What does the Constitution mean by “Discoveries?”

By Dennis Crouch

The 18th Century French Encyclopédie of Diderot & d’Alembert was an important and well-known encyclopedia available at the founding of the U.S. and well known to founding fathers, including Madison and Jefferson. The link with Madison is important since it was Madison who proposed the intellectual property clause of the U.S. Constitution – giving Congress the power to award exclusive rights for limited times. One element of the clause that has long confounded patent scholars is the meaning of “Discoveries.”

The clause: [Congress has the power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Seemingly taking its lead from the Constitution, Congress enacted that patent statute that awards rights to one who “invents or discovers.” In today’s usual parlance, a discovery is often thought more as an unearthing rather than a creation. That is confounding because of the newness requirement of patentability and the ban on the patenting of natural phenomena.

In a recent article, Professor Sean O’Connor (UW) argues that the Encyclopédie offers a key to understanding the meaning of Discovery as used in the Constitution. See O’Connor, The Overlooked French Influence on the Intellectual Property Clause (2014). His approach is a departure from the more traditional Anglo-centric view on constitutional history. A review of the translation leaves little doubt that the source is important. In particular, the ~2,000 word entry on discoveries begins as follows:

Discovery: In general this name can be given to everything that is newly found in the Arts and the Sciences; however, it is scarcely applied, and ought not to be applied, except to that which is not only new, but also curious, useful, and difficult to find, and which, consequently has a certain degree of importance. The less important discoveries are simply called inventions.

[Link to translation]. With that contemporary definition in mind, we can take it as important that the founders used the term “Discoveries” rather than “Inventions.” O’Connor argues that Discovery as found in the Constitution is consequently higher standard than mere novelty. The Encyclopédie include additional entries on “Art,” “Science,” “Inventions,” and “Writers/Authors,” and O’Connor takes these together to begin a new and interesting conversation on the meaning of the intellectual property clause.

319 thoughts on “What does the Constitution mean by “Discoveries?”

  1. It’s too bad the author didn’t pick up on the French connection with the actual drafter of the clause. Gouverneur Morris, whose hand penned the constitution, was of French Huguenot descent.

  2. Having read O’Connor I am struck by the following sentence on page 67:

    “…the “useful arts” are not limited to technology and science-based inventions”.

    WOW! So are the “useful arts” more wide-ranging than the EPO’s “technical character”? It would seem so.

    But hang on a minute. O’Connor’s next sentence:

    “They include any artisanal manipulation of natural materials or forces for practical ends, whether discovered by rigorous experiment or simply trial and error”

    Well, on that definition, “useful arts” don’t reach any further than what the EPO accepts under “technical character”.

    How could it be, that O’Connor sees artisanal manipulation as more wide-ranging than “technology”? Is O’Connor adopting a Wall St notion of “technology”, under which a select group of stocks are technology companies, but the rest not? As far as I am concerned, however, manipulation of natural materials or forces is synonymous with “technology”.

    Readers, on what “technology” means, who goes along with O’Connor and who agrees with me?

    Here’s the thing. For the denizens of SCOTUS, is “information” a “natural material” or a “natural force”? Perhaps they will tell us, one day soon.

    1. MaxDrei,

      In conversations past, I have asked you to give (non-circular) definitions for technology and “technical character.”

      You have steadfastly refused.

      In your present post (27), you now make a further error by attempting to constrain the notion of “discovered by rigorous experiment or simply trial and error” to one of “technical character.”

      That is simply wrong.

      A closer notion would be “possibly capable of the scientific method.” Note that such is not actually required (trial and error is hardly the strongest of scientific methods as a successful first try would yield no real scientific data collection).

      Note too that when Malcolm (in his ever present self-FAIL mode) attempted to disrespect business methods with a post on scientific methods, he (naturally) failed as I presented the fact that business methods easily pass that hurdle.

      The rest of your post is merely you being stuck on the wrong word. Open your mind and be willing to learn what I have ever told you. You do not have to force fit “technology” as that is NOT what O-Conner actually did.

      1. The notion of “technical character” comes from the EPO caselaw. At the EPO there is no Binding Precedent, so there is no need to define “technical”. The EPO sees it as helpful to the orderly development and progress of its caselaw, to the evolving and crucially important balance of interests between inventors and those who might infringe EP-B patents, that it is not bound by any definition of “technical” (or, for that matter, of “Invention”).

        So, anon, I do not have a definition of “technical”. If you want to know what “technical” means at the EPO, read its caselaw.

        1. You are going to have a bit of a problem with the canned response of “no need to define.”

          It translates to “MaxDrei has no clue as to what he is talking about.”

          Besides that, how about the rest that clearly shows useful arts is beyond the technical arts (as I have always told you).

          Maybe you can grab the Chesire Cat’s tongue before he leaves behind only his grin. Someone sure has yours.

      1. O’Connor makes the point, that the expression “Useful Arts” might mean something more specific and precise than “arts which are useful”. I suppose, Ned, that you feel the same. But do tell me, if I have got you wrong.

        1. Well, Max, O’Connor may have his view, but it seems clear that the first Congress defined useful Arts in the then analog of 101. Jefferson cleaned it up a bit in 1793. The definition from 1790 is

          “useful art, manufacture, engine, machine, or device.”

          The definition in 1793 is

          “useful art, machine, manufacture, or composition of matter.”

          Art was treated as equivalent to a process — as defined in Corning v. Burden and Cockrane v. Deener.

          1. Ned you are in clear legal error here.

            The term Useful Art and the combination of the term “art” (as one of the four patent eligible categories) with the adjective “useful” (which applies to each of the four patent eligible categories) is just not the same.

            Your wordsmithing (yet again) is simply evidence of you over-reading.

            You do this all the flippin time.

            Try reading without an agenda and you may find it easier to not torture the words so much.

    2. “How could it be, that O’Connor sees artisanal manipulation as more wide-ranging than “technology”?”

      He doesn’t necessarily, they simply have entirely different scopes. In some ways the one is larger than the other and vice versa.

      “Here’s the thing. For the denizens of SCOTUS, is “information” a “natural material” or a “natural force”?”

      Um “information” is blatantly neither.

      But hey, at least max is thinking about the article!

  3. Just as a matter of interest a posting of some 380 words has generated some 26,000 words of comment if WORD has counted them right.

    Not a bad choice of topic! 20,000 words represents a respectable Master’s thesis.

  4. There is a basic inconsistency between the word “discover” and “new” machine, manufacture, composition and process. One cannot discover something that did not exist.

    1. More on this, compare the Acts of 1790 and 1793, the latter written by Jefferson.

      The original statute from 1790 read,

      “discovered any … art, manufacture, engine, machine…” Note, the word “new” does not appear. The limitation is “not before known or used.”

      Now the original statute clearly suggests, does it not, that the original drafters KNEW that a discovery was of something that existed. The caveat “not before known” confirms this interpretation.

      Thus, in 1790, their could be NO objection under the statutes that the new discovery of a product of nature could not be patented.

      The word “new” however was introduced in 1793 (by Jefferson, it appears, as it is he who wrote it this statute). But, importantly, the term “discovery” drops out.

      In 1793 the clause read, “invented any new … art, machine, manufacture, or composition … not known … before the application.”

      It is unmistakable, then, that Jefferson was aware that a discovery was not of something new, just not known. In contrast, invention is of something new.

      Problem of “discovery” solved by simply looking at the first two statutes.

      1. “Now the original statute clearly suggests, does it not, that the original drafters KNEW that a discovery was of something that existed.”

        Well based on what we just learned about “discovery” from the french tome I think it more than likely the term “discovered” in that statute means simply what we would say is “invented”.

      2. “It is unmistakable, then, that Jefferson was aware that a discovery was not of something new, just not known. ”

        Or… Jefferson simply translated it from French-American speak to English-American speak.

        1. 6, the original language simply said that one who had “invented or discovered” an art, manufacture, machine, etc. not before known could get a patent. Now I think Jefferson knew that one could NOT discover an art or machine and that is why he removed “discover” from the statute and replaced it with “new,” as in “new art, machine” etc.

          The original statute made no sense wrt “discover.”

          1. “The original statute made no sense wrt “discover.””

            Sure it did, which is what I’m trying to tell you. Imagine that you’re a french person and “discovery” means “super duper invention that meets these three special criteria x, y and z” as noted in the article cited by D. Now, imagine what word would describe best “inventing” such a “discovery” (aka a super duper invention). If you stumbled upon the words “discovered” or “discover” congratulations! Now it all makes perfect sense, from the constitution to the first lawls.

    2. “There is a basic inconsistency between the word “discover” and “new” machine, manufacture, composition and process. One cannot discover something that did not exist.”

      Probably not if you’re talking in france language.

  5. anon:

    I’m starting a new thread to give us a few clear back and forths:

    Regarding:

    “Your reply shows a fault that you have not corrected. You indicated that a sub-discovery (say Mississippi or California) would be available for patent even after a patent for the discovery of the new world was granted.

    This is not correct.

    The discovery was “the new world” and not merely the part of the new world that the eye could see from an approaching ship. Again – the issue of scope is present. You have not answered that issue.

    Under the scenario, Lewis and Clark have no rights. If (playing with time, obviously) Lewis and Clark were setting out to discover during the enforcement period of Christopher’s patent, they would be infringers. If they set out after the enforcement period of Christopher’s patent they would be guilty of attempting to double patent something already patented and now the domain of all men. Remember, patent rights run for a limited time and after that time everything covered by the patent is open to all freely.

    This level of scope can get even more tricky if you think of the world as one connected whole (the land mass of the new world is connected to all other landmasses). Same thought pattern as just stepped through indicates a very serious issue with scope..”

    You assume L&C infringe, I assume they got a license for their trip. Either way, they can discover/invent something that comes under an earlier broader patent.

    If I invent TV (black and white) and patent the system for the transmission and reception of moving pictures via radio waves, you can still invent and patent color TV. You don’t even have to infringe or license my patent to do it. You can do it all mentally and then write it down. But even if you did infringe my patent by building and testing a prototype…. you can still patent the system for the transmission and reception of moving color pictures via radio waves.

    So…you know…

    1. Sorry Les, but no. You have NOT shown that “Either way, they can discover/invent something that comes under an earlier broader patent” you have merely stated it.

      Again – the issue of scope. If you allow such sub-discoveries, what exactly is the scope of Christopher’s discovery patent?

      Your example of black and white TV and the improvement patent of color TV is inapposite to our discussion. How do you ‘improve’ the discovery of the new world?’ What is the scope of the discovery of the new world? The coastline?

      You still need to deal with the scope of the first ‘discovery’ patent. You have not yet done that. Without that ‘scope’ resolved, you cannot determine what an improvement patent is.

      1. No anon. The scope issue is the same. When I invented TV, I didn’t see or have color TV.

        Nevertheless, my invention covers color TV. The technologies overlap. Just as the “New World” overlaps the Mississippi and the Amazon for that matter.

        If you insist that for the analogies to align, one must improve the new world, then change the discovery of the Mississippi to….oh… I dunno….the invention of a cable TV system for the New World.

        1. No Les, the situation is different.

          When you invented black and white tv – there was NO color tv.
          Color tv would not exist in the scope of your black and white tv invention.

          When Christopher discovered the new world, that new world already contained Mississippi and California.

          Thus my question to you (which you really should stop dodging) is what is the scope of the discovery of the new world?

          You do not appear to understand what an improvement patent entails in regards to our conversation on the discovery of the new world. My question at 24.1 needs to be answered – and you need to understand why that question needs to be answered.

          It is not a matter of ‘alignment.’ It is a matter of you understanding why scope is an issue.

          1. I have addressed the issue of scope several times. The Scope is the New World. I have, by my examples made it clear it it includes much more that the soild Chris’ boot touched and even much more than his eyes saw. I have previously indicated that it includes the Mississippi River, the Amazon River and California.

            At the same time, I have acknowledged that portions not particularly disclosed by Chris might be patentable under separate patents, while at the same time being covered by Chris’ Patent.

            I don’t know how I can explain it any clearer.

            1. portions not particularly disclosed

              You run yourself into a logical circle, Les.

              The Scope is not “the new world,” as the scope is only “what is particularly disclosed”

              Back to our analogy – if the scope includes the Mississippi River and California, then no other patent is allowed on the patent scope given to Christopher.

              You have a fundamental claw with “portions not particularly disclosed by Chris might be patentable under separate patents, while at the same time being covered by Chris’ Patent. because what is covered (scope) is what is the patent right pertains to and (once again) you cannot have double patenting (either during or after the patent term afforded to Christopher).

        2. To use your tv analogy in context then, the first person would have invented BOTH black and white tv and color tv, but for some odd reason only claimed the scope of black and white tv.

          (California and Mississippi are either a part of the new world or they are not – and clearly they are a part of it. You really do need to clarify what exactly is covered by a claim to the discovery of the new world).

          1. No. Color TV is covered by the first TV patent because Color TV requires the claimed system components in combination with other components for transmitted, receiving and processing color information.

            The new World Patent covers the land mass located at points A – Z and all points west until the next ocean.

            One must get Chris’ permission to do anything with, on or in or take anything from the New World or face the wrath of the King for the next 20 years.

            Nevertheless, the King might also grant patents in regard to particular discoveries within the new world, such as to the Mississippi River. If Lewis and Clark get that patent, then one would have to deal with Chris and Lewis and Clark to get permission to take a raft ride.

            The patent is a right to exclude, not a right to practice, so, even Chris would have to get permission from Lewis and Clark to take a raft ride.

            You all caught up now?

            1. Incorrect Les.

              Color tv is NOT covered by the first patent to black and white tv because color tv is an improvement patent.

              Color tv necessarily involves more.

            2. The fact that color tv may not be able to be practiced in light of the patent to black and white tv is an altogether different concept.

              This is why the 1908 Supreme Court decision (and still controlling law) HELD that the patent right in the US does not have a use requirement.

              While you seem to recognize this negative right nature, you are not applying that nature correctly to the hypotheticals under consideration.

              And once again – this is due to the flaw in your thinking about tee scope of the grant to Christopher and the FACT that you can have neither double patenting nor such REPEATED and nested scope. Either Christopher has the scope of the new world – including as you mention the scope of the Mississippi river and California, or he does not. You cannot have both.

            3. By covered, I meant blocked…. To practiced color TV on the up and up, one must pay a royalty to the guy that has the patent on TV. Nevertheless, one may patent color TV.

              To get to the all but perhaps the delta of the Mississippi, on the up and up, one must get permission from Chris. In that sense, the Mississippi is covered by Chris’ new world patent. Nevertheless, Lewis and Clark can be granted a patent for their Discovery of the River.

            4. You notion of “blocked” is even more a mistake.

              It is only ‘blocked’ when it comes to practicing the item covered under a patent – but that is not something that any patent right gives you.

              You are conflating practice and patent. No one is talking about ‘practicing” here. Your conflation is a weakness in your argument.

              You still have not resolved the flaw as I have identified: you want to say that the scope includes the Mississippi River and California but that you can still give another patent for that very same scope. You cannot.

            5. Regarding:

              “And once again – this is due to the flaw in your thinking about tee scope of the grant to Christopher and the FACT that you can have neither double patenting nor such REPEATED and nested scope. Either Christopher has the scope of the new world – including as you mention the scope of the Mississippi river and California, or he does not. You cannot have both.”

              The Venn diagram of the invention TV is a large circle.

              The Venn diagram of color TV is a smaller circle within the larger TV circle.

              The Venn diagram of the New World is a large circle.

              The Venn diagram of the Mississippi River is a smaller circle within the New World circle.

              I think we agree on what the situation is with the TV/Color TV scenario. Color TV is blocked by a TV patent because the recited components of the claimed TV equipment are required in a Color TV system.

              The New World/Mississippi scenario is totally made up as you cannot currently get a patent on the New World or the Mississippi. Therefore, in my mind the conversation that began with your scope question was about, if you could patent discoveries, such as the discovery of the new world, would there be problems with scope…i.e., how would you handle the set/sub-set situation where a first patents claims encompass another, such as the New World/ Mississippi River scenario.

