Neil Gorsuch has now been confirmed by the Senate and will swear-in next week as one of the nine justices of the United States Supreme Court. I expect Justice Gorsuch to support strong patent rights, but primarily focus on statutory language and historic precedent. I.e., do not expect Gorsuch to see patents as a fundamental right, but rather a policy tool that can be fully regulated by Congress.
Silk shirt, black tie,
I don’t need a reason why
They come runnin’ just as fast as they can
‘Cause every girl crazy ’bout a sharp dressed man
I am not a fan of Justice Gorsuch or his philosophy. That said, I can appreciate his clarity of thought and insistence on precision in language.
If he were to bring some clarity of thought and language to the body of cases from Benson to Alice, he would do the inventing community a great service.
Should an eligible “process” or “method” require a machine or transformation (to a “different state or thing”)? What is an “abstract idea?” When is a sequence of steps NOT an eligible process? When is it permissible to blend 102 novelty or 103 non-obviousness requirements with 101 eligibility issues, if ever?
Not only business methods inventions but also bioinformatics inventions will depend on that clarity.
Machine or Transformation was one of the 9-0 holdings of the Bilski decision – not sure why you think that that needs an answer…
😉
As to any other “clarity” – one new Justice simply is not going to provide that.
Anon, indeed, all nine justices approved test as important, but not exclusive. Also, Mayo clarified that even of portions of the claimed process passed the test, that is not sufficient.
I believe that the claim as a whole must pass the test in that the claim be directed to a special machine or that the claim as a whole be directed to a new or improved process that passes the MOT.
I think that is the point of Mayo and Alice.
I agree with Ned. The court did not designate the MOT as a categorical test. It left the door open for future cases wherein different rules might arise based on the facts of a given case. The MOT was seen as a “clue” that might (or would) allow consideration of eligibility.
I do think there is a danger of blending eligibility and patentability requirements. also.
You “agreeing” with Ned does not reach the rest of your statement since while that rest of the statement recognizes the mere “clue” nature, Ned does NOT believe in that same mere “clue” nature.
His version dictates it as an actual requirement and a change to the statutory categories to pre-1952 (and NO USC 100 definition of the STATED expansion of process).
Machine or Transformation was one of the 9-0 holdings of the Bilski decision
Sure, that makes a whole lot of sense. Crystal clear!
You have a problem with that?
That said, I can appreciate his clarity of thought and insistence on precision in language.
Because persnicketiness is sooooooo unusual among legal types.
I didn’t have time to follow the hearings blow by blow (I get turned off with the preening senators), but did the new justice get asked about the separation of powers? The expanse of the modern administrative state? If he holds true as an ‘originalist’ that would indicate (IMHO) at lean toward revoking PTAB.
Having very briefly looked at the speech he made when he was nominated, it may just be that in nominating Neil Gorsuch, President Trump selected a really good bloke. So once again, forget all the whining and wish him the very best of fortune and wise opinions in IP and other matters.
Who is whining? He should not be in that seat. It’s a travesty. His qualifications (or lack thereof) are immaterial.
PatentBob,
You are one of the whiners.
Remember, folks: “anon” is the only Truly Objective person in the room. Always. In his own mind, anyway.
Did you have a point to make?
Do you disagree with my comment?
LoL.
– “Who is whining?”
vs.
– “He should not be in that seat. It’s a travesty. “
Not asking about customary practice, but asking about actual rules of the Supreme Court of the United States.
What is there to stop the new Justice Gorsuch from participating in cases that have already been submitted (i.e., oral argument concluded), but not yet ruled upon?
I don’t believe there is a rule, but simply a custom that need not be followed. Thus, Gorsuch could participate in the biggest patent case this term, TC Heartland, correct?
Newly appointed Justice Warren did so in Brown, but then they ended up re-arguing the case anyway (after he joined), so that’s not quite the same.
I don’t think anyone has since, despite there not being any “rule” about it.
