Patently-O Bits and Bytes by Juvan Bonni

Recent Headlines in the IP World:

Commentary and Journal Articles:

New Job Postings on Patently-O:

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

  1. 6

    Burk…
    Lemley…
    AIA…

    No one here able to connect the dots?

  2. 5

    Also bros remember that republican mid-term voting is today and dem mid-term voting is tomorrow. So be sure to get out and vote!

    1. 5.1

      Still unclear whether Sen. Tillis will unseat Sen. Coons as the chair of the IP subcommittee. Looks like the “red wave” was more of a trickle.

      1. 5.1.1

        Get your popcorn for the Ronda Santis – Rump cage match. The rubes can’t check that “charge my credit card every month!” box on their forms fast enough.

        1. 5.1.1.1

          Much as I would love to see that cage match, I am dubious that it will materialize. Ron DeSantis has enough low cunning to realize that defeating Donald Trump in a contest for the GOP 2024 nomination is a poison chalice.

          Trump would never accept that he lost such a contest. “It was rigged” would be his constant refrain. Trump would launch a 3rd party bid in the general, thus splitting the GOP vote in the general and guaranteeing a democratic victory.

          Ron DeSantis knows this, which is why—if he runs—he will be running to come in 2nd behind Trump, not to win outright. The perfect outcome for DeSantis would be to set himself up like Romney in 2008, where he becomes the prohibitive favorite for the 2028 nomination (especially because there will be an open field in 2028 regardless of whether Trump wins or loses in 2024).

          I will not be surprised if Ron DeSantis actually declines to run in 2024. If he does run, however, he will be like the prizefighter who has been paid to take a dive. He will not do more than feign attacks at Trump.

          1. 5.1.1.1.1

            I was just saying the same thing elsewhere. Get out of my head!

          2. 5.1.1.1.2

            “Trump would launch a 3rd party bid in the general, thus splitting the GOP vote in the general and guaranteeing a democratic victory.”

            What makes you think Rump cares about that? He is in it for the grift. For the credit card numbers and monthly charge authorizations from the MAGAts.

            “The perfect outcome for DeSantis would be to set himself up like Romney in 2008, where he becomes the prohibitive favorite for the 2028 nomination”

            So wait for the leader of the cult to sail off into the sunset and then try to out maneuver the rest of the pack of cult leader wannabes?

            Don’t be surprised if Ronda runs in 2024.

            1. 5.1.1.1.2.1

              What makes you think Rump cares about that? He is in it for the grift. For the credit card numbers and monthly charge authorizations from the MAGAts.

              Right. I think that we are agreeing here. Ron DeSantis—whatever else one might say about him—is in politics because of a mix of personal, career ambition and a sincere desire to move policy in a particular, rightward direction. Donald Trump is in politics because there is money to be made.

              That means that if DeSantis loses to Trump, DeSantis can honorably support Trump, because Trump will still be the vehicle by which rightward policy change is effected. Meanwhile, if Trump loses to DeSantis, Trump cannot simply get on board the DeSantis train, because there is no money in it for Trump. No one is going to give Trump autodebit permission for their credits cards just because Trump is supporting DeSantis. Those contributions only roll in if Trump continues to hold himself out as a candidate.

              Therefore, in the event that DeSantis prizes the GOP nomination away from Trump, Trump will have to announce a 3rd party bid, in order to keep the contributions rolling in. DeSantis knows this, which is why DeSantis will make sure that he does not beat Donald Trump in the primary.

              Don’t be surprised if Ronda runs in 2024.

              I definitely will not be surprised if DeSantis runs. I will only be surprised if he actually beats Trump (or even gets aggressive against Trump).

              1. 5.1.1.1.2.1.1

                I think we are agreeing here

                Passive-Aggressive ‘Fake Agreement’ much…?

            2. 5.1.1.1.2.2

              “He is in it for the grift.”

              You do know trump has been losing money on his political ambitions overall correct?

              1. 5.1.1.1.2.2.1

                No, I do not know that and neither do you. How could any of us know that? He has not released his tax returns, nor any other sort of documentation that could verify such an assertion.

                1. “No, I do not know that and neither do you. How could any of us know that?”