              You seem to think there is some sort of logical paradox that cannot be overcome.

              I don’t see it. We currently have a situation where a broad early patent covers block improvements that were not envisioned by the pioneer.

              I say the New World/ Mississippi scenario could be handled in a similar way. I’m sorry if that makes your head explode. It’s just not a problem.

            6. Sorry Les, but your diagrams are off.

              1) The Venn diagram of the invention TV is a large circle.
              2) The Venn diagram of color TV is a smaller circle within the larger TV circle.

              You refused to accept this (per my post at 24.1.1.2).

              You cannot have it both ways. The actual way of the first invention is a Venn diagram of the black and white TV, with some overlap (some in and critically, some out) with the Venn diagram of the color TV.

              The point I had been trying to get you to clarify was what was the Venn diagram of the new world. Did that Venn diagram have the Mississippi River and California, or did it not? If that first discovery has in its Venn diagram both of these sub-parts, then you cannot have a second Venn diagram only to that sub-part. Not that the analogy does fail for the chemical items in part because the sub-part chemical items are different enough to invoke their own patent Venn diagram and are not truly within the disclosed Venn diagram of the larger ranged chemical invention. The aspect that perhaps we can come to an agreement on is the lower scope of nebulous discovery patents, because you really are not discovering ANYTHING beyond which you can see as you approach the coast. Perhaps if you think of the scope in that manner, you have not actually discovered anything other than that coast and your Venn diagram would not (should not?) include the Mississippi River and California – in line with the scope that you actually can articulate.

              Again, read my posts. My logic is sound and consistent.

            7. No. The claims to TV are broader than black and white. There was no TV prior to this invention. The issue of color did not occur to the inventor or to the Examiner. The recited system components are common, as it turns out, to color TV. The transitional phrase used in the claims is: “comprising:”. The claims are open ended. Therefore, they cover what is literally recited in combination with anything else, including the color TV add ons.

              Color TV is totally within the claim boundaries of the TV patent. Black and white is not mentioned anywhere in the first patent. I only mentioned in parenthetically to emphasis the nature of the unanticipated improvement (color).

              My Venn diagrams are for what is covered by the patents.

              Your Venn diagrams are for what is required to make the system work.

            8. No. The claims to TV are broader than black and white. There was no TV prior to this invention. The issue of color did not occur to the inventor or to the Examiner.

              Sorry Les – you are clearly wrong.

              You have just created an invention that did not exist (pre-color) and you have made the House/Morse fallacy in terms of TVs.

              The very first TV does NOT have within its scope all future improvement TVs (including color). By definition, the unanticipated color is not within the scope of the first invention,

              Put.
              The .
              Shovel.
              Down.

              (and please stop with the vapid ‘cover’ language – I already explained that such is a mistake as you conflate practice and patent – you are only confusing yourself)

              Further – your use of comprising is clear legal error. The term is not a wildcard covering all future inventions – you need a refresher course as to what that term means.

            9. A thing comprising:
              A
              B
              C, and
              D.

              Assume the above is in a valid, allowed, issued patent.

              Can you make another thing comprising:

              A, B, C, D and E?

              without infringing or licensing?

              I donthinso Lucy.

              It’s covered by the patent.

              I’m sorry if this comprises a head ache for you.

            10. Les,

              It is not the comprises that causes the headache, it is your insistence on using the ‘cover’ terminology.

              You conflate practice with patent at your peril.

    2. Les you write that it is NOT CORRECT that:

      a sub-discovery (say Mississippi or California) would be available for patent even after a patent for the discovery of the new world was granted.

      Instead of States, let us consider precipitation-hardened alloys of aluminium, and selection inventions. It is more realistic that patenting States of the USA.

      Suppose you Les invent that class of Al alloys in which particles of Mg2Si harden the matrix, and you patent the class of Al-Mg-Si alloys.

      I start to research these alloys and discover a specific narrow range of relative Si and Mg content that will deliver a mechanical performance way above anything you discovered. Are you saying I cannot patent my discovery? That’s quite bold of you, isn’t it? Do you suppose the courts will support you in that view?

      1. “I start to research these alloys and discover a specific narrow range of relative Si and Mg content that will deliver a mechanical performance way above anything you discovered. Are you saying I cannot patent my discovery? That’s quite bold of you, isn’t it? Do you suppose the courts will support you in that view?”

        No Max, I am not saying that at all. Read my TV vs. Color TV analogy (which agrees with my New World v. Mississippi (I meant the River in that case, by the way)) analogy.

        I think you alloy is patentable.

        It is anon that has gone off the deep end.

        1. Not at all Les, as clearly the analogy will only go so far.

          In the chemical arts, the “discovery” of a narrow band of a previously identified item with DIFFERENT characteristics – different enough to earn a patent – is not amenable to the “discovery” of the new world.

          If you had answered my question (instead of dodging it) as to WHAT is the scope of your new world discovery, we could have identified this issue.

          So please tell me Les: what is the scope of your new world discovery?

  6. Is this really quite so complicated now I have scrolled through the comments?

    The words in the constitution copuld mean:

    (a) what the Founding Fathers intended them to mean;

    (b) what their dictionary meaning is; or

    (c) what a knowledgeable person would understand them to mean.

    I favor John Marshall and his successors as interpreters of the word bequeathed us by the Founding Fathers. Under these circumstances the encyclopedia would pass into the background the rules of English interpretation would prevail. Interesting article, thoughh.

    1. “Is this really quite so complicated now I have scrolled through the comments?”

      Why not take a scroll through the article already?

      1. The point, 6, is that even though the Encyclopaedia may have influenced the founding fathers when they wrote this clause, the interpretation is the meaning that a reasonable reader knowledgeable in law would give to those words. The background of English law and the rules of legal interpretation would be the more relevant. It was confirmed in L’Oreal’s Application [1970] RPC 565 that “new manufacture” within the Statute of Monopolies means more than the narrow s.102 definition of novelty and also covers aspects of unobviousness. So I support “curious, useful, and difficult to find”. But I think that the judges would be expected to derive that for themselves from the words used.

        1. I can make neither heads nor tails of your comment Paul. At first you’re saying the english law and rules of interpretation would be “more relevant” but then you turn around and support “curious, useful, and difficult to find”. I’m sure you ultimately have some sort of meaning to convey but I cannot discern it on these interbuts.

          1. @6

            The founding fathers inherited English law and English rules of interpretation. The constitution and statutes fall to be interpreted under those rules which are not believed to be significntly different as between the US and the UK. That continued to be the case long after US independence. In the 1830’s Lincoln began his study of the law with Blackstone’s Commentaries and Chitty on contracts.

            Footprints of English law are to be found in 35 USC. For example “manufacture” in section 101 is plainly there to mirror “manner of manufacture” in the UK Statute of Monopolies.

            The language of Section 6 is “manner of new manufacture” and the broad meaning ascribed to that term by the English courts supports the proposition that “new” in section 101 has a similar meaning beyond bare novelty. The words “invents or discovers” point in the same direction.

            The English law can in turn be traced back to the Venetian statute of 1474:

            “WE HAVE among us men of great genius, apt to invent and discover ingenious devices; and in view of the grandeur and virtue of our City, more such men come to us from divers parts. Now if provision were made for the works and devices discovered by such persons, so that others who may see them could not build them and take the inventor’s honor away, more men would then apply their genius, would discover, and would build devices of great utility and benefit to our Commonwealth.

            Therefore:

            BE IT ENACTED that, by the authority of this Council, every person who shall build any new and ingenious device in this City, not previously made in this Commonwealth, shall give notice of it to the office of our General Welfare Board when it has been reduced to perfection so that it can be used and operated. It being forbidden to every other person in any of our territories and towns to make any further device conforming with and similar to said one, without the consent and license of the author, for the term of 10 years….”

            The Encyclopaedia is a work of great interest and may be of historical relevance to the drafting of the constitutional clause. But the philosophy underlying the patent system and the requirement for novelty and unobviousness has remained essentially unchanging for the past 540 years.

            1. Huge text telling a little about general history followed by:

              “But the philosophy underlying the patent system and the requirement for novelty and unobviousness has remained essentially unchanging for the past 540 years.”

              Um ok …

              So at what point are we going to talk about the subject of the article D noted? Or were you just planning to leave that out?

            2. That is interesting….so we are back to our witch hunt. The above supports that the programmed computer is an invention.

              The programmed computer is not an invention, but a ________ (witch).

      2. Just to take the point further the followinig has ben downloaded from Wikipedia:

        U.S. Supreme Court: “We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.:” Consumer Product Safety Commission et al. v. GTE Sylvania, Inc. et al.,447 U.S. 102 (1980). “[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat’l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, “when the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.'” 503 U.S. 249, 254.

        To the extent that current judicial exceptions in 101 conflict with or modify the statutory language, they arguably fall within the category of judicial activism which has been criticised by some authors. And especially where (as has been argued) they result in alleged rules of interpretation which are difficult to apply and whose boundaries are difficult to discern.

        1. “To the extent that current judicial exceptions in 101 conflict with or modify the statutory language, they arguably fall within the category of judicial activism which has been criticised by some authors. And especially where (as has been argued) they result in alleged rules of interpretation which are difficult to apply and whose boundaries are difficult to discern.”

          Maybe but we’re talking about the constitution here bro, and what congress is even authorized to make statutes (like 101) under.

          “And especially where (as has been argued) they result in alleged rules of interpretation which are difficult to apply and whose boundaries are difficult to discern.”

          Again, maybe with respect to 101. But we’re talking about the constitution atm.

          1. While ‘void for vagueness’ is usually thought of in criminal contexts, the concept arguably reaches property and other civil matters.

            And while reaching these non-criminal matters the doctrine is allowed to be ‘less precise,’ there still is a point where the lack of clarity concern is reached and the law (even an implicit-Judge made law) must be voided.

            So even if the Court is using the Constitution as its basis for ‘interpreting’ the statutory law of 101, if the Court implicitly re-writes the law and the law is STILL too vague to render clarity, and thus opens to arbitrary decisions in the hand of the Court, then the Court only has the option of declaring the law void – it does not have the option of reshaping the law – ESPECIALLY in the patent context, where the Constitution is explicit as to which branch of the government has been allocated that power to write the law.

            The scope of this constitutional crises widens…

            See 3) at link to law.cornell.edu
            See 2) at link to law.cornell.edu

            1. Idk about whether or not that can be applied to property and other civil matters. One article you cite below seems clear it is for criminal laws. But either way, I’m all for knocking down 101 for vagueness. Or for that matter, knocking down the IP clause itself and starting from scratch. Of course as was noted in the actual article linked to in D’s post, that sort of thing is unlikely to happen.

              Frankly though anon, especially in the civil scenario I think the USSC does actually have the option of “reshaping” the law through interpretation. In fact, they do that kind of on the regular. See the obamacare case where they interpret a penalty as a tax so as to avoid letting congress get away with stealth taxing by calling the taxing a penalty. That might even have criminal consequences.

            2. Idk about whether or not that can be applied to property and other civil matters

              Did you bother with the links before you posted? Did you miss the 3) and 2) directions at 23.1.2.1.1?

            3. Frankly though anon, especially in the civil scenario I think the USSC does actually have the option of “reshaping” the law through interpretation.

              There is a difference between reshaping and interpreting. It is that difference that is the focal point of a rogue Court using an authority that Congress removed in 1952.

              Without that authority – stepping over the line and even implicitly re-writing patent law is a direct violation of the Constitution and the focal point of the separation of powers issue.

              You might want to recognize this is not one of your “subjective in the mind make up anything you want opinion” thingies here.

              Just because a political body does something does NOT mean that a constitutional issue does not exist.

            4. And I will remind you that stepping over the line is exactly what Stevens would have done in Bilski and that is exactly why he lost his majority writing position.

              The alarming thing (as noted previously) is that other Justices would have been fine with stepping over that line and writing new explicit patent law.

            5. “There is a difference between reshaping and interpreting.”

              Yeah well not in their minds.

              Perhaps in your mind though, which to you I know is all that you consider “objective reality” because you literally lack the ability to understand others thoughts or feelings. And of course consequently have a difficult time seeing the consequences of those thoughts or feelings that you cannot understand.

              But I wish you good luck with that argument.

              Maybe stay with me for a minute more though. Consider the possibility that you are in fact psychopathic and consequently lack certain abilities by the very nature or structure of your brain. Just as a clinical condition I mean. Consider also whether or not your lacking those abilities that psychopaths lack might put you at somewhat of a disadvantage when arguing such fringe arguments before a court. Consider whether this might be so because to people who are not psychopathic it is easy to see that in the minds of the supremes they have reshaped through interpretation and that is just fine and dandy by them. And consider finally that what is fine and dandy by them is indeed fine and dandy since what is fine and dandy by them is just fine due to their position of power.

              I’m just saying, just muse on it for a second.

              After all that, perhaps muse on what “power” means to you.

              “Without that authority – stepping over the line and even implicitly re-writing patent law is a direct violation of the Constitution and the focal point of the separation of powers issue.”

              And what if they usurped that power? What then? Whom does it fall to ensure they stay in line? You? Or Congress? Which of those two entities seems wholly unconcerned about the matter?

            6. “Did you bother with the links before you posted? Did you miss the 3) and 2) directions at 23.1.2.1.1?”

              I glanced at them. I just don’t know about all this. It’s some obscure legal concept you’re springing on us.

            7. 6, your fallacies persist (with no surprise since you are determined to not let a lack of actual knowledge stop you from posting).

              By your wanting to place it ‘in my mind’ you want to be able to place it IN a mind. That is clearly not on point. We are NOT talking about something that is “subjective, in the mind and open to anything you want to say.”

              You seem to lack the basic ability to understand what an objective law is – that we have such laws and that the law really does mean something in the objective sense.

              You further seem to think that there is no “wrong” if there is no response to the wrong. If Congress sits on its hands, then the Court “really did not do anything wrong.

              This my friend is a psychopathic view. It is merely a AAOTWMDs that you glom onto and wish to paint me as the psychopath when it is your psychopathy at play. You seem to think that the power to do makes for the power to be ‘right.’ That is the sign of a small-minded bureaucrat – a bully and someone who should not be entrusted with any power.

              As to you “just not knowing about all of this” – why then do you feel the urge to speak your mind on something that you recognize that you just don’t know about? Perhaps you should read and understand something before you babble on about it. That way, you will commit character suicide far less often.

            8. “We are NOT talking about something that is “subjective, in the mind and open to anything you want to say.””

              Anon, I know this is probably taxing your mind to the extreme but all law, all the legal “concepts” and “principles” and “common law” and “decisions” and all that, all exist solely in the human mind though we have made scratches on various sheets of paper and compooter screens to help us remember them, better abide by them as well as distribute them.

              I’m not sure how you missed this for your entire existence but one day you’ll come to understand this.

            9. More FAIL from 6 with “exist solely in the human mind though we have made scratches on various sheets of paper and compooter screens to help us remember them, better abide by them as well as distribute them

              You do know what ‘solely’ means, right 6?

              You do know what ‘codify’ means, right 6?

              You do know that the reasons these things are done is to remove the subjective in the mind make up whatever you want type of thing that you would rather have, right 6?

              But please, keep posting and proving my points for me.

            10. “You further seem to think that there is no “wrong” if there is no response to the wrong. If Congress sits on its hands, then the Court “really did not do anything wrong.”

              I don’t know what gave you that preposterous idea. I’m most certainly not saying that there is no wrong if there is no response to the wrong, aka congress does nothing! No way sir! (again, maybe you’re literally physically unable to understand my intention, which has been made very clear by now, due to the structure of your brain). I want to make this very clear anon, according to 6, there MOST CERTAINLY COULD have been a wrong, even if congress did nothing! Though I personally don’t think such occurred. You and a few others with a self-serving agenda do. Me, congress and a huge majority of people who couldn’t give one dam either way do not. And that’s fine.

              Indeed, were I to take your position that there was a wrong, then there would still be a wrong even if congress did nothing.

