51 thoughts on “Hearings Continue before the Senate

  1. 9

    Since they — unsurprisingly — refused to testify willingly, would have been helpful had the committee subpoenaed the regularly and repeatedly infringing, innovation-stealing Facebook, Apple, and Google.

    Including to ask them to explain and justify how on the one hand they regularly assert that the patent claims of other companies and inventors are ineligible … while at the same time crying like babies to the Patent Office that their own claims … written in similar styles and manners … with many of the same elements … and even some of the same limitations … ARE eligible.

    Hypocrites love company.

  2. 8

    Those hearings, so far, have been just a version of what goes on here. Tillis has a visible viewpoint- he is totally pushing somereform, but even his instinct for the political kill-zone is not helping him muddle through this. There are no clear sides to choose, no clear solutions to “the” problem, and not even clear agreement that there is a problem.

    Nobody really pointed out the guts of the problem(s): information inventions and the place in the patent system of logic and instructions. At least one witness was pretty clear that the reform as proposed very likely implicates Constitutional issues. Tillis seemed keen to avoid that, but not knowing how to, yet anyway.

    1. 8.1

      That one witness was an anti-computing academic hack. His view of “Constitutional Issue” was as undeveloped as it was stillborn. The witness who appeared at the same time (Prof. Mossof) would have been the one to advance any type of cogent Constitutional issue.

    2. 8.2

      Like everything else in Washington, they will put up a show about concern for the public’s interest, and when they are done it will be private interests that dominate, i.e., the most generous campaign donors will get what they want.

  3. 7

    Largely off-topic, but because so many patent law arguments are premised on the assertion that China is going to eat our lunch if we do not do this, that, or the other, I thought that people might benefit from a dose of perspective. Enjoy.

    1. 7.1

      Consider the source(s):

      Mother Jones and Greg DeLassus.

      By the way, a pretty graph with no numbers and no listed assumptions does not a compelling tale make — even if the different curves there for China reflect some type of linear (or even semi-linear) growth, the chart for US shows a STEADY growth. The scenarios that go to the premises and assertion of China passing us (and eating our lunch) are NOT based on what that graph shows.

      Now mind you, I am NOT saying that China will or will not “eat our lunch,” but this rebuttal/”dose of perspective” is itself “out to lunch.”

    2. 7.2

      Hard to make meaningful income comparisons, since every one of those developed countries has a single-payer healthcare system. The US may have higher incomes, but so much of that average income gets siphoned off into the most inefficient healthcare system on planet. Brilliant idea: let’s pay a middleman with no value-add, and lets pay the middleman more profit for giving out less healthcare. What could go wrong?

      1. 7.2.1

        X

        Two brief responses:

        (1) The comparison does not change much if we look at Canada (a country with a national health insurance scheme) instead of the U.S. Basically, China is likely to catch up with Mexican GDP/capita in the next few years, but they are leagues away from catching up with either the U.S. or Canada.

        (2) You are certainly correct, however, about the deleterious effect of our private insurance market—or at least our tax treatment of our private insurance market. Much of the high cost of drugs in the U.S. is a function of almost hydraulic pressure of money flows. By treating a dollar that an employer spends to purchase health insurance for an employee so differently (from a tax perspective) than a dollar given directly to that employee, our tax law forces money into the healthcare sector of the economy. That money has to go somewhere, and the pharma industry has figured out many effective ways (mostly involving fiddling with FDA regs) to channel the money toward drugs. A second best way of lowering drug costs would be to fix those FDA regs, but an even more effective way would be just to end the tax advantaged status of spending on health insurance. Without change the tax law, fixing the FDA regs will simply end up ensuring that the hydraulic channel of money will flow to hospitals, or PBMs, or some other end of the healthcare sector instead of pharma—not into the pockets of the actual workers whose paychecks are currently being picked to pay for this bloat.

  4. 6

    “most of whom are arguing in favor of statutory reform that would tighten-up the law of eligibility.”

