty that is alleged to be a product of nature exception actually is a case about prior art.  I particularly point out the Wood-Paper case, which is said to be the seminal case on point for the exception.  This is the case about prior art, not about a product of nature exception.

    2.  The cases that a recited in Gottschalk v.  Benson, through Prometheus, recite a general list of excepted subject matter, including phenomena of nature.  If one reads the case where this exception originated, Le Roy v. Tatham, one sees that this is rather about a law of nature.  The case summarized the list exception as laws of nature, natural phenomena, and abstract ideas as "principles in the abstract."  The case went on to opine, that principles in the abstract could not be claimed per se, but could be claimed when applied to produce new and useful results.

    3.  I have carefully explained that there is a material difference between "laws of nature" and products of nature.  "Laws of nature" are universal.  "Products of nature" are local.  Claiming a law of nature automatically claims every application.  Claiming a product of nature patented by the first discoverer of that product, prohibits others from making using and selling that product, and not universal truths, for limited time.  Prior to the disclosure by the discoverer, the product was unknown and its utility was unknown.  If the product was known, then one cannot claim the product per se because it is prior art.

    4.  The origin of the product of nature exception is the patent office, not the courts.  Because the patent office cannot make law, In re Latimer, is not the law.  That Congress may have discussed a product of nature exception assuming it was the law does not prove that it was the law.  In order to be "law" a court, preferably the Supreme Court, must have held that a claim was unpatentable due to the exception.  There is no case like that, not even Chakrabarty.
     

  51. Phenomena of nature, THOUGH JUST DISCOVERED, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and tech­ nological work.” Gottschalk v. Benson, 409 U. S. 63, 67 (1972).

    Worth repeating (emphasis added to deflate the “known-ness” subterfuge attempt by Ned Heller).

    More carefully chosen words that should not be ignored.

  52. What is the legal basis for this statement? Prior art? — because water is well known?

    Ned, your attempted (once again) misdirection from 101 to 102 is nullified by the direct words of Prometheus” See the post below at 11:43 AM.

    You too, seek to undue your celebration of that decision. You cannot un-dance your jig.

  53. That is not what the Supreme Court “laid out” in Prometheus

    Au contraire:

    But in its view, other statutory provisions—those that insist that a claimed process be novel, 35 U. S. C. §102, that it not be “obvious in light of prior art,” §103, and that it be “full[y], clear[ly], concise[ly], and exact[ly]” described, §112 — can perform this screening function. In particular, it argues that these claims likely fail for lack of novelty under §102. This approach, however, would make the “law of nature” exception to §101 patentability a dead letter. THE APPROACH IS THEREFORE NOT CONSISTENT WITH PRIOR LAW. The relevant cases rest their holdings upon section 101, not later sections. Bilski, 561 U. S. ___; Diehr, supra; Flook, supra; Benson, 409 U. S. 63. See also H. R. Rep. No. 1923, 82d Cong., 2d Sess., 6 (1952)… And to shift the patent eligibility inquiry entirely to these later sections risks creating significantly greater legal uncertainty, while assuming that those sections can do work that they are not equipped to do… These considerations lead us to decline the Government’s invitation to substitute §§102, 103, and 112 inquiries for the better established inquiry under §101.

    MAYO COLLABORATIVE SERVICES, DBA MAYO MEDICAL LABORATORIES, ET AL., PETITIONERS v. PROMETHEUS LABORATORIES, INC., 566 U. S. ____ (2012) at 20-22. (emphasis added).

    Those are some carefully chosen words, not to be ignored.

  54. Never let it be said that trolls like you aren’t the world’s worst hypocrites — you really are!

    Says the biggest hypocrite on the site.

  55. It's What You Don't Say That Speaks So Loudly. It's When You Don't Say It That The Message Is Deafening says:

    The silence is deafening.

    On point and devastating to the MM-NH agenda.

    Thus guaranteed not to be addressed.

  56. “Desirability” is immaterial. I am sure that both Bilski and Benson desired their patents to be judged valid.

    The notion of the judicial exemptions are geared to the limits of the patent system, and not to the promotion of the progress. Your invocation of that notion of promotion is a non-sequitur.

    The only thing you prove is that you don’t like the logical answer that follows from the law, that you desire to have the enumerated category of compositions treated differently than the enumerated category of processes without any reasoning or logic to back up that desire, and in direct contradiction to what the Supreme Court has said on the matter.

    An answer you do not like is not a non-answer. Taking the answer to its logical conclusion merely proves that you are wrong. The fact that you cannot handle being wrong is not a surprise.

    Your questions have been answered. It is your turn to answer the questions posed to you. Answer the questions without deceit or guile or prove that it is you that is the “d–chebag and a troll.”

  57. The theory of Ned rests on the matter not being a 101 issue at all. The theory of Ned postulates that there is no Produc tof Nature exception at all.

    Ned interjects the strawman of novelty, of Prior Art, of “known-ness,” even though the ACLU attorneys expressly state that such a timing concern belongs to 102 and is thus not at issue in this case, thus could only be considered as dicta.

    Ned ignores clear language from the Supreme Court and Congress in order to pin his hopes on dicta from lower level courts, dicta shown to be errant.

    Ned ignores the very decision under consideration that orignally and clearly stated that this is a 101 issue.

    Ned ignores the Supreme Court of Prometheus which directs that 101 is the guiding section of law.

    Ned does not realize how lost and alone he is, adrift with only the newly evangilized Thou-shalt-not-conflate (at least in Malcolm’s backyard) MM by his side.

    The two that most celebrated Prometheus are the two most vehemently denying its application intoa na analagous enumerated catagory. Neither have addressed, let alone acknowledged the Supreme Court’s warnings on treating the categories differently. The silence is deafening.

    MM’s questions have been answered. No matter how he belittles them, the answers are complete, they are thoughtful and they are logical. And yes, they do lead to the conclusion, the rightful conclusion, that MM and Ned are incorrect.

    The only question now remains is will MM and Ned finally return the favor and answer the questions put to them?

    There are no more excuses. Nowhere to run and hide.

  58. “”Just as man cannot patent water?”

    What is the legal basis for this statement? ”

    “Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not pa­ tentable, as they are the basic tools of scientific and tech­ nological work.” Gottschalk v. Benson, 409 U. S. 63, 67 (1972).”

  59. “It is not so clear that I cannot patent that chemical, is it?”

    As soon as the examiner, judge, Court or adversary ask, what did the applicant invent?..It will become VERY clear you CAN’T patent that chemical. Even the process for extracting the chemical and using it is going to be tough to get a patent on post Prometheus. But for certain, you can no more get a patent on the frog chemical itself than Prometheus can get a patent on combinations of metabo- lites in the blood.

  60. But here comes the important part which your tiny brain seems incapable of processing: the treatment of compositions is not at all analogous to the issues in Prometheus because, unlike the examination [oldstep]+[newthought] method claims, the examination of composition claims by comparison to compositions found “in nature” is completely practical and extremely well-grounded legally in 102 and 103 jurisprudence. ”

    Some serious QQ and leave my neighborhood out of the 101 question.

    Sorry MM, the enumerated categories cannot so treated, as this would lead the lawyers’ art of claim drafting and playing with one category versus another to making the judicial exceptions a dead letter. The Court has repeatedly denounced any such special treatment and warned against exactly what you think “tiny brains” don’t get. Apparently it is your tiny brain that does not get the message from the Supreme Court.

    We now return you to more MM QQ.

  61. SuckieLU Attorneys: The recent U.S. Supreme Court case Prometheus clearly laid out the proper jurisprudence that the parts of patent law other than 101 (that is 102, 103 and 112) are ill-equipped to handle the questions and issues of patent eligibility.

    That is not what the Supreme Court “laid out” in Prometheus. More important, what you wrote is completely mo-r-nic. It’s also true that “the parts of the patent law other than 112” are “ill-equipped to handle the questions and issues” of enablement. So?

    Breyer did recognize that there was no established procedure under 102 for dealing with claims of the sort at issue in Prometheus (you remember that sort of claim: [oldstep]+[newthought]). He was responding expressly to the PTO’s proposal to ignore novel (and old) mental steps in claims when comparing them to the prior art, a procedure which the PTO asserted (correctly and indisputably) would suffice for tanking claims such as those at issue in Prometheus. Breyer recognized, however, that there was no legal basis for ignoring novel mental steps in an anticipation analysis. That is also indisputable, although Breyer could easily have “created” the legal basis by recognizing that such a procedure is ultimately indistinguishable from the holding in Prometheus, i.e., one can not rescue an otherwise ineligible claim from death under 101 merely by tacking on an old, conventional step.

    But here comes the important part which your tiny brain seems incapable of processing: the treatment of compositions is not at all analogous to the issues in Prometheus because, unlike the examination [oldstep]+[newthought] method claims, the examination of composition claims by comparison to compositions found “in nature” is completely practical and extremely well-grounded legally in 102 and 103 jurisprudence. The poor arguments and whinings of our trolls (you included) that the Supreme Court rightfully swatted aside in Prometheus are in fact very forceful in the context of Myriad’s claims. Never let it be said that trolls like you aren’t the world’s worst hypocrites — you really are! That’s in addition to being incredibly ign-rant.

    It has not gone unnoticed that you failed to answer a critical question I asked you. Or more accurately, you provided a non-answer. The question again is:

    What about “natural” events that cause the formation of a claimed “man-made” composition long after the “man-made” composition is first disclosed and patented — is the patented composition suddenly ineligible?

    You “answered”, without any thoughtful explanation, that such a product is “effectively a product of nature.” You earlier defined a “product of nature” as “something that can occur naturally, without the thoughtful manipulation of man.” (your emphasis).

    So let’s take your “analysis” to its logical conclusion. Please let me know where I’ve distorted your deep thoughts in any way. As I wrote upthread, I believe you have no idea what you are talking about and you are a simple-minded troll incapable of reason. I shall prove that to everyone now.

    Inventor receives a patent on new composition X, a synthetic chemical which requires more than 20 steps in the laboratory to synthesize. Composition X is proven to be effective in the treatment of childhood leukemia.

    Inventor sues infringer for selling composition X ten years after the patent grants. Three years into the case, the infringer argues that composition X is a “product of nature.” He presents as evidence indisputed data showing that when one hundred pounds of composition Y is exposed to air for three years, 0.0001 micrograms of composition X is formed “naturally.” According to your analysis, the patent is now ineligible.

    Please introduce whatever caveats you deem necessary to avoid this outcome, if you perceive the outcome to be undesirable. If you believe the outcome is desirable, please explain why. Include in your explanation a description of how your analysis promotes progress in the art of developing useful compositions of matter.

  62. So the question of the day is…. How can you take something I made well before the Flat Fender, the fender cover. Then I never patent it, and then YOU add a design to it claiming it had no prior art? First of all even though I never patented the Fender Cover it was out there way before you morphed the fake one. And second of all putting team logos on the cover was also my Idea, although licensing was too expensive “SO” Did you do that so it would look like I had some input? When in fact it was all my input! I have the proof. Boy can you ( whoever you are in the Government or with their help ) Spin.

  63. Well if my recollection is correct, Dick Egan came down to Tennessee. We then went to Eastport. We all went out on the SEW WHAT. And the Covers were on the round fenders even then. So if we can date his trip down to see us. We can surely date the Fender Covers having already on the fenders. We ate Hamburgers. I burned then … but by then Dick had wayyyyyyyyyy to many drinks and thought they were delicious!

  64. ACLU,

    “Nature makes the simple molecule H2O, otherwise known as water. Man, through initiating chemical reactions can also make water. The simple analogy holds: just as man cannot patent water, man cannot patent anything that Nature makes. Man is allowed to patent processes of creating the Products of Nature, if these processes pass the rest of the patent laws.”

