Guest Post by Prof. Ted Sichelman, University of San Diego, School of Law
Recently, Hal Wegner has been circulating and commenting upon the qualifications of patent law professors. For example, he lists whether patent law professors at the Top Ten IP programs as ranked by US News & World Report are licensed to practice at the USPTO, have an “understanding” of international/comparative patent law, or clerked at the Federal Circuit (see below). According to Wegner, these “credentials” are “particularly” and “uniquely” valuable (in some cases, “essential”) for professors to make “optimum” patent policy reform proposals, especially those concerning PTO practice and international harmonization.
(To provide some background, I provided Wegner a list of names of all professors in the U.S. who currently teach and write about patent law at US News ranked and unranked IP programs, with the understanding that he would circulate the list to his readers. After I sent Wegner my list, without my input, he annotated it (along with other names) with various credentials and provided commentary and alternative lists, such as the one reproduced below. Because I believe Wegner’s analysis is flawed—and given my initial participation—I feel personally obligated to respond.)
Notably absent on Wegner’s list above are any professors from Stanford, Berkeley, and George Washington (GW), the top ranked IP programs in the nation. (The same holds true for many other schools, both in and outside of the top 10. I focus on the top three schools to underscore the problems with Wegner’s approach.) Rather than effectively denigrate these programs, Wegner should have recognized the transformative role that these schools have played historically (for GW) and more recently (for all three schools) in elevating patent law to a prominent place in the academy and developing unparalleled educational opportunities for future patent professionals and scholars.
Importantly, an unintended implication of Wegner’s discussion is that patent law professors without the stated qualifications—particularly, a patent bar registration number—are unfit to teach and write about patent law more generally. For instance, on his e-mail blog, Greg Aharonian recently circulated the comments of an anonymous patent lawyer who referred to Stanford’s Mark Lemley as “one of a small army of law school academics that have built very successful . . . careers studying intellectual property law, especially patent law, albeit without ever actually having practiced before a patent office, done research, or even studied science or engineering.”
These sorts of criticisms are misguided. First, many patent law professors have extensive patent litigation experience, including on-going experience as “of counsel” lawyers, experts, and consultants. Although having patent prosecution experience is clearly beneficial for teaching and writing about patent law, patent litigation is as well and should not have been disregarded. For instance, Wegner and Aharonian presumably know well that Mark Lemley is a partner at a top-tier IP litigation boutique, Durie Tangri, and spends numerous hours on real-world matters. In fact, he has argued or is scheduled to argue three Federal Circuit patent cases so far this year, has argued before the Federal Circuit eleven times (in addition to four arguments in the regional circuits), and has represented another ten parties on briefs in the court. Additionally, he has been counsel for a party in the Supreme Court twice in patent cases (both patentees, incidentally). Lemley has been the lead author or co-author on 40 amicus briefs in the Supreme Court and the courts of appeals. And if that were not enough, his articles have been cited nine times in Supreme Court opinions and 145 times by courts overall. Finally, he’s conducted extensive empirical analyses of USPTO and judicial practice in many academic papers. (Ah, I forgot to mention that he’s represented parties in 85 cases in the district courts, too.)
So Lemley clearly is highly qualified (in fact, uniquely qualified) to write about and teach patent law. Nonetheless, Lemley often is maligned by practitioners because of a proposal he made (along with now Federal Circuit Judge Kimberly Moore) about a decade ago to restrict continuation practice. Yet, regardless of whether you agree with his views—and I often disagree with him—he’s clearly well-situated to write about and suggest reforms concerning PTO practice, the Federal Circuit, the Supreme Court, and the Patent Act more generally. In this regard, Lemley has written over 125 articles, many of them offering outstanding suggestions to reform the patent system, such as his idea for “gold-plated” patents. Lemley should not be unfairly singled out for one unpopular proposal or simplistic mischaracterizations of his views.
In a response to e-mails Wegner received asking why patent litigation was not listed in his chart, including one of my own, he responded that while patent litigation “may well be the best practice background for a patent academic . . . . no patent faculty seeking to make an optimum contribution to patent policy or harmonization can do so without someone on the faculty having expertise in international/comparative and Agency practice.” Wegner’s position is too sweeping. Although it is certainly useful to have faculty members who have prosecution experience—and Wegner’s criterion of simply having a patent bar number is in any event not too indicative of such experience—it isn’t necessary to have such experience to make outstanding policy proposals, even when it comes to PTO practice. Indeed, only a few judges at the Federal Circuit itself would meet such criteria. It seems hard to fathom that Wegner believes that the Federal Circuit cannot make an “optimum” contribution to patent policy, including practices at the PTO, given their lack of such credentials. The same should hold true for academics. And to go one step further—as does the anonymous lawyer’s blanket assertion on Aharonian’s e-mail blog that a professor cannot sucessfully “study,” write about, or presumably teach patent law without having worked as a patent prosecutor or an engineer—is simply preposterous.
