Guest Post by Benjamin Jackson, Senior Director of Legal Affairs at Myriad Genetics, Inc.
The Myriad Case: A Golden Opportunity to Bring Clarity and Fairness to Subject-Matter Eligibility
Two weeks ago the US Supreme Court heard oral argument in the landmark case of AMP v. Myriad Genetics. The Justices appeared engaged in the argument and seemed to be genuinely seeking understanding of the science and the potential impact of any decision they might take. Several specific points emerged from the argument that warrant further discussion:
1. What Does "Isolation" Really Mean? Some Justices seemed to struggle with what is involved in "isolation" under the patents. This is the most critical issue in the case as a correct understanding of this word leads to the inescapable conclusion that the claims are directed to human-made inventions rather than what exists in nature. Regardless of any meaning used in the Petitioner's arguments and those of prominent amici such as Dr. Lander, "isolation" as defined by the patents requires that a new chemical entity be created either synthetically from scratch or by chemically/structurally modifying an existing molecule. The patents explicitly define "isolated" DNA as removed from its natural environment, whether that environment be in the nucleus or, as the Lander brief emphasizes, floating around outside the cell in someone's blood. But isolation under the patents is not just "snipping" molecules as they sit in their natural environment. Isolation under the patents also requires purification (i.e., concentration) of the newly created molecule out of the interfering milieu.
What is ignored in ACLU's arguments is that purification is a critical element of what it means to "isolate" something under the patents. The Lander brief calls purification of DNA routine, but only in the context of randomly purifying all nucleic acids out of a sample. "Isolation" under the patents requires specific, targeted purification/enrichment of BRCA1– or BRCA2-related molecules, which was not routine or even possible before Myriad's invention. Under this proper understanding of everything that "isolation" under the patent requires, ACLU made Myriad's case by conceding in their reply brief and in oral argument that purification to yield a significant new utility is sufficient to warrant a patent. Some Justices seemed to agree: A molecule sitting in a leaf of an Amazonian plant is not "new" or patent-eligible, but it becomes both once it is purified and concentrated into a useful form. Similarly, DNA in its natural environment, whether whole in the cell or fragmented in the blood, is neither new nor patent-eligible, while a DNA molecule chemically modified and purified by man is both.
2. Splitting the Baby Doesn't Work Out Well for the Baby. Some see patent-eligibility for cDNA and not isolated genomic DNA, advocated by the Department of Justice, as a compromise position that the Court is seriously considering. I am hopeful that instead the Court has merely recognized that cDNA is so clearly patent-eligible that it needs no serious discussion and has efficiently moved on to the marginally closer question of isolated genomic DNA. While this may superficially seem like a nice, neat compromise, it quickly falls apart under scrutiny. In the area where the Myriad case has the most potential impact, because new isolated DNA patents are common and thus incentivizing new discoveries is most important today, there is no distinction between genomic DNA and cDNA. Bacteria, for example, have no introns, which means the reverse transcription product of mRNA (i.e., what you might call a cDNA) has a sequence identical to genomic DNA. In essence, there is no such thing as cDNA in bacteria. DOJ's position would make all isolated DNA claims patent-ineligible in any organism without introns. The wisdom of Solomon was not in splitting the baby, but in finding a course that meant he didn't need to.
3. Methods v. Compositions. Much of the Myriad oral argument centered on whether method of use claims would be enough to incentivize innovation in the life sciences. Some Justices seemed to be trying to weigh whether an entire category of composition claims could be invalidated without negative effect on innovation because method of use claims would remain. With respect, the Court is not the body that can or should attempt these kinds of determinations where in-depth investigation and careful balancing of competing interests is needed to strike the right balance between what is or is not needed for innovation. For example, the Court is not well-positioned to survey in detail the international legal landscape to, e.g., evaluate statements such as those from DOJ on DNA use versus composition patents in Europe. Congress, not the Court, is practically equipped and Constitutionally-tasked with precisely this type of determination.
4. Analogies. The Court seemed to grapple with several analogies in trying to probe the outer reaches of patent-eligibility. Any analogy that overly simplifies complex science falls apart under close scrutiny. But more importantly, the Court need not agonize over patenting livers cut out of bodies or whole plants uprooted from the Amazon. The patented molecules in Myriad are far closer and vastly more analogous to the chemical compound purified and concentrated from the Amazonian plant than the uprooted whole plant. Indeed, Myriad's claims present an even stronger case because there has been a modification of the chemical structure in addition to the purification. We must not confuse the analogy for the thing actually at issue or let hypothetical future implications of questionable likelihood cloud what was actually patented in this case. Concerns over allowing patenting of extracted livers should not distract the Court from the simple fact that what is before it in Myriad is neither an extracted liver nor an uprooted plant, but instead a highly useful, purified and chemically modified compound that never existed in nature until Myriad created it. If someone ever tries to patent an extracted liver, the Court can address any problems then. It would be tragic, however, to let the "tail" of that remote future possibility wag the "dog" of patent-eligibility for biotech inventions today.
5. Innovation. Some Justices appeared anxious incentivizing innovation without inhibiting it, with Justice Breyer noting "uncomfortable compromises" in patent law. The Myriad patents specifically and gene patents generally require no such discomfort. First, ACLU's argument that the claims preclude any study of the BRCA genes is simply wrong. Untargeted sequencing and analysis of the genes would not infringe claims to isolated BRCA DNA because it does not involve purification (thus no "isolation") of the BRCA genes out of the genomic milieu. Second, putting ACLU's anecdotes aside, all available systematic evidence shows that gene patents do not inhibit but instead spur innovation. ACLU's imaginative assertions about what the claimed molecules can be used for are a red herring; the Petitioners in Myriad clearly stated in their declarations that they want to use the claimed molecules not for DNA-based computers or developing new drugs, but instead to replicate Myriad's test.