    When you invite only the patent industry, guess what happens.

    IBM, Qualcomm, Nokia, Interdigital = probably the worst companies when it comes to software patents.

    1. 6.1

      Zoobab,

      Correct me if my impression is in error, but you seem to think that there is only one side being represented in the current panels (and that one side is for “more patents”).

      B (or Bud) has posted on a different blog a view that would contradict that view (as I understand it):

      The “High Tech Inventors Alliance” is a fortune 50 club. Google, Oracle, Intel, Cisco, etc. “United for Patent Reform” and the “Internet Association” represent the same companies. The directors of the “Software and Information Industry Association” are people from the same organizations. Of course they’re against strong patent rights.

      Google et al. got four voices.

      The ACLU are bafoons who think new medicines fall from the sky.

      Certainly as well, there is the stark contrast between Prof. Sarnoff (who ventures errantly into the “Constitutional” weeds) and Prof. Mossoff (who has actually established an understanding of Constitutional matters, and sees none here).

      Are you “one-bucketing” with this notion of “patent industry?”

  5. 5

    Any contemporary patent statute that uses the word “structure” without defining the term will accomplish absolutely nothing in terms of clarity. That is because the CAFC has already decided that the term “structure” includes structureless abstractions (e.g., algorithms). Going further, the CAFC (specifically, the disgraced former judge Rader, joined by the incompetent and thankfully deceased Giles Rich) decided that stored data is the “essence of electronic structure.”

    So Ben, Greg, and Paul you should feel free to dance around with Bildo until the cows come home. At the end of the day, the amount of “confusion” is no more or less than it is before. You’d have to be from Missouri to believe that the people pushing these statutes are interested in “tightening” anything up. They aren’t interested in that. They are interested in buying time for patenting logic, and they are interested in patenting correlations and medical data. Why? So they can profit off those things at the expense of everybody else.

    They are disgusting entitled dishonest p.i.g.s, is the most accurate and generous way of putting it.

    1. 5.1

      Your feelings (and disconnect with the factual nature of software merely being a design choice of “wares” for the computing arts) is noted.

  6. 4

    Looks like Greg isn’t the only one who thinks the draft 112(f) has teeth.

    I still don’t see it. MPEP 2181: “See Mass. Inst. of Tech., 462 F.3d at 1355-1356, 80 USPQ2d at 1332 (the court found the recitation of “aesthetic correction circuitrysufficient to avoid pre-AIA 35 U.S.C. 112, paragraph 6, treatment because the term circuit, combined with a description of the function of the circuit, connoted sufficient structure to one of ordinary skill in the art.”

    The CAFC has two different standards for “sufficient structure”. One for 112(f) invocation, and one for satisfying 112(b) after 112(f) is invoked. The former is a low bar. The amendment allows the CAFC to keep it’s low bar. If this enter statute, we will shortly see the CAFC say “the term processor in conjunction with the description of a function conveys sufficient structure to one of ordinary skill in the art.”

    On the other hand, anon seems to despise the draft 112(f). Whatever his rstionale is, I am sure it doesn’t lean on optimism.

    1. 4.1

      anon seems to despise the draft 112(f). Whatever his rstionale is,

      It’s always amusing to watch the maximalist paranoiacs engage in all kinds of logical extrapolations when they believe their precious patent rights are being limited in some manner. But hold them by the hand and ask them to engage in the most basic reasoning possible with respect to a statute that would clearly impact everyone else and all you get from them is “Derp derp that use isn’t useful derp” or some other sort of question-begging nonsense.

      The problem with both of these proposed statutes is that they dance around the issues instead of confronting them head on. We can (and should) speculate as to why that’s the case. Statute drafting isn’t rocket science, people.

    2. 4.2

      Ben: If this enter statute, we will shortly see the CAFC say “the term processor in conjunction with the description of a function conveys sufficient structure to one of ordinary skill in the art.”