Second, many patent law professors, such as UC Berkeley’s Peter Menell and Rob Merges (also absent on Wegner’s chart)—in addition to having extensive prior and on-going experience as experts and consultants in patent litigation matters—have spent numerous hours writing casebooks and patent law practice guides. Rob Merges and John Duffy’s Patent Law and Policy is the leading patent law casebook, and contains extensive commentary from its authors. Merges is also co-founder and Senior Policy Advisor of Ovidian LLC, a Berkeley-based consulting and informatics company specializing in assessing and valuing patent portfolios. That experience is invaluable for the next generation of patent law professionals working in the emerging patent “marketplace.” Finally, because Berkeley—like GW and Stanford—offers separate courses in patent prosecution and patent litigation taught by prominent practitioners, it is hard to see how its students are not getting broad, deep, and practical exposure to patent law.
After co-founding the Berkeley Center for Law & Technology (BCLT) in 1995, Peter Menell soon began working with a team of top patent and other IP litigators to provide an annual four-day intensive training program on IP law and case management for federal judges, as well as numerous other national and regional events. That work led to the development of the Patent Case Management Judicial Guide, a comprehensive treatise that has been referred to as “the bible” for judges and litigators. Menell has also worked with district courts on the development and revision of patent local rules and filed amicus briefs in important IP cases. He also served as one of the PTO’s inaugural Edison scholars. His empirical research on patent claim construction with Jonas Anderson, a former BCLT Fellow—in which they reviewed every claim construction order issued by the Federal Circuit since 2000—was cited numerous times in the Federal Circuit’s recent en banc Lighting Ballast decision. Any comprehensive evaluation of patent law programs would value these qualifications.
The same holds true for professors who write about specific topics in patent law, but do not teach it. For instance, Berkeley’s Pam Samuelson is a world-renowned copyright expert and a winner of the “genius” grant from the John D. & Catherine T. MacArthur Foundation. She occasionally writes about software patents, including for her column in the Communications for the Association for Computing Machinery (ACM) journal, which is mainly read by software and computer science professionals. As Professor Samuelson’s work shows, one need not be an expert on every nuance of the patent system, especially the nitty-gritty of prosecution, to make sound reform proposals.
Other academics are permanent and full-time but not on the “tenure-track.” For example, BCLT Executive Director Robert Barr—who directs the Berkeley IP program and organizes numerous IP events there—is former chief patent counsel at Cisco, is licensed to practice before the PTO, and has long been a leader in the Silicon Valley and national patent law community. Along with John Whealan—former Solicitor at the PTO and another highly-regarded national leader in patent law who directs GW’s IP program—Wegner left Barr off the list.
Finally, many patent law professors have significant industry experience. For example, blog commenters on a recent Patently-O post of mine referred to me as “ivory tower” and as having “a lack of ‘real world’ experience.” In fact, before becoming a law professor, in addition to practicing patent litigation for four years, I founded three tech companies, raising nearly $5 million in financing, including being CEO of Unified Dispatch, a software company that makes innovative speech recognition systems for ground transportation companies. At Unified Dispatch, I designed and oversaw most of the company’s software products, which included writing detailed specifications and managing programmers and other engineers, and was the lead inventor on several patent applications and one patent. As part of that process, I also managed our outside patent counsel for several years during prosecution. Before attending law school, I earned an M.S. in Physics. Since becoming a patent law professor, I’ve consulted and served as an expert on an-going basis in patent litigation matters and related projects. So not only is the “ivory tower” label is inaccurate, it also misapprehends the often close ties between academia and practice.
The same sorts of backgrounds and relevant experience hold true for many other academics who teach and write about patent law. For example, Donald Chisum—yes, the author of the leading patent law treatise—is not registered to practice before the USPTO (he majored in philosophy). Granted, practicing before the PTO is helpful to writing about PTO practice, but would anyone doubt that Chisum is sufficiently knowledgeable to do as much?