              But in either event, then the question is simple. What can us mere mortals, or more specifically, you and your fellows with an agenda you wear on your sleeve, do about it if there was a wrong? The answer is: NOTHING. Well nothing except whine to congress. This brings us back around to that thing called POWER. That is the USSC’s power. To order things such that their say goes, and we, you, me and your buddies, and everyone else, get no say in the matter. And the only people that can do anything about it is congress.

              “This my friend is a psychopathic view.”

              You don’t even know what psychopathy is lol! If you did then you’d have recognized yourself as one a long time ago and attempted to take corrective action. Though I will admit it took me awhile to discern this behavior in you. Man, it sure explains a lot though.

              I know you still see it as more of an insult than a simple clinical condition. But that’s what it is bro, a clinical condition.

              ” You seem to think that the power to do makes for the power to be ‘right.’ ”

              Nah bro, not at all. The power to do is simply the power to do.

              “wish to paint me as the psychopath when it is your psychopathy at play”

              Trust me I don’t want to “paint you” as such bro. I say it in a clinical sort of way. A way to explain your observed outrageous behavior and thinking on certain subjects. Not in some “put down anon way” or “discredit anon way”. And it’s a fairly common condition. It’s nothing to be ashamed of man. 1/20.

              I mean, it just fits, you have an extreme inability to understand the feelings or thoughts of those around you, or people in articles, though you might fake it on occasion. You likely have this problem in your work as well, considering your appeal motto. You enjoy trolling like it was your second nature. You enjoy putting examiners down and consider yourself above them. You’re callous to the people, as well as their feelings, on the receiving end of the patent system, regardless of the merits of the suit against them or if there even is a suit against them. I can continue but you’ll get bored hearing all the indications and I’m sure that you subjectively won’t consider them bad at all or indicative of psychopathy. But then, when you learn what it is, you might change your tune since you are halfway intelligent once you’re tuned into what is going on by someone else.

              I have to hand it to MM, he pegged you pretty quickly, though of course you took it just as a mere insult. But then, he’s older and has more experience I’m sure.

              “why then do you feel the urge to speak your mind on something that you recognize that you just don’t know about? ”

              Um, because this is a discussion forum and you might be interested in another sentient being’s feelings or thoughts on your proposed “concept application” which you posted to that forum? Again, you have a severe inability to understand other people’s thoughts or intentions. Severe. Like hardcore.

            11. Your fee fees are hurt 6?

              Buy a puppy and/or grow some. I just don’t buy your “sentimental” hogwash that you would masquerade behind as you would and change the law into something it is not.

              If you have the law, pound the law.
              If you have the facts, pound the facts,

              If you have neither, pound the table.

              All I see you (and your pal Malcolm) doing is pounding tables. Then you want to whine because I pound you with the law and with facts.

              Boo Fn Hoo.

            12. “You do know that the reasons these things are done is to remove the subjective in the mind make up whatever you want type of thing that you would rather have, right 6?”

              You may feel free to cite references if you feel like it. It is not going to change that lawl, just like “price” etc. is an abstraction existing in the mind. You can scrawl down scratches on paper to represent the abstraction for later use but it doesn’t change the nature of either lawl or price or where either of the exist.

            13. “Your fee fees are hurt 6″

              Who said anything about that re re?

              “I just don’t buy your “sentimental” hogwash that you would masquerade behind as you would and change the law into something it is not.”

              Of course you don’t, you’re a psychopath. That’s the whole point. You not only don’t “buy” it, you literally couldn’t “buy it” even if you wanted to, even if your life depended upon it. You don’t have the capacity to do so due to the physical structure of your brain.

              And that’s ok. Don’t feel bad about your clinical condition man, you were born that way.

              “All I see you (and your pal Malcolm) doing is pounding tables. Then you want to whine because I pound you with the law and with facts.”

              Of course those kinds of things are all you see ;) I trust you. That’s the whole point of my last two posts. You’re a “psycho” and you can’t see anything but those sorts of things. Literally, not figuratively.

              Which is something I can overlook a bit in the future.

              Your everyday reta rdation (here we’re not talking clinical) is still annoying but I can overlook your psychopathy. I try to not stigmatize folks for their legitimate clinical mental illnesses. Once you know you’re dealing with a person who is dealing with a clinical disability you can just cut them some slack and put them out of mind a bit.

          2. …and what better symbolizes that state of lack of clarity than the screaming and throwing up of hands of the very body that Congress created to bring clarity explicitly to patent law in the mess of the decision in the CAFC Alice case?

            Hey Supreme Court: pay attention and clean up your mess. Take your finger out of the 101 nose of wax.

          3. I think the question is whether there is a constitutional standard of novelty and unobviousness that underpins 35 USC 101, 102 and 103. The argument here is that there is.

            The constitution, so far as I am aware, is rarely invoked. I have asked many US colleagues over the years what is meant by “discoveries” and have never obtained anything beyond a blank look. That is one reasopn why the present topic is of interest.

            Anon has been discussing vagueness, which is a significant addition to the discussion. For my money the constitutional clause and 35 USC 101-103 do not suffer from that defect, and the problem arises from judicial activism in the application of extr-statutory rules. For example, an earlier posting on this blog argues that the Mayo v Prometheus decision identifies no workable legal rule, see

            link to patentlyo.com

            1. constitutional standard

              Standard?

              Lacking clear words as to even the presence of a standard (let alone what that standard would be) – the slippery slope of how deep the rabbit hole of “implicit” cannot be avoided.

              That way lie ruin and abomination.

              The Constitutional clause does not hide such elephants in its mouseholes. The clause clearly designates which branch of the government has the authority to set the patent rules of law.

            2. Paul, the traditional notion of “discovery” is that some pre-existing phenomena has been found, a principal has been recognized or discovered.

              What is interesting about the encyclopedia is that it also recognized that laws of nature, natural phenomena, and principles in the abstract could not be the subject of patent: The basic theory here is that such are the common resources of all mankind because the always existed.

              Thus O’Reilly v. Morse recognized that one had to apply the law of nature, natural phenomena or principal to produce a new, physical result or effect, and the patent but only secure the particular method and means for producing the result or effect.

              Viewed this way, inventions are applications of the principal. But discoveries are of the principal.

            3. Paul,

              As I do not dismiss Les out of hand (merely taking a particular issue that is to be addressed – scope) the completely unsatisfying answer to your question is already captured in the statutes:

              35 USC 100(a): (a) The term “invention” means invention or discovery.

              Ned,

              STOP with the incorrect, lazy and easy fallacy of “The basic theory here is that such are the common resources of all mankind because the always existed.” The universe is not static. 101 is not a time-dependent law. Likewise, stop ignoring the fact that a final effect need not be new in itself. You are not doing yourself any favors with the naked retreads of fallacies.

            4. anon, I am sorry, anon, but it is NOT MY THEORY that is under question here. The LAW that laws of nature, natural phenomena and principles in the abstract cannot be the subject of patents was well known and accepted. Flook only explained the theory — lack of novelty under 101.

              Now you say that there is no time dependence in 101. When you do this, you deny that the word “new” exists in the statute.

              The bottom line here is that your view of the world is your opinion. I, however, cite Flook and I cite the very words of 101.

            5. Ned,

              It is your theory as to how Flook is explaining things.

              Many times in our discussions it is in exactly how you misunderstand Supreme Court cases than is where you r errors lie.

              This is just another one to add to the list.

              As to how I can treat “new” (just like I treat “invention”) is by understanding the law as written by Congress. Read again my post at 19.4.2.2.1.1. I lay it out for you clearly and with Supreme Court cites.

    2. The reason this causes so much controversy is that it is being used by the anti’s to try and exclude information processing–obviously.

      1. That much is abundantly clear NWPA – the advancing of a philosophy that is naturally at odds with the patent system (pounding the table of policy when one has no law to pound and when one has no facts to pound) can only be conducted through conflation and obfuscation and a lack of clarity.

      2. Night, not really. I think the issue on the table is the class of inventions known as “business methods.” Are they in the “useful Arts.”

        While Math was proscribed in Benson, the reason it was STILL remains unclear. Once the court had found Math useful, there should have been no problem. Math can be new, thus it is unlike a LAW of nature in that respect. Math is useful. It clearly is a process to the extent that a process requires a number of steps. The steps are physical if a machine is required to execute the steps.

        Abstractness under Morse related to scope and enablement. Obviously the statement of the mathematical algorithm enables it.

        To the extent the Supreme Court did not require that a process produce a new “physical” result, the remains no other basis to declare Math verboten.

        1. Ned,

          You continue to ignore the points that I made that all three branches have recognized that business methods are a par of the Useful Arts.

          Please stop your unwarranted crusade.

          (and yet again – the producing of a new ‘physical result’ is not necessary – See Diehr and the fact that the result of perfect cures was not a new thing)

          1. anon, on “recognition,” you mean, not categorically excluded — yet.

            I think the issue remains on the table as the Supreme Court may now have to explain itself about Bilski. What legal doctrine were they applying to declare the claims in that case ineligible?

            1. It is not so much ‘legal doctrine’ Ned as it is more ‘legal authority.’

              The 1952 Act removed the authority of the Court to set the definition of ‘invention’ by common law evolution.

              The Court is very much aware of this.

              The Court needs to deal with its addiction to power.

              We very much have a constitutional crises on our hands.

            2. anon, your theory that the court was very much aware that it has authority was constrained by 52 act is belied by Graham v. John Deere that simply said that section 103 was a codification of its law regarding invention and further belied by all the other Supreme Court cases since 52 on the question of obviousness. Particularly see KSR.

            3. Ned,

              That statement in Deere is self-evidently wrong.

              We have had this discussion before. You are listening to the dicta of an addict.

              What succeeding cases use from that position (KSR for example is not at all related to our 101 discussion.

              Let’s not stomp in the stream waters and make them even more cloudy, please.

            4. Instead Ned, do as I suggested and note the extremely careful words used by the Court in its 101 decisions and the homage it pays (at least with its lips) to the “words that Congress used”

          2. anon, now it is you who are living in IMHO land. The SC declares the law, and they are not wrong. Tell King Henry VIII that he is not above the law. He will tell you that his word is the law.

            Now, if you disagree with King Henry, to who do you appeal?

            In later years, Lord Coke established the rule of Law in England. The king resisted. What happed to that King?

            1. The King is naked, Ned.

              No amount of fawning by you to as how glorious his raiment will change that.

              The Judiciary was not tasked by the Constitution to write patent law. To the extent that you think so, you are clearly and plainly wrong. Perhaps you are missing the point in my stating that we have a constitutional crises at hand?

              We have in the past discussed the Congressional writing that permitted a common law evolution of the meaning of the word “invention.” Clearly, that power was removed in 1952. You really do need to pay attention to what actually happened in the 1952 Act. You cannot relay on the dicta of a power-drug addicted entity. You do have the power to THINK and realize that we really do have a crises of monumental proportions. Think back to Marbury – that was a lowly case over an appointment issue. This is so much bigger.

            2. Clearly, anon, you really, really, really!!!!, do not understand the concept of the rule of law. (And for that matter, neither did Rich, vis the dissent in Tarczy-Hornock and the many other cases where Rich took his meat cleaver and did away with precedent of ancient vintage.)

            3. Tell me Ned of this ‘rule of law” in you imaginary kingdom where the Nine Kings can do whatever they want…

              Or may be you might realize that even the Court can violate the Constitution…

            4. Anon, there is no LAW if a later court can overturn precedent that it disagrees with. Stare Decisis requires that earlier precedent be respected regardless that one disagrees with it.

              But was manifest that Rich and you are both unconstrained by the rule of law: after all, in his own mind, he was overruling the poorly decided precedents of the CCPA and of the Supreme Court. He was acting on behalf of a “higher power,” or better, he was the higher power just as Henry VIII was instructed by Cromwell.

              So, when one asks the question of both you and Rich, “Who died and made you King?” The question is more than rhetorical.

            5. Ned,

              You drive even further into the weeds with your anti-Rich views, and your inability to remember the difference between Holding and Dicta when it comes to actual law.

              Give me again the quote from Benson that ends with “We do not so hold

              Let us ride on the merry-go-round again of my showing you that Judge Rich was able to slap back at the Supreme Court, not because as you would have it that he was an outlaw and violator of “Supreme Court law,” but instead he was able to act as he did because he knew what the law really was, and he knew that the Supreme Court was bound by that law.

              You seek a false fealty to the Nine Kings.

              It is not unconstrained by the rule of law – it was the fact that he was far more knowledgeable about what that law was.

              You despise what you should be glorifying. You glorify what should be despised. And to top it off, all of this is done merely because the particular matter aligns with your crusades.

            6. “Clearly, anon, you really, really, really!!!!”

              Ned it’s because he’s a psycho. Cut him some slack. He literally can’t understand rule of law. The only person’s thoughts or feelings on a subject that he can understand are his own. This is why he comically presents his own views a “Truth” handed down from above like there can be no others. He states he considers his “superior” but he not only considers them “superior”, he literally cannot understand how there could be anything different.

              Just cut him some slack.

            7. LOL – do you realize how vapid you sound, 6?

              I mean, even more than usual.

              Do your fingers touch each other when you stick them in your ears so deeply?

      3. “The reason this causes so much controversy is that it is being used by the anti’s to try and exclude information processing”

        Um if you read the article there’s a lot more than info processing that would go bye bye. For instance, pretty much all, or at least the lion’s share, of modern copyright lawl would be unconstitutional.

        1. NWPA,

          You must have missed the post by 6, but info processing is clearly covered under the definitions of engineering and would not be excluded.

          Per 6’s posts, he would allow you all that you want.

          1. “You must have missed the post by 6, but info processing is clearly covered under the definitions of engineering and would not be excluded.

            Per 6′s posts, he would allow you all that you want.”

            Um idk about that. If we were to adopt the meaning proposed in the article cited by D then we’d have this in the constitution:

            “ii) Congress can promote the advancement of practical manipulations of natural materials or forces by providing enhanced, nationally enforceable positive law rights to existing natural or common law exclusive rights, to the extent they exist, or to new rights it creates, but not in perpetuity or unbounded terms, covering the most important inventions (those that are curious, useful, and/or difficult to find) of inventors.””

            So if your “information processing” patent or claim was nothing more or different than a claim to a manipulation of natural materials or forces then I might consider it subject matter that it would be constitutional for congress to make a patent system to protect. That would probably rule out a lot of “information processing patents” though that are currently on the books. But even the ones that remained would still have to pass 101 as interpreted by the USSC. And 112. And 102. And 103.

            But sure, it’s conceivable that an “information processing” invention might exist and be patent eligible and patentable. Somewhere, purple squirrel style.

            1. “There is more than one conversation going on. I am referencing the conversation that you and I had about “Useful Arts” and your research and your asking me to ‘get out a dictionary.’”

              I must have missed that reply of yours. I don’t recall asking you to get a dictionary for “useful arts”. I asked for you to get a dictionary for what “engineering” was or something like that a few days ago and haven’t checked for your answer on that thread. I’ve also sort of made a call for anyone (including you and me and everyone else) to find a reference from the 18th century or thereabouts that describes the phrase “useful arts” in a definitive way. That doesn’t have to be a dictionary and likely wouldn’t be. It’s more likely it would be a technical tome like one of the encyclopedias.

              I do remember something about IT being in a thesaurus under one of your dictionary citations you posted. If that’s what you’re talking about then that’s fine. But that’s a thesaurus bro, and sure, some aspects of the huge field of “IT” involves engineering. Putting together a router and a bunch of cables in a certain physical configuration is IT and engineering both. Shrug. That doesn’t mean all “information processing” is magically engineering.

            2. But that’s a thesaurus bro, and sure, some aspects of the huge field of “IT” involves engineering

              LOL – you need to check it out then 6 – complete self Fail by you and your little purple squirrel.

              Nothing magical about it – you wanted a reference and you got one. It just did not have what you thought it would have.

              Svcks to be you.

            3. “Nothing magical about it – you wanted a reference and you got one. It just did not have what you thought it would have.”

              I wouldn’t expect any different from a lay thesaurus. Like I just said, IT does involve some engineering. I can tell that your psychopathy is preventing you from understanding my intention now so I’m just going to cut you some slack for your oddball response.

