Guest Post by Jeffrey Lefstin, Ph.D., Professor of Law at the University of California Hastings College of the Law
After the Supreme Court decided Mayo v. Prometheus, the Court vacated and remanded the Federal Circuit’s initial AMP v. Myriad opinion for reconsideration in light of Mayo. Despite the Supreme Court’s hint, the Federal Circuit’s opinion on remand begins by dismissing Mayo as irrelevant – at least to those claims drawn to isolated and purified BRCA DNA. Composition of matter claims, according to Judge Lourie, are governed not by Mayo, but primarily by Chakrabarty, which suggests that a composition of matter is patent eligible if it is “markedly different” than a natural product, or if the transformation of the natural product yields “a distinctive name, character, and use.”
There are a number of problems with Judge Lourie’s premise. The subject matter eligibility question in Myriad turns on whether the DNA claims are drawn to “products of nature.” But Chakrabarty is about the patentability of living things, not products of nature. In fact, Chakrabarty’s discussion of the “product of nature” doctrine is entirely dictum. Although Chakrabarty’s claims to genetically engineered bacteria were originally rejected as “products of nature,” that rejection was not sustained by the Board of Appeals. And while the CCPA considered the issue in connection with the related Bergy appeal, in Chakrabarty the Solicitor expressly disowned the “product of nature” rejection in his argument before the Court.
So why did the Chakrabarty court discuss the “product of nature” doctrine at all? The “product of nature” discussion seems to have arisen because Chakrabarty’s brief mentioned Funk Brothers, the Court’s 1948 case denying patentability to a mixture of nitrogen-fixing bacteria. Chakrabarty suggested that if living things were not patent-eligible, the Court would have said so in Funk. The Solicitor’s reply denied that the claims in Funk were drawn to living things, but neither Chakrabarty nor the government argued the “product of nature” issue in their briefs.
Even if the Court’s discussion were more than dictum, Chakrabarty hardly establishes “markedly different” or “distinctive name, character, and use” as definitive standards. “Markedly different” is an offhand comment by the Court, and “distinctive name, character, and use” derives from the Court’s 1931 opinion in American Fruit Growers – which looked to Customs law for the meaning of “manufacture” in the patent statute. (The acquisition of a distinctive name, character, and use is now known as the “substantial transformation” test, and is used to establish the country of origin for imported products).
But most significantly, while the Federal Circuit’s opinion makes passing reference to Funk Brothers, it overlooks the point that Mayo’s analytical framework – asking whether the patentee’s application of a law of nature goes beyond the conventional and obvious – is nothing more than Funk Brothers redux. In Mayo, the Court’s requirement that a claim must embody an “inventive concept” beyond the natural law was drawn from Parker v. Flook. In turn, Flook’s approach was expressly grounded in Funk. And a reading of Funk makes clear that Mayo’s requirement of “natural law plus more than conventional activity” is simply the analysis employed in Funk:
Discovery of the fact that certain strains of each species of these bacteria can be mixed without harmful effect to the properties of either is a discovery of their qualities of non-inhibition. It is no more than the discovery of some of the handiwork of nature and hence is not patentable. The aggregation of select strains of the several species into one product is an application of that newly-discovered natural principle. But however ingenious the discovery of that natural principle may have been, the application of it is hardly more than an advance in the packaging of the inoculants.
If the Mayo Court truly revived the Funk analysis, the implications for Myriad (and subsequent cases) are substantial. Funk dealt with a composition of matter: bacteria. So if Mayo’s framework draws from Funk, that framework is clearly applicable to a composition of matter such as DNA. And under the reasoning of Funk, it seems not to matter whether the process of arriving at the claimed subject matter is inventive; the Funk court conceded that the discovery leading to the claimed invention might have been “ingenious.” What matters is whether there is “something else” in the claims, other than conventional or obvious activity routine in the art.
