Patentlyo Bits and Bytes by Anthony McCain


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Anthony McCain

About Anthony McCain

Anthony McCain is a law student at Mizzou where he is focusing on intellectual property; He has a background in mechanical engineering.

48 thoughts on “Patentlyo Bits and Bytes by Anthony McCain

  1. University Research Leads To Breakthroughs In 3d Printed Organs

    “Universities are just like those NPEs with their shove-an-ad-in-your-face patents!”

    Uh-huh. Sure they are.

    1. Love the “shove-an-ad” strawman.

      Maybe you want to try less emotive language and try more to make an actual legal point…

    1. In that article about Cripr why does the 2nd to invent want to get pre-aia treatment? To try to make an interference that he’ll just lose anyway?

    2. Quick quiz for you 6.

      Since the AIA included a “not-directed-to-Human” element into patent law, would someone using Crispr for human experiments (put aside the Island of Dr. Moreau story line for a moment) be free of any charge of patent infringement?

      Or, should – in a move parallel to Malcolm’s “fave” of ineligibility IF a claim can be read to include anything within its gambit that which is off limits*** – any such patent (since it cannot help but cover things “directed to” the off-limits human interaction) be de facto invalid?

      Or should those using any such patented “technology” – even if solely on humans – be found guilty of patent infringement?


      And now returning to the island of Dr. Moreau, you should be aware that England has approved the use of Crispr directly for human experiments.

      *** There is a subtle notion being floated here on the apparent dissimilar treatment of the phrase “directed to.” In the one case (judicial exceptions), where the normal rule of law is to read exceptions very narrowly, we have courts instead reading the “Two-Step” test very, very broadly. On the other hand, in the instance of a legislative decree (where the rule of law does not insist on a narrow reading), we have a “razor thin” view of what it means to be “directed to” humans (after all, the extreme vast majority of ALL pharma falls under a more broad reading of “directed to.”

      1. “Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.”

        You can’t patent the human organism itself, which is what is encompassed by “directed to”.

        That’s distinctly different than the method of inserting DNA into the human genome, for, e.g. gene therapy, which would be more like pharma. However, a “human containing XXX DNA” would be invalid. Not too hard.

        The use of CRISPR for human experiments would be infringing, assuming the CRISPR patents are valid.*

        1. The “encompassing” language is the “easy” don’t-claim-a-person keep-out.

          The “directed to” is (and must be) something different.

          Compare and contrast the treatment of that something different language.

          1. Is that definition of encompassing correct? Thought there was something about organizing human activity, because the claim would be strictly broader than the organism itself (i.e. the claim “encompasses” human organisms).

            If it is, might be related to claiming genes themselves?

            1. Let’s make it easy for you: focus on the fact that there must be a difference between the two phrases, and then note that your first reply did not address the “directed to” language as you may have thought that you had.

              Then re-read my post and note that the same “directed to” language is in the judicial exceptions, and THEN note how I point out the apparent “flip” in when the same phrase is supposed to be construed narrowly (hint: when the judicial branch is concerned) and when it is not (hint: when the legislative branch is concerned).

              1. You’re assuming you’re correct with your interpretation of “encompassing”. Haven’t seen anything that suggests your interpretation is correct.

                I’m saying “directed to” seems to be the don’t-claim-a-person, while “encompass” appears to be a thing/system that comprises a human organism.

                1. My “interpretation” is indeed correct, and you should be aware that your attempt to “interpret” otherwise runs full speed into the brick wall of how that same term is used in the court cases.

                  Hey, that only makes my point even stronger, so if you want to have that interpretation, then have at it (but don’t forget to be consistent about it and return and address the point I presented).

                2. “anon” My “interpretation” is indeed correct

                  Tell everyone what “directed to” means, as used in section 33(a) of the AIA.

                  Just spit it out, in plain English.

                3. That’s the great thing about critical thinking, patentcat, you do not have to be lead by the nose.

                  Try it.

                4. Malcolm,

                  Try thinking as well: in context.

                  Feel free to first answer (in an inte11ectually honest manner) the item put on the table.

                  If (and that is a mighty big IF), you are able to do so, then I might indulge you.

                  What are the chances that you will engage?

