Patently-O Bits and Bytes by Dennis Crouch

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115 thoughts on “Patently-O Bits and Bytes by Dennis Crouch

  1. [Philip] Johnson, a longtime attorney for Johnson & Johnson, was a controversial nominee in part because he helped lead opposition to a bipartisan bill, which died in May, that would have made it easier for companies to challenge bad patents and to seek legal fees from so-called “patent trolls.” He has also publicly scorned previous attempts to reform the patent system.

    Pretty terrible choice there, Obama. Next, please.

    I’m curious: can anyone find any quotes from Johnson on the Prometheus v. Mayo decision? That’s about as good a litmus test as any to see if the candidate has a functioning brain or not. Is it possible Johnson never said a word about the decision on the record to anyone?

    If you don’t “get” Prometheus, you really have no business teaching or practicing patent law, much less heading the USPTO.

    1. Sometimes the ability of Malcolm to appear to be a plant for anti-software interests is incredible.

      Contrast his rant with what Hal Wegner noted:

      Once the Administration’s intention to nominate Johnson surfaced, opponents from one segment of industry have come out to label Johnson an opponent of patent reform. Remarkable.

  2. Repeated from below, with minor changes and link added.

    While not (here) endorsing the comments regarding the Royal Nine, it is abundantly clear that NWPA has hit the nail squarely on the head that this is nothing more than a p1ss1ng contest between the branches of the government with the CAFC serving as a proxy for the Congress.

    Never will the Royal Nine let the actual words of Congress get in the way of their power and make their implicit writings become dead letters. See Prometheus.

    With Alice we move beyond “implicit” writing into explicit writing with the insertion of the word “technological.”

    Congress has the constitutional authority to create inferior (subject specific) courts. [They also have constitutional authority to LIMIT the appellate jurisdiction of the Supreme Court – see the wiki at link to en.wikipedia.org

    in pertinent part: “However, the appellate jurisdiction of the Court is different. The Court’s appellate jurisdiction is given “with such exceptions, and under such regulations as the Congress shall make.” – the related wiki links are worth exploring as well, including the one on “jurisdiction stripping.”]

    The only cases taken up by the Supreme Court from this court so designated to be the last word on interpreting patent law is when a clear constitutional issue is at stake. [highest court in the land review for any true constitutional issue can be maintained] The Court lacks this comity, and through that lack browbeats the CAFC – not on constitutional issues, but on pure interpretation issues.

    This finger in the wax nose of 101 is NOT the role that the Court is intended to play.

    The addiction of power runs amuck.

    Further, for those issues that do rise to the level of the Constitution, the Constitution itself is clear (the separation of powers doctrine) that the options available to the Court do NOT include the Court picking up its own pen, becoming a scriviner in its own way, and writing (yes, Ned Heller – writing – a word you seemed to all of a sudden lose your ability to understand) its own version of how it wants the law to be. [Such common law tactics may be considered in other areas of law, but not patent law, as the founding fathers gave strict instructions as to which branch – and only one branch – has that authority]

    1. See also: link to heritage.org

      To wit: “The latter vote was very close, however; James Madison moved as a compromise “that the National Legislature be empowered to institute inferior tribunals.” Madison repeated his earlier argument that “unless inferior tribunals were dispersed throughout the Republic with final jurisdiction in many cases” [the words are emphasized in Madison’s own notes], there would be docket overload and oppressive expense. The delegates’ approval of this compromise resulted in three separate but related constitutional provisions: the Inferior Courts Clause in Article I, granting Congress power (and discretion) to constitute “inferior” tribunals; the phrase in Article III, alluding to “such inferior Courts as the Congress may from time to time ordain and establish”; and the Appellate Jurisdiction Clause in Article III, Section 2, Clause 2, which provides that judgments may be excluded by Congress from Supreme Court review.

        1. Nice chat Malcolm.

          Come back again when you have something substantive to add.

          (and please, in the meantime, hold your breath 😉 ).

          1. something substantive to add

            What in the world can possibly be “added” to your endless b.s. fantasizing about a world where the Supreme Court doesn’t get to interpret the patent statues?

            Even if we were to assume for five seconds that you’re correct … then what?

            Like many w a n k e r s like you all over the Internets, your complete inability to articulate your beliefs about what a sane patent system looks like after you drop your imaginary atmoic bomb tells us pretty everything we need to know about the endless depths of your vapidity.

