Guest Post by Bruce Wexler and Edwin Mok
From a review of the opinions expressed in the majority decision and rehearing denial in Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, reh’g en banc denied, 809 F.3d 1282 (Fed. Cir. 2015), petition for cert. filed (No. 15-1182, Mar. 21, 2016), and in the briefs filed by various parties in relation to Sequenom Inc.’s petition for writ of certiorari, we can see several different viewpoints emerge with respect to the case. Some express the viewpoint that the case reached the wrong outcome, either because the Court (a) misunderstood the facts relating to the invention or patent, (b) misapplied existing § 101 principles, or (c) both. Others express the viewpoint that the case reached the right outcome, either because the Court (a) correctly applied § 101 principles, or (b) incorrectly did so but would have reached the same outcome under a correct analysis. And there are also some who express the viewpoint that the case correctly applied current § 101 eligibility principles but still reached a wrong outcome, such that § 101 requires a serious overhaul, or should be done away with altogether as a patentability criterion. In this article, we do not take a position on any of these viewpoints. Rather, we write to shed more light on the gatekeeping function of patent eligibility which we see permeating judicial decisions on § 101, making it worthy of careful contemplation when considering any one of the positions expressed above.
Analysis of § 101 patent eligibility generally involves discourse using the term “preemption.” The Supreme Court, for example, has described preemption as driving the exclusionary principle under § 101. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S.Ct. 2347, 2354 (2014); see also Mayo Collaborative Services v. Prometheus Labs. Inc., 132 S.Ct. 1289, 1294 (2012) (“[Our precedents] warn us against upholding patents that claim processes that too broadly preempt the use of a natural law.”). But, at the same time, we see in the cases that complete preemption by a patent claim—in the sense of a claim so broad it just recites an abstract idea or natural phenomenon—has not been the sine qua non of patent ineligibility. For example, we have seen the Supreme Court reject eligibility arguments that merely contend that the claim in fact recites some physical structure, and so does not completely preempt the underlying abstract idea or natural phenomenon itself (putting aside for the moment what that structure is). The late Chief Judge Archer explained why such arguments are unsatisfactory in a dissent he authored over twenty years ago in In re Alappat, 33 F.3d 1526 (Fed. Cir. 1994), in which he opposed the patentability per se of a mathematical algorithm just because the claim referenced generic computing structures. His reasoning was strikingly similar to that appearing more recently in Mayo. As Chief Judge Archer observed, if patent eligibility was necessarily satisfied by reciting any physical structure, then Diamond v. Diehr would have been a much shorter opinion, and Flook and Benson would have come out the other way. Alappat, 33 F.3d at 1557. Alice too would have come out the other way, since some of the claims there recited generic computing structures. See Alice, 134 S.Ct. at 2358-59 (“There is no dispute that a computer is a tangible system (in § 101 terms, a ‘machine’) . . . [b]ut if that were the end of the § 101 inquiry, an applicant could claim any principle of the physical or social sciences by reciting a computer system configured to implement the relevant concept.”).
A way to make sense of this situation is to consider the gatekeeping function that § 101 plays within the patent law, also discussed within the Supreme Court cases but at times in a more subtle way. To understand this function more clearly, we can look to the hypothetical discussed by Chief Judge Archer to explain how § 101, when correctly applied, “lays the predicate for the other provisions of the patent law.” Alappat, 33 F.3d at 1553. This hypothetical illustrates that, but for § 101 eligibility principles, a patent could be awarded for originating a new musical composition—something generally agreed to be outside the subject of patent law—by claiming the song in a generic physical form such as a CD (it was the 1990s, after all). Id. at 1553-54. Assuming the musical composition was original, the physical structure of the CD would contain a unique assembly of pits and lands specific to that new piece of music, and thus it would be a composition of matter that is structurally novel under § 102. And because “the patent law cannot examine music for ‘nonobviousness,’ the Patent and Trademark Office could not a make a showing of obviousness under § 103” (which it would be their burden to do). Id. at 1554. And even if they could examine this question, the PTO examiners ought not to be judging musical compositions for obviousness (e.g., imagine patent examiners charged with determining whether a guitar lick or chord progression is obvious under patent law). The result of allowing through the eligibility gate a claim reciting a CD (or equivalent generic structure) embodying the new song could be patent exclusivity granted for discovering a new musical composition. Chief Judge Archer posited that § 101 acts as a gatekeeper to prevent such discoveries from being eligible themselves for analysis of patentability under the remaining patent law provisions.