Even more so than in Mayo, of the Myriad composition claims seem to lack “something else” beyond the natural phenomenon: the natural sequence of the BRCA genes. For the Federal Circuit, the structural differences between the natural genes and the isolated products were the key to patent-eligibility. But under Mayo and Funk, the question is whether those transformations of the natural sequence represent something more than conventional or obvious activity.
Taking the identification of the natural sequence as a given – as Mayo and Funk appear to demand – the patent-eligibility of Myriad’s composition claims is in serious doubt. The “something else” in Myriad’s claims is the separation of that natural sequence from the genomic context, or the embodiment of that sequence in a cDNA. However ingenious the discovery of the BRCA loci may have been, the embodiment of the BRCA sequences in isolated DNA molecules was either conventional in the art, or, in the case of the removal of non-coding information from the mRNA transcripts that gave rise to the cDNAs, performed automatically by the cell.
“The reason Prometheus’ process failed the test is that it turned practitioners of the prior art … into direct infringers when they thought about Prometheus’ patent-ineligible correlation …”
Why doesn’t anyone ever mention the medical practitioner exception of 287(c)?
Completely and simply wrong Ned.
I have even held your hand and explained the difference to you. Even my red cape charging friend Leopold asked that you recognize the difference.
And yet you continue to post in defiance of the logic I set before you.
We both know why that is (hint: third party influence).
I don't make the categorical statements. You do. So does AI (101).
anon, a patent can indeed be composed of old elements. But that does not Subtract from the notion expressed in Mayo that the transformation of inquiry must be new.
Ned: The problem with the MOT in Prometheus was that transformations were not “new.”
101 Integration Expert: If I am not mistaken, historically when the Supreme Court has referred to “new” in 101, they have interpreted that to be “new use” of an old process, or “a new combination” of old elements. ( If I am wrong someone please correct me with the proper citations). The new in 101 is not the same as novel, in 102.
Ned:The Supreme Court said that a transformation was an example of a patentable process.
101 Integration Expert: But I do not believe that the Court ever said that was “the” example. Meaning the “only” example of a patentable process.
Ned: “They also said that if a mathematical equation was integrated into a process that was otherwise the subject matter that the patent laws were designed to protect, the claims were eligible.”
101 Integration Expert: What the Court means here is that a claim to a math equation “integrated” into another math equation would not be patent eligible subject matter because math per se is a Court created exception.
So as you can see nothing you have stated above supports your idea that a process is required to be “integrated” in a MoT in order to be patent eligible subject matter.
Your (attempted) spin here Ned avails you not.
You, like Malcolm, ignore the fact that perfectly eligible claims can be made COMPLETELY of elements each of which are not “new.”
Your attempt to hang your “theories” on nuanced words of the Court simply fails.
Another valid point made – and another point that Ned Heller will ignore and repost his tired and banal propaganda notwithstanding the point made.
Once more proving my point about what really is the low quality blogging here.
(Sigh)
How many times are you going to attempt to obfuscate things Ned with the “categorically” dust cloud?
How many times will I need to point out to you the difference between “as a category” and “categorically?”
Over and over again and again you engage in what can only be called intellectually dishonest ploys.
Please stop.
My position has been made quite clear that there is absolutely nothing that is categorically patentable.
Nothing.
Let me know when you are done trying to obfuscate.
The problem with the MOT in Prometheus was that transformations were not "new."
The problem with your statement about what a process must do is the word "must." The Supreme Court said that a transformation was an example of a Patentable process. they also said that if a mathematical equation was integrated into a process that was otherwise the subject matter that the patent laws were designed to protect, the claims were eligible.
Sent from iPhone
Nothing abstract about a business method? I can see how you define business methods as being categorically eligible.
Sent from iPhone
“I personally believe that business methods are not eligible — because they are abstract.”
There is nothing abstract about conducting business.
