Citing ‘unusual circumstances’ PTO delays responding to FOIA request on status of Michelle Lee

By Gene Quinn
February 24, 2017

Michelle Lee, Under Secretary of Commerce and Director of the USPTO

Michelle Lee.

On January 26, 2017, attorney Gary Shuster filed a Freedom of Information Act (FOIA) request (FOIA Request No. F-17-00099) with the United States Patent and Trademark Office (USPTO). The request was rather simple. Generally speaking, Shuster was looking for information on the status of Michelle Lee. More specifically, Shuster wanted information on who might be Director or Acting Director of the USPTO.

As you might guess, the USPTO continues to refuse to answer any questions — or FOIA requests — about Michelle Lee or whoever is currently running the Office.

Shuster’s request was rather straight forward and requested:

  1. Any document written by or on behalf of Michelle Lee constituting a resignation from office, a request to withdraw a resignation from office, or a request to retain her position.
  2. The most current document identifying the Director of the USPTO or, if there is no director, the acting director of the USPTO.
  3. Any written instructions received between January 20, 2017 and the date of this request regarding deletion of any data from web sites operated by or on behalf of the USPTO, including USPTO.com.

The Shuster FOIA request also went on to give the USPTO an easy out: “In the alternative, you may satisfy this request by simply answering the following question: Who is the current director or acting director of the USPTO?”

A response was due under the Freedom of Information Act on February 24, 2017. By letter dated February 24, 2017, sent via e-mail to Mr. Shuster, the USPTO invoked a ten working day extension in accordance with 37 C.F.R. 102.6(c)(1) and (2)(iii). The new deadline is now extended to March 10, 2017. According to these regulations cited by the USPTO, an extension is warranted in “unusual circumstances” where there is a “need for consultation… with another Federal agency having a substantial interest in the determination of the request.”

On its face it would seem that invoking of 37 C.F.R. 102.6(c)(1) and (2)(iii) is an egregious abuse of authority and obvious violation of the Freedom of Information Act. Request for information about who is running the agency cannot under any reasonable definition create an “unusual circumstance,” and there seems to be no justifiable or defensible reason why another Federal agency would, could or should have an interest in Mr. Shuster, or the public, being properly informed about who is running the USPTO.

The only way claims of “unusual circumstances” would not be an egregious abuse and obvious violation of the Freedom of Information Act would be if those in the Office of the General Counsel, specifically those charged with responding to FOIA requests, do not know who is Director or if there is an Acting Director. As unbelievable as it seems, there is a very good chance that is exactly the case. There are many within the USPTO that assume Michelle Lee is still the Director, and there are many within the USPTO that assume that Michelle Lee is no longer the Director. The one common denominator seems to be that no one really knows.

The USPTO refusing to timely respond to a FOIA request and invoking a ten day extension due to some unidentified “unusual circumstance” is extraordinarily peculiar, although no I suppose no more peculiar than the entirety of the Office’s efforts to guard the name of the person running the agency as if it is a state secret designated for certain eyes only. So, for now, the story continues unresolved.

 

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 187 Comments comments.

  1. IPdude February 24, 2017 2:29 pm

    I suspect they will make an announcement after Wilbur Ross is confirmed. That’s probably the hold up. Given she is still there my assumption at this point, sadly, is that she will stay on. Unbelievable.

  2. L-Dawg February 24, 2017 2:33 pm

    This appears to be another case of the law being what the General Counsel (or the Associate General Counsel for FOIA Requests) happens to say it is on any given day.

  3. Night Writer February 24, 2017 4:01 pm

    @1: Sadly, seems so.

  4. Curious February 24, 2017 4:50 pm

    I suspect they will make an announcement after Wilbur Ross is confirmed.
    I did a quick and dirty search online and I didn’t find much about Wilbur Ross and his attitude towards patent.

    If Lee remains with the USPTO, it will be a sign that this administration doesn’t seriously care about patents or intellectual property rights. Given Silicon Valley’s animosity towards Trump, it boggles my mind that this administration would give them the very thing that they want — the freedom to infringe anybody’s patents with little consequence.

  5. Anon February 24, 2017 5:07 pm

    I called my US Senators and provided the FOIA number (FOIA Request No. F-17-00099) and the excuse given by the USPTO. Though given the gross dysfunction in DC, I expect little action.

  6. Appearance of ... February 24, 2017 5:15 pm

    How can Michelle Lee have any credibility after this? It seems likely that her resignation was accepted earlier. Otherwise why the secrecy?

    It looks to me as if someone is trying to keep her on without going through another Senate confirmation (which would probably generate some fireworks).

    Looks like quite the legal mess here.

  7. IPdude February 24, 2017 5:20 pm

    Curious @3
    In order for this, or any, administration to take anything seriously requires they have special interests, that matter to them, in their ear. I took Genni Roometty’s involvement as an advisor to the Trump team to be a positive for patent owners, given IBM’s pro-patent stance. But the reality is that Google (and other tech giants) not only have more money to buy influence, they are also gatekeepers. Search is integral to our everyday lives. Google controls perception through search. Someone as vain as Trump certainly understands how important that is. I hope I am proven wrong and Trump extends his protectionist position to IP rights. Not holding my breath.

  8. Night Writer February 24, 2017 5:58 pm

    This whole thing is creepy as h*ll. I think Lee is very creepy too. She creeps me out big time.

  9. Gene Quinn February 24, 2017 6:02 pm

    IPdude @1-

    I think you are probably right in your analysis, but that is not an “unusual circumstance.” FOIA is really just a bunch of garbage. You get what they want to give you and get egregiously insulting excuses when they don’t want to give you something. Just like the USPTO did to Erich Spangenberg when they gave him hundreds of blank pages as part of a FOIA production. Really? It is easy to see why organizations like Judicial Watch have to sue the government to get at the truth.