The Supreme Court has also discussed this gatekeeping aspect of patent eligibility. In Mayo, the Court rejected the government’s argument as an amicus that “virtually any step beyond a statement of a law of nature itself should transform an unpatentable law of nature into a potentially patentable application sufficient to satisfy § 101’s demands.” Mayo, 132 S.Ct. at 1303. In so doing, the Court discussed the limitations of patent law’s other provisions to judge ineligible subject matter:
We recognize that, in evaluating the significance of additional steps, the § 101 patent-eligibility inquiry and, say, the § 102 novelty inquiry might sometimes overlap. But that need not always be so. And to shift the patent-eligibility inquiry entirely to these later sections risks creating significantly greater legal uncertainty, while assuming that those sections can do work that they are not equipped to do.
Id. at 1304 (concluding that §§ 102, 103, and 112 cannot “substitute . . . for the better established inquiry under § 101”). The Court recognized that the presence of a law of nature in a claim would not be entirely ignored when analyzing novelty and nonobviousness, since it is indeed an aspect of the claimed invention. Id. In other words, the entirety of the claimed subject matter that passes through the eligibility gate is evaluated for novelty and nonobviousness. This operation of the patent law is viewed as supporting a need for an eligibility inquiry up front, which asks whether the invention as described and claimed by the patentee as a whole resides in something more than just the new idea or law of nature itself, so that it is appropriate to allow the claim as a whole to be judged by the remaining substantive patentability provisions. And, from this perspective, we can also understand how very basic questions of a patent’s stated novelty for the claimed subject matter, and the breadth of the claim, can impact how the eligibility question is answered. See, e.g., id. at 1295, 1297-98; Alice, 134 S.Ct. at 2359-60; Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 133 S.Ct. 2107, 2116-19 (2013).
Chief Judge Archer’s hypothetical in dissent wound up playing out in the area of business method patents. The Federal Circuit’s decision in State St. Bank & Trust Co. v. Signature Fin. Grp., Inc., 149 F.3d 1368 (Fed. Cir. 1998), having as a foundation the majority opinion in Alappat, opened the floodgates for patenting new methods of conducting business. Seismic changes in the way banking was done during the late 1980s (see The Big Short for a dramatization of that happening) fostered this eventual patenting explosion. Although these patents generated controversy, it would take over a decade and a half, until Alice, for the Supreme Court to rule that inventions residing in a way of doing banking business were simply beyond the realm of patent law, even where the claims recited generic computing structures. See Alice, 134 S.Ct. at 2360. This decision has dramatically changed how lower courts look at business method patents. See, e.g., Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014) (reversing its own two pre-Alice rulings that had upheld validity, and finding the patents in suit to be ineligible).
Currently, the gateway through which a proposed invention must pass is based on Supreme Court precedent, including the Mayo ruling. In close cases, the § 101 principles may not be so easy to apply, especially since inventions generally speaking are constituted from arrangements of physical forms, which call into operation laws of nature and natural principles, arriving at a useful result. See, e.g., Alappat, 33 F.3d at 1551-52 (quoting G. Curtis, A Treatise on the Law of Patents for Useful Inventions at xxiii-xxv (4th ed. 1873)); cf. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 609-10 (1950) (underlying a claimed invention is its “way,” the physical form; “function,” the principles of operation; and “result,” the effect achieved). Thus, the task of separating what is appropriate for the subject of patent law from what is not appears to inevitably demand a set of core principles, rather than a detailed recitation of rules that neatly answers every case in all technical areas. Historical efforts by courts to construct rigid mechanical tests for eligibility have, after struggling and evolving, ultimately failed. For example, in the late 1970s and early 1980s, the Federal Circuit’s predecessor court developed a series of rules for eligibility, which lengthened in name as subsequent cases recognized the need to address existing inadequacies—the so-called Freeman‑Walter‑Abele test—before it was finally rejected. See, e.g., State St. Bank, 149 F.3d at 1374. As Chief Judge Archer explained, “[w]ithout particular claimed subject matter in mind, it is impossible to generalize with bright line rules the dividing line between what is in substance [a patent-eligible application] versus merely the discovery of an abstract idea or law of nature or principle outside § 101.” Alappat, 33 F.3d at 1554. He observed that the copyright law has long lived with a similar tension in the idea/expression dichotomy (i.e., the principle that the expression of ideas can be protected by copyright but not ideas themselves). Id. at 1554 n.15; see also 17 U.S.C. § 102(b). However, as he explained, “[t]here are . . . answers in every § 101 case.” Alappat, 33 F.3d at 1554. One question that has arisen is whether the Federal Circuit’s more recent decision in Genetic Techs. Ltd. v. Merial L.L.C., Nos. 2015-1202, 2015-1203 (Fed. Cir. Apr. 8, 2016)—which stated (slip op. at 11) that it was effectively bound to its outcome by Ariosa, which was itself said to be compelled by Mayo in the opinion of Judge Lourie (Ariosa, 809 F.3d at 1284)—altogether signals an attempt to return to a set of bright-line rules, or whether these cases instead reflect a genuine acceptance and application of the Supreme Court’s § 101 principles on their specific facts. Either way, the Supreme Court precedents are ultimately bookends for understanding how to apply the law of eligibility in any particular situation.