Find another reason.
anon: “….the “NO dissection, claim as a whole” mantra from Diehr, which has been cemented in place with the integration teaching of Prometheus – that 9-wheeled cement truck you saw, Malcolm, was not “running over” Diehr and the Diehrbots, but rather was a “9-0 Baby locking in” of the no dissection doctrine.”
Precisely, and the reason why MM runs away from the challenge to apply the Courts “Integration Analysis” using Prometheus and the Office Guidance to any real claims. He knows his dissection theories in their various guises are DOA.
Malcolm,
Where’s my valid page cite per the Feb 26, 7:12 PM request? Your week is almost up, and you should have that decision at hand after my correcting you on the dead letter comment.
Or is this yet another case of your running away from a validly made point?
“Benson was a process claim. Completely different animal.”
LOL – points to remember:
1) Benson shift register
2) that wily and crafty applicant’s attorney who can as a matter of drafting, transform a claim from any category to any other category
3) structural change by itself may not be enough – see Prometheus – the change must effectively do more than claim a judicial exception.
4) product of nature is subset to law of nature, and (such exception) will not be made a dead letter – see Prometheus
5) “warehouse of men” sets the pre-emption limit for things, be they a new plant (live and complex thing) or mineral (staid and simple thing) just discovered (timing is immaterial, and thus not linked to 102/103, but truly to 101) – see Chakrabarty
6) the non-dead letters of the judicial exceptions (derived implicitly under authority of Congress and not the Court’s authority) apply no matter what category, and in full to each category – see (at least) Funk Brothers, Chakrabarty and Prometheus.
And before Ned hops on his train of Holding/Dicta misapplication, two other things to remember:
1) The authority for this is NOT case law holding/dicta, but implicit authority of Congress through 101 (which again drops the prior art timing aspect fallacy of the judicial exception).
2) Benson was cabined by Diehr precisely because the later Justices realized they had strayed by reaching a decision for philosophical policy reasons first, and had not properly back-filled to actually interpret (rather than write) the law (Justice Douglas was famous for his activist tendencies in this regard). This “oops” of Benson is precisely why we have the “NO dissection, claim as a whole” mantra from Diehr, which has been cemented in place with the integration teaching of Prometheus – that 9-wheeled cement truck you saw, Malcolm, was not “running over” Diehr and the Diehrbots, but rather was a “9-0 Baby locking in” of the no dissection doctrine.
Just like you were wrong in Bilski, your attempts at dethroning Diehr with Prometheus likewise fail, Malcolm.
But hey, at least you can proudly say that you were the very first to have supplied the link to the official USPTO understanding of this (even if you had not bothered to read or understand what you were linking to).
That’s what makes the Malcolm self-defeat line so delicious. Your haste laid waste to your own dogmas.
Yummy.
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6 : So a bunch of abstractions?
3, 4, or 5 (at least) have readily apparent non-abstract applications and since when does the “pre-emption test” require that all the pre-empted methods be patent-eligible??? The fact that you would suggest gets right to the core of why the “pre-emption” test is really applicable only to the worst 101 offenders, i.e., claims that are plainly drawn to non-statutory subject matter (purely mental processes and other abstractions, non-applied correlations, non-applied algorithms, etc). Every novel composition of matter claim that is granted “pre-empts” and forecloses the making and using of that composition by anyone and everyone and invariably represents the “embodiment” of some “abstract” principle, however narrowly defined that might be. But at the same time, everyone is free to think about the composition and study the composition and improve upon the composition.
This is why composition claims and your “pre-emption” test don’t jive. Novel, non-obvious compositions of matter, when they are properly claimed so as to be distinct structurally from the prior art (including inherent prior art), are statutory subject matter. Of course they pre-empt all uses of the composition and whatever natural principle is embodied by that composition. Still eligible.
I guess Benson should have gotten is patent because you could still think about his algorithm eh?
Benson was a process claim. Completely different animal.