6. Every Chemical Invention Is Possible in Nature. Justice Alito made an insightful comment about a branch washing up on shore looking like a baseball bat. This shows the legal irrelevance of the Lander amicus brief, which figured somewhat prominently in the oral argument. That randomly fragmented DNA floating around in someone's blood might at some point comprise the BRCA1 gene is irrelevant to the question whether what Myriad claimed was produced by human ingenuity rather than by nature. The relevant question is whether the inventor merely found something unmodified in nature and staked claim to it, or instead created something by her own ingenuity. To ask whether a claimed chemical composition could conceivably ever exist in nature is an unhelpful question of probability because, given enough time, any arrangement of atoms is inevitable. See, Dan L. Burk, Anticipating Patentable Subject Matter, 65 STAN. L. REV. ONLINE 109, 114 (2013). For example, it was irrelevant to the decision in Chakrabarty that Dr. Chakrabarty assisted the natural process bacterial "breeding" that, given enough time, could certainly have yielded the claimed bacterium naturally.
7. Subtraction v. Addition. Many easily accept that combining two chemical entities creates a man-made, patentable invention, but become instantly skeptical if a single molecule is separated into two parts that do not exist in nature. This surfaced in the Myriad argument as well, but from a chemical, biological, genetic, and even legal perspective there is no defensible distinction between addition and subtraction. A molecule created by removing parts that interfered with its new utility is just as much a product of human ingenuity, and can have just as important a new utility, as a molecule created by addition.
8. Short DNA Molecules. Justice Sotomayor asked about claims directed to short DNA molecules of 15 or more nucleotides. She appeared to rely on ACLU's arguments, based on an article published after Myriad filed its merits brief, about these claims covering the entire genome. Certainly as to Claim 6 of the '282 patent, this is clearly wrong. Claim 2 is directed to a molecule with the cDNA sequence of SEQ ID NO:1 (whose patent-eligibility the Court seemed pretty comfortable with) and Claim 6 is merely directed to fragments of that molecule. If the larger molecule is a product of human ingenuity, then human-made fragments of it must also be. Regardless, ACLU's unproven allegations on this point are irrelevant from a practical perspective. Anything as small as 15 nucleotides would only be used as part of a primer pair and, when used this way, the molecules would be 100% specific for BRCA1.
9. Myriad: A Unique Chance to Return Clarity and Fairness to Patent-Eligibility by Returning to the Statute and Chakrabarty. There is currently great confusion amongst courts, the patent office, patentees and the public about patent-eligibility under section 101 of the Patent Act. While the spirit behind the judicial exclusions for patentability is correct, decisions applying them can often be, in the words of Justice Frankfurter, "infected with too much ambiguity and equivocation" due to "vague and malleable terms" such as "the work of nature" and the "laws of nature." But the language of section 101 itself and the Court's seminal decision in Diamond v. Chakrabarty provide the Court with a framework for a long overdue recalibration and clarification of patent-eligibility in the Myriad case.
Section 101 requires that a claimed composition of matter be both new and useful, thus encompassing the judicial exclusions and giving courts the tools to resolve difficult questions of patent-eligibility. The claimed chemical composition must have some structural, physical or chemical change from the natural starting materials used by the inventor in order to be new under section 101. Limiting patent-eligibility to structurally, physically, or chemically "new" things addresses the judicial concern over patentees removing from the public domain that which exists in nature because there must be a modification of the natural thing. It further addresses the Mayo Court's concern over section 101 becoming a dead letter. Section 101 fills the gap in sections 102 and 103 by excluding anything the inventor found in nature but that was not previously known to others (which could not be anticipated or obvious under section 102 or 103, but which we don't want to award a patent for).
Merely being new is not enough under section 101; the claimed invention must also be useful. This is where the statute really does its work and gives courts an objective yet flexible framework for giving proper force to the legislature's intent. Not just any utility will do. The claimed composition must have one or more significant new utilities and these new utilities must directly result from the structural, physical or chemical changes made by the inventor. Courts can exert substantial discretion in determining whether the new utilities are "significant" under section 101. Courts can weigh the structural changes (how new the composition is) with the new utilities (how significant they are) to decide whether the invention is patent-eligible. If the utility is relatively minor, more of a structural change may be required. If the utility is groundbreaking, very minor structural changes may be sufficient. For example, purification of a molecule from its natural surroundings, without any change in the chemical structure, is a relatively minor structural/physical change from the natural state of things. Nevertheless, this may be patentable if the highly purified composition has significant new (e.g., therapeutic, diagnostic) uses. Importantly, these uses must be assessed from the perspective of human endeavors. The purified molecule always has some or all of the same chemical properties (e.g., polarity, electronegativity, etc.) as it did in nature, but its purification has opened up a world of human uses that take advantage of those properties.
The Court's decision in Chakrabarty, the definitive statement of patentable subject matter for compositions of matter, epitomizes the judicial exclusions and the statute working at their harmonious best. Chakrabarty cited to many of the early cases that established the judicial exclusions from patent-eligibility, then clarified that the dispositive question for patent-eligibility is whether what is claimed is a product of nature or a product of human ingenuity. The Court's analysis paralleled section 101's text, emphasizing that the claimed bacterium was different from what existed in nature (i.e., it was new) and had "significant utility" (i.e., it was useful).
In a great insight into what it means for something to be "new" under section 101, the Court made clear that it is the differences between what is claimed and what exists in nature, not the similarities, that make all the difference in patent-eligibility. Dr. Chakrabarty manipulated bacterial breeding to give one bacterium the natural ability of other bacteria to eat oil. As Dr. Chakrabarty himself noted in his amicus brief in support of Myriad, "the genetically-engineered bacterium that I created and sought to patent in Chakrabarty had a quite similar structure to what existed in nature. It shared the same genome and internal structure as naturally occurring Pseudomonas bacteria and differed only by a few pieces of DNA."
