Patently-O Bits and Bytes

  • Bilski Watch: Dissenting & Concurring Opinions: In discussing the timing of Bilski v. Kappos, several commentators suggested that the delay might indicate (1) that the court will issue multiple opinions (concurrences or dissents); or (2) that the decision will be especially long. 
  • PatentLawPic999Based on the 18–previous patent decisions, neither of those suggestions hold much water. Namely, the argument-to-decision delay appears to be negatively correlated with the number of dissenting and/or concurring opinions. Likewise, the number of pages in the decision does not appear to have any correlation with the delay.
  • New Data: Google is now providing free bullk-downloading of USPTO data: http://www.google.com/googlebooks/uspto.html

68 thoughts on “Patently-O Bits and Bytes

  1. 66

    Good response there IANAE. There is something wrong with equating “moral rights” to the word “own.”

    As to the “colonial imperialism” aspect of Luke’s response to, I suspect what he is objecting to the whole concept of property rights. Obviously, therefore, Luke must be socialist of some sort. It would be interesting to find out how a socialist would create a workable intellectual property system without using the concepts of property at all.

  2. 65

    “yawn”

    Mooney must have had a late night in the basement. Making skin lamps is not as easy as it looks.

  3. 64

    And thus was colonial imperialism founded.

    It’s not even 10 AM yet, but I’m prepared to give that one the “non sequitur of the day” award.

    This is of course recognized in intellectual property law, with concepts such the morale rights half of droit d’auteur.

    Moral rights are more like a civil right than a property right. They were designed to be personal to the author, in direct contrast to the property part of copyright that you can freely license or sell.

  4. 63

    @Pook, I have seen Taxi Driver, heard Rant in E-Minor and read nearly the complete works of HST. Not sure what the correlation is.

    @RWA The fact of the matter is “He”n is used generically for people because men were in charge. I have no problem with using she in a general or unknown sense and would prefer the creation of a gender neutral pronoun.

    Words actually matter and exert influence beyond their immediate usage.

  5. 62

    Quoth IANAE

    “One of the most important aspects of owning something of value is being able to sell it, in whole or in part.”

    And thus was colonial imperialism founded.

    For many societies the concepts of being able to own something and being able to dispose of it and not in any wayl linked.

    This is of course recognized in intellectual property law, with concepts such the morale rights half of droit d’auteur.

    Cheers, Luke

  6. 60

    …next thing you know you’ll be worrying all about gay marriage… etc

    Man, I bet you people have never even seen “Taxi Driver”, much less heard “Rant in E-Minor” by Bill Hicks. It’s like Hunter S Thompson never existed. When exactly was it that the USA lost its very soul?

  7. 59

    Fixed.

    (We are well overdue for some good conversations about sock puppets).

    Posted by: ping

    *yawn*

  8. 58

    “I would say that Robetr’s [sic] example is a perfect poster child for patentability, barring 102 or 103 hurdles. What could be more useful than a machine that would read for you?”

    I don’t think you caught C.J. Robert’s example correctly. In his example the computer didn’t read for you. He was saying, why should looking up a phone number on yellowpages.com be patentable, while looking it up in the regular phonebook is not.

  9. 56

    next thing you know you’ll be worrying all about gay marriage…

    Only people like you worry about gay marriage. It doesn’t bother me at all.

  10. 55

    “If the male pronoun can refer to a person of unspecified gender, why not the female?”

    Gawd, more trademark Mooney, next thing you know you’ll be worrying all about gay marriage… or crack pipes and toilets.

  11. 54

    I’m quite certain I made my predictions already in dozens of previous comment threads about Bilski under dozens of pseudonyms

    Fixed.

    (We are well overdue for some good conversations about sock puppets).

  12. 53

    Come now 6 & MM make your predictions.

    I’m quite certain I made my predictions already in one of the dozen previous comment threads about Bilski. I don’t remember exactly what they were, but I’m sure they were reasonable and accurate. ;)

  13. 52

    O I’m well aware of your bs way of thinking about it. Like I said, a lawlyer concocted scam.

    What do you consider realty, then? Realty is no more than a legally recognized right to do what you want inside a certain defined piece of land, and to keep other people off it.

