Patently-O Bits and Bytes by Juvan Bonni

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

  1. 8

    The headline on the National Post article seems a bit off. When I clicked through, Singh did not seem to be saying that Canada needs to waive its own IP laws. Rather, he is saying that Canada should back the proposal in front of the WTO to allow other nations to waive their IP laws. Those two ideas are not the same, despite the way that news sources around the world try to conflate the two ideas.

  2. 7

    You put down the laptop, hop on a plane to somewhere warm, dig your toes into the white sands, take a peek, and …

    … see that Malcolm has
    C
    R
    A
    P
    P
    E
    D
    all over the place.

    Try to hold the fort down guys.

  3. 6

    Over on IP Watchdog there is a discussion about moving away from a “One-Size-Fits-All Patent System.” The author there suggests that we need one set of rules for computer inventions, another for pharma, etc. Ordinary Squirrel suggests an analogous idea below.

    Both here and over on the other blog the general reaction is against the idea, and with good reason. The boundary drawing problems that you would introduce from such a change in law would dwarf any benefits that could accrue from the change. In addition, a statute that does not distinguish among tech varieties can never become obsolete as new sorts of tech emerge.

    1. 6.1

      And any such statute — dealing with innovation — would itself be immediately obsolete.

      Only those not appreciating innovation would float such nonsense.

  4. 5

    Smeg Molasses makes a funny:

    I believe that “data processing” (whatever that means) innovations should be treated like any other innovation in the patent system.

    LOL. Very serious stuff here, folks!

  5. 4

    Some brain-challenged child down below thinks this is a good idea and probably also thinks he is the first to make this “compelling” (lol) “argument”:

    How about processing certain data to predict whether someone might be susceptible to a certain type of cancer?

    How about you don’t get to patent facts and if you try to do that I show up at your house and beat you in the face with a baseball bat?

    1. 4.1

      IDK. Of the billions of things one could potentially measure wrt a human body, figuring out exactly which one means “you have cancer type X, subtype Y” seems like an important invention. A lifesaving invention, even.

      1. 4.1.1

        One could have said the same about Ariosa v. Sequenom, but the courts went the other way on that one. I do not like this rule, but most diagnostic processes turn out to fail §101 under current law.

        If you want to patent a diagnostic, you need to invent a new machine or composition of matter. If your invention cannot be claimed in terms of a new machine or composition of matter, you are better off keeping your method a secret and setting up a private clinic in Belize, or Armenia, or some other such jurisdiction where the regulatory authorities will not be too demanding about publicizing your methods and data.

        1. 4.1.1.1

          Only due to the so-called “judicially created exceptions.” The statute itself contains no such requirement.

          1. 4.1.1.1.1

            Sure, but the distinction is immaterial. The case law is just as binding as the statutory text.

            1. 4.1.1.1.1.1

              ? We’re talking about “the way things should be,” and criticizing horrible SCOTUS opinions is a classic trope of that genre.

              And horrible they were.

              1. 4.1.1.1.1.1.1

                Good point. The §101 trilogy of the 2010s were all terrible decisions.

        2. 4.1.1.2

          “If you want to patent a diagnostic, you need to invent a new machine or composition of matter. If your invention cannot be claimed in terms of a new machine or composition of matter, you are better off keeping your method a secret and setting up a private clinic in Belize, or Armenia, or some other such jurisdiction where the regulatory authorities will not be too demanding about publicizing your methods and data.”

          You say that, but back in real life what I see is a bit different. You can patent diagnostic methods, you just can’t reach through to get a claim on the whole field of x diagnostic. You can only get a valid claim to your specific way of doing it. If you try to go broad, which they always will try and want, then you start getting hit with a 101. Generally speaking. Some exceptions exist. Specifically is the exception where all they invented is a very basic process, and a claim to it will grant them effectively a claim on the whole field of x diagnostic. That’s where it gets particularly hairy.