    -Gene

  10. IPdude February 24, 2017 6:05 pm

    Gene @9
    Agreed. Befuddled. Disappointed.

  11. Anon February 24, 2017 7:34 pm

    The answer of “we do not know” is still an answer.

    Not giving any answer seems to be beyond the pale.

  12. Anon February 24, 2017 7:38 pm

    Speaking about asking the government – and getting the run around as an answer, and albeit Obama is not longer in the White House, I am curious as to Ron Katznelson’s efforts on having the “Tr011” “whitepaper” brought in line with the requirements of such a document from the White House.

  13. Bemused February 24, 2017 8:24 pm

    Gene, don’t we have any contacts within the USPTO who can walk down the hall and look into her office? I’ll ask around and see if I can find anything out.

    Seems strange to me (particularly, given the breadth of the readership of this blog) that we haven’t heard from any examiners who work in the same building with her. Have there even been continued sightings of her at the USPTO?

    Has Elvis left the building?

  14. Peter R Kramer February 25, 2017 7:22 am

    Very strange. BTW, strange is the new normal, LOL.

  15. Mark Nowotarski February 25, 2017 11:48 am

    This reminds me of Schrödinger’s cat https://en.wikipedia.org/wiki/Schr%C3%B6dinger%27s_cat.

    Lee is both director and not director until the USPTO officially says what she is. At that time, we will discover that she has always been that way since the new administration began.

  16. Anon February 25, 2017 12:53 pm

    The problem, Mark, is that there needs to be a person in place (for legal reasons) PRIOR TO the convenient time that the the USPTO gets around to “officially saying what she is.”

  17. Curious February 25, 2017 1:02 pm

    The problem, Mark, is that there needs to be a person in place (for legal reasons) PRIOR TO the convenient time that the the USPTO gets around to “officially saying what she is.”
    That assumes that the USPTO cares about the legality of their actions — a pretty big assumption in my book.

  18. Stephen Curry February 25, 2017 1:22 pm

    Gene pointed out the statutory sections indicating that only an authorized person can sign the letters of patents, etc.

    Lee has been signing the letters of patents from January 20, 2017 and after and signing the register.
    If Lee is not authorized under statute, then are her acts of signing all amount to clear proofs of felony, since DoC website lists the PTO director position as vacant and since Obama reportedly accepted her resignation letter?

    You all should call Jake Tapper of CNN if Wilbur Ross tries to keep Lee on as USPTO Director without a new confirmation hearing. Tapper will have a field day.

    https://twitter.com/jaketapper?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor

  19. Peter Corcoran February 25, 2017 1:44 pm

    Let’s show our support for Judge Rader!

  20. Mark Nowotarski February 25, 2017 3:23 pm

    @14 and @15: I agree. What I’m saying however is that who ever is trying to keep this a secret probably has two sets of documents in place. Set 1 – USPTO announces Lee is now the director and always has been the director and no letter of resignation was every submitted or accepted. Set 2 – USPTO announces that Lee is not the director and hasn’t been the director at least since when she submitted her resignation and it was accepted.

    @16 I hear what you are saying about Tapper, but we need a reason why the average person would care about the director of the USPTO. Is this part of a larger issue? Are there any other appointed govt leadership positions where there is silence and ambiguity as to who is in charge? Is there a pattern that leads upwards in the chain of management?

  21. Caesar Salazar February 25, 2017 3:30 pm

    Mark,

    I don’t think the average person would care about who directs the PTO, at least not in this current political climate. Unless of course people’s favorite blogs, websites, etc. get hit with lawsuits for patent infringement.

  22. Roy Fiore February 25, 2017 4:28 pm

    She is nothing but a cancer for the patent system and the constitution.

  23. angry dude February 25, 2017 4:37 pm

    The doc said ‘to the morgue’, to the morgue it is!

  24. jbavis February 25, 2017 4:42 pm

    greedy Google needs corrupt Lee in place for at least one more thing: to ensure any IPR’s to be filed by Uber do not invalidate the patents Google has just asserted against Uber: https://drive.google.com/file/d/0B7dzPLynxaXuQjY3dkllZ2ZKb0k/view

  25. jbavis February 25, 2017 4:50 pm

    Mark Nowotarski @ 18:

    A good place to start is to look at the long list of Google people parachuted into U.S. govt: http://precursorblog.com/?q=content/how-google-anti-employment-anti-property-pro-regulation

    Current Alphabet-Google Chairman Eric Schmidt enjoys the privilege of being the only corporate leader of a publicly-traded company on the President’s nineteen member Council of Advisors on Science and Technology.

    Coincidentally, former senior Google executive from 2003-2014, Megan Smith, is the U.S. Chief Technology Officer, responsible for all tech policymaking in the Executive Branch.

    Coincidentally, Former Google Deputy General Counsel for intellectual property from 2003-2009, Alexander Macgillvray, is the Deputy U.S. Chief Technology Officer for intellectual property & privacy policy.

    Coincidentally, former Google Senior Engineer from 2006-2013, Mikey Dickerson, is Deputy U.S. Chief Information Officer and Administrator of the U.S. Digital Service, a new organization and position.

    Renata Hesse, Google’s former outside antitrust defense counsel, is coincidentally now Acting U.S. Assistant Attorney General for Antitrust, who coincidentally is the lead liaison with EU antitrust authorities concerning the EU’s three pending monopolization cases against Google.

    Former Google Deputy General Counsel and head of patents and patent strategy from 2003-2012, Michelle Lee, is coincidentally now Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent & Trademark Office, who coincidentally joined the USPTO just when Google faced several new serious patent lawsuits.

    And coincidentally yet again, the U.S. Register of Copyright, Maria Pallante, just got fired coincidentally after she disagreed with Renata Hesse and Google’s position on a music copyright consent decree and with the FCC-Google position that FCC authority should supersede copyright in the FCC’s Set-Top Box rulemaking.