    Just as man cannot patent water?”

    What is the legal basis for this statement? Prior art? — because water is well known?

    Let’s now talk about an unknown chemical, one found in a frog in my labratory and nowhere else as far as I or anyone else knows.

    It is not so clear that I cannot patent that chemical, is it?

    The point is, all your analogies, Mr. ACLU, start with a premise that is completely faulty. It starts with a well known chemical, and then says, with assurance, that the reason one cannot patent it is that it is product of nature.

    I hope you can see the fault in your logic.

  65. I suppose you got the idea from the waterproof Nylon/poly fender covers I made for the Sew What.. I have photos of it that were made WAYYYYYYYYYYYYYYYY before the Flat Fender… I made then while I was working for the guy that made “Dog Beds”. That was while I was at Eastport Marina.

  66. So I ask you were you selling a Fender cover? Of course you were. But that was after you got the other (CIP) patent application to claim a resililent core made of a suitable material. Honestly you morphed that first one so much how could you even claim it to be Fenders for Watercraft.
    the way i see it is after all that morphing the first one relates to a fender cover made of nylon. It is the second patent that describes it. So the second one is not a CIP as the first one was rewritten. They are seperate!
    Sort of like 22-A, and 22-B and 22-C.

  67. Anon, you view is completely — wrong.

    This statement is rejected as conclusionary, without foundation, and not addressing any of the points of the conversation.

    It is meaningless fluff.

    Point to Anon.

  68. It would not take much prodding to get him to blurt out again that Bilski held business methods patent eligible”

    Not after “Duplicity, Thy Name Is Ned Heller” got Ned to admit what the actual holding was in that case and gave the Ned-dog the bone with Ned’s own dicta/holding difference. Nd can never go back and confuse the holding of Bilski again.

  69. “sxckpuppet conspiracy” paints a picture of the person making he comment as a despair ate person who cannot address the actual issue under consideration and engages in a baseless attack instead”

    You do realize you have just described the collective psychological make up and online behavioral characteristics of 6, Ned and MM to perfection.

    Oh and the simple answer to why 6 persists in calling you AI, is your simple questions scare him.

  70. A big difference between the patent and trademark context is the incontestability provisions in the trademark law, which favor jurisdiction so that resolution can occur before the 5-year window.

  71. Ned,

    You lose for winning.

    In your exchange with J. Cricket on this very thread (Jun 28, 2012 at 12:27 PM and at 04:43 PM), you rested your case on authority that is not authority.

    In other words, you have no authority to combat the authority of the US Supreme Court and the US Congress.

    Y O U thus L O S E

    witness:
    J. Cricket said in reply to Ned Heller…

    “The latter clearly applies to laws of nature, but it is not at all clear that the same principle applies when considering products of nature.”

    You have no authority to make such a statement.

    On the other hand, the U.S. Supreme Court has — with the IMPLICIT authority of the U.S. Congress — said directly otherwise.

    Yours is just more wishful (and unfounded) thinking.

    To which Ned replies:

    Mr. Cricket, I rely on Hand in Parke-Davis and the CCPA in Bergstrom. I also note that the starting bacterial were known in Chakrabarty making them prior art. The difference in kind was required for that reason under Wood-Paper, Badische, Parke-Davis and Merck. So, the exactly holding is not wrong, but its theory may be wrong.

    Regardless, the cases I cite are authority for the proposition. Chakrabarty is inconsistent, but only in dicta.

    By your own admissions, dicta cannot make law and you rest your authority on dicta.

    Game over.

  72. 100 times MM has posted on the Enhanced Damages and Supreme Court Grants Cert threads.

    A full 90% of his posts contain inappropriate derogatory comments and slurs.

    Ninety Percent.

    Dennis Crouch, please do something.

  73. Such cordiality from those like Noise Above Law on this blog?

    It shudders to compare that with the foul abuse from MM on any in MM’s path.

  74. “Gene Quinn, the moderator of IPWatchdog says 6 is banned from his site for continuous and purposeful misrepresentations of the law.”

    Smart fellow that Gene Quinn. Where can I find this blog?

  75. Dear Mr. MM,

    It has come to our attention that your knickers are all twisted with fright that we will not be able to answer some questions that you feel are of prime importance in the Myriad Gene Patent case that has been remanded to the CAFC.

    Trust us, your questions have been considered, and considered for quite some time and in far more detail than your feeble protests urge (yes we have noted that while you express concern, it is doubtful that you are truly concerned for our views).

    As it can be difficult to cover what appear to be basic legal reasoning on a forum such as a web blog without sounding condescending, please accept our apologies as we must treat you as the dumbshtt that you are. We will endeavor to talk as simply and plainly as possible so that your fears and concerns over our righteous quest will be abated.

    What is a “product of nature”?

    A product of nature is something that can occur naturally, without the thoughtful manipulation of man. I can see by your posts that you are confused and think that if man can make something, then that something must not be a Product of Nature.

    That is not the case.

    There is nothing preventing man from making something that nature also makes. Nature makes the simple molecule H2O, otherwise known as water. Man, through initiating chemical reactions can also make water. The simple analogy holds: just as man cannot patent water, man cannot patent anything that Nature makes. Man is allowed to patent processes of creating the Products of Nature, if these processes pass the rest of the patent laws.

    Assuming the term “effectively” has a meaning broader than “literally”, what exactly does it mean for a claim to “effectively” read on a “product of nature”?

    There is no need to assume what the term “effectively” means. A common dictionary will tell you that “effectively” means: For all practical purposes; in effect. Further, “in effect “ quite simply means brought about by a cause or agent; a result.

    In the simplest of terms, if nature can cause an item to be in existence, then the item is a Product of Nature.

    For a claim to “effectively” read on a Product of Nature, is very much like any type of infringement analysis to the extent that if the Product of Nature is for all practical purposes identifiable by the claim, the claim is attempting to patent nature. Since the Supreme Court has been clear on the concept that nature is off limits to patents, it really surprises us that people think that they can patent nature.

    What about “natural” events that cause the formation of a claimed “man-made” composition long after the “man-made” composition is first disclosed and patented — is the patented composition suddenly ineligible?

    As already mentioned, you exhibit some confusion on this matter. We believe this stems from your fixation on the portion of patent law that deals with timing: 35 USC 102 anticipation. Rest assured, the judicial exception applies at the patent eligibility stage and not at the anticipation stage.

    The recent U.S. Supreme Court case Prometheus clearly laid out the proper jurisprudence that the parts of patent law other than 101 (that is 102, 103 and 112) are ill-equipped to handle the questions and issues of patent eligibility. You would do yourself a great favor if you would stop trying to limit your thinking to 102 anticipation. Our sources tell us that you celebrated the victory of the people mightily in the Prometheus case. We have to wonder why you seem not willing to continue that celebration.

    As we clearly explained so that any third grader could understand, just because man can make something, does not mean that that something is not a Product of Nature as well.

    Man can make water.
    Man cannot patent water.

    Your example of the fired clay from the other thread is similar to water in that fire is a natural occurrence and if the raw materials can be fired by nature, then it is immaterial that the clay could also be fired by man. Further, as we explained in simple terms, this is a 101 issue, and not a 102 issues, so timing has nothing to do with the exclusion.

    If your were indeed fortunate to obtain some patent term for something that you created only to find out later that the item is effectively a Product of Nature, then your patent is indeed “suddenly” ineligible. In truth, your patent was never eligible and you should consider reimbursing anyone that you made the ill begotten profit (over and above true processing costs, of course).

    We feel obligated to remind you of something you should know, that if you were diligent in your efforts and patented the process of your making of the composition, that process patent would most likely still be valid.

    I hope this short post allows you to sleep at night. We thank you for your concern and note that pinheads such as yourself should be happy that we are protecting the commons that belong to all of us. Sleep well my comrade.

  76. I may be late to the party, having just waded through paper by the judge on holding versus dicta, I find that I must point out one critical error in the foundation of Ned’s attack on the Product of Nature exception to patent eligibility:

    Ned states, in obvious error, “ The topic of debate is whether Hand’s holding of “difference in kind” relates the differences over the prior art of record in that case or differences over a product of nature as an exception to patentable subject matter.

    The critical language was not involved in the holding of the case. By Ned’s own given information, he is misapplying the law and trying to create law from dicta.

  77. …you forgot dancing in celebration (at least that is, until the 9-0 “effectively” comes to his neighborhood).

  78. (note: ineligible, not necessarily anticipated)

    From the clown prince of conflation, NOW comes the concern with deiiferences in 101 and 102.

    WHAT-EV!

  79. “God is a troll?”

    Hmmm good question. Let’s run int thru the old MM logic thought machine and see what comes out.

    If God made DNA.

    And products made by God/nature are not patent eligible.

    And everyone that believes/knows this is a troll.

    Then ….OMG!!!!!

  80. Not enough integration. That was the key in Prometheus. Process claims post Prometheus can’t be comprised of extra steps that will allow someone to argue, the extra steps are not enough to transform the process into patent eligible subject matter. Now we all have to make sure the concept, or technology is fully integrated in a way that any extrication of that concept or technology will render the invention inoperable.

  81. “Repeating these questions until they are answered is very helpful to all concerned

    Will you tell me how that works out for you (seeing as that’s exactly what I did with you)?

  82. “Except that’s not what Prometheus said at all. The old and conventional steps were tossed alright, but the remaining focus was not on some “prevent you from thinking.” Rather, the remaining steps were simply not enough.”

    MM will NEVER face this fact. He seems content in putting his fingers in his ears and closing his eyes while shouting 9-0 !9-0! 9-0!

  83. “As a matter of indisputable fact, a claim to a novel, non-obvious and useful isolated DNA sequence does not prevent practioners of the prior art from using or considering ineligible subject matter”

    Yes, it does. Under Quantum Biology DNA could be considered a natural phenomenon. Thus you are not allowed to claim it. And simply isolating DNA, does not change it from being a product of nature to a product of man. Fact is I can isolate any natural phenomenon and product of nature and in the end still have a product that is made by nature. DNA must be free to use by all men.

    Poof!

    There goes your “indisputable fact”.

  84. Correction: It would not take much prodding to get Ned to blurt out again that Bilski held business methods patent ineligible.

  85. “Do you purposefully also omit the loss of Bilski for which you predicted that Diehr would be outright overturned and business method patents would be ruled absolutely ineligible?”

    They, MM, Ned, and 6, especially want to forget this. It has just been a few weeks since Ned stop saying the opposite. And that was after two years of pounding from anon. Although you know Ned still believes it in his own mind. It would not take much prodding to get him to blurt out again that Bilski held business methods patent eligible.

  86. I do hope the ACLU attorneys are paying attention and have their own answers to these questions ready and plainly articulated. They’ll need those answers.enforce a patent on something that is effectively a Product of Nature?

  87. who says I’m banned at watchdog?

    Gene Quinn, the moderator of IPWatchdog says 6 is banned from his site for continuous and purposeful misrepresentations of the law.

  88. “How people answer those questions (or not) tell me more than what the answers are.”

    Gj copying me from the other thread AI. You’re not smart enough for us to believe this though.

  89. Was I born in early May?
    That far back I can’t remember.
    Or on a really sunny day,
    or a cold one in December?

    Am I stubborn as a bull?
    Or as stubborn as a jenny?
    Do I snort and scratch the dirt?
    Or hee haw to all a plenty?

  90. LOL. I think Ping caused more night terrors for Ned than AI or NAL combined. Long after Ping vanished from these boards Ned could still be seen writing about the horrific experience and worrying if Ping had returned. Sorta makes you feel some sympathy for the old guy.

