Patents Fuel the American Dream

The Partnership for American Innovation (Apple, Du Pont, Ford, GE, IBM, Microsoft, Pfizer, etc.) have put together a new, somewhat cheesy, video on how the patent system is driving innovation:

93 thoughts on “Patents Fuel the American Dream

  1. 10

    Ned –

    At another unnumbered post way below 2.0 you said:

    “Les, you see that your formulation of a test is not really a test as the question is not whether it is obvious, but whether it would be obvious to one of ordinary skill in the art, with the later person unknown, and what his opinions are really cannot be known until an expert speaks.

    Under the Supreme Court test, the question is whether Zingy is analogous to a known use. That is determinable as a matter of fact, not conjecture. ”

    Kindly explain why obviousness to a person of ordinary skill in the art is unfathomable but analogousness is a mere matter of fact? Clearly people can disagree about what is analogous.

    For example:

    I think the cotton gin doing that which as previously done without a cotton gin is analogous to a computer doing that which was previously done without a computer. You do not.

    Does my determination of analogousness make it a fact? Or is it really just my well informed, well reasoned and incite-full opinion?

    1. 10.1

      Remember when Les correctly identified all those ineligible and obvious claims over the years?

      Me neither.

      1. 10.1.1

        The “whatever” of ineligible and obvious on display from Malcolm, even in his denigration of someone else (wait, the only thing Malcolm provides is the denigration of others – insert [shrug] here).

        Conflating concepts of eligibility and obviousness is what is creating a mess, Malcolm. Let me know when you understood the basic problem here.

  2. 9

    Ned –

    At an unnumbered post way under 2.0 you said:

    “Les, so, DNA is new even though it previously existed? How is something that exists new?:”

    Elsewhere you extol the importance of progress being promoted in the useful arts.

    DNA is not new. KNOWLEDGE of DNA can be new and at one time was. Furthermore, knowledge of particular DNA sequences and the function of said particular sequences can be new. To promote progress in the useful arts of biology and medicine, the Constitution grants Congress the power to, for a limited time, secure exclusive rights to the discoverers (or inventors if you will) of such DISCOVERIES.

    Its only 20 years Ned. The world got along without using the knowledge of xyz strand of DNA for at least a couple thousand years. Whats the harm in letting the guy who discovered xyz strand and/or how to take advantage of it control how the information he provided us can be used for the next 20 years.

    Your free-to-download thinking is killing the music industry and unchecked it will plunge us into ciaos and damnation…and result in the election of a failed casino owner with a bad toupee as our next President.

    1. 9.1

      Ned is a tough case. He adheres to some bizarro readings of old Royal 9 nonsense.

      Ned doesn’t get that the Constitution gives the power to Congress for the patent system not the Royal dirtbags 9.

    2. 9.2

      Les, let me concede there is tension between the constitution and the statutes. Still, “new” IS in 101.


          No it is not, Les. That Rich might have believed this is hardly support for the proposition. In fact, given his agendas, we really cannot trust anything Rich said about patent law.

          The 1790 statute said this:

          …he, she, or they hath or have invented or discovered any useful art, manufacture, engine, machine, or device, or any improvement therein not before known or used…

          1793 this:

          …he or they have invented any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement … not known or used before the application…

          Note the changes: “Discovered” is dropped. “New” and “composition” are added. “Not known or used” is retained, but the time period is clarified to “before the application.”

          Under any statutory construction theory, “new” does not mean “not known or used before the application.”

          Also consider the dropping of discovered in connection with the addition of both new and composition. Clearly Jefferson had no intention of authorizing the patenting of “discovered” compositions, only “new” compositions.


            Ned –
            If it is so significant that discovered was dropped in 1793, then in must be equally signification that discovers it is back in NOW.

            Moreover, discovering a new composition of matter can only mean discovering a composition not previously KNOWN. What else could it mean? How could one know that Crestor did not exist naturally or as a by product of the manufacture of some other composition ever in the history of the universe?