I commend Hal Wegner’s efforts in calling attention to the patent law programs and scholars (which is why I assisted him in the process). There are clearly limitations to the US News ranking system, and I agree it’s valuable to see the credentials of those teaching at patent law programs across the country. However, it was irresponsible for him to omit the founders and leaders of many of the most important IP programs on his list of academics with “practical experience” in “key areas” merely because they don’t have a patent bar reg #, don’t have a deep understanding of comparative patent law, didn’t clerk for the Federal Circuit, or aren’t technically “tenure-track.” Patent litigation, industry experience, and other credentials are just as relevant.
Even more troubling is Wegner’s assertion that having someone on the faculty with one of his criteria is “essential” for making “optimum” policy proposals. And most troubling is that Wegner provides fodder for commenters such as those on Aharonian’s e-mail blog that professors without such credentials cannot successfully write about or apparently teach patent law more generally, not to mention commenters on this blog calling professors like me “ivory tower,” when it is simply not the case. Wegner and the commenters should do their homework. Otherwise, their “analysis” remains at best misguided and at worst scapegoating.
Berkeley and Stanford serve—and, historically, GW has served (and soon again will serve)—as model programs for training patent practitioners, scholars, and judges. The same holds true for many law schools I have omitted in this short blog post. Rather than denigrate these schools, Wegner would have done better to highlight the tremendous value offered to students and the patent law community more generally from this talented and highly qualified group of scholars.
Both Sichelman and Wegner make the cardinal error of exalting “qualifications” over “contributions”.
Academics and practitioners alike should be judged on the quality of their contributions. “Qualifications” are, at best, a guide that can help inform some of those contributions.
As to the issue of whether “qualifications” mean anything in regard to who is teaching, or who should be able to teach, there is nothing new about a classroom in which the students are much brighter than the professor. Teaching “qualifications” are, in my opinion, only slightly concerned with substance.
As noted at 3.3.3.1:
To adopt a real estate maxim:
content, content, content.
I don’t think Wegner is exalting qualifications, but qualifications ARE a useful proxy for content. If you do not have a Reg No, you cannot practice before the PTO, and so your experience of patent law is necessarily circumscribed and removed from a large reality.
Lets put it another way: how many science professors at top universities have never worked in a laboratory or done research? I’d guess 0.1%. Even so, the lack of industry experience for many science faculty is regarded as a problem for science education.
Its the same in law. Most of my best profs at G’town were adjuncts who actually did what they were teaching (e.g. evidence being taught by a DC judge).
BAM 751st comment!
You know, if I had the time what I’d do is go through Prof. Ted’s specious arguments. What is really telling is that Lemley and Ted don’t admit the affect their proposals would have on real patent practice. Instead when real patent practitioners tell them what would happen, they dismiss it with there is no proof of that, which is outrageous on its face.
The latest outrage is the proposal to limit any claim that is near functional to embodiments disclosed in the specification rather than the claim being entitled to the scope of enablement for a PHOSITA. This is a perfect example of a square wheeled car being foisted on us with specious arguments and then insulting our dignity by telling us that it will not change patent practice.
This is why academic have no respect from real patent practitioners. And, this is why Lemley would never debate me. Read what Professor Ted wrote. He never addresses real arguments. What he does is he reacts by writing long posts and then dismissing the arguments in the middle of post with absurd conclusory statements. Lemley and Professor Ted are viciously attacked because they attack our judicial system with their position.
You see the real arguments would win. Without their forums to protect themselves from having to address the real issues they are nothing. Their arguments are easily exposed as specious judicial activism.
And just look at some of the things that the great and powerful are trying to foist on us so that they can burn our patent system down:
1) Information processing methods are natural laws.
2) Software has no structure.
3) Claims should be limited to only the expressly disclosed embodiments in the specification.
All three of these are outrageous.
>>”this talented and highly qualified group of scholars.”
Let me fix that for you:
“this talented and intellectually dishonest group of judicial activists that want to make a buck while burning down our patent system.”
It’s not that complicated. Just explain to your wife that the software patent chuck wagon has reached the end of the trail.
LOL – because so much innovation is intricately woven in with software, the “Roy Bean” admonition of ‘end of the trail’ is like really on point….
/face palm
Just explain to your children that we don’t need no innovation in this country ”cause Lemley said so.
