by Dennis Crouch
The patent statute identifiers “infringers” as those who make or use a patented invention without permission of the patentee. See 35 U.S.C. 271(a) (make, use, sell, offer-to-sell, or import). The statute goes-on to also create joint-liability for inducting infringement. 35 U.S.C. 271(b) (“Whoever actively induces infringement of a patent shall be liable as an infringer.”).
In Commil v. Cisco, the Supreme Court is focused on inducement and the question of whether “a defendant’s belief that a patent is invalid is a defense to induced infringement” even when the patent is ultimately found valid and the belief proved unfounded. The Federal Circuit held such a belief to be sufficient – if in good faith – to excuse allegations of inducement. Commil challenges that new rule of law. In its opinion, the Federal Circuit wrote that “[i]t is axiomatic that one cannot infringe an invalid patent” and thus one cannot induce infringement of a patent [wrongly] believed to be invalid.
The first round of merits briefs have been with the Supreme Court. In its brief, Commil does a good job of characterizing the case:
This case presents the question of whether a defendant may know about a patent, know that the patent is potentially relevant to its commercial activities, intentionally cause its customers to act in a manner that directly infringes the patent, and then avoid all liability because it subjectively—but incorrectly—believed that the patent was invalid. Cases in which the defendant’s belief of invalidity was correct, of course, will never implicate this question, as in those cases the patent will be invalidated and a finding of invalidity moots the infringement question.
[Commil Brief].
A core issue in the case is what the court meant in last term’s Global Tech decision when it held: “induced infringement under § 271(b) requires knowledge that the induced acts constitute patent infringement.” Here, Commil seems to have the best historical argument based also upon Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476 (1964) (“Aro II”).
In its brief, Commil also does not let go of the sideshow that throughout the trial “Cisco’s counsel used religious references and played on stereotypes about Commil’s owner and inventors, who are Jewish and reside in Israel.” [See Patently-O]
A number of entities have filed briefs in support of Commil. Writing for the IPO, Paul Berghoff explains:
This new defense is unsupported by the text of Section 271(b), which nowhere mentions validity. Indeed, the patent statute lists noninfringement and invalidity as separate and distinct defenses in Section 282(b). Infringement and validity are independent questions and, although invalidity may preclude a defendant’s liability in a patent suit, it does not preclude a finding of infringement.
In practice, the Federal Circuit’s decision in Commil renders inducement wholly ineffectual as a patent enforcement tool.
[IPO Brief in Support of Commil].
AIPLA largely agrees with the IPO – arguing that the new defense will “significantly undermine the ability of patent owners to enforce their rights against indirect infringers, which is sometimes their only realistic mechanism for enforcement against infringing competitors.” [AIPLA Brief]
Filing its own amicus brief, the U.S. Government (SG) also agrees with Commil – and takes a position that would re-invigorate inducement as a cause of action. Namely, the U.S. Gov’t argues that inducement only requires receipt of the patentee’s viewpoint that the conduct is infringing. See Aro II. The Government’s point here is that the Federal Circuit is way off-base because its premise – that a non-infringement-belief avoids infringement – is wrong.
Several industry briefs explain the negative impact of the decision on their industry.
- Gilead Sciences: Treatment method patents are all-but lost.
- Abbvie: The pharmaceutical industry depends on patents that may only realistically be enforced against indirect infringers.
- PhRMA: These new uncertainties may chill research.
One of the more interesting briefs was filed by the Medical University of South Carolina (MUSC).
[T]he Federal Circuit’s new rule directly conflicts with the presumption of validity awarded to patents under 35 U.S.C. § 282 and with this Court’s holding in Microsoft v. i4i (2011) that § 282 requires an invalidity defense to be proven with clear and convincing evidence. Furthermore, the Federal Circuit’s new rule will require courts to develop an expansive new body of case law for induced infringement, contrary to this Court’s guidance in Limelight v. Akamai (2014).
Anything I post, which exceeds one line, just vanishes. Please, anybody know why?
Usually that’s because of a trip word max. Of which there are many. And many of the make no sense.