But these elegant changes resulted in "significant utility" such that the Court declared that these modest modifications yielded a product that was "markedly different." The vast similarities were irrelevant; they did not negate the fact Dr. Chakrabarty's human ingenuity brought about something that never existed before with "a distinctive name, character and use." As the Chakrabarty Court noted, legislative history makes clear that what is not eligible for patenting is that which is "created wholly by nature unassisted by man" while anything that "is unique, isolated, and is not repeated by nature, nor can it be reproduced by nature unaided by man" is eligible. The modified bacterium gained significant utility from the donor bacteria and could now be put to many important new uses (e.g., cleaning up oil spills). Again, a relatively minor structural change can be enough if the gained utility is significant.
In Myriad, the Court can readily apply this framework to find that the claimed compositions are new and useful and thus patent-eligible. The isolated DNA molecules are new because they are not found in nature by definition. As shown in point # 1 above, "isolation" under the patents requires a brand new chemical composition with significant structural changes that has been purified and concentrated out of the milieu that previously prevented its new uses. Chromosomal DNA in its natural environment, whether whole in the cell or fragmented in the blood, is neither new nor patent-eligible, while the molecule chemically modified and purified by man is both.
The new molecules have gained significant new utilities. They can be used as laboratory tools for targeted sequencing of the BRCA genes of patients, which is not just transfer of an existing utility to a new product as in Chakrabarty, but an entirely new utility never possible before. ACLU makes much of the fact that these utilities largely depend on properties shared with the natural DNA. This is true but irrelevant. The new molecules share some useful properties with the natural source material (why else would we have sought them out?), but the breakthrough new utilities were impossible before the inventors' modifications. This is precisely what the patent system was designed to incentivize.
Upholding the Myriad patents does a lot more than affirm patent protection of a deserving invention of human-made molecules with significant societal value. In Myriad the Court can honor the language and intent of the statute passed by Congress and bring the objectivity, clarity and predictability that patentees and alleged infringers alike yearn for, all while advancing the policy goals of the judicially-created patent-eligibility exclusions.
Nice article.
I would note that 15mers are often not unique, and that they can be used for things other than as primer pairs, e.g., as probes. Chances are that 15mer claims would be anticipated, especially if patented in the 90’s or later when the EST database is already quite populated.
I would not say most Myriad sequences have no utility, as pairs of short oligos 5′ and 3′ to the mutation will be used to amplify a patient’s BRCA1 gene, and then the short oligo with the mutation can be used for hybridization to see if the amplified DNA has the mutation too.
Science says what can be done.
Ethics says what should be done.
The patenting of human genes should never be considered.
No one should be given ownership to a property right that resides inside of someone else’s body.
This would be a horrible precedent to set.
These people in the study are completely missing the point and likley intentionally when dealing with the issue of lack of top marketable patents being concieved since 2004.Intentional congressional Lack of improvements in the patent system to eliminate the 40 methods of cheating the inventor and destroying his incentive to create thereby shuttering the patent system and all the top marketable inventions and innovations with it.
As yet another thread fades into the archives, let the record show that once again Malcolm has produced no answers and has avoided all critical points of discussion.
(no one is really surprised)
Still waiting on you for this point too, Malcolm.
Still waiting on you for this point too, Malcolm.
Still waiting on you for this point too, Malcolm.
Still waiting on you for this point too, Malcolm.
Still waiting on you for this point too, Malcolm.
And I am not sure why you keep on asking a question I have answered. The ball is in your court, Malcolm. It is time for you to pick it up. Why is THIS so hard for you? Just like any other question ever put to you, answers never seem to come (unless you are volunteering things that scorch your agenda, that is).
Stop stalling Malcolm and pick up the ball that is in your court.
We are all waiting.
these counter points.
Trollboy, you’ve never raised any “counter points”. Calling a question a “counterpoint” doesn’t make it one. Nice try, though, Humpty.
Here’s the question again, Trollboy:
What does “controlling law” say about the eligibility of a claim in the form [oldstep]+[newthought],
Everybody else knows the answer. Even Gene Quinn, on a good day, when he’s being “intellectually honest” can probably manage a reasonable answer to that question. Kevin Noonan can do it because he tells himself that he didn’t understand certain facts (thereby explaining his earlier “confusion”).
So tell us, Trollboy: eligible or ineligible? What do you tell your imaginary clients? (Let me guess: “Read these 10 Supreme Court cases. My invoice is in the mail.”).
Typical Malcolm move: put off to others what is asked of you.
I aksed this of you for a reason Malcolm. Your ‘trying’ to figure it out should teach you a lesson.
How do you expect to learn that lesson when you dodge (yet again) what is put to you?
This is SO reminiscent of that simple Product of Nature question put to you. Yet another thing you ran (and STILL run from). That too – you tried (and failed) to co-opt into a question that you put to others.
This too is archived.
It’s amazing that you do not tire of these trite and banal tactics Malcolm. You should be aware that they fool no one, and your use of them only continues to lower what little credibility you have on topics of patent law.
Uh,… no, Malcolm. Once again, you attempt to spin facts, but sorry that does not wash.
No one has supported Schroeder’s actions. Why would they? They are not professional. Worthy of certain blogs… sure, we see that all the time. But not official correspondences.
You quite miss the point though of the actual data (you know, facts). They are what they are. You tend to lose sight of that in your penchant for intellectual dishonesty.
And that is why you attack Quinn without provocation. He is ardent, but intellectualy honest. He does make mistakes, but not the blatant type of l13s that you are well-known for spinning.