            4. Oh, I understand your intention perfectly.

              It is just that the result achieved is not what you intended.

              That’s the funny part. I love how you scramble to make it like it is some type of “me” issue, but clearly, it is not. This issue is all “you” buddy.

          2. LOL – Come on 6 – THINK.

            There is more than one conversation going on. I am referencing the conversation that you and I had about “Useful Arts” and your research and your asking me to ‘get out a dictionary.’

            Clearly, the present article on a French line of thinking is not the law. What I am pointing out to NWPA is your self-FAIL when it comes to information processing being a recognized engineering discipline.

            (btw how did your date go with that guy that said on the internet that he was a French Model?) Avez-vous eu un bon moment étant encorné?

            1. “What I am pointing out to NWPA is your self-FAIL when it comes to information processing being a recognized engineering discipline.”

              I should add:

              /eyeroll

              Go ahead and repost for us all. Be specific this time so I can lol@you better and properly.

  7. I’m making this new section for those few people who have reached the following part in this article to be able to discuss any thoughts they have on the following main point of the article.

    Spoiler alert for those that want to read from the beginning.

    “Plugging these definitions into the IP Clause results in a coherent and unstrained interpretation that is indeed a kind of “progress project” as Chon, Birnhack, Oliar, and others argue. It reads as two intertwined parts:

    (i) Congress can promote the advancement of systematic study of any manner of
    things by providing enhanced, nationally enforceable positive law rights to existing natural or common law literary property rights, to the extent they exist, or to new rights it creates, but not in perpetuity or unbounded terms, covering the fixed expressions of those who seek to convey substantive content related to such systematic studies (and not for those fixed expressions created simply for style or entertainment); and

    ii) Congress can promote the advancement of practical manipulations of natural
    materials or forces by providing enhanced, nationally enforceable positive law rights to existing natural or common law exclusive rights, to the extent they exist, or to new rights it creates, but not in perpetuity or unbounded terms, covering the most important inventions (those that are curious, useful, and/or difficult to find) of inventors.”

    Thoughts on the above?

    There’s a few things he tossed in to expound on some terms that are unnecessary for his overall message. But overlooking those the substantive limitations that he proposes were present are quite interesting to me. The ones on copyright are especially interesting, but the patent limitations are as well.

    Again, if you’ve read to this point in the article, please share your thoughts, if you haven’t yet, please just wait until you get there if you’re going to read it. Else just abstain from commenting in this little sub-thread please.

    1. 6, agreed.

      But nuanced. As I said just now below, the MAP is important.

      Useful Arts appear in the left column — knowledge of Nature.

      Math is in the center – philosophy.

      Business and economics in also in the center, under Ethics and Politics (Law).

      If this Map were adopted, a lot of problems would be solved.

      1. “If this Map were adopted, a lot of problems would be solved.”

        Indeed, which is why we didn’t have the problems we have back in the day.

    2. Well I for one am let down that enough people either haven’t made it this far in the article or don’t want to talk about the entire point of the article.

      1. 6, I do not agree with that reconstruction of 101.

        The case is much simpler.

        1. Discovery is of a principle or law of nature or natural phenomena that previously existed.

        2. Invention is the application of that discovery to a “new” machine, process, manufacture, or composition.

        The principle is generalized and universal. But invention is the application. There is no “degree” involved.

        1. “6, I do not agree with that reconstruction of 101.”

          Um it’s a reconstruction of the constitutional provision brosefus, not 101.

          Of course you should disagree with it as a reconstruction of 101 since it is not a reconstruction of 101.

          Have you even read the article D cited all the way down to this point yet?

    3. 6,

      Per ii) watch for the caveat slight of hand: “to existing natural or common law exclusive rights, to the extent they exist

      An inchoate right exists (the extent) – but being inchoate, the right is not enforceable without more, and has not property of exclusiveness.

  8. Some assert that there are only two arts, namely “Useful Arts” and “Fine Arts”. So, if the claimed subject matter falls outside the ambit of the fine arts, it must lie within the field of useful arts.

    I think there are other arts though.

    Take the art of “influencing people”, or that of “making friends”. It can hardly be denied that there is an art to it. But is it one of the “Fine Arts”? I think not.

    Moreover, it can hardly be denied that an aptitude for influencing people is a highly useful art.

    But is it one of the arts that is properly within the “Useful Arts”? I think not.

    A great many methods of doing business involve making friends and influencing people. If you discover such a business method, and you can define it clearly and enable it, can you patent it? If not, why not?

    1. That you “think not” is clearly not dispositive. Such arts as you list fall to the fine arts.

      Sorry (for you) but they do. The type of use/utility is what is important. Beware the conflation though. Surely making friends and influencing people can have effects that ARE felt in the useful arts. Just as fine art items (i.e. musical instruments) can have an effect in the Useful Arts ( I listed the USPTO art unit number previously).

      The difference to focus on is the ‘scientific method’ of the utility. Just a while back Malcolm thought he was cute and brought this up, only to have me wreck his day when I showed that business methods do employ the scientific method. To those aspects, then of certain arts, there still exists the taxonomy breakdown into the Useful Arts and the fine arts.

      It really is that simple.

    2. “So, if the claimed subject matter falls outside the ambit of the fine arts, it must lie within the field of useful arts.”

      Um, presuming that it was included in the “arts” at all. You don’t want to leave that little tidbit out. At least if you’re talking about the assertions of the author of the instant paper.

      “Take the art of “influencing people”, or that of “making friends”. It can hardly be denied that there is an art to it. But is it one of the “Fine Arts”? I think not.”

      There’s a whole table/chart of these sorts of things in the French Work cited. See around page 41 of the article where it is reprinted to see the French take on that subject around the time of the founders.

    3. Max, Curtis, a contemporary wrote:

      “The patent law relates to a great and comprehensive class of discoveries and inventions of some new and useful effect or result in matter, not referable to the department of the fine arts.”

      1. OK Ned but what is your point? Take for example a discovery X within the art of influencing people, and evidenced by a slew of experimental data, gathered in a rigorously scientific way. Take the discovery to be new. Manifestly it is useful and manifestly it has an effect on matter. Grey matter, in particular.

        anon asserts that is is one of the Fine Arts. He’s wrong, isn’t he?

        1. MaxDrei you misinterpret what I wrote – read again and compare to the fact that musical instruments are fully patent eligible.

          1. anon, you wrote:

            “Such arts as you list fall to the fine arts.”

            and I took you at your word. Nothing ambiguous at all in what you wrote. My “list” of arts was very short: 1) making friends and 2) influencing people.

            Typically you are barely understandable, to the extent that it seems deliberate. But, here, exceptionally, I could understand you. Are you now saying that. on this occasion, actually you slipped up, in writing something that for a change was clear.

            BTW, the diversionary question whether musical instruments are suitable subject matter for patenting is irrelevant to the present debate. Nobody is disputing the patentability of musical instruments.

            1. You took me at my word but still out of context.

              There is a reason I added the musical instrument part. This is now twice that I am directing you to re-read what I wrote.

            2. The fact that you think it irrelevant only show that you do not understand the context.

              It is completely relevant. Once you understand the relevance, your apparent confusion will dissipate.

              I cannot make you drink the water that I have led you to.

        2. Max, Let me repeat more of the quote:

          “new and useful effect or result in matter”

          “Useful Arts” is not simply defined by what it is not.

  9. In another piece of hilarious news:

    “USPTO Wants Suit Over 43-Year Patent Examination Tossed
    By Ryan Davis
    Law360, New York (March 18, 2014, 6:09 PM ET) — The U.S. Patent and Trademark Office asked a court last week to throw out a suit by an inventor who claims the office has unreasonably delayed examining his patent applications for more than four decades, arguing he failed to exhaust administrative remedies before suing.”

    Apparently 43 years in prosecution and he still hasn’t exhausted all his administrative remedies enough to sue lolol! Probably technically true, but hilarious none the less.

    1. You know, 6, the Solicitors Office can be downright hilarious. They have to defend the indefensible. I wonder how they do it at times.

      1. Mellow,

        You are correct. Also, Hal Wegner had a recent email stressing the legal issue being presented by Mr. Hyatt is a serious one (and reflecting that Mr. Hyatt has the same counsel that prevailed at the Supreme Court over the USPTO).

        How much do you want to bet that the underlying legal issue will have plenty of dust kicked over it because of who Mr. Hyatt is?

  10. In common parlance, inventions and discoveries are synonymous. And according to 35 USC § 100(a), the (legal) term “invention” means “inventio or discovery”. European patent law, in contrast, excludes “discoveries as such” (Art. 52(2a+3)).
    Sometimes a distinction is made of things that are assumed to be pre-existing, and only had to be “uncovered” (discovered) by the inventor, but that raises philosophical questions. for instance in mathematics.
    Anyway, patent law should focus on value.
    The word “discovery” may be used for fundamental science. But then it may be excluded because of other provisions. Note that a patentable invention basically is a trick, e recipe for action, which excudes mere facts.
    Here we meet the true meaning of Cochrane v. Deener: if no machine is involved, the invention still can be patentable if it brings about a transformation, i.e. a process that adds value, IMHO.

    1. The grains in Deener are just like represented information in information processing.

      Deener is, in fact, the most pro patent SCOTUS case for information processing. And, in typical fashion, the anti-patent entrepreneurs (APEs) like Lemley have tried to hijack Deener.

      Deener also supports functional claiming to the scope of enablement.

      1. Night, I rather think that Deener supports claiming a process even though a machine is disclosed that can carry out the process. This is one of the reasons advanced for overturning the function of a machine rule.

        Also, there is a difference between claiming a result, effect or property and claiming a process.

          1. Deener does not support functional claiming. It supports a process involving a machine. Application of Tarczy-Hornoch, 397 F.2d 856, 864 (C.C.P.A. 1968).

    2. Leaning on Deener, a Court case (basically in a not-so-subtle call to MoT) while not recognizing another Court case on point (Bilski: MoT not required) is problematic.

      1. Yes anon true enough, but information processing methods do transform something–represented information. Conservation of information is the most important law in physics.

    3. Sometimes a distinction is made of things that are assumed to be pre-existing

      This ‘distinction’ should be laid to rest as it is too easy to misinterpret and has in fact been laid to rest in another Court decision. See Chakrabarty.

      As I explained in the run-up to the Myriad decision, the 101 exclusion created by the Court is NOT a prior-art based doctrine.

      It is clear legal error to think otherwise.

      The Universe is not static. Items in the warehouse of nature (the Universe) are not static. If something exists (or comes to exist) in the warehouse that is effectively the same as something made by the hand of man, but that something is not made by the hand of man, the item made by the hand of man loses its eligibility since the Court has decreed that no rightful exclusive property can be taken from nature and given to an individual.

      Again, the archives here at Patently-O running up to the Myriad decision has all of this spelled out (for example, Malcolm refused to answer how he would enforce such a right – if given – on item X when he could not identify a way of differentiating item X made by man and item X found freely in nature. As discussed, patent law surely provides the ability to patent the man-made process of creating X – just not X itself.

        1. Lack of novelty IS the reason for exclusion.

          Ned, see post 16.1.1.2.2 You are falling to the ‘easy’ fallacy.

          Also see Prometheus in that conflation of 101 with the other sections of the law was rejected by the Court.

          See also in the archives Prof. Crouch’s post on the 50 year old battle and my post there, pointing out that the distinction between patent eligible and patentable is the “Point of Conflation” that produces so much dreck on the discussion of 101.

          Clarity in law comes from the opposite of the attempted conflation.

          Let me climb my soapbox for a moment and say:

          It is those that push philosophical agendas and ‘policy’ in place of law and fact that have vested interests in a lack of clarity in the law.

          It is those with an addiction to common law evolution that push for a “no brightline” lack of clarity and the inherent result of perpetual conflict with the lower court specifically set up by Congress to bring order and clarity to patent law.

          This addiction was plainly evident in Prometheus and the comment there that the Court would not let their implicit writings become dead letters with any (just or accurate or otherwise) ‘interpretation’ of the explicit words used by Congress.

          To the Court, “Judicial Stare Decisis” overcomes the Constitution and that document’s direct and unequivocal allocation of authority to Congress to write patent law. The Court simply refuses to take its finger out of the 101 nose of wax. What is really going on is an addiction to power and a constitutional crises of the separation of powers doctrine.

          1. anon, the court in Flook stated the lack of novelty was the reason for the exclusion of laws of nature and phenomena of nature. They were citing 101. 101 requires newness. There is no “conflation” because laws of nature, etc., certainly are not 102 prior art and there is no need to go to that statute to determine whether a law of nature was prior art.

            Newness is an independent and distinct “requirement” of 101. It is there, IN the statute itself. It is a requirement just as much as utility, and invention, and the four classes.

            1. Again Ned – you fall to the easy fallacy of an imported time dependence.

              The universe is not static. The doctrines covering 101 are not time dependent.

              The newness requirement is not actually in 101. The word is used, yes – but to use that word to eviscerate 102/103 would be just as wrong as using 102/103 to eviscerate 101. See Prometheus.

              Likewise, your comment of “and invention” if read as you are reading “new” would be in direct conflict with the words and record of the 1952 Act. It was EXPLICIT that Congress was removing that from 101 – and creating 103.

              Clearly, your manner of attempting to read the statute cannot be correct.

              One cannot perform statutory construction that would render whole parts of the statute excess baggage.

            2. You can not purposefully read into the statute in a way to CREATE ambiguity and then attempt to resolve the very created ambiguity with policy-driven implicit writings.

            3. Ned,

              You must know that Flook was cabined by Diehr.

              Even if we are to understand that not all Supreme Court decisions stand the test of time, we can easily see that not all understandings by attorneys writing on blogs come close to understanding what the Supremes actually say.

              To that effect, you need to then realize that my post uses the more up-to-date understanding. Read again 19.4.2.2.1.1. There are fine understandings of law that you should contemplate.

            4. anon, you DO realize that we are talking about LAWS of Nature and Natural phenomena? We are not talking about Mathematical Algorithms — at least not in Flook.

              The basis for the exclusion of these is that they are not new. See, fn. 15 of Flook, which I quoted in full.

              Diehr held that applications of Math (probably there a LAW as well) to traditionally eligible processes did not render them ineligible. But that says nothing about WHY a LAW of Nature or Phenomena of nature are excluded, why attempts to patented them must be policed. They are not new. If “discovered,” they still cannot be patented because they existed before the discovery.

              Math, however, can be new. I think you will at least agree with me on this.

              Now on penicillin: surely penicillin IS a product of nature and cannot be patented per Myriad.

              Now, if one observes that penicillin kills bacteria, can one claim THAT? Under the theory that such is a preexisting natural phenomena, no.

              So, Myriad in my view must be wrongly decided, but it is now the law.

            5. The footnote quote in full references a mistake that I have identified.

              And please – again with any discussion of Myriad and your attempt to stomp up more clouds of dust – let’s keep our discussion on target here.

    4. Reinier, everyone, for a very long time and even today, recognized that the word “discover” means find something that was there, but previously unknown. Thus the debate on whether Columbus discovered the New World when it appears the New World was already known to the Vikings.

      The term discovery in the Constitution, then, should not be taken to mean anything different that its well understood meaning. Discovery is of a law of nature, a natural phenomena or a principle. But these always existed.

      But patents in the statutes may only cover “new” machines, etc. New and discovery are inconsistent. New must mean, then, some, man made application of the principle.

      And this is exactly the holding of Morse.

        1. 100(a) has read discovery out of 101 as of the date of enactment, which appears to be 1952.

          The statute it replaced, RS 4886 read, in part,

          “discovered any new … machine,” etc.

          There were no definitions then.

          The original statute from 1790 read,

          “discovered any … art, manufacture, engine, machine…” Note, the word “new” does not appear. The limitation is “no before known or used.”

          Now the original statute clearly suggests, does it not, that the original drafters KNEW that a discovery was of something that existed, but was not previously known.

          Thus, in 1790, their could be NO objection under the statutes that the new discoverer of a product of nature could not patent it.