Tks 6 but I’m not convinced. When that happens I get an in moderation flag, and that I ‘m not getting.
Max – we’re having some technical difficulties and are now working through them.
(In only half-jest)…
It’s only obvious software, how can you be having technical difficulties?
Moving away from the invalidity/infringement dichotomy, if the accused inducer had a good faith belief that the patent was not *infringed*, would that be a defense to inducement? Or would that merely shield him from a willfulness finding per Seagate?
Meanwhile,
Assume the following: Your client comes to you with a product marked with a patent and asks you if he supplies the components of the product to others with instructions on how to assemble them does he infringe. You give him your opinion that the patent does not cover the marked product. Would you then say to that client that even if you are wrong, the client does not infringe by inducement even though his customer is found to directly infringe?
Next the customer sues your client for breach of contract — because, on your advice, your client gave the customer a warrant against infringement. Is your opinion a proper defense to such a breach?
This one shouldn’t even be close. The Federal Circuit has truly mangled the law on this issue. If direct infringement is a strict liability defense, what possible rationale could there be for allowing someone, with knowledge of the patent and the patent owner’s belief they are infringing the patent, that is actively inducing another to infringe to escape liability based on a wrong belief that the patent is invalid. How can one have an objectively reasonable belief that a patent is invalid that is objectively determined to be valid?
PB: How can one have an objectively reasonable belief that a patent is invalid that is objectively determined to be valid?
I’m not sure what the term “objectively” adds to the concept of “reasonable” in this context.
Patent law and many other aspects of commercial law have worked successfully with the concept of a “good faith belief”, whereby an individual’s honesty and reasonableness are evaluated by people allegedly trained to do so.
That said, if you are troubled by the question you presented then try to wrap your head around the recent GoreTex case where a dissenting Federal judge (Newman) apparently held beliefs that were deemed so “reckless” by the majority that they merited punishing a similarly inclined defendant with sanctions in the hundreds of millions of dollars.
>I’m not sure what the term “objectively” adds to the concept >of “reasonable” in this context.
It adds a lot. It gives far more weight to the jury decision because we don’t have to consider the D’s subjective beliefs. Times like this that I question your contention that you are an attorney.
NWPA: It adds a lot. It gives far more weight to the jury decision because we don’t have to consider the D’s subjective beliefs.
I don’t understand why you are bringing “the jury decision” into this.
We’re talking about the difference between “objectively reasonable” and “reasonable” in the context of patent validity. My point is that in the patent invalidity context I’m not sure where the “subjectivity” comes into the equation. There’s no subjective component to the validity analysis. For example, if the patentee murders my wife, that doesn’t affect the validity of the patent. It might affect my belief about the patent’s validity but there’s nothing “reasonable” about that belief.
“This one shouldn’t even be close. The Federal Circuit has truly mangled the law on this issue.”
Agreed. I had held out hope that the CAFC would improve, but this is not encouraging.
“If you have a point to make, try typing it out in declarative sentences.”
Not even messing with him, I do really think those really would help anon make his points.
Not only is Commil correct on the history, but common sense applies – here whole industries (correctly) argue that they could not enforce their patents in a rational way using Cisco’s theory. Congress did not intend to issue patents that could not be rationally enforced. The inducer can get the patent invalidated anyway, so adopting Commil’s viewpoint has no substantive harm to an inducer, just an extra step.
The SC isn’t s tupid, if you tell them that the options are suits against every doctor proscribing a drug or one suit against the drug manufacturer, the manufacturer is in the best condition to fight the patent and judicial economy applies.
If it’s a new drug that is being manufactured then the drug manufacturer is a direct infringer.
But consider what happens if it’s an old drug that’s being manufactured and the patent protects the method whereby “new” “people in need” ingest the old, public domain drug to address their “new” “need.” Let’s say the manufacturer is aware of the method patent but has many good reasons to believe that the method is invalid. In that instance, why should the manufacturer be subject to a lawsuit for advising potential patients of the beneficial use of its public domain product (and/or its beliefs about the validity of the method patent)? Is the public interest served in any way by such a rule?