As we can therefore see, § 101’s gatekeeping role is not distinct from the provision’s policy purpose of preventing undue preemption. A possible way to think about it is that if the Mayo test is properly applied, and the totality of claimed subject matter is allowed through the eligibility gate, then the law of novelty and nonobviousness and claim breadth should, for example, be operating on subject matter in a way that is appropriate under the patent law. This is a way to make sense of the different outcomes in Diamond v. Diehr (finding eligible a claim to an improved rubber-curing process that involved use of a computer algorithm) and Parker v. Flook (finding ineligible a claim to a method for using an algorithm to adjust alarm limits). See Alice, 132 S.Ct. at 2358. From a practice standpoint, thinking about § 101’s gatekeeping function in relation to the totality of the claimed subject matter may in some cases serve as a useful check on understanding how a court may perceive the patent eligibility issue. For example, if the novelty or nonobviousness analyses would devolve into an evaluation of the novelty or nonobviousness of an idea or natural phenomenon itself, without significantly more to that inquiry, that may indicate to the inventor, the patent examiner, or the court that the invention is treading near the borderline of patent-ineligible subject matter. This is a more nuanced understanding than simply regarding Mayo as articulating a “two-part test,” without adequate recognition as to what that test is trying to do.
In our next post, we consider the different opinions in the denial of the petition for rehearing in Ariosa and particularly their expressed commentary on principles of patent eligibility.
Bruce Wexler is a partner, and Edwin Mok an associate, in the New York office of Paul Hastings. Their practice focuses on patent litigation and trials. Mr. Wexler is also an adjunct professor at New York University School of Law, where he teaches an advanced patent course.
Coming in a few days late… but here are some 101 claim analysis problems with the current precedent. (Below, “directed to” refers to claims “as a whole” as it should be)
Claim A directed to CD with new and defined structure and any information stored thereon is not specified in the claim: 101 analysis is as simple gatekeeper with no parsing of claim to identify point of novelty- no problem
Now consider 101 analysis of B1 and B2:
Claim B1 directed to CD with generally known structure but new defined arrangement of “pits and lands” on the medium, i.e. information defined structurally rather than as song or program: 101 analysis is as simple gatekeeper with no parsing of claim to identify point of novelty- no problem
Claim B2 directed to CD with generally known structure and with information (“song(s)” or “program(s)” or “image(s)”…) stored thereon: case law now requires parsing claim to identify point(s) of novelty- PROBLEM: merely reciting the information completely changes the scope of 101 analysis– WHAT?– Since when has the text of a claim impacted the meaning and reaches of a statute? It’s like saying that the speed limit changes merely because of the kind of car being driven. A CD is still a manufacture regardless of whether it is claimed with or without information. Claim B2 should be deemed eligible under 101 and novel under 102. Obviousness is borderline.
HOWEVER, even if claim B2 is deemed nonobvious, a big problem is indefiniteness. The “information” needs to be specified in sufficient detail to clearly define the metes and bounds of the claim, e.g. for a song: arrangement, performer(s), instrument(s), tempo, dynamics… or perhaps define all the required pits and lands on the medium. When the point of sufficient specification has been reached, the scope of protection would be to a CD with that exact information or structural detail. There would be no concern for preemption. Of course, the claim would likely be easily circumvented.
Now consider 101 analysis of claims C1 and C2.