    What do you consider a truck? Sure, it’s a tangible object, but your actual property right in it is a complete legal fiction. If I key your truck, the only reason you can sue me for damages is because you have an abstract legal right of property in that tangible object.

  14. 51

    “A right to exclude is a chose in action, which is a (relatively abstract) form of property.”

    O I’m well aware of your bs way of thinking about it. Like I said, a lawlyer concocted scam.

  15. 50

    6: Just as a member of the public at large I feel ripped off in any “patent bargain” that involves rights ever going to anyone other than the one that invented it, or at least disclosed it. Assignments, as much as they’re supposed to be a good thing, feel to me like nothing more than a cancer, especially if they go to any entity other than the one that provided the means to make the invention in the first place.

    One of the most important aspects of owning something of value is being able to sell it, in whole or in part. Whether you assign it, license it, or borrow money against it to build a factory, those are all different facets of the same d3.

    If you had an empty but reasonably useful plot of land in a good location, but didn’t have the money to build something profitable on it, what would you do? Sell it, probably.

    6: A right to exclude is not a truck.

    It’s a series of tubes!

    A right to exclude is a chose in action, which is a (relatively abstract) form of property. It’s not all that different from the right to exclude other people from your land, or from your car. Legal and contractual rights of all kinds can be seen as property. You can even borrow money giving accounts receivable as collateral, which collateral is nothing more than a contractual right that you may enforce through judicial process.

    6: What’s even more hilarious is that assignment of rights in this fashion is, ironically, probably in the grand scheme of things just one more way for the rich to stay rich and the poor to stay poor for all but a very select few of the participants.

    The inventor does get to name his price. If he names too low a price, he’s destined to stay poor, but that tends to be the lot in life of people who sell their stuff at too low a price.

    6: In other news, teachers in DC will soon make more money than I do,

    It’s about time someone started paying schoolteachers a living wage. Some of them have had to resort to other ways of making a living.

  16. 49

    “Is it not an integral part of the American Dream that an independent inventor should be able to patent her inventions, license the rights to a manufacturer and thereby make her fortune, secure in the knowledge that the patent rights will protect her from being ripped off left, right and center?”

    It might be for some independent inventors. For the rest of us, not really. What of it?

    “And if that is true for the original inventor, it must equally be true for her successors in title.”

    Hardly. Just as a member of the public at large I feel ripped off in any “patent bargain” that involves rights ever going to anyone other than the one that invented it, or at least disclosed it. Assignments, as much as they’re supposed to be a good thing, feel to me like nothing more than a cancer, especially if they go to any entity other than the one that provided the means to make the invention in the first place. Giving a right to exclude to someone who then passes it on to someone in a position to “leverage” it against the market just seems fundamentally wrong. The patent bargain is with the inventor for disclosure, not with whomever has enough money to buy his rights so that they can extort money out of the market. The whole thing is a huge lawlyer concocted legal scam. And yes, I’ve read what many of the early early cases said on assignment and I’m still not convinced of the court’s reasoning.

    A right to exclude is not a truck. It’s not a house. It’s not a gun. It’s not anything that is “property”. Calling it such is a misnomer and merely a scandalous re-definition of “property” that should have never been allowed to happen.

    What’s even more hilarious is that assignment of rights in this fashion is, ironically, probably in the grand scheme of things just one more way for the rich to stay rich and the poor to stay poor for all but a very select few of the participants.

    In other news, teachers in DC will soon make more money than I do, with the possibility to make more than your avg primary if they happen to get good students that will cooperate and study for tests. Check out yahoo’s frontpage.

    Maybe I’ll just go teach 11th grade.

    NWPA, my predictions remain the same.

  17. 47

    Hermaphroditic, sensitive and have a name like Hagbard…?

    So what are your monthly counseling bills like?

  18. 46

    >>No, I just don’t like PC pronoun use just for the sake of being PC. Especially since I am a “he.” If Hagbard is a female, then “her” hypo is fine for “her,” but it wouldn’t be for me.

    Actually, I thought you meant that the One True American Dream excluded the possibility of a “her”.