“Remember, Prometheus passed the transformation leg of the MoT yet was still found to be ineligible”
The only way he can NOT remember this is by purposefully choosing to do so.
I have reminded him often:
Bilski: MoT not required
Prometheus: MoT not sufficient
It’s just one of those less than savory things Ned does: disappears when valid points are raised against one of his dogmas.
He is lost without MoT, as he grew up depending on it so much in order to constrain the statutory category of process to some sort of sub-category related to the other “hard” categories of machine, manufacture, or composition of matter. It’s that “Justice Story – English Law of no process patents” bias showing through.
Ned:
It is true, a LoN, bare, and by itself is a a “Court” created exception to patent eligible subject matter.
And it is also true that a LoN integrated into a process as a whole can be patent eligible subject matter.
But the Court does not say the process must be transforming an article into a new state or thing.
Remember, Prometheus passed the transformation leg of the MoT yet was still found to be ineligible.
link to nobelprize.org
Why is Insulin patent in 1923 any different than DNA patent in 2013? Never read any controversy about Insulin “discovery” being awarded a patent.
“Banting, Macleod, and the rest of the team patented their insulin extract but gave away all their rights to the University of Toronto, which would later use the income from insulin to fund new research.”
“that business methods are eligible even though not a single one has ever passed muster. Not one.”
Meaningless c_rrp Ned and you know it – the imprimatur of a SC Holding simply is not a legal requirement for “passing muster.”
What you “personally believe” is actually your problem.
anon, stop putting words in my mouth.
I personally believe that business methods are not eligible — because they are abstract.
What I object to is your statement that business methods are eligible even though not a single one has ever passed muster. Not one.
fix italics tag.
“Anon, I find it interesting that you are accusing me of having a logical fallacy. How one can say that business methods are eligible when the very one before the court was held ineligible is quite amusing.”
Ned, your fallacy is a classic (mis)application from the one singular to the “brand the many” category as a whole.
That’s why the rejoinder of Prometheus and medical methods is posted.
See if you can follow the lines (per your logic) below:
Bilski one sample (at the individual claim level) of a business method not patent eligible ==> ALL business method patents not eligible.
Prometheus one sample (at the individual claim level) of a medical method not patent eligible ==> ALL medical method patents not eligible.
Obtuse. Is it on purpose? (said in the best Andy Dufresne tones)
Anon, I find it interesting that you are accusing me of having a logical fallacy. How one can say that business methods are eligible when the very one before the court was held ineligible is quite amusing.
Sent from iPhone
“Do you ever write claims? I suspect not.”
Blog posting is not writing claims. Believe it or not even typos are typically not even worth noting (unless, of course, you don’t have anything yourself of note to add).
As for antecedent basis – you need not look further than the sentence directly above the one with the word concept.
For someone as exceptionally thick as you are, that 80 times repeat of 6 months of experience should capture even that basic conversation flow.
Oh wait, you are the one who does not really want conversation in the first place. How is your soapbox?
As for laughing stock – you are right that one of us is – just not which one. Whether or not you laugh is not determinative of the f001, as that laughter you hear is not laughter with you. I’m glad that you are ready. That means, well, that means absolutely nothing.
You never cease to amaze me, anon. You write “that concept” but you provide no antecedent for “concept”. What “concept”? I have no idea. Do you ever write claims? I suspect not.
You are so busy reading my mind, telling me what problems of comprehension I suffer from. I have news for you. You can’t read my mind and I can’t read yours.
We see in these threads that many readers struggle to discern what you and Sarah McPherson are wittering on about. You explain that on the basis that they are all deliberately misunderstanding you. Consider the other possibility, that people do want to extract meaning from your uttereances, and those of Sarah, but find the task beyond them.
Goodness knows what it is that inspires you to include in every posting an “I suggest you…..” remark. Iit demeans you and leaves you a laughing stock. Think over whether you might hold back a bit, from now on.
Alternatively, write something else. I’m ready now for another laugh.