The parallel of “Moneyed Big Corp TV Broadcasters don’t have a real legal position, Moneyed Big Corp TV Broadcasters just don’t like it” between the Aereo case and software patent eligibility cases is awesome.
link to news.yahoo.com
Yes anon I think you are right.
While I realize the Aereo case is a copyright case, I am really surprised that no thread on that case has been opened up here at Patently-O.
Other copyright cases (e.g. dealing with exhaustion) have received some nominal coverage, and the Aereo case is highly linked with some of the most delicate patent issues (e.g. data wants to be freeeee!) that the absolute lack of coverage here is a bit surprising.
It seems to me that Mr. Wegner’s comments were specifically directed to whether the Naples Patent Registry was best served by the inclusion of tenured or tenure-track professors. I know very little about the Naples Patent Registry, but I think his point was that by engaging an admission process focused on tenured or tenure-track professors, the process was unintentionally excluding individuals with backgrounds that would benefit the Registry.
Maybe I am misinterpreting – his posts are blithely brief – but a criticism of his comments that fails even to mention the Naples Patent Registry is ill-conceived.
Aharonian’s email on this chumfest is great.
The first time I argued with Aharonian as in 1984. I thought he was an idealist then that didn’t understand our market system.
And I beat the pants off of Aharonian back in 1984 and I could do the same now. His attitude appears to be one of self interest–to my mind. I used to use his board back in the 1980’s.
So, to sum up the entire thread, the great and powerful Lemley won’t come and play nor will his second. The academics think we are mean. Ned denies he is a paid blogger and gets real mean when you say he is. MM is a teabagger. MM has deep scars from being kicked off Gene’s site. 6 has gone completely to the dark side. the academics have a whole dealership full of cars with square wheels they are trying to sell us. NWPA reins supreme over the academics that will not debate him in an open fair debate with standard type of debate rules.
The great and powerful Lemley remains behind his curtain.
NWPA: NWPA reins supreme over the academics that will not debate him in an open fair debate with standard type of debate rules.
You can’t make this stuff up, folks.
Yep, the academic whines but cannot be bothered to chirp in on some baseline facts.
link to acrosstheboreddotcom.files.wordpress.com
Night and anon on a claim to a book with a new recipe: A book is an article manufacture and therefore the claim as a whole is directed to patentable subject matter. Furthermore, the new recipe describes a process which produces a useful result. Therefore the recipe is functional with respect to cooking. It too is eligible.
Night on a mathematical algorithms: information processing reduces entropy, therefore mathematical algorithms are eligible even if performed by a human being.
Anon on bullets, changing the gunpowder in a cartridge used by the gun defines a new gun.
Anon on the music: the player piano with a new song defines a new machine, but the problem is the song is not within the useful arts.
Night on anyone who disagrees with his views, they are trying to burn down the patent system. Furthermore, he feels entitled to engage in libel and slander to support his arguments.
Ned – your apparent absence of any legal understanding to the exceptions to the judicial doctrine of printed matter is most alarming.
Your gunpowder change surely changes the manufacture, but you have to ask yourself if the exception is analogous to the exception that would apply in the exceptions to the judicial doctrine of printed matter.
Know your limitations!
“but the problem is the song is not within the useful arts.”
Must I share the quotes from both Benson and Flook that you never seem to remember to include in the discussions?
“feels entitled to engage in libel and slander to support his arguments.”
Once again Ned, your bias removes the credibility of your concern – by far much worse is Malcolm, whom you seem to admire. It is beyond belief that you find NWPA unacceptable and yet would applaud a far far far worse actor.
Thanks I think anon. But, I think I am a positive actor on this board. I think that any modern thinking person realizes that specious arguments that result in destroying are patent system are far more vulgar and violent than any words I could type. Benson is a good example of vulgarity through specious arguments.
I merely call people out. Ned has presented his argument over and over again here that information processing patents are fine as long as they recite a ROM and then not admitted that that would, in effect, mean the end of all patents for information processing as they would be unenforceable in all but a few cases. Ned is an example of vulgar violent person by presenting specious arguments that may have the weight of affecting real law and policy.
Let’s be real fellas. What I just wrote is all how modern thinkers analyze situations. Politeness can hide emotionally vulgar and violent behavior. Lemley’s assertion that software has no structure is such a case. The square wheel proposition. Lemley’s assertion that a functional type claim should not include the scope of enablement for the specification is vulgar and violent.
Be real.