Claim C1 is directed to a new apparatus for crushing stones by dropping a hammer on it: 101 analysis is as simple gatekeeper with no parsing of claim to identify point of novelty- no problem
Claim C2 is directed to a new apparatus for crushing stones by employing the pull of gravity to drop a hammer on it: case law now requires parsing claim to identify point(s) of novelty- PROBLEM: merely reciting “gravity”completely changes the scope of 101 analysis– WHAT?– The apparatus is still a manufacture regardless of whether it employs gravity.
Rick, when everything in a claim other than, let us say, the information content of something, is old and generically claimed, are we to say with a straight face that the invention is “directed to” the admittedly old and generic?
The claim is not viewed in isolation from the spec. If it there established that the invention being claim is directed to information, information processing, or a product or law of nature, it makes no difference how much one festoon’s a claim with the common place but otherwise patentable subject matter.
Actually, The Big Short was about the 2007-2008 financial crisis. The author is likely thinking of Liar’s Poker, also written by Michael Lewis, about his experience on Wall Street in the 1980s.
In the Big Short, there is a recounting and dramatization of the change in banking that took place in the 1980s. That change eventually leads to more and more speculation and risk taking which culminates in the crisis in 2007-2008.
It also recounted and dramatized the history of the financial crisis. The book/movie showed how, in the 1980s, banking fundamentally changed to involve riskier and more speculative investments that made bankers more money. This culminated in the 2007-2008 financial crisis. The article is referring to the changes occurring in the 1980s, and correctly notes that The Big Short dramatizes this.
Greg, I thought the film was good, well made, but boring. Not academy award nomination material.
That said, the film should be viewed by everyone and anyone intending to vote in the next election.
How about the film (the old one) The Paper Chase…?
You might want to pay attention to what the professor says at the hour and six minute mark.
So, to sum up the article: have 101 arguments will travel.
Worth posting on top (as Malcolm is almost on the path to being correct):
Malcolm stumbles onto a nut:
“Either that or the “prior art” tests have to “depend on the subject matter of the claim.””
Just not how you are grasping the situation, Malcolm.
The direct and straightforward comment is one that I have already provided: Wolfgang Pauli’s “Not even wrong.”
I have been consistent – and consistently clear – that you must start within the Useful Arts.
The Fine Arts thus cannot serve as any type of “argument” within patent law.
Your asking someone else to “just get used to it” is more than a bit ironic given how you yourself refuse to “get used to it” for patent protection for the aspect of the manufacture and machine component that is software that deserves patent protection under the law as written by Congress.
“anon” The Fine Arts thus cannot serve as any type of “argument” within patent law.
You can’t establish that a claim is in the “fine” arts without making an argument about (1) what is in the fine art and what isn’t; and (2) how the claimed subject matter relates to those arts.
Everybody knows this and we can all see through your bizarro attempts to avoid discussion of facts that you have hard time dealing with (e.g., the fact that 101 is more than a mere standard for claim drafting, and the fact that element by element “dissection” of claims is necessary for any reasonable subject matter screening paradigm to function properly).
Your asking someone else to “just get used to it” is more than a bit ironic
It’s not ironic at all. It’s 2016 and you’re playing the same silly completely debunked rhetorical games that you did back in 2011 when you were in S0ckpuppet Apocalypse mode.
There is NO hard time on that Malcolm – and never has been.
Your attempted deflection misses – and misses badly.
You do realize that your inadvertent “nut” was that you listed two very different ways of looking at the situation, even as now (here) you want to try to merge those two different ways back into one way (the wrong way) and stick to your old tired and trite way, instead of recognizing that the second way you volunteered is what I have been saying all along.
It’s right there in black and white.
Let’s see you try to deny it.
(I’ll get my own popcorn, thanks / who knows where yours has been)
This blog post is probably best characterized as an advertisement for the two authors. They want your legal business to invalidate patents.
It’s not a very good “advertisement” given its shortcomings….
Way down below in the 3 series of comments, Random posits the following:
“Yup. That’s where the sentiment in Sequenom goes wrong. The judges say “Man this natural phoenomenon is really really non-obvious and really really has utility, so we should want to protect it, and Congress has expressed a desire to protect as much as possible, so it should be eligible” without questioning whether the framers intended patent law to be the mechanism by which the act should be protected.
(emphasis added)
Nobody is questioning that some natural facts or logical proofs are difficult to achieve, that is undoubtably the case. The only question is whether patent law is the intended mechanism for encouraging the difficult path to discovery. In Sequenom’s case, it clearly isn’t. That isn’t to say the inventors shouldn’t be rewarded, and that disclosure cannot be either coerced (through praise or money) or even compelled, simply that it isn’t patent law to do it.”