            Of course new means not previously known.


              Les, I think Jefferson wanted to make clear that discovering a product-of-nature type composition was not the stuff of patents.

              I have no idea why congress did what it did in 1836 in putting discovery back it to cloud the issue, as it retained “new.” But now we have Mayo that ruled that DNA was not a “new” composition even though not previously known.

              That should end the ambiguity.


                Again, Ned, you are playing the game of treating patent law as if it must somehow adhere to the Royal nutty 9’s interpretation. It does not. Doesn’t matter what Jefferson wanted. Not a whit.

                1. Night, why of course it matters what Jefferson wanted, as the terms of a statute are construed as of the time they were first introduced. What did congress intend — in 1793?

                2. What an Fn hypocrite you are Ned Heller.

                  What did congress (yes Congress – and not your petulant and dishonest scapegoating of Rich) intend — in 1952?


                Yes, we have Mayo. But Mayo was wrongly decided. How do I know?:

                Discovering a new composition of matter can only mean discovering a composition not previously KNOWN. What else could it mean? For example, how could one know that Crestor did not exist naturally or as a by product of the manufacture of some other composition ever in the history of the universe?

                If the standard is new means never existed anywhere any time in the Universe, how exactly would the Office declare something new?

                They can only search the KNOWN Universe; i.e., the set of things that are KNOWN…..

                Are you suggesting there be two different standards? One for those we know existed before they were discovered and one for those that we don’t know existed before they were discovered?

                Its a big universe out there. Odds are Crestor and Liptor existed in a primordial ooze somewhere…

                So, what do we do…. Follow Mayo and declare that nothing is patentable because over 15 billion years in 15 billion cubic light years of space everything is bound to have existed already?

                1. Les, the example is often given by early writers that the New World is not “new” even though it was not known, but discovered.

                  Regarding how the patent office can determine whether a claim composition is new in the absolute sense, that really is a question of evidence and typically the evidence is provided by the applicant himself.

                2. “Regarding how the patent office can determine whether a claim composition is new in the absolute sense, that really is a question of evidence and typically the evidence is provided by the applicant himself.”


                3. The big universe is also NOT a static universe.

                  This is a concept that Ned simply ignores as “inconvenient.”

                4. Les, in Myriad, the inventors themselves described their search for the “gene.” When they discovered it, they claimed it, albeit isolated … such that.

                  If one invents a new composition, one does not describe discovering anything.


            No it is not, Les.

            I have asked before (but was never answered), if as you suggest, there are two different “new” tests in patent law, where is the explanation and criteria for the first one? The second one is clearly indicated (even within the words of 101 – as I have also pointed out – without reply from Ned).

            Tell me Ned, other than the single word itself, what controls your IMHO-version of this first instance of “New?”

            And please do not reference a pre-1952 single paragraph that was substantially changed, reordered, expanded, and otherwise eradicates the wild and wooly mess that Court Wax of Nose mashing had done before 1952, which had prompted Congress to act.


                …and 1952…?

                (Not even getting to what else was there and the retreat meant of a single paragraph)…

  3. 8

    The land of opportunity to… G-g-grift.

    Yeah, we see how certain individuals here just cannot stand that concept.

    I echo Anon2’s thinking that these people should be invited to leave, instead of subverting the system that got us here.

  4. 7

    Nice to see a little reality put into the mix. Oh wait, most of you prefer to attend and participate in witch burnings.

    1. 7.1

      Night, speaking of witch burnings, if there were two events taking place simultaneously, one for the author of the 1793 Patent Act (Jefferson) and the other for the authors of the 1952 Patent Act (Federico, Rich), which would you attend and why?

      Recall that one believed that patents were reserved for significant advances in technology. The other included Rich that authorized the patenting of price, and in his formulation of 103, discarded any notion of significant functional improvement, the hallmark of prior Supreme Court case law.

      1. 7.1.1

        1) did Jefferson use the word “technological?”