                  (Yeah, thought so)

                5. Try thinking as well: in context.

                  Try telling everyone what your “interpretation” of “directed to” means, as used in section 33(a) of the AIA.

                  Put on your big boy pants and we’ll treat you like a big boy. Otherwise we’ll continue treating you like the pa the tic cl0wn you are.

                6. Try doing as I ask.

                  Show everyone how those “big boy” pants are worn.

                  LOL – NOT GOING TO HAPPEN.

  2. Federal Circuit today issued a Rule 36 opinion in COLLECTORS UNIVERSE, INC. v. BLAKE. Collectors Universe was looking for fees after Blake’s junk patent was tanked as anticipated on summary judgment.

    The junk claims were directed to methods of displaying an old coin grading symbol (e.g., a “+” symbol) on a computer screen along with the coin in question.

    Blake (surprise!) is a patent attorney.

    1. OK, to counteract this propaganda:

      “Seldom has an intellectual property feud been freighted with so much commercial consequence, scientific implications and uncertainty as the patent battle involving the gene-editing advancement known as Crispr.”

      See Gershman article, above. A revolutionary breakthrough, with two competing groups of inventors fighting each other. The INVENTORS are fighting each other, with nary an attorney involved (other than being directed by the inventors).

      ” In the middle of February, the scientific journal Nature Biotechnology published a paper from a team of researchers at Wake Forest University which reported a breakthrough in creating transplantable human organs with the use of an integrated tissue-organ printer. The team was successful in 3D printing an ear which survived on a mouse for two months and formed new tissues, indicating a successful integration to the new body.”

      See Brachmann article above. No attorneys, just inventors.

      1. Here’s something that will totally blow your mind, PB: scientists discover and innovate and share their work with others every day without ever talking to an attorney. They’ve been doing it for a long long time.

        It’s almost like … communism.

        1. That’s always been an option.

          But here again, the concept of “option” seems to baffle you Malcolm (when matters of law are at hand).

        2. So, you point is, nothing should be patented and we don’t need a patent system, because the highly educated are easily exploited?

      2. The new process for creating transplantable organs (not organisms) is directed to the abstract idea of growing organs, something that is as old as Adam (or at least Eve or Able). Cells are old. 3D printers have been around since at least the mid- 1990’s and are controlled by old generic computers combined with unpatentable (but oh so shiny) software. If granted, the claims would preempt the entire field of printing organs.

        Abstract idea, product of nature, junk software.

        claim tanked under 101.

          1. Les: no unexpected results. Why would they have built it if they didn’t expect it to work…

            “It works” doesn’t typically qualify as an “unexpected result” unless the literature is overflowing with express statements teaching away from the invention.

            Super “nuanced” stuff, I know.

            How long have you been practicing patent law, Les? Five minutes?

            1. You trying to be “super-nuanced” just means that you are missing the sl@p in the face when your own logic is taken to its normal ends, Malcolm.

              Wake up son.

              1. Why do you suppose this is awaiting moderation?:

                My point exactly M M.

                According to you, nothing that works is patentable, as there are no unexpected results.

          1. Please define “overly broad” and explain how you want to use 101 instead of 112.

            And please do not refer merely to any broken scoreboard (It might help sharpen your awareness to be aware that certain pre-1952 decisions were geared to a then single paragraph which was distinctly changed into the multiple sections of 101/102/103/112)

            1. “Overly broad”- whether the scope of enablement provided to one skilled in the art by the disclosure is commensurate with the scope of protection sought by the claims.

              Oops! Forgot the office discourages such 112 rejections.

              So 101 is used instead, because the claims are *abstract* enough to preempt non-obvious developments within fields.

              E.g. claim 1 of the other application.

              link to

              This could, say, preempt other non-obvious technologies that have complementary nucleotides and a second segment that interacts with a site-directed modifying polypeptide.

              The spec only enables editing with the CRISPR system.

              It’s plausible that there are other yet-to-be-discovered methods of editing, which just so happen to have the claimed limitations, but operate in entirely different manners.

            2. Lol – your answer is in 112 and you forgot that we were having a 101 discussion.

              Maybe you have heard of this concept that the ends do not justify the means (and corrupting 101 to otherwise reach a 112 position is just not a valid means).