“is not determinative of the issue. To the contrary; it begs the question”
Actually, for US jurisprudence, it is determinative.
You seem to have a fundamental problem grasping that concept. I suggest that you deepen your understanding (and appreciation) of national sovereignty.
No and No anon.
When the source (Constitution, Treaty, Convention, Statute, whatever) does not use a particular word, we don’t have to grapple with it, do we? But when it does use a word, we do have to deal with it, agreed? So when GATT-TRIPS decrees that patents are to be available in all fields of “technology” we have to ponder what that means.
The Patents Clause uses “useful arts” so we need to know what that means too. Your citing “there is no technology test” in the US patent statute is not determinative of the issue. To the contrary; it begs the question. If not “technology” then what are the useful arts? I think I know the answer already but I would like nevertheless to know what SCOTUS thinks. You not?
Ned,
I have NEVER cited State Street Bank in any of my arguments.
Ever.
Please stop making things up. Put the shovel down.
You are once again committing the logical fallacy of a single example dictating law for an entire category.
Shall I ask you why any medical methods at all are considered patent eligible after Prometheus>? After all, Prometheus was a medical method patent.
Your “logic” simply is not sustainable Ned.
Ned,
Clearly you are not at liberty to define all business methods as abstract and declare yourself correct in law.
Quite the opposite, actually – Stevens lost his majority position inme of being the one confusing history and fantasy.
Thanks.
Which mistatements of mine have you corrected?
No, anon, I corrected your mistatements.
When I said something about business methods, I was careful to also say that it was my personal opinion. I was and still am of the opinion that no business method is eligible. Why? Because they are all abstract.
But, the Supremes held the door open to the possiblity. That does not mean that a business method is automatically eligible. It is just that it is not automaticlly excluded.
State Street Bank for one, where a business method claimed as a machine (programmed computer) was found eligible.
There can be no serious argument that State Street Bank is not good law. And yet you continue to argue that a programmed computer is eligible. If so, State Street Bank would be good law.
All 9 Justices rejected State Street Bank in Bilksi.
Ned, it is archived – I corrected your anti-business method rants by pointing out the HOLDING that the claims in Bilski were rejected NOT because they were business methods, but due to the claims being abstract.
I even used your own supplied reference on the difference between dicta and holding.
It appears that you have your notions of history and fantasy reversed.
Cat got your tongue on this one, Ned?
Especially after your 6:24 pm post,…?
“as do you, on cases that are overruled.”
Which ones did you have in mind Ned?
And how am I relying on them?
This is funny, coming from the guy who ignores the SC cases he does not like, and quotes from dissents.
Anon, it was I that pointed out to you that the actual claims in Bilski were held to be ineligible, and that your statement that "business method claims are eligible" could not possibly be correct. You seem to ignore history in favor of fantasy.
Anon, I think there is a difference from relying on the law and relying, as do you, on cases that are overruled.
And may I remind you of who it was that showed you the explicit holding of Bilski and made you stop your anti-business-methods rants (at least for a little while)?
That’s right. It was me.
“Anon, you do not recognize that you rely on bootstrapping all the time‘
Ned, I recognize that I rely on the actual law all the time and I appropriately eliminate Supreme Court dicta (like the rants in Benson and Bilski) that cannot square with what the law actually is.
I also recognize and do not disparage a Judge who was far more intimately involved with the actual law – who knew the actual law – then those, who for their own ideological purposes, tried to pervert the law.
As I have mentioned – your use of the term bootstrapping is not proper. If you have a legal argument against anything I have said, then use the legal argument in direct response. This “name-calling” of yours is simply a transparent and highly ineffective way of you saying you want the law to say something that it does not (sort of like Stevens in Bilski, and Douglas in Benson).
Please stop. Your agenda is showing.