I completely agree that the harm from purposeful and knowingly specious arguments falls to the unethical side of the fence.
When combined, that type of CRP and the type of CRP that flows from those unwilling to take a conversation to its logical conclusions results in a RunAway-and-CRP-again syndrome.
The shilling and the soap boxing are certainly ‘First Amendment rights.’ No one is really saying otherwise.
The point to be brought up though is that many of the players here are not acting in roles of individuals and thus there are more constraints and pieces to the puzzle than just the First Amendment.
Like it or not, this social media vehicle is a legal platform – and legal ethics do not go away just because someone can post pretty much whatever they want to.
Those of us that are attorneys have higher duties – and not just duties to specific clients.
The gross – and yes even rising to an objective level of abusive – deceit in posting is not and cannot be excused by someone merely mouthing “First Amendment.”
Night, just what is specious about Benson again? I pointed out that Richard Stern urged the MOT and that this is the language from Deener. What is specious about this?
Now you have urged that information processing reduces entropy. I agree. But you do not agree limit your claims to operating on real data and specific applications, but want to claim information processes unapplied to any application. For example, the math in Diehr was applied to a molding process and the math in Alappat to a graphics processor for a display.
This is your debate; but in reality, it is an issue long settled beginning with cases like Morse. It is you, Night, that refuses to argue effectively because you say things like “Benson is specious” without ever explaining why.
Benson is specious for the explicit reason of its copious (and incorrect) dicta.
Does that help Ned?
Oh, and just let me add this, the only principle truly established in Benson was that math is ineligible and that prescribing particular means for calculating is not sufficient to make a useful application.
You hear this repeatedly in the oral argument in Alice in the debate about the abacus.
“only principle truly established in Benson was that math is ineligible ”
Whew – it’s a good thing then that software is not math.
Plus it is a good thing that Diehr came along and showed that a PON of just a computer program is good enough.
😉
Ned, are information processing methods natural laws?
anon, there was no “point of novelty” in Diehr. It was the combination of thermocouples inside the mold with a continuous recalculation of mold process end time.
Night, “are information processing methods natural laws?”
No. But they may use natural laws, such as F=ma.
But as a category, information processing methods are not necessarily trying to preempt laws of nature or mathematical algorithms. Claims to information processes that are more than mere mental processes should be eligible unless there is another reason for their exclusion — such as useful Arts.
That is why Bilski was so troublesome — having eschewed the ONLY legal reason why the Bilski claims could have been declared ineligible, the result in Bilski defies explanation.
But what does this have to do with Benson, which was limited to Math — a “kind” of law of nature in that math expresses a fundamental truth that cannot be the subject of a patent. See, Flook, fn. 15 and O’Reilly v. Morse.
Ned – you cannot have your little pet “PON” only when it is convenient for you.
That’s kind of the point of my sticking this in your eye.
“But what does this have to do with Benson, which was limited to Math — a “kind” of law of nature in that math expresses a fundamental truth that cannot be the subject of a patent. See, Flook, fn. 15 and O’Reilly v. Morse.”
Really Ned – you are going to drag out the footnote in Flook and not include the quote in the body of Flook that I have to remind you of yet again?
Your, um, selectivity is a bit suspicious.
anon, PON is a concept that has to do with functional claiming and perhaps with 101. As you have noted before and the Supreme Court agrees with you, novelty can be in a combination of old elements. See, e.g., Faulkner v. Gibbs where this point is emphasized.
The Diehr court told us what the alleged novelty was — constantly determining the temperature inside the mold and constantly updating the cure time. The claimed mathematical algorithm was (admittedly) old and didn’t even have to be in the claim. I have no freakin’ idea why the PTO pushed this all the way to the Supreme Court. However, the fact that it did illustrated that Benson and Flook were not “clear.”
Steven closed with these remarks in Diehr that truly apply even after Bilski,
“he consistent concern evidenced by the Commissioner of Patents and Trademarks and by the Board of Appeals of the Patent and Trademark Office has not been shared by the Court of Customs and Patent Appeals, which reversed the Board in Benson, Johnston, and Flook, and was in turn reversed by this Court in each of those cases.[46]
219*219 Scholars have been critical of the work of both tribunals. Some of that criticism may stem from a conviction about the merits of the broad underlying policy question; such criticism may be put to one side. Other criticism, however, identifies two concerns to which federal judges have a duty to respond. First, the cases considering the patentability of program-related inventions do not establish rules that enable a conscientious patent lawyer to determine with a fair degree of accuracy which, if any, program-related inventions will be patentable. Second, the inclusion of the ambiguous concept of an “algorithm” within the “law of nature” category of unpatentable subject matter has given rise to the concern that almost any process might be so described and therefore held unpatentable.”