To which I asked (in a non-tr011ing manner):
What type of “utility” does the item – in and of itself – have?
Is there some form of intrinsic utility? Or is this utility actually in the interaction of that item in order to obtain some end?
Not meant as a slam, Random, just ruminating as to what “utility” is being discussed….
“anon” What type of “utility” does the item – in and of itself – have?
What “item” are you talking about?
It is Random’s quote – ask him.
Not meant as a slam, Random, just ruminating as to what “utility” is being discussed….
The location information (that the fetal DNA is in the mother and not just the fetus) has utility. But knowing locations in general has utility – people know how to dig, but telling them to dig in a certain place because there is oil underneath is useful information. The point is that knowing where to dig may have commercial value for the businessman (since now he has eliminated the chance of having nothing to show for his digging) but no technical value for the engineer who does the digging – he’s performing a conventional drilling method. The same applies here – the knowledge that something can be found certainly overcomes the commercial fear that one might have in going to look for it, but doesn’t teach the technician to perform a test he couldn’t have performed anyway.
Most all non-fictional information you can convey has some level of utility. Even fictional information conveyed has utility if you’re willing to buy that entertainment is a useful thing. But patent law is not a one-stop location where we publish any information in exchange for exclusivity on it. Patent laws protect inventions in the useful arts, not disclosures of locations of raw materials. You allow Sequenom and every person who ever discovers oil or a coal deposit or a cave with gems in it will patent it, and strip the actual land owner of the use of their land.
Random, but the claim is not on information.
Intrinsic – or only when applied…?
Not sure I understand the utility “point” of separating out the engineer either….
Where does this approach come from (no snark)?
I think that you are overplaying your thinking in the last paragraph – I won’t “dive into the already long exchange between you and Gregg, suffice to say that Gregg’s position is clearly better than yours (from an objective legal point of view).
Can anyone explain what’s wrong with this?
“There is no dispute that a computer is a tangible system (in § 101 terms, a ‘machine’) . . . [b]ut if that were the end of the § 101 inquiry, an applicant could claim any principle of the physical or social sciences by reciting a computer system configured to implement the relevant concept.”
In particular, what’s wrong with claiming a principle of the physical or social sciences by reciting a computer system configured to implement the relevant concept?
I have yet to figure that out. The claim itself has an ambit — a computer system programmed to perform the “principle”. What’s wrong with that?
I suspect that 99 times out of 100, it will either be obvious under 103 or else necessarily cabined by 112(a) into a claim so narrow that the applicant will not consider it to be worth the filing fee. As for why it is problematic under § 101, however, I am as befuddled as you are.
It just may cause some future harm by somehow limiting some future innovation….
(Never mind that courts are not allowed – even the Supreme Court is not allowed – to engage in conjectural harm that merely “may” happen)
Or…
Take the words of the Court on their “face value” and realize that through the power of the “Gist” leading edge, that even things that can drop on your foot are now “Abstract.”
(and yes, if you think this is merely the exception swallowing the rule, you would be correct, as the effective outcome of this is that the words of Congress in 101 vanish. Something having the right type of utility and belonging squarely in a statutory category is denied under 101.
There is nothing wrong with it.
The Supreme Court has also discussed this gatekeeping aspect of patent eligibility…
I really like and respect Justice Breyer, but the fact that he could write this with a straight face (and that none of his 8 colleagues thought it necessary to write a separate concurrence to distance themselves from this howler) just goes to show that the Supreme Court just should not be allowed within a country mile of a patent appeal. They do not have the technical chops to understand the cases they are deciding, so they mostly get things 180° backwards, and even when they do reach the result most consistent with statute and precedent (e.g., Monsanto v. Bowman) it is largely by accident.
The amount of §§ 102 / 103 jurisprudence dwarfs the § 101 jurisprudence, and the § 112 written description standard is orders of magnitude more easily applied to cabin overly broad claims. The idea that there is more danger to the patent system from using §§§ 102/103/112 than from using § 101 is so crazy that it is only by virtue of ignorance that one can say this with a straight face. Anyone with even one year’s worth of actual experience prosecuting and/or litigating patents would recognize the patent nonsense (if you will forgive the pun) in the portion of Mayo quoted above.
I would like to make clear that, despite the harsh tone of the above, I really admire our Supreme Court justices. Our republic is fortunate to have such wise and learned jurists deciding 99% of our cases. Patent law is not, and should not be, their main priority, so it is only a very weak criticism when I say that I do not think that they do patent law well.