Tell me once more, what is the controlling law regarding the exceptions to the printed matter doctrine?
Thought so.
The thing is “Trollboy” you have never actually given answers to any of these counter points.
Ever.
This is archived, you know.
Oh sure, you spin out some vacuous crp, but you never do give answers.
And I am not “confused” by your views. I understand them perfectly. They are simply tr1pe that no one else bothers with (even Francis and Keeping It Real only parrot that tr1pe – lol).
And I am not sure why you keep on asking a question I have answered. The ball is in your court, Malcolm. It is time for you to pick it up. Why is THIS so hard for you? Just like any other question ever put to you, answers never seem to come (unless you are volunteering things that scorch your agenda, that is).
The court fully may venture into a slight dictum on utility
Right. So STEffUP.
you ever reply to my question as to the controlling law about eligible claims having steps that are mental steps.
The thing is, Trollboy, I answered such questions for you dozens of times already and you’re such a sociopathological piece of sh-t that you pretend it never happened. What would be the point of doing it again? Nobody else is “confused” by my views on this subject except you and your fellow blogtrolls.
But back to the question, Trollboy:
What does “controlling law” say about the eligibility of a claim in the form [oldstep]+[newthought],
Why is this so hard for you?
Just as Schroeder reaches out to attack Prof. Crouch, you reach out and attack Quinn, in yet another unprovoked attack.
Uh … no, Trollboy. It’s like this: Gene Quinn (predictably) used Schroeder as a lame excuse to bash the USPTO. You crossposted Quinn’s pathetic “statistics” here, even as those “statistics” were being questioned (rightfully so) on Gene’s sad little patent peddlin’ blog.
You three were made for each other, of course.
anytime you want to actually address the point of what spam filters do with email
Address the “point”, Trollboy? Huh?
Maybe you can tell us all what the “point” is, Trollboy, since you are the ignorant t00l who keeps bringing it up! You keep bringing it up instead of telling us the name of one (just one!) law firm who employs the “mailroom staff throws away registered letters to attorneys” strategy you described for us.
Go ahead, Trollboy. Explain the relevance of the “email spam filter” to your inability to name a single firm who employs the prior art avoidance strategy you described for us.
Go ahead. We’re wating, Trollboy.
Hmmm,
Just as Schroeder reaches out to attack Prof. Crouch, you reach out and attack Quinn, in yet another unprovoked attack.
Sure Quinn takes some ardent stances, and he is wrong on some of them, but why do you h@ te him so?
Could it be that he policies his bully pulpit? That when you go astray there and misrepresent law, fact, or what others post you are forcibly removed from the conversation? Could it be that you don’t venture there because your petty tricks are not welcome?
On the other hand, this forum is much more wide open.
Here too is another forum, a bully pulpit. Malcolm tries to be a bully, and I be@t him to a pulp.
Life is good.
“you don’t know what a counter point is”
Lol – must I embarrass you (yet again) by posting definitions along with words to show you that I am using them correctly – like I had to do with ‘dissembling’?
C’mon Malcolm, just address the points raised instead of making lame excuses and running away from them. It’s plainly obvious what you are doing.
Not sure what point you think you are making by not providing an answer in all caps.
Perhaps you just want to reinforce the association between you and Mr. Schroeder….
But anytime you want to actually address the point of what spam filters do with email and my point about someone sending you mail under false pretense in order to try to trap you, by all means, give that answer (and I won’t even care if you don oven mits to do so).
Or maybe you will find it when (if?) you ever reply to my question as to the controlling law about eligible claims having steps that are mental steps.
That’s a real simple question that you constantly avoid actually trying to ‘integrate’ into your pet ‘theory.’
Asked and answered. It’s in there with all the stuff you keep on trying to avoid (like integration)
Are you that much a fan of McCracken’s, or do you just have trouble keeping up as your ‘theories’ get pounded into oblivion?
I have pointed this out to you many times and the flaws that your ‘theory’ has.
On the contrary, Trollboy, you’ve never been able to muster up the maturity to state “my theory” accurately (although it’s been explained to you hundreds of times). As for “flaws”, you’ve demonstrated that you’re incapable of identifying any alleged flaws. In any event, you’ve never done so. You’ve certainly tried to change the subject though. How has that worked for you?
So go ahead, anon. Answer the question: What does “controlling law” say about the eligibility of a claim in the form [oldstep]+[newthought]
Here’s an example: A method of rubber curing, comprising (1) measuring the temperature of rubber and (2) if the rubber is between 412 and 614 degrees Fahrenheit, thinking that lowering the temperature is desirable.
What does controlling law say about the eligiblity of that claim, anon? Try not to “phone a friend”. I know it will be hard to resist that temptation.
That’s (not surprising) not an answer Malcolm. It please, continue to QQ over something that you are (yet again) busted doing.
You are the king of hypocrites.
et’s ask Francis and Keeping It Real about that, shall we?
It’s okay, Mr. Schroeder. The doctor will be along shortly with your pills.
the counter points
You’ve never answered the question, Trollboy, and you don’t know what a “counter point” is. We’ve been through this already.
Anyway, you’re the one who pretends to referee the blog, Trollboy, with your vast knowledge of “controlling law” and who “lies about it”. Just look upthread. And yet you won’t answer a simple question that would go a long way (but not nearly all the way) to proving that you aren’t an empty sack of bloviating hypocricy.
you are afraid of “doing answers,” aren’t you
Not at all. I answer questions here all the time, Trollboy.
Here’s the question again:
“What does “controlling law” say about the eligibility of a claim in the form [oldstep]+[newthought], anon?”
And do let us know when you find the name of that law firm, will you? Thanks.
Which probably means they all receive mail and open it in a mail room.