      …which should surprise nobody because the CAFC has already indicated that “structure” in the context of computing doesn’t even mean “structure” in the physical tangible sense of the term. It’s meaning is so expansive that it includes the meaning that encompasses the “structure” of an argument, or a sentence, or movie plot. A look-up table is sufficient “structure”. “If x then y” is sufficient “structure.”

      But hey if “structure” includes “everything” then the statute will be “tightened up” because Dave Kappos and Paul M0-r-0nville won’t be “confused” anymore. Right, Dennis? That’s how it works in the patentverse, isn’t it?

    3. 4.3

      Mass. Inst. of Tech. v. Abacus Software, 462 F.3d 1344 ( Fed. Cut. 2006) is not good law anymore. The holding in that case that “aesthetic correction circuit” recited sufficiently definite structure to avoid a §112(6) construction depended on the “strong presumption” against m+f construction where “means” is not recited. Id. at 1356. The en banc CAFC overruled the “strong presumption” in 2015 in Williamson v. Citrix Online.

      The PTO needs to revise the MPEP in view of Williamson. In any event, the CAFC cannot rely on MIT’s construction of “circuit” to avoid applying the proposed §112(f) because the en banc court has overruled MIT on this particular point.

      1. 4.3.1

        Where is the dividing line between “presumption” and “strong presumption” such that a case decided well before any such “strong presumption” being thrown out MUST read as not surviving a different, current (mere) presumption?

        Serious question.

        You PRESUME that MIT is no longer good law based on a logical error. That logical error is that ALL prior cases that used the term “strong presumption” are no longer good law. The problem — of course — is that those earlier cases may well have not “depended” on the “strong” part of “strong presumption” but may have depended on the “presumption” part of “strong presumption.”

        Since there was NO mere “presumption” to contrast those earlier cases, you seek a dividing line where no such dividing line exists.

        Maybe MIT would have been decided exactly the same way HAD there only been a ‘mere’ presumption, and the “sufficient” then would still be “sufficient” now.

        Unless the later en banc case explicitly overruled the MIT case — by name — you are only guessing, and last I checked, your guess is not controlling law.

        1. 4.3.1.1

          “Where is the dividing line between “presumption” and “strong presumption” such that a case decided well before any such “strong presumption” being thrown out MUST read as not surviving a different, current (mere) presumption?”

          It appears to be Lighting World.

          Williamson: “Henceforth, we will apply the presumption as we have done prior to Lighting World, without requiring any heightened evidentiary showing and expressly overrule the characterization of that presumption as “strong.””

          And the Mass. Inst. of Tech. does rely on Lighting world.

      2. 4.3.2

        Thanks Greg. One has to know about the en banc CAFC 2015 decision in Williamson v. Citrix Online to know what the present 112(f) covers, which is essential to trying to figure out what this proposed new 112(f) changes might change.

      3. 4.3.3

        I didn’t realize how much the Mass. Inst. of Tech. decision leaned on the pre-Williamson “strong” presumption.

        However, there is at least one other CAFC case using a “circuit” as sufficient structure to avoid 112(f) (Apex Inc. v. Raritan Computer, Inc., 325 F.3d 1364) from the pre-Lighting World presumption which Williamson reinstated.

        At a minimum it seems like an open question post-Williamson.

        1. 4.3.3.1

          [T]here is at least one other CAFC case using a “circuit” as sufficient structure to avoid 112(f) (Apex Inc. v. Raritan Computer, Inc., 325 F.3d 1364) from the pre-Lighting World presumption…

          A few thoughts in response:

          (1) Apex does turn on the structural significance of “circuit.” Indeed, the CAFC was careful to note that “we do not find it necessary to hold that the term ‘circuit’ by itself always connotes sufficient structure…” (325 F.3d at 1373). Rather, Apex turns on a civil procedure question of evidentiary burdens. Basically, because the claim did not use “means,” the proponent of the m+f construction needed to bring forth sufficient evidence that “circuit” is not sufficiently definite structure. Raritan’s evidence on this point (which should not have been hard to produce) was so scant that—as a matter of law—the CAFC could not hold that Raritan had met is evidentiary burden.