I think the estimate is that Trump will end up appointing 1/3 of the judiciary in the next four years. Wow.
Let’s be real. There is no way to read into the Constitution rights for gays. It really is just not there and all the history is the opposite. And, so what. They also had slaves and women who couldn’t vote.
So, let’s amend the Constitution to put in there equal right for gays, realistic restrictions on gun ownership, more privacy to account for changes in modern technology, etc.
What we have is each side claiming they can tell you the people in 1789 would have thought of something of today. Just rot.
each side
LOL
What?
What? Someone is Making America Great Again. And some people dislike the idea and fear it.
>the people in 1789 would have thought of something of today
As I’m sure you’re aware, originalists are nutters.
And, moreover ‘…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,’ was 1868…
True enough, but 1868 was not exactly the golden era of liberalism. And, technology and social norms have changed so much since 1868.
“As I’m sure you’re aware, originalists are nutters.”
Word.
orig4lyfe! Living breathers are the true nutters. You and I both know documents don’t live or breath.
Is that like machines that have thoughts…?
😉
You and I both know documents don’t live or breath.
Deep, deep stuff here, folks.
Neil Gorsuch shares with Bill Clinton, Chelsea Clinton and the present writer the distinction of being an alumnus of University College, Oxford.
His legal education was at Harvard and Oxford, where his PhD was supervised by the distinguished legal scholar John Finnis, and where he also had the good fortune to meet and marry and Englishwoman. Encouragingly, he has Episcopalian leanings.
His past history gives every sign of a deep and abiding interest in and concern for the law, and readers should join me in wishing him well in his new appointment.
Hear hear.
Didn’t this used to be a blog about patents?
Wow, self promotion, and political commentary all in the same post. You must be a lawyer Paul Cole.
I’ll say it again: the way out of the mess we are in is to realize that the Constitution doesn’t really provide an answer to things like abortion, modern guns, modern sexuality, equal rights for women, etc. We need to amend the Constitution so these issues are no longer political issues of the moment, but longer term issues that result in amendments to the Constitution.
Seriously, how could the people of the Constitution have imagined guns and bombs like we have now? Besides, I am not that interested in maintaining a Constitution without more amendments when the Constitution was written by many slave holders and people that did not even allow women to vote. We need to continue to amend the Constitution. It will end all this political nonsense and allow us to focus on important issues like sustainable living for the world.
“We need to amend the Constitution so these issues are no longer political issues of the moment, but longer term issues that result in amendments to the Constitution.”
I agree, vote in a few more republicans so they have enough state houses to amend the constitution to end the debate. If people want an abortion, female supremacy, no guns, or whatever else, they can go to canada or mexico.
“Besides, I am not that interested in maintaining a Constitution without more amendments when the Constitution was written by many slave holders and people that did not even allow women to vote. ”
See, that’s what’s wrong with the country. People not even interested in maintaining the well-font of their own lifestyle and prosperity. Literally just not even interested in it.
I wouldn’t be surprised that NWPA is sworn in to protect (and maintain) the constitution as an officer of a court somewhere, but he doesn’t care about things like that.
“It will end all this political nonsense”
Nah bro. All it would do if the republicans get to do it is increase MM’s being upset with his buddies and they will whine forever. If lefties or progressives get to do it then there will be a revolution and the lefties will be kil led.
@ Night Writer
If you trouble to read my posting, I say nothing about the US constitution or US politics and my remarks about University College are simply to express confidence about the quality of the education taught there and the balanced outlook that is promoted. Interestingly from the US political standpoint its appeal is bipartisan, which is perhaps a good thing. I am therefore more than willing to give Neil Gorsuch the benefit of any doubt, and to wish him well in the difficult and demanding tasks that lie before him.
Paul Cole in the USA any endorsement or even good words towards Neil Gorsuch is considered political. Plus, you are characterizing him based not on his judicial decisions which is what people are so upset about.