LOL.
“HAVEN’T YOU EVER HEARD OF A SPAM FILTER?”
I think you missed the point about the spam control and email there, IANAE.
Ever the one to try to be a smart-@$$ without the smart.
As to the love of each other and “blogtrolls,” let’s ask Francis and Keeping It Real about that, shall we?
LOL
Still waiting? _ I have already answered you across several threads (it’s all archived, you know).
I am still waiting for you to address the counter points raised.
But you are afraid of “doing answers,” aren’t you? Your fingers still recovering from the burns?
LOL
LOL! Even though, I am obviously the b*tt of that joke.
LOLOLOLOL!!!!!!!! Just name one.
They all do it, “to at least some degree”. Which probably means they all receive mail and open it in a mail room.
“What does “controlling law” say about the eligibility of a claim in the form [oldstep]+[newthought], anon?”
Still waiting for your answer, Trollboy.
It’s an easy question. What does “controlling law” about a claim in the form [oldstep]+[newthought]? Is it eligible or not, anon?
101 Integration Expert…
You blogtrolls really do love each other, don’t you? I think it’s cute. It’s also cute when you cite Gene Quinn as he puts his big foot into his big mouth.
“This is why we have blogs like this one, to teach each other what not to do.”
A grain of truth here – hence we have to put up with Malcolm.
Sorry, Malcolm – you are doing that accuse-others-of-what-you-do thing again and I missed your answer as to spam controls on your email.
Try again.
LOL
“MM: You are one of those people that are not held to account”
You mean that you wish to improve blogging quality by holding people to account?
That’s just a Cr@zy idea.
C’est la vie.
Trollboy doubles down!!!
I would venture that EVERY firm engages in the practice I described – to at least some degree.
LOLOLOLOL!!!!!!!! Just name one. Maybe it’s one I’ve already spoken to and then we’ll have a “final answer” as to whether you are as dishonest and pig-ignorant as you appear to be.
It’s just another vacuous trick: no matter what, claim victory.
It’s funny though how few actual answers Malcolm comes up with in regards to actual issues – and how often he toasts his own agendas when he does venture into substantive discussions.
Malcolm, what is the controlling law regarding exceptions to the printed matter doctrine?
Malcolm, say you do have a patent on a Product of Nature, something that is from the warehouse of nature and free to use by all men – how do you distinguish that item if you try to enforce your patent?
LOL
That’s funny – you have been compared to Mr. Schroeder more – and more fittingly in the type of response.
But that is no surprise that you (again) engage in the inane tactic of accuse-others-of-that-which-you-do.
It appears that metaphors are not the only finite thing around here.
“What does “controlling law” say about the eligibility of a claim in the form [oldstep]+[newthought], anon?”
LOL – certainly not what you think with your crrppy theory Malcolm.
I have pointed this out to you many times and the flaws that your ‘theory’ has.
You never seem to want to address those points.
But let’s let you self-defeat again and have you give the link to the OFFICIAL Office view of what the Prometheus case means – you know, the one supported by your nemesis, 101 Integration Expert…
LOL – Again with the misrepresented mail example too. Don’t you just love when Malcolm proves my points so eagerly? Yet another counter point forever evaded by Malcolm: tell me Malcolm, do you use a spam filter on your email? Do you review every single piece of correspondence addressed to you? What does your insurance carrier have to say about that?
I would venture that EVERY firm engages in the practice I described – to at least some degree. SHow me one that does not, and I will show you a firm that is not long to be practicing.
I guess there’s just a finite number of metaphors available to the patent t–baggers.
It’s because there’s no incentive to innovate around here. You completely missed NWPA’s brilliant point.
MM: you mean that Stephan posted something on here. I made substantive objections to his post. He never responded to the substantive objections and instead made a number of logic fallacies, and then ran.
Oh wait that is exactly what you do, so I guess you would see that as victory.
MM: You are one of those people that are not held to account.
It’s amazing that you are able to see such fine raiments upon yourself, as you stand there in your birthday suit, surrounding yourself with fawning tailors. Oh, how their praise of your views echoes in your ears.
Andy Schroeder called. He wants to subscribe to your newsletter.
I will hand your empty head back on a platter
I guess there’s just a finite number of metaphors available to the patent t–baggers.
The real blight comes from those who would voluntarily admit controlling law, and then turn around and blatantly lie about that very thing in order to advance an agenda.
What does “controlling law” say about the eligibility of a claim in the form [oldstep]+[newthought], anon?
Let’s watch and see if Trollboy can live by his own words. It’s a very simple question with a very simple answer. Has Trollboy grown up in the past week? We highly doubt it. But let’s find out.
And then maybe Trollboy can tell us the name of a single firm which uses mailroom staff to screen registerered letters to attorneys, whereupon letters deemed to contain prior art relevant to an attorney’s client are discarded so the attorney can avoid learning about that art. Just one firm, anon. I mean, you brought it up and you’ve never admitted to everyone that you were just pulling sh-t out of your a–. So tell us the name of a single firm that engages in this practice which you extolled. Just one.
“when those who urge the patent system be done away with see themselves as forward thinkers, ahead of the wave.”
LOL – for someone who “loves patents,” you glom onto this “done away with” as ‘forward thinking’ way too easily.
There is danger to be alive to alright. It is those patent attorneys who would eliminate the patent system, and then call it ‘forward thinking.’
With friend like that, who needs enemies?
It is pathetic! How lame that Stephan cares.
I’m pretty sure he doesn’t care about your standardized test scores.
I disagree with Stephen on a number of topics but I do credit him with total victory in his exchange with you, NWPA. But, hey, Trollboy is standing with you. That must be reassuring.
Is it “confirmation bias” to look at the i4i case?