          1. 4.1.1.2.1

            Your “broad” is asinine, given that the breadth of a claim — any claim // all claims — is a total pre-emotion of that breadth, and the proper “control” is 112, not 101.

            Accepting asinine things (as you apparently have resigned yourself to) is….

            … asinine.

    2. 4.2

      Sounds like “The Poopy Diaper” needs a change.

  6. 3

    Blathering Poo: “A mousetrap automatically processes data (i.e., a mouse is at the catch)

    Y’all still feelin the luv for this heap o patent huffing’ trollin’ dung? LOL

    1. 3.1

      Night Wiper: at the heart of this is some kind of supremacy of humans over machines mentality

      Grandpa Dingaling, you were supposed to wait until *after* you croaked to cryo-freeze your brain for the robots to eat while they travelled back and forth to Mars. Now it’s going to be stale. You blew it.

  7. 2

    Braindead shxt again from Ordinary.

    3.

    What does that even mean? What I see is another Alice type of abstraction where some ego maniac (from high sight reasoning) can look at something from 80K feet and say, gee, I could done did that. No need for me to put together an obviousness argument of the elements based on what was known at the time of the invention. I can just make proclamations based on hind sight reasoning.

    Ordinary, you just never have a clue what patents are about. Read everything that J. Rich wrote and you may wise up. But I guess people get many millions for burning down the system now and integrity means nothing.

    1. 2.1

      I’m pretty old and started off in computer science.

      I remember when a menu was mind blowing to people rather than having to navigate through directories. But in hindsight people like Ordinary just wipe away everything. Ordinary never seems to understand anything about patent law. He yaps out shxt everyday on here. Please go read everything J. Rich wrote on patent law.

      You just have no clue.

      1. 2.1.1

        Night Wiper I remember when a menu was mind blowing to people rather than having to navigate through directories.

        Grandpa Dingaling, slowly losing the last tiny bit of his lie-fabricating mind here. So sad! Boo hoo.

    2. 2.2

      Kind of funny too when you think about it.

      So all thinking by humans is presumed to be obvious unless proven otherwise.

      So Ordinary wants to change “entitled to a patent unless” to “entitled to a patent if the applicant can prove the invention is non-obvious.”

    3. 2.3

      Judge Rich isn’t Jesus and his writing isn’t the Gospel.

      If you don’t want you claims to be judged from 80k feet, stop writing them at 80k feet. Stop playing games. Stop obfuscating. You, NW, and your reactionary views on innovation are what is destroying the patent system. Talk to me about integrity when you find some.

      1. 2.3.1

        So I’ll take that non-substantive response as an admission that you have no idea what you are talking about.

        1. 2.3.1.1

          I mean, you regularly would take whatever response to mean whatever you want it to mean, so have at it, sport.

          (Hint: You have to provide substance to get substance.)

          1. 2.3.1.1.1

            Ordinary, you are so disruptive and ridiculous.

            You make a ridiculous proposal and then don’t provide any details and don’t seem to even understand the scope of your proposal. You don’t respond to any substance but maintain the denigration of information processing.

            Let’s be clear. Information processing is the most–by far–important technological development and that is why we are in the Information Age. Your ridiculous proposal is to say that all information processing is presumed to be obvious. Just ridiculous.

            I think Wandering did a good job illustrating that information processing is actually at the heart of all inventions with his mousetrap example.

            I think your proposal gets a response because it is the type of thinking that people like J. Stevens and Reyna employ and was the basis of Benson.

            But anyone that knows anything about science/technology knows that the ignorance of this proposal is stunning.

            I do think at the heart of this is some kind of supremacy of humans over machines mentality or religious mentality where the human processing is supposedly happening in the spirit world and somehow the machines are challenging their view of religion.