Of course, all this talk about “drug manufacturers” is kinda silly because this is the Age of Information. The era where people can make money (and by that I mean big, big, money — the only kind that matters!) by manufacturing stuff is over. The real issue is the inducement of functionally claimed computer-assisted methods of processing and communicating information that, in nearly every instance, should never have been granted and don’t belong in the patent system in the first place.
If you want to see another great example of how badly the system has gone off the rails, try keeping your lunch down while reading the all-function-all-the-time claims at issue in Pabst Non-Practicing Entity vs. People Who Actually Make Digital Cameras which the CAFC published today. Then read the panel’s claim construction analysis. The best part is probably the bit about the “limitation” reciting devices that are “customary in a host device” (nope, nothing at all indefinite about that!) but there’s all kinds of nuttiness throughout. How about that “interface device” that includes sub-“interface devices” for “interfacing” with the “interfacer”?
It would be funny if it weren’t such an incredible waste of time and money. But some judges decided long ago that we really, really, really need this kind of stuff — along with all those lawyers whose knowledge of science and technology could fit in a thimble with room to spare — in the US patent system. Yay!
It is kind of crazy.
All of these really smart people arguing about the meaning of a “second connecting device…”
Seriously, try explaining this issue to someone not invested in the patent system.
The era where people can make money (and by that I mean big, big, money — the only kind that matters!) by manufacturing stuff is over.
Someone should tell Cisco, Apple, or Samsung — or Huawei for that matter.
Inventors have been developing digital switching and interworking technologies for decades. While the 4ESS (1976) did not have an ALU (as I remember), it was by all other standards a programmable digital computer.
link to corp.att.com
Why should such technology suddenly be patent ineligible?
JM: Inventors have been developing digital switching and interworking technologies for decades.
Decades? Wow. Given the long long history of the patent system where logic and information could have been protected with patents but wasn’t, it’s a very recent development … but still I’m super dooper impressed by those “decades” of patenting. Changes everything!
Or not.
Someone should tell Cisco, Apple, or Samsung — or Huawei for that matter.
Someone should tell Big G Quinn:
Long ago the manufacturing jobs started leaving and they are gone and not coming back. To the extent that the US has anything other than a service economy it is thanks to intellectual property and intangible assets, and everyone who seriously considers the matter knows that the chief intangible asset for businesses is software.
See? In the future everyone will be working at programming computers, patenting the functionality of those computers, and suing people who program computers. It’s going to be awesome! Promote the progress, baby! It’s working great so far, as long as you’re in the loop. Let’s grab some popcorn and watch the country’s infrastructure collapse on “streaming video” which is, like, totally different from other kinds of data.
Decades? Wow. Given the long long history of the patent system where logic and information could have been protected with patents but wasn’t, it’s a very recent development … but still I’m super dooper impressed by those “decades” of patenting. Changes everything!
Digital computers have only been around as components in machines and manufactures since the middle 1950s. Digital computers were so big initially that it was hard to find machines where they usable as components. The 4ESS on which I worked filled a three story building.
The patenting of program-executing devices and their programs go back to 1801 when Napoleon granted a patent for the Jacquard Loom. That patent in fact precedes the modern patent form, which is first found in Robert Fulton’s steamboat patent of 1809.
Thus program-executing systems and their programs have been claimed as patent-eligible since the beginning of the modern patent system.
Facts only get in the way of Malcolm’s scripts.
Joachim,
Did Jacquard Loom’s invention distinguish over the prior art based on the structure of his machine and the way in interacted with the ‘punch cards’ (for lack of a better word)… or…
Did he distinguish over the prior art by the information content of the punch cards? Just curious.
go,
Check out that Vast Middle Ground.
Then check out the Act of 1952 which opened up the use of terms sounding in functional language (and more than just in what is now 112(f)).
Can we (politely) have you stop the cheerleading mantra of others?
Thank you ever so much.
I read about the Jacquard loom patent back in a history of science course that I took in 1975. I simply don’t remember the details well enough to respond, but as I recall Napoleon decided the device and system was sufficiently worthy that he granted Jacquard lettres patentes.