But it is always fun dealing with the British and their arrogance towards the colonies.
That’s funny Night Writer. But, heck , if the guy is proud of Oxford, well good on him and good on the institution that instilled some pride and esprit de corps. IMHO, it’s something we could all use some more of these days, not Oxford mind you (they’re like the Dutch!), but all of our institutions.
It’s immaterial. He occupies a stolen seat.
I agree. I was very disappointed in Obama for not pressing this more. He could have done a lot more.
How exactly – and legally – did this so-called “theft” occur?
Maybe you want to present a legal argument with your use of legal terms there PatentBob…
How exactly – and legally – did this so-called “theft” occur?
LOL
Oh lookie! It’s very serious “anon” coming to the rescue of the Repukkkes again. Remember, folks: “anon” claims to be “above” all this partisan bickering. For him, Mango Hairpiece and Hillary were indistinguishable. After all, private email server (have we finished investigating it – LOL).
“anon” longs for the day when people have no memory of the recent past. Just how did Stolen Seat Neil manage to replace Scalia when Scalia died during Obama’s presidency with over a year left in Obama’s term? Stolen Seat Neil was born with a silver spoon in his mouth and was literally bred up by fantastically wealthy people to be a power player. Did that have anything to do with his rise to the top and his appointment by the party of rich white men? Let’s let “anon” explain it to everyone. He’s a very serious person, after all.
No rescue at all, Malcolm.
Let’s just use the legal terms correctly – and less of an emotionalISM ploy – that’s all.
“ born with a silver spoon in his mouth”
Name ONE Supreme Court Justice that does not have that “silver spoon” IVY LEAGUE taint….
That’s what I thought.
Hey, Anon: you’re right, everyone one of these nine attended law school at Harvard or Yale, and Malcolm is a hypocrite for only complaining about Gorsuch’s pedigree. But why get into a pi$$ing match with him over that? I’m gloating at the fact that, for the next 25-30 years while Gorsuch is on the bench, Malcolm will be discomfited by the very fact of Gorsuch’s appointment. Excuse me, that’s JUSTICE Gorsuch.
gloating at the fact that, for the next 25-30 years while Gorsuch is on the bench, Malcolm will be discomfited
Spoken like a true Repukkke. Focus on the important stuff!
everyone one of these nine attended law school at Harvard or Yale, Malcolm is a hypocrite for only complaining about Gorsuch’s pedigree
Going to Harvard or Yale isn’t the issue, you depressingly dense p.o.s.
“born with a silver spoon in his mouth and was literally bred up by fantastically wealthy people to be a power player. Did that have anything to do with his rise to the top and his appointment by the party of rich white men? ”
Seems like really a silly thing to say given Judge Garland was regarded as one of the wealthiest noms ever, and his net worth disclosure range completely blows Gorsuch out of the water.
And Garland’s “old money”, also, and very connected (link to dailymail.co.uk).
So, anon, how long can one delay voting on a Supreme Court justice? One year? Two years? Three years? Forever? I’m not republican or democrat, but I’m appalled at this stalling tactic.
PatentBob,
I too was appalled – and I think that it did incredible damage to the “brand” of the Repukes.
But please, try to not let the emotionalism obscure the legal points.
“Theft” is simply not the correct legal label.
You need to take that up with Justice Ginsburg.
Paul, I do wish him well.
Also, he will be the only Protestant on the United States Supreme Court. Think about that for a second.
His past history gives every sign of a deep and abiding interest in and concern for the law
Did you hear the joke about the frozen trucker?
No, but I would absolutely love to hear it. So over to you!
OT but a Disney patent application is in the news. Apparently everyone involved was born yesterday. Try to believe this:
link to appft.uspto.gov
1. A robot for human interaction, comprising: a robot controller including a joint control module; a link comprising a rigid support element and a body segment coupled to the rigid support element, wherein the body segment includes an outer sidewall enclosing an interior space; a pressure sensor sensing pressure in the interior space of the link; and a joint coupled to the rigid support element, wherein the robot controller operates the joint based on the pressure sensed by the pressure sensor.