            For those of us that understand inventions as structure and understand that information processing is a physical process that takes time, energy, and space to perform, the constant denigration of information processing is like a Luddite attack on technology. J. Ginsburg was one of these telling us that innovation was not supposed to be about organizing human behavior, which is perhaps the most ignorant statement ever made in the history of patent law. Anyone that understands information processing and its relationship with humans knows this as almost all inventions affect the organization of humans and that the biggest changes to our society from information processing will be in organizing human behavior.

            Anyway….wan k on boy…..we all know you have no integrity.

            1. 2.3.1.1.1.1

              It is funny too that in my practice I deal with Ph.D.’s some of whom are professors at the top universities in the country. Their inventions are primarily information processing in AI.

              W a n k boy Ordinary would have their entire invention proclaims obvious unless somehow we could prove that it was non-obvious, which was like the patent system in the USSR and a total failure.

              Anyway, the little w a n k i e s never end with their attack on information process and don’t even acknowledge basic truths like all circuits can be turned into input/information processing/output. Or incredibly many of the advanced mechanical systems I’ve worked on are primarily information processing at their heart.

            2. 2.3.1.1.1.2

              Volume and invective are not really substitutes for substance.

              1. 2.3.1.1.1.2.1

                You mean like the many substantive points I made.

                Including information about circuits, organizing human behavior, the nature of information processing, and so forth?

                Maybe you need to sharpen up your reading skills.

                1. I made… [many substantive points, i]ncluding information about circuits, organizing human behavior, the nature of information processing, and so forth…

                  Fair enough.

                  Maybe you need to sharpen up your reading skills.

                  Always sage advice. I will tack that into my new year’s resolution list. Merry Christmas to you and yours.

          2. 2.3.1.1.2

            I am positive that the irony is lost with:

            Hint: You have to provide substance to get substance.

      2. 2.3.2

        >Judge Rich isn’t Jesus and his writing isn’t the Gospel.

        OTOH, he did write the Act the courts are supposed to be interpreting.

        1. 2.3.2.1

          The anti-patent little w a n k i e s game is to never acknowledge reality and to forget all previous history on each post.

          That is how the anti-patent people have won to destroy the patent system and the odds of them changing at this point are zero.

      3. 2.3.3

        As noted, Rich DID know a thing or two about patent law (helping write the Act of 1952 — something that the little squirrel may have been blind to).

        But the squirrel does have a point in that Rich is only a point source – and not the best one at that.

        Night Writer should have directed him ti me, as I have studied innovation including — but not limited to — the writings of Rich.

    4. 2.4

      >Read everything that J. Rich wrote and you may wise up.

      Maybe you should exclude 1950s diaper-services-are-ineligible Rich from that?

      1. 2.4.1

        Read — and read with intent to understand context and the larger picture — not take his comment on a particular business out of the context of the larger picture – thank you.

  8. 1

    from the Blake Brittain article: “Republican Senator Thom Tillis of North Carolina said patent-eligibility law was in ‘a shambles,’ and Democratic Senator Chris Coons of Delaware said it required legislative action.” Both are correct.

    1. 1.1

      My on the back of a napkin proposal for patent reform:
      1: Amend 101 to abrogate Alice
      2: Amend 112 to state that the claimed subject matter must be readily apparent from the specification
      3: Amend 103 to state that there is a rebuttable presumption that processing data is obvious.

      1. 1.1.1

        No. 1: +1
        No. 2: +1
        No. 3: I do not think that this is a helpful suggestion. All inventions involve the processing of data at some level. You will just engender a lot of litigation expense fighting over whether this invention “processes data” within the meaning of the statutory term.

        1. 1.1.1.1

          Re no. 3: Yeah, as back of napkin goes, this was the one that what hardest putting the spirit of the reform into language.

          Can there be novel, non-obvious ways of processing data? Sure, in non-statutory terms I would define as: processing data in a manner that, when faced with the same problem, POTISA armed with the state of the art, would not have processed the data in the same way. However, processing data in a conventional manner, no matter what the content of the data is, is obvious.