“and perhaps with 101”
Again, Ned – you cannot have your PON when it is convenient for you and then deny it when it is not.
Choose a side.
Stick with it.
Let me know.
btw, “The Diehr court told us what the alleged novelty was — constantly determining the temperature inside the mold and constantly updating the cure time – you need to be a little more critical on this, as it was merely the computer program that provided this – all else was old in the art.
We both already know that, but being upfront and clear on this would be most helpful – especially in the days ahead awaiting the Alice decision.
“illustrated that Benson and Flook were not “clear.””
It that the same clear that I keep pushing on you (you know, to include the “We do not so hold” quote from Benson and the direction from Flook not to say that Flook is anti-software)?
“Steven closed with these remarks in Diehr that truly apply even after Bilski,” – is this more dicta? Given as anything Stevens said in Diehr was from a dissent…
Perhaps you should pay attention to who says what in each case in order to put the quotes in proper context.
anon, Benson and Flook were about mathematical algorithms. The only mathematical algorithms involved in Diehr were stated in one step of a multi-step claim. That single element read,
“repetitively calculating in the computer, at frequent intervals during each cure, the Arrhenius equation for reaction time during the cure, which is
“ln v=CZ+x
“where v is the total required cure time”
There are a number of other claim elements in the claim that do not require a computer, and there are a number of other computer program elements in the claim that do not require math.
The only math involved in the claim was old. It was used before to calculate mold time.
There are a host of new elements in the claim that are not in the prior art. There are new physical elements to measure temperature inside the mold. There is the requirement to constantly provide this temperature to the computer. This goes on and on and on.
How one could say there is a point of novelty in this claim is beyond me. But, one this is for certain, the math was not new.
anon, you and I will agree in principle that Benson did not categorically exclude software.
Moreover, Flook cabined Benson to mathematical algorithms.
It is a good thing then that software is not math (seeing as copyright protection is not afforded to math, but is afforded to software).
🙂
“See, e.g., Faulkner v. Gibbs where this point is emphasized.”
(sigh).
Ned you continue to try to draw law from an abrogated case – in this instance, by leaning on Faulkner and some comparison in that case to Halliburton.
Since Faulkner was decided in 1949, that case cannot lend support to your attempt to deny what Congress did in 1952.
I think thou doesth protest too much.
“6 has gone completely to the dark side”
I wouldn’t say completely. After all, I still feel like it’s 50/50 that congress should or should not grant software patents. It’s just one of those things that should be sent to the reps of the people since it will affect so many people.
“I still feel like it’s 50/50 that congress should or should not grant software patents. ”
(sigh) they already have 6. Your belief system just gets in the way of you realizing this.
Well, 6, if Congress passes a law then I will be fine with it. But, these “professors” that are raking in millions of dollars burning our system down and selling the ignorant masses specious arguments are not OK with me. I don’t like them. I think they are vulgar and violent people.
And please, children, do I have to cite books on analyzing political arguments to get you to understand that knowing presenting specious arguments by a professor to get a political agenda through is a vulgar and violent act against our judicial system.
“Well, 6, if Congress passes a law then I will be fine with it.”
And so would I. The issue is of course the status quo being the way it is. For both of us actually. I don’t think that software, as a category or things in existence, should even be considered in the big 4 since software itself is fundamentally a different thing than the things mentioned. But the status quo is that they consider it such anyway, and so I, and recently the courts, take other ancillary measures. And we’re taking more ancillary measures year by year. And of course on the other hand, you’re upset with the status quo where they’re starting to bust people for claiming abstract ideas, signals, or invalidating claims because someone could carry out an analogous process by hand. Those happenings of course cuts a big ol chunk into your bread and butter. And so you take ancillary measures.
I submit that doing those sorts of ancillary things on both sides distracts from the overall issue, which should simply be tossed to congress at some point for their explicit approval or disapproval. Once that is done, then we can all let the whole issue be done with and we wouldn’t have all these ancillary matters to deal with.
The only way that I see this happening though is for the supremes to get tired of the game playing and invalidate them all to force the hand of congress. Do you see any other real way forward to getting congress to have an explicit say?