    Coincidentally, Google employees visited the Obama White House 427 times per White House Logs including 128 visits coincidentally by Google’s lobbyist Joanna Shelton alone, many more times than any other special interest.

    And a final coincidence, Google also has generated the most “revolving door” moves of any company with this Administration with 251 Google employees either entering the government or government employees joining Google, according to the Google Transparency Project.

  26. Stephen Curry February 25, 2017 4:56 pm

    @20

    “@16 I hear what you are saying about Tapper, but we need a reason why the average person would care about the director of the USPTO. Is this part of a larger issue?”

    Yes, Mark.
    Since the UnderSecretary/PTODirector position is vacant according to the DoC website and public paperwork from Obama administration that Lee was not held over, Lee will have to go through a confirmation hearing again to become USPTO Director. If Lee becomes USPTO Director again without a confirmation hearing, Jake Tapper and others will want to know that political appointments are being made without a confirmation hearing where a confirmation hearing is required, and this is not acceptable under our constitutional government. So of course, Tapper will want to tell Americans about this. Of course, Tapper will also find out that Michelle Lee was untruthful to the Senate Judiciary Committee during her two confirmation hearings prior to being approved as PTO Director.

    We don’t want the Trumpster evading required confirmation hearings for other government positions by using these kinds of loopholes. It sets a bad precedent. This would get Jeff Toobin going. So it is not just about the USPTO but about checks and balances and separation of powers issues and APA issues, etc.

  27. Eric Berend February 25, 2017 7:19 pm

    @ 25., ‘jbavis’:

    Their ears are deaf, even though the evidence of complicit corruption is vast. It’s almost as if, were there a thread of a trail that smelled like a scandal, then this story would have been taken up; but since appears now as a massive zuggarat, their small minds quail at the sheer magnitude of its existence.

    WHAT?!!
    Just WHAT kind of evidence is needed to at the very least, suspect that there may be illicit influence-peddling going on? What – only bundles of cash buried in a freezer, get noticed by these besotted fools?

    I am not certain whether George Orwell would have been pleased or horrified to find such a ‘real-world’ version of his brilliant satirical novels, manifested so blatantly. It is a sad world, truly, where inventors are treated like Boxer the Horse.

  28. Night Writer February 25, 2017 8:24 pm

    @25: and the great irony…..Google is constantly trashed as a company that has done very little innovation since their initial founding. So, if you cannot be a tech company, become a lobbying company so you can steal everyone else’s tech.

    Do no Evil (so that we can do all the evil.)

  29. Night Writer February 25, 2017 8:24 pm

    Notice too how Google employees don’t defend the company?

  30. Night Writer February 25, 2017 8:28 pm

    @24 jbavis: I have a question for you. Do you agree that where Google is headed in trade secrets? That will enable them to close off their employees and tech from others and continue to take others’ tech.

  31. Caesar Salazar February 25, 2017 8:45 pm

    Guys, all we know is that there is no answer at the moment. There’s no need for crazy conspiracy theories. It’s almost as bad as the “troll” archetype.

  32. Night Writer February 25, 2017 11:18 pm

    @31: What crazy conspiracy theories? A lot of good facts about Google’s behavior has been written about and a lot of facts about the current situation.

  33. jbavis February 25, 2017 11:44 pm

    Night Writer @ 30:

    “Do you agree that where Google is headed in trade secrets? That will enable them to close off their employees and tech from others and continue to take others’ tech.”

    They’ve settled on trade secrets a long long time ago. They initially used patents in the late 90’s to have some protection against Microsoft, but pretty much immediately started hiding their methods and data away. In fact, their data is their most valuable possession – what users search for provides feedback into improved search. All of their API’s and products and services are purposely designed to suck in users which then generate data for them. Their products aren’t the products – you the user are the product.

  34. Stephen Curry February 26, 2017 1:02 am

    @33 J Beavis

    Google wants patents. They spend $12.5 billion to get patents.

    Mr. Bilski handled google’s patent strategy for Michelle Lee and did not produce a high volume of patents (see USPTO assignment database).

    Interestingly, Michelle Lee failed to list the name of Mr. Bilski as required in this document to the Senate Judiciary Committee. So Michelle Lee is untruthful to the Senate Judiciary Committee. We should tell Jake Tapper of CNN. Mr. Bilski is a San Francisco patent attorney who was google’s former main outside patent counsel and is an articles contributor to IP Watchdog.
    https://www.judiciary.senate.gov/imo/media/doc/Lee%20Questionnaire%20Final.pdf

    Interestingly, in 16.b., Lee admits that Google did not spend the $4.5 billion to buy the Nortel patent portfolio under her watch.
    https://www.judiciary.senate.gov/imo/media/doc/Lee%20Questionnaire%20Final.pdf

    So Google later had to spend $12.5 billion to buy the Motorola wireless since google had a “skimpy” patent portfolio. We wonder how Larry Page feels about having to spend an extra $8billion to get patents.
    https://www.cnet.com/news/yes-google-needed-motorola-for-the-patents/

    Interestingly, as google was spending an extra $8 billion to get patents, Michelle Lee leaves google and was unemployed from 5/12 to 11/12.
    People should make some interesting confessions.
    https://www.judiciary.senate.gov/imo/media/doc/Lee%20Questionnaire%20Final.pdf

  35. Night Writer February 26, 2017 6:50 am

    @33 jbavis: And, so you are saying what I said is a “crazy conspiracy theory”?

    No it isn’t. And, analyzing Google’s IP policies is not simple and it is fluid and will adapt to the situation. The new trade secret act likely will change their behavior. And, what you wrote isn’t an accurate picture of Google’s IP policies.

    And, what you wrote is non-responsive to what I wrote. I get the feeling you are a troll. Just trying to disrupt a conversation with intentional misrepresentations.

    So, tell me how what I said is a ‘crazy conspiracy theory’.

