Patentlyo Bits and Bytes by Anthony McCain

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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.

39 thoughts on “Patentlyo Bits and Bytes by Anthony McCain

  1. 4

    So, how is it possible for this logic to be a threat? We all–according to MM–that it is all easy and you get a copyboy just to make the computer do what you want. According to MM all this is obvious and has no structure. How could be dangerous then.

    (Shameful that MM has been permitted to misrepresent pretty much everything for the last 13 years.)

    link to

    1. 4.2

      You guys know that you’re little Bobbsy Twins act is impossibly stale at this point, right?

      MM has been permitted to misrepresent pretty much everything

      LOL. Funny stuff.

      According to Malcolm, “it’s already in there.”

      Show everyone the quote, “anon.” You put the phrase in quotes. Who said it? What exactly is “in” where?

      Je zus H Cripes you’re some special kind of sniveling little t u r db@ll.

      1. 4.2.1

        The irony of YOU talking about anyone else and what they post as being “impossibly stale” is…


        The “quotes” are because the item represents a larger discussion.

        It’s not meant to be as literal as you seem to be struggling with.

        Hint: look up the inherency doctrine and the number of times in the past that I have asked YOU to properly use that patent doctrine instead of your usual rants.

        As to the rest of your meaningless ad hominem, well, what else is new (see comment above about stultifying).


          look up the inherency doctrine

          Deep deep stuff from Mr. Articulate.

          Do you have an argument? If so, spell it out in plain English like a grown up. Oh, and before you do that, make sure that you’re not arguing with a strawman. Be clear about what exactly it is that you’re addressing with this “inherency doctrine.” And also make no mistake that if you rely on “protons neutrons and electrons” to defend your junky logic claim, then there better be a novel configuration of those sub-atomic particles recited in the claim because otherwise (surprise!) you’re just beating on that strawman again.

          Let’s just cut to the chase: it’s strawmen all the way down for you and you like it that way, comforting, warm and vapid.


            Stultifying – brush away the ad hominem and once again you you have said absolutely nothing.


            Let’d take apart (again) Malcolm’s trite script:

            Specifically, this bit of nonsense:

            if you rely on “protons neutrons and electrons” to defend your junky logic claim, then there better be a novel configuration of those sub-atomic particles recited in the claim because otherwise (surprise!) you’re just beating on that strawman again.

            First, as I have explained to you several times (even in that simple and direct English language that you are always on about), the “Protons, Neutrons, and Electrons” bit is a slap against YOUR attempted “logic.”

            There is NO “my use” of to defend anything.

            Second, as I have (repeatedly) asked, your use of “logic claim” is nothing more than dissembling. How is your project to copyright logic coming along? Yes, that question is sufficient enough to throw your script into the trash bin. There is a very easy to understand reason why you would never have a project to obtain copyright on logic – and yet copyright on software is indisputably available.

            Third, as to “you better have [structure] in the claim” – once again you seek the fallacy of making an optional claim format somehow be NOT optional. Just how many times must you be called out for spouting such fallacies before you retire that schlock?

            Fourth, as to “otherwise (surprise!) you’re just beating on that strawman again” – you are not using the word “strawman” correctly. There have been a number of times that you cycle around to using a buzzword that just does not fit what you are attempting to (incorrectly) attribute to someone else. For “strawman,”I have often asked if you needed me to remind you what that buzzword actually means, and I have even supplied you
            with an objective definition and clearly shown your attempted use to be improper.

            Let’s also note the poker tell of “deep deep stuff” – an empty throw away line that only announces that you have nothing of merit to actually say (otherwise, you would dispense with the empty ad hominem and get to the point of merit). It is amazing that you seem incapable of recognizing this poker tell of yours, and that you seem incapable of not engaging in such meaningless in your posts.

            So, “cutting to the chase,” your final comment of “you like it that way” is easily seen as nothing more than your typical empty ad hominem and projecting, accusing others of that which Malcolm does.