        2) the Court is not authorized by the constitution to write patent law

        3) it appears that you are admitting that the actual law passed by Congress in 1952 is not Ned-IMHO law.

      2. 7.1.2

        Ned does it really matter what Jefferson thought? The fact is that the world has changed. What matters is how should the system be structured to promote innovation in fact–not theory and not the witch trial imagination of arrogant ignorant judges and justices.

        So, get the right question and then I’ll answer it.


          Night, the”promote innovation.” But the question becomes, in what?

          There is little doubt that the English grant of monopoly to the British East India Company allowed that company, and thereby England, to spread its rule across the globe such that England became an empire, an English law and culture were spread everywhere.

          This trade monopoly, and monopolies like it, also caused the English Civil War, the American Revolution, and the Indian revolt by Gandhi.

          These “odious monopolies” are one of the reasons why both England and the United States limited patent monopolies, by statute in England and by the Constitution in the United States, to inventions of new manufacturers in the case of England, and because we learned from England, in the United States. Extending patent monopolies beyond things made by man, beyond advances in technology, to protect trade and business is what our Constitution is intended to forbid.


            >> Extending patent monopolies beyond things made by man, beyond advances in technology, to protect trade and business is what our Constitution is intended to forbid.

            Ned I really don’t need history lessons. You never seemed to get to your point.

            >>But the question becomes, in what?

            Now you have switched from how to what. This sounds like another one of your bizzarro trips into Benson where automating our brains is somehow capturing nature or claiming the spirit world.

            Get that it is plain and simple processing information–building machines to do what our brains do instead of our bodies like in the iron age.

            You know Ned, to someone like me trained in cognitive science/artificial intelligence your statements are just medieval. You do not seem to have the slightest idea what your brain does.


              Night, we can agree that granting patents promotes investment. The question is whether we should grant patents to trade vs. technology. The answer to that was answered one way, decisively in our revolution.


                Except not as you would twist things Ned.

                Clearly, your “version” of process as a sub-category to the hard goods categories just does not align with historical facts, and rests with a Belieb-twisted philosophical windmill chase.


            Ned’s MoT affliction and desire to make “process” a secondary category, merely a handmaiden of the hard goods categories is showing again.

            Sadly, he has to ignore the fact that business method patents have actually been awarded throughout the history of the U.S. patent system and that the words of Congress (the branch of the government duly authorized to write patent law) already provides authority for business method patents – as a category (and please Ned, let’s not dip into the dissembling by attempting to confuse “as a category” with the different meaning of “categorically”).

      3. 7.1.3

        One can believe that patents are “reserved for significant advances in technology.” Then one has to define what a significant advance in technology is. Is it a flash of genius and major advance that creates a whole new area of science? Or, is it the routine discovery of a minor by-product of a drug synthesis method that is toxic and/or impairs the drug’s efficacy, such that the drug’s efficacy and toxicity profile becomes FDA approvable without the by-product and the approved drug goes on to generate billions in revenue while creating many jobs and saving many lives?

        The 1952 patent act event sounds at least as tempting as the Jefferson-centric event, but my preference would be to be in both places at the same time – there are things to learn from both.


          GD, Hotchkiss and the case it relies on, Losh v. Huber, tell us a lot about what significant is. It really means some non analogous use or result.


            Let’s try to remember that the patent system in the US self destructed so that the 1952 had to be written in an attempt to revive it from the grave the Royal 9 put it in.

            Try to remember that.

            Try to remember that we have KSR, although Alice really overturns KSR. It needs an asterisk that says unless the judges decides to proclaim it obvious based on his/her psychotic reasoning and bourbon induced liberal arts degree hallucinations.

            Try to remember that we don’t need a harking back but a modern system that was working just fine prior to the AIA.

            Try to remember —wait try not to remember the ancient past.