Is it “confirmation bias” to see who lined up to push the AIA through?
Is it “confirmation bias” to see who benefits most when the patent system is maligned – either on a large scale or on a gradual (peace in our day) scale?
You would think that someone from Europe would be a bit more attentive to such tricks. But the lack of any real conversation, the lack of response to any real challenges posed to MaxDrie reveal what he is truly about.
“ It is called the Confirmation Bias and it is extremely primitive and dangerous. We patent attorneys should be alive to that danger.”
LOL – “Alive to” in MaxDrei’s world apparently means to live that concept fully.
It’s amazing that you are able to see such fine raiments upon yourself, as you stand there in your birthday suit, surrounding yourself with fawning tailors. Oh, how their praise of your views echoes in your ears.
“The thing is, NWPA and anon, I can see both sides of the Argument. ”
No. You cannot. For if you did “see” accurately, you would see that the Kinsella rhetoric is a crock.
As has been shown repeatedly, your ‘want’ is the want of a mere soap box to expound upon your chosen views. Nothing more. No ‘discussion’ and certainly no ‘challenge.’ You have proven that in word and deed.
Even here, what you rally to is merely that which echoes what you believe:
“
The worst enemies of the patent System are those who blindly assert that a patent System, per se, has no deleterious effects on the economy whatsoever. … Anonymous patent practitioners, blindly asserting their own self-interest, are a blight on this blog.
”
Blight? Really? Your professed ‘cure’ is to have a sport of kings and flash of genius for what you consider to be that set of patents that are ‘worthwhile.’ You would kill the patient to cure the ills. And in that sense, while you ‘proclaim’ your love of patents, you really show your disdain.
No thank you.
“Like anything else, patents have their good side and their bad side and we have to nurture the good and cabin the bad.”
You quite misunderstand what is going on, and I daresay that misunderstanding is on purpose. You once proclaimed a mantra of “I am here to learn” – that was shown to be quite false. You then had a (thankfully short-lived) mantra of “Let’s be nice so we can have a conversation” – that too was shown to be quite false. You arise here in defense of, to be as polite as truthfulness will allow, scum, and your subtle joining in on his views fools no one.
The real blight are the ones who engage in sophistry (and worse) in order to peddle their agenda. Those who refuse to acknowledge valid points raised and march onwards regardless – not learning, unwilling to listen or converse, and falsely attempting to play the let’s learn and converse cards – with no intention of doing so.
The real blight comes from those who would voluntarily admit controlling law, and then turn around and blatantly lie about that very thing in order to advance an agenda.
The real blight comes from those who when faced with a challenge, decide they don’t like what is said, disappear and run away, and yet return with the very same crock of shtt the next time the topic comes up.
No MaxDrie, I do not buy what you are trying to sell. Your spin in sync with Kinsella says more about you than you think. What you want to keep is a bastardized view of patents. Patents so gutted and having such a thin veneer that they are inconsequential and ‘don’t upset’ anyone.
>You might have enjoyed living in Europe but i bet >you would not have enjoyed its Rule of Law, under >which it has difficulty distinguishing evidence from >mere attorney argument.
Yes, MD, you are not only offensive and bizarre, but quite clever.
So now you find that I too am “offensive and bizarre”. You will not be surprised if I tell you that doesn’t disturb me one iota. This is the fun thing about anonymous blogs: we just spin stuff out and see what reception it gets. It is not as if it is serious, like, what we write will deprive some accused person of life or liberty.
You might have enjoyed living in Europe but i bet you would not have enjoyed its Rule of Law, under which it has difficulty distinguishing evidence from mere attorney argument.
I know, I know, the world is awful and getting steadily worse isn’t it?
You remind me of the eminent patent judge from England, addressing the German equivalent of the AIPLA Annual Meeting, about 15 years ago, in Ulm, on the subject of how to construe claims. As ever, speakers from England think they ought to start with a joke. So he said “In this area, as with many others, we can all learn a great deal from the Americans” Then he paused, to allow time for mutterings within the large audience. Then he added: “Observe closely what they do, and then make sure you don’t do the same”. That got the German audience on his side.
I should add that Germans think they are cock of the walk when it comes to laying down patent law although (to the disgust of the British) they slavishly copy rubbish US Doctrine of Equivalent jurisprudence.
This is why we have blogs like this one, to teach each other what not to do.
I would say MD that there is something that is just offensive and bizarre about you. I made substantive objections to his paper regarding logic fallacies. He NEVER addressed them. One does not just move when basic objections to an argument have been made.
It is like Lemly’s paper on copyright and software where he hides his premise that software has no structure. When this objection is raised, it MUST be addressed. One cannot simply move past a basic objection that is a premise of the conclusions.
You see that is no accountability.
And, by the way MD, I am not alone in saying this. What I just wrote I would say is a fair characterization of the intellectual left’s view of America right now.
Bill Moyers had a series on this subject about 10 years ago and things have just gotten progressively worse.
MD: I enjoy debates and I respect that reasonable people can disagree. But, in this debate what I see is intentional misrepresentations by the anti-patent crowd. I see no accountability and I see outrageously ignorant arguments being presented by people in positions of power.
I do wish I had the time to fight this fight with studies and papers.
I suspect that you are a decent fella that just doesn’t get that the U.S. has changed. Something happened to debate around 1980. There was no more accountability. People just say whatever they want and aren’t held accountable. I think that, for example, some of Lemley’s statements, if made back in the 1970’s would have resulted in him being removed from Stanford in disgrace.
You know, MD, you need to take a good look at the “debate” and realize it isn’t a debate. It is a medieval slug fest.
It is the zeitgeist in the U.S. Somehow or anther we moved to a system of no accountability, and no integrity.
Lemly is a perfect example of success based on misrepresentation. Benson is another example.