          Can there be novel, non-obvious uses of processed data? Sure, but defining a good rule seems to be tough. The more discretion on this matter there is, the less confident I am on reliable, equitable, and consistent prosecution.

        2. 1.1.1.2

          One example of patentable data processing would be a novel and unobvious data encryption method.

          1. 1.1.1.2.1

            One example of patentable data processing would be a novel and unobvious data encryption method.
            How about processing certain data to predict whether someone might be susceptible to a certain type of cancer? Or, similarly, that someone might have a better reaction to a certain type of therapy?

            How about processing data to determine whether certain protected health information (i.e., data stored in a computer) is being improperly accessed?

          2. 1.1.1.2.2

            One example of patentable data processing would be a novel and unobvious data encryption method.

            Because publishing your awesome non-obvious digital encryption method is the best way promote data security.

            And because the PTO is super skilled at evaluating the obviousness of “new”. encryption logic.

            It’s a total waste of PTO resources and does nothing to promote better encryption.

            Its a grift. Why not just admit that?

          3. 1.1.1.2.3

            >would be a novel and unobvious data encryption method.

            That’s a bit circular. The question is how would you go about proving it was nonobvious given the presumption.

      2. 1.1.2

        >3: Amend 103 to state that there is a rebuttable presumption that processing data is obvious.

        Maybe go a bit more general?

        “There is a rebuttable presumption that it is obvious to apply a know technique that produces only predictable results.”

        1. 1.1.2.1

          This “going broad” defeats the (clearly biased) aim against computing innovations.

        2. 1.1.2.2

          “There is a rebuttable presumption that it is obvious to apply a know technique that produces only predictable results.”
          So, just about everything in the mechanical/electrical/computer arts are prima facie obvious? Is that what you are advocating for?

          The mechanical/electrical/computer arts are known as the predictable arts. Chemistry and biotech are generally known as the predictable arts.

          1. 1.1.2.2.1

            “So, just about everything in the mechanical/electrical/computer arts are prima facie obvious?”

            Do you disagree with the standard, or just how it’d affect your wallet?

            1. 1.1.2.2.1.1

              Quiet Ben.

              You are saying ridiculous things again.

            2. 1.1.2.2.1.2

              Do you disagree with the standard, or just how it’d affect your wallet?
              My wallet is doing just fine thank you. I could retire today and not look back. That being said, I do disagree with the standard because it has no policy justification supporting it.

              One of the easy ways to determine whether someone is just being an internet t r o l l or whether someone wants to engage in a legitimate debate is whether they support their proposals with legitimate reasonings.

              Your proposal, which would result in essentially denying patentability to most electrical/mechanical/computer inventions is unaccompanied by any legitimate reasonings. It is a proposal that would NOT be subject to legitimate debate because once people recognize the result they would recognize the proposal for what it is: an attempt to t r o l l those that favor a strong patent system.

              1. 1.1.2.2.1.2.1

                +1

              2. 1.1.2.2.1.2.2

                “Your proposal, which would result in essentially denying patentability to most electrical/mechanical/computer inventions is unaccompanied by any legitimate reasonings.”

                And you’ve not artticulated any reasoning against it besides that it would reduce the number of patents in certain technologies.

                Anyways, my initial comment was not directed towards you and yours, so demanding that it included reasoning to persuade you and yours is a bit silly.

                1. And you’ve not artticulated any reasoning against it besides that it would reduce the number of patents in certain technologies.
                  Oh, we are playing this game, are we?

                  You are the one arguing for a change to status quo. Not only has it been a status quo in the US for a couple of centuries, it has been status quo for just about every modern country in the world. If you want to change the status quo, then the burden is on you to justify that change.