              Night, what happened in ’52 was political, a reaction by a pack of rabid Republicans to liberals like Douglas. As explained in Graham, there was no change in Supreme Court standards during the ’30s and ’40s in areas like “invention.” Halliburton was completely right. Moreover, the court in Mercoid was correct — dealing in staple items of commerce was not contributory infringement.

              There is little doubt that Rich was among the most rabid of the rabid, and he was appointed to the CCPA to carry on his war against Douglas and the other liberals.

              Recall, Ford even tried to impeach Douglas. Ford, the smartest president we ever had, a real shining example of a chief executive.

              Yeah. Rich and Ford. What a team.


                Yet more dissembling denigration and scapegoating from Ned…

                Inte11ectually dishonest to the core.


            With respect, your comment sheds no light. Please explain. Why are Hotchkiss and Huber determinative in the complex and dynamic competitive global economy of today? Who says? By what authority? How do the conclusions (opinions) you draw from your analysis best serve the public interest vs. differing opinions?

            As my comment implied, little sparks ought to be patentable just as much as window-shattering, hearing aid-inducing thunderbolts in a person’s back yard or things in between.* That doesn’t mean little to the point of absurdity (no, I have not defined “absurdity” in this context, but it sure isn’t simply routine experimentation” or a “finite” number of choices). I do suspect it means something broader than what you mean.

            * Maybe two tiers would be OK. Little sparks get shorter or less protection, e.g., compulsory license for non-practice, than deafening, metal-melting thunderbolts. But again, who is to define those things?

            IMO, a non-analogous use or result is far too limiting in terms for best serving the public interest in view of a messy global economy chock full of cheaters, liars and thieves. Patents arguably are far more important than just the arcana of patent law and disputes about Jefferson vs. whoever else vs. what our clueless congress tries or fails to do, now, in 1952 or at any other time. This is about defending the American standard of living in the modern world. Obviously, that’s just my opinion. Is that wrong or misplaced? If so, a succinct explanation of why would be helpful.

            Does this boil down to a dispute about a U.S. constitution fixed in time somewhere in the 1700s vs. a living, evolving document that can account for the modern world? Or, is something, fundamental or otherwise being overlooked in my rationale?


              GD, actually, Hotchkiss is viewed as controlling law by both Graham and by KSR. What it means is helped by viewing the cases it cites and it relies on.

              We had a discussion here a few months ago engendered by an observation by Dennis that a significant advance was required for patentability. That, of course, is the holding of Losh v. Hague, and is consistent with Jefferson’s views as discussed in Graham. Hotchkiss is consistent, discussing the principle of Losh in depth.

              People fundamentally do not realize what Rich tried to do, and for a time was successful, and that is to unmoor “invention” from any requirement of a significant advance in technology — a functional difference, different in kind rather than degree.

              The Euro’s always look for a technical advance, a solution to a recognized problem. Because our overall objective is to some day have the same patent law between Europe and the US, recognizing that we have the same standard for invention is important.


                Ned, the Constitution says Congress gets to decide these issues. The 1952 was written to overturn some of the Royal 9’s nonsense. I know they consistently deny that, but they are a pretty arrogant group of people that have little concern for the truth.

                So, Ned, the framing should be what is the best patent system not what did the SCOTUS say or Jefferson. Good thing you didn’t bring up Franklin who didn’t invent the stove himself.

                Moreover, if you want to bring up SCOTUS cases then tell me how Deener fits in with Benson?

                The nonsense of the past should not be lodestones around our necks. Congress could –for example–rewrite 103 to say that an invention is nonobvious if there is no TSM for combining elements. That would be perfectly Constitutional and make for a better functioning system.

  5. 6

    I watched the video and for me the key notion is that Americans succeed because they are comfortable taking big risks. The value of the patent system to the USA is that it helps those contemplating taking such risks to take the plunge. The value of the US patent system to the rest of today’s ever-smaller world is that it promotes the progress of useful arts all over the world.

    So despite the fim’s message to viewers that the USA is leading the world in automobile technology, I’m sceptical whether the thing that is “driving” innovation in the USA is the US patent system.