I know in Europe people still play nice. I liked living in Europe. It was a better life. Here in the U.S. we live in the mud.
NWPA, thanks for those words. I was getting on fine till I got to your pathetic last para. Calling those holding an opinion different from yours ” a mob of torch welding ignorant medieval barbarians” might make you feel better but it does nothing to preserve a decent and balanced patent system, when those who think that patent rights have crept too far includes not only Stephan Kinsella but also influential people in SCOTUS, the executive and the White House, and when those who urge the patent system be done away with see themselves as forward thinkers, ahead of the wave.
People (including you, I suspect) find what they want to find, in any particular item adduced in evidence. It is called the Confirmation Bias and it is extremely primitive and dangerous. We patent attorneys should be alive to that danger.
I am not sure why the noise is full of anti-patent studies. I know that when I had to time to actually look at this that the opposite was true. The studies indicated that patents did promote innovation and the evidence was overwhelming. And, the actually studies that were performed by people with integrity showed that many software patents actually were quite innovative and did promote innovation. I remember a study on the features of Word. What really gets me red faced is these intellectually dishonest weasels that do not understand or do not wish to understand hindsight.
The anti-patent horde is a mob of torch welding ignorant medieval barbarians.
MD: give me a break. I am quite capable of stating my own positions. Never have I said there isn’t a trade off with patents. All in all, it would be better, of course, not to have patents if they didn’t promote innovation.
As for Microsoft, Microsoft achieved its dominate role mainly through copying. In fact, almost entirely through copying. When patents started to force innovation, Microsoft went along and realized they would have to actual create innovate products and so they hired researchers to innovate.
The thing is, NWPA and anon, I can see both sides of the Argument. On EPC “use” Claims for example, MM and I hold opposite views and debate them. Kinsella has had bad experience with patents so now wants to get rid of them. I have had good experience and want to keep them.
The worst enemies of the patent System are those who blindly assert that a patent System, per se, has no deleterious effects on the economy whatsoever. Like anything else, patents have their good side and their bad side and we have to nurture the good and cabin the bad. As far as I can recall, Microsoft achieved its dominant position without any help from a patent Portfolio. The mere fact that today it has a Research Dept says nothing at all about whether patents are helpful to the economy or not. Anonymous patent practitioners, blindly asserting their own self-interest, are a blight on this blog.
It is pathetic! How lame that Stephan cares. I wish he would just address my substantive arguments.
Stephan, you came here with an argument against the patent system. I pointed out logical fallacies in your arguments. You have not addressed my substantive arguments.
Sheesh!
I think you know that I have been a real adjunct professor and that I am a patent attorney. And, I think you know that I outscored you on the standardized tests.
You are the one wanting to change the game Kinsella. Why are you asking somebody else to prove anything?
There is no need for anyone to post any argument FOR IP until you make a prima facie case AGAINST IP.
You have failed to do so.
But tell you what, you show me just a single solitary uno one modern advanced country that has bought into your claptrap and chucked IP and I might consider you to started to make a case.
Other than that, all I see is your sophist w@nking.
And I am still sure that I outscored you on standardized tests.
LOL. That’s pretty pathetic, Night.
NymWPA: “You have done everything possible to divert the conversation away from the merits. Go back and answer my questions regarding your logic fallacies. But, you are like all academics that get on this board. The game is to pretend to be on the high horse and then when you are losing start claiming that we are losers and illiterate.”
I am waiting for a coherent argument in favor of IP. You have not presented one yet. This is telling.
“Face it, Stephan, you are full of it. Your arguments are filled with logic fallacies.”
Where is your argument for IP?
“I’ve been an adjunct professor, an engineer, inventor, patent attorney, a businessperson, and many more things as well.”
I seriously doubt you have ever been a real adjunct professor or patent attorney or businessperson. But no matter.
“As for the poseur comment that is certainly unfair. You started with the appeal to authority—not me. I merely responded to let you know that not only is that a logic fallacy, but you aren’t anymore of an authority than I am.”
I never claim to be right as an authority.
“And I am still sure that I outscored you on standardized tests. So, you can pack away your IQ claims as well.”
I highly doubt it. You are just some cowardly nobody nym, after all.
“Why is it that your ilk are always such dirty fighters? The funny thing is that you think your vanity press publications have more weight than a blog post.”
Oxford U. Press is a vanity press now? ho-kayyyy
Do you have coherent argument for IP law?
Kinsella is anything BUT sane, reasoned and intelligible. I will grant you that he is intelligent, but he is a sophist and if you actually follow what he says, you will see he is full of crp.
The only thing “deeply troubling” you is that you cannot have your so@pbox here go unchallenged.
When challenged, you go all to pieces and disappear.
Every.
Single.
Time.
You no more want to be ‘challenged’ than you want to have ‘actual conversations’ (which to say, is NOT).
“I for one am grateful for sane, reasoned, intelligent and intelligible contributions to these threads, that challenge my own assessments.”
“…that challenge my own…”
You are a L1AR and a hypocrite.
Your Crybaby Veto ploy has already been exposed MaxDrei.
Your subtle “our deeply troubled residents” Is utter crp.
I am “deeply troubled” due to the never ending specious arguments against the patent system. And, the inability of the academics that post on this board to engage in an intellectually honest debate.
Stephan committed three logical fallacies in presenting his arguments and has resorted to an attack on the person rather than address the substance of my arguments.
Really, MD, try to be an adult.
Oh please MD. Grow up.
I have followed with mounting amusement the interchanges between Kinsella and our deeply troubled residents NWPA and anon.
And then came the mother of all self-delusional utterances from NWPA:
“I have something that you will never have–integrity”
which left me feeling sad.