                  Anyways, my initial comment was not directed towards you and yours, so demanding that it included reasoning to persuade you and yours is a bit silly.
                  I get it. You are t r o l l i n g and t r o l l s don’t need any justification. However, if you want to be taken seriously, perhaps you should explain why you want “a rebuttable presumption that it is obvious to apply a know technique that produces only predictable results.” Maybe you didn’t appreciate the breadth of that presumption and want to withdraw your suggestion. Who knows, maybe you understood the full breadth of what you were suggesting. However, without anything more from you on this topic, we are left speculating.

                  It reminds me of my dealings with an average examiner. I get about 25% of the story in the Office Action and I have to guess the remaining 75%.

                2. “I get it. You are t r o l l i n g and t r o l l s don’t need any justification.”

                  I look forward to seeing every one of your comments to anon or NW including full support to justify the comment to someone like me or Random.

              3. 1.1.2.2.1.2.3

                The Worlds Biggest Crybaby: Your proposal, which would result in essentially denying patentability to most electrical/mechanical/computer inventions

                News flash: the vast majority of so-called “inventions” are already unpatentable because they are obvious. That’s intentional and it’s the only reason the patent system still functions at all.

                A “strong patent system” is just code for “more entitlements for disgusting glibertarian rectal abscesses like the perpetually lying whiners at IP Puppyhumper”.

            3. 1.1.2.2.1.3

              Do you disagree with the standard, or just how it’d affect your wallet?

              I expect that many around these parts will not understand that question.

              link to patentlyo.com

              1. 1.1.2.2.1.3.1

                There are millions of high-technically trained engineers/computer scientists working on developing technology that is the future of our country.

                Your take is that their intellectual activities (let’s call it intellectual property or IP) does not deserve patent protection. Rather, this IP should be free from anyone to exploit — particularly those in the best position to exploit it like the FAANG companies.

                On the other hand, if an engineer came up with an improvement for a lawn mower, you would be all about granting patent protection for that improvement [so long as it didn’t involve a computer processor].

                Am I characterizing your position accurately? If not, what nuances (or gross elements) am I missing?

                1. Your take is that the… IP… [of engineers/computer scientists] does not deserve patent protection.

                  Huh? Where do you get that from anything that I wrote. Look at my 1.1.1. I disagree with Ordinary Squirrel’s suggestion #3.

                  There is no point in quibbling with the “nuance” of your misrepresentations here. I believe that “data processing” (whatever that means) innovations should be treated like any other innovation in the patent system.

            4. 1.1.2.2.1.4

              Affect your wallet…?

              Ben,

              Do you even realize your own bias and your tendency to try to diminish anyone who may be pro-patent?

              Here, it is only you that insert this (base, and baseless) assertion that Wt’s view is somehow necessarily impugned with his wallet.

              You literally jumped on that thought, and probably did not recognize the typo in his post (chem/bio are to non-predictable arts.

              You also display what appears to be an examiner’s logical flaw (given that our pal examiner Random also has extreme difficulty with the notion of predictability), in that you appear to equate some degree of randomness to be a patent requirement. This falls directly to my past critique of Random in that his (and your) view would reduce patent coverage to the Eureka or completely anti-scientific accidental advances. This of course is absolutely counter to the stated purpose of patent law in that patent law serves to promote (as in the advertising term of the word, related to promotion) a knowledge, and it from that knowledge that FURTHER advancement could be made. If you bothered with actually understanding innovation, you would recognize the fallacy at the core of your beliefs.

      3. 1.1.3

        What does “readily apparent” mean, and — more importantly — to whom?

        And then realize that your (apparent) gripe is to be laid at the feet of the Supreme Court; as it is their attempts to broaden the power of 103 that necessarily weaken the strictures of 112.

      4. 1.1.4

        processing data is obvious
        What is processing data?

        A mousetrap automatically processes data (i.e., a mouse is at the catch), and does something (e.g., causing a spring to release). Was that obvious?
        A thermometer automatically processes data (i.e., ambient heat to which it is exposed) and does something (e.g., cause a fluid to expand within a tube). Was the first thermometer obvious?
        I can come up with 100s of mechanical devices that “process data” is some way.