    As to why the video was made, isn’t that self-evident? It is to counter those who see it as a bad thing for all the useful arts outside of chem/bio.

    1. 6.1

      Regarding Ford, I agree that they are investing in technology simply to keep up with the Jones. This is the same reason the disk drive industry invests.

      IBM? They cross license the entire world. Everyone has a license to exploit IBM inventions.

      Apple? We saw where the phone patent wars got Apple. Samsung has 80% of the market.

      Microsoft? Do they rely on patents? Really?

      Then we get into the drug and chemical companies. Now we are talking.

      But, where are the startups? Where are the universities? These folk need patents as well, but they do not seem to support the agenda of the members of the association. Which gives one pause as to what this association is really pushing.

      1. 6.1.1

        So Ned, what exactly is “it” that you see this club of big established corporations using this video to “push”?

        Might it be patent thickets? Huge portfolios of patents on a myriad trivial contributions to the non chem/bio arts, that serve to shut out any threatening start-up?


          Max, I don’t really know what they are pushing exactly, except that most of the stuff on their web site is written by Kappos and is about preserving software patents.


            Well Ned if they do perceive a growing possibility to declare as ineligible any contribution to the art that involves a data processing step, that would be reason enough to put out this video. But in the USA is there really any such possibility? Seriously?


              Max, no one truly is doubting that machines or processes cannot be improved, significantly improved, through new algorithms. Diehr is one example. Improved disk drive servo systems are another.

              It is a mistake to assume that patenting of information/information processing and the patenting of the use of a new information process adapted to improve a conventional process or machine are the same thing. One simply stops at the math, the other applies it.

              Thus if the output is a number that is not tied to a specific use in a particular machine or process, the patent is on the information/information process per se.


                Ned the experience of the last few years at the EPO demonstrates very clearly that it ain’t that simple, to draw the line between a patentable machine and an unpatentable data transformation. Suppose you apply the numbers in the field of encryption or of image enhancement?

                And because it really is difficult at the boundary, the fear is that some courts will treat it simplistically, and deny protection for genuine non-obvious contributions in fields that are “technical”.

                Indeed, we are seeing it already. Stuff that is seen in Europe as patentable is now being dismissed in the USA as plain ineligible.

                1. Max, an algorithm that is effective in electronically communicating encrypted data between two locations, and claimed as such, seems to me to be patentable subject matter. I don’t know where the controversy is, except if the algorithms are claimed in the abstract. But there is no good reason to do so, is there?

                2. Ned,

                  You are showing your ignorance again.

                  You have no real understanding of the art field of encryption, do you?

                  That you want to here make the distinction of “electronically communicating” is more than just a little give away.

    2. 6.2

      Like so many other things the State cannot manufacture, “innovation” is not something that is “driven”, it is something which naturally occurs in a free society as a result of voluntary action of those individuals capable of it… i.e. the innovators, in furtherance of their own lives and welfare.

      To the degree innovation occurs naturally in a free society all that is needed from the government to “promote” or “encourage” it (read “stop its destruction”) is to meaningfully protect the intellectual property rights which come into existence by virtue of the innovation’s creation, from those infringers and pirates who would steal it and unjustly reap from the innovator the “fruit of their labor”.

  6. 4

    So sad. To see so much time, energy, and resources spent on entreaties, on pleas to the misguided to see the self-evident.

    This video never should have been created… the consequences which have caused its inception should never have been… and the fall of the Soviet Union is to blame.

    I used to cherish the fall of the Soviet Union and the European communist block. It used to fill me with a sense of optimism. Now, I realize if it had survived there are so many American’s who could still choose to flee these shores and go there. If only it still existed today, I would support their triumphant exodus, in pursuit of their socialist ideals… certainly prefer that to witnessing their attempt to wreck America, freedom, the rights of man … and the patent system, but alas, the red tide is rising and thus the principled elite must make pleas, and corny videos to appeal to the self-evident.