  91. The real Thomas Hobbes only signed his name “Thomas Hobbes” …

    Although I fear that I only diminish my good name by doing so, I must respectfully point out that you are quite incorrect. I refer you, for example, to the discussion found at link to patentlyo.com , on February 22, 2010.

    You are correct, however, that I passed many a delightful afternoon conversing with the learned Noise Above Law.

  92. My dear sir, I assure you that there is and was only one Thomas Hobbes was here. I did indeed have several delightful discussions with the talented Noise Above Law. As I recall, we shared a love for the fine arts. I also recall that Ms. Noise penned many a missive in which she elaborated on a quite interesting theory regarding the pre-existence of the patent (R)ight with respect to our noble Constitution.

    I also recall that during this conversation we were afflicted, nay, assailed, by more than a few nihilists. I fear that several of these very same nihilists are lurking hereabouts as we speak. Of course, I use the word “speak” in a figurative sense only.

  93. “Fakes with fake stories. How sweet and malcomy.”

    Ahh by what is a Troll to do when he has no one left to troll? Put on a sock puppet and troll itself of course!

  94. That’s not exactly how I remember it

    Fakes with fake stories. How sweet and malcomy.

    The real Thomas Hobbes only signed his name “Thomas Hobbes” and enjoyed many thoroughly intriguing and gentlemanly discussions with the esteemed Noise Above Law.

  95. The Infamous Constitutional Right To A Patent debate is in and of itself a separate chapter in the blog history. One in which I will be glad to write next. And you are correct some of the same players from that era are involved. One note is the debate brought in many diverse commenters that extended well beyond what was called the vocal minority, and as a result lead to the largest thread counts in history, some approaching swells of nearly 700!

  96. Repeating these questions until they are answered is very helpful to all concerned

    I heard that’s a great way to get to China.

    Keep digging, you

    T O O L

  97. That’s not exactly how I remember it, although my memory is not what it used to be. I am certain, however, that you have omitted the part where my dear friend NAL went off the deep end over the Constitutional (R)ight to a patent. As I recall, she retired shortly after that unfortunate episode.

  98. You know what to all of you. I don’t need all this stalling. this is a simple Job that I can do myself. Making the whole thing is not really what I need to do. So this time I win….

  99. This AI commenter really traumatized the commenters called 6, MM, Ned, and to a lesser extent Ianae. It all started when Broge brought Actual Inventor in the limelight by asking his/her opinion on the Printer Matter Doctrine. AI’s honest answer, that supported the legal views of most patent attorneys on the blog caught the then reigning blog troll Malcolm Mooney off guard and flustered him. Feeling his place in the sun threatened, MM went on the usual troll like attack only to see his usual antics had no effect on the new commenter that would come to be known as AI. And having his hands full with a vastly superior legal mind like Noise Above the law, who was in the midst of chasing him thread to thread, Mooney quickly went into hiding from AI as much as possible. Shortly thereafter a newly minted, still wet behind the ears, Patent Examiner, called E.K. 6 made his appearance on the blog. Egotistical , arrogant and ignorant as a snot nose teenager, this 6, would quickly earn the ire of every patent professional on the blog. Not being able to hold his own with real attorneys, and chafing from repeated failures of the LSAT, 6 thought he would turn his attention to one of the blogs only Actual Inventors in an effort to boast his self esteem. But 6 too quickly learned he was no match for AI when he was completely embarrassed in a series of debates about the Diehr case. And to the horror of 6 and MM, other AI imitators or supporters began to emerge like AI’s Diehr Dearest. This gave rise to the term Diehrbots. In the midst of the diminished troll power of MM and 6, a new name emerged, called Ned Heller. Ned made the mistake of declaring Bilski had held Business Methods to be non patentable subject matter and set off a year long debate between himself and AI, in which Ned, a real patent attorney that bragged about using his real name, was embarrassed and humiliated on well settled points of the law. Since then, MM, 6, and Ned have never fully recovered from the intellectual brow beating at the hands of AI. Now when they lose in debates they call every one AI. Posters like Ping, Truth, and others where all thought by them of being AI. Even regular comments like Anon, Simple Questions, and even NWPA have been accused by the trio of being AI in disguise, come back to haunt them. Where AI and even NAL have gone no one knows. But for certain they gave the three commenters that have come to be known as the vocal minority, or as AI would call them , the Anti Patent Crowd, a mind altering, confidence shattering exprience that they have never fully recovered from. And ironically as the trio continue to rage about past battles lost and perceived as won, they keep the name AI alive in annals of blog history.

  100. Repeating these questions until they are answered is very helpful to all concerned (suckie’s brainfry notwithstanding). I do hope the ACLU attorneys are paying attention and have their own answers to these questions ready and plainly articulated. They’ll need those answers. I wish them luck. They’ll need that, too.

    LOL.

  101. Wow, nice eplectic rants of rambling rage MM

    You sure are pretty when you get pwned.

  102. I do need to amend that last bit:

    Suckie: Waaaaah!!!! Waaaaaah!!!!!! The vocal minority!!!!!! This never happens at Gene Quinn’s blog!!!!!!! Also, Ned Heller is a bad person!!!!!!!! I know you are but what am I!!!!!

    I apologize for the earlier omission.

  103. By the way, suckie, you recall why, in Prometheus, the Supreme Court held 9-0 that the indisputably transformative steps were “not enough” to rescue the claim from ineligibility?

    I assume you know the answer, suckie, because you believe that the composition claims should be treated “analogously” to method claims for 101 purposes.

    So answer the question already.

  104. Lest we forget: suckie has been peddling his belief here that compositions of matter are ineligible for patenting (note: ineligible, not necessarily anticipated) when they “effectively” claim a “product of nature.” Suckie has been asked a few fundamental questions about his belief and, in response to those questions, suckie has gone kookoobananas. Here are those questions once again:

    What is a “product of nature”? Assuming the term “effectively” has a meaning broader than “literally”, what exactly does it mean for a claim to “effectively” read on a “product of nature”? What about “natural” events that cause the formation of a claimed “man-made” composition long after the “man-made” composition is first disclosed and patented — is the patented composition suddenly ineligible?

    Let’s see if suckie can get his sh-t together and provide some answers. We highly doubt it, but stranger things have happened.

  105. How people answer those questions (or not) tell me more than what the answers are.

    LOL. Remember when all suckie really cared about was “substance”?

    Me neither.

    LOLOLOL.

  106. “For example, your undeserved haughtiness marks you as one royal pr1ck who is far mightier in your own mind than any evidence on these boards supports. Your inability to give a straight answer belies your ego with a dread of being wrong, which you manage to do quite nicely anyway.

    You are indeed this site’s biggest crybaby and your immaturity is astounding.

    But you already knew that, didn’t you?”

    Oh dam!! MM just got pwned by “simple questions” big time.

  107. Obsessed?

    Not at all. And far less then the obsession you consistently display with certain pet phrases.

    As I posted on the Enhanced Damages thread, I achieve my ends typically without obsessing or trolling, but with simple questions.

    How people answer those questions (or not) tell me more than what the answers are.

    For example, your undeserved haughtiness marks you as one royal pr1ck who is far mightier in your own mind than any evidence on these boards supports. Your inability to give a straight answer belies your ego with a dread of being wrong, which you manage to do quite nicely anyway.

    You are indeed this site’s biggest crybaby and your immaturity is astounding.

    But you already knew that, didn’t you?

  108. Instead of trolling the suckies, how about we see you address the questions put to you with some substantive answers?

  109. suckie Why would you think that I am AI?

    Because you are a habitual troll obsessed with Ned.

    This has been another edition of simple answers to suckie questions.

  110. Anon still has not gotten it.

    I do not dispute that purified adrenalin in that case was different in kind.  

    What anon does not get and does not understand it appears, was that Hand was talking about difference in kind from the prior art, the known prior art, that included extracted adrenalin, extracted from adrenal glands of living creatures.  The original extractors had tried for years to purify it.  They invited other chemists to try, to no avail.  They invited Takamine.  He succeeded.  

    The case was about prior art and the differences required to define over a known prior art compound, extracted adrenalin.

    In the course of his discussion on that point, Hand also said that for all he knew, extracted adrenalin was itself patent eligible.  Most agree that that was dicta; but it come from Hand, one of the best jurists of all time, who almost always got it right.

  111. Distorted?

    That would be yes, distorted.

    If you could be bothered to actual read Anon’s post, he explains why. I guess you didn’t read because were too busy emulating Malcolm and accusing Anon of not being able to read.

    They do say that those who do not are no better than those that cannot.

    Thanks for proving the adage Ned.

  112. Regardless, the cases I cite are authority for the proposition.

    So you rest your “authority” on dicta from two cases (and bad dicta at that) against what the Supreme Court has expressly stated and what is IMPLICIT in the law of Congress?

    LOL to the max!

  113. He got a patent over extracted adrenalin a known product — albeit also extracted from nature

    Clearly this is an incorrect statement. You are leaving out critical portions of the holding. Critical parts like what the patent was actually for was not in fact “known before” as the claims differentiated from what was known before.

    You are being sloppy with the terms, playing loose with the dicta, ignoring the holding and making a complete mess of the case.

  114. That’s not an answer to the simple questions’ question Ned.

    Nor does it accurately reflect where the authority of any of the judicial exceptions come from. You are avoiding the very heart of this important matter.

  115. Mr. Chemist, so what?  Indeed, so what?  The problem you do not understand is that extracted adrenaline was known, was prior art, and the purified version had to be different in kind.
     
    I have been arguing to I am blue in the fact that all prior Supreme Court cases that held composition claims invalid of products extracted from nature did so because those products were known and their utility were known.  Prior art.  Prior Art.  Prior Art.
     
    Think before you write.
     
    In Parke-Davis, extracted adrenalin was known.  The problem was to purify it.  Takamine solved that problem.  He got a patent over extracted adrenalin a known product — albeit also extracted from nature.

  116. simple, the language in Chakrabarty rests the the authority on is prior cases, but those prior cases are all about laws of nature that are akin to abstract ideas, universal truths, knowledge.  One cannot patent these per se as explained in Morse because they would cover every useful application of them.
     
    The same simply does not apply at all to products of nature.  The problem here is that one cannot patent nature at all.  Nature is not subject to law.  Order a tree to do something and it will ignore you.
     
    However, patenting man made versions of things of nature does not affect nature.  There is the act of man to create the version.  That is all that is required to bring the product under at least initial control.  The isolated  products is the stuff of patents depending on whether it is new and useful ect.

     

  117. “Do you realize that this is most definitely NOT a conversation or a dialogue?

    What you describe as a response-less post style is called preaching, soap-boxing, or even merely prattling in order to hear yourself.”

    Technically speaking you can also call it publishing your viewpoint on a topic. Or you can also call it the beginning of a potential conversation that could take place if the other parties desire to post without having been incited into posting.

    “Communication necessitates at least two parties and a message shared between the two parties. ”

    My message was what trolling is and what it is not. Also I noted what a conversation is and what it is not. That was the message shared between two parties. And you’re having trouble grasping that apparently.

    “Conversation, or dialogue demands interaction and a response. The response may be one of agreement, disagreement, clarification, additional points, or any other number of interactions, but make no mistake, a response is a necessary element.””

    It doesn’t really demand that, and we could quibble about that forever, but I’m not going to. I will give you a short example though. You can have a short conversation with your wife consisting entirely of “I’m going to the store” she does not have to say “ok” in order for you two to have conversed although it is likely to have happened. Either way, I will grant you your “you totally have to have a response to have had a conversation” because it does not impact the difference between trolling and a normal conversation, which is the intent to incite.