          The word “new” however was introduced in 1793 (by Jefferson, it appears, as he wrote it this statute). But, discovery drops out.

          In 1793 the clause read, “invented any new … art, machine, manufacture, or composition … not known … before the application.”

          It is unmistakable, then, that Jefferson was aware that a discovery was not of something new, just not known. In contrast, invention is of something new.

          “discovers

  11. “Discovery: In general this name can be given to everything that is newly found in the Arts and the Sciences;”

    And. so again, there is no justification for the exclusion of natural laws and products of nature.

    Penicillin was a discovery, newly found, even if pre-existing. The kind of discovery we wish to promote. Penicillin and other discoveries are and should be patentable.

    1. Please refer to my posting on patents4life on that subject. It is plainly arguable that current USPTO guidelines on natural products are not only wrong but plainly and manifestly so.

      1. It is plainly arguable that current USPTO guidelines on natural products are not only wrong but plainly and manifestly so.

        Nice article, Paul. I’m not sure I agree with your statement, however. I think the USPTO’s guidelines are reasonable interpretations of Myriad. It’s the Myriad decision that is problematic, and that’s because of the shoddy way that the Supreme Court (and the parties) developed the case.

        Several examples of this (there are many more): (1) The man-made “isolated” DNA claims at issue were never properly construed so everyone is left in the dark about whether, say, a useful new crystal form of DNA with an otherwise ineligible sequence remains ineligible simply because it is arguably “isolated”; (2) the Supreme Court never bothered to plainly address the obvious question of the eligibility of other man-made “isolated” biomolecules (e.g., peptides with amino acid sequences where the sequences are found somewhere “in nature”, either in peptides of the same length or buried in larger proteins) and what additional criteria (if any) should be used to evaluate their eligibility; (3) does the “logic” in Myriad apply to non-natural sequences in the prior art, i.e., are all sub-sequences in a longer sequence rendered ineligible by disclosure of that longer sequence, even if that longer sequence is not produced “naturally”?

        Lastly, the Court in Myriad seemed to leave a giant loophole unaddressed: even if I can’t claim a particular sequence because it’s ineligible, can I claim all practical applications of that ineligible sequence by reciting its use in conventional methods? That’s a big question right now because that’s exactly what Myriad is presently doing.

        1. “even if I can’t claim a particular sequence because it’s ineligible, can I claim all practical applications of that ineligible sequence by reciting its use in conventional methods? That’s a big question right now because that’s exactly what Myriad is presently doing.”

          I foresaw this exact thing happening 5 or so years ago once the law was made apparent to people trying to patent the ineligible. I’m so glad to see this situation finally playing out in real life so that it is less “purely academic”! And the answer is of course: nobody knows. Or at least: nobody knows for sure. I myself only know, let’s say, for 95% sure.

          My take on it, as the person that birthed this unholy baby is thus:

          If you’re patenting each of the uses one by one, especially in separate patents, then you are likely fine for the most part because you likely will not preempt all uses even with all your claims/separate patents. That is pretty tough to do without the ability to just generically claim “everything having to do with x judicially excepted subject matter”. We’re talking 50-100k in filing fees probably minimum for most excepted subject matter where it would have used to have been a mere 4k. The model quickly becomes economically unsustainable in all but the rarest circumstances.

          That said, if you should so happen to file for so many claims/patents that it becomes readily apparent that you’re just doing an end run around the exclusion by breaking what you would have previously claimed in one big claim down into many little babies then the courts will catch you and invalidate the lot of them. The reason for this later thing to happen is that it is exactly what the exclusion is about in the first place coupled with the court’s insistence in Flook and other cases that they’re not going to let you run an end run around their exception. It’s there, and it has bite, they will enforce it.

          Note though that I say the court will catch you. The PTO will likely not. Not yet anyway, until a court does this first. And even then it will be practically impossible for the office to catch people.

          Whether this subject requires the surpremes to intervene or not in order to have happen will be interesting though. My money is on the following: Federal Circuit refuses to invalidate the lot of them, at least on the grounds that they’re trying to do an end run around the exceptions, due to their patent protectionist nature and overall inability to understand the supremes on the matter of 101. The case then gets a little attention, and then later after a few cases it will go to the surpremes and they’ll be all like “lulz, wrong federal circuit, the lot are invalidated”.

          But I may be mistaken on that being the surpreme’s position. It may be that so long as you break it up into tiny pieces they’ll let you off the hook. There’s a snowball’s chance in he ll that this is the case.

          1. 6, I agree that the PTO is not smart or diligent enough to stop the patenting in violation of Myriad/Mayo, and that the Federal Circuit will do its damnest to undermine both Supreme Court cases as is its historical pattern, so back to the Supreme Court once again for Myriad.

            Regarding the Federal Circuit, we really need to appoint judges to that court who actually respect the rule of law; otherwise we need to push the reset button.

            1. we really need to appoint judges to that court who actually respect the rule of law

              LOL – hypocrisy Ned – you constantly rail against the individual who most reflected what you now call for in the person of Judge Rich – the single best person EVER to understand how to interpret the law since he helped write the law.

              The only reason why you rail so is because your Crusade does not match up with the law as written. You do not want respect for the law as written – you want a different law.

            2. Rich a respecter of the rule of law — after I quoted that dissent in Tarczy-Hornock.

              Just how many other precedents of the CCPA and Federal Circuit did he overrule? Plenty.

          2. If you’re patenting each of the uses one by one, especially in separate patents, then you are likely fine for the most part because you likely will not preempt all uses even with all your claims/separate patents.

            When your “discovery” is a nucleic acid molecule that has, in fact, just two uses — (1) a probe for detecting its complement; and (2) an object for further study using conventional methods (very debatable as to whether that’s a bona fide “utility” for 101 purposes, but Myriad has filed such claims) — then it’s not very difficult to file the necessary claims.

            It seems straighforward and logical that if your ineligible composition is ineligible because it represents an impermissible block to fundamental research, then claims to methods of using the ineligible composition as an object for further study using conventional techniques (e.g., probing, making a vector) must surely also be ineligible. Otherwise what is the point?

            When Thomas wrote that Myriad was in the best position to exploit their discovery of the ineligible DNA molecule (ineligible because it blocked too much further research on the molecule), surely he didn’t mean that Myriad should just go ahead and claim all known techniques of studying or manipulating the molecule. That would be crazy. Is Thomas that crazy? I don’t think he’s quite that crazy. I just think that the issue wasn’t put before the Justices and they hadn’t thought it through when Thomas penned that bit of dicta.

            1. “When your “discovery” is a nucleic acid molecule that has, in fact, just two uses — (1) a probe for detecting its complement; and (2) an object for further study using conventional methods (very debatable as to whether that’s a bona fide “utility” for 101 purposes, but Myriad has filed such claims)”

              Well then it should be a lot easier for a court to invalidate them then. Perhaps we’ll see this play out here shortly and if the situation is as simple as you spell it out to be, then even the federal circuit might get the job done sans supreme intervention.

              “Otherwise what is the point?”

              You’re catching on. And that is exactly why the supremes, if not the Fed Circ will take those claims out.

              “Is Thomas that crazy?”

              Nope.

              “I just think that the issue wasn’t put before the Justices ”

              Exactly.

              ” and they hadn’t thought it through when Thomas penned that bit of dicta.”

              His dicta is fine, you’re just interpreting it a bit, shall we say, too strictly. You already know what will happen to Myriad if they file on all uses. What Thomas is talking about is the standard situation where the ineligible subject matter at the “heart” of the invention so to speak has many many uses and the applicant just claims one. If there are only two uses and they’re both claimed, yeah, they’re going to kill them claims. There is even a non-zero chance that the PTO will catch them.

      2. Paul, I agree about the guidelines and have posted criticisms here. It seems clear after Myriad that the discovery (the utility) of a naturally occurring product cannot be claimed as such, only its beneficial use.

        I find it interesting that Les may not have gotten the message. Or is it that he simply disagrees with the Supreme Court.

        1. Note Les’s response – and it is this dichotomy that brings us to perhaps the largest ever constitutional crises in the separation of powers doctrine. The issue of an appointment power (the traditional C-crises case for the Court), absolutely pales to comparison in importance and scope.

          Which branch has authority to write patent law?
          How deep the rabbit hole of ‘implicit?’

          (Ned, do you recognize the improper bias for leaning towards common law development in an area of law explicitly laid out in the Constitution?)

          1. anon, I will agree that there was no legal justification for Benson and its progeny — or at least none advanced by the court.

            Math, claimed in terms of a programmed computer, is obviously statutory. Math is not preexisting, the basis for exclusion of laws and products nature. When applied, the principle in the abstract problem of Morse disappears. Math is useful, as all acknowledge.

            The Supreme Court simply declared Math excluded — and provided not a hint of legal justification.

        2. As far as purified product (which is usually what is being claimed), it may or may not have been obvious how to purify it. The problem with the genes was that the handling had become utterly conventional. That will not be the case in all instances.

          1. Erik, is it your view that the PTO will still grant patents to purified products of nature? How in the world is that different that “isolated.” Aren’t we talking about the same thing?

      3. Paul,

        Respectfully, your post perpetrates a critical error of exalting one of Judge Learned Hand’s mistakes in dicta: “there is no rule that such products are not patentable” – this too was discussed by yours truly in the run up to the Myriad decision.

        Judge Learned Hand quite simply made a mistake with that comment. That does not change the result of the case, as “different in kind rather than degree” is still the holding that results.

        A lesser mistake you make (lesser as this may not ‘technically’ be a mistake, but your choice of words is too easily prone to confusion) is to focus on “structural differences” as you do with “that what was invented was no more than products of nature without significant structural difference from the naturally-occurring materials.” You are invting confusion in the law with your contra-positive statement. See link to en.wikipedia.org

        The key here is your insertion of the word “significant.” What you seem to be doing is playing semantics with “effectively” and “different in kind.” You assume that only significant structural differences can supply this aspect of “different in kind.” With all due respect to the concept of inherency, that is simply not the case – at least as far as patent law goes. See the cases that Learned Hand himself references in the Parke-Davis case. Modes of treatment may not affect structure ‘significantly’ and may still yet lead to differences in kind, just as ‘significant’ changes in structure may also NOT lead to differences in kind.

        1. anon, I think isolated DNA is different from DNA with all that cell material surrounding it. Yet that was not enough to save the claims. The identify of structure, of the sequence, claimed is what killed the claims in Myriad.

    2. [Congress has the power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

      It is possible to interpret this clause as defining “Inventors” as those who make Discoveries, or as limiting the term “Discoveries” to the products of Inventors (i.e., inventions). The second interpretation would exclude natural laws and products of nature.

      Penicillin wasn’t discovered. Some of its properties were discovered.

      1. Discovery
        Main article: History of penicillin
        Alexander Fleming, who is credited with discovering penicillin in 1928.
        Sample of penicillin mould presented by Alexander Fleming to Douglas Macleod, 1935

        “Penicillin wasn’t discovered. Some of its properties were discovered.”

        I’m not sure what you mean by that, but in any event, the inter-web seems to disagree with you:

        “The discovery of penicillin is attributed to Scottish scientist and Nobel laureate Alexander Fleming in 1928.[15] He showed that, if Penicillium rubens[16] were grown in the appropriate substrate, it would exude a substance with antibiotic properties, which he dubbed penicillin. This serendipitous observation began the modern era of antibiotic discovery. The development of penicillin for use as a medicine is attributed to the Australian Nobel laureate Howard Walter Florey, together with the German Nobel laureate Ernst Chain and the English biochemist Norman Heatley.”

        link to en.wikipedia.org

        “Penicillin is one of the earliest discovered and widely used antibiotic agents, derived from the Penicillium mold. Antibiotics are natural substances that are released by bacteria and fungi into the their environment, as a means of inhibiting other organisms – it is chemical warfare on a microscopic scale.”

        link to inventors.about.com

        “Sir Alexander Fleming was a young bacteriologist when an accidental discovery led to one of the great developments of modern medicine on this day in 1929. Having left a plate of staphylococcus bacteria uncovered, Fleming noticed that a mold that had fallen on the culture had killed many of the bacteria. He identified the mold as penicillium notatum, similar to the kind found on bread. On February 14, 1929, Fleming introduced his mold by-product called penicillin to cure bacterial infections.”

        link to history.com

  12. Well understood, and limited by “useful Arts.” Curtis, Section 8:

    In this country, when the Constitution of the United States was framed, and the clause was inserted giving power to Congress “to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries, the terms “inventors” and “discoveries” had a well-understood meaning, founded not only upon the practice and law of England, but upon similar practice of some of the States before the adoption of the Constitution, which, by special grants in particular cases, often protected new and useful inventions. Accordingly, in the first general patent law passed by Congress, and entitled “An act to promote the progress of useful arts,” the subjects of the patent privileges to be granted were described as the invention or discovery of “any useful art, manufacture, engine, machine, or device, or any improvement therein not before known or used.”

    For what useful Arts meant, click here link to patentlyo.com

    1. It is observed that a principle is “discovered.” But the patent is for the means and method for effecting a result.

      More from Curtis:

      In this inquiry it is necessary to commence with the process of exclusion; for although, in their widest acceptation, the terms” invention” and” discovery” include the whole vast variety of objects on which the human intellect may be exercised, so that in poetry, in painting, in music, in astronomy, in metaphysics, and in every department of human thought, men constantly invent or discover, in the highest and the strictest sense, their inventions and discoveries in these departments are not the subjects of the patent law. Another branch of jurisprudence, of a kindred nature, aims at the protection and establishment of’ property in literary productions, and in some of those which fall within the province of the fine arts. The patent law relates to a great and comprehensive class of discoveries and inventions of some new and useful effect or result in matter, not referable to the department of the fine arts.

      But beyond this, there is also the effect or result produced by the action of the forces of nature, which are for the first time developed and applied, by the new arrangement of the matter in which they reside. The use and adaptation of these forces is the direct purpose of the inventor; it is as new as the novel arrangement of the particles of matter; and it is far more important. In fact, it is the essence and substance of the invention: for if no new effect or result, through the operation of the forces of nature, followed the act of placing portions of matter in new positions, invention would consist solely in new arrangements of particles of inert matter, productive of no new consequences beyond the fact of such new position of the particles.

      However inadequate, therefore, the term may be, to express what it is used to convey, it is obvious that there is a characteristic, an essence, or purpose of every invention, which, in our law, has been termed by jurists its principle[.] … And if this is true, it is easy, and as correct as it is easy, to advance to the position that the discovery and application of a new force or law of nature, as a means of producing an effect or result in matter never before produced, may in some cases be the subject of a patentable invention. When it has been down that a ” principle,” – meaning by this use of the term a law of nature, or a general property of matter, or rule of abstract science, – cannot be the subject of a patent, the doctrine, rightly understood, asserts only that a law, property, or rule cannot, in the abstract, be appropriated by any man; but if an inventor or discoverer for the first time produces an effect or result, practically, by the application of a law, he may so far appropriate that law, as to be entitled to say, that whoever applies the same law to produce the same effect or result, however the means, apparatus, forms, or arrangements of matter may be varied, practises or makes use of his invention, unless the variation of means, apparatus, method, form, or arrangement of matter introduces some new law, or creates some new characteristic, which produces or constitutes a substantially different result. For, in all such cases, the peculiarity of the invention consists in the effect produced by the application of the natural law, as an agent; and this effect is not changed by the use of different vehicles for the action of the agent, provided there is still the same agent operating substantially in the same way, to produce substantially the same effect or result.

      1. And then we have the whole debate about the French Revolution vs. the gradual increase in liberty in England: is the bloody overthrown of established order to be preferred over the gradual increase in rights?

        The French have little of value to teach anybody given the proof that their ideas failed when put to a test.

      2. Thank you Ned. There must be a copy of Curtis in the EPO somewhere. How else to explain where the EPO, from the get go in 1978, got its idea, to assess patentability (non-obviousness) objectively, by enquiring as to the technical effects reported in the application as filed and in fact delivered by the claimed subject matter.

        1. Curtis is available online from the IPMALL Antique website of Franklin Pierce. It predates Hotchkiss v Greenwood in its first edition and is a valuable source of early 19th century legal thought on patent law.