            Tell everyone: exactly what is eligible for patenting and what isn’t in your Ultimate Fantasy Patent World? Can I patent a new fact? What about a useful method of thinking about that new fact? What if toss in an old conventional data gathering step first? How about if I use an old conventional information processing materials (e.g., a pencil and paper… or a computing machine) to carry out the information processing step (e.g., the recognition of the new fact) or the communication of that recognition?

            Let everyone know. You see, Billy, these issues don’t go away.

            They’re never going to go away. They’re never going to go away because people like me (and there are for more people like me than there are like you, rest assured!) are never going to let you get away with the c r a p that your hero Giles Rich tried to get away with (or was he simply a m 0r 0n? anybody’s guess).

            It’s long past time for you to get used to this basic fact about life in the 21st century. State Street Bank was the height of patent n u t s a n i ty. We’re still pulling the system out of that cesspool. And while you’re not “in the way” you certainly aren’t helping. Maybe get a life?

            1. endless b.s. fantasizing about a world where the Supreme Court doesn’t get to interpret the patent statues?

              Seriously bad spin there Malcolm.

              Writing the map is just not the same as reading the map. You know – or should know – that. Why the dissembling?

              As for articulating…

              You seem not to be able to articulate anything off of your short and vap1d script. When was the last time you had an original thought?

              They’re never going to go away because people like me

              LOL – off watching for children running through the rye again, eh Malcolm? You are a regular legend in your own mind.

              1. Tell everyone: exactly what is eligible for patenting and what isn’t in your Ultimate Fantasy Patent World? Can I patent a new fact? What about a useful method of thinking about that new fact? What if toss in an old conventional data gathering step first? How about if I use an old conventional information processing materials (e.g., a pencil and paper… or a computing machine) to carry out the information processing step (e.g., the recognition of the new fact) or the communication of that recognition?

                Another chance for you to fail, Billy.

                Go ahead, Billy. Surprise everyone with your newfound candor and intelligence.

                LOL.

              2. Nice dust kicking Malcolm.

                Um, how about what is already under discussion here…?

                As for candor and honesty, well that be a “you” problem with your mantra of “intellectual honesty is not required on a mere blog.” line of B$.

                Own it.

                Better yet, change it and post with a little integrity.

              3. “Um, how about what is already under discussion here…?”

                He just said that he’d grant you arguendo your entire tall tale. Got that? He’s willing to grant everything you just said in your little story. For the sake of this discussion.

                So then the discussion moves onward … your move.

              4. So then the discussion moves onward … your move.

                Um,… he does not contribute, so how again is it my move? My move to do what, exactly? Mock him for his lack of contribution?

                Did that.

                His move – just like I indicated.

                (pay attention 6)

              5. “Um,… he does not contribute, so how again is it my move?”

                His “contribution” was to fully concede your “points” in your story above. Then his further contribution is stating that he wants to know where we go from there. Then he’s leaving it open for you to make your move on that front.

                That’s how conversations go. Your move. Be his guest! He’s inviting you!

                I mean, do you not like his contribution or what? Is it an “invalid” contribution for some reason?

              6. So….

                His “contribution” is nodding “yes” and asking for more….

                You miss the point 6 – his asking is in contradiction to his nodding “yes.” He has added nothing to the conversation.

                You don’t understand rhetorical discourse, do you?

              7. “You miss the point 6 – his asking is in contradiction to his nodding “yes.”

                How is it “in contradiction” to his nodding “yes”? To be clear he’s saying “yes, I’ll accept that for the purposes of this conversation, now, go on … tell me more … maybe tell me a little bit about x y or z” There is nothing contradictory about that what so ever.

                “You don’t understand rhetorical discourse, do you?”

                I’ll just say that I don’t so that you can enlighten me on the topic.

                I will say that nobody is doing any rhetorical discoursing today. You told a story. MM says “Ok, granted, tell me more, also maybe tell me more about x y z”. No “rhetorical discourse” involved saving perhaps the small bit in your original story.

              8. I’ll just say that I don’t so that you can enlighten me on the topic

                Asked and answered many times now 6: hold a true conversation, address the counterpoints raised, and incorporate the valid counterpoints into the ongoing discussion, lose the curse-sade and short script machinations.

                It really is not that difficult.