Still and all, you really need a certain level of science background to decide patent cases well, and none of them have the necessary training. We would all (and “all” here includes the (hopefully-soon-to-be) nine justices themselves) be better served if they stayed away from patent appeals.
Congress needs to make that happen.
Greg: The amount of §§ 102 / 103 jurisprudence dwarfs the § 101 jurisprudence
So? It sure in heck doesn’t mean that it’s more “clear” or easy to apply.
They do not have the technical chops to understand the cases they are deciding
A smart fifteen year old has the “technical” chops to understand most of these cases. Were the facts in Mayo difficult? Maybe for you, Greg. Check that: they were definitely difficult for you.
Shall I repeat them for everyone? Patentee discovers a “new” correlation. Patentee tries to claim a method that recites (1) obtaining data using old tools and (2) thinking about the “new” correlation.
Got that? Now tell everyone, Greg, how 103 works to get rid of that kind of claim when the correlation is non-obvious. Or go ahead and tell everyone why that kind of claim should be permitted.
Step up, Greg! Impress everyone. You’ve only fallen flat on your face ten times already when you tried to play grown-up. Maybe this time you’ll strike gold.
Or not.
LOL
“You’ve only fallen flat on your face ten times already when you tried to play grown-up”
Malcolm’s “version” of both “grow-up” and “fall on your face” are not in any way to be confused with reality.
I claim
A method for making money and restraining competition without any innovation, comprising the steps of:
Reading at least one scientific journal to identify a recent discovery of a preexisting law of nature;
Incorporating said recent discovery of a preexisting law of nature in at least one conventional technology;
Filing the first patent application claiming said recent discovery of a preexisting law of nature incorporated in said at least one conventional technology;
Extracting payment from anyone who practices the claimed subject matter of said first patent application after a patent is issued; and
Suing everyone who practices the claimed subject matter of said first patent application and does not pay after said patent is issued.
LOL — I’ve lost track of the number of times I’ve seen that method utilized, especially in the computer-implemented “arts” but also in the nutritional supplement / energy drink “arts”. It’s a widespread tactic beloved by America’s favorite b0tt0m-feeders.
As if that is enabled–112 fail. Typical nonsense from the antipatent judicial activist.
”This hypothetical illustrates that, but for § 101 eligibility principles, a patent could be awarded for originating a new musical composition—something generally agreed to be outside the subject of patent law—by claiming the song in a generic physical form such as a CD (it was the 1990s, after all). Id. at 1553-54. Assuming the musical composition was original, the physical structure of the CD would contain a unique assembly of pits and lands specific to that new piece of music…”
Even if that were a side effect of a proper reading of 101, so what, what is the harm? Who would avail themselves of an expensive to get, expensive to enforce 17 year patent, when a free 100 year copyright is easily available? And, what if they did get a patent for a recorded piece of music, who what that harm?
“And because “the patent law cannot examine music for ‘nonobviousness,’ the Patent and Trademark Office could not a make a showing of obviousness under § 103” (which it would be their burden to do)…”
Why couldn’t they? The patent office could allege a CD obvious just as easily as it would declare the fish tank and electrodes of a cold fusion reactor obvious.
Les: Even if that were a side effect of a proper reading of 101, so what, what is the harm?
It certainly wouldn’t harm the typical patent lawyer, would it? And patent lawyers are the most important people ever. After all: they know all about patent law! The non-patent lawyers aren’t really qualified to talk about it so who cares what they think.
Seriously, though, it’s not really a question of “harm” (though it wouldn’t be difficult to imagine musicians and composers being harmed by the existence of a zillion patents on “newly discovered” melodies and chord changes). It’s a question of “the patent system wasn’t created to protect music, period, so if your patent claim protects music — directly or indirectly — the system is being manipulated improperly by you.”
Who would avail themselves of an expensive to get, expensive to enforce 17 year patent, when a free 100 year copyright is easily available?
Someone with a bunch of money who wants to see how much they can get away with before they get busted. I know: totally shocking!
The patent office could allege a CD obvious just as easily as it would declare the fish tank and electrodes of a cold fusion reactor obvious.
And then Les and his friends rush screaming to the Courthouse steps because their “Constutional rights” have surely been trodded upon by that mean ol’ PTO.
MM: The non-patent lawyers aren’t really qualified to talk about it so who cares what they think.