Sensors! They detect stuff. And something else responds. But this is all taking place in some new fangled thing called a “robot” and — get this — there’s an inside and an outside. Wowee zowee!
But what is his view on the constitutionality of the PTAB?
When will Gorsuch realistically join the bench as an active Associate Justice?
Monday.
link to washingtonexaminer.com
MM said: “got my baseball bat and bricks set”
Ah yes. Not unexpected … from you and yours.
The instrument of “force” and the violation of rights, has always and will ever be the primary tool of yours and your kin.
No matter how “compassionate”, “progressive”, or “liberal” you and your friends like to say you are, your prerogative, your mantra, the very instrument built into your so called moral high-ground the initiation of force against those who have not initiated it, in opposition to their will, individual rights, and freedoms. This is no surprise because a free ride for some requires (according to you and yours) a forced ride for others… never questioning the premises that a free ride is a right or that force for it’s sake is moral.
No doubt you will laugh, perhaps while stroking your bat or bricks… no doubt they are precious to you… you know that as destroyers, not creators, you and yours would be powerless without them.
I realize it is a waste of my time to continue writing this… sufficed to say I prefer freedom to you and your “bat and bricks”. No offense.
Take away your rights? Which ones? The right to make money without taxes or giving back to the society that has provided the economy that gave the medium to make money in the first place? Please, there is no such natural right. Liberals are not the Bolsheviks you make them out to be.
Put away Ayn Rand and step into the real world.
Put away Ayn Rand and step into the real world.
Or he can just keep spouting platitudes about “freedom” while cheering for increased privatization and the accelerated concentration of wealth and power into fewer and fewer hands. Extreme cognitive dissonance is just a fact of life for these Heritage/Federalist types. Sharing/collectivity is for weaklings, not “winners.” And we all love “winners”. Right? USA! USA!
You don’t seem to understand the basics of the US patent system and the role of that system with disruptive innovation…
… much like your dichotomy of going after the form of innovation MOST accessible to the non-wealthy….
(I know: “Go figure Folks,” hmm?)
LOL
Never underestimate the ability of a fake libertarian to speechify about “freedom”, especially if it’s the “freedom” of rich white guys to make life as cr@ppy as possible for everyone else.
The instrument of “force” … has always and will ever be the primary tool of yours and your kin.
Oh noes! I chucked your tea into the harbor. Boo hoo hoo.
As far as Gorsuch… we’ll see. I have no reason to believe he is pro or anti intellectual property
The United States Customs and Border Protection (CBP) has now withdrawn its outrageous and unconstitutional order demanding Twitter give up user data related to an account frequently critical of the Trump administration. …
On Thursday, Twitter filed a lawsuit against the Department of Homeland Security, the CBP, and others, arguing that the CPB’s demand to provide possibly identifying user data on @ALT_uscis, one of many anonymous Twitter accounts critical of the Trump administration, violated the First Amendment of the Constitution. According to Twitter, the CPB bizarrely justified its order by citing a statue concerning imported merchandise.
Nothing to see here, folks. Just the usual narcissist authoritarians spreading that delicious “freedom” around. Nobody could have predicted any of this.
probably an illegal.
I think the best way to describe this comments is “unhinged.”
Conservatives and faux-libertarians try to cloak themselves in the mantle of “freedom,” but the freedoms the ascribe to are only the ones the reinforce their power and ability to concentrate wealth into their hands. The primary tool of the conservatives and faux-libertarians is violence. The violence may not be physical (though it may be through the use of unaccountable enforcement agencies, such as police, the FBI, the DEA, INS, etc.); but the violence the economic, social, and environmental. Polluting the waters causing harm to people just so they can amass more wealth.
And you are surprised that a lot of people are extremely upset at those actions?