              9. “Asked and answered many times now 6: hold a true conversation, address the counterpoints raised, and incorporate the valid counterpoints into the ongoing discussion, lose the curse-sade and short script machinations.”

                So all we have to do is hold a conversation in the anon-approved fashion?

                Also:

                How is it “in contradiction” to his nodding “yes”? To be clear he’s saying “yes, I’ll accept that for the purposes of this conversation, now, go on … tell me more … maybe tell me a little bit about x y or z” There is nothing contradictory about that what so ever.

              10. (sigh)

                There you go again mislabeling and mischaracterizing things.

                It is not that any such notion is “anon-approved,” but rather simply is the definition of a give and take conversation. Contrast that with the notion of dueling soapboxes.

                This is not difficult stuff, 6 (and it is not so just because I say it is so, I say it because it already is so – just like our past discussions on objective facts)

                On the other point, the contradiction is that he is not actually admitting to the first part even though you attempt to spin it as an acceptance. Ever hear of Br’er Rabbit?

            2. “What in the world can possibly be “added” to your endless b.s. fantasizing about a world where the Supreme Court doesn’t get to interpret the patent statues?”

              Nothing. His Psuedologia Fantastica is quite complete. You have to admire him there if nowhere else. He does quite a complete job when coming up with his tall tales of judicial mischief and adventure!

            3. All those words and nothing to say. You are either a very good troll or someone who needs serious help.

              Tell everyone: exactly what is eligible for patenting and what isn’t in your Ultimate Fantasy Patent World? Can I patent a new fact? What about a useful method of thinking about that new fact? …. or the communication of that recognition?

              To paraphrase someone, If you don’t “get” [the difference between 101 and 102/103], you really have no business teaching or practicing patent law.”

              1. After reading anon’s entire psuedologia fantastica you tell MM that he’s a troll or needs help?

                lol.

                He “get”s the difference between 101 and 102/3, but that doesn’t have anything to do with whether or not you can patent a new fact or a useful method of thinking about that fact. He’s curious, are those things eligible in anon’s fantasy patent world? How about in your fantasy patent world?

              2. Silly 6:

                Accuse Others Of That Which Malcolm Does

                You would easily see this if your beliebs did not get in your way and you did not obsess over me so much.

          2. 6,

            I cannot tell if you are really that ignorant, or just trying really hard to be coy.

            Either way, the ball is in Malcolm’s court to add something (anything) of substantive merit.

  3. “Marcia Coyle: Alito’s Slap at Federal Circuit Provokes Patent Bar [Subscription Required]”

    Maybe someone with a sub can give us the meat of what was said. Just who in the bar is provoked, how specifically it was done and to what extent are they “provoked”? Did they raise a great whine “as one”?

  4. “Based on the patenting and licensing activities of survey respondents, I estimate that university patent programs earn a negative 3.5% rate of return on high-tech patents.”

    Lulz! Sounds about right!

      1. If you have a different perspective then be our guest and share it with us anon. Especially if you have this “data” you’re referring to at hand.

          1. Ahh yes, the ol tried and “true” “but but but everyone that attempts to gather evidence on these topics fails to do so!” coupled with the ol’ “and I don’t understand what the paper is saying therefore it must be ridiculous!”

            Let’s take a look shall we?

            Zeidman says that only 2,387 questionnaires were sent out to .15% of all the professors in the US. He of course leaves out that “most” professors don’t do anything relating what so ever to the useful arts and even fewer are inventing with fewer still inventing non-obvious inventions. So it would seem to be the case that we ought to just bump that number up to a solid 1% of the profs in the useful arts in the US (even though the number is likely much greater, maybe 2-4%).

            Even so, he only got 200 some responses. It’s true, not a great response rate. But then, most profs aren’t getting sht from their “inventions”, patented or not, so why would they care about this questionnaire? How are you ever going to gather data from those people that couldn’t give a dam less about the whole thing? He asks the nigh impossible from the gatherer of evidence.

            Then he goes on to question whether the 30k is for the prof or the school as a whole. Anyone with any exp in licensing knows the answer to that already. Surely schools aren’t getting that might higher than the avg licensing rates (last I heard they’re like 25kish). Again he brings up something implausible as his “argument”.