          This is not the kind of holding that actually stands in the way of the reviseds statute working like I suggest that it will work. Right now, the statute is written to put the burden on the proponent of m+f construction to provide evidence that the term used does not denote sufficient structure. Under the revisions proposed, the burden would instead be on the opponent of m+f construction to provide evidence that the terms used do connote sufficient structure.

          Apex, in other words, is no more of an off-ramp for the CAFC than is MIT. More to the point, the fact that Congress is changing the statute at all would indicate (if the revisions pass) that they want the CAFC to apply the m+f analysis more often. The CAFC (like all the circuit courts) really does try to give effect to the will of Congress, so such an expression of Congressional intent will (I think) motivate the CAFC to do the analysis, and not to look for ways out of it.

          1. 4.3.3.1.1

            Whoops. “Apex does not turn on the structural significance of ‘circuit.'”

            1. 4.3.3.1.1.1

              “This is not the kind of holding that actually stands in the way of the reviseds statute working like I suggest that it will work.”

              I agree. I suspect that there’s no holding which would prevent the CAFC from interpreting 112(f) correctly. We’re probably close to going in circles at this point, but I’m worried about the precedent which could allow them to conclude that processor/circuit is “sufficient structure”. I am not optimistic about how the CAFC would interpret the proposed 112(f), and if Apex (Or Linear Tech. Corp. v. Impala Linear Corp., though Linear is also “procedural” like Apex) is not an already built off-ramp, it seems like terrain amenable to building such an off-ramp.

              1. 4.3.3.1.1.1.1

                We’re probably close to going in circles at this point…

                Agreed. We both agree that the CAFC could apply the proposed §112(f) in a manner consistent with good public policy, and that the CAFC could apply it in a manner less consistent with good public policy. The principle difference is that I feel more optimistic about how the CAFC would likely handle this new statutory text, and you feel less optimistic. Both of us, however, merely feel one way or the other—neither of us actually knows anything about this particular question.

                At the risk of belaboring the obvious, I suppose that we will just have to wait and see (assuming, of course, that the text in question ever makes it past these committee hearings).

                1. Your version of “good public policy” is NOT a given, and it is inte11ectually DIShonest to presume so (especially as you are a Pharma guy, and the main effects of this are outside of your bailiwick).

    4. 4.4

      Whatever his rstionale is, I am sure it doesn’t lean on optimism.

      Do you have an actual question about my position, Ben? Or do you just like playing the “Malcolm” game?

      1. 4.4.1

        Not playing any game. I was trying to say that “the draft-112(f) has teeth” position, with which I disagree, is actually supported by your opposition to the draft-112(f).

    5. 4.5

      Looks like Greg isn’t the only one who thinks the draft 112(f) has teeth.

      Naturally, I am happy to agree with anyone who agrees with me, but I am not sure really what you mean here. Who else are you seeing out there that thinks that “the draft 112(f) has teeth”? Is this just a case of “well, anon is against it so it must be worthwhile” (a somewhat lazy heuristic, but not far wrong), or is there more to your observation above?

      1. 4.5.1

        Who else are you seeing out there that thinks that “the draft 112(f) has teeth”?

        The maximalist know-nothings at Big Jeans echo chamber are convinced that the statute will force their functionally descriptive claims to be limited to (OMG!) disclosed “structures”. Yes, it’s all so unfair, especially because those people are The Most Important People Ever, and they are solely responsible for helping us “win” against China and saving the lives of a ten billion children.

      2. 4.5.2

        “Who else are you seeing out there that thinks that “the draft 112(f) has teeth”?”

        Lemley. Armitage also spoke highly of it, but I am not familiar with his angle.