  13. Thanks to Paul Cole for discovering this, not to the noble prince but, rather, to us:

    “The early meaning of discover (fr decouvrir) is shown in Shakespeare’s Merchant of Vencie where Portia is instructing her serevant to reveal the three caskets to the Prince of Morocco:

    Go draw aside the curtains and discover
    The several caskets to this noble prince.”

    For me the Patents Clause in the US Constitution is a reminder that the giving of an enabling disclosure is part of the quid pro quo.

    All this talk of discovering things: but I’m still confused. What we discover in nature is not eligible for patenting, is it?

      1. To my knowledge, SCOTUS has so far not ascribed an express Constitutional justification for the exclusion of natural phenomena from patentability. If the justification is merely one of public policy or a relic of English common law, rather than Constitutional law, then the appropriate check on this supposed error is that Congress amends the law to clarify that natural phenomena are patentable. (Of course, the Constitutional amendment process is available as well.)

        Most of the basic patentability statutes today were borne of case law and merely made statutory after the fact, with very few exceptions where Congress told the courts that they had it wrong (such as 112(f) and the “not negatived” part of 103(a)). Notably, Congress has not shown any interest in reversing – or even clarifying – court precedent on the topic. That tends to indicate that the court decrees in question are, at least de facto, correct.

        1. Adding to the crises was the fact that the 1952 Act removed the power from the judiciary to use the toll of common law evolution to define “invention” (or inventive gist, or any other of a myriad of judicial muck).

          1. Anon, this might be true, but only if one gives effect to the actual words of the statutes: “may obtain… subject to the conditions and requirements (101); “Conditions” (102, 103); “Shall contain … shall conclude”(requirements)(112); and 282 that limits validity to 102/103/112 and 251.

            Who ever thought about actually applying the words of the statute?

            1. Who ever thought about actually applying the words of the statute?

              LOL – Ned, you know my view on that: how deep the rabbit hole does ‘implicit’ run?

            2. AND you do know why the Court runs that rabbit hole: they were keenly aware that their ACTUAL power to define invention through the tool of common law evolution was removed by Congress in 1952.

              Note the admonition to stick to the words of Congress in the 101 cases. Note the admonition against twisting the nose of wax by Stevens (even as Stevens himself would not only twist, but mash that very same nose).

            3. “AND you do know why the Court runs that rabbit hole: they were keenly aware that their ACTUAL power to define invention through the tool of common law evolution was removed by Congress in 1952.”

              You know I just read that there was actually substantial fear before the Graham decision that the court would rule that the “invention” standard was inherent in the IP clause and they would state that any attempt to overrule it by the statute was unconstitutional.

              So yeah, I’m sure they were just quaking in their little booties at the prospect of not controlling “invention” any longer.

        2. APoTU, check Fn. 15 of Flook:

          The underlying notion is that a scientific principle, such as that expressed in respondent’s algorithm, reveals a relationship that has always existed.

          “An example of such a discovery [of a scientific principle] was Newton’s formulation of the law of universal gravitation, relating the force of attraction between two bodies, F, to their masses, m and m′, and the square of the distance, d, between their centers, according to the equation F=mm′/d[2]. But this relationship always existed—even before Newton announced his celebrated law. Such `mere’ recognition of a theretofore existing phenomenon or relationship carries with it no rights to exclude others from its enjoyment. . . . Patentable subject matter must be new (novel); not merely heretofore unknown. There is a very compelling reason for this rule. The reason is founded upon the proposition that in granting patent rights, the public must not be deprived of any rights that it theretofore freely enjoyed.” P. Rosenberg, Patent Law Fundamentals, § 4, p. 13 (1975).

          1. Ned,

            You do realize that the map is not the land and that in fact Newtons’s law did not only ‘not always exist’ but that it is in fact wrong (just look at the very very small and the very very large).

            Newton’s equations are fully man made maps of the land of the universe. They are not the universe.

          2. I note too here a time element introduced by P. Rosenberg.

            There are limitations to such treatises and those limitations should be observed lest one fall into the trap of unintended fallacies.

    1. What about the important plant patents that are clearly “discoveries” of what used to be called “genetic freaks” [with superior properties] of cultivated plants which can be asexually reproduced?

      1. Paul,

        The asexual reproduction requirement was thought to be enough to remove the claimed item from the warehouse of nature aspect.

        1. I thought the requirement for asexual reproduction was to ensure that the plant can be multiplied “true”. If you take a cutting, for example, there is no introduction of the second set of genes which occured when forming a seed. Even with inbred lines (think soybeans), the next generation isn’t absolutely identical to the parent plant (even after 7-10 generations).

          Plenty of plant species reproduce asexually in the vast warehouse of nature!

  14. There are several allusions to discovery in Hamlet which are easy to dig out with text search tools:

    the dread of something after death,
    The undiscover’d country from whose bourn
    No traveller returns, puzzles the will
    And makes us rather bear those ills we have
    Than fly to others that we know not of

    Lifts up the arras and discovers POLONIUS

    I will tell you why; so shall my anticipation
    prevent your discovery

    1. My compliments Paul. What a Quote! Not just “discovery” but also that your “anticipation” will “prevent” my discovery.

      That guy Willy Wobbledagger! What a genius he was!

  15. “The less important discoveries are called inventions.”

    Am I missing something here? Then discoveries is a broader term and includes inventions, so the founders intentionally used the broadest term they could to be MORE (MORE) inclusive.

    Is all integrity gone?

    1. Is all integrity gone?

      Asked by the man who insists that intellectual honesty is not required in posts because this is merely a blog and not a court….

      Oh, the irony.

    2. “Is all integrity gone?”

      It is in the “lets “interpret” the law” to justify the result we want court system.

      1. Prior to 1952, the Court had the authority from Congress to engage in the practice of common law evolution to define the term “invention.”

        Up until that point, the Court could arguable say that its decisions respected the branch of the government that had been Constitutionally sanctioned to write patent law.

        All of that changed in 1952.

        It is time for the Supreme Court to respect the constitution and curb its addictive 101 nose of wax implicit law writing.

    3. “Am I missing something here? Then discoveries is a broader term and includes inventions, so the founders intentionally used the broadest term they could to be MORE (MORE) inclusive.”

      Um yes, if you read the article the basic thesis re “discoveries” is that it is a narrower term than “inventions”. Specifically a “discovery” is somewhat like a super invention that meets all three, or at least one of a certain three, criteria.

      1. Like the MPEP, the article is circular and self contradictory. It does indicate Discoveries are a special class of inventions. Alas, it also indicates there are lesser discoveries called inventions.

        However, which ever side of that verbal mobius you are on, discoveries are patentable and there is nothing to discover but laws and products of nature.

        1. “Like the MPEP, the article is circular and self contradictory. ”

          Um wut? The article begins at a historical reference. It never comes back to the historical reference after starting there. Thus it isn’t “circular”.

          Je sus lester, I thought you were going to ditch the Jester suit at some point?

          ” Alas, it also indicates there are lesser discoveries called inventions.”

          Yeah. A superman is more than an ordinary man, by definition. A man is thus a lesser superman or lesser than a superman. What do you not understand about this? That isn’t “circular”, that’s just a description of a relationship between two things. The one is higher than the other.

          “However, which ever side of that verbal mobius you are on, discoveries are patentable and there is nothing to discover but laws and products of nature.”

          Um, if you’re on the author’s “side” of the “verbal mobius” then laws and products of nature are not even what we’re talking about. They’re categorically not what we’re talking about at all. We’re talking only about “super” what is now called “inventions” proper.

          How can you not understand this Les? Did you just not read the article yet?

          1. What is circular is the logic. In the first case, discoveries are a special class of invention, hence narrower than inventions. In the second case inventions are a special case of discoveries, hence narrower than discoveries.

            As you are one who drafts Office Actions, I understand your confusion with regard to logic and facts.

            1. “In the second case inventions are a special case of discoveries, hence narrower than discoveries.”

              What “second case”? Where is this “second case” set forth? We’re discussing things today under NWPA’s 14 comment. I don’t see a “second case”. It’s just NWPA musing about himself missing something. Which he did and which I informed him of.

              “In the second case inventions are a special case of discoveries, hence narrower than discoveries.”

              I don’t know who told you that “second case”, but whereever you heard it, that is simple false. At least in so far as we’re talking about what is set forth in the article.

            2. The second case, like the first, is put forth in Dennis’ article. The same one upon which NWPA was asking about or commenting on. The second case and is put forth thusly, in italics and with larger margins: “The less important discoveries are simply called inventions.”

              In this second case scenario inventions are a subset of Discoveries.

            3. “The second case, like the first, is put forth in Dennis’ article.”

              In other words, you’re talking about something that isn’t even under discussion in this thread from NWPA’s comment, and you didn’t even bother to notify anyone you wanted to talk about something different.

              Typical.

              /eyeroll.

            4. I’m sorry, isn’t the aspect of Dennis’ article that I named “the second case” a quote from “the article” you are referring to?

              Isn’t it also a translation of a portion of the subject Holy French encyclopedia entry?

              Doesn’t said Holy French encyclopedia entry Discovery: In general this name can be given to everything that is newly found in the Arts and the Sciences;

              The entry goes on to indicate that only special discoveries should be patentable…. but it does not seek to alter that discoveries include the newly found (i.e., the preexisting but findable).

              If this is the definition we are supposed to use in interpreting the Constitution and 35 USC 101, doesn’t the inclusion of “newly FOUND”in the definition indicate a recognition that laws and products of nature (which are old but not known) are findable, i.e., discoverable, and when discovered become patentable?

              Again, I respectfully submit that the only things that are preexisting and therefore discoverable, that are not earlier inventions made by man, are products and laws of nature.

          2. With regard to this diatribe:

            “Um, if you’re on the author’s “side” of the “verbal mobius” then laws and products of nature are not even what we’re talking about. They’re categorically not what we’re talking about at all. We’re talking only about “super” what is now called “inventions” proper. ”

            I understood the article to support my position. Discoveries are patentable. There is nothing to discover but laws and products of nature. Therefore, laws and products of nature are patentable.

            Maybe you should reread this bit here:

            “In a recent article, Professor Sean O’Connor (UW) argues that the Encyclopédie offers a key to understanding the meaning of Discovery as used in the Constitution. See O’Connor, The Overlooked French Influence on the Intellectual Property Clause (2014). His approach is a departure from the more traditional Anglo-centric view on constitutional history. A review of the translation leaves little doubt that the source is important. In particular, the ~2,000 word entry on discoveries begins as follows:

            Discovery: In general this name can be given to everything that is newly found in the Arts and the Sciences; however, it is scarcely applied, and ought not to be applied, except to that which is not only new, but also curious, useful, and difficult to find, and which, consequently has a certain degree of importance. The less important discoveries are simply called inventions.”

            Let me repeat the important bits with a tiny bit of disection:

            “Discovery: In general this name can be given to everything that is newly found in the Arts and the Sciences;”

            See that…newly FOUND. For example, already there in nature, but unknown….then FOUND.

            Then there is this bit of opinion:

            ” however, it is scarcely applied, and ought not to be applied, except to that which is not only new, but also curious, useful, and difficult to find, and which, consequently has a certain degree of importance. ”

            I don’t necessarily agree with this. I think new and not obvious is the appropriate test…. but no matter. Penicillin, a discovered product of nature, meets even this test.

            Discoveries are patentable. Laws and products of nature are patentable.

            1. “I understood the article to support my position.”

              Well then you didn’t do a very good job reading. Or more likely you haven’t actually read the article and simply read D’s blurb.

              “Maybe you should reread this bit here”

              Um I read the article itself, ya arse. Why don’t you try reading past D’s summary?

              “Let me repeat the important bits with a tiny bit of disection:”

              The part you’re quoting from is from the Encyclopedia itself, not the article about the Encyclopedia’s influence.

              Tell you what Lester Jester, let’s reconvene when you trouble yourself to read the article aight? D’s little blurb is simply misleading, and your “dissection” is simply way off in left field. First you have to understand what the quote from the Encyclopedia means by “Arts and the Sciences” which is going to be different than what you’re thinking. Then, you’re simply going to need to read in context and you’ll come to the same conclusion as the author.

              Which notably, does not come even a tiny bit near supporting what you’re saying.

  16. Nobody with the slightest knowledge of American history cound discount the French influence in the early days of the new republic. In that regard Professor O’Connor has performed a signal service by drawing attention to the Encyclopedie and the French influence.

    When I first looked for the meaning of “discoveries” I went to the IPMall Antique facility at Franklin Pierce which has a marvellous collection of old books on patent law which are innvaluable for showing what people thought on the subject of patent law in the 19th century. My conclusions are set out in a footnote to an article in the John Marshall review in 2008 which it may be useful to quote:

    “The term “discover” originally meant expose in the sense of betray; discoverer originally meant “informer.” The modern meaning, to obtain knowledge or sight of that which was not known, dates from 1535. See, e.g., MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 357 (11th ed. 2005). About the time when the U.S. Constitution was being drafted, a range of meanings of the word discover was in existence. See generally WILLIAM HANDS, THE LAW AND PRACTICE OF PATENTS FOR INVENTIONS (W. Clarke & Sons 1808). The following passages are relevant to the meaning of the term “discover”: “the discoverer of the expansive force of steam”; “the publisher of the discovery”; “as the patentee’s reward for the discovery”; “most of the cases which have arisen upon patents, have been decided against the patentees, upon the grounds of their not having made full and fair discoveries of their inventions.” Id. at 5, 7–8, 12.”

    I am not aware of any book on patent law earlier than that by Hinds, and although he wrote some 19 years after the drafting of the US constitution and in England rather than the US his usage provides the best evidence I know of about the contemporary range of meanings for the word. It apparently covered both a finding in the usual sense and a disclosure as in the discovery of documents in modern litigation. The word “writings” was not appropriate for inventors because they might also disclose drawings and models. At the same time, a mere discovery made by an inventor did not suffice for grant of a patent, there had to be a corresponding disclosure to the government which would make the invention available to all when the patent expired.

    The early meaning of discover (fr decouvrir) is shown in Shakespeare’s Merchant of Vencie where Portia is instructing her serevant to reveal the three caskets to the Prince of Morocco:

    Go draw aside the curtains and discover
    The several caskets to this noble prince.
    Now make your choice.

    Arguably we need a word which covers both findings and disclosures. The word “revelations” comes to mind and has resonance, being the title of the final Book of the Bible and having the meaning of making known that which was previously secret or hidden.

    For enlightenment of the meaning of “useful arts” I will return to the article which is not to be digested in a mere hour.

    1. Paul,

      Do you think it not pertinent to draw a parallel thought to the distinction between inchoate rights and perfected legal rights to your thoughts here of a requirement of disclosure beyond that of mere ‘discovery?’

      And to all, note the flavor of Quid Pro Quo that permeates the patent right.

      1. I will confess I had to look up inchoate to find what it means.

        But if Portia’s servant drew aside the curtain to reveal an empty alcove there would have been little point. What was revealed, as we know, is the three caskets, one of which contained her portrait. There was something worthwhile revealed by drawing aside the curtains.

        So I think that there is an implication going beyond mere disclosure that what has been disclosed should be worthwhile, and that would be consistent both with the old British law and the Venetian law on which it was based.

        You are absolutely right, I think, about quid pro quo.

        There was an interesting and recently published paper by Professor Scott Pierce on Common Sense.

        link to hbsr.com

        His concluding remarks are as follows:

        “The fact that, under section 103, the manner in which an
        invention is made is immaterial, combined with general recognition of
        section 103 as a codification of judicial precedent, strongly suggests
        that the statutory test of non-obviousness continues to be the presence
        of a new application of principle embodied in a new functional
        relationship among component parts, albeit expressed from the view
        point of one of ordinary skill in the art.