    Personally, I like to use PC language, not to be PC, but to wind up people who dislike it.

    And my own gender is my own business. We hermaphrodites are sensitive that way …. d’oh!

  19. 45

    You felt the need to be actively politically incorrect.

    As if there is something wrong with that…?

    Don’t tell me that you think being PC is important IANAE, I would be greatly disappointed.

  20. 44

    No, I just don’t like PC pronoun use just for the sake of being PC.

    No, it runs deeper than that. You felt the need to be actively politically incorrect.

    If the male pronoun can refer to a person of unspecified gender, why not the female? Are you such a dedicated social conservative that you can’t even give gendered pronouns equal treatment?

  21. 43

    Any questions?

    Yes. What is your highly-detailed explanation supposed to mean? If they’re not getting money from somebody else, what are they giving something of value in return for, and where are they getting the money from?

  22. 42

    “having dinner ready”

    Don’t forget that cold beer when I walk through the door.

    LOL.

    No, I just don’t like PC pronoun use just for the sake of being PC. Especially since I am a “he.” If Hagbard is a female, then “her” hypo is fine for “her,” but it wouldn’t be for me.

  23. 39

    RWA,

    Can we “program” the machine to mis-understand the readings just as 6 does?

    This might actually have a use to predict just how wacky an Office Action response one might expect to receive…

  24. 38

    The same recognizable, tired old liberal saw, “if you get some it has to be taken from someone else,” blue-collar, poverty mentality.

    Okay, I’ll bite. Explain to me how companies get money other than by taking it from someone else.

    For the purposes of this discussion, you may assume the US Mint is not a company.

  25. 37

    “C.J. Roberts used the example of looking up a name in the phonebook, and questioned why that method is any more patentable when conducted on a machine/computer”

    I would say that Robetr’s example is a perfect poster child for patentability, barring 102 or 103 hurdles. What could be more useful than a machine that would read for you?

  26. 36

    Wouldn’t want to imply that a girl could use her brain for anything other than having dinner ready when you get home, now would we?

  27. 35

    “Is it not an integral part of the American Dream that an independent inventor should be able to patent herhis inventions, license the rights to a manufacturer and thereby make herhis fortune, secure in the knowledge that the patent rights will protect herhim from being ripped off left, right and center?”

    Yes, yes it is. Thank you.

  28. 34

    “Most of their dreams are about having more money, but some of them are about other people having less money.”

    This is why I know you are Mooney, INSANE. The same recognizable, tired old liberal saw, “if you get some it has to be taken from someone else,” blue-collar, poverty mentality.

    Hope that works out for you.

  29. 32

    Do established US tech corporations dream about patents too?

    Corporations are people too. They can dream. They can speak. Some of them even have government-funded health care.

    Most of their dreams are about having more money, but some of them are about other people having less money.

  30. 31

    “still no easy access to PAIR data”

    Yes, and also still waiting to be able to cite a related U.S. case to satisfy disclosure, rather than continuing to cite every single Office Action. How hard can that be to change???

  31. 29

    Roberts did seem hostile in the oral arguments, but he is a grown-up and not likely to let the patent system be crippled by Stevens. Benson is just wrong. An algorithm is not a law of nature. And Roberts will not let the patent system go down on his watch to contrived arguments to get rid of patent eligibility for information processing methods. Stern, Stevens and his lot will not prevail and shouldn’t prevail. Their intent is bad and their understanding of science is wrong.

    So, MM and 6 what is your prediction? Mine is now out for all to judge when the opinion is issued.

  32. 28

    Hagbard, I understood from numerous real life cases that it is not only the Dream but also the present day reality. That’s 100% right, isn’t it?

    Do established US tech corporations dream about patents too? If so, what do they dream? Is what they dream American, or perhaps un-American?

  33. 27

    Yo 6

    Is it not an integral part of the American Dream that an independent inventor should be able to patent her inventions, license the rights to a manufacturer and thereby make her fortune, secure in the knowledge that the patent rights will protect her from being ripped off left, right and center?

    And if that is true for the original inventor, it must equally be true for her successors in title.

    So where’s the beef?