I suspect you adhere to the Alappat dicta regarding a programmed computer being eligible despite being in conflict with Benson and despite the condemnation of State Street Bank (a case relying on Alappat) by the Supreme Court…
Anon, you do not recognize that you rely on bootstrapping all the time.
Sent from Windows Mail
I do not know what you mean by “nominally.”
My views are clearly of record and have been provided in exquisite detail (including the appropriate distinctions of many of the attempted obfuscations).
Perhaps your “issue” is with your own philosophies, that cloud your judgement of Rich and his superior knowledge of the actual law.
anon, I know you have "nominally" said that. But still your seem to buy into to the Rich bootstrapping.
“But there is no “technology test” in the text of the European Patent Convention either,”
Is there a “useful arts” test, MaxDrei?
Or are you still insisting on ignoring what that term actually means because it does not fit your agenda?
Anon cites “there is no technology test to be found in domestic US patent law” as if it is the last and definitive word on 35 USC 101.
But there is no “technology test” in the text of the European Patent Convention either, and look what happened to the caselaw there.
GATT-TRIPS matching of patentability to “all fields of technology” certainly influenced the European judges. Whether or not the judges in the USA take any notice of it we shall find out, sooner or later.
“Do you think the Supreme Court cares?”
The answer to that easy question is of course they care (See Prometheus and the proper understanding of the dead letter comment).
The better question is: What does the Supreme Court care about?
(hint: it has to do with the drunken excess of writing patent law that in general was invited by a slipshod Congress before 1952).
“Unspoken Premise: If a claim is nominally directed to one if the four categories, it is eligible. False.”
Ned,
I have made my views on this more than perfectly clear and on many, many many occasions.
As a category, many types of things are eligible. Every – and I do mean EVERY claim must still be evaluated under 101 and the judicial exceptions (all of the judicial exceptions – including the product of nature subset of the law of nature exception).
You do recognize that I have been steadfast and consistent in this, right?
The new portion of the claim are, in the example, assumed to be ineligible.
Think Law of Nature. Think for example E = mc**2.
The SC starts here.
It then determines whether the claim integrates this such that taken as a whole the claim is directed subject matter the patent laws were designed to protect, eg, transforming an article into a new state or thing.
Sent from eiPhone
Unspoken Premise:
If a claim is nominally directed to one if the four categories, it is eligible.
False.
But that was the gravamen of the position if Judge Rich.
But, Anon, do they really follow the ’52 Act? 282 excludes 101 from validity. Do you think the Supreme Court cares?
“They are ineligible. Are.”
And what exactly is “they” ?
They are ineligible. Are.
They are not ineligible because they are new.
Sent from iPhone
Maybe because SCOTUS doesn’t knock on your door and say MaxDrei, here is the answer to your question, does not mean that your decision to ignore the case law cites and other items of dicussion provided to you (but that you find disagreeable with your soapbox) is a good idea.
You might consider why the Stevens’ loss-of-majority-position-concurrence-which-is-really-a-dissent view of business methods failed in Bilski. Or you might consider the fact that US courts have HELD that there is no “technology” test in US patent law. Or you might consider simply having a mind desirous of learning in reality, instead of as a punchline soundbyte to your duplicitous ways.
Any of these, of course, might be “too cryptic” if your real aim is to NOT change your mind. We both know where you really stand on that issue, don’t we? We both know exactly what you are on about. You have made it perfectly clear that you will continue to shi11 no matter what actaully happens in US legal developments (that too, is archived). You have made it perfectly clear that you will not answer or accomodate validly made points that run counter to your desired agenda. You have made it perfectly clear that you are really NOT hear to learn, that you post ONLY for your own benefit (and everything that means).
Too cryptic IBP for me. Sorry. Here’s what I’m on about.
We know “useful arts” and we know “fine arts”. Like, we know that flattery is a useful art on occasion to deploy and that there is a fine art to teaching esoteric scientific concepts.