  36. Night Writer February 26, 2017 6:51 am

    A sure sign of a troll is the way they misrepresent what you said and then try to get you to explain. It is very disruptive and tiring. So, jbavis, you do the work. Explain your comments. Your response certainly did not.

  37. Stephen Curry February 26, 2017 7:27 am

    @36 Night

    did you notice that trolls surface whenever we all point out that Michelle Lee screwed up the google patent portfolio ($8 billion extra cost for google). Google put Allen Lo in place to replace Lee.
    https://www.cnet.com/news/yes-google-needed-motorola-for-the-patents/

    http://www.corpcounsel.com/id=1202564384684/Top-Patent-Lawyers-Leave-Google-Intel

    and after that Mike Honda then got her the USPTO silicon valley Directors job and the rest is a disaster.
    It is unbelievable that Obama and most patent attorneys got foolishly convinced that Lee is a Pro-patent person. Mr. Bilski (google’s former main outside patent prosecution counsel) is an articles contributor for IP Watchdog; why doesn’t everyone here demand Mr. Bilski to confess about Michelle Lee and her past law firm life/”actual ability” in mountain view.

  38. Anon February 26, 2017 9:33 am

    Ease back, Night Writer, a troll does not exist behind every corner and behind every alternative view.

    jbavis is not the one to whom your ire should be directed.

    That would be Caesar @ 31.

    It is Caesar that is simply incorrect as to the amount of evidence indicating the level of Google’s actions, just as the word “conspiracy” is wrongly used to imply the fantasy that you see in its use (in fact, it is jbavis that lists many items that are plain evidence of what Caesar seeks to shrug off).

    Caesar, if you take a step back and look at your own view, and look at the interactions (and such being in fact serpentine and ‘off the record’ as they have been – in the way of meetings with Lee that have never produced minutes of those meetings), then you SHOULD realize that your comment was simply mistaken.

    Clearly – to anyone – Google has been excessively active in advocating its desires.

    jbavis,

    By the way, I concur with your view of the product of Google, and their desire (and tactic) of trade secret as the means of protection. I am reminded (a bit tangentially) of a plot line from the movie Office Space and the parallel to the minute “roundings” gathered up that no one else would even recognize. People do not value their own minute roundings and data in their use of electronically connected devices. But that does not mean that those roundings are not there, or that those roundings do not have value. Google can sweep in and – not only free of charge, but charge “You” – to pick those up and put them directly into their own bank account.

    It is a pretty sweet deal that they have shown that they will not stop at mere legality to protect, actual innovation be damned.

  39. step back February 26, 2017 10:46 am

    @36 NW

    Trolls can at times accidentally serve useful purposes.
    Consider Ned the Ed’s taunts about Le Roy v. Tatham (SCT 1852).
    Pushed me into reading about the Luddites and Romantics of the 1800’s.
    Clearly Thomas is an orginalist from that anti-science era (error?) of the 1800’s.
    Breyer and Kennedy are the “new”/neo-Romatics.

    Not science. Poetic English Lit. majors.

    https://patentu.blogspot.com/2017/02/rise-of-new-romantics.html

  40. Stephen Curry February 26, 2017 11:33 am

    Paul has an awesome article, particularly on how the USPTO strayed from its mission and the need to Highly fund the PTAB. I commented before in this site on how PTAB will have funding problems.

    http://www.ipwatchdog.com/2017/02/26/uspto-failed-fee-increase-political-shenanigans/id=78760/

    Lee really wants to torch the patent system and she thinks that will make people forget that she caused $8Billion dollars off Larry’s pocket due to that need to acquire motorola wireless patents. People, you need to escort her off the USPTO Madison building property.
    https://www.cnet.com/news/yes-google-needed-motorola-for-the-patents/

  41. Caesar Salazar February 26, 2017 12:23 pm

    I’m not ignoring facts. I just think it’s weird that everyone focuses on Michelle Lee and Google when SCOTUS itself has made decisions that you don’t agree with. As has the Federal Circuit. However usually all the ire is directed towards the PTAB and Google.

  42. Stephen Curry February 26, 2017 12:45 pm

    @41

    It is not weird.

    Lee was the original champion of the PTAB idea via the Patent Coalition Fairness that she led.
    So Lee deserves to be poured on.
    Lee knows that if she can de-value patents and make it too expensive for the small startups to get patents or enforce patents (which all have happpened thanks to AIA), then the chaos we now have will take place.
    https://publicpolicy.googleblog.com/2007/09/reforming-patents-promoting-innovation.html

    Also, past USPTO Directors “ignored” bad Supreme Court law and Fed Circuit law. Lee has to promulgate new guidelines for every case law that comes from the Fed Circuit and so this just shows she is an amateur and applicants are saying they are confused and who knows what the Examiner ranks are saying. Who are the patent attorneys who trained Lee in patents anyway? These patent attorneys must be steaming mad or are mad at David Hayes for letting Michelle Lee set foot on her law firm’s patent floor. They will get their “Revenge” on behalf of the American people.

  43. Caesar Salazar February 26, 2017 2:39 pm

    Her prior career aside, knocking her for the regulations she promulgated in responses to SCOTUS and Fed. Circuit seems like an unfair attack. As PTO director she has to respect the judicial’s branch’s interpretations of the law when new cases are handed down. That seems like it’s part of the job. I’m sure the confusion originally came from SCOTUS and Fed Circuit, which put her in a position to execute the law as part of the executive branch. Seems like an unfair criticism if that’s all you got. Also, they will get their “revenge?” Seems like that comment should be moderated for it’s toxicity…

  44. WashingtonInsider February 26, 2017 2:41 pm

    Gene, in addition to identifying the ridiculous situation at the PTO, it would be helpful if you could discuss potential replacements. Phil Johnson has been mentioned, but Judge Rader would be a much better selection.

  45. Night Writer February 26, 2017 3:18 pm

    @41-43

    Google is blamed because they are using their money to influence patent law. They spend more money in Washington than anyone other than Goldman Sachs. Moreover, there are questions whether their influence crosses lines.