    In any event it is true that I wished to cut conversation short by choice. The reason being I have no desire to argue with you about what a conversation entails or go down any other rabbit trail you wish to blaze. The conclusion you’d like me to reach is, I suspect, that a conversation is no different than trolling, and you’d like me to reach that by us both establishing the premise that both are simply two people exchanging information. That premise is mistaken because obviously the intent is the difference. And that is regardless of whether we use your definition of conversation or not. Indeed, your bringing up the definition of a conversation was slightly trollish in and of itself, trying to goad me into responding about something which wasn’t even initially at issue and which I do not care about.

    This will be my final posting trying to help you understand the difference between good conversations and trolling. If you have any remaining questions I may deem you worthy of an answer, but I’m afraid I’m all out for this thread. Keep your trolling down bro.

  118. Waaaaah!!!! Waaaaaah!!!!!! The vocal minority!!!!!!

    Remind me again of the person above that started whining about the postings of others…

    The site’s biggest crybaby, that’s who.

  119. Ned Heller, you are misquoting Hand, and you clearly have no background in chemistry.

    Indeed, Sadtler supposes it to exist as a natural salt, and that the base was an original production of Takamine’s. That was a distinction not in degree, but in kind.” 89 F. 95 at 103

    Hand was discussing the very real difference between the forms of salt and base, neither of which are the form in nature.

    Hand never suggests that extracted adrenaline by itself was patent eligible with the phrase you are attributing to mean that.

    Those posting here that say that you have taken the actual single line of dicta, the infamous “But, even if it were merely an extracted product without change, there is no rule that such products are not patentable” out of context would be correct. You need to place that single line both with the very next sentence (“became for every practical
    purpose a new thing commercially and therapeutically
    “) and with the preceeding chemical arts discussion (involving the depth and siginificance of a change required to meet that comercial and therapeutic state) to allow that sentence its actual meaning.

    You are engaging in soundbyte lawyering at its worst.

  120. Do you realize that you have ignored everything that Anon said, laying out exactly why the dicta was errant, the fact that the dicta had a caveat, and that you are taking things out of context?

    Do you think it ironic to accuse Anon of not being able to read, when you display that same inability? Do you even recognize that you have difficulties with context?

  121. Ned do you realize that your statement of “Hand stated that he believed that extracted adrenaline by itself was patent eligible” is precisely the repetition of distorted dicta that Anon explains you are errant about?

    Do you realize that repeating the errant dicta does not change it from being errant dicta?

  122. What is the basis for any of the judicial exceptions?

    Are you being, what is the phrase, a little bit pregnant?

    Do you realize that the Court has established the Product of Nature exception under the exact same overall authority that it uses for all of it judicial exceptions?

    Do you realize that your inability to recognize this small yet important fact colors your “credibility” on this topic?

  123. I do not request nor desire your response.

    Do you realize that this is most definitely NOT a conversation or a dialogue?

    What you describe as a response-less post style is called preaching, soap-boxing, or even merely prattling in order to hear yourself.

    Communication necessitates at least two parties and a message shared between the two parties. Conversation, or dialogue demands interaction and a response. The response may be one of agreement, disagreement, clarification, additional points, or any other number of interactions, but make no mistake, a response is a necessary element.

  124. Why would you think that I am AI?

    I am not AI.

    Do you realize that your thinking that I am AI reinforces that person’s view of you being afraid of what he posts? I am not saying you are afraid, or that you should be afraid. I am saying that the type of comment which sounds in any type of “sxckpuppet conspiracy” paints a picture of the person making he comment as a despair ate person who cannot address the actual issue under consideration and engages in a baseless attack instead.

    I say this not to draw a reaction from you, but to engage in a dialogue and share with you the impression that such posting tactics make (and the fact that they do not have the desired effect of somehow exposing the sxckpuppet).

  125. Anon, and it also proves that you do not know how to read.

    I fully agreed that purified adrenaline was markedly different.

    But it is the issue of "from what?" that is critical.

    It is here you fail.

    Takamine was the first to purify adrenaline from extracted adrenaline. Your quotations even say this.  Your quote says that he was not the first to make the attempt on purification. But he was the first to achieve it.

    Hand stated that he believed that extracted adrenaline by itself was patent eligible.  He further stated that purified adrenaline was novel over the extracted form because it was different in kind, not in degree from the extracted form.

    Sent from iPhone

  126. Why do you think I am talking about “congressional chit-chat?”

    Do you understand what the Court is talking about when they reference the implicit law? Do you know that they are not referencing “congressional chit-chat?”

  127. Anon, He did. But about purified adrenaline, not extracted. The fact that you don’t understand this is because you do not know the facts of the case.

    So you think Hand said that extracted adrenaline, with no substantive change, was patent eligible?

    Really?

    Who’s spouting dicta now? You hang your entire theory on a single line of spurious dicta and neglect all else in the case that points otherwise.

    Consider:

    It certainly falls within claim 1 if it be free from inert and associated gland-tissue. No one supposes that these words mean that the actual cellular structure of the tissue remains, for the process involves its destruction” which indicates that Hand was only talking about patentability of a claim that could not be merely isolated without substantial change.

    Or consider:
    This substance, ammonium magnesium phosphate, is a new and inorganic substance arising from the regrouping of atoms which have, it is true, been a part of the gland-tissue, but which have been broken from the molecules which constituted their original form.” which also speaks substantive change (inorganic and regrouping of atoms)

    And consider:
    it is illegitimate to consider as “gland-tissue” those substances which, while they represent in part the same atoms, have by rearrangement and by addition of new atoms created new molecules. Moreover, the patent itself corroborates this view.” which speaks directly against your proposed view that the topic of eligible patent had no substantive change. To quote Hand: “illegitimate to consider [this so]“.

    And consider:
    one must have recourse, first, to the fact that the use [**7] of Adrenalin has been now sufficient to show that it is “practically free,” and to the presumption from the patent itself that the disclosure answers the claims.” Which clearly indicates that the what Hand was discussing was something substantively changed from nature.

    And on and on.

    Also consider:
    the defendant is right in insisting that the claims are now broader than a mere claim for the chemically free base, or active principle, and that they cover any substance [*102] which possesses the physiological characteristics of the glands and is substantially pure.” The invention clearly necessitated purification and in this instant, such purification was indeed a substantive change.

    Consider:
    there can be no doubt that the patentee did not intend them to cover any salt, but that he distinguished the salt as a new substance not claimed in his mother patent. It so happens in my judgment that in this respect he was very fortunate, as will later appear.

    in tandem with

    It is enough that Takamine was the first to isolate any base whatever, all other products existing in the form of a salt, because prior investigators were all trying to reduce the principle down as purely as possible. The invention was therefore novel.

    and

    Nor is the patent only for a degree of purity, and therefore not for a new “composition of matter.” As I have already shown, it does not include a salt, and no one had ever isolated a substance which was not in salt form, and which was anything like Takamine’s.

    EVERYTHING Hand is talking about in the case involves substantive chemical processing.

    You latch onto the single line of errant dicta next in the case. And you rest everything on that single line. And for which Judge Rich even inserts a caveat which you ignore: “make it available for any use by removing it from the other gland-tissue in which it was found, and, while it is of course possible logically to call this a purification of the principle, it became for every practical purpose a new thing commercially and therapeutically.” Clearly, a substantive change was inherent in the scope of what Rich was discussing. In fact he depends upon it: “That the change here resulted in ample practical differences is fully proved.

    Those practical differences are the very substative differences, the very differences in kind that the Product of Nature doctrine allow.

    Further the discussion on validity in comparison to the proffered four products is contemplated with the already admitted different in kind claimed invention.

    Nowhere in the decision is there any basis whatsoever for your view. You have twisted a single line, lopped off the caveat on the end, ignored the context of the discussion and you claim I do not know the facts of the case.

    You disgust me.

    Ned, do not lecture me about the facts of the case. I know them – and what they actually mean – far better than you.

  128. For instance AI, this is a conversation, I’m telling you my view on what the difference between a conversation, or dialoguing, and trolling. I do not request nor desire your response. I do request that you consider it, and hopefully cut down on the behavior as a result. If you can manage it.

  129. If you’ve been “dialoguing” with the sole purpose of getting a eliciting, or should I say, inciting, a response then you’ve been doing it wrong. Which is why trolls exist I suppose, they don’t know the difference between a dialogue, or a conversation, and in just trying to get a response.

    The difference, and how “I” aka everyone who isn’t a tar d would distinguish between the two is the intent. In having a normal conversation the intent is to discuss a topic and relay information about your take on whatever is being discussed and allow the other person to respond if they should so desire. You do not intend to incite them into a response, although you may request their response, you do not incite it. Trolling is when you deliberately incite them into providing a response.

    In any event, until your tar d brain can distinguish between entering into a conversation on a topic and in posting just to get them to respond you need to stf u.

    Ask your wife about this, maybe she can help walk you through it kindergarten style. Maybe she’ll be glad that her husband is finally taking an interest in learning the difference. You’ve probably been trolling her irl for years although she may not understand the difference either.

  130. There’s only one definition AI, and recently that’s been you. We have a whole thread full of you trolling Ned. Which is why I called you out on it. So cut it out.

  131. Anon, He did.  But about purified adrenaline, not extracted.

    The fact that you don't understand this is because you do not know the facts of the case.

    Sent from iPhone

  132. Bending light through a stream of water is a product of nature.

    A process for providing computerized fiber optic networks is a patentable process.

    Any questions?

  133. You keep talking, suckie, but nothing’s coming out of your mouth.

    Don’t worry Malcolm, you will always be the master of that trick. You’ve practiced it for years.

  134. We cannot an should not apply law of nature theories (warehouse) to products of nature.

    That is exactly what we can and what we should do. This is an important issue. It is important to recognize the boundary of patent law, and recognize the boundary exists no matter which enumerated category is under discussion. You are trying too hard on this topic. Patenting of man’s efforts is clearly protected even under a Product of Nature exception. The exception only covers that which is not effectively belonging to nature. It is clear that true invention that shows the hand of man with a meaningful result of being different in kind IS protected, so what’s the angle? Why are you trying so hard on this topic? Why are you turning a blind eye to the effect your view would have?

  135. Ned, your point of “Hand was right.  Extracted adrenaline was patent elible, without making any substantive change” is a grossly false/incompetent statement of the case. He expressly stated that there was a substantive change, using the words “of kind” to so indicate.

    Your habit of misreading case law to support your position is so transparent.

  136. Ned, you are dissembling. Yes, the issue is important – and all the more reason to address issues properly raised instead of your perpetual penchant for ignoring things that “don’t fit.”

    For you to hang on exact words of the Court when you think it suits your agenda, but not even recognize or acknowledge others when they are directly germane to the very important issue is unfitting.

  137. Very reasonable and nobody gets hurt.

    Your concern about “getting hurt” is touching – but misplaced. The truth is that the last thing you really want Malcolm is “reasonable.” Every bit of your posting personality, your “swagger” is unreasonable.

  138. Why were those indisputably transforming steps “not enough” to turn the act of thinking about ineligible subject matter into an eligible claim? The Supreme Court was crystal clear about the answer,

    Umm The Supreme Court never asked that question.

  139. That’s a lot of questions you have there MM.

    But Simple Questions, it has been only eight days since your first set. On the other hand, you are dealing with a bloated yet empty windbag too full of himself to actually deal with the serious aspects of the situation as you have presented them.

  140. Polls showing public respect for the Supreme Court at a quarter-century low reflect the growing view that the justices pursue partisan agendas.

  141. Ned,

    Do you realize that the point of the post by Dynamic Dud is More Like It has absolutely nothing to do with listening to Malcolm (or not)?

    Do you realize that the points by Just My View (and the start of this little segment) are screaming for an answer from you?