                  Because he reports it derp, and it is public knowledge. Derp.

                  Do you even read the news?

          3. 5.1.1.1.3

            “I will not be surprised if Ron DeSantis actually declines to run in 2024.”

            Yeah he’s already in office and not the leader of the party.

        2. 5.1.1.2

          My favorite Florida politician is the Irishman:

          Mark O’Rubio.

          1. 5.1.1.2.1

            Lol — hey where is that guy who always gets “offended” by political talk?

            Oh wait, he only gets offended by political talk aimed at the Left.

            1. 5.1.1.2.1.1

              Actually, I think this entire set of comments should be removed. All of it.

              But the “boss” of this website doesn’t care, which is why I’ve removed the ability to access this page from my firm.

              I only periodically come here to see if anything has changed. It hasn’t.

              1. 5.1.1.2.1.1.1

                Do you allow your employees to have windows? Just curious.

              2. 5.1.1.2.1.1.2

                “which is why I’ve removed the ability to access this page from my firm.”

                Based, but not based at the same time. Anything they need for IP can be got here whether they waste 5 minutes reading about trump or whatever.

      2. 5.1.2

        And now it has become clear that Sen. Coons will retain the gavel (although I am sure that he and Sen. Tillis will continue to work well together on the IP subcommittee).

  3. 4

    Brehs the whole crypto market is crashing. Easy cheapies imo. Do with it what you will.

    1. 4.1

      So the pyramid has fully inverted. Actually took less time than I thought it would.

      1. 4.1.1

        Whatev you think bro, looks more like a panic sell to me, I will be slurping ez safeish plays.

  4. 3

    The Burk Paper ought to attract attention here, if only because it seems to me to be saying that more patent attorneys should be named as inventors.

    Burk focusses on the act of “conception” as the sine qua non of inventorship. He avers that machines can’t do that yet. But for me what is missing in Burk’s riff is to recognise the difference between the diamond and the balloon that surrounds it (the diamond being the prototype or “best mode” and the balloon being claim 1). If the AI devises a prototype, is that synonymous with the inventive concept defined by claim 1? Surely not. But which is “the invention” and who conceived the inventive concept in these circumstances? If not the AI then surely the patent attorney?

    1. 3.1

      I think you missed the point. Burk clearly acknowledges that invention is entirely a mental process. Reduction to practice, e.g., constructive reduction to practice as in drafting a patent application, including the claims, is not invention. Drafting claims is more akin to the “derivative conception” that Burk talks about in the first of his three examples.

      1. 3.1.1

        That may be, Breeze. I’m open to persuasion. But look at Jane, scenario 5 in Burk, page 5. The AI outputs in readable form a machine design that is novel and not obvious, one which had NOT earlier been “envisioned” by Jane. If the inventor is the “first to conceive”, which of Jane and the AI would you go for, as the “inventor”? And, is Jane a derivative conceiver, not the first to conceive?

        My viewpoint is that an invention is more a concept than a prototype machine, the balloon rather than the diamond. It takes a human (like Jane) to envision from a prototype a patentable inventive concept, the subject matter of a claim. Are you saying something else?

        1. 3.1.1.1

          Wow MaxDrei — it’s not as if I haven’t provided you a hypo covering exactly that point in my “second person opens a black box” derivatives….

        2. 3.1.1.2

          Not gonna engage in your endless loop of questions. I read the article and nothing in it made me think AI is ever going to be considered an inventor, or co-inventor, without a change in the law of inventorship. (That’s not a critique of the article, which I enjoyed as an academic exercise.)

          1. 3.1.1.2.1

            Endless loop? Sorry you see it like that. I was just trtying to get clear what Burk imagines to be characteristic of the act of “conception” (of a patentable invention. He speaks of Jane “envisioning” an invention. Is that the same or different from conceiving one? When a human (John Doe) instead of an AI brings Jane a machine design that is novel and not obvious, who conceived the invention, Jane or John. I’m still keen to know.

            1. 3.1.1.2.1.1

              Why are you still “keen” when I have already provided the answer to you?

              1. 3.1.1.2.1.1.1

                Why am I still “keen”? Because I want to understand what Burk is thinking of, in the context of a patentable invention, when he invokes the term “conceive”. Suppose the AI outputs “a machine design that is novel and not obvious”. In that moment, is the process of “conception” complete? I think Burk is saying it is not. But if so, what more is needed?