        BTW, why is it obvious? (so as to justify your rebuttable presumption) Can you gather up those skilled in the art and predict all of the processing data inventions that will occur in the next 10, 20, 50 years?

        Also, what is the policy justification for making “processing data inventions” (whatever they are) less likely to be patentable? Are those inventions less deserving of protection? If so, why? Do we want less of those types of inventions? (which is what will happen when you decrease the incentives for them)

        Amend 112 to state that the claimed subject matter must be readily apparent from the specification
        How does “readily apparent” differ from the current written description/enablement standard?

        1. 1.1.4.1

          I never understand people who think they bring value to an argument by being performatively obtuse and pretending they don’t understand what words mean.

          Is an elephant a ham sanswich? The world may never know! hur dur hur dur.

          1. 1.1.4.1.1

            pretending they don’t understand what words mean
            You are engaging with a bunch of patent attorneys — a substantial portion of our job is arguing over the meaning of specific words/phrases.

            If your phraseology is loose, we are going to call you out on it. You might not get this kind of pushback when debating what is the best gear to equip on your Fortnite or PUBG blog, but you are dealing with a different set of people here.

            You made a proposal for patent reform. If you want to be taken seriously, do more than throw out some statement that “there is a rebuttable presumption that processing data is obvious.” Do you want to limit your presumption to computer-implement inventions, then say that. Also, try to provide some justification for your proposal.

          2. 1.1.4.1.2

            Performatively obtuse — as the squirrel is doing just that…

        2. 1.1.4.2

          “A mousetrap automatically processes data (i.e., a mouse is at the catch), and does something (e.g., causing a spring to release).”

          I don’t think anyone in either the computer arts or the mousetrap arts would actually consider the working of a “mousetrap” to be “processing data.”

          Ordinary’s suggestion, which to be clear I do not support, would lean on the same ordinary-skill interpretation magic that the rest of the statute so heavily relies on.

          I suppose the most generous way to read gour post is that it is actually a caricature of common 101 reasoning. But then you could have sign-posted it a little more for us by saying that the mousetrap uses Hooke’s Law to process the data of a live mouse into the data of a dead mouse.

          1. 1.1.4.2.1

            I don’t think anyone in either the computer arts or the mousetrap arts would actually consider the working of a “mousetrap” to be “processing data.”

            I can guarantee that if you created a statutory category of “data processing” inventions—with different standards of patentability between the “data processing” category and the others—you would suddenly find many smart and serious people making the argument that the mousetrap “processes data” in precisely the manner described above.

            1. 1.1.4.2.1.1

              you would suddenly find many smart and serious people making the argument that the mousetrap “processes data” in precisely the manner described above
              See my claim above.

              Instead of a mechanical device that is activated by physical contact with the mouse, my “mouse detector” could be an optical device. The mechanical latch of a conventional mousetrap could be a processor that reads the data from the optical device and generates a data signal that is interpreted by a driver (let’s call it an electronically-controlled air piston instead of a spring) that pushes some trap onto the mouse.

              When you have your feet in both the mechanical world and computer world, as a patent attorney, it becomes very easy to see the interchangeability of the various components between the two and the similarity between the two. It is this understanding that makes me question the wisdom of treating “data processing” patents differently than other patents. I don’t see the justification for treating hardware differently than software when the two, for the most part, are easily interchangeable.

              1. 1.1.4.2.1.1.1

                I don’t see the justification for treating hardware differently than software when the two, for the most part, are easily interchangeable.