    Do you realize that your continued insistence on the importance of Malcolm’s views only dig the hole of your reputation ever deeper? (Yes, that last one is rhetorical)

  142. the person who is posting just to elicit a response

    Do you realize that in most cases this is also true of a dialogue?

    Have you heard of this notion of dialoguing?

    How would you differentiate the two?

  143. Ned,

    Is there a reason you are not addressing the point made that your whole holding/dicta line of thought is incorrect because the authority comes not from the U.S. Supreme Court directly but rather from the implicit law as written by Congress in light of the constitution?

    Hasn’t the precise and particular words chosen with care and purpose by the Court been shown to you?

    Doesn’t that shut down your continued references and make a mockery of your entire attempt to “invalidate the Product of Nature portion of the judicial exception?

    Aren’t you wasting everyone’s (including yours) time by continuing on a legal line of thought that is groundless?

  144. Do you think it odd that you are having trouble answering this one?

    (it really is no more difficult than any of the others)

  145. Mr. Cricket, I rely on Hand in Parke-Davis and the CCPA in Bergstrom.  I also note that the starting bacterial were known in Chakrabarty making them prior art.  The difference in kind was required for that reason under Wood-Paper, Badische, Parke-Davis and Merck.  So, the exactly holding is not wrong, but its theory may be wrong.  

    Regardless, the cases I cite are authority for the proposition.  Chakrabarty is inconsistent, but only in dicta.

  146. And to answer your question on my track record, I am batting 1000%. Including Bilski.

    Thanks for asking.

  147. Did you notice that you have not yet provided a clear and definitive answer on the prediction of the proven right questions?

    Is it nice to provide such cushy and malleable “answers” so that you can claim that “pretty nice track record for the big cases”?

    Do you purposefully also omit the loss of Bilski for which you predicted that Diehr would be outright overturned and business method patents would be ruled absolutely ineligible?

    Do you enjoy being such a putz? (and yes the last one is rhetorical)

  148. 6 asks a reasonable question:

    Why not simply save us the trouble AI? Keep your trolling to a minimum and no action would be taken against you

    Here’s just part of the answer to that question:

    The former spokesman for the Michigan Republican Party sent out an email that questioned whether armed rebellion was justified over the Supreme Court ruling upholding Obamacare.

    LOLOLOLOLOLOL. Yes, this blog has the d-mbest trolls, but there are human beings out there who are slightly more kookoobananas. Just slightly, though.

  149. All in all, you have thrown out a lot of hot air and made a fifty-fifty toin coss guess of “claims will survive.” ?

    I’ve done a lot more than, suckie fabricator.

    Even if that was all I’d predicted, still a pretty nice track record for the big cases.

    KSR
    Nujtgen
    Abbott v. Sandoz
    Bilski
    Prometheus

    And we’ll be adding a few more big cases to my pile in the near future, Myriad included. What’s your track record like, suckie? Oh, right. Sorry to bring up that unfortunate business.

    LOL.

  150. A post can be both substantive and a troll at the same time ya ta rd. The trollish nature of the post is not mutually exclusive to it also being substantive in nature. The trollish nature is what is objectionable.

    The troll is, as they are in all cases, the person who is posting just to elicit a response.

    How can you possibly be having such a hard time understanding what a troll is or who is trolling in a given situation AI? It isn’t that hard to understand bro.

  151. LOL. Keep digging, suckie. When you get to China, I’d like some of those steamed buns with the barbecued pork inside. Yummy.

  152. To my knowledge they do not often post simply to elicit a response. But, if you feel someone is posting simply to elicit a response (aka trolling) then you may feel free to ignore them or note to them that you feel they’re trolling and thus choose not to respond. Or, if you so desire, you may grant the “vocal minority” whom you believe to be trolling a victory (or at least what would be a victory if they were truly trolling) and grant them a response.

    Your choice bro. But in either event, if you guys (or maybe it’s just AI?) don’t stop trolling the f out of Ned then I will start agitating for anti-trolling moderation.

    Why not simply save us the trouble AI? Keep your trolling to a minimum and no action would be taken against you.

  153. What are your definitions of “d–chebag and a troll?”

    How are my questions remotely indicative of this status?

    Isn’t much more likely that you are the “”d–chebag and a troll? (and yes, this last question is rhetorical).

    Just in case, you lost your way, the original questions from June 20, 3:04 PM:

    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)?

    From June 25 at 1:13 PM:

    [MM stated “I’m going to be proven right again”]

    Just to be clear (since it’s not), does “proven right again” mean that the court is going to “simply rely on 102/103 to deal with the issue”?

    Or does “proven right again” mean that there is no Product of Nature exception under 101?

    Or does “proven right again” mean that there is a Product of Nature exception under 101, and the Myriad claims pass muster because the claims are sufficient to effectively be different in kind?

    Do you recognize the major differences (and that there are major differences) between these questions?

    And in response to your rambling that same day at 2:03 PM:

    MM…
    Is it condescending when you haven’t shown didly about where you are on this topic, and yet put on airs like you know so much?

    Further, the glib comment is not really an answer to my question that you recognize the major differences, is it? And calling the “carefully chosen words” of the Supreme Court “meaningless drivel” is just an evasion, isn’t it?

    It’s hard to show where you are at when all of your posts are comprised of questions, insults, and evasions.

    To paraphrase “Prometheus” you need to do something more.

    Your reply of “That would certainly prove me right, suckie” is not quite an answer, is it?

    I could assume that you are implying that that is your prediction, but I generally leave the assumptions to others. If that is your prediction, why not just come right out and say it?

    Y/N : Do you predict that the GVR CAFC will answer that 101 does not apply and that the issue is settled under 102/103?

    Your response of “might be possible to develop a Product of Nature exception but it would hardly be distinguishable from 102/103, for the reasons I’ve provided here numerous times” is likewise, not quite an answer, is it?

    Mainly because the reason you’ve provided numerous times has fallen short numerous times and the numerous questions needed to be answered to have that reason make any sense have been evaded numerous times. Why don’t you do something constructive about that?

    Your final comment of Myriad’s compositions will surive 101 is also hardly an answer, as you have not stated why those composoitions will survive, have you?

    All in all, you have thrown out a lot of hot air and made a fifty-fifty toin coss guess of “claims will survive.” Can’t a three year old do just as much?

    Normally I don’t allow myself to get sucked into a long discourse like this, but it is kind of fun joining in on the pummel-MM parade. Can you guess who gets my vote for most pwned?

    Anytime you want to prove that you are not a “d–chebag and a troll” and answer the questions put to you, by all means, have at it.

  154. Summary of Suckie’s Recent Behavior

    Suckie: Composition claims are ineligible if they effectively read on a product of nature!!!!

    The World: What is a “product of nature” suckie? Assuming the term “effectively” has a meaning broader than “literally”, what exactly does it mean for a claim to “effectively” read on a “product of nature”? What about “natural” events that cause the formation of a claimed “man-made” composition long after the “man-made” composition is first disclosed and patented — is the patented composition suddenly ineligible?

    Suckie: When did you stop beating your wife?

    The World: Please explain your test, suckie.

    Suckie: Answer my question first.

    The World: We’ve seen this behavior from you before, suckie. You’re behaving like a troll.

    Suckie: Waaaaah!!!! Waaaaaah!!!!!! The vocal minority!!!!!! This never happens at Gene Quinn’s blog!!!!!!! Also, Ned Heller is a bad person!!!!!!!!

  155. suckie Why are you not answering my questions?

    Because you’re a d–chebag and a troll.

    This has been another edition of simple answers to suckie’s questions.

  156. Still waiting for your answer.

    Is this the message I should be posting while I wait for the answers from you to my questions?

  157. suckie Is it the same reason why you are refusing to answer my questions?

    No.

    That was a simple question, actually.

  158. I know exactly why you are refusing to answer the question.

    Is it the same reason why you are refusing to answer my questions?

  159. She began heavily trolling towards the end of her stay though and I started ignoring her, knocked her up

    LOL, that’s some serious Michael R Thomas’ing you are doing there pal.

    It’s funny (not really) that you don’t comment on the biggest trolls around: the vocal minority.

  160. Not technically true, trolls can be defeated. They are defeated when they voluntarily lose interest and stop posting troll posts.

    For instance, NAL was defeated by the forces of light some time ago, and we scarce hear from her. Keep in mind she was only somewhat of a troll as sometimes she did have a legit interest in the subject. She began heavily trolling towards the end of her stay though and I started ignoring her, knocked her up, and then she quit posting to have my baby and raise it up.

    Likewise, other trolls left after their side lost key court cases that pretty much obliterate their chosen trolling positions. PDS, broje, both gone as a result of KSR and Ariad, and NWPA barely stops by after Bilski, Cybersource and Prom although his actual posts are much more troll like now than they were before.

    You are technically mistaken about the deluded part as well. Take for instance, yet again, NAL. When Ariad came out, she (and broje too) did indeed stop trolling on that issue. Likewise she would probably not troll about 101 any longer after Prom came out if she were still around. She’s not dmb, she was just misguided on what the law was and also kind of bad at reading. When it is carefully presented to her, she understands and stops trolling that issue. Some posters here are that same way. AI however is not :( Thus he will troll Ned infinitely, or at least until his patent app goes abandoned or issues.

    In any event, I do not present you with “the only option”. I simply present you with the “only option to have a decent chance at getting them to go away”. But you are right, there are other options, such as the one you present, all of which involve you giving them exactly what they want, i.e. a response, and thus letting them win and contributing to their desire to stay and post more. You always have that option of “losing by choice”. But you can rest assured that if you give them what they want then you are encouraging them to post more, not leave.

    And btw, who says I’m banned at watchdog? I just have to use my real name, which I do when I post. Only my moniker isn’t bannzored :( Which is really a shame tbh, because it is cooler than like 99% of them out there.

  161. suckie If the claim as written, no matter how isolating or purifying or otherwise, cannot effectively differentiate man made products from Products of Nature, the claim is fatally defective and cannot be enforced.

    Circular gobbledygook, and “products of nature” is again left completely undefined.

    What does “product of nature” mean, suckie? What does it mean for something to be “effectively differentiated” from a “product of nature”?

    Please put some meat on your gobbledygook bones. When you provide your answer, please be sure to consider the case where, many years after the granting of claims to a novel composition, a fire results in a distinct artificial, “man-made” composition converting “naturally” into the claimed composition. Is that composition “effectively in nature” according to your definition, thereby destroying patent eligibility?

    Let us know, suckie. It’s an important and glaringly obvious question that needs to be answered before anyone can take your** “effectively in nature” test seriously.

    **Please stop pretending that the Supreme Court in Prometheus addressed the eligibility of composition claims. They didn’t. They did, however, hold that if a claim effectively (i.e., as a practical matter) prevents practitioners of the prior art from freely using or considering ineligible subject matter, that claim is ineligible.

  162. suckie MM has reached the bottom of his thought barrel

    Uh … no. More like I’ve reached the bottom of your barrel and, seeing only dead fish there, decided it was time to stop shooting.

    By the way, suckie, you recall why, in Prometheus, the Supreme Court held 9-0 that the indisputably transformative steps were “not enough” to rescue the claim from ineligibility?

    Still waiting for your answer.

  163. suckie the remaining steps were simply not enough

    You keep talking, suckie, but nothing’s coming out of your mouth.

    Why were those indisputably transforming steps “not enough” to turn the act of thinking about ineligible subject matter into an eligible claim? The Supreme Court was crystal clear about the answer, suckie.

    I’m wondering why you refuse to answer the question. Actually, I know exactly why you are refusing to answer the question. But go ahead: try again.