        1. 4.5.2.1

          Ah, good to know. Thanks. I set more store by Bob Armitage’s opinion than by Mark Lemley’s, but both are obviously authoritative voices in the patent law world.

          1. 4.5.2.1.1

            … with Lemley being anti-computing patent, and Armitage only too happy to “divide out Pharma and scr ew the rest,” these two are just NOT the “authoritative” figures for this point.

  7. 3

    Since Moonbeam below is apparently having difficulty locating the applicable statue (” … by reference to the actual language of the statute … “):

    35 U.S.C. 101:

    “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”

    Welcome to Patent Law 101 Mr. Moonbeam.

    Now please have a seat and open your book to page one.

    1. 3.1

      That’s the existing statute, numbnuts, which was written by incompetents and exists and works only because the so-called “judicial exceptions” (including the so-called “printed matter doctrine”) are baked into it.

      I’m talking about the proposed new eligibility statute. You know the one I’m talking about — the one that written by a different pack of incompetent self-dealers which (among other things) defines “useful” in a circular manner and pretends that it means something.

      1. 3.1.1

        exists and works only because the so-called “judicial exceptions” (including the so-called “printed matter doctrine”) are baked into it.

        Judicial exceptions are NOT “baked into it.”

        That’s why they come from a different branch of the government.

        You cannot possibly be an attorney.

        1. 3.1.1.1

          Okay then the existing statute has always been unconstitutional, on its face, because it was written by incompetents.

          (Shrugs)

          Your choice, Bildo (except not really LOL)

          1. 3.1.1.1.1

            As you say – not my choice at all.

            It is, though, YOUR choice, as far as THIS is the argument that YOU are making.

            Well, Malcolm, WHAT argument ARE you making?

          2. 3.1.1.1.2

            Well, Malcolm, WHAT argument ARE you making?

            And [shrugs] is not an argument.

            Like Trump, you seem incapable of recognizing when you should be embarrassed by what you post. Here, you should be embarrassed not only with the mess you posted, but by any of the individual strands that you have jumbled together.

            Are you going to even try to salvage this mess of yours, or are you just going to run away?

      2. 3.1.2

        “I’m talking about the proposed new eligibility statute.”

        Congratulations, Moonbeam; you’ve passed your first pop quiz of the semester.

        Here’s your first smiley face sticker for the week. :-)

        Just 9 more and you’ve earned a free piece of candy.

        Just don’t tell your dentist.

  8. 2

    the Senate is planning to hear from 45 witnesses

    Many of these people are lobbyists or professional l-i-a-r-s and shills whose relentlessly self-serving propaganda efforts are well-documented.

    Please wake me up when somebody actually discusses this absurdly j@cked up statute in a remotely intellectually honest fashion (i.e., by reference to the actual language of the statute, and without relying on mysterious ‘back up’ mechanisms that aren’t in the statute to keep out the cr @p that the statute plainly allows back in).

    1. 2.1

      “Many of these people are lobbyists or professional l-i-a-r-s and shills whose relentlessly self-serving propaganda efforts are well-documented.”

      Finally, something you’re qualified to talk about.

  9. 1

    statutory reform that would tighten-up the law of eligibility

    LOL

    Keep carrying that water, Dennis! You’ve become an excellent soldier in the battle to send the system back to the State Street cessp 00l. Must be that “pure” Missouri air. LOL

    Yes, just like life was so much better when brown people and women knew their place. Then some “liberals” had to introduce equal rights and stuff and everything got soooo complicated it was hard to tell if you were discriminating or not. Plus now we have gays and trans and … my goodness it’s just impossible to keep up! Let’s go back to the old days when things were way way simpler, especially for powerful people with money to play the patent game. What could possibly go wrong?

    Any ideas, Dennis? You’re a very serious person, after all. Presumably you have an opinion on this statute but you sure don’t seem interested in sharing it. Gee, I wonder what the conflict is all about …

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