I think we all pretty much agree that the first loom capable of altering its pattern based upon the use of punch cards deserves a patent
If a computer and software where exactly the same as a Jacquard loom, then and only then you might have a point.
They are not.
You do not.
Joachime: Digital computers have only been around as components in machines and manufactures since the middle 1950s.
I never said otherwise. In fact, I’ve made the same observation here — and repeat it so everybody remembers – on a regular basis here. Digital computing machines are indeed very old. But protecting new digital computing machines (or any other kind of computing machine or machines generally) with patents is different from protecting information and logic with patents. I know that might be very difficult for you to understand but you should certainly try.
Frankly, I don’t think you’re capable of having an intelligent conversation about the topic if you are already going off the rails. Good luck.
“Frankly, I don’t think you’re capable of having an intelligent conversation about the topic if you are already going off the rails.”
Nice.
That’s a gem of a way of inducing an actual dialogue.
Roughly translated: “oops, I don’t like the points you are making so I am going to pre-emptively insult you and not carry this conversation forward past my usual short script.”
Whew, it’s a good thing that we don’t have to actually answer the question as to whether anyone would confuse abstract thoughts with actual machines and manufactures…
Thus program-executing systems and their programs have been claimed as patent-eligible since the beginning of the modern patent system.
The patent clause predates anything you cited.
Regardless, in my view the problem is not that software patents exist, but that they are functionally claimed in such an overbroad manner. Applicants claim not only their code, but any processor-using device which achieves the same result, which has traditionally been subject to an abstract idea rejection, and has traditionally been routinely seen as overbroad under 112, 1st.
A properly sized software patent claim isn’t commercially valuable. A commercially valuable software patent claim generally doesn’t validly exist.
I tend to agree. That’s why I’ve (and I’m sure there are others) proposed a separate system for software patents.
Something relatively narrow but relatively easy to obtain, with a relatively short duration (5 years maybe?).
You’ll have to pull the patent bar kicking and screaming, of course.
Why bother when patents are just fine?
Oops – you would have to actually make your case first (and you just have not done that).
“anon”: you would have to actually make your case first
Your team has been making the case for us at an acclerating rate for the past few years.
Please keep up the great work. The best part is that you can’t help yourselves. The second best part is watching the endless tears and whining from your quail-buttered mealy mouths.
My team…?
Um, no.
First, you whine that I don’t dive into the brier patch and attempt to play ‘examiner’ in your typical trotting out of individual patents, opting as I do to instead talk about the principles of patent law.
Second, you consistently run away from dialogues with me on those same principles.
Now, you seek to conflate my positions as somehow mired with this “team” concept, all the while you still run away from an actual dialogue, and you even v0mit more of the same v@pid insults as you do this…
This is exactly the type of C R P that has been your game eight years and running.
It neither f00ls nor impresses anyone.
Anyone capable of the slightest level of critical thinking that is.
Another ride on the merry go round, confusing things with “code.”
(s i g h)
I am not sure what you consider a software patent.
As far as I can tell, Kempf ‘078 is a software patent.
link to google.com
The primary component of the device claimed is software.
Personally, I consider it unfortunate that so much hardware-oriented verbiage is used in the written specification, but such is how software patents were written in the 80s.
I am curious what RandomGuy believes Kempf should have added to the specification.
Malcolm,
Are you really taking issue with the observation of the flight of manufacturing jobs?
Really?
You do realize that Mr. Quinn was merely reflecting on a very well known fact, right?
What exactly was the point that you were trying to make?
Other than, you know, you can be a doosh and make a rather meaningless and obtuse reference?
Are you really taking issue with the observation of the flight of manufacturing jobs?
Are you really unable to read English?
I have no problem reading English. But you strayed a bit afar by quoting Mr. Quinn, then not being clear as to just why you quoted him, reaching instead to some smarmy insults that just don’t follow.