            Then he wonders how the paper can both say that universities do not (on avg mind you) earn a return on their investment in patents and at the same time concludes that more than half of respondents do not know anything about what the survey was purporting to study. And how is that surprising? Most people go about their day to day not knowing a dam thing about patents etc. And of course the prof was just there to collect the data not quiz the people about that which he was studying.

            And then someone at the conference turned around and told him that these results matched those of other research. And he just hits the roof thinking that the other person is talking strictly about consistency in “models” rather than “results”. And he thinks these sorts of studies ought to be able to “predict reality”.

            The man is batsht insane. But you’d expect that from someone whose livlihood depended on the results being different.

            He brings up one good point though in so far as it would have been nice to have gathered some data from the uni staffs themselves. And I’m sure if they’ll be so kind as to hand that out to researchers someone will gather that data. Somehow I rather doubt that a lot of programs will so handily give that data away if for no other reason than the people who control the data have their livelihoods depends on it as well.

            Look I’m all for having the best evidence before us. But that evidence needs to be obtainable.

            Frankly I’d love it if uni patent programs were generating hundreds of thousands of dollars a year for unis. I’m all about funding unis brosef. It’s just that every indication I hear is to the negative. And I’ve never once had any of my celebrated profs tell me all about how they’re raking in the big dollars through licensing done through the school and how I should get in on that game.

  5. [Philip] Johnson, a longtime attorney for Johnson & Johnson, was a controversial nominee in part because he helped lead opposition to a bipartisan bill, which died in May, that would have made it easier for companies to challenge bad patents and to seek legal fees from so-called “patent trolls.” He has also publicly scorned previous attempts to reform the patent system.

    Pretty terrible choice there, Obama. Next, please.

    I’m curious: can anyone find any quotes from Johnson on the Prometheus v. Mayo decision? That’s about as good a litmus test as any to see if the candidate has a functioning brain or not.

    1. “functioning brain” ??? MM, what are you talking about? According to you all information is the same and there is no utility to information processing. So, what in the world worth is the brain?

      Man, you are such a dirt bag.

    2. MM, I think he was a good choice as he was against the extremist legislation known as the Good Latte bill, and its corresponding Senate counterparts.

      That shows sound judgment.

      That he favored the Big Company bill, the AIA, is understandable given his employer, J & J.

      What this goes to show is that anybody who has expressed an opinion either on the AIA are on the anti-troll legislation is going to draw fire. It may not be possible to find a qualified individual who has his powder dry during this time of heavy lobbying of Congress.

      And, MM, I hardly think that anybody that approves of Prometheus or of Alice, or has anything nice to say about Benson, or the problem of functional claiming, is going to be selected by President Obama because the patent bar as a whole is still solidly in the “Rich” camp, and views the Supreme Court with extreme hostility and Judge Rader, Judge Rich and their ilk with extreme fondness. People who think like you and I are pariahs to the organized patent Bar.

      1. Ned,

        Your “politeness” aside, your immediate sense of what is “good judgment” is irreconcilable with whatever passes as “judgment” from Malcolm. Perhaps you would like to inquire from Malcolm just how he formulated his “judgment.” I will reckon that “grift” will play a role (as in, people wanting to make money through the perfectly legal means of the patent system).

        1. anon, Kappos is against the Good Latte bill.

          The administration’s support of the extremist Good Latte bill can only be attributable to Lee, ex of Google.

          I for one have changed my position on Lee. She has to go.

          1. The point that I was making Ned is that your view here is not compatible with Malcolm’s view.

            At all.

            Perhaps you can strike up a friendly conversation with him and have him explain his critical thinking and how he arrived at his view.

          2. Lee has to go.

            Yeah. What those of us that aren’t blind have been saying from before she walked in the door. Just look at that dirt bag’s agenda. Nothing about doing real work. All of her focus is on burning down the system.

            Filth bag of the lowest order. I guess that $10 million pay day from Google is all that counts.

      2. Ned: “the patent bar ….. ” (lots of characterizing us in very broad terms as if we are of one mind.)

        Ned, the patent bar understands patent law. I see on a daily basis how patents are used to promote innovation. I see on a daily basis the massive misinformation campaign by the anti-patent league. Lee is focused on burning the system down. Laurie is a judicial activist. Lemley is entrepreneur that is making big money off of burning the patent system down while rationalizing it that he serves the far left.

        !!!!!!!!!REALITY!!!!!!!!!!!!!!