So is Richard Feynman or E O Wilson or Steven Pinker or Ben Bernanke operating in the fine arts? Is Bill Clinton a practitioner of the useful arts? That would be a No in both cases, right?
How about taking things in context? The notion of “useful arts” had a direct and unambiguous meaning to those who wrote the US Constitution. It did not include the art of flattery. But what did it include and exclude? One day SCOTUS will tell me, but they don’t feel up to it yet.
anon: “When the Court says that it IS NOT CHANGING any past decisions, and that Diehr was most on point, there is no intellectually honest way of saying what you said – not even implicitly.”
I know right. The dishonesty of Ned and all the anti patent crowd is beyond pathological.
They insist Prometheus overturned Diehr, yet they can’t provide one citation to that effect.
“Just like software,…”
LOL.
6 – you do realize why the law of 101 is written broadly and the importance of the term “any,” right?
It has something to do with the basic nature of innovation, in case you are wondering.
Ned Said: 101, I did not say “New elements can be consider as ineligible.”
Ned said: “When the new is ineligible,
101 Integration Expert: Then what the h e ll did you mean when you said “When the new is ineligible” ???
If you can’t be clear and intelligible then it is you that is spewing gibberish my friend.
Time for you to run away now, as usual.
“ow is the “pre-emptive” effect of such a claim different from that of Myriad’s claims?”
It isn’t, which is what will make it interesting if the case comes up. I do at least understand that facet of your hypo. The decision could go either way. Nobody ever said that the judicial exceptions were a perfect doctrine, or that they worked out perfectly in all instances. It is possible to construct situations that will be quite the connundrum. Just as you have done here. And that is fine.
“All I’m saying is: as a 101 test, “pre-emption” is a pile of unworkable g-r-bage. ”
It is quite workable in like 99.999% of subject matter eligibity determinations. Sorry if the .001% of situations where it works out weird is not to your liking. Fact is, the whole of these biological “inventions” probably never should have been patent eligible, but they shoehorned a lot of them right on in, because, as you are fond of reminding us, they’re compositions of matter (or whatever excuse). The patent statutes, and the judicial exceptions, pre-date modern bio “inventions” and were never constructed for them. Sorry that everything hasn’t worked out perfectly. Just like software, if the congress wanted that sht patent eligible they should have been amending the patent laws to accomodate them rather perfectly, and tailored the judicial exceptions to likewise fit perfectly. But they didn’t, because they’re congress and they sux. So sorry.
“player piano with new music”
ARRRRGGGGGGHHHHHHHHH.
Stop with the canards, Ned – that is intellectually dishonest and has no place in a legitimate patent law discussion.
Stop.
Please.
You again show that you do not understand the art field of encryption, Ned.
Just asking that question, means that you won’t understand the answer.
I suggest a remedial course to get you up to speed, and then you may understand how your little piece of dogma has been rent asunder.
Ned,
Have you not read what I told you as to the authority that the Supreme Court itself says generates its implicit readings of the judicial exceptions?
Do you need me to hold your hand and explain why this is so? Why ever since 1952, the Court has refrained from using ANY authority except that of Congress?
C’mon Ned, you want me to trust your view of Supreme Court jurisprudence, right?
Here’s your chance to impress me (and you should know that the product of nature is a subset of the law of nature exception – try to keep that in focus).
Or you an choose to blubber incoherently like Malcolm and QQ that 101 shouldn’t even be at issue (it’s just too bad that it is at issue, isn’t it).
“Why do you need an example?”
Because I’m sorry I’m not a bio legal super man. It took me like a week of looking over the gene case to come to even a half formed opinion. Sorry bro, but sht that seems simple to you is alien to me.
“I thought I heard you say that claims to cDNA are valid”
Yeah because Kev gave me some other substantial uses that weren’t covered by the cDNA claims. And because the cDNA is definitely not like the natural DNA.
At least that is how I recall what happened.
That’s not an answer Malcolm.