Aw, MM, we still care what you think. It’s always good to have another viewpoint, even if it’s from a lay person with a vested interest.
a lay person with a vested interest.
LOL.
I’m a Ph.D. and a patent attorney, iDan. And I teach patent attorneys.
Please keep the laughs coming.
MM: I’m a Ph.D. and a patent attorney, iDan.
Suuuure, you are, MM. There’s really no need to pretend: we’ll still read your comments even if you confess that you’re actually just a lobbyist.
you’re actually just a lobbyist.
Tell everyone how much I get paid and who pays me. You’re on a roll!
LOL
MM: “Tell everyone how much I get paid and who pays me.”
That I don’t know how much you get paid means you can’t possibly be a lobbyist? Clearly, you’re not a logician.
you’re not a logician.
Says the guy who has apparently deduced that I’m a lobbyist.
LOLOLOLOLOLOLOL
Deduced? No, MM… I merely noted that you’re a lay person and said that we would still read your comments even if you confessed to being a lobbyist. Without denying it, you demanded that I produce your financial records, and now appear to be feverishly trying to deflect attention. The layman doth protest too much, methinks.
iDan: you … now appear to be feverishly trying to deflect attention
LOLOLOLOLOLOL How did you arrive at that conclusion, iDan?
I merely noted that you’re a lay person
And what compelled you to note that? Surely you weren’t trying to deflect attention from anything I might have said …
Without denying it
I pointed out that I’m a scientist and a patent attorney.
you demanded that I produce your financial records
???? Are we reading the same thread?
Thank goodness the patent maximalists never resort to blatant blogtr0lling. Theyre very serious people!
MM: “I merely noted that you’re a lay person
And what compelled you to note that?”
That’d be your sarcastic statement that Les’ suggestion would help patent lawyers who “are the most important people ever. After all: they know all about patent law! The non-patent lawyers aren’t really qualified to talk about it so who cares what they think.”
Since you clearly disagree with Les’ suggestion, then just as clearly, you’re placing yourself in the “non-patent lawyers” category.
MM: “Without denying [being a lobbyist]…
I pointed out that I’m a scientist and a patent attorney.”
Neither of those are inconsistent with being a lobbyist. They are, however, inconsistent with your statement regarding non-patent lawyers.
MM: “you demanded that I produce your financial records
???? Are we reading the same thread?”
You demanded that I “[t]ell everyone how much [you] get paid and who pays [you].” Those are financial records, no? So, therefore, you demanded that I produce your financial records. This shouldn’t be that complicated, MM.
And you still haven’t denied being a lobbyist.
Since you clearly disagree with Les’ suggestion, then just as clearly, you’re placing yourself in the “non-patent lawyers” category.
Sure, that makes sense.
Better blogtr0lls, please.
MM: Better blogtr0lls, please.
Perhaps you can lobby for some. 🙂
Because Malcolm’s “blogtr011ing” is a whole lot different…
It’s worse.
And yet….
Given your professed lack of respect for the law as it is, it is downright scary to think that someone somewhere has you teaching patent attorneys, Malcolm.
And my rather low view of academics moves even lower…
But I cannot say as to being too surprised, as having once consider – and deciding otherwise – on a career in academia, I can see the reflections of a lack of meritocracy and leftist indoctrination permeating your short script.
leftist indoctrination
ROTFLMAO
So who are you voting for in November, “anon”? Did you figure that out yet?
LOLOLOLOL
Not sure why you are laughing at a question previously asked and answered…
My vote is still for Sanders, Herr Trump of the anti-patentists.
My vote is still for Sanders,
That’s why I’m laughing.
But he’s a very serious person, folks! And totally not an evasive c r e ep.
1) Ask a straightforward question (apparently, not for the first time).
2) Receive a direct and explicit answer (again, apparently, not for the first time).
3) Call the answerer an “evasive c r e ep”.
¯\_(ツ)_/¯
Hang on, wait a minute, you’re making fun of MM’s “leftist” indoctrination, but you’re ready to vote for the most left leaning candidate for president in recent memory? Lol wut?
But hey, setting the irony aside anon, what attracts you so much to Bernie? (Also, did you hear he wants to take all ur patents away and give them to poor minority students?)
Weighing the issues and looking at the candidates has NOTHING to do with leftist indoctrination, 6.
Trump reminds me of the Right-side alter ego of Malcolm, and Hilary is so Fn deep in the pocket of Big Corp and Big Bank it is not even funny.