  34. 26

    “And can you really blame the guy who bought someone else’s patent because he saw the commercial value in what the inventor thought was merely a nifty idea? Why shouldn’t that guy be able to license out the technology if he happens not to own a factory?”

    IANAE, that is from over on watchdog.

    And the answer is yes. Yes I can.

  35. 25

    I predict a one-line Thomas opinion: “There is nothing wrong – statutorily or policy-wise – with a patent to a pure business method, computational algorithm, or any other deterministic analysis when that patent strictly complies with sections 102, 103, and 112 of United States Code Title 35.”

  36. 24

    “I see nothing in the delay that conflicts with the possibility of following Rader’s dissent.”

    On the other hand you probably do see something in the fact that his dissent was wrong, and they’ll probably get it right that conflicts with the possibility of them following Rader’s dissent. And that’s what should have you concerned more than the delay. Like I told you guys, they’re probably just enjoying you patent attorneys squirming before they send out the decision.

  37. 23

    I think I agree with RWA and NWPA, but maybe also Jr. Examiner. Or something in between.

  38. 22

    My post from almost 1 year ago:

    “Like the Supreme Court in Bilski, the en banc panel should (and probably will) follow Rader’s dissent. A fresh wind of sanity will blow across the patent landscape, and, once again, our profession will bear the sweet satisfying fruit of professional fulfillment arising from sensible application of the law.”

    NWPA is channeling my prediction.

    INSANE writes: “I can’t help thinking that we’d have heard from the Supremes months ago if they found Rader’s “amicus brief” all that convincing.”

    WRONG

    The fact is, Rader’s dissent was not a brief capable of being cut and pasted, but rather, just a simple thesis, “keep the door for subject matter open wide by inquiring, more or less, only as to abstractness.” Rader went on to illustrate the conflicting state of SC subject matter jurdisprudence over the years. Rader also illustrated that the SC’s own precedent counseled against the kind of rigid M or T test the FC came up with.

    It would take SCOTUS a significant while to sift through the shifting sands of their subject matter precedent over the last 20 years or more from before and since the establishment of the CAFC. I see nothing in the delay that conflicts with the possibility of following Rader’s dissent.

  39. 21

    To expand on what ned heller said, when I read the oral arguments last year it seemed pretty clear that the right wing of the bench disliked business methods and Roberts in particular questioned why slapping a computer on it made it patentable. As I recall C.J. Roberts used the example of looking up a name in the phonebook, and questioned why that method is any more patentable when conducted on a machine/computer. J. Scalia used the example of horse training methods and question why they weren’t patentable “back in the day”, i.e. horse and buggy days.

    Since none of the justices are really computer literate I don’t think this will fall along the normal lines of the very conservative vs. the moderates. I don’t think anyone can actually predict what they’re going to do with this one.

  40. 20

    Erm, that would be Rader’s dissent, not Roberts.

    I guess I got all excited about the Supremes adopting his reasoning.

  41. 19

    He questioned just how the Bilski claims were bad when claimed as a process but good when claimed as a machine or article of manufacture. It seemed to me that he objected to Bilski’s claims on the grounds that they were directed to business and form didn’t matter.

    Either that, or he couldn’t understand why the PTO and the Federal Circus kept insisting that applicants claim inventions that are clearly methods in some form that is clearly anything other than a method to get past 101 which clearly allows applicants to patent methods.

    He also said in his dissent that Bilski’s claims were facially invalid, so there’s that too.

  42. 18

    Night, Roberts was the one during oral that questioned the governments argument because it did not go far enough. He questioned just how the Bilski claims were bad when claimed as a process but good when claimed as a machine or article of manufacture. It seemed to me that he objected to Bilski’s claims on the grounds that they were directed to business and form didn’t matter.

    However, he just might have been playing devils advocate.

  43. 17

    J. Rader’s dissent in Bilski will form the basis of the Supreme Court majority opinion.

    I’d be very happy to see that, but I can’t help thinking that we’d have heard from the Supremes months ago if they found Rader’s “amicus brief” all that convincing.

  44. 16

    J. Rader’s dissent in Bilski will form the basis of the Supreme Court majority opinion.

    Yeah, I wish I could search that PAIR data.