        You see Ned it all is about reality. When real science and real economics and real world examples are discussed than the nonsense of Lemley’s functional claiming “problem” come to light. Did you read Lemley’s vanity published misinformation tripe? Read it. Misinformation. I would call it garbage, but that isn’t what it is as it has ignited the anti-patent crowd in their pogrom.

        1. Night, patent attorneys may know the law, but most do not run actual companies, are VC’s, banks, or individual inventors. The views of all these people count, and they and the government set policy. It is the patent attorney’s job to see policy in the best way, with least collateral damage.

          But the patent bar itself is biased by self-interest, because they work mainly for large companies. They are not going to say anything that is going to ruffle the feathers of their clients. In other words, on the whole, the patent bar is another mouthpiece for big business.

          Once big business wants something done, it gets done. That was the AIA. But now big business as split on the remedies for the so-called troll problem. This is good for all of us.

          But we need to get the administration looking for remedies that all parties can get behind to fix whatever loopholes in the system that are being exploited by the trolls. But one of the first things we must do, is come up with a very good definition what a troll is. No one seems to be able to adequately define a troll by means of status. It is the actions they take which are the abuse.

          1. The condescension drools off your post Ned. The patent bar is not so monolithic as you say. I agree on two things you said big business gets what it wants and right now big business is split on burning down the patent system. If the smelly arts had been split from the electrical and mechanical arts, then we would have no patent system for electrical and mechanical arts.

            But, Ned, the reality is that it is probably best to do nothing right now. The effects of the AIA have not been felt yet and the federal courts can clean up local rules. That is enough for now. The best thing is to just see how things go for a couple of years.

            1. Night: “But, Ned, the reality is that it is probably best to do nothing right now. The effects of the AIA have not been felt yet and the federal courts can clean up local rules. That is enough for now. The best thing is to just see how things go for a couple of years.”

              Add to that the recent decision from the Supreme Court about awarding attorneys fees exceptional cases, and any litigation abuse by so-called trolls can be taken care of by the courts.

              So, we should simply stop with anti-troll legislation right now, as most big companies do not agree with it, and because it is radical.

              So, we are in agreement here.

              1. The AIA was a big jolt. It offers many weapons for the infringer. Yes, we agree. Do no more for now.

                Let’s see how this pans out. There are lots of ways that companies are adapting.

                (Still: I think that TSM, for example, is a perfect example of how the SCOTUS has destroyed patent law. TSM was nearly a perfect for implementing. An objective type of test that could have been developed and used as a perfect tool to improve examination. Instead, the 9 burnt it down, ’cause they know better than the Fed. Cir. and they want their case law prior to 1952 adhered to no matter that it was wiped.)

              2. KSR did not overrule TSM. Just not exclusive.

                I really haven’t had any problem with KSR with Examiners.

                It remains to be seen with the PTAB.

              3. In fact Ned, I would say that KSR should be used as an example as to why the SCOTUS should be removed from patent jurisdiction, which is possible.

                TSM was a test for future. A test that would have been great in application and cut fees and friction enormously. And, who is to say that the Fed. Cir. can’t define obviousness under 103 as they did? Only the SCOTUS that ignores the 1952 Statute and the creation of the Fed. Cir.

                KSR–as it should have been: “We are not in position to judge this matter as we are ignorant of the real world and science. Most of us do not know who Newton was and could not even solve an algebraic equation if our lives depended on it. Moreover, the Congress passed the 1952 Act to end our federal common law building and created the Fed. Cir. to interpret the 1952 Patent Act–not us. So, we pass. Signed the psychotic 9.”

              4. While not (here) endorsing the comments regarding the Royal Nine, it is abundantly clear that NWPA has hit the nail squarely on the head that this is nothing more than a p1ss1ng contest between the branches of the government with the CAFC serving as a proxy for the Congress.

                Never will the Royal Nine let the actual words of Congress get in the way of their power and make their implicit writings become dead letters. See Prometheus.

                With Alice we move beyond “implicit” writing into explicit writing with the insertion of the word “technological.”

                Congress has the constitutional authority to create inferior (subject specific) courts. The only cases taken up by the Supreme Court from this court so designated to be the last word on interpreting patent law is when a clear constitutional issue is at stake. The Court lacks this comity, and through that lack browbeats the CAFC – not on constitutional issues, but on pure interpretation issues.