You apparently missed the last conversation and see irony where there is none. One issue – even that issue being patents – does NOT a candidate choice make.
anon: Given your professed lack of respect for the law as it is, it is downright scary to think that someone somewhere has you teaching patent attorneys, Malcolm.
He didn’t specify what he teaches them, and at no point implied it was related to patent law. Perhaps he gives cooking classes, or shows how to perform oil changes at home? An adult education center teacher is still a teacher, of course.
You make a good point iDan – He did not explicitly say that he teaches patent law.
I see as well that your “punking” Malcolm with an objectively less offensive manner of posting than Malcolm engages in has been wiped out.
Let’s see if this means that Malcolm’s behavior (that generated that “punking”) will be likewise “watched” and as objectively mirrored, be also wiped out.
So, we agree then, there would be no harm….
we agree then, there would be no harm….
Right! That’s what I meant when I wrote “[I]t wouldn’t be difficult to imagine musicians and composers being harmed by the existence of a zillion patents on “newly discovered” melodies and chord changes.”
Please work on the reading skills, Les.
So, explain how they would be harmed BY A PATENT TO A CD, not cord changes and melodies.
xplain how they would be harmed BY A PATENT TO A CD, not cord changes and melodies.
Gee, Les, although the popularity is on the decline, plenty of arists put their music on CDs (or some other recordable media, including vinyl, and I’m sure you’d be out there advocating for the eligibility of music on signals, right?). Then they sell the media with the recorded content on it. And they don’t have to worry at all about being sued for patent infringement when they do that (unless they transact the sale over the Internet and manage to infringe some crxp biz method of the sort that you also tirelessly defend).
You really need me to break this down for you?
We all know what you and your super intelligent and “innovative” cohorts want, Les: patents on everything that are easier to enforce against everybody. And we all know why you want it.
The great news for all of us is that you and your cohorts are probably the least intelligent attorneys that the US legal market has ever produced.
“You really need me to break this down for you?”
Yes I do. To infringe a patented CD someone would have to manufacture, import or use an unlicensed copy of the CD.
How can that hurt anyone but an infringer?
Answer: It can’t.
Which is why you can’t provide a straight answer.
To infringe a patented CD someone would have to manufacture, import or use an unlicensed copy of the CD.
How can that hurt anyone but an infringer?
Answer: It can’t.
The best and the brightest, folks. Your patent maximalists.
And the wonder why they keep getting hammered? After all, they’re so serious! And so important.
Les: To infringe a patented CD someone would have to manufacture, import or use an unlicensed copy of the CD.
How can that hurt anyone but an infringer?
Answer: It can’t.
MM: The best and the brightest, folks.
You didn’t answer his question, MM.
You didn’t answer his question
You’re right. And you popped up as if to suggest that Les’ question merited an answer.
The best and the brightest, folks. And they work in teams! Super effective.
MM: “You didn’t answer his question
You’re right.”
You can’t answer his question, then? Should you really be claiming to be “educating” people on a topic when you either refuse to or can’t answer simple questions?
Try to believe it, folks: the patent maximalists think they’ve discovered some kind of awesome rhetorical t 0 0 l. “Only infringers infringe that junk patent! So what’s the harm? After all … they’re infringers! Try to answer the question! Ya can’t do it, can ya? Huh? Huh?”
Deep, deep stuff! I’d like to say that it’s beyond parody but if there’s anything we’ve learned over the past ten years it’s that nothing — absolutely nothing — is too inane for these b0 tt0 m-feeders to latch onto like a pitbull puppy latches onto a squeaktoy.
Keep the laughs comin’, people. You’re totally not just tr0llin’ the blog!
MM: “Deep, deep stuff!”
Thanks, MM. Now, would you care to answer the question posed to you, or should we take it by your sobbing accusations of tr0lling that you’re conceding the point?
iDan should we take it by your sobbing accusations of tr0lling that you’re conceding the point?
LOLOLOLOL
That is not an answer either Malcolm.
Why do you find it so difficult to answer?
anon: “That is not an answer either Malcolm.
Why do you find it so difficult to answer?”
I think it’s because MM realizes that he misunderstood the question, but he can’t admit he was wrong.
MM:”
iDan should we take it by your sobbing accusations of tr0lling that you’re conceding the point?
LOLOLOLOL”
Careful their, your PhD is showing. U of A from the sound of it?
Eco-System……..