                On reflection though, I suspect that I am making a difficulty where none exists. If the AI outputs the machine design to a stranger on the street, who then conceives the patentable invention, that just shows how important it is to keep the output of the AI restricted to those who programmed and trained it.

                1. Obtuse. Is it deliberate?

                  just shows how important it is to keep the output of the AI restricted to…

                  Nonsense.

                  ANY person opening the black box in a second room (restricted or otherwise) cannot be the inventor.

                  I covered this what, a year ago? Two? Maybe three?

          2. 3.1.1.2.2

            But now that I think again, I suppose that Burk’s point is that the conceiver of the new and not obvious machine design outputted by the AI is the person (human or corporate) who gave the AI its instructions, rather than the human individual (Jane) that receives the AI’s output.

            Is that what you mean, anon, with your reference to people opening black boxes?

            1. 3.1.1.2.2.1

              Nope — “giving instructions” is definitely NOT the same (come now man — we covered this in the DABUS case and the acceptance by the English court therein).

  5. 2

    The top article – on 3 IPR decision reconsideration or appeal options – is short and clear.

  6. 1

    Regarding Dan Burk’s article Causation and Conception in American Inventorship:

    The Patent Office is going to use AI to do patent searching.

    It is only a short step to use AI to do the entire patent examination. (6 can retire.)

    Patent attorneys can use AI to write the patent application so it will be allowed by the Patent Office AI.

    It is only a short step to use AI to invent the invention. (All of you patent attorneys can retire.)

    Then the Courts can use AI to decide jurisdiction.

    It is only a short step to use AI to decide the cases. (All of the judges can retire.)

    Problem solved.

    Then we will become a pure service economy which means that everyone makes a living doing each other’s laundry.

    1. 1.1

      Nevertheless, to this patent attorney in Europe, this 17 page Paper by Burk looks to me at first glance like a serious contribution to the debate about AI and inventorship. I’m going to read it carefully.

      1. 1.1.1

        It’s not the answer you’re looking for.

        1. 1.1.1.1

          No? What is then?

    2. 1.2

      I’m old enough to remember when true self-driving cars were going to be dominating the roads by 2020 because AI was just that awesome.

      Also old enough to remember knowing that the claim was utter b.s., and old enough to remember trying to explain to “tech savvy” people here (and elsewhere) that it was utter b.s.

      So let’s be clear: AI isn’t going to write meaningful Office Actions except in the most facile circumstances. Likewise with conducting prior art searches.

      Also if AI is writing Office Actions, why not have AI conduct interviews as well? And record them for the public to listen to.

      Hahaha.

      1. 1.2.1

        Half the current examining corps can’t write “meaningful” office actions even in the most facile circumstances. If AI could do that, it would be an improvement.

      2. 1.2.2

        “AI isn’t going to write meaningful Office Actions except in the most facile circumstances. ”

        Hol up, so you be sayin that it will in fact send some 102’s for me to address people’s shotgun/wish/meme claims that they submit initially?

        That’s actually worth money. Maybe they can even get it to fast enough to anticipate claims pre-filing so the attorneys can do a better job in their initial submission. That should lessen the governmental burden immensely.

        1. 1.2.2.1

          You want 102’s separate from the rest of prosecution…?

          And you seem oblivious as to what that wouldn’t work?

          (Hint: I took you behind the wood shed many times on related matters).

          1. 1.2.2.1.1

            Jes us crhist you’re ta rded.

            1. 1.2.2.1.1.1

              You are doing that ‘projecting’ thing again, 6.

    3. 1.3

      “It is only a short step to use AI to do the entire patent examination.”

      LOL.

      Oh gosh.

      This is so brain dead that you may have instantly qualified for the next administration’s USPTO management team. Congrats!

    4. 1.4

      “everyone makes a living doing each other’s laundry.”

      Sorry, but DAUBUS really enjoys doing my laundry.

      Accordingly, I will not put him out of a job.

Leave a Reply

Your email address will not be published. Required fields are marked *

You can click here to Subscribe without commenting

Add a picture