                This is NOT the role that the Court is intended to play.

                The addiction of power runs amuck.

                Further, for those issues that do rise to the level of the Constitution, the Constitution itself is clear (the separation of powers doctrine) that the options available to the Court do NOT include the Court picking up its own pen, becoming a scriviner in its own way, and writing (yes, Ned Heller – writing – a word you seemed to all of a sudden lose your ability to understand) its own version of how it wants the law to be.

            2. The condescension drools off your post Ned.

              That’s what happens when you drink too much from goblet of “Flash of Genius” and wish to constrain the patent system only to the elite.

  6. Universities earn -3.5% on patents? Either there’s a serious miscalculation there leaving out grants, or that’s a LOT of staff. Given how other university departments work, I’m guessing it’s a staff overload. That, and they file provisional instead of getting good non-provisional protection (or issuance) and aggressively looking to license. Some even require potential licensees to approach THEM. Academia is just a backwards upside down place that I’ll never understand.

    1. bja,

      I am not sure you grasp the earnings versus cost “nuance.”

      Staff is a cost. Income from patent licensing is an earning.

      These go in different “buckets.”

    2. This one caught my eye too, so I just had to look. It seems like all of the revenue “data” came from a survey where professors were asked the following:

      “Have any of your university patents brought in licensing revenue for your university?
       Yes
       No
       One or more of my university patents was licensed, but those license(s)
      never generated any revenue for the university.
       One or more of my university patents has been licensed, but those
      license(s) have not YET generated any revenue for the university.
      If so, how many of your university patents have been licensed?
      ___________________________________________
      Also, if so, about how much total licensing revenue have your university patents earned? (A gross approximation is sufficient.)”

      1. May I suggest that you contact WARF or the California University systems if you want to look at some hard-core data?

        I have worked with university tech-transfer clients in the past – they run the gamut of sophistication from none to on par with anyone out there.

  7. “Controversial Patent Office Nominee…”

    Where is my time machine? 1776 please…

    How far will Obama and the anti-patent (this is a misnomer, everyone knows it’s really the anti-“patent rights holder”) camp take the Patent System? How soon before it becomes:

    The State Ministry of Industry and Technology: “to regulate technological innovation and commerce for the welfare of the public and to redistribute risks and benefits derived form the innovative mental resources of the State for all stakeholders and the community at large.” [Hypothetical]

    What happens to America when it does? Is it already too late? Is the momentum towards omni-pervasive/pernicious [not a word] State control in each and every area of our lives too great to even fight it?

    Sorry, this political pragmatic poll pandering flip flop (perhaps belaying an original reluctance with the original candidate from the start) dropping who undoubtedly would have been an excellent choice for head of the USPTO is extremely depressing to me.

    1. Hyperbole much?

      Johnson was by no means universally considered an “excellent choice” to be the big boss. Sens. Schumer and Cornyn both voiced very strong concerns, and that suggests that confirmation hearings would be messy even if they turned out to be successful.

      1. I sincerely hope that my post contains only exaggeration and alarm.

        As to whether or not in fact it will indeed only be Hyperbole rather than a prediction based on integration. only time will tell. Give it 100 years, maybe things will turn around.

    2. Basically, money (lobbyist) got involved in the PTO. Now, Obama gets millions for the Democrats by appointing judges like Tarantula and putting a shadow director like Lee in.

      It is $$$ just like every other part of system now and the $$$ want to burn down the system (except for smelly arts.) If they bifurcated the patent law like was attempted in some early AIA lobbying, then we would have no patents for the electrical arts right now.

      1. Yes, Steve. And, Obama says, “Each time I appoint another ignorant anti-patent judge the Googles give Democrats another $10 million.”

        And, “That Lee was worth at least $50 million to my Democrats.”

        1. Night, I think you are just being cynical.

          Moreover, Obama does not do things to benefit Democrats in gen eral. Just one Democrat

          1. I think his cynicism is born of his passion and his frustration with the politics and agenda-driven, whatever-means-justify-the-ends machinations that have captured an agency and nigh a whole system.

            It might stem from the fact that both the Left and the Right want a common goal, and many here cannot get out of their own way in seeing what is unfolding in plain sight.

          2. Cynical when Lee comes to be approved by “business leaders” in the Oval office and then is appointed shadow director and announces various kill the beast proposals. Cynical? And the Pope isn’t Catholic.