            With all of your shortcomings repeatedly thrown back in your face, the only logical explanation for you to continue to attempt to use such claptrap is that YOU find it “comforting.”

            Of course, since you only post here in a drive-by monologue style, you tend to not even care that your “style” is easily seen as what is vapid.

            For all of the “articulateness” that you wish to imply that I lack, it is your own lacking that is really on display.


            Try more than the same of your tired ad hominem, Malcolm.
            Try more than using your old tried script and accusing others of that which you do.

            Try something else than what you have been using for 11 years now.

    1. 3.1

      I’d seen that article pop up but didn’t read it before.

      Silly whitey thinking that other races, as a group, would take an “enlightened” view on identity as whitey does in western nations (you come to Merica and eventually you are Merican, etc. etc. for different countries).

      Whitey as a group has yet to come to grips with the fact that other people, as groups (surely not individuals), very often in the modern day, if not always in some areas, ID with their ethnic group, esp while outside of whitey’s countries. This is because whitey does not ID as their ethnic group, unless they’re the dread alt-right, white nationalists etc. and thus cannot in this day and age even comprehend why anyone would do this, especially in the modern day. And also because of the high degrees of individualism in western countries.

      And the best part this situation is, if whitey tries to push this “enlightened view on ID” on other nations/peoples then “it’s raycycst” to do so (just ask a lefty).

      Try the replacement game:

      “But the connections Bell makes are apples to oranges. Bell, a white man from Canada, ignores the real, human experiences that Chinese people live through, Tchen noted.

      Bell isn’t someone whose family has been brought up in China through generations, communicating through insider references. His ancestors haven’t lived through events like the Opium Wars or the Cultural Revolution that have shaped the population’s outlook. Bell is a white man whose roots and values come from elsewhere. ”

      But the connections Olana makes are apples to oranges. Olana, a Chinese woman from Cambodia, ignores the real, human experiences that Denmark’s people live through, Tchen noted.

      Olana isn’t someone whose family has been brought up in Denmark through generations, communicating through insider references. Her ancestors haven’t lived through events like the German occupation or the Plots to k ill their cartoonists that have shaped the population’s outlook. Olana is a cambodian woman whose roots and values come from elsewhere.

      ^That would obviously be raycyst. But since he’s huwhite, it’s all good to be that way to him, culturally and socially.

      “To be Chinese is not a mere checklist, just like being black or from any other culture isn’t about hitting a set number of achievements”

      Only whitey makes it a barebones checklist to join their society (specifically adopting their “values” and abiding by their “laws” and maybe learning/using their languages) and be accepted largely as one of their own in their ID if not outright their ethnicity. This is, in white society, viewed as an “achievement” of their society. In nearly all other societies, it’s still seen as “insanity” and that shows 0 sign of changing anytime soon.

      “Tchen told HuffPost that he agrees that ideally, we “need to reject the very notion of ‘race’ and hence racial belonging.” These ideas don’t translate across historical and cultural differences, he says. ”

      In other words, according to lefty Tchen, only whitey (and others in white society I presume) can even hope to reject the very notion of race, because the very notion of doing so “doesn’t translate” across historical and cultural differences to other groups. This is a fancy way of saying the exact things the dread far right says that lefties say: “white people shouldn’t be raycyst, but others can feel free to be because of their history/culture and their not even understanding how not to be”. It’s leftist raycysm, and not even agin whitey so much as against everyone else. I did like that the very first comment pointed that out.

      It’s only in the last few years that understanding of these things is entering the mainstream. It remains to be seen whether viol ence will be the ending of all this. But one thing is for sure, the right and far right will grow. And this nonsense will control our domestic politics for decades to come, trampling over smaller issues like patent lawl etc.

      1. 3.1.1

        Glad you enjoyed it.