        Although put in the context of machines, Conder Henry had a
        point that could broadly be applied to all technologies and to all
        patentable subject matter. Henry’s address in 1949 rings as true after
        KSR as it did just prior to the 1952 Patent Act:

        ‘Hasn’t the time arrived when we should sponsor the adoption of a
        positive method of proving an invention in machines by avoiding
        the necessity of establishing subjectively and often by sheer guess
        work what the common man skilled in the art can or cannot do?
        And wouldn’t that method be to proceed directly to the proof of
        whether the patented machine in controversy has or has not a new
        functional relationship between its parts to produce a new
        result?’

        Common sense.”

        I seem to have been saying much the same on this blog for some considerable time.

        1. Indeed, but what was intended is not what resulted — an why? There were people who intended that the new statute provide a complete break from the past, and one of those people was then appointed to the court where his views about the ’52 Act governed its interpretation. How many decisions can you read, penned by this gentleman, that decided the case based on the “statute,” ignoring precedent from before ’52. Why don’t we compile a list?

          Why don’t we begin with a dissent, from Tarczy-Hornock,

          “In order to reverse the decision of the Patent Office Board of Appeals, the majority overrules a line of decisions of this court affirming and applying a rule which is about as solidly established as any rule of the patent law. Beginning with a decision in 1901 of the Court of Appeals for the District of Columbia, the predecessor of this court in jurisdiction of appeals from the Patent Office, the rule that a process which amounts to no more than the mere function of a machine is not patentable has been consistently followed over a period of nearly seventy years. So far as I know, the rule has been generally acquiesced in and accepted, and has been applied in a score or more of cases in this court without challenge.

          The question presented by this appeal is therefore whether this court is now justified in disregarding the rule of stare decisis which all agree is vital to 869*869 the preservation of the uniformity and predictability of the law. In such a situation, the principles by which the court should be guided are clear and well settled.

          In a system of jurisprudence founded upon stare decisis, as our system is, an established rule or principle will not be departed from except in case of grave necessity when cogent reasons require such departure. If a rule of law, well established by decisions, is erroneous, it is still not to be lightly set aside by the courts but any abandonment or alteration of it should be by the legislature, the body charged with the responsibility of making the law and not by us whose only duty is to define and construe it.

          Accepting then, the proposition that a heavy burden rests upon those who go about upsetting thoroughly settled precedent, it appears to me that the reasons advanced in the majority opinion for doing so in this case are wholly insufficient to justify its decision.”

          Time and again, time and again, this man uprooted established precedent to remake the patent system. And what a job he did.

            1. Like what, anon?

              Should I quote more from the dissent. The problem really was whether the scope of the disclosure supported the breadth of the claim as discuss later in the dissent.

              Rich really was bullish on expanding the scope of patent protection, what he not?

    2. Curtis said it well, the discovery is of a principle. Invention is the act of producing a useful result using the principle. However, one cannot obtain a patent for a principle in the abstract.

      His thinking pervades O’Reilly v. Morse and is still the subject of debate at the Supreme Court even today.

      1. I will also remind you here Ned that the term “principle in the abstract” was by no means set or understood. It was a term that was twisted to mean any number of different things by the judiciary and whatever any particular judge wanted the term to mean. This is an historical fact that led the Congress in 1952 to remove from the Court its ability to use common law evolution to define ‘invention.’

        Please stop acting like it was a clear and distinct notion.

        We have fast forwarded into the past and the blame is completely on the Supremes who refuse to curb their power addiction.

        1. Anon, Bull. Curtis provided a full discussion of the concept, and the problem was discussed and decided in Morse. The statutory basis was 112. The CCPA recognized this in Tarczy-Hornock.

          “The “true ground” of that decision [Morse}, the opinion points out, was that Morse’s eighth claim was directed to a principle, not a process, a claim to a power of nature itself by one who had only first employed that power,” quoting, Tilghman v. Proctor, 102 U.S. 707, 26 L. Ed. 279, 8 S. Ct. 894 (1881).

          “Section 112 does require that the specification conclude with claims which particularly point and distinctly claim the subject matter which is regarded as the invention. … The notion of undue breadth in the claims may be consistent with the proscription of claims directed merely to effects or results. See O’Reilly v. Morse, supra. “

  17. Well I have to say, pretty good article. Indeed maybe a masterpiece. Though it runs a bit long and makes you wait to get to the good stuff. Just the tidbit about the word “discoveries” is amazing and makes perfect sense. But the parts about copyright are also mind-bogglingly full of sense and cogency when read by his interpretation.

    I share his notions on “what can be done now” and the solutions likely never being implemented even if we went ahead and adopted his interpretation wholesale. It’s a sad thing, but that would require leadership. And frankly I don’t know if I have 20 years to devote to sorting out this gigantic mess and I wouldn’t ask the same of anyone else. No ordinary run of the mill “leader” in this country would care one bit about this so it would take someone that specifically cared about this to get anything done (ala Ron Paul and his “audit the Fed” campaign).

    I likewise have to second his final line.

    I would like to add one thing though. This discovery (ahem lol) of this French reference likely influencing the Framers and their understanding when writing the Constitution brings up that there is still likely knowledge about the framer’s uses of the terms still unknown to us. Specifically the only thing we’re now missing is “Useful Arts” if we take this guy’s word for it. And though we don’t strictly need a reference for that for the reasons he gives, somewhere there must be a work that fcking defines the term “useful arts” as one phrase, from back in those days. And the framers likely knew about it. It was a fairly commonly used phrase in many books, surely someone defined it as a whole phrase somewhere in definitive fashion.

    If they wrote the words Discovery, Authors and Writings, all knowing what those terms meant and expecting that everyone shared that knowing (and would continue to do so), as this guy argues, then surely they used the phrase “useful arts” in just the same fashion. In a way where everyone would already know, and would continue to know, because it was definitively set down somewhere authoritatively. That needs to be found already for god’s sake, or our sake or whatever.

    All said, I’m probably going to have to look through this newly translated French work that is supposedly synonymous with the Enlightenment when it comes out. Amazing piece of work I’m sure.

    1. More character suicide from 6.

      As I already explained 6, the term Useful Arts is one rung up on the ladder of abstraction and is not a term locked in meaning to the 18th century then-known items.

      You really do not get it do you? You can read the words, but you cannot understand them. The distinction is clear and the separation into the two spheres of Useful Arts and fine arts is repeatedly made.

      Il faut être capable de comprendre ce que le mot «utilité» des moyens. Vos jeux pédants et le refus de comprendre que vous mis à part comme un exemple de quoi ne pas faire. Encore une fois.

      1. “You really do not get it do you?”

        I get what your take is re re. I also read what the guy writing the paper’s take is. I have likewise noted that it seems apparent to me, just as the paper sets forth that there there was likely an authoritative source for the term “discovery”, it is likely that the founders were all familiar with an authoritative source for the term “useful arts”. A source which we currently have no knowledge of. If that be so, whether or not that phrase is a super broad phrase which is “up the ladder of abstraction not locked in meaning to the 18th century then-known items” is entirely up to that authoritative source, if it exists.

        1. Actually you are again wrong – and your words show it. You did not find what you say “is there.”

          I explained to you why.

          Your ‘belief’ system is once again (shockers) getting in the way of you understanding the reality of this world.

          1. “you say “is there.””

            Um I never said “is there”. Literally I never said that anything specifically “is there”. I said that it seems likely that there is a reference to find. Just like we just found a reference for Discovery.

            I know you have an explanation/excuse as to why we don’t have what I’m stating is likely to exist. I’m not interested in your explanations or excuses.

            “Your ‘belief’ system is once again (shockers) getting in the way of you understanding the reality of this world.”

            Oh yes, it was my “belief system” that conjured up this new French reference also. It’s all my “belief system”.

            Jes us you are a re re.

            1. The existence of the French reference has nothing to do with your inability to understand the French reference and my (again – as usual – correct) comments on both the French reference and what you are not seeing in the French reference and my comments due to your belief system getting in the way.

              In other words, you are babbling nonsense with your use of the word ‘conjure.’ You are still blinded to understanding because of your belief system.

            2. “inability to understand the French reference and my (again – as usual – correct) comments on both the French reference and what you are not seeing in the French reference”

              My inability to understand the french reference? There isn’t much left to the imagination or subjective “understanding” tar d, the ref is pretty explicit. That’s why the reference is so good.

              But if you feel like there is something specific that you feel like I or both I and the author of the paper “don’t understand” in the reference itself, please point it out very specifically in the reference what part you’re looking at and let us know specifically where my/our “understanding” is wrong. Your generalized pie in the sky preaching/antagonizing me and others is helpful to nobody.

              “comments on both the French reference and what you are not seeing in the French reference ”

              I have yet to see your comments on the French reference and what I’m supposedly not seeing in the reference. All I see in this thread is you blabbing on about the “useful arts”. The reference explicitly doesn’t even mention the phrase ya ta rd. Please be specific to sections you’re talking about in the reference so that I may follow along and your comments won’t appear to be generalized tar dation/preaching that you are so prone to.

              “In other words, you are babbling nonsense with your use of the word ‘conjure.’ You are still blinded to understanding because of your belief system.”

              /facepalm w t f does my use of the word “conjure” have to do with anything you fuc king ta rd? If you prefer, substitute the word “found” rather than “conjured up”. You’re so fuc king dmb it’s nearly impossible to have a conversation with your dmb as.

              So here, I tell you what, if you can’t stop yourself from acting a dmbas today then don’t bother responding, because I don’t need to talk to you if you’re in full blown dumbas mode.

            3. Your post at 11 rambles on about finding an explicit “Useful Arts” denotation, when you just don’t get it.

              Try reading my posts on the subject – they explain why your ‘search” (and so-examiner-like-keyword search) was a FAIL.

              You really need to be able to think when you read 6.

            4. “Your post at 11 rambles on about finding an explicit “Useful Arts” denotation, when you just don’t get it.

              Try reading my posts on the subject – they explain why your ‘search” (and so-examiner-like-keyword search) was a FAIL.”

              Ok, fine, you think that search will not yield fruit. You could just say so ta rd. No need to spew nonsense for an hour.

              You would also likely have said that searching for a reference to learn what “discovery” meant so that the IP clause makes perfect sense would not yield fruit until precisely yesterday.

              Do you understand why I don’t give a flying fck that you don’t think that such a search for “useful arts” will yield fruit in light of the fact that we just found an excellent source for the term “Discovery”? Or is that too far above your head?

            5. Do you understand why I don’t give a flying fck that you don’t think

              LOL – 6, what you feel is immaterial.

              That you “don’t give a flying fck” is obvious – and why you are constantly in the weeds. The plain fact of the matter is that you “don’t give a flying fck” because your belief system prevents you from taking an objective and rational view. I do not know if it is fear or stup1dity that drives your belief system, but you are driven by it.

              You are such the examiner, mired in your key-word-search lemming march.

              You would also likely have said that

              Not.
              Even.
              Close.
              Bud.

        2. 6, on useful Arts, you did read this: link to patentlyo.com

          On discovery, one can discover the new world, the cure for cancer, etc. But the “least of these” is discovery of new inventions.

          Seen in that light, the inventions are not deemed as important as the discovery of the new world. It is not that inventions must be limited to discoveries on the nature of discovering the new world.

          1. No I hadn’t read that wall of text yet Ned. Because it was a wall of text.

            “It was doubtless to avoid the necessity for this kind of construction that the framers of our legislation selected a term which, proprio vigore, would embrace those inventions where the particular machinery or apparatus, or the particular substances employed, would not constitute the discovery, so much as a newly invented mode or process of applying them, in respect to the order, or position, or relations, in which they are used. ”

            But see, this new discovery of the french book likely being the source the framers were using for “discoveries”, “authors” and “writings” indicates to me that what is quoted above is just some sht curtis pulled from his anus and that there is a reference or references from the olden days that they were all aware of and understood. We likely do not have this reference in our possession just yet.

            It’s precisely that kind of pulling forth from the anus that has led to the disjointed nonsensical “construction” of the IP clause that is mainstream today and which this article presents a more than viable alternative to.

            What also rankles my anus is that people have practically deified the role the founders played in writing the IP clause into the constitution and their supposed deified “intentions”. Anon et al. are not alone in this regard. But when you read what the founders actually wrote on the relevant subjects the bulk of those oh so glorious intentions are nowhere to be seen. This is reflective of the reality that the country was an entirely different place than it is today and folks tend to dismiss those differences or forget about them. It seems more than likely to me that the founder’s intentions were precisely along the lines outlined in the instant article. Or more closely aligned therewith. Limitations on federal power, leaving to the states the ability to implement any additional protections. Remember the times they were living in. State’s rights, limitations on the federal government all that good stuff was huge back in the day. We just got done being under a central government with the king, all the founders and people were not all so ready to jump back into such. Most of the constitution is a big ol compromise between those positions. I see no reason to think the IP clause was any different in light of this new information.

            And if you haven’t read the article yet, please do before you respond. It’s pretty amazin. I bet you’ll probably agree with it more than you might think presently.

            1. We just got done being under a central government with the king

              We also just got done being under a far-too weak non-centralized federation. One of the critical changes was to designate certain things – like patents to be a federal law item – NOT a state law item.

              Had you gone to law school you probably would have learned this under your preemption studies.

            2. “We also just got done being under a far-too weak non-centralized federation. ”

              Meh that was a temporary construct by design and intention.

              But yes, point well taken. We had a weak central gov before we had what we currently have.

              As soon as you can be bothered to read through the article maybe we can discuss the substance of the article instead of you just randomly making an arse of yourself all over the thread.

              “One of the critical changes was to designate certain things – like patents to be a federal law item – NOT a state law item.”

              That’s interesting considering what the article says regarding that point. Maybe once you bother to read it we can discuss what it says.

              “Had you gone to law school you probably would have learned this under your preemption studies.”

              Oh I’m sure I would have learned the prevailing standard theories. I’m familiar with them regardless of lawlschoolin’ it up. That said, one of the major topics this article addresses. Specifically that way back when nobody thought of the IP clause as designating patents/copyright or any other form of IP that congress may wish to implement, as being solely a federal law “item”, and preempting state’s abilities to make IP for themselves. That is a modern understanding, based in large part on the interpretations given to the clause itself, which of course is what his whole article is disputing, and a few other legal changes that occurred. Which is something you would know if you’d read the article. But of course you haven’t so you don’t know your arse from your elbow in this discussion. Go read the article so you know w t f I’m talking about mor on.

            3. Meh that was a temporary construct by design and intention.

              You really do not know the history, do you 6?

              But yes, point well taken

              6 – it is OK that you admit to agreeing with me. Really.

              And yes, it is interesting that the article advocates State system. What is not so interesting is that the article author does not understand well enough why the US did NOT go that way (as so often happens in the Ivory Towers, the authors are so in love with their concepts that something as mundane as facts are just not allowed to get in the way). And no – it was very much clear right from the start that the IP clause preempted state systems. Facts really are not “subjective and in the mind make up anything you want” 6. You need to be able to independently THINK and be able to separate fact from fiction when reading this stuff. Just because you read something on the internet does not mean that it is true. BTW, how did your date go with that French model?

            4. “What is not so interesting is that the article author does not understand well enough why the US did NOT go that way”

              Well it’s a good thing patent jebus is here to help us out! O please savior help us out!

              I’m sure the other lawltard didn’t put enough man hours into looking over the history that you have a passing fascination and familiarity with that you must be infinitely more knowledgeable about the subject than he is!

              ” And no – it was very much clear right from the start that the IP clause preempted state systems”

              Because you say so I’m sure! Yay patent jebus is here to save us!

              Try bringing in some citations or something if you want to refute the author’s work that he put a lot of time and effort into. You seem to discount him as some ignoramus, but he’s surely just as familiar as you are with this early nonsense.

              “Facts really are not “subjective and in the mind make up anything you want” 6. You need to be able to independently THINK and be able to separate fact from fiction when reading this stuff.”

              Tell that to juries.

              But look anon, I have no problem with the “facts” being different than what have been presented in the article. Feel free to cite us up some works as some evidence to establish these “facts”. Of course, if they’re works pulling sht directly from their anus like dear Curtis above, then I’m sure you won’t mind if I consider that fact not so well supported as you do.

            5. Don’t need to be infinitely more knowledgeable – just be right like me.

              Yes, I know that gets you all upset. So sorry (not).

