Patently-O Bits and Bytes by Juvan Bonni

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19 thoughts on “Patently-O Bits and Bytes by Juvan Bonni

  1. 5

    Re: Matt Novak: The Story of the American Inventor Denied a Patent Because He Was a Slave (Source: Gizmodo)

    Norbert Rillieux, born in 1806 at la Nouvelle Orléans, 3 years after the Louisiana purchase had comparable experiences. According to the
    English language Wikipedia entry:

    Norbert Rillieux returned to France in the late 1850s, a few years before the start of the American Civil War. Race relations in the United States may have motivated part of his decision to do so since at one point, Rillieux became enraged when one of his applications for a patent was rejected because authorities falsely believed that he was a slave and thus, not a citizen in the United States. [7]

    Reference 7 points to the American Chemical Society web site which is currently out of order. How could have the Patent Office officer learned of the inventor’s race, unless the latter undertook the long and difficult northward trip? My hypothesis is that there were not many NOLA attorneys qualified enough to draft an application, and Rillieux had to go to a place where he was likely to find help, somewhere inside the future I495 beltway.

    Rillieux invented multiple effects evaporation, which drastically reduces the amount of heat required for refining sugar (and for many other industrial processes), by reusing steam the steam given off from one evaporator to provide heat for the next one. The steam’s latent heat is progressively exhausted by the accurate control of temperature and pressure conditions.

    I believe that US3237 would be Rillieux’s original patent. The cane sap enters vat A from the right, and the concentration occurs leftward. The head of the left vat B is under a partial vacuum supplied by a steam pump through pipe E. Steam enters through pipe B to heat vat A by a double bottom wall. Steam given off from the sap in vat A is used to heat vat B. The patent explains how the set-up is adjusted and operated, and takes pains to disclaim the prior art which he believed to have improved upon.

    The process can of course be extended to more than two stages, but I couldn’t find this mentioned in the patent.

    The French Wikipedia entry adds that Rillieux is named in the National Inventors Hall of Fame, and his work classified in 2002 as a National Historic Chemical Landmarks.

  2. 4

    So some patents get through 103 that shouldn’t. The presumption should still be there and if IBM wants to litigate it then they will have to convince a jury that it is not obvious.

    1. 4.1

      There will always be patents that are challenged on 103 grounds.


      I am sure that you are not one that needs be told to be wary of the Efficient Infringers mantra that “patent quality is so bad that there should be no presumption.”

      Notably, these are far too often the same people who do not want to switch the focus to “patent examination quality (which is pretty much a give-away that they just don’t want strong patent rights).

      1. 4.1.1

        Both of you seem to lack a sufficient sense of humor re patents like those two IBM patents.
        But if you want to take them seriously and pass around some blame, how about the client-interest that one is supposed to be representing? Put some blame whomever representing the client authorized spending client [stockholder] funds on patents that no one would ever dare sue on and could never generate any income? Especially since a company like IBM has a cheap alternative defensive publication program.



          Odd deflection Paul, as my post has nothing to do with the particular patents of which may generate humor.

          It is not the lack of humor, but more the more pressing point to which I attend.

          But you do raise a good point (even as you appear to fall to the easy temptation of ‘blame the attorney’), and one worth a bit more explication to disabuse those with the tendencies to which you have falllen.

          An attorney serves his client – even if the client decides (and it is always the choice of the client) to pursue the types of patents that you would cast derision upon. You cast stones at the wrong party here. And you pick quite a particularly bad choice at that, as it it notorious that IBM (the client) has CHOSEN to pursue a marketing campaign of quantity of patents over quality of patents. Here, this is not a case to support the derision you wish to use.

          May there be some “bad apples?” Sure, point out ANY area of human endeavor that has no “bad apples.” Is patent prosecution “rife” with such skullduggery? THAT, you will need to substantiate (and do so with more than your errant accusations).


            Wrong target. “whomever representing the client authorized spending” [spending on patent applications] is not normally the attorneys receiving those funds, and often is not the decision of an in-house [employee] patent attorney.


                …or are you saying that people should not be able to file patents because you feel that any such granted patent would be invalid?

                That sounds more like an accusation of fraud against the required oath (than anything else – IF you want to go there…)

    2. 4.2

      So some patents get through 103 that shouldn’t. The presumption should still be there and if IBM wants to litigate it then they will have to convince a jury that it is not obvious.

      Why exactly should the presumption still be there? That certainly is the law, but you appear to be talking policy. To be clear, I’m not saying you are wrong, but you haven’t actually explained your position either.

  3. 3

    RE: “Patent Reform, Then and Now.” The abstract notes the success of the 1952 patent law enactment. However, that major legislative reform was largely sold to Congress as a bi-partisan patent law “codification.” [Unlike most current patent law legislative proposals.] Also, in a Congress that had been accustomed to some bi-partisan legislative cooperation, especially during WWII, and more pro-technology in general.

    1. 3.2

      Sold to Congress as a codification.

      Be interesting to look back at some articles written at the time to see if that is true.

      1. 3.2.1

        There was codification – no one is arguing otherwise.

        But even some of that “codification” was in direct response to the anti-patent Supreme Court of the ‘30’s and 40’s and some of the so-called codifications were in truth overturnings of the meddlesome (and scrivining) Court.

        History repeats (hopefully in the good ways).


          I understand anon. My point is how it was “sold” to Congress.

          Was it reform or was it codification that characterized what they were doing.


            It was both. Only those seeking to NOT have reform have sought to portray the Act of 1952 as some sort of “ONLY” codification (as you might recall, this was one of the tactics of the late Ned Heller, who attempted to make it as if the Act of 1952 had no merit on its own in constraining the anti-patent judicial branch).

  4. 2

    This IBM patent claiming coffee delivery by drone to sleepy people is right up there with the prior famous IBM patent on toilet time tokens for airplane passengers. [Perhaps they can be combined?]
    But the real joke is the long list on this patent of a huge number of PTO classes and subclasses allegedly searched by the examiner. Or, does not getting a computer hit on a narrow computer search like “coffee and drone” now collected to count and list as a search of every listed class or subclass, and get treated as clearly 103 distinguishing over all the patents on drone deliveries of medicine to the sick, other food, etc., etc., etc?

  5. 1

    Wow the commentary and journal articles didn’t include any unethical paid-off professors this time that I could notice. Pravo! ( I hope part of the reform effort includes going after Lemley for his repeated violations of ethical standards.)

    These two articles appear to be very fair and objective as well as adhering to ethical standards.

    Atty. Russell Slifer: Congress and Trump are Out of Step on Intellectual Property (Source: The Hill)
    Prof. David O. Taylor: Patent Reform, Then and Now (Source: SSRN)

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