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.
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.
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.
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.
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.
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.
Max, many things are useful, but not everything is an Art.
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.
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.
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.
“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!
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.
You guys are aware that there is an article that goes along with dennis’s blog post right?
A lot of you guys should go ahead and read it.
link to papers.ssrn.com
Seeing MaxDrei’s post at 27, maybe you should read it again.
There is a basic inconsistency between the word “discover” and “new” machine, manufacture, composition and process. One cannot discover something that did not exist.
Perhaps you missed the fact that the two are joined by an “or” and not an “and“…
(in the conjunctive and not reducing sense)
I am sorry, anon, but “discover” DOES modify “new.”
Yes Ned- a point in your favor.
But how then to incorporate 35 USC 100(a)…?
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.
“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”.
“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.
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.”
“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.
“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.
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…
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.
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.
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.
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.
“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).
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).
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?
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.
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.
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.
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.
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.
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.
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.
“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.
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.
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.
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?
“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.
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?
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.
“Is this really quite so complicated now I have scrolled through the comments?”
Why not take a scroll through the article already?
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.
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.
@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.
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?
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).
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.
“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.
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
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.
“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?
“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.
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.
to clarify: “ that other Justices” is the other Justices that signed up to the Stevens dissent dressed as a concurrence.
“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?
“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.
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.
“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.
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.
“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.
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.
“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.
“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.
For additional thoughts, see link to law.jrank.org
…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.