Why do you not join the conversation and give an actual answer?
“What is the “judicially excepted subject matter” that is “pre-empted” by the claim?”
the BRCA loci
encryption is math. Just how is that applied?
anon, some do not agree that Diehr's caution about not considering the novelty of the elements is no longer to be followed. It is important to understand in a claim, for example, to a player piano with new music that the player piano is old. Only then is the eligibility of music even relevant.
Why are you attempting to kick up dust with this frolic?
Uhoh – since applied math is patent eligible (encryption, for example), and that sounds an awful lot like software, this discussion is in serious danger of being purposefully derailed by Ned Heller and his third party interests.
anon, speaking of rocket science, suppose you accelerate a particle to near the speed of light in a circular apparatus so that its effective mass is increased, let us say, a million-fold. Then you release the particle in a particular direction. F=ma.
What, if anything is the acceleration experienced by the releasing body?
Ned Canard ALERTS
Diehr has been clarified in Prometheus.”
When the Court says that it IS NOT CHANGING any past decisions, and that Diehr was most on point, there is no intellectually honest way of saying what you said – not even implicitly.
“a new and useful, physical, result”
We’ve been over this Ned (and I note that you refuse to join the conversation after each time I make this valid point): the result does not have to be new. A different way of getting to the same OLD result is perfectly patent eligible.
Applied?
Math is to applied math as mass is to weight.
Ned,
You too need to realize the patent eligibility inducement of “within a practical time.”
This is not rocket science, and goes to the heart of the initial “claims completely in the mind not allowed” mental steps doctrine.
Show a little intellectual honesty, wil you please?
(otherwise, it is only you that looks bad)
Let’s try again, Ned:
Os that an intelligent, forthright and intellectually honest answer to my question?
One that is straight up an answer, and not a question itself?
I wonder if the Patent Office ever made a request of Prof. Crouch for the information related to this “homeless man on the side of I-95” examiner, what would they find?
I would bet it would be simliar in nature to that empty boast of 6 doing integration analysis.
But perhaps with a little more detriment, using government property, and talking about actual cases and all.
(But don’t worry 6, no one is going to do that has you have largely faded to obscurity here – you just aren’t worth the time)
101, I did not say "New elements can be consider as ineligible."
That is an example of the gibberish that you spout. It makes no sense.
“Why peddle a cr-p 101 test when the other statutes suffice perfectly, without any change in the law?”
LOL – more glorious Malcolm self defeat.
Malcolm, the answer to that question is in your beloved “let’s dance a (premature) jig” 9-0 Baby Prometheus decision.
You want to try for a valid “page”-cite on this one? Do you think it would take you less than a week this time?
Or maybe it’s those d_@mm SC clerks who speak English as a second language and who don’t ues the orthodox terms that are to b_lame for youe latest self-induced immolation….
“1) Thinking about the loci
1a) Thinking about the loci and the correlation with breast cancer
1b) Identifying homologues using sequence databases
1c) Analyzing the evolution of the gene using sequence databases
2) Identifying other loci linked with the BRCA1 loci
3) Engineering a synthetic molecule to recognize a sequence at or near the BRCA1 genes
4) Identify restriction fragment polymorphisms that correlate with the presence/absence of BRCA1
5) Identify and study the physiology of related mammals with homologous genes
6) Study the physiology and life history of people in (4)”
So a bunch of abstractions? Good luck with that argument. I guess Benson should have gotten is patent because you could still think about his algorithm eh? Give me something substantial if you want this sht passing thx.
I don’t mean this flippantly.
I also say the following not flippantly. The fact that you are spouting off a bunch of abstractions as the things which are supposedly not preempt furthers the argument that your sht is getting all applications of the judicial exception. If that argument was a pen is, it would be fully er ect after your explanation.
“I’m telling you all you need to know.”
LOL after LOL – the only question is, which one is Jim Carrey and which one is Jeff Daniels?