    By rights this video never should have been created… I wish it never was.

    1. 4.2

      Hey anon2, back in the day, when Nixon visited the USSR and had the famous kitchen debate with Nikita “We will bury you” Khrushchev, the USSR claimed to have invented all the most important inventions of the modern era. And, if you read the NY Times, especially from the era of Stalin, you would have to agree that the USSR was a worker’s paradise.

      Why do you criticize the land of Love and Peace?

      1. 4.2.1

        Sorry Ned, but your sarcasm is likely to be missed since your sentiments too closely reflect the feelings held in earnest by those who align with your desired ends.


          Why, anon, you doubt the claims of the USSR to have invented all those inventions, to be a worker’s paradise, and to be a land of Love and Peace?

          There are many in the US, particularly near Berkley, who are true believers. They do not doubt the claims of the USSR, particularly when they are confirmed by none other than the NY Times.


            Once again, your sarcasm is simply too close to the actual Beliebs of many that post here (and in particular, many with whom align with your own desired ends).

            I do not think that you grasp the irony of your own attempts at humor here.

      2. 4.2.2

        My dearest Ned.

        I neither explicitly deride nor acclaim the red land of wonder that once was. I merely observe there are those that by implication belong there and I bemoan the tragedy that is theirs and ours (and particularly mine) that alas that they cannot leave the U.S. to go to that Red utopia.

  7. 3

    MM “Just an fyi for the writers/producers: blind people have been skiing for a long time.”

    True statement, but they have been do so with a “seeing guide”.

    So now they can do it alone. A significant more improvement that would most likely get by 101.

    1. 3.1

      A significant more improvement that would most likely get by 101

      The likelihood would depend entirely on exactly what is being claimed, e.g., a new machine described in objective physical terms distinguishing the machine from those in the prior art versus, say, a new “functionality”.

      But you knew that. Right? Of course you did.

      they have been do so with a “seeing guide”.

      Not necessarily. Sometimes they work from memory and whatever other sensory input they can muster.

      1. 3.1.1

        In the International Paralympic Committee (IPC) which sets the rules for international competitions which then trickles down to National level competitions trickling down to regional levels. There are 3 classifications of Blind skiers.

        B1, B2 and B3, B1 has to ski with a guide, B2 & 3 usually ski with a guide but do not have to.

        On the international level in Nordic skiing, (Cross Country and Biathlon) there is only 1 competitor which skis without a guide as he has enough peripheral vision to do so. 1 other B2 competitor will ski without a guide until the last 100meters or so and then race off.

        So the type of invention in the video could be of value eventually for those competitors as the competitors would more on their respective own. So all the more power to the inventor and hopefully the “reforming” patent system will not kill the patent for some ludicrous reason such as he only is licensing out the invention and not produced the item himself (Now classified as a NPE AKA Troll).

        IPC (International Paralympic Committee, Official & Just a Dumb Inventor in the Garage) Joe


          all the more power to the inventor

          The inventor of what?

          The idea of using collected information to assist a blind person?


            Software is not the idea (or thought) of software.

            But you already knew that, right?

      2. 3.1.2

        You’re not really serious, are you? What sensory input is there on a ski slope? And how does that sensory input tell you moguls or a tree are coming up? Also, while I believe blind people are going to be more perceptive that people with sight, it’s hard to believe they can memorize an entire ski run. And even if they did memorize one course through a ski run, if they get a few feet off that course (which is easy to do and not easy to realize that you’ve done it), they could easily run into trouble.

        I realize you hate the patent system, but comments like this are just plain ridiculous.

  8. 2

    It’s always a mystery to me who the intended audience is for this kind of thing.

    Just an fyi for the writers/producers: blind people have been skiing for a long time.

    1. 2.1

      Agreed. No one seriously disputes that the patent system is important for innovation. But why does this organization exist and what are its goals?

      Kappos looms large here.

      1. 2.1.1

        There was one editorial written by Kappos that says the PTO has to do a better job in not issuing obvious patents.