I don’t think the SCOTUS will do that. Actually, 6, I agree with you that this is a giant waste of time to fight about software. Congress should make the law clear. Not sure what is going to happen, but my gut is telling me that Lourie will get a much-deserved smack down by SCOTUS.
LOL – “I don’t think, I don’t feel, I am taking ancillary measures…”
Better idea: accept what the law actually is and do your Fn job.
Tr0llb0y: Maybe you want to next visit my magic box full of electrons, protons and neutrons – since you seem to want to think that “it’s all in there” and since the items themselves are all “in there” and the mechanism for combining any electron, proton and neutron is “in there,” then all combinations are de facto “in there.” Can you grasp the similarity that must play forth with how you want your “facts” to be…?
The best part of Tr0llb0y’s relentless nutsanity and strawman-molesting is that he really believes he’s “winning.”
Of course, when these “arguments” blow up in his face in court (to the extent anyone is desperate enough to make them in the first place — thankfully most state bar’s offer all kinds of mental health services), then he and his buddies just pump up the ol’ smear machine — “It’s all those meddling academics without reg numbers!!!” “Lemley is paid by someone!” “Communists hate patents!” “Colleen Chien is an alien from another planet!” etc etc etc
It’s super funny and kinda sad at the same time. Amazing that these folks keep right at it, after all these years, when it’s perfectly clear that a lot of people are closely monitoring their endless failures, their transparent self-serving “arguments”, and desperate attempts to avoid engaging with reality at all costs.
NWPA: I drink the elixir of truth and integrity.
Your patent teabaggers, folks. They never fail to amuse.
MM, It’s the subject matter protected by the claims that determines eligibility, not the applicant’s (or the defendant’s) characterization of the subject matter as a new “machine” or a new “process.”
No doubt. With programmed computers, the issue is whether the computer is new – otherwise the claim really is to a method and not to a new machine.
This is why I found Perry’s concession that the system claims at issue defined a “improved” machine. Kennedy pounced on Philip’s opening statement to this effect and had him repeat it.
I daresay, a new machine is eligible. I think Perry might be in deep shirt on the system claims.
Yeah, super “deep shirt”. 9-0 all claims Ned.
LOL – care to venture a rationale for that belief, 6?
This is why I found Perry’s concession that the system claims at issue defined a “improved” machine.
I don’t think there was any disagreement as to whether Prometheus’ claims “defined an improved process”.
So what? 9-0 tankage.
So, basically what people are telling me is that this entire post and thread is because I am mean to the great and powerful Lemley.
Let the great and powerful Lemley speak for himself. I will cover my ears for I know his voice carries the weight of a tenured Stanford Professor and multi-million litigator as well as a national celebrity. I will gladly engage in a real debate on one of the topics that I claim indicate that he is intentionally burning the patent system down. I challenge you.
Even before any such debate is contemplated, let’s see the parties (all of the parties) come to an understanding of certain basic underlying facts:
1) Software is a manufacture and machine component, made by man for a utilitarian purpose.
2) Upgrading a machine with the introduction of new software creates an improved machine.
3) Software is equivalent to firmware and is equivalent to hardware.
Facts are facts people – if you cannot start from this baseline, one must wonder why.
Anon, I must admit I envy your self-assuredness. However, declaring in advance the 3 hottest debate points to be off-limits in a proposed debate isn’t really being, to use one of your favorite phrases, “intellectually honest”, is it?
As you are undoubtedly aware, there is a significant number of computer and legal professionals that consider your “facts” the 3 most egregious computer-related mistakes in decisions (or dubious interpretations of those decisions) from a series of overly patent-friendly justices.
Your position that those findings are beyond question or debate leaves no room for the possibility that those earlier erroneous (in some people’s views) decisions could be overturned, or re-interpreted or clarified in a way that conforms more closely with what I would term “reality” (a.k.a. “facts”, outside of your courtroom-centric domain):
1. Software is an abstraction without structure.
2. Adding software to a computer is nothing more than making a different set of data (including a sequenced list of operations, which is just more data) available for arithmetic and logical processing by the machine. The machine will do what it was designed to do: operate on the data, potentially yielding different data.
3. Firmware is a subset of software, and hardware is the invention that processes data.
“… if you cannot start from this baseline, one must wonder why.”