  46. David Boundy February 26, 2017 3:20 pm

    Well, on the narrow legal issue, the PTO’s delay is reasonable. Who’s Director? To answer that requires consultation with another agency, the Department of Commerce. So §102.6(c)(2)(iii) is a legitimate basis for extending the time to respond.

    Once in a while the PTO does have a justifiable reason for its action (or inaction). And sometimes these exceptions prove the rule.

  47. Stephen Curry February 26, 2017 3:25 pm

    @43

    It is not just the SCOTUS and Fed Cir decision.
    It is mostly the AIA that Michelle Lee started to champion since 2004 via the Patent Fairness Coalition. The AIA has been more devastating to startup patent owners and startup patent applicants and to the American economy than SCOTUS. So Lee deserves to be poured on. By the way, when I used to actively practice patents before becoming founder of startups, I had two clients who were in the Coalition, so I know the google shenanigans to promote the AIA.

    Caesar says: “Also, they will get their “revenge?” Seems like that comment should be moderated for it’s toxicity…”
    You are so sensitive, Salazar. You are probably Michelle Lee. The American people just got a Revenge, since they voted Trumpster as President due to Obama’s apathy. So revenge is part of capitalism.

  48. Caesar Salazar February 26, 2017 3:31 pm

    It takes more than one to change a system. I don’t think it was just Lee if that’s what you’re trying to say. Congress passed the AIA, so in your analysis they are by necessity culpable as well.

    As to the “revenge,” who knows if it’ll apply to the patent system. Seems to me like it’s more directed towards trade deals, immigration, terrorism, and the economy in general.

  49. Stephen Curry February 26, 2017 3:38 pm

    @46
    @44

    sure Salazar, it took more than one.
    It took google money and Lee and Kappos and Mike Honda and Obama and those who drank Lee’s cool-aid to scrap the 1952 patent act.

  50. Night Writer February 26, 2017 6:50 pm

    @ No doubt it is the dismal tide of large monopolistic corporations reforming patent law with lobbying money and lots of propaganda from K Street. I know a person who writes some of the propaganda for the popular media. He has no idea what he is talking about, but is paid well to write pieces to get them in the popular media.

    And, sure, most of the Fed. Cir. judges now were selected by Google. The SCOTUS has always taken the side of the big international corporation at least recently.

    I think this is most like anti-trust the way it was whittled away by the SCOTUS to accommodate the new internationalism. The big scare is if you don’t do what we say then the other corporations from other countries will beat us.

    But Caesar has a good point in that after a while of the change it becomes the system. Now Google has won the Fed. Cir., won over the SCOTUS, won over the directorship of the PTO, and won over the opinion of most fed. dist. judges.

    And the money will keep pouring in every year, because this amount of money is nothing to a company like Google.

  51. Night Writer February 26, 2017 6:52 pm

    So, be depressed. Be very depressed. Not sure how this will play out. I am sure that the innovation engine is losing out. But, will it matter? One thing I learned working as a product manager at a large international corporation (10’s of millions of the product were sold) is that it doesn’t matter if you innovate as long as you are ahead of the competition–in general (grounding breaking things can be different).

  52. angry dude February 26, 2017 11:27 pm

    Night Writer @49

    Just how much more depressed can I be ?

    Maybe if they abolish US patent system tomorrow we can all enjoy cheaper commodity products for a while – that is until we are bored with them
    There won’t be any new groundbreaking products but who cares ?
    People can live even without toilet paper, believe it or not
    The doc said ‘to the morgue’, to the morgue it is!

  53. angry dude February 26, 2017 11:39 pm

    Stephen Curry @34

    Dude,

    Google does not want patents. Period.
    They had their little patent palooza a while ago and acquired a few patents for peanuts ( like 10K per patent … the max they paid I believe was around 200K – a laughable amount)

    I offered them my patent too – and take my word, my patent is infinitely better than any patent in the motorola junk portfolio – in the very same f****** technical area
    Nope , they wouldn’t buy it..
    Why ?
    You should know why
    screw google

  54. Caesar Salazar February 27, 2017 12:32 am

    I’m curious as to the vitriol against Google in this thread. Everyone says things like “screw google” but I would wager a guess that everyone that says that still uses Google search on a daily basis. Wouldn’t that be hypocritical?

  55. Caesar Salazar February 27, 2017 12:33 am

    I’d also wager a guess that many of the commentors have a Gmail account or use an Android phone for home or work. Again, isn’t that hypocritical?

  56. Stephen Curry February 27, 2017 2:34 am

    @53
    Caesar, if you are a patent attorney, you should know this.
    During a recession or a bad economy, there is always a spike in patent litigation and a spike in sole inventor innovation and small startup innovation. That is why the AIA was flawed in the first place. Lee & Kappos & Lemley & Chien claimed we needed patent reform during 2009 because we had too much patent litigation filed. But those four stooges did not realize that we had a bad economy during 2009, so that is why there was a spike in patent litigation. So in 2009 and 2010 and prior, the patent system was working just fine and this “patent crisis” fiction created by Michelle Lee in 2009/2007 was just a pretext for the AIA and Lee’s claimed “patent crisis” was just a fiction. So Salazar, just wait for the next bad economy (when google implodes) and look for a spike in innovation and spike in patent litigation.

  57. Stephen Curry February 27, 2017 2:48 am

    @49
    Night,
    Darrell Issa is championing for a Special Prosecutor against the Trumpster.

    So Issa is very pissed at the Donald.
    Maybe Trumpster stood up to Issa and maybe Trumpster told Issa that the Donald does not want michelle lee to be running the USPTO because Trumpster has a campaign promise to not let China steal more intellectual property.