        The most galling thing is the absolute hyprocrisy of such Liberal Left ElitISM – and the fact that they almost seem “genuinely” (at least blithely) unaware of their own hypocrisy.

        Remind you of this board’s resident Trump himself: Malcolm…


          Glad you enjoyed it.

          Slurp slurp slurp. You two make a very special couple. Nobody could have predicted that you two would bond over rightwing pablum and bashing on “Liberal Left Elitism” (LOL).

          It’s only in the last few years that understanding of these things is entering the mainstream.


          Everything’s so fresh to the new converts. Must be the bleach in the pillowcase.


            Try figuring out the hypocrisy before you insert your favorite rants.

            It may help you realize why you are the Trump of these message boards.

  2. 2

    OT, but why not here…

    Google’s feature today is an interesting 106th birthday celebration of a rather obscure gentleman named Marshall McLuhan (geek tie: purported to have predicted the World Wide Web some thirty years before it occurred).

    Going “meta on meta” (which usually does not see the light of day for too long), I found his “tetrad” interesting if one contemplates applying it to the “media” of blogging (including this blog).

    From the wiki at link to


    Tetrad of media effects

    In Laws of Media (1988), published posthumously by his son Eric, McLuhan summarized his ideas about media in a concise tetrad of media effects. The tetrad is a means of examining the effects on society of any technology (i.e., any medium) by dividing its effects into four categories and displaying them simultaneously. McLuhan designed the tetrad as a pedagogical tool, phrasing his laws as questions with which to consider any medium:

    What does the medium enhance?
    What does the medium make obsolete?
    What does the medium retrieve that had been obsolesced earlier?
    What does the medium flip into when pushed to extremes?

    The laws of the tetrad exist simultaneously, not successively or chronologically, and allow the questioner to explore the “grammar and syntax” of the “language” of media. McLuhan departs from his mentor Harold Innis in suggesting that a medium “overheats”, or reverses into an opposing form, when taken to its extreme.

    Visually, a tetrad can be depicted as four diamonds forming an X, with the name of a medium in the centre. The two diamonds on the left of a tetrad are the Enhancement and Retrieval qualities of the medium, both Figure qualities. The two diamonds on the right of a tetrad are the Obsolescence and Reversal qualities, both Ground qualities.

    Using the example of radio:

    Enhancement (figure): What the medium amplifies or intensifies. Radio amplifies news and music via sound.

    Obsolescence (ground): What the medium drives out of prominence. Radio reduces the importance of print and the visual.

    Retrieval (figure): What the medium recovers which was previously lost. Radio returns the spoken word to the forefront.

    Reversal (ground): What the medium does when pushed to its limits. Acoustic radio flips into audio-visual TV.

    Applying the radio example to blogging:

    Enhancement (figure): What the medium amplifies or intensifies. Blogging amplifies propagandization via near instant ranting (with application of selective editorial control and no enforcement of any actual engagement in dialogue).

    Obsolescence (ground): What the medium drives out of prominence. Blogging (as applied) reduces the importance of dialogue, elevating monologues and especially repeat drive-by monologues (shouting down by repetition of points that ignore counterpoints presented).

    Retrieval (figure): What the medium recovers which was previously lost. Blogging returns the power of propaganda and the beat of drums for the march of the lemmings.

    Reversal (ground): What the medium does when pushed to its limits. Blogging flips into emphasizing the opposite of the desired narrative and creation of perceptions beyond the editorial controls of the media controller.

  3. 1

    The Chung piece is on the tendency of Supreme Courts to impose a course correction on the direction of patent law. The UK Supreme Court just issued the mother of all course corrections last week, in bringing into UK law a Doctrine of Equivalents, universally deprecated in the UK Courts up till last week

    I look forward to comments on this blog. On the IPKat, which rarely attracts more than a single number of comments, there are by now well over 50. Here they are:

    link to

    1. 1.2

      I didn’t think the courts had those powaz over in the UK anymore. After the upstart colonies took your system of lawl and made it mazin’ you guys ditched it and went with a different, lesser, model I thought.