              And the preemption thing is NOT because I say so. It is what it is. My saying so simply is me being right about that fact.

              As far as what you ‘consider” – meh, we already know that you think all of this stuff is “subjective in the mind and open to whatever you want to say.”

              You know, the problem with that – just like Malcolm’s problem with his “this is just a blog and not a court so being intellectually honest is not required” schtick is that you have ZERO credibility even if you by blind chance want to be taken with some seriousness.

              You want to be able to play your games, but there is a price to pay.

            6. 6, I have now had a chance to read the article. Good argument. It appears the question of useful Arts is decided by looking at the MAP of Knowledge. There one see useful arts as a species of Natural Knowledge.

              Math is under Philosophy.

              Business and Economics? See Ethics. It appears that Knowledge of business is a topic of ethics, which in turn is regulated by law (political). Seems right.

              On Discoveries, it accords with Jefferson’s ideas. These are now codified in 103.

            7. “You really do not know the history, do you 6?”

              Yeah boy I sure didn’t know the history:

              “Some Continental Congress delegates had also informally discussed plans for a more permanent union than the Continental Congress, whose status was temporary. Benjamin Franklin had drawn up a plan for “Articles of Confederation and Perpetual Union.” While some delegates, such as Thomas Jefferson, supported Franklin’s proposal, many others were strongly opposed. Franklin introduced his plan before Congress on July 21, but stated that it should be viewed as a draft for when Congress was interested in reaching a more formal proposal. Congress tabled the plan.

              Following the Declaration of Independence, the members of the Continental Congress realized that it would be necessary to set up a national government. Congress began to discuss the form this would take on July 22, and disagreed on a number of issues, including whether representation and voting would be proportional or state-by-state. The disagreements delayed final discussions of confederation until October of 1777. By then, the British capture of Philadelphia had made the issue more urgent. Delegates finally formulated the Articles of Confederation, in which they agreed to state-by-state voting and proportional state tax burdens based on land values, though they left the issue of state claims to western lands unresolved. Congress sent the Articles to the states for ratification at the end of November. Most delegates realized that the Articles were a flawed compromise, but believed that it was better than an absence of formal national government.”

              Man my history was like WAYYYYYYYY off. Except for the part where Benji Frank drew up plans for a temporary governmental construct by design and intention until Congress was interested in a more formal proposal. Whew man, I sure didn’t know my history that day! Good thing patent jebus was here to let me know all about the specific shortcomings in my knowledge of history.

            8. “6, I have now had a chance to read the article. Good argument. It appears the question of useful Arts is decided by looking at the MAP of Knowledge. There one see useful arts as a species of Natural Knowledge.”

              Yeah that’s his psuedo argument as to “useful arts”. And it is ok, but I’m personally more interested in finding a definitive reference common to most Founding fathers that actually defines the term. After the discovery of the term “Discovery” in this reference it stands to reason that we can make a similar discovery for the other term somewhere. I decline to believe that these educated men just pulled in a term that wasn’t formal for this formal founding document for our nation. That’s like them intentionally taking a big ol huge dump right on the whole thing they worked so hard for. Especially if we take the other argument as to the word “Discovery” to mean what the author thinks it means. Because then the only phrase we’re missing is “useful arts”.

              “On Discoveries, it accords with Jefferson’s ideas. These are now codified in 103.”

              Idk about that, 103 doesn’t really come close to limiting things to the definition laid out at the beginning of the article for “discoveries”, though for some reason the author waters that definition down throughout the article.

            9. “You want to be able to play your games, but there is a price to pay.”

              Yes, that price is being incessantly trolled by a retarded psychopath that isn’t ready to acknowledge he is a psycho and who thinks he knows it all.

            10. Thanks for proving the case against yourself, 6 – I am sure that you do not realize that when a majority rejected Ben’s view, that that means that you were wrong.

              .

              Yes, that price is being incessantly…

              LOL – easy way to change that, 6 – post with intellectual honesty. Learn the difference between actual law and your “subjective in the mind make up whatever you want” lawl.

              It is not a novel concept.

          2. No. Other patents can be later issued for the Mississippi and California, if or when they are discovered. If they overlap in time, Chris and Lewis can work out a cross license or some other deal that makes me no never mind. But without Chris’s discovery, Lewie and Clark have no chance to find their discovery…. so…pay the man.

            1. Les,

              With the new software format, it is unclear to whom you are responding.

              I do not want to lose context for your comment – can you clarify?

            2. Thanks Les.

              I will take it that your post at 11.1.1.2.1.6 is an answer to my post at 11.1.1.2.3.1.

              My question at 11.1.1.2.1.5 asked about scope of a patent right coming from a pure discovery (in this instance the discovery of the new world).

              Your reply shows a fault that you have not corrected. You indicated that a sub-discovery (say Mississippi or California) would be available for patent even after a patent for the discovery of the new world was granted.

              This is not correct.

              The discovery was “the new world” and not merely the part of the new world that the eye could see from an approaching ship. Again – the issue of scope is present. You have not answered that issue.

              Under the scenario, Lewis and Clark have no rights. If (playing with time, obviously) Lewis and Clark were setting out to discover during the enforcement period of Christopher’s patent, they would be infringers. If they set out after the enforcement period of Christopher’s patent they would be guilty of attempting to double patent something already patented and now the domain of all men. Remember, patent rights run for a limited time and after that time everything covered by the patent is open to all freely.

              This level of scope can get even more tricky if you think of the world as one connected whole (the land mass of the new world is connected to all other landmasses). Same thought pattern as just stepped through indicates a very serious issue with scope..

              .

              Of course, even as we walk through this thought process connected to ‘scope,’ one still needs to be careful with the nuanced nature of this discussion and remember too that the 101 doctrine is NOT a prior art driven ‘known before’ doctrine, no matter how appealing and easy it is to draw an example that is time dependent. Again, the Universe is not static. The items in the warehouse of nature belonging to all men (the items in the universe) are not static. Remember the limitation tied to the hand of man.

              Of course, this nuance does become tricky when discussing ‘laws of nature’ as one can see from my comment to Ned pertaining to Newton, that what is often called a “law of nature” is in fact NOT a law of nature, but is instead an approximation and tool made by man – a map of nature. The map is not the world. In the past, I have referenced the fact that often what are considered to be laws of nature are shown not to exist at all (re Michelson and Morley and the aether). See link to en.wikipedia.org

            3. anon and Les, good discussion. But, I ask, why is it that the only discoveries recognized by the sovereigns of Europe were discoveries by other sovereigns?

              I think it goes to the idea that the only legitimate government(s) on Earth was the Roman Empire, and the pope as Pontifex Maximus (Supreme Pontiff) could anoint Emperors and Kings under the so-called Donation of Constantine. Regardless that the donation did not exist in fact, the sovereigns in Europe acted as if it did because it gave them legitimacy as being authorized by the last remaining “officer” of the Roman Empire acting with authority.

              Thus any dispute over boundaries could be decided by the pope.

              But, then, this did introduce a problem if the sovereign, England for example, no longer recognized the pope.

              Regardless, one might argue today that the only recognized international government is it UN. On this principle, the UN could authorize patents on discoveries of new territories, and I think that authorization would be respected.

            4. Ned – no way:

              Regardless, one might argue today that the only recognized international government is it UN. On this principle, the UN could authorize patents on discoveries of new territories, and I think that authorization would be respected.

              …is WAY WAY WAY WAY too deep into the weeds.

              National sovereignty still exists. If you attempt to argue that the UN supersedes the Constitution, then you need to come back to this reality.

            5. anon, but you failed to recognize that the theory of one sovereign appropriating territory is on the assumption that the other sovereigns will recognize that claim. This worked at the time (1492) where the theory was that the Pope was above all other sovereigns and could decide territorial disputes.

              The only way the United States could claim territory for itself and for that claim to be respected by other sovereigns is if there is a treaty among those other sovereigns to respect the claim. The only organization that truly represents all the nations of the world is United Nations. Thus operating buying through United Nations is the only way a claim for territory today could be recognized and respected.

            6. operating buying through United Nations is the only way a claim for territory today could be recognized and respected.

              Come back to the real world soon, Ned.

              Not even touching upon your abhorrent lack of respect for individual nation sovereignty, your view would be like allowing that IF the UN wanted to tomorrow draft a world patent law that ALL nations must immediately bow their knee. This is simply nowhere close to the reality of this world.

    2. On “useful Arts,” from Curtis, Section 9. An Art:

      “What is meant by the statute when it describes the subject of a patent as “any new and useful art;” or ” any new and useful improvement on any art,” it is not difficult to understand, if we bear in mind the general purpose of the patent laws, and the other classes of subjects which they embrace. We have just seen that, in order to make a new process or method of working or of producing an effect or result in matter a subject of a patent in England, a somewhat liberal construction of the term” manufacture” became necessary, by which an improvement in the art or process of making or doing a thing was made constructively to be represented by the term which ordinarily would mean only the thing itself, when made or done. . It was doubtless to avoid the necessity for this kind of construction that the framers of our legislation selected a term which, proprio vigore, would embrace those inventions where the particular machinery or apparatus, or the particular substances employed, would not constitute the discovery, so much as a newly invented mode or process of applying them, in respect to the order, or position, or relations, in which they are used. Thus, for example, in the art of dyeing, or tanning, it is obvious that an old article of manufacture may be produced by the use of old materials, but produced by the application of those materials in new relation. In such cases it might not be practicable to claim the article itself, when made, as a new manufacture, for it might, as an article of commerce or consumption, differ in no appreciable way from the same kind of article produced by the old and well-known method. At the same time the new method of producing the article might be a great improvement, introducing greater cheapness, rapidity, or simplicity in the process itself. Again, other cases may be supposed, where the manufacture itself, as produced by a new process, would be better than the same manufacture produced by the old process, as in the different modes of making iron from the native ore; and yet the really new discovery, in such cases, could not well be described as a new” manufacture” or a new” composition of matter,” without a figurative use of those terms which it is desirable to avoid. This difficulty is avoided by the use of the term “art,” which was intended to embrace those inventions where the. particular apparatus or materials employed may not be the essence of the discovery, but where that essence consists in using apparatus or materials in new processes methods, or relations, so as to constitute a new mode of attaining an old result; or a mode of attaining a new result, in a particular department of industry, which result may not of itself be any new machine, manufacture, or composition of matter; or finally, an entirely new process of making or doing something which has not been made or done before, by any process. “

      1. Let’s not forget that Curtis has two limitations:
        1) an immature view of the patent eligible category of process (or art).
        2) an undeveloped sense of how innovation works.

        “Do not be bound by the hoary age of an academic of long ago, one not a writer of law, nor fully knowledgeable of the better understanding of the law or of the subject to which the law pertains” ~ anon

          1. Not at all, Ned – not at all.

            I am just giving the proper credit to the branch of the government whose explicit words are sanctioned by the Constitution with writing patent law (hint: not the judiciary by common law evolution)

            And please stop the implicit attempts to put words in my mouth with the State Street reference – that should be beneath you.

        1. ““Do not be bound by the hoary age of an academic of long ago, one not a writer of law, nor fully knowledgeable of the better understanding of the law or of the subject to which the law pertains” ~ anon”

          Why don’t you just go ahead and cut the crp anon? Just change your moniker to “patent jebus”.

  18. The less important discoveries are simply called inventions.

    The modern man has more doohickeys and thingamajobs to choose from now than ever before. It’s a virtual innovation swamp, teaming with activity. Who can resist a taste?

    1. Who can resist a taste?

      Wrong question.

      Understanding the Quid Pro Quo, and the reason for having a patent system in the first place, the question is “How can we have more use of the patent system?

      Yes Malcolm, more patents (duly granted) is better. That is the nature of the system. That is the intent of the system. Innovation builds on innovation.

      You need to get into a different line of work – one in which you can believe in the output that you supposedly produce.

      Further, the offer to you and your ilk is still open: stop using the fruits of the innovation that you would disparage. Leave behind all of the ” doohickeys and thingamajobs” – as well as the computers and software systems. Put your actions in line with your professed beliefs.

  19. What’s hilarious is that this sort of sophisticated analysis is only possible with our modern ability to translate the huge text, the knowledge that the 3 arguably most important framers in the discussion all knew french and owned copies of the work. People back when they were coming up with the interpretation that is used today probably literally could not have come up with this interpretation. Indeed, at least one writer in the last little while appears to have dismissed this ancient french tome out of hand since they presumed that the founders all spoke only english and didn’t know french.

    1. at least one writer in the last little while appears to have dismissed this ancient french tome out of hand since they presumed that the founders all spoke only english and didn’t know french.

      Clowns pathétiques.

      Ça me rappelle … quand est la prochaine réunion du parti communiste?

      1. En effet. Je ne sais pas à quelle heure ça commence, mais vous pouvez juste vous montrer tout moment, nous sommes à l’abri de anon et sa police capitalistes. En outre, il ne peut pas lire le français donc nous sommes tout à fait sécuritaire.

  20. “:Unwittingly, Prager showed the transition from “art” to “technology” in the patent literature as he used the terms interchangeably with no explication of either.76″

    very interesting that such took place around 1936, right before we’re gearing up for WW2 and not long after WW1.

  21. “Robinson’s massive treatise stood in a class all its own.42 Focusing on common law as the roots of patent law, he built an elaborate “legal science” of fundamental axioms, principles, and deducible theorems for patent law, rooted in the monopolypatent/privilege system of England, that ultimately led him to reject the IP Clause—andeven the Patent Act—as the original or exclusive sources of patent law.43 Thus, the states should play a more prominent role in what would be a predominantly common law system.44 He adopted a unitary approach to the IP Clause preamble.45 But he blamed the Clause for the expectation that patents and copyright should be treated as similar doctrines, when they have different historical and theoretical foundations.46 He used “art”and “arts” only for the useful arts (or as he called them, the “industrial arts”) and not the“fine” arts.47″

    That’s interesting. A scarce 20 years later we start to see “bookkeeping” and some other very much so not “industrial arts” based things popping up in the books listing out the “useful arts”. Note that he wrote in 1890 and that book I cited the other day was published in the first few years of the early 1900’s.

    Which might also explain why Morse had got it into his head to try what he tried to patent. It was a time of great leaps forward in the traditional useful arts, but some people looking to build a business were hankering for that good ol’ government entitlement to help them out.

      1. I don’t think it was the first one, I think it was the first one to go out west that he got the gov on board for. But they got to use it too so meh.

  22. “14 This may have been, in part, because intellectual property during this time was considered a narrow technical specialty at the margins of the law.”

    Obviously. Nobody hardly gave two shts about it back when. Not to mention that if you can barely even write you surely are not going to be making a whole lot of patent apps no matter how many inventions you come up with.

  23. “This Article does not seek to be the last word on the matter, but rather the first.”

    He wants to start a firestorm the likes of which has never been, and never will probably again be seen if it does happen, in IP circles.

  24. Fact is, IP made a lot of sense back when they were proposing it. Nowadays, maximalization has taken over so that the whole thing is mangled beyond all recognition. Should just scrap it and start over like the EPO did.

    1. the whole thing is mangled beyond all recognition

      LOL – oh, the irony and 6 detonates yet another irony factory KA-BLOOEY !

  25. Another really interesting thing from the tome regarding “useful”:

    “The discovery of the squaring of the circle would suppose overcoming great difficulty; but this discovery would not be rigorously useful in practice because approximations suffice,”

    So apparently if approximations suffice, then your new “discovery” (aka super duper invention that meets three criteria) isn’t really a super duper invention that meets three criteria because it isn’t “useful”.

    1. You do realize that the concept of doctrine of equivalents covers this “approximations suffice” thingie, right 6?

      1. The concept of windfall for things you didn’t invent covers “this approximation suffice” thingie?

        Um ok, whatevez you say. But here the article is talking about fundamental limits on what the constitution allows congress to have power over. Not infringement doctrines re re.

        But he seems to walk back the three criteria for a “invention” to be a true “discovery”, at least as a limitation on what the congress gets power over, in his last few sections. I’m actually not sure why he walked that back but I had to skim some the paper was so large.

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