Don’t be put off Stephan. I for one am grateful for sane, reasoned, intelligent and intelligible contributions to these threads, that challenge my own assessments.
And Stephan, I didn’t Google you. I don’t need to know who writes a paper to evaluate the paper on its merits.
You see I have something that you will never have–integrity.
Although Stephan, if you want to do a real research paper, I could design a study to be done that would support the proposition that patents promote innovation.
But, I guess you wouldn’t want to spend the time to do that would you.
Can anyone of “general intelligence and honesty” understand logic fallacies? You have used three so far.
You have done everything possible to divert the conversation away from the merits. Go back and answer my questions regarding your logic fallacies. But, you are like all academics that get on this board. The game is to pretend to be on the high horse and then when you are losing start claiming that we are losers and illiterate.
Face it, Stephan, you are full of it. Your arguments are filled with logic fallacies.
I’ve been an adjunct professor, an engineer, inventor, patent attorney, a businessperson, and many more things as well. As for the poseur comment that is certainly unfair. You started with the appeal to authority—not me. I merely responded to let you know that not only is that a logic fallacy, but you aren’t anymore of an authority than I am. And I am still sure that I outscored you on standardized tests. So, you can pack away your IQ claims as well.
Why is it that your ilk are always such dirty fighters? The funny thing is that you think your vanity press publications have more weight than a blog post.
I am sure since you have lost this argument that I can count on you spitting in my eye to change the topic.
OK Stephan. You can spell outscored and focus on spelling and simple grammar. You don’t care about logic fallacies.
“This is not an argument for the legitimacy of the patent system”
Really? OK, but it is the truth.
I can live with that.
If you can find an advanced society that buys into ANY of your claptrap, let’s see the empirical evidence.
ALL else from you is sophist w@nking.
And that too – is truth.
anon: “NWPA may have his sky is falling moments, but you have your head up your @$$.”
This is not an argument for the legitimacy of the patent system.
“Your shtick is well known, and you have zero credibility.”
This is not an argument for the legitimacy of the patent system. My argument is not based on my ‘credibility.” NWPA is the one who asked my credentials or my experience with patent attorneys, evidently not being perspicacious enough to do a quick google search to realize that I am already a very experienced one.
“You throw around “burden of proof” – and wrongly so. You want to change to a no-IP system. The burden of proof is on you. I have read what you have offered as “proof” – it is not convincing. It’s flaws have been well documented.”
Its. Not It’s. And what exactly are the “flaws”?
“Here’s a simple exercise for you: perhaps you want to lead the pack of “nym/trolls” that post on occasion here in finding that one single example of a modern advanced society that has seen the light of your dogma and chucked their IP systems. Just one that has done as you desired – let’s see that empirical result. Just one.”
You might as well ask me to find an example of a modern industrial economy that has no tariffs, drug laws, or tax system–and then credit these noxious policies with the prosperity.
It’s a blog you dxmb@$$.
Once again you mistake the currency of sophistry for intellectualism.
You are a sophist – nothing more.
Typos are one thing. I am on an ipad. Etc. Writing “out scored” is not a typo. It is an indication of stupidity. Like writing it’s for its, or they’re for their. These are not typos. They betray an essential illiteracy. The type that makes claims to being an intellectual, scholar, or even good patent attorney laughable.
“And secure enough to use my real name”
That’s not “security.”
Check out the long and honored tradition of using pseudonyms, before ASSuming that the use is tied to “security” or any such tripe (and the implicit – and sophist – implication that not using your real name implies the post is somehow of less quality or import.
NWPA:
“Stephan, the smell of defeat is often the other side making an appeal to authority.”
I made no appeal to authority.
“You haven’t address my evidence. The fact is that the evidence is overwhelming that patents promote innovation. Why there aren’t more studies to this effect, I do not know. I know I could design a study to prove as much.”
Woulda coulda shoulda. I did address your feeble attempt at “evidence”. It is not a fact at all that there is overwhelming evidence. Did you even look at the post I linked showing dozens of studies all leaning against patents?
“Hmm…well, you seem to have conceded that patents do promote innovation but that they are against property rights. Maybe.”
No, I have not. I do not think patent promote innovation. I think they are unjust and contrary to property rights. I also think they hinder, not promote, innovation. And even if patents could be shown to promote innovation in some narrow areas, the cost is not worth it.
“What I see is people that “invent” something after having seen the invention and forgotten about it.”
Sometimes. So what? there is nothing wrong with learning, with competition or emulation.
” I have also desperately tried to innovate and failed and then seen others succeed only to have many take their invention and claim that it was obvious or that they had invented it.”
You cannot “take” someone’s invention. You can only copy it or emulate it or build on it. Dishonestly claiming you were the first one to come up with an innovation is just dishonesty and has nothing to do with patent or copyright. Patent and copyrihgt would prohibit people from using public information *even if* they were perfeclty honest about the source of the ideas employed. This is another dishonest red herring of IP advocates–to mix in claims of “plagiarism” which IP has nothing to do with.
“The fact is that Microsoft research labs is not a study but evidence. It is very hard to show causation in these cases.”
You don’t say.
” But, the number of Microsoft research labs and sales of Motorollas is enormous. I have also worked at innovation centers of corporations and know they wouldn’t be there but for patents.”
Yes, lots of things would not exist but for state interference. So what?
“I will also note that I have not seen a study or paper that patents do not promote innovation that does not contain inaccuracies that render the study invalid and often those inaccuracies appear to be intentional.”
The things is: if you and your kind, who have claimed for a century or more that patents do promote innovation and implicitly cliam that the value of these innovations outweigh the costs of the system, cannot produce in 200+ years a systematic study demonstrating this claim, that you have failed to justify your case. The rest is just thrashing about in an attempt to deny this failure.