  58. Paul Morinville February 27, 2017 4:42 am

    Caesar, I actually have an Android and I don’t think it is hypocritical. I bought it for a prop when meeting with Congressional offices, but I use it too. I pull the phone out and tell the story… Google bought a camera operating system called Android and converted it to a phone operating system. Then they used their massive market power and endlessly deep pockets to take 84% of the market. But before they entered the smart phone with no patents, Microsoft, Palm, Nokia, Motorola and about a dozen other companies were already there with products already invented and patented.

    Since there are about 150,000 patents that make up the smart phone, and Google had none but now owned 84% of the market, Google got sued. So what is a poor do no evil company going to do? Well, they bought Motorola Mobility for $12B, kept the 17,000 patents and sold it for $2B. Then they counter sued and everybody settled. Except perhaps for the thousands of small inventors who own part of what Google stole. Which poses a problem for those who do no evil.

    To solve the problem, Google infiltrated the government dumping lavish amounts of money on Congress and even more in a false PR campaign to buy the AIA and the USPTO.

    But back to my Andriod. I use it regularly not just as a phone. It is a story that is fun to tell and easy to understand.

  59. Night Writer February 27, 2017 6:30 am

    @52 Caesar : you are either a very naive or ignorant person or you a troll. I am guessing the latter.

    No answer needs to be given to you. We all used AT&T back in the day, and it was not hypocritical. But, you are a clearly a troll.

  60. Anon February 27, 2017 7:07 am

    The attempt to portray the vitriol as hypocritical is a bit lame. It shows nothing but the reach that you will resort to defend Google, Caesar.

    To me, unfocused vitriol is not productive. I indicated as much on a recent thread when “Mike” was panned for provided reasoned advice (for effectiveness).

    I do “get” the vitriol though, and do not seek to dismiss it out of hand as you do with this attempt at portraying those real feelings as “hypocritical.”

  61. Caesar Salazar February 27, 2017 7:47 am

    Paul,

    You say:

    “To solve the problem, Google infiltrated the government dumping lavish amounts of money on Congress and even more in a false PR campaign to buy the AIA and the USPTO.”

    That sounds almost conspiracy theory like, no offense.

  62. Caesar Salazar February 27, 2017 7:49 am

    Anon,

    It’s not “lame” as you say; I’m simply trying to point out apparent contradictions between what people say and what people do.

  63. Anon February 27, 2017 7:50 am

    Caesar,

    That you continue to say “that sounds” while ignoring the facts behind the statements says more (or less) about your credibility than you might imagine.

    No offense.

  64. Night Writer February 27, 2017 8:40 am

    @60 Caesar: He is clearly a troll. This game of bringing up nonsense to try to disrupt the conversation and then acting naive as if he is slowly learning is a typical troll tactic.

    And, “conspiracy theory”??? So, here the troll Caesar throws out more accusations without thought and with ignoring all the evidence provided to disrupt. Caesar please read the entire thread and look at all the evidence of Google’s activities including more money than any corporation other than Goldman Sachs.

    Gene: please look at what this guy is doing. He is clearly a troll. He reminds me very much of MM at patentlyo when he is trying to disrupt a conversation.

  65. Night Writer February 27, 2017 8:43 am

    So, either Caesar is a troll or a very naive simple minded person that is not very nice. (Notice the troll behavior too of just ignoring facts and then making some accusation without taking the facts that have been presented into account or even acknowledging them.) These trolls are trained. Where do you work Caesar? My guess is that you are a paid blogger.

  66. Night Writer February 27, 2017 8:44 am

    And also notice that the troll Caesar will try to just ignore me and not make an accounting of his behavior. That is another troll tactic. Or he will make some offhand remark about me. I’ve been blogging since the 1980’s and knew the person that wrote the first blogging software. I’ve seen 1,000’s of trolls. This guy/gal is a troll.

  67. Caesar Salazar February 27, 2017 8:49 am

    Night Writer,

    I don’t know why you throw around these accusations. I simply looked at the comments and noticed so much vitriol against google from people who I ventured to say likely use google on a daily basis. I just noticed the contradiction between what people say and what they do.

    I’m not the only one to notice these things. Gene Quinn himself noticed it about Mark Cuban:

    “While hedging risk is a well known and widely accepted investment tactic, there is something rather bizarre about someone who is such a vocal critic doing exactly what they criticize others for doing. How can it be viewed as anything other than hypocritical, or at the very least opportunistic, for the person who funded the Electronic Frontier Foundation Mark Cuban Chair to Eliminate Stupid Patents to being seeking a lottery like windfall on the back of software patents?” http://www.ipwatchdog.com/2015/10/29/mark-cuban-a-software-patent-troll-who-hates-software-patents/id=62488/

  68. Caesar Salazar February 27, 2017 8:51 am

    Night Writer,

    I don’t particularly understand your vitriol against me. I’m just pointing out things, not too dissimilar to Gene himself when he points out these things.

    Gene, I implore you to censure Night Writer for his indiscretions.

  69. Night Writer February 27, 2017 9:11 am

    @66 Caesar: I said in my comments why I thought you were trolling us. You didn’t respond to the substance of what I said. Your response to me looks exactly like what a troll would write.

  70. Tyler Durden February 27, 2017 9:41 am

    President Trump is on record that the Washington Redskins trademark should be retained:

    http://www.huffingtonpost.com/entry/trump-football-redskins_us_56128bc9e4b0768127028ab5

    Yet there are also reports that he plans to keep Michelle Lee as USPTO head:

    https://arstechnica.com/tech-policy/2017/01/head-of-us-patent-office-michelle-lee-will-remain-under-president-trump/

    How do we square this circle? And how would Michelle Lee explain her sudden about face?

    We don’t. I predict that Lee will NOT be retained.

    And if it was Issa who was pushing for Lee, take note that Issa has lost clout with the White House:

    http://www.nbcnews.com/politics/politics-news/gop-rep-darrell-issa-calls-special-prosecutor-russia-probe-n725666

  71. Caesar Salazar February 27, 2017 9:57 am

    Night Writer,

    I did post with regards to the substance. I said I’m trying to point out contradictions. That’s the substance.