        Question, Mr. Kappos, what did you do about this when you were at the PTO?

        Also, Kappos consistently defends software patents. Without any limitation on what a software patent is, this paean seems more than misplaced. It seems like advocating exactly what the Supreme Court had declared to be ineligible — the patenting of information processing per se.


          ” It seems like advocating exactly what the Supreme Court had declared to be ineligible — the patenting of information processing per se.”

          Not to accede to your interpretation of the Supreme Courts “declarations” in any way, shape or form, but even if your interpretation were correct, what exactly would be wrong with advocating against a Supreme Court declaration?


            Les, well if Congress were to sanction patenting of new information with a new statute, Congress just might be exceeding its authority. Where does it get such power — certainly not in the patent and copyright clause that requires “progress in the useful Arts.”

            Perhaps in the regulation of the armed forces?

            Les, name the constitutional provision that authorizes congress to grant monopolies in new information? Where does Congress get the power to give to one the exclusive rights to a law of nature? Exactly how does congress justifies giving people trade monopolies on practices long prevalent just because they are now performed using a computer?

            And, yet, this is exactly what Kappos advocates.


              1. Who said anything about patenting information?

              2. The Constitution does not “require” progress in the useful arts. The PREAMBLE to which you refer merely identifies a goal. It is no more a requirement for every patent claim than is the bit about a well regulated militia a requirement associated with every Glock.

              3. Processes are patentable. Processors and microprocessors process. Hence the name.


                Les, if an alleged invention does not promote the progress in the useful Arts, then it should not be patented. But if Congress passed a statute that awarded monopolies for things that had nothing to do with inventions or with the useful Arts, such as giving the East Indies Company a trade monopoly from the shores of the Atlantic to the shores of India, what then?

                Regarding discoveries, please address what Jefferson did in 1973 — he removed “discover,” and added both “new” and “composition.” A a result, one could not patented the discovered composition.

                What do you make of this?

                Hotchkiss v. Greenwood cited to Losh v. Hague where Lord Abinger had this to say:

                “… but it would be a very ex­traordinary thing to say, that because all mankind have been accustomed to eat soup with a spoon, that a man could take out a patent because he says you might eat peas with a spoon.

                The law on the subject is this; that you cannot have a patent for applying a well-known thing, which might be applied to fifty thousand different purposes, for applying it to an operation which is exactly analogous to what was done before.

                Whether an improvement is trifling and insignificant, or real and important, is a question for the jury.”

                1. Ned –

                  If Jefferson did anything in 1973, he must have been really high. In any event, “discoveries” are there now.

                  Comment on that.

                2. That, Les, is a good point.

                  But the Supreme answered decisively that a product of nature is not a “new” composition — exactly as Jefferson clearly indicated by adding the requirement of newness when he added composition.

                3. But the Supremes can be and are wrong. Their decrees fly in the face of the clear language of the Constitution. Congress has the power to protect DISCOVERIES. There is very little to DISCOVER other than things that are “covered,” things that exist, but are unknown.

                4. Les, so, DNA is new even though it previously existed? How is something that exists new?

                  I don’t follow you, Les. The Supreme Court is right here.

                  Ditto regarding laws of nature.

                  When a claim mixes the ineligible with the eligible, and one cannot give weight to the ineligible unless is applied with the eligible to produce a new result, how is this test formulated?

                  The Supreme Court gets the law and constitution methinks.


                My reply is awaiting moderation because it contains direct quotes from Losh v. Hague, the case Hotchkiss relied upon to adopt the rule that there has to be some significant functional improvement.


                Who said anything about patenting information?

                Ned is just dissembling again, moving goalposts to obscure the discussion.

                Software is not the thought of software.

                Software is not the use of software.