    LOL. MTBHTDT

  164. Ned,

    The posts are to and about YOU.

    don’t want to tread on his posts” – the latest line in a long line of LAME excuses as to why Ned does not provide answers to questions.

    Do you know that you can hear what MM has to say and still address the issues raised yourself? You do not need permission from either your Mommy or from MM.

  165. The latter clearly applies to laws of nature, but it is not at all clear that the same principle applies when considering products of nature.

    You have no authority to make such a statement.

    On the other hand, the U.S. Supreme Court has — with the IMPLICIT authority of the U.S. Congress — said directly otherwise.

    Yours is just more wishful (and unfounded) thinking.

  166. Malcolm: “Just as in Prometheus, something more than what is effectively in nature is needed”

    I think that all that is required is that the natural product be subject to some man made process to change its state into something useful.

    Hand said, there is no rule that extracted adrenaline is not patentable. (This was not the purified form that was the subject of the patent he was taking about here.) That is the key. Extracted adrenaline was marginally useful in that form. But it was useful. However, adrenaline itself was unchanged in composition. It was still surrounded by all the impurities of nature. But the extraction process was the act of man, and extracted adrenaline was the result, a state not found in nature.

  167. Sleepy, but even if Chakrarbarty establishes that one cannot patent products of nature in their natural form, subjecting them to a man made process to render them useful is all that should be required to obtain a patent.  See the customs case they cited for the proposition.  The change in state from nature need only be sufficient to make the product useful.

  168. Mr. Come, there is a difference between cannot patent because the law does not extend to wild things, e.g., Pierson v. Post, and one cannot patent because all are free to use.  The latter clearly applies to laws of nature, but it is not at all clear that the same principle applies when considering products of nature.
     
    Hand was right.  Extracted adrenaline was patent elible, without making any substantive change of the active compound as found in nature, but simply because it was made subject to some man made process to change its state into something useful, regardless of the level of utility.  The discovery of its utility is what is new and entitled to protection.  All mean are not free to use extracted adrenaline, which is new and useful.  Only the first inventor should have that exclusive right. 
     
    We cannot an should not apply law of nature theories (warehouse) to products of nature.  We should instead apply Hand's theories and recognize why we cannot patent nature per se: nature is not subject to law.  The principles are entirely different.
     

     

  169. 6,

    Trolls, like shills, can never be truly “defeated” on the internets (unless of course, you consider being banned from a blog being defeated – do you consider yourself banned from IPWatchdog to be such a defeat?). They will always delude themselves.

    That being said, the nearest you can come to defeating them is to show their abject inanity with questions that go unanswered. When a troll is forced to repeatedly run from a question, they and all readers of the blog make note and accord due weight to any further postings from those trolls.

    Your view of “the only option” is thus incorrect. And besides, it is so much more fun rubbing the trolls’ collective noses in their piles of excrement.

  170. I do have to lol at the proposition that trolls “win” when they delude themselves. And I also have to lol at the proposition that trolls can be “pinned” and that there is a “scoreboard” of questions that go unanswered. Obviously the trolls post not to try to make a valid point, or something of that nature, but to elicit a response. Thus it will not matter if they be “pinned” or not, they just want the response.

    However, considering that there is a 99% chance that I’m posting in re the troll known as AI I wouldn’t expect him to realize this because he doesn’t grasp what a troll is.

    But he is right that ignoring them will not “make” them go away, but it is your only option to have a decent chance that they will go away.

  171. Not enough for what?

    …for patent elgibility…?

    Really? That’s the best trolling you can offer IANAE? Was that really worth the effort to walk down all those tower steps?

  172. On point and devastating to Ned’s agenda; therefore guaranteed to be ignored by Ned.

    LOLZ. This thread too must be getting far too large*

    large* translated from the Nedish: having or containing too many embarrassing points or substantive comments that Ned’s agenda cannot account for, necessitating a “fresh” start somewhere else, unencumbered by those inconvenient truths.

  173. This is at least the fourth comment on this thread discussing or directed to Ned Heller that MM has jumped on and answered first (and for which Ned has mostly not answered at all).

    What’s up with that? It appears that MM is batman to Ned’s robin, MM the pitcher to Ned’s being the catcher.

  174. “How do you propose to ‘establish the patent eligibility’ of compositions of matter

    These are not the droids you are looking for.

    [waives hand]

    Leave my corner of the patent world alone — subject-matter eligibility for biotechnology inventions, being unbroken, needs no fixing.

    [waives hand]

  175. You do know that AI is pwning you hard in that threat right Ned?

    Corrected. For the second time.

    Pay attention.

  176. Ignoring them does not make them go away.

    We should let the trolls have cyberspace. If we give into them and accept their incorrect statements, we will at least have peace in our time.

  177. The “kind” concept imposes a “degree” requirement

    Most expressly not.

  178. It's What You Don't Say That Speaks So Loudly. It's When You Don't Say It That The Message Is Deafening says:

    On point and devastating to Ned’s agenda; therefore guaranteed to be ignored by Ned.

  179. They live for the banter, and they lose when they write 500 words and you write a 3 letter response that they just simply cannot ignore.

    NAL

    Corrected

  180. Ned states “The only authority, and it is dicta, on point is Chakrabarty. Sweet rested his legal authority primarily on that case.” and it still does not dawn on him that it is not dicta or holding that supplies the authority. The authority comes from Congress and how the Court has interpreted the implicit law that Congress wrote in 101.

    That’ s why his argument fails at the start. He is looking for something that not only isn’t ther, he is looking for something that does not NEED to be there (from the Court) because it is already there from Congress and the constitution. The Court was clear in both Chakrabarty as reinforced in Prometheus: IMPLICIT.

    It’s a word chosen carefully. It’s a word chosen with a purpose.

    It’s time to stop ignoring what the Court has written.

  181. More like grabbing assumptions you need to prove in the first place

    Uh … yes, I am assuming that. I’m merely stating a prior condition in a general rule.

    The general rule is that you don’t start by assuming the end condition. Just something to keep in mind if you ever get out of the fifth grade.

    T O O L

  182. “Change all posting pseudonyms to “Anonymous” and force people to actually read for substance rather than “bank” on a moniker.”

    Won’t work with 6 and Ned. As soon as it becomes apparent they are losing the debate, they will STILL cry, “AI!!”

  183. Who cares what Judge Sweet “ruled”?

    Most people who want to understand law and be able to apply the law want to know what a judge ruled and why.

    Others, who think they already know the answer (and don’t) are destined to never know the answers.

  184. I was talking about the “effective” patenting of ineligible subject matter long before the Prometheus decision.

    Fine. Now just apply it to composition claims in the proper analagous manner.

    It seems that you want composition claims to be exempt for some (unstated) reason. It’s too bad that the Court has expressly warned against treating the enumerated categories in the manner you are so scrambling to do.

    You are sweating and it shows.

    If you want of focus on Prometheus 9-0, focus on what that means in the analagous enumerated category of compostions. Doing so does demand a cognitive ability to abstract and apply the underlying logic. Instead of throwing your hands up in the air, quitting and calling it gobbedlygook, just apply yourself and figure out what the rest of us already know.

    It would show that you might really understand why the Prometheus decision was 9-0.

  185. you fail to effectively differentiate the claimed product from the Product of Nature, and in essence, are still attempting to claim Nature.

    In a nutshell, the unresolved problem of MM’s view quickly resurfaces.

    If the claim as written, no matter how isolating or purifying or otherwise, cannot effectively differentiate man made products from Products of Nature, the claim is fatally defective and cannot be enforced.

    The claim must be ineligible.

  186. Mr. Around, the terms ‘isolated’ and ‘purified’ both mean, ‘isolated or purified from the state the compound is found in nature or in an extracted form by a man made and employed process.’ In such a state, the compound is not found in nature.

    You left out “effectively.”

    And that is the crux of the problem.

    Strictly speaking, “found in nature (or not) is a bit of a red herring, and is NOT something that is simply followed to the letter. Tryign to follow it to the letter, trying to make the issue a 102 issue is exactly the view rejected by Judge Sweet.

    And even though MM cannot come to terms with a term of art used for over one hundred years, “effectively” serves the same purpose as the ANALAGOUS case of Prometheus teaches: you need something more.

    In Prometheus, the process under inspection needed to be something more than “apply IT.” For the Myriad case, the corresponding IT is not a process but a composition (except claim 20). It is only natural [pun intended] to NOT allow the enumerated category to limit the rules of judicial exception. The Court has said this on numerous occasions, warning against the “lawyers’ skills.” The natural corresponding IT for composition claims is that the claimed item must be different in kind.

    Merely isolating is not enough.

    Merely purifying is not enough.

    If either the isolating or purifying does not change the claimed item effectively from the Product of Nature — no matter what man made processing is employed for that isolating or purifying steps — you fail to effectively differentiate the claimed product from the Product of Nature, and in essence, are still attempting to claim Nature.

    I see that you are stuck in a 102 mindset. That is understandable as “Product of Nature” and “different in kind” are also used in that regard. But you must understand, you are so close to understanding, that this IS a 101 issue. The holding of the case at each level so far (and no doubt into the future) will be based on 101. Your inability to see that this is a 101 issues simply does not change that. All of your efforts to spin this as a 102 issue will not change that.

    The sooner you realize what the case is about, the sooner you will realize that you have been making a spurious argument.

    This was not a 101-type issue, where, I believe, the degree of separation is a not the issue.JUST IS NOT SO

    For 101 purposes, all that should be required is that the claimed product not be found in nature.JUST IS NOT SO This is simply wishful thinking that “effectively” does not apply. This is just wishful thinking that the analagous lesson from PRometheus does not apply.

    Merely “not found in nature” is not enough.

    The Court has been clear on this, even if MM refuses to open his eyes and see it.

  187. Nice straw:

    The “direction” in Prometheus is that if your claim prevents practitioners of the prior art (i.e., practitioners of old, conventional steps) from using or considering ineligible subject matter (e.g., abstractions and/or laws of nature and/or any other patent ineligible fact or idea), then the claim is effectively a claim to that ineligible subject matter. As a result (surprise!), the claim is ineligible for patenting.

    Except that’s not what Prometheus said at all. The old and conventional steps were tossed alright, but the remaining focus was not on some “prevent you from thinking.” Rather, the remaining steps were simply not enough.

  188. Mr. Around, the terms "isolated" and "purified" both mean, "isolated or purified from the state the compound is found in nature or in an extracted form by a man made and employed process."  In such a state, the compound is not found in nature.

    The disclosure needs to support the claim in that a man made and employed process for isolation or purification from the prior state, natural state or known, must be known or disclosed.  But, the difference in kind distinction is misleading in context because it suggests a requirement beyond a process for separating the claimed compound from nature.  The "kind" concept imposes a "degree" requirement, where the only relevant inquiry should be whether the claimed compound exists in nature at all; wherein the reason we cannot claim nature itself is that legally nature is not subject to law. 

    Thus the statement by the government about an isolated leaf is misleading.  Isolated leaves are well known in nature. Further, an isolated leaf is still a leaf in its natural state.  It has undergone no man made processing to purify it.

    It is also observed that difference kind originated in Parke-Davis, where purification changed the state of the known impure adrenaline to a pure product free from contamination of any sort.  Given that the potential utility of the impure adrenaline if purified was known, the difference in the claimed product had to be more than just a difference in degree.  It had to be the kind of difference that rendered the claimed compound useful.  

    But this was an issue of prior art and the degree of separation required for their to be invention.  This was not a 101-type issue, where, I believe, the degree of separation is a not the issue.  For 101 purposes, all that should be required is that the claimed product not be found in nature.