          3. Speaking of Obama…

            Is it no surprise that he posts an obviously “Big-Corp” influenced white paper at the beginning of last summer, to be followed by a GAO report that wrecks the premise of that paid-for white paper, followed by Democrat-crony (Sorry Ned – not just one involved) legislation that is widely panned and withdrawn (even as the propagandists still proclaim how widely accepted the withdrawn legislation was), and then political payback is rendered upon an appointment – what nearing 800 days??? past due).

            Leadership by abdication.

            link to quinnipiac.edu

          4. The president who based a campaign on transparency is transparent where he does not want to be and is not transparent where he needs to be.

            Face it folks, it is not because he is a democrat. It is because he is a politician.

          5. You want pollyanna instead of cynical, Ned?

            Today, Hal Wegner shared not one but two blistering items critical of executive office malfeasance (lower down the foodchain from Obama) directly linked to the IP functions (one copyright, the other patent).

            While the Payne letter might be taken with a grain of salt (to offset any bitterness of grapes), taken together, the Payne letter and the OIG investigation indicates a very real basis for the support of cynicism.

    3. How far will Obama and the anti-patent (this is a misnomer, everyone knows it’s really the anti-”patent rights holder”) camp take the Patent System?
      Obama gave us Kappos, Bush gave us Dudas.

  8. “Adam Mossoff reveals that the O’Reilly v. Morse opinion ‘was not a sterling exemplar of patent law'”

    Can’t wait to get Ned’s reaction to this little bit of academic scholarship.

    1. It’s already known to be so – the Court (regardless of how well it fits) still refuses to treat the Morse decision as a 112 item and the Court chooses to treat the case as a 101 decision.

      I do not think that Ned would balk at all in at least the regard that the Court is misapplying the law and using a 112 issue in a 101 context.

      Of course, getting Ned to admit that the Court is the main culprit in messing up 101 jurisprudence (even though the treatment here is yet another clear sign of such) is a different question, given Ned’s fealty to the Royal Nine.

      1. Alice’s 100 decision is judicial activism at the highest level. Imagine if the SCOTUS came up with such a decision for real property. We trump the statute and Constitution completely and base our decision on no facts and take the property. I think it would be easy to come up with some trumping law where you can take real property with no facts, no jury, just the imagination of the justices.

    2. Morse made to significant inventions not even arguably disclosed elsewhere by others: his system of dots, dashes and spaces (on a moving scroll) and his repeater system. The repeater system was critically important to allow communications over “any distance” which is the real subject matter of claim eight. When using batteries, the ability to move an armature decays. At 10 miles, no battery could move the armatures. What Morse invented was a repeater, whereby the one battery closed a circuit on the next. Signals could be communicated at any distance.

      I didn’t read in Prof. Mossoff paper any discussion of the repeater invention. Perhaps I missed it. In fact, I don’t see claim eight quoted anywhere in his paper.

      Claim 8 was an attempt to claim an Art (process) for printing at “any” distance. It did not, however, describe or hint at the repeater. Had Morse added that simple concept to the method claim, it probably would have been valid.

      All one has to do is read the dissent in Morse to see that it was a close case on claim eight. The reason that Morse lost was that he specifically disclaimed in claim eight any limitation to the machinery disclosed in his specification. Had he included the repeating principle, however, I think he might have prevailed.

      And as anon notes, the Supreme Court did cite statutes, but specifically referred to “112” as the reason why the claim 8 was void.

      But reading the majority and dissent together, the problem the Court was dealing with in claim 8 was breadth, although, there was some discussion in both about what was meant by Art. But the decision did not decide what Art meant and then say this was not an Art. It decided that the claim violated “112.”

      1. Come again Ned with your (abruptly dropped) discussion on ineligible “physical” and ineligible “intangible”…..

        1. I have previously quoted the Morse definition of Art — they quoted Curtis.

          “The term art, applies,” says he, “to all those cases where the application of a principle is the most important part of the invention, and where the machinery, apparatus, or other means, by which the principle is applied, are incidental only and not of the essence of his invention. It applies also to all those cases where the result, effect, or manufactured article is old, but the invention consists in a new process or method of producing such result, effect, or manufacture.” Curt. on Pat. 80.”

          The clear implication here is that Art referst the effect of by a machine, apparatus or other means, but the details of the machines, etc. are not the invention.