Perhaps because one is a computer professional, and is more harmed than benefited by the expansion of patents into the simple abstract manipulation of data, especially so given the breadth and incomprehensibility of claims being approved by a PTO that is being increasingly forced into the unenviable position of reconciling your “facts” with my (and many others’) version of “reality”?
Perhaps.
(sigh) in pieces as something is getting caught in the filter…
Dobu,
“declaring in advance the 3 hottest debate points to be off-limits in a proposed debate isn’t really being, to use one of your favorite phrases, “intellectually honest”, is it?”
First, I am not declaring these “off limits” as much as I am asking for facts to be recognized as facts.
You will note that not one single anti-software patent advocate – not Malcolm, not Ned, not 6, not even Prof. Sichelman even bothers to address any of these points (they treat them as off-limits – but from a stick-your-head-in-the-sand manner.
Anon, you know full well that your “facts” are in dispute.
Your offer of a debate that only permits concessions regarding the most-disputed topics leaves nothing to debate. You are stacking the deck. In effect, “I will debate you, but only if you let me win before we start”.
Again, I ask: Do you really think this is “intellectually honest”?
Regarding your cite to other software patent opponents: Sorry, Anon. I’ve been lurking long enough to have witnessed many of their attempts to discuss these topics with you. I do not expect to accomplish what they couldn’t, but I could not bring myself to leave your alleged “facts” unchallenged.
Again, I ask: Do you really think this is “intellectually honest”?
anon believes he is the only “intellectually honest” person alive, except for the tiny handful of people who agree with everything he says.
He goes apeshirt because he can’t get his opponents to agree that
“software is structure” or “software is equivalent to hardware,” which somehow “proves” that he’s right and everyone else is wrong.
Meanwhile, try asking him to show you an example of an eligible and enforceable claim reciting an old step and a new thought and he’ll skitter under his rock so fast you’d think he saw a mountain lion.
You know he’s really scraping the bottom when he starts using a lot of bold and italics and using weirdo phrases that he dug from some moldy book in his grandpappy’s baseement (“elsewise”? LOL).
Nonsense Dobu – you merely claim that such facts are open to debate.
They are not. Facts are what they are. To be intellectually honest is to accept facts as they are.
If you want to dispute a fact, then your chore is very great indeed. Have at it. “Challenge” is one thing – that you have not yet done.
“believes he is the only “intellectually honest” person alive, except for the tiny handful of people who agree with everything he says.”
You have attempted that spin before Malcolm.
It did not work then either.
These facts are a starting point – you have not yet showed up at the starting point.
Still waiting for you Malcolm.
“You know he’s really scraping the bottom when he starts using a lot of bold and italics and using weirdo phrases that he dug from some moldy book in his grandpappy’s baseement (“elsewise”? LOL).”
They have some free classic novels etc. from back in the day on google play. I’m presuming that he’s probably been dipping into those.
I am the one chasing you, Ned and 6 all the time
See “meds, adjusting” upthread.
Still no definition from you on “explain”…
Second, the fact that you appear to think of these things as “decisional” as opposed to factual shows that you do not grasp the fact that these are facts. I do recognize that legal concepts are applied to various facts, but that does not change a fact into a non-fact – no matter how tightly one clenches their eyes.
Anon, is there no room in your world view that someone who disagrees with you might actually be in the more correct position?
If we’re taking court decisions out of the discussion, what makes your “facts” more valid than my “facts”? (And please don’t attempt the silly circular argument, “Because mine are facts, and yours aren’t.”)
(sigh) again Dobu – it is not a matter of someone disagreeing with me.
Feel free to disagree with me all you want.
On the other hand, you are not free to disagree with facts.
There is nothing circular by pointing out the fact that “software works.” You have shown absolutely nothing to your “fact” – what exactly is your “fact” that you think is indeed a “fact.” You are on the advancing tautologies of “abstract” with no definitions of what you mean.
And there is the silly circular argument, and a straw man bonus argument, to boot.
I posit no facts. The discussion was about disingenuous debate offers.
“I posit no facts.”
LOL – check again and the words you used.
(it’s easy – the comments are captured in black and white. Do you need me to hold your hand and supply you your own comment numbers…?)
Anon,
You replied to my post, numbered 54.1.1.2.1, which consists of two simple (as yet unanswered) questions and one simple (ignored) request.
No facts.
(Stipulated: my version of facts were in evidence in an earlier post, prior to your splitting of the topics into sub-threads.)