                He wants to – but importantly does not use the proper patent law doctrine of inherency in his half-baked examples (always leaving out the important first step that a machine must first be changed and configured to “use the software” before his conflated “use a machine” canard can be trotted out. No change in machine – no “use of software.” And, “old box” does NOT have all future software improvements “already in there.” Ned’s “logic” is exactly like my big box of electrons, protons, and neutrons – he wants ALL future configurations, no matter the fact that additional invention is necessary to actually come up with those configurations, to be considered “already in there.”


              ” Where does Congress get the power to give to one the exclusive rights to a law of nature? ”

              I’m pretty sure it authorizes a grant of exclusivity to discoveries. I don’t think there is much TO discover but laws of nature and products of nature.


                Les, so we award Hawking a patent on Hawking radiation?

                So, assume he has the patent, who infringes?

                1. That depends a bit on the claim language I’m sure.

                  However, I would guess that anyone that makes, uses or imports Hawking radiation would infringe.

                  For example, an astronomer that uses Hawking radiation as an illumination source to observe dark matter might owe Steve a beer or two.


              “Exactly how does congress justifies giving people trade monopolies on practices long prevalent just because they are now performed using a computer?”

              It doesn’t justify giving people trade monopolies on practices long prevalent. If there is a grant to using a computer to do something, then people can still do it without a computer, you know…. what ever way has been long prevalent.

              After Eli got his patent, people could still pick nits out of cotton, they just couldn’t do it using a gin without paying Eli his due…


                OK, I when sell my computer on eBay to someone who uses it per State Street Bank to calculate an improved price, I induce infringement?

                But, you say, there is a difference — the cotton gin was a new machine and a computer is an old machine.

                And with that, we come full circle, Les. One cannot re-patent an old machine for an use analogous to its known use.

                See, Hotckkiss v. Greenwood citing to Losh v. Hague which announced the rule.

                1. Do try to stay on point Ned.

                  The point we are addressing here is your concern that a patent for “do it with a machine,” where “it” is something previously done without that machine, is some sort of travesty.

                  The point is, no its not. It’s SOP.

                  The fact that the machine or components of the machine were previously know matters not. Boxes, combs and crank handles were all known. Eli applied them to a new use is all…

                2. Machine does X, Y, Z …. 50,000 variations.

                  Now the question is Machine does Zingy. Is Machine does Zingy patenable?

                  The answer was provided by Hotchkiss citing Losh v. Hague,

                  No, unless the use is non analogous.

                3. “Now the question is Machine does Zingy. Is Machine does Zingy patenable?”

                  Has a machine done zingy before? Would making or modifying a machine to do zingy been obvious?

                  If not, then “machine does zingy” is patentable. Yes, of course, why would you even ask?

                4. Les, you see that your formulation of a test is not really a test as the question is not whether it is obvious, but whether it would be obvious to one of ordinary skill in the art, with the later person unknown, and what his opinions are really cannot be known until an expert speaks.

                  Under the Supreme Court test, the question is whether Zingy is analogous to a known use. That is determinable as a matter of fact, not conjecture.

                  The Supreme Court test that was overruled by Rich was objective, reasonable and well understood. What Rich ushered in to replace it has been nothing but a cr*pshoot, with one man’s opinion being good as the next.

                5. Ned,

                  STOP the inte11ectual dishonesty with your denigrating attacks on a person when it was Congress that changed the law.

                  All you are doing is your drive-by monologuing internet style shout downs by repeatedly engaging in this fallacy of not recognizing who actually responded to an anti-patent Supreme Court.

                6. Further, you distort the historic record as the “gist of the invention” and the “common law approach to defining invention” was an abject failure of reaching anything remotely “objective, reasonable, and well understood“. Such was the original Nose of Wax to which Congress reacted by str1pping out that previously granted authority to use common law and in its place Congress – not Rich reset that single paragraph into the law that we have today.

                  For someone “attuned” to history, your lack of appreciation for what brought about the Act of 1952 is downright shameful at best, and deceptively manipulative on its face.

  9. 1

    My shriveled, blackened heart grew three sizes after watching that video.

Comments are closed.