          Morse did not approve of manipulating information.

          1. Ned,

            I have debunked your use of Curtis ( a mere scholarly treatise) on more than one occasion, and dealing with more than one issue.

            Mere reference then to such an aged treatise – written before the 1952 Act, does not suffice.

            I will remind you (again) that “essence of the invention” is one of the myriad terms that Congress reacted negatively to in its actions of the 1952 Act. Your reference to those terms – as acted upon by Congress – without properly reflecting the change in law that factually occurred is without merit. In a very real sense, you are assuming your conclusion by depending on that argument.

            Lastly, Morse is inapposite to the “manipulating information” argument – you cannot use the silence therein to bolster your position.

            I would suggest in its place you reference a brand new case (the first by the CAFC post Alice – and won by attorney Lemley: Digitech at link to cafc.uscourts.gov

            Your argument is made much more strongly there. Please be careful in your reading, though and note exactly what was (and what was not – i.e. software) actually reached by the claims – in particular, the court rejected the argument that the claims reached software.

            Note too, that the decision does rest on Nuitjen – and you know well how fragile that controlling law is (to anyone that understand actual reality, or cares to look up into a clear night sky).

            1. I’m sorry, anon, but Supreme Courts cases are not overruled unless plainly inconsistent with subsequent acts of congress.

              I see nothing in the ’52 Act decrying prohibitions on printed matter and business methods that had by then been well established as non statutory.

              1. Tell me Ned which Supreme Court cases pre-1952 are you relying on for this assertion of yours against printed matter** and business methods?

                And pray tell (as you have yet to answer), why would an act of congress installing a limited defense against business method patents be even necessary if – as you allude, business methods had been “established” as non statutory?

                **You STILL don’t get that it was a judicially created doctrine that eliminated Set B type of printed matter, do you?

                Do you not realize that the patent weight of Set C printed matter has been recognized, clarifying what printed matter belongs in the judicially created doctrine covering Set B printed matter?

                Do you find it odd that you refuse to address my easy to understand explanation?

              2. business methods had been “established” as non statutory?

                Which “business methods” are eligible, Billy, and which one’s aren’t?

                Surprise everybody, Billy. Let’s see some evidence of your “original thoughts.”

                LOL.

              3. Pay attention Malcolm, as I have held your hand on this many many many many many many times.

                Business methods – as a category – are every bit as patent eligible as any other category type of methods, be those categories medical methods, bicycle manufacturing methods, or what not.

                No matter the category (and apparently for the Royal Nine) , the category ITSELF does not matter and everything (including business methods) must still be evaluated under the (implicitly) written rules.

                The attack on business methods is just a curse-sade.

              4. Business methods – as a category – are every bit as patent eligible as any other category type

                Sure. Like mental methods.

                the category ITSELF does not matter

                Sure, Billy. Whatever you say.

              5. There you go again dissembling and trying to introduce the strawman that only Les struggles with.

                Is it really that difficult for you to grasp that ever so cool word:

                anthropomorphication

                Dig it, bro.

      2. Morse claim 5:

        “Fifth. I claim as my invention the system of signs, consisting of dots and spaces, and of dots, spaces, and horizontal lines, for numerals, letters, words, or sentences, substantially as herein set forth and illustrated, for telegraphic purposes.”

        Sorry Ned – no moving scroll, pens, paper or other physicalities in this claim.

          1. Also – distinguish from claim 6 – which does reference the physicalities.

            Your construction here cannot hold, as then claim 5 and claim 6 are exactly alike.

        1. The article’s author suggests this claim may be the first software patent claim, for the important invention of binary code signal transmission, which Morse apparently invented.

      3. Ned, yes, that paper does note the vital importance of the Morse repeater [relays] invention to long distance telegraphy, and makes the point that only the omnibus REISSUE patent claim 8 was rejected by the Sup. Ct. [as too broad] not his various other claims including that one. That claim 8 probably still would be rejected by present courts, although whether that rejection would now be for being solely a 101 abstraction and/or preemption, or for 112 “written description” or “inadequate numbers of spec examples” for such a broad claim, or for some other reason, is speculation since those were not part of the law way back then or even how claims were normally viewed back then.

        1. Yes, it is there, at page 23.

          It is interesting to note that others recognized the “relay” as a great invention all by itself.

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