                Agreed

          2. 1.1.4.2.2

            I don’t think anyone in either the computer arts or the mousetrap arts would actually consider the working of a “mousetrap” to be “processing data.”
            That might be true, but the vast majority of those people probably don’t have a USPTO registration number. Consider the following claim:

            A mousetrap, comprising:
            a trap configured to be positioned between a first position and a second position;
            a mouse detector configured to detect a presence of a mouse in a particular region and to convey an indication of the presence to a latch;
            a latch operably connected to the mouse detector and configured to release the trap from the first position upon receipt of the indication, and
            a driver configured to move the trap from the first position to the second position upon the latch releasing the trap, wherein
            the trap in the second position is configured to catch the mouse in the particular region.

            That claim language covers a conventional mousetrap as well as a computer-implemented mouse trap in which the mouse detector and latch are computer-driven elements. Of note, the claim involves data processing — whether that data processing is done mechanically or via a computer doesn’t really matter. Someone in the mousetrap art probably wouldn’t look at it this way and someone in the computer art wouldn’t either. However, as a patent attorney, my job is to look at (and claim) an invention in ways that aren’t necessarily apparent to those skilled in the art.

            the mousetrap uses Hooke’s Law
            A mousetrap is directed to Hooke’s Law as much as the invention in American Axle. Although still tenuous, I see Hooke’s law more in a mousetrap than I do in the prop shaft invention of American Axle.

            1. 1.1.4.2.2.1

              and pretty much every electronic circuit can be transformed into an input signal, processing by a CPU, and an output signal.

            2. 1.1.4.2.2.2

              You can be sure Wandering that the troll boy Ordinary won’t respond now that you have him backed into a corner after all his machinations.

              It will jump to the next post and repeat the same nonsense.

              1. 1.1.4.2.2.2.1

                As we discussed, this has been going on for more than a decade.

            3. 1.1.4.2.2.3

              None of this explains why it is appropriate to go all “like, what IS data processing even, man?” when so much of our statute is based on the perspective of ordinary skill in the art. I’m not in favor of the proposal, but it’s lack of precise terminology would fit with the rest of title 35.

              1. 1.1.4.2.2.3.1

                For someone not in favor and not supporting — you sure spend a lot of time DEFENDING.

                (And you want people to believe that you never upvoted Malcolm back in the DISQUS days….)

              2. 1.1.4.2.2.3.2

                None of this explains why it is appropriate to go all “like, what IS data processing even, man?”
                Here is your shot. Give us a definition of “processing data.”

                it’s lack of precise terminology would fit with the rest of title 35
                Broadest reasonable interpretation — ever hear of that?

        3. 1.1.4.3

          How does “readily apparent” differ from the current written description… standard?

          Good question. In the pharma and biotech space, it is clear that the U.S. approach to written description law (as applied by both the courts and the USPTO) is inching closer every day to the EPO’s “directly and unambiguously discernible” standard. As such, there may be no statutory revisions necessary in order to make sure that the claimed invention is “readily apparent” from the application as filed in the chem/bio space (see, e.g., the recent Indivior v Mylan decision).

          It is harder, however, to point to cases analogous to Indivior (or Amgen v Sanofi, or Juno v Kite, etc) in the software space. Much of the Court’s logic for why Mayo & Alice were necessary would have been obviated if there were a stricter §112(a) standard in place across all tech spaces.

          One could, in other words, imagine the reform that OSitA’s #2 envisions emerging even without statutory amendment (if the CAFC were to start applying its own biopharma precedents in other tech spaces). It would be better, however, for Congress to direct such a tightening of standards by amending §112(a) to include language like “readily apparent” or “clearly and unambiguously derivable.”

      5. 1.1.5

        Braindead shxt again from Ordinary.

        3. ???

        What does that even mean? What I see is another Alice type of abstraction where some ego maniac (from high sight reasoning) can look at something from 80K feet and say, gee, I could done did that. No need for me to put together an obviousness argument of the elements based on what was known at the time of the invention. I can just make proclamations based on hind sight reasoning.

        Ordinary, you just never have a clue what patents are about. Read everything that J. Rich wrote and you may wise up. But I guess people get many millions for burning down the system now and integrity means nothing.

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