  189. suckie the commenters at Gene Quinn’s blog that make the substantive post on the law are allowed

    Remember when Gene Quinn set forth the correct facts in Prometheus? And then correctly predicted that the addition of old conventional transforming steps to an otherwise ineligible mental step would be insufficient to confer eligibility to the claim?

    Neither do I.

    But I do know that Gene was taken for a little walk and given a chance to embrace the truth. He squandered that opportunity. Bigtime.

  190. New Light, and Les, should be in that list as well. And of course who can ever forget NAL, that exposed you for being the blogs first troll and so called sock puppet.

  191. I have seen some very substantive posts on the law from posters like Simple Questions, anon, and NWPA

    LOL. Sure you have, suckie.

  192. suckie: different in kind

    There’s that gobbledygook again. Please define the term in a non-circular fashion, suckie.

    And by the way, suckie, do you recall why, in Prometheus, the Supreme Court held 9-0 that the indisputably transformative steps were “not enough”? I think you do recall, suckie. But please share the answer with us. Why were the indisputably transformative steps in Prometheus’ claims deemed “not enough” to confer patent eligibility to the otherwise ineligible mental step (the only other step) recite in the claim?

  193. Oh, I should add, that the commenters at Gene Quinn’s blog that make the substantive post on the law are allowed, and the types that would retort with refrains of “suckie” “tards” and “sock puppet” rather than engage in legal discourse centered on actual law, are the ones banned. The more I think about that fact the more I realize why I enjoy Gene Quinn’s Blog so much. Think I will go there now.

  194. suckie all you need to do is recognize the “effectively”

    All you need to do, suckie, is acknowledge that I was talking about the “effective” patenting of ineligible subject matter long before the Prometheus decision.

    Of course, when I use the term “effective” in that context, it has an actual definition (I’ve provided that definition upthread). In contrast, you use the term as a band-aid to cover up the fact that you have no idea what you are talking about.

    Man, this blog has the d-umbest trolls.

    By the way, suckie, do you recall why, in Prometheus, the Supreme Court held 9-0 that the indisputably transformative steps were “not enough”? I think you do recall, suckie. But please share the answer with us. Why were the indisputably transformative steps in Prometheus’ claims deemed “not enough” to confer patent eligibility to the otherwise ineligible mental step (the only other step) recite in the claim?

  195. “Trolls are to be heckled and derided. Attemptng to substantively debate them only makes them stronger and more willing to troll.”

    This is confusing. I have seen some very substantive posts on the law from posters like Simple Questions, anon, and NWPA and others, only to see those posters heckled and derided with names like “suckie” “tards” and “sock puppets”.

    So who would be the troll in this case? Who should be banned? I do know that at that fine blog of Gene Quinn, such behavior is not tolerated and those types of posters are indeed banned.

  196. Trolls win when you ignore them because they delude themselves into thinking that since they had the last word, they must be right.

    The way to beat trolls is to pin them with a question they refuse to answer, and then point to the scoreboard every time they don’t answer it. Even trolls recognize when they don their skirts and track shoes and start running up that (Sam) hill.

    Ignoring them does not make them go away.

  197. (i.e., compositions that differ from old compositions (whether natural or artificial)) are patent eligible.

    So very close–all you need to do is recognize the “effectively” aspect that the Court in Prometheus requires in any 101 analysis, and you have effectively converted to be a believer.

  198. If the product of nature is not known or in use, and the claim does not make nature an infringement, then the claim presents no fundamental problem of preventing people from doing what they have always done. The claim to the isolated product of nature brings new knowledge and new technology to the public without any downside harm whatsoever by granting protection. This fundamental fact must be recognized.

    This IS recognized.

    What you have just described is the judicial exception based on Product of Nature.

    The exception is circumvented if the change in isolating or purifying or whatever creates something different in kind than what is the product of nature so that you do not have an issue with a patent claim pre-empting nature.

    The moment you are clear from effectively pre-empting claiming a Product of Nature by doing something that makes the claimed item different in kind from that which belongs to the warehouse for all, you get a patent!

    But if you don’t claim something that is effectively different, you are trying to claim something that you don’t have a right to–even if you invented it TOO, or discovered it, and did nothing effectively more.

  199. Go figure.

    Nice answer Troll. Now how about you address any of the substantive points.

    Not up to it?

    Hmm. Go figure.

  200. Wow,

    Talk about a colon cleansing. Hope you are feeling better.

    I guess that’s what happens when you ingest so much straw (or believe your own crrp).

  201. Looking, Sweet rejected the notion that Hand’s opinion rested on a product of nature exception. Rather Sweet believed that the Supreme Court cases of Wood-Paper, Cochrane v. Badische and, of course, Chakrabarty did. However, in both Wood-Paper and Badische, the compounds of nature were also known and for this reason, prior art. The cases were not about an exception, but Sweet did not seem to appreciate this.

    The only authority, and it is dicta, on point is Chakrabarty. Sweet rested his legal authority primarily on that case.

    I would also like to point out that Malcolm is entirely correct. The real problem occurs when someone withdraws known technology from the public domain such as to make the practice of the prior art infringing. See, Graham and recently cited by Golan. That is the fundamental problem. That was the problem with the claims in Prometheus, the only thing new in the claims was an unpatentable fact making the practice of the prior art an infringement.

    If the product of nature is not known or in use, and the claim does not make nature an infringement, then the claim presents no fundamental problem of preventing people from doing what they have always done. The claim to the isolated product of nature brings new knowledge and new technology to the public without any downside harm whatsoever by granting protection. This fundamental fact must be recognized.

  202. suckie You are assuming the claim can be considered novel, non-obvious and useful.

    Uh … yes, I am assuming that. I’m merely stating a prior condition in a general rule. Here it is again:

    As a matter of indisputable fact, a claim to a novel, non-obvious and useful isolated DNA sequence does not prevent practioners of the prior art from using or considering ineligible subject matter.

    If you can provide an example of such a DNA sequence that violates the above rule, I’m ready to retract the rule. Until then, it remains an indisputable fact. Sorry about that, suckie.

    You haven’t even begun the analysis.

    In fact, I have begun the analysis and it’s mostly completed. Myriad’s claims are certainly novel and useful. Are they obvious? That’s a question of fact and off the top of my head I don’t have all the answers.

    Just as in Prometheus, in which transformative steps were not enough, not every structural change is enough

    Do you recall why, in Prometheus, the Supreme Court held 9-0 that the indisputably transformative steps were “not enough”? I think you do recall, suckie. But please share the answer with us. Why were the indisputably transformative steps in Prometheus’ claims deemed “not enough” to confer patent eligibility to the otherwise ineligible mental step (the only other step) recite in the claim?

    [grabs another bowl of popcorn]

  203. Question: “How do you propose to “establish the patent eligibility” of compositions of matter”

    suckie Just as in Prometheus, something more than what is effectively in nature is needed.

    You have a childlike understanding of Prometheus. The phrase “effectively in nature” does not appear in the case and the claims at issue in Prometheus were not held to be “effectively in nature.” In part, that is because the method claims recited steps which nobody could argue were “in nature” unless (get ready for it) they wanted to argue that all human activity was “in nature.” Is that what you wish to argue, suckie? Gosh, I hope not for the sake of my sad Incoherent Hypocrite Meter which you’ve broken so many times before.

    What does “in nature” mean, suckie? What does it mean to for something to be “effectively in nature”?

    Please put some meat on your gobbledygook bones. When you provide your answer, please be sure to consider the case where, many years after the granting of claims to a novel composition, a fire results in a distinct artificial, “man-made” composition converting “naturally” into the claimed composition. Is that composition “effectively in nature” according to your definition, thereby destroying patent eligibility?

    Let us know, suckie. It’s an important and glaringly obvious question that needs to be answered before anyone can take your** “effectively in nature” test seriously.

    **Please stop pretending that the Supreme Court in Prometheus addressed the eligibility of composition claims. They didn’t. They did, however, hold that if a claim effectively (i.e., as a practical matter) prevents practitioners of the prior art from freely using or considering ineligible subject matter, that claim is ineligible.

  204. That’s like the exact opposite of what Judge Sweet has ruled.

    Who cares what Judge Sweet “ruled”?

    Do you believe that his analysis of Hand’s basis for the holding in Parke-Davis is correct or not? Note: I’m not asking whether you agree with Hand’s analysis. I’m asking you whether Sweet’s analysis of Hand’s decision is accurate. Yes or no?

    There is no inherent contradiction between agreeing with Sweet about Hand’s logic in Parke-Davis on one hand, and believing that novel compositions of matter (i.e., compositions that differ from old compositions (whether natural or artificial)) are patent eligible.

  205. “What is needed is the ability to deny posters access until they actually answer questions legitimately put to them.”

    I’ve been posting on message boards/blogs (in various forms) for close to 20 years. The best way to deal with trolls is to ignore them. They live for the banter, and they win when they write 50 words and you write a 500 word response that they just simply ignore.

    Trolls are to be heckled and derided. Attemptng to substantively debate them only makes them stronger and more willing to troll.

  206. How do you propose to “establish the patent eligibility” of compositions of matter

    Just as in Prometheus, something more than what is effectively in nature is needed.

  207. As a matter of indisputable fact, a claim to a novel, non-obvious and useful isolated DNA sequence…

    Begs the question. You are assuming the claim can be considered novel, non-obvious and useful.

    If the court feels that the isolated DNA sequence is not effectively different than what is already in nature, then the the claim is not to an effectively novel anything.

    End of analysis

    No. You haven’t even begun the analysis.

    Just as in Prometheus, in which transformative steps were not enough, not every structural change is enough.

  208. Although Myriad argues that the holding in Parke-Davis establishes that the purification of a natural product necessarily renders it patentable, the opinion, read closely, fails to support such a conclusion

    Contrast

    Claims to isolated or purified products cannot be found in nature and are patentable as such under 101.

    W

    T

    F

    That’s like the exact opposite of what Judge Sweet has ruled. First it was the Professor, and now the Judge with whom your end result is diverging from even though you say that all of you agree on the same starting point vis a via Products of Nature.

    Something is amiss.

  209. suckie: Do you know the difference between eligibility and patentability,

    Yes. Do you? How do you propose to “establish the patent eligibility” of compositions of matter, suckie?

  210. This does not fit with the Court’s direction from Prometheus.

    The “direction” in Prometheus is that if your claim prevents practitioners of the prior art (i.e., practitioners of old, conventional steps) from using or considering ineligible subject matter (e.g., abstractions and/or laws of nature and/or any other patent ineligible fact or idea), then the claim is effectively a claim to that ineligible subject matter. As a result (surprise!), the claim is ineligible for patenting.

    As a matter of indisputable fact, a claim to a novel, non-obvious and useful isolated DNA sequence does not prevent practioners of the prior art from using or considering ineligible subject matter.

    End of analysis.

    Secret information: Breyer knows this and his clerks do, too.

  211. Do you know the difference between eligibility and patentability, mr. Add-nothing commentator MM?

    Stop trolling.

  212. Just My Sockpuppet: He seems to want to establish patent eligibility on the basis of “not known by others.”

    Does anybody know how suckie wants to “establish the patent eligibility” of compositions of matter?

    I didn’t think so.

    Go figure.

  213. censorship

    LOL. Have I mentioned lately how much our trolls resemble the creationist rubes elsewhere on the Internets?

    It’s uncanny.

  214. Also limit the pseudonyms to 12 characters or less.

    Change all posting pseudonyms to “Anonymous” and force people to actually read for substance rather than “bank” on a moniker.

  215. This does not fit with the Court’s direction from Prometheus.

    You have to look at the claimed invention and have something more than what is in nature’s warehouse.

    The CAFC will not buck the Supreme Court and the recent 9-0 decision sends too loud a message to be ignored.