      1. 1.2.1

        I guess, 6, you are alluding to the pooling of sovereignty of individual nations in Europe within the European Union, which has its own Court of Justice for adjudicating EU law. But the CJEU has no jurisdiction over what constitutes patent infringement, or on matters of validity of patents.

        The European Patent Organisation is not a creature of the EU. The EPO has 38 Member States, the EU 28. States like Turkey, Switzerland and Norway are in the EPO but not the EU.

        Europe is bigger than the EU. UK Prime Minister May is set on leaving the EU because when she was Minister of the Interior (of the UK) she had some disagreements with the European Court of Human Rights, which, to her great annoyance (she is the daughter of a pastor) found unlawful her treatment of some people held under arrest. She (apparently) thinks that the ECHR is a creature of the EU so, for her BREXIT is to escape from the jurisdiction of the ECHR, which so irksomely got in her way when she was Home Secretary.

        The existence of the troublesome ECHR is independent of the EU. It is not clear to me whether Theresa May has yet grasped this fact.

        Meanwhile, English law goes on, in England, whether inside or outside the EU.


          And, Max, bravo for English law. We tried to preserve some of its essential features in our Constitution in the fifth, sixth and seventh amendment’s. I am sure you are aware that the U. S. Supreme Court is now considering the mother of all patent cases where the seventh amendment is front and center. And whether patent validity has a right to a trial by jury depends upon English law.


            Ned, that’s all fine and dandy but in England the notion that one should involve a jury in disputed issues of patent infringement would (if ever it were raised) be greeted with incredulity and laughter.


          Nah I just mean you guys went away from common law to civil law I thought. Under civil law I thought the courts weren’t allowed to do those kinds of things.

          “UK Prime Minister May is set on leaving the EU because when she was Minister of the Interior (of the UK) she had some disagreements with the European Court of Human Rights, which, to her great annoyance (she is the daughter of a pastor) found unlawful her treatment of some people held under arrest. ”

          Hahahaaahaahahaahahaah. I’m sure she’s also on board with the Germans/Canadians when it comes to “muh gender pronouns” and jailing/large fining people if they decline to use the appropriate ones.

          “The existence of the troublesome ECHR is independent of the EU. It is not clear to me whether Theresa May has yet grasped this fact.”

          I’m sure she knows it, likely better than you even Max. She had troubles directly with it. Don’t worry, one day a trans individual will demand that you call them xersirthemagnificant as their “pronoun” by which you must legally refer to them as. And you’ll do as you’re told so you don’t go to jail.

    2. 1.3

      Max, when one reads the patent cases dating from the 16 and 1700s, one cannot help but notice that jurors had no problem in determining infringement when the accused device is not identical to what was described in the specification.

      1. 1.3.1

        Ned, the only time anybody mentions patent cases from the 17th and 18th century is you. Correct me if I’m misinformed but back then they had not yet invented patent claims to define the subject matter for which protection was sought.

        Once they did though, the struggle began, to confine the scope of protection to that which was commensurate with the contribution to the art. What is commensurate is quite hard to assess.


          Max, you would be surprised to find they did have claims in the form of the title and grant. The specification had to support the claim by also describing what the invention was and how to make and use it to enable one of ordinary skill in the art to make and use it. The requirement for an enabling specification was introduced at the time of Anne, but Lord Mansfield put real teeth into it. Arkwright’s patent ran afoul of the written description requirement, and most of his claims (10 in all) were held invalid as being in use or the invention of others.

          The only innovation after that was the requirement for examination of claims prior to grant. Up until then, if the patent and specification were defective by claiming too much, they had to seek a reissue to narrow the claim.


            Ned, what else is the patent bargain, the essence of any patent system, but exclusive rights in return for a written description, a disclosure, enabling at the level of generality commensurate with the extent of the exclusivity?