  45. 14

    My prediction:

    I think that CJ. Roberts will write the opinion and it will be expansive. Everything under the sun and then some.

    Bilski will be remanded with a recommendation to invalidate on other grounds.

    J. Stevens will write a bitter dissent that will provide joy to me for years to come.

  46. 13

    ” … everyone will declare victory.”

    … with 25,000+ OAs and OA responses / amendments quoting the decision entering the mail and fax systems in just the first 30 days after the decision.

    Prosecutor / Pro Se Warning: Delayed Summer vacations just ahead.

  47. 12

    I agree that the line in the graph is meaningless. However, it would be fair to say that after 100 days 80% of the decisions were unanimous, while prior to 100 days only 25% were.

    Based on this analysis, I predict 4 Justices will join one opinion and the remaining 5 Justices will split at least two ways. Everyone will agree Bilski gets no patent, but no one will agree why. We will get a rehash of old decisions, MoT is dead, but there will be no agreement on a better framework, no one will understand the ruling, and everyone will declare victory.

  48. 11

    That’s an awfully suspicious plot you have. Take away the line and look at the data yourself. How would you draw the line? Could you draw a line that you believed in?

    Alternatively, what was the correlation on that line, and thereby, the statistical significance?

    If I saw that plot in a chemistry paper that I was refereeing, I’d push for rejection.

  49. 10

    Dudas, you have a lot of nerve showing your face around here. But I like what you said.

  50. 9

    K,

    Short answer: no.

    Long answer: It’s too much data. Terrabytes of data take a long time to go through for a search engine. It’s why the data is kept on lots of servers.

    You’re much better off using one of the many very high quality non-free search engines. They will never be as fast as EAST for image flipping, but for text searching, highlighting and analysis they are usually better. Additionally, they have much better non-US coverage than what a US Examiner has at their fingertips through EAST.

    (Ask an Examiner to locate a non-US reference from the 1960’s for example…
    On EAST: @pd>=19600101 and @pd< =19691231 and GB.did. = 5,895 references. On Espacenet: GB Publications and Publication range of 1960:1969 = >100,000 references.)

    And I say this as an all-day, every-day user of EAST. The price is right if you’re here in Alexandria and particularly if you like doing US clearance work on mechanical devices (claims with corresponding images side by side with no lag).

  51. 8

    I believe that SCOTUS is boning up on computer technology. I mean it would be a good idea considering that one of the justices didn’t realize that e-mail went through a computer other than the sender’s and the receiver’s computer.link to lawyersusaonline.com And whether there was a difference between e-mail and a pager. link to fastcompany.com
    You know when these guys were in law school they still used typewriters. In fact the Chief Justice writes opinion in long hand. Sheesh, and wonder why the opinion isn’t done yet. LOL

  52. 7

    “Bilski isn’t going to be what 6 and MM hope it is.”

    You’re right, it’ll probably be even more juicy than even me or MM could hope for!

    Don’t get my hopes up like that sir!

  53. 6

    “Ok, I give: on the google site it says you can download info from the USPTO’s “Red Book”. I opened one file and found amino acid sequences. Why is this information referred as the “red book”? Did some PTO higher-up have a mistress on the side whose day job was at NIH?”

    That info used to be stored in a big red book.

  54. 4

    Ok, I give: on the google site it says you can download info from the USPTO’s “Red Book”. I opened one file and found amino acid sequences. Why is this information referred as the “red book”? Did some PTO higher-up have a mistress on the side whose day job was at NIH?

  55. 3

    “Google is now providing free bullk-downloading of USPTO data”

    Are there any good applications for indexing and searching a large amount of data?
    I’d like to be able to replicate the USPTO’s EAST (Examiner Search Tool) in my office, including the advanced search parameters like “same sentence” etc.

  56. 2

    That Google service isn’t quite what I expected. Looks more like the USPTO is eliminating their publishing division to save money rather than providing easy access to information. (What user needs the entire patent collection as 5,000 separate .zip files and doesn’t already have the data?)

    There is still no bulk downloading of selected patents and still no easy access to PAIR data which are the two things that seem technically quite feasible and desirable.

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