  72. David Boundy February 27, 2017 10:01 am

    I’ll do a dumb thing here and step in as moderator….

    Night Writer @ 63-65 and 68 — Calm down.

    Of multiple issues, Caeser @ 43 hit one nail on the head. I am no fan of Michelle Lee either, because she’s done a lot to weaken the procedural regularity of PTO proceedings. But on Mayo/Alice guidelines? The PTO has to track the Supreme Court, not lead it. The PTO should follow the Bulletin on Agency Good Guidance Practices in framing its guidance — which they adamantly refuse to do — but Mayo/Alice is not among the issues fairly blamed on Ms. Lee.

    Paul Morinville @ 57 does a good job of laying out the problem. There are about a half dozen technology companies who have sufficient market power through network exernalities (remember the Microsoft antitrust case from the late 1990s?) that they don’t need the patent system, and end up often on the unpleasant side of the “v.” So they do want to reduce the power strength of all patents. And we all need to recognize both the problem they have and the problem they create.

    There are “trolls” out there. They’re unpleasant, they’re bad.

    Now it’s our job as patent attorneys to help frame, and then advocate for laws that reduce the ability of trolls to impose illegitimate costs on legitimate businesses, while preserving the ability of legitimate inventors to legitimate compensation. I agree, the AIA was a wildly-mistargeted effort. The advocates of the AIA were driven by hubris (in some cases), self-interest (in others), but not facts.

    But that means that we have to be rational, civil, thoughtful, and fact-based in debating the next step. The kind of name calling we see here, Night Writer @ 63-65, is just not helpful in getting to that end point. So please stop.

  73. step back February 27, 2017 11:20 am

    @72 David,

    The USPTO is a creation, a child born of Concessionally promulgated statutes.
    It owes its allegiance to those statutes (e,g, 35 USC 101) and to the US Constitution.

    The Constitution vests the legislative power in the Congress, not in the SCOTeti.
    From whence does the SCOTUS get the right, authority, power to make new laws and procedures out of anti-science, anti-computer, anti-biotech Neo-Romantic threads that are devoid of any rationality or evidence?

    https://patentu.blogspot.com/2017/02/rise-of-new-romantics.html

    Where and when did SCOTUS authorize the USPTO to spin the magic shard on a string for detecting arbitrarily and capriciously (in violation of APA and of 35 USC 112) as to which of the heads-we-win, tails-you-lose abstractions the claim is “directed to”?

    From whence does the USPTO garner its authority to further submerge the claims under holy witch testing waters for determining if the thing weighs enough to have the elusive “something more”? (Because as we know, witches are made of same natural elements as wood and thus they float.)

    Inquisition challenging minds have a right to ask.

  74. David Boundy February 27, 2017 12:05 pm

    C’mon, Step @ 73, I know that you know the answers to all these questions.

    Just to take one example, courts are not subject to the APA. You know that. And you also know that when the Supreme Court interprets § 101 in an irrational way, the PTO has no authority *not* to follow.

    You also know that the Constitution vests “The judicial Power of the United States” in “one supreme Court”. We can (and certainly do) disagree with the exercise that the Court has made of that power, but as a matter of Constitutional law, the point where you choose to stand, it’s unquestionable that the power exists. Marbury v. Madison, 5 U.S. 137 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”)

    The Supreme Court’s § 101 case law is totally irrational. But that doesn’t make it unconstitutional. What *would* be unconstitutional would be for the Patent Office to usurp the right to overrule the Supreme Court in an applicant’s favor (just as it’s unconstitutional for the Office of Petitions to tell me in a phone interview “I’m not getting into whether we are or are not bound by the Supreme Court” on an issue of administrative law).

    This post is beneath you.

  75. step back February 27, 2017 12:28 pm

    courts are not subject to the APA

    But the PTO is.
    That is exactly the point.
    The PTO cannot engage in arbitrary and capricious decision making
    5 USC 706

    I know that you know that. 🙂

    (Office of Petitions? That H-hole? Good luck there.)

  76. Caesar Salazar February 27, 2017 2:11 pm

    Thanks for the kind words and support David Boundy.

  77. Anon February 27, 2017 2:14 pm

    If anyone looks closer at the “coincidental” string of new posters on this thread, it is quite easy to see that the object of the attacks are not the individual posters with strong feelings, but rather, the object is to force Gene Quinn’s hand into rash behavior.

    From the plainly (and rather vanilla) provokings, to the “liberal left female” point of view, to the now constant “Gene take care of these other people” whines of Caesar, it appears that Gene Quinn is being attempted to be gas lighted, and the views and discussions here painted with a “bubble effect” with the “other side” shut down and not allowed to speak.

    Gene,

    As I suggested previously, you already have a mechanism that controls posts that come from fraudulent email addresses. Would blocking any such post that has not passed that test be helpful?

    For those others with strong feelings (and I do include myself in that group), keep in mind that you are being bated. Call out the other person (as I have done with Caesar) when that other person has merely engaged in game-playing, and do pay attention to the possibility that some arguments have been slipped into the games as well.

  78. Anon February 27, 2017 2:15 pm

    Correction: exchange “blog” for “thread,” as the string of newcomers have evolved over several threads.

  79. Caesar Salazar February 27, 2017 2:25 pm

    Anon,

    Like David Boundy said to Night Writer, such rhetoric only functions to derail the conversation. Let us focus on the law, not accusations that Google is secretly behind the curtain everywhere or that commentors are “trolls.” Let us discuss the state of the law without speculation but with reasoned analysis. I’m with David Boundy on this one: let us transcend from our baser instincts to kill each other.

  80. step back February 27, 2017 3:09 pm

    David Boundy is a well known and respected patent attorney.

    We of course each have our own individual views of what is going on in this crazy mixed up world of ours.