            Ah those were the days though, were they not, when a mere title could serve as a claim, a definition of the extent of the monopoly sought.


          And, might I add that a nation that does not know its history is doomed to repeat it.


            I learn from Wikipedia that the original was:

            “Those who cannot remember the past are condemned to repeat it.”

            I suspect the more serious problem in England today is too much remembering the long-past rather than too little. It seems that many of those who voted to leave the EU were dreaming of resurrecting the old Victorian British Empire.



              Your “suspicion” is a non sequitur to the EITHER the post by Ned or your reflection of Wikipedia’s version of what Ned posted.

              You recognize the point provided by Ned (with the sense of providing a Wiki version), but then you MISS the point with which Ned provides that comment.

              Instead, you meander into weeds in a different historical direction, and, as to the sense of resurrecting a political sense of Empire from the era of mercantilism, you seem to again only grasp half of the picture.

              Mercantilism in the form of corporatism is certainly very much on the rise.

              This current version of mercantilism though IS different from the Victorian era in that today’s mercantilism is driven by TRANS-nationals – Big Corp with NO allegiance to any one country.

              I do not think that today’s England is all that much mistaking a sense of “top-control” of the Victorian era (wherein the tie to trade made the country into a global power), with the more “trickle-down” and contrasting decision of whether or not staying on the path of a merged/merging single European state versus hewing more closely to its individual sovereignty.

              Sure, any one country is always looking for ways to make itself more powerful, and trade is – and most likely will always be – one of the forums through which power is attempted to be obtained. Thus, it should be considered “stink normal” for any one Sovereign to seek out – in political actions – those paths that paint the best picture for that sovereign.


                (and it bears a reminder, that patent law – no matter the comity attempted with international treaties – is and always has been a sovereign-centric political t001)

    3. 1.4

      Further on this point, Max, having read the discussion of the decision it seems clear to me they are applying, in a reasoned fashion, Graver Tank. Graver Tank decided that the substitution of one ingredient for another was an equivalent if people of ordinary skill in the art would know that substitution would work for the purpose.

      Of course, if the particular ingredient claimed was argued as being essential during prosecution, the public has a right to rely upon these arguments to exclude the alternatives that might work.

      Welcome to America, Great Britain.

      1. 1.4.1

        Ned the Decision itself is worth a read through. If only for its historical treatment of the subject.


          Indeed. Worth posting, the test.

          i) Notwithstanding that it is not within the literal meaning of the relevant claim(s) of the patent, does the variant achieve substantially the same result in substantially the same way as the invention, ie the inventive concept revealed by the patent?

          ii) Would it be obvious to the person skilled in the art, reading the patent at the priority date, but knowing that the variant achieves substantially the same result as the invention, that it does so in substantially the same way as the invention?

          iii) Would such a reader of the patent have concluded that the patentee nonetheless intended that strict compliance with the literal meaning of the relevant claim(s) of the patent was an essential requirement of the invention?


            Worth posting, in response to Ned’s helpful posting, immediately above, of “the test” in its latest form, is the observation that this test for infringement in England is but a small refinement and sharpening of Catnic “purposive construction” written by the UK Supreme Court decades ago, indeed pre-dating even the UK Patents Act of 1977 and the entry of the sovereign State of the UK into the supra-national European patent system. It is a small diminishment of legal certainty, as the price for adhering more closely to the over-riding objective of doing justice between the parties in dispute.


              It is a small diminishment of legal certainty, as the price for adhering more closely to the over-riding objective of doing justice between the parties in dispute.

              Not sure what MaxDrei feels that this means…

              But the “between the parties” line reminds me of another post of mine on that other blog vis a vis another poster’s (this one WAS John – the other at was actually “Tim”):

              John: “Presumably doctrine of equivalents is also going to have to be responsive to ‘equitable’ considerations in judgements

              Which does make me wonder. Here in the US (under a proper understanding of the limits of equity when it comes to statutory law), I do not think that such a presumption would be in play.