              And maybe you want to pay more attention to my writings as I have discussed the historical context of that pre-1952 single paragraph being purposively broken into different sections of the law….

              1. >Maybe you have heard of this concept that the ends do not justify the means

                Well, that’s certainly one opinion one can have.

                You realize your opinions aren’t absolute, right?

          2. Well patentcat, here is one of the claims in question. Is it overly broad? I’m sure MM would have a conniption over the first and second regulatory elements…..”functional claiming” you know…

            Have at it.

            1. A method of altering expression of at least one gene product in a eukaryotic cell containing and expressing a DNA molecule having a target sequence and encoding said gene product comprising introducing into said eukaryotic cell an engineered, non-naturally occurring Clustered Regularly Interspaced Short Palindromic Repeats (CRISPR)-CRISPR associated (Cas) system comprising one or more vectors comprising:
            a) a first regulatory element operable in a eukaryotic cell operably linked to at least one nucleotide sequence encoding a CRISPR-Cas system guide RNA that hybridizes with the target sequence, and
            b) a second regulatory element operable in a eukaryotic cell operably linked to a nucleotide sequence encoding a Staphylococcus aureus Cas9 protein,
            wherein the CRISPR-Cas system further comprises one or more nuclear localization signal(s) (NLS(s)), and components (a) and (b) are located on same or different vectors of the system,
            whereby the guide RNA targets the target sequence and the Cas9 protein cleaves the DNA molecule;
            the method further comprising inserting DNA into a cleaved strand of the DNA molecule;
            whereby expression of the at least one gene product is altered; and, wherein the Cas9 protein and the guide RNA do not naturally occur together.

            link to

            1. This one, not 100% sure. Don’t have a doctorate in biochemistry.

              The other patent application that you probably didn’t link to for good reason? Many of the claims are overly broad if they were issued as is.

              link to

              Also, not sure how if the 2010 paper could be considered prior art.

              1. There were two good reasons. I was talking about method claims and MMs assertion that you have to use new hardware in any allowable method. And, in particular I was talking bout the 3D printing of organs for transplant.

                1. The only joke is you Malcolm, as this is nothing more than what I have consistently pointed out since you started attempting to make an issue out of one optional claim format somehow being the ONLY legitimate legal claim format.

                  Of course, you simply lack the inte11ectual honesty to face that.

            2. Les: I’m sure MM would have a conniption over the first and second regulatory elements…..”functional claiming” you know…

              Except MM isn’t an ign0ramus like you and even before he checked he knew that the specification would provide literally hundreds (if not thousands — I didn’t count) of such elements in objective structural terms. That’s setting aside the fact that skilled artisans (or a half-decent student taking a freshman biochem class) can describe actual physical structures with the desired properties from memory.

              I know this kind of “nuance” just sails right over your peabrain (it has before, hundreds of times). Enjoy the breeze.

              1. Lol – you are such an “ign0ramus” in how you “treat” the different Art field related to software.

                Your disdain and contempt is simply unwarranted (and yet again merely exhibits your very own cognitative dissonance) – but please top this off yet again with some duplicity about how this particular Art field that you feel does not deserve innovation protection – and is easily the most accessible for the non-one-percenters is somehow (Oh Noes) under the control of the uber wealthy tiny minority that you spout.

                Your “position” is just internally inconsistent and you just don’t have the mental rigor or inte11ectual honesty to deal with it.

                1. Why do you suppose this is awaiting moderation?

                  “xcept M M isn’t an ign0ramus like you and even before he checked he knew that the specification would provide literally hundreds (if not thousands — I didn’t count) of such elements in objective structural terms. That’s setting aside the fact that skilled artisans (or a half-decent student taking a freshman biochem class) can describe actual physical structures with the desired properties from memory.”

                  So, how many micro-processors have to be identified by manufacture and model number, in your view, to support recitation of “a processor configured to:”?

                  Please factor in the fact that those of ordinary skill in the art are aware of the thousands of processors available and that new ones are introduces all the time.

  3. New Patent Shows How Airfares May One Day Depend On Your Girth

    Because nobody ever charged a shipping price based on size or weight before.

    Oy, what a farce.

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