  216. Leo, the topic is both interesting and important. I sense that the Federal Circuit is going to have a very hard time dealing with a product of nature exception; and the damage that it could potentially cause if not cabined is enormous as witnessed by the industry letter pointing this out. It appears that large swaths of industry have products sourced from nature.

    I posted an interesting law review article on “dicta.” It appears that the dicta in Chakrabarty is about to become law if Myriad claims are held unpatentable over ill thought out, and very unfortunate dicta in that case.

    In the end, I think the simple answer is provided by In re Bergstrom in combination with Parke-Davis:

    1) Unless known, products of nature are not prior art. Prior art is defined in 102.

    2) Claims to isolated or purified products cannot be found in nature and are patentable as such under 101. Move on to 102/103/112.

  217. certain blogs allow you to ignore certain posters (i.e., you won’t see the posts of certain posters) that you put on an ignore list.

    This won’t help anything and in fact is likely to make things worse. One of the problems is that certain (vocal minority) types already ignore validly made points that run counter to their agendas.

    What is needed is the ability to deny posters access until they actually answer questions legitimately put to them. No runaround, mistatements, dodges, red herrings, strawman, reposting on other threads when legitimate counter points are raised.

  218. Tss,

    First, require everyone to sign in to post. Although this may not completely eliminate sockies, it will make it less likely.

    You may (or may not) find it enlightening to note that such quality measures have been suggested before and it was noted the Gene Quinn’s IPWatchdog site does that to a degree. When this was shared, vitriol was lavished by the very same vocal minority that would sit back on their comfy sofas with their popcorn and their banning of any annoying counter views.

    In fact, the “vocal minority” have not had much success with a website that controls for legally sound posting. I suspect a strong correlation between the animosity and the intolerance for legal chicanery.

  219. requires Dennis getting a different host for his blog as his current setup is very feature-lacking.

    First, require everyone to sign in to post. Although this may not completely eliminate sockies, it will make it less likely. Also, once people are required to sign in, certain blogs allow you to ignore certain posters (i.e., you won’t see the posts of certain posters) that you put on an ignore list.

    However, I doubt Dennis would contemplate this. The disdain (and resulting responsive posts) that a few posters here generate, “bulks” up this blog and makes it seem more active than it is.

  220. I have a hard time with several different avenues that Ned Heller has proposed in his posts on the Myriad case.

    The first road of difficulty I have is following Heller’s logic on discoveries.

    He seems to want to establish patent eligibility on the basis of “not known by others.” There are two logical problesm with this.

    To be so discovered, the item being discovered must pre-exist the discoverer’s action of discovery. And if it pre-exists, then it necessarily anticipates. The notion of “by others” seems to be being conveniently read into the law.

    He seems to be against Trade Secrets being patentable, but trade secrets share the same lane of not known by others. I do not know if there is any real distinction in the patent sense between the two (I am aware of Pennock, but ascribe to the notion that Pennock was at least misunderstood and at most overturned by the AIA, making that line of thought moot).

    The second path is one that I think Ned has long struggled with: process patents. But much like “process” is a term of art, so too is “discover” and I think that Ned suffers from extremes on both terms.

    Hasn’t the Supreme Court ever tried to curb both these extremes? They have set limits to both processes and to discoveries.

    The last fork in the road that I do not get is Ned’s search for “holdings.” The mantra of the only permissible Court induced limit as coming from a holding is misguided.

    While there is no doubt that the Court does create law by making a holding, the Supreme Court’s judicial exceptions are different.

    The Supreme Court has said that their exceptions are not laws created by them, but rather are implicit in the law as created by Congress. Each of the major 101 decisions includes language to this effect, and that language is there for a reason.

    It may be a bit of magic to say that these laws have always been implicitly there, and it may very well be the case that later “discoveries” of the extent of these “always there” implicit limits can contradict either actual cases or a lack of early cases on the subject, but that does not stop the Supreme Court from clearly stating its interpretation of these implicit limits.

    And as far as I know, the Supreme Court’s interpretations of such things are law in their own right, every bit as forceful as if Congress penned them in direct words as opposed to the Court reading them into being. With this understanding as a roadmap, I don’t see how anyone can say that Products of Nature as being part of the judicial exception is not law.

    I think it is a red herring to put so much onus on finding an actual case holding to validate the notion. To me this just shows a lack of understanding of what the judicial exceptions are. The exceptions are not law because a case holding makes them law. The exceptions are law because the Court has interpreted Congress as implicitly including them in the original law. Searching for a holding then is a waste of time. A holding is not needed. The Courts have said that Congress “wrote” the exception implicitly.

  221. Is it just me or does anyone else find it odd that the Supreme Court patent case that is arguably the most liberal about patent eligbility is the on etha upsets Ned the most, while he has glorified the Supreme Court cases that have been the most restrictive?

    He detests Chakrabarty and to a lesser extent Diehr while celebrating Prometheus and Benson.

    He then also posts the Armitage/Lilly brief which has to be the worst legal brief that I have ever read, substantively and philosophically. Ned, do you condone the message in that brief? Do you condone the legal writing of that brief?

  222. “It’s a start, anyway.”

    Yeah, a nice start to censorship. But let’s be honest here. What you really want is to be able to spin your version of the law unchallenged and unchecked.
    Just think, you can lie, twist, conflate and obfuscate at will, with no one to ever call you on the facts or ask you to discuss actual case law!

    Whacky mental steps test theories will suddenly become Supreme Court holdings.

    Business methods will be categorically non patentable subject matter.

    Diehr will be overturned.

    Dicta, will be the law of the land.

    And with no pesky “anon”-ymous commenters to ask annoying legal questions or point out flaws in logic, Ned can pretend to be an honest, respectable patent attorney.

    Oh what a wonderful blog it will be!!!

  223. as the other thread is far too large as it is

    I thought Ned Heller only responded to posts by email and did not read the actual threads? How does he know if a thread is “far too large?”

    I think perhaps those comments run along the “dog ate my electronic homework” excuses.

  224. From the link that L Hand provided:

    J. Harkness: The PTO only granted a patent in 1903 when the applicant succeeded in arguing [] that “Adrenalin” was NOT a product of nature.

    I thought you said J. Harkness aggreed with you/ It does not seem so.

  225. MM, Chairman of the Hypocrites-R-Us Club, He's not just a member, He's the most active perpetrator! says:

    LOL,

    No, you’ve just shown yourself to be the hypocrite we all know you to be.

    Now get back to the other thread and answer the questions on enforcement that you run from.

  226. Of course, realizing that the thread comments will drop by 90% (60% from the vocal minority who consistently engage in behavior that would get them banned and 30% from those who reply in direct rebuttal) will be a consequence.

    But that’s the price to be paid for truly improving things around here.

  227. Or even better,

    Warn those who flagrantly misrepresent law, lie after the facts of a situation have been presented, or who delve in gratuitous insults.

    2nd instance of any of these: ban them.

  228. Better yet,

    Trace MM to his IP address and ban it. Cut off its head, sprinkle with holy water and burn the stump.

    Repeat as often as his malcolmy suckpuppets appear.

  229. Nice, that’s still the same line of errant dicta that I warned you about back on the thread of link to patentlyo.com

    Further, on that very thread, I explained that even though I misspoke that single line, the HOLDING of my case was different.

    It makes me spin for you and for academics to highlight a single line of errant dicta and ignore the rest of what I wrote, which is clearly correct.

    Please note that what my friend Judge Sweet is doing is renouncing the attempted perpetration of the one errant line of dicta. He is expressly not buying into the load of crrp that you are shoveling now across yet another thread.

    As I discussed on the earlier thread:

    While I do state “But, even if it were merely an extracted product without change, there is no rule that such products are not patentable.” It is that statement which is the dicta that is both errant and inconsequential, as I further note “it became for every practical purpose a new thing commercially and therapeutically. That was a good ground for a patent.”

    My error in not citing Latimer was indeed inconsequential to my holding on the case. The notion of change in kind not degree was clearly made and I do not appreciate the petty hindsight attack on my jurisprudence that is being attempted here.

    Mr. Harkness mistated “if he had understood it to be an isolated/purified product of nature (because of Ex parte Latimer).

    And to which I replied: Not exactly true, and this misses the not so subtle nuance that isolated and/or purified products of nature can be patented if the process of isolating or purifying changes (kind not degree) the item so being isolated or purified. And even in Latimer, the change could be as sleight as the curling of hair (mere stress induced physical characteristic, much less chemical alteration).

    The notion that the argument was disingenuous completely misses the point and incorrectly reads Ex parte Latimer as holding that isolation/purification cannot by itself generate a patent eligible item.

    Such is simply not true.

    The argument worked because the argument was true. And to hint that the examiner, even (especially) being who he was, was somehow “worn down” is what is preposterous and perhaps disingenuous. That cannard does not fit today. It did not fit back then.

    As I said above, I may have missed Ex parte Latimer, but my holding is still correct and it is you that have glommed unto and exagerated dicta in order to reach your pre-ordained conclusion.

    Now, let me rest.

  230. I think this place would be greatly improved if Dennis et al. would institute a simple rule:

    More than three posts from the same IP address under different pseudonyms in the same month => IP address banned and all comments from that IP address deleted.

    Also limit the pseudonyms to 12 characters or less.

    Very reasonable and nobody gets hurt.

    It’s a start, anyway.

  231. This is a post that was not entered in the Enhanced Damages thread. I will make it here instead, as the other thread is far too large as it is. The topic of debate is whether Hand’s holding of “difference in kind” relates the differences over the prior art of record in that case or differences over a product of nature as an exception to patentable subject matter. Judge Sweet said this at page 225 of his opinion,

    “”Myriad has relied heavily on the holding of the Honorable Learned Hand in Parke-Davis & Co. v. H.K. Mulford Co., 189 F. 95 (S.D.N.Y.1911).[46] In Parke-Davis, 225*225 Judge Hand considered a challenge to the validity of a patent claiming an adrenaline compound that had been isolated and purified from animal suprarenal glands. Id. at 97. It had been known that suprarenal glands in powdered form had hemostatic, blood-pressure-raising and astringent properties, but could not be used for those purposes in gross form. The isolated adrenaline, however, possessed the desired therapeutic properties and could be administered to humans.

    Although Myriad argues that the holding in Parke-Davis establishes that the purification of a natural product necessarily renders it patentable, the opinion, read closely, fails to support such a conclusion. The question before the court in Parke-Davis was one of novelty (a modern-day § 102 question), not of patentable subject matter (the § 101 question before this Court). In framing the issue, Judge Hand observed that, “[the validity of the claims] is attacked, first, because they are anticipated in the art; and second, for a number of technical grounds which I shall take up in turn.” Id. at 101 (emphasis added). He went on to conclude that the patented purified extract was not, in fact, different from the prior art “only for a degree of purity,” but rather was a different chemical substance from that found in the prior art. Id. at 103 (observing that “no one had ever isolated a substance [adrenaline] which was not in salt form” and that “the [claimed] base [form of adrenaline] was an original production of [the patentee’s]”). Thus, Judge Hand held that the purified adrenaline was not anticipated by the prior art, namely, the ground paradrenal gland that was known to possess certain beneficial properties. SeeMerck & Co. v. Olin Mathieson Chem. Corp., 253 F.2d 156, 162 (4th Cir.1958) (“It was further held [in Parke-Davis] that the invention was not anticipated, though the principle was known to exist in the suprarenal glands.”).

    Only after concluding that the claimed purified adrenaline was novel over the prior art did Judge Hand offer, as dicta, the statement to which Myriad cites: “But, even if it were merely an extracted product without change, there is no rule that such products are not patentable.”

Comments are closed.