Maybe use some of those declarative sentence things you are “all about”…
Let’s say the manufacturer is aware of the method patent but has many good reasons to believe that the method is invalid. In that instance, why should the manufacturer be subject to a lawsuit for advising potential patients of the beneficial use of its public domain product
Because the manufacturer is capable of instituting an action to declare the claims invalid prior to the infringement, and he is the best situated member of the public to do so because he has the most to gain by prosecuting the case correctly. The manufacturer is similarly protected if he is in fact ultimately correct whether he chooses to just go ahead with the infringement or not. The only time he is punished is when he both chooses to forego the invalidating act and is ultimately wrong about the invalidity, and that’s not a public policy loss because the public policy on a not-invalid patent would have prevented him from performing the action in the first place. Any “chilling effect” is minimal, because if you know about a patent and want to engage in infringing actions you know you’re getting a law suit either way, it’s just a matter of timing.
It is axiomatic that one cannot infringe an invalid patent. Every patent attorney knows that. A corollary of the axiom is that you cannot induce infringement of an invalid patent, even if you induce practice of the claims, and if you reasonably believe the patent to be invalid, you cannot induce its infringement. Otherwise the axiom is wrong.
The parties argue that the axiom is wrong. Rather, they argue that infringement, validity, and enforceability are each separate issues. You may be adjudged as an infringer, but still not be liable if the claims are also found invalid or otherwise unenforceable.
Yes, but that skips over a crucial element of whether you’re an inducin infringer.
Does it?
Or does it just present the notion that two different entities might be implicated and that the patent holder has simply chosen one rather than the other?
You are aware that is permissible to do under current law, right?
“Or does it just present the notion that two different entities might be implicated and that the patent holder has simply chosen one rather than the other?”
Um no it does not “present that notion”. Two parties potentially being implicated does not matter in the least to whether or not a given party can be implicated as an inducin infringer because they induced infringement.
“Rather, they argue that infringement, validity, and enforceability are each separate issues. You may be adjudged as an infringer, but still not be liable if the claims are also found invalid or otherwise unenforceable.”
^all of those things can be separate issues, and party A could still be adjudged as an infringer regardless of whether the claims are found to be invalid or otherwise unenforceable and yet still someone may still not have induced party A to infringe if that someone thought that the patent was invalid. That being less because of the axiom (though the axiom argument is important as well) and simply because you have to be in a certain state of mind to even be able to be said to “induce” as an affirmative action. Accidental inducement, for instance, in this context, and in my book simply isn’t a thing. Similarly, it is unpossible for you to be in the state of mind necessary to be “inducing” -in the historical sense mind you-, infringement of a patent if you think the patent isn’t even valid.
Though I can understand the argument being made and it may be that it prevails. Patent infringement being expanded once again!
If you understood, then you would not say that this is “expanded.”
I would agree the axiom is wrong. Invalidity is an affirmative defense that justifies infringement, rather than negate it. Thus one can intend to infringe even when reasonably believing there is a justification.
Ahan: That makes sense, but it has never been the theoretical approach taken by US courts. US courts have always held that invalidity negates infringement, hence the axiom.
If the Supreme Court decides it want to give patentees more advantage in this scenario, they can nix the axiom and adopt a new axiom (yours, perhaps). If the Supreme Court thinks the current balance is good, they can just go with the current axiom.
If they adopt your axiom, willful infringement/exceptional case jurisprudence will be upturned: strong cases of invalidity will no longer protect a defendant from willful infringement unless they actually prevail.
If “strong”cases don’t actually prevail are they really actually strong cases?
Sure. With a jury and a lay judge involved, strong cases can go right over their heads. How strong does it have to be before its good enough to negate inducement liability is a fair question. But it is the same question we ask regarding non-infringement opinions and willful infringement.
Even in popular culture, strong cases do not always prevail. And in patent law, I am sure many of us have encountered ironclad cases that failed.
There is always the exception that proves the rule, but it is just that – an exception.
If what in your mind you consider happens more than a mere exception, then you probably need to recalibrate what “strong” means.
That’s the whole point here: calibrating what strong means, or if it even matters. I would prefer that a position developed prior to engaging in the “inducing”conduct, that might reasonably meet an evidentiary standard for invalidation in a reexam or litigation, should be strong enough. Or whatever the standard is be negating willfulness. We deal with the issue all the time, so it’s no additional burden on the system: It just might allow some extra breathing room for accused infringers to operate in a marketplace burdened by both high and low quality patents.