              I am curious from those that understand both systems, how would such a difference play out between the sovereigns?

              Keeping in mind that “doctrine of equivalents” here is a legal doctrine as opposed to equitable doctrine along the lines of 35 USC 103/112 (and as opposed to, for example, 35 USC 283).


            Noting on a follow-up thread to the original one that MaxDrei linked to,

            I replied to a poster named John thusly…

            John: “Perhaps you accept the usual EPO line as the only correct one, but is it? Perhaps the gold standard should be applied after a more realistic examination of what is directly and unambiguously disclosed, giving the skilled person more credit for his or her knowledge, skill and intelligence?

            me: I will not pretend that I am most up to date with the “EPO line” on what constitutes the power of a Person Having Ordinary Skill In The Art (“PHOSITA”), but your comment DOES reflect a point that I have made on US blogs concerning the US version of that “juristic person.”

            To wit: our Supreme Court (in its usual manner of seeking to be anti-patent), in the KSR decision actually did the opposite – if it were to be consistent with its jurisprudence (albeit, consistency is never a given for that cloistered group).

            By this I mean that by the Court attempting to raise up the power of PHOSITA in order to “allow” 103 to be more powerful in blocking patents, they also – concomitantly – raised up the power of PHOSITA when it comes to understanding what may pass as equivalents.

            It is to that very same (in the US version) PHOSITA that has been augmented as to being far more powerful that THAT power now is unleashed in “understanding” what is “directly and unambiguously disclosed.”

            Sometimes a blade will cut both ways….


          “113. For these reasons, I would (i) allow Lilly’s appeal in direct infringement and hold that the Actavis products infringe the Patent in the United Kingdom, and also in France, Italy and Spain, (ii) dismiss Actavis’s cross-appeal on the basis that if its products did not directly infringe, they would indirectly infringe to the extent held by the Court of Appeal.”

          Why is the UK Supreme Court holding that a product infringes an EPO patent in countries other than the UK?


            Why? For the same reason that the court restrained itself from looking into validity of the asserted claims.

            In England, proceedings are adversarial, and the court addresses only the issues put before it in dispute.

            Ned, if I remember right, the parties in dispute were agreed, that the court should pronounce on FR, IT, ES.

    4. 1.5

      And since the ipkitten is being “polite,” here is a post that did not get past the “politeness moniter” there:


      I have to say that you take being inane to a whole new level. I see that you do not limit your over-inflated ego to postings concerning US jurisprudence.

      It is little wonder that you “decide for yourself” that the a definition (and an explanation) that serves to shows that you are being an arse make you state: “serves to confirm me in my self-confidence.”

      Misplaced self-confidence is why you so often seem to speak garbled, with your tongue running into your feet.

      I do know that it lacked self-confidence” is exactly the type of thing that you cannot know.

      Applicant simply made the rational (and stink normal) assessment, that to assay a claim amendment before the ED, and fail, will leave you in a worse position after grant than if you had not tried.

      This too – you cannot know. There is no indication on the record that your projections were contemplated – no matter how “stink normal” you feel that such projections may be.

      You have ZERO reason to have the confidence that you would find in yourself.

      Thus, you prove the point of the explanation given with the definition.

      Then on top of the inanity that your present, you show your hand as to your disposition against those who would have patents (having strong patents), by indicating that an action that would provide clarity and strength (interviews – be them informal or otherwise), are something good to avoid.

      As to whether or not an interview being “informal” is dispositive, one would do well to recognize that any value from an informal interview – for anyone – is only that which may follow in the formal sense.

      Thus, as an “informal” interview would only serve to help prosecution (either by showing the applicant that the applicant should stop, or by showing the applicant a path forward to a better patent, your comment about “so highly valued” is true only in that regard, while the “to its credit” misses the mark with your animus.

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