I would suggest everyone listen to the first couple of episodes of Seasons 4 and 6 of the Revolutions podcast. The parallels are striking.
Ordinary Squirrel, this post of yours is borderline In S Ane. All of it, pure leftist propaganda.
But of course, you seem to believe everything you say there to be true in fact, which is the pitty.
I don’t advocate violence or overthrow of the government. All I want is sensible policy that will benefit everyone instead of the new age robber barons. You are blind, and likely live in an ivory tower, if you can’t acknowledge the source of a lot of people’s frustrations.
If I am not within my rights to defend myself when I am mugged on the street, why am I not within my rights to defend myself when a corporation is dumping chemicals into the water I drink or the air I breath?
Squirrel, if someone violates your rights, you can sue. If you are poor, there are a lot of public advocacy groups or rich people willing to back you.
I once had a case where the ACLU provided the attorneys, and a major league rich guy helped with the finances.
I am almost always on the side of the little guy. But I do not buy into the leftist point of view because I do not believe they are in fact on the side of the little guy. A recent study showed this. The socialist care more about punishing the rich and about control over everything, than they care about the little guy. The socialist will protect the owl of the forest over 30,000 good paying jobs. The socialist will stop the pipeline rather than provide the people with low-cost energy and jobs, job, jobs.
I am still aghast that the famous incident where Dow stopped, after years of trying, to get the necessary 100 permits to build in California a major chemical plant. The socialist environmentalists crowed about their victory while the people of California suffered.
Example after example can be had of this ilk. The interests of the little guy are swept aside in favor of punishing the big corporation.
Today, the socialist backs illegal and legal immigration that only lowers wage rates of Americans. The farm worker, the construction worker and the engineer/scientist are all suffering depressed wages because of too much immigration too fast.
Ordinary people get trampled, day in and day out, by socialist policies; but the rhetoric of envy continues as if that justified all the bad policies the socialist promotes.
Higher taxes on corporations — who then flee.
Higher regulations on corporations — who then flee.
More regulation, more taxes means fewer jobs, less prosperity for Americans.
There is a reason that the worker voted for Trump. Hopefully, he delivers on his promises. But the worker is best advised to never against vote left.
I can sue, yes. Or I can use some form of collective group action, say a government of some sort, to defend myself.
Your comments about immigration are empirically wrong. Immigration does not “take jobs” or “depress wages.” That view ignores economics 101. (And your comments specifically about farm labor are really off the mark. Look into the history of farm labor in the US. Except for the great depression, for the last 150 years, farm labor has been largely done by immigrants.) Automation and productivity are the cause of job loss and suppressed wages. And guess what, unless Trump voters are going to start throwing wooden shoes into the gears, automation and productivity are here to stay, no matter what happens to immigration.
Global trade is a force for good. It makes the pie larger. The problem is that there are always going to be winners and losers when it comes to trade. But here is the key realization, the reason people are upset is that global trade is a form of wealth redistribution from the workers to owners. Programs to help the workers to lost to global trade (I am personally in favor of taxing the winners to give direct cash payments to the losers) is in fact anti-wealth redistribution. It is the winners realizing that their gains came at the expense of the losers, and then paying those losers back for their sacrifice.
As much as there is no reason to vote for the left, there is equally no reason to vote for the right. At least with the left, I can have civil liberties, a decent environment, and at least some privacy. All issues, I might add, that the right has be particularly terrible with in the last few months. The right has no solutions that will make the lives of the average worker better. We have seen this over and over again in the last several months. And the thing is, everybody knows this to be true. I bet you know this is true. To pretend otherwise is to be delusional. That is why there is so much political discontent.
As for Trump, he made no promises. He made statements that he thought would help his election chances. Anyone who is relying on what he has said is fooling themselves.
Hugo Chavez, himself, was against illegal immigration because he saw first hand how it undermined his attempt to organize farmworkers and bargain for higher wages and better working conditions. So where your econ 101 argument is flat.