In my experience, strong cases of invalidity that do not prevail due to blatant error are not uncommon, but my experience is limited, so this comments section is very informative.
DC,
Fair enough for your preference (and thank you for putting it as a preference).
But I would prefer less room for accused infringers.
A stronger patent right better serves the reasons why we have a patent system in the first place.
Direct infringement is strict liability, but inducement is not. Inducement requires mens rea. And the idea that a defendants subjective mistake of fact can defeat mens rea is as old as the common law. Why isn’t it that simple?
Mens rea…
But of what type?
Of the type involved with trespass? That is, one does not have to have the intent of trespassing on another’s property, but merely must have the intent of traveling on the land traveled.
So too with inducement? Particularly of inducing a strict liability offense?
Right, I see that A SINGLE party argues that the axiom is wrong. But given that the axiom was extant when Cisco undertook its analysis, Cisco clearly had no intent to actively induce infringement. You can argue that the axiom is wrong, but you cannot argue that the axiom did not exist and you cannot argue that, given the axiom, one could actively induce infringement of a claim it believed to be an invalid claim. So, even if you change the axiom, you cannot change the history of what happened in this case. A party should not be liable for infringement because a rule changes during the litigation.
This assumes that Cisco had a decent argument, which it apparently did.
“It is axiomatic that one cannot infringe an invalid patent. Every patent attorney knows that.”
I’m a patent attorney, and I don’t know that. That statement is confusing and unhelpful. It is not that “the axiom” is wrong, it is that you have mis-stated “the axiom”, if there even is one.
“Reasonable belief” is not the criterion for proving patent invalidity.
One infringes upon RIGHTS, not upon “a patent”. More precisely, one infringes upon the SUBJECT of rights, not upon the OBJECT of rights.
In the patent law scenario, the claims of a valid patent are the object upon which the subject of the statutorily established rights is predicated. Until such time as patent claims are proved invalid, any rights predicated thereupon can be infringed upon.
Whether or not there is recovery for such infringement is another matter, and is decided by the actions of the parties, not by the operation of law.
A more precise statement of the “axiom” would read as follows:
“There can be no recovery for practicing, or inducing the practice of, patent claims that form the basis of the rights that would otherwise be granted by 35 USC, if said patent claims have been proved under 35 USC to have been either invalid, unenforceable, or both, at the time at which the acts constituting said practice or inducement, occurred.”
This could probably be more precise, it is only a napkin sketch.
OK, IBP, you got me. I meant to say “Every patent attorney except IBP knows that.”
I think it would be hard to write an opinion letter re invalidity without referring to this “axiom.”
Note that your more precise axiom would lead to liability in the case where the asserted claims were clearly anticipated, and invalidated during litigation, because they were not proved invalid before litigation.
One infringes rights, not patents? You just don’t like the way every one else speaks English. Or maybe you are a philosophy professor.
Just to question one word of the appellants characterization of this case, re the decision below, namely: “..avoid all liability because it subjectively—but incorrectly—believed that the patent was invalid.”
If it really was an entirely “subjective” belief which was without any rational OBJECTIVE basis, should that not make a significant difference here, including even potential sanctions?
“The pharmaceutical industry depends on patents that may only realistically be enforced against indirect infringers.”
Lol. In other words these particular inventions are worthless on their own, but hey, if we can involve more than just one person then they’re valuable!
“Treatment method patents are all-but lost.”
Interesting. One wonders if “treatment methods” were ever a part of the useful arts to begin with, which might be why they’re having this issue now.
But either way, I have to say that I substantially agree with the federal circuit’s reasoning though the supremes may well go the other way.
The thing that really gets me about all this is why we’re just now getting this question decided. In 2014-15.
The thing that really gets me about all this is why we’re just now getting this question decided. In 2014-15.
It’s useful to remember where we are at this point in the history of the patent system:
link to patentlyo.com
link to patentlyo.com
Um, 6, can you give a little more as to why you might feel that “One wonders if “treatment methods” were ever a part of the useful arts to begin with, as facially, this quote readily appears to belong to the Useful Arts.
My expanded thoughts on the subject of “useful arts” as a category of things are available elsewhere and you read them at the time.
Suffice to say for today that even if we grant for a moment that drugs, themselves, belong in the useful arts at all, methods of treating people appear to be so far from anything remotely resembling the useful arts as that definition held effect back in the day that it would be an absurdity to consider them a part of the “useful arts”. Besides that, one wonders where all the “treatment” patents were back in the 1800’s and early 1900’s. There were plenty of new treatments that were hugely useful to people discovered/invented in those days. Yet nobody seems to have been trying to patent upon them when the phrase “useful arts” still meant something as a limitation on congress’s powers.
In either event, I’m simply highlighting yet another instance of the general phenomena that a lot of the arts that are constantly having problems with their infringement allegations, major validity issues as an entire class, etc. simply bear little to no relation to the useful arts which the patent system was designed to accommodate. Through highlighting that it should become apparent over time that we can expect more and more such issues in these sorts of peripheral arts to pop up, and moreso on occasion bad things for the law meant for the actual useful arts can happen as a result of these disputes that ought never have taken place in the first instance.
Not to even mention that if you’d have asked a doctor developing a new treatment in the 1900’s if he was currently engaged in the “useful arts” he’d have laughed straight in your face.
U.S. Patent No. 4,848 (1846) (method of using inhaled ether as anesthetic).
link to google.com
I admit that I took the historical tour at Mass. General when I worked there, but this story is quite famous.
There was also a movie, but I have never seen it.
To be fair, a researcher developing new surgical or medical treatments circa 1900 would probably state that he was engaged in the “useful arts” , but that it would be unethical to attempt to monopolize anything that he developed.
“U.S. Patent No. 4,848 (1846) (method of using inhaled ether as anesthetic)”
That’s funny, looks like he claimed the means. Funny that in your premier example he was limited down substantially to the useful arts for what he was granted a patent on. Though you might can argue that application by handkerchief was included in the claim, a simple, though perhaps barely included portion of the useful arts.
“To be fair, a researcher developing new surgical or medical treatments circa 1900 would probably state that he was engaged in the “useful arts” ”
Mayhap you’re right, if they’re using tomgadgetry. We’re talking just about the method of treatment, no bells and no whistles from the actual useful arts. In any event, would have been interesting to have seen that case go to trial re the handkerchief “embodiment”.
I am not sure what you are saying.
The patent is entitled “Improvement in Surgical Operations”.
The patent claimed a treatment to eliminate pain during surgery in this case the general use or application of letheon (ether) during surgery.
“The patent is entitled “Improvement in Surgical Operations”.”
I can name my patent anything I want, but then we get limited down to the useful arts in the claims. Or at least we used to. Nowadays it’s more of an “anything goes” sort of thing.
“The patent claimed a treatment to eliminate pain during surgery in this case the general use or application of letheon (ether) during surgery.”
You need to read the claim again bro. Check out the word “means”.
I am still not sure what 6 is arguing.
Here is a clearer version of the patent.
link to woodlibrarymuseum.org
The patent does provide one example of delivery of ether via saturated cloth but describes and refers to other modes.
We have here a very clear example of a general claim to treatment for reducing pain during surgery by causing the patient to inhale ether.
“I am still not sure what 6 is arguing.”
I’m not “arguing” anything, I’m pointing out facts for you that you have yet to understand.
But here let me lay it out for you with that nicer version:
“What we claim as our invention, is the hereinbefore described MEANS, by which we are enabled to effect the
above highly important improvement in surgical operations, viz: by combining therewith the application of ether or the vapor thereof, substantially as above specified.”
“”What we claim as our invention, is the hereinbefore described MEANS, ”
“MEANS”
^note the word means, making reference to the actual means they set forth. Then he’s combined the means with application of ether or the vapor thereof. The means he set forth is his tie to the useful arts.
He did not just come out and be all like “we claim the application of ether or vapor to treat patients”. There’s a difference.