    My take is that the SCOTeti are politically motivated and pick their “friends” of the court accordingly. They have little in the way of a clue about science and the inventing process. Which is why they believe in the fantasy of the 2nd year Silicon Valley engineering student sipping on his Java juice and waiting to rush home to implement any “idea” on his “generic” home computer over the weekend. Which is why they believe in plucking leaves off the DNA tree. Which is why they believe in “fundamental building blocks” of human ingenuity and laws “of nature”. Very “Romantic” but out of touch with reality beliefs.

  81. step back February 27, 2017 3:14 pm

    Under well established law, the PTO is charged with making decisions based on evidence, facts and rational underpinnings, not on romantic fantasies.

    It is the obligation of the Director (the duly appointed one) to see that this is so.

  82. David Boundy February 27, 2017 3:28 pm

    Right. And for an agency in our Constitutional scheme of things, “rational underpinnings” includes following the Supreme Court, even when the Supreme Court is lost in the Dark Wood of Error and then drives over a cliff. That’s what “Supreme” means.

    Only a crank would suggest otherwise. Please don’t.

  83. Caesar Salazar February 27, 2017 3:35 pm

    David’s right. Otherwise we would be cherrypicking the law to suit our own agenda.

  84. step back February 27, 2017 3:39 pm

    @82 Well I respectfully disagree.

    I don’t care who it is. I’m not driving my car off the cliff for them.
    I would hope that there are rational human beings inside that PTO that hold onto similar views. Or are they all supposed to be mindless obedient robots to the bitter end?

  85. step back February 27, 2017 3:42 pm

    @82

    “Supreme” applies only to the one specific case they decide. For example KSR is limited to its specific facts and circumstances. Ditto for Alice.

  86. Anon February 27, 2017 3:47 pm

    Caesar,

    Only to a limited point does that admonition go. To the extent that anyone wished to ignore actual facts, I say thee nay.

    Such is the misdirection of false politeness, that all unsavory things are equally improper.

    It is just not so.

  87. Anon February 27, 2017 3:50 pm

    Blinded adherence to what the Supreme Court says is NOT within the oath that attorneys take, Mr. Boundy.

    To suggest otherwise is a huge and deeply disturbing error coming from the likes of you.

    Don’t YOU say so.

  88. Gene Quinn February 27, 2017 3:52 pm

    Caesar @79

    You say: “not accusations that Google is secretly behind the curtain everywhere…”

    But Google is behind the curtain everywhere. It is hardly a secret. They spend more money lobbying patent issues than any other company, they engaged the Obama Administration weekly (if not more) on tech issues (including patent and innovation policy) and they go around DC at every event promoting their agenda (which is an anti-patent agenda). Good is very open about what they are doing.

  89. Gene Quinn February 27, 2017 3:56 pm

    David @82-

    The problem with following the Supreme Court even when they are driving us off a cliff is it is an impossibility. They pretend… gosh I hope it is pretending… that their 101 jurisprudence from Benson to Flook to Chakrabarty to Diehr to Bilski to Mayo to Myriad to Alice is all perfectly consistent, which it is not. Myriad clearly overrules Chakrabarty and Mayo clearly overrules Diehr to the extent Diehr says newness is an inappropriate consideration under 101. Diehr overruled Benson/Flook and Alice overrules Diehr, yet they say that all of these cases remain good law. It is like a Monty Python skit.

    -Gene

  90. David Boundy February 27, 2017 4:10 pm

    Gene @89 —

    Please read carefully. I’ve said several times in this thread that the Supreme Court’s §101 cases are “irrational” and “lost in the Dark Wood of Error.” All I said is that once the Supreme Court decides, in our system, the PTO (who has no substantive rule making authority) is bound to follow. I agree with you, that what they’ve done is “Monty Python” if one were being generous. I agree that “following” it rationally is very difficult (except it’s easier than you paint it, since later Supreme Court decisions always take precedence over earlier ones — the Supreme Court, like the CCPA, always sits en banc, so Diehr is no longer good law).

    All I said is that in our Constitutional system, the PTO has to do the best it can to follow. The PTO can’t simply mutiny, as Step Back suggests.

    Step @ 84, 85, Anon @ 87, you’re writing like cranks. I won’t be following that discussion with you further.

  91. Anon February 27, 2017 4:13 pm

    David,

    Don’t be so dismissive. That places you no better than the cranks that you would label others with.

  92. Caesar Salazar February 27, 2017 4:21 pm

    Gene @88

    Let us assume that what you say is true. At that point it comes down to political questions and not legal ones. Attorneys, including patent attorneys, are bound to follow the law as stated, especially when counseling clients. For example, it would be bad practice to advise a client on the “Google boogeyman.” Reasoned, dispassionate debate is important amongst civil and well-meaning jurists.

    Gene @89

    Myriad gels with Chakrabarty. Myriad just reinforced that the natural phenomena exception applies to naturally occurring DNA but not cDNA (which was created, not too dissimilar to the bacteria in Chakrabarty). Mayo doesn’t overrule Diehr, it just reiterates that there must be an inventive step (or something more) if a claim is directed towards a 101 exception. The same is true with regard to Alice. It can all be harmonized. It seems to be just the natural refinement, not evolution (as in changes), to the law.

  93. David Boundy February 27, 2017 5:00 pm

    Anon @ 91 —

    I’ve never said anything about attorneys being bound to follow — we get to advocate. If we want to win, whe have to work within the contours of the law as the Supreme Court sets it, but we are not obligated to follow.

    The only entity I’ve commented on is the PTO. They’re bound to follow the Supreme Court.

    When others don’t read, discussions are no fun. So I stop here.

  94. David Boundy February 27, 2017 5:06 pm

    Mr. Salazar —

    Read the cases again. I don’t think your understanding is correct. The contrast is biggest between Diehr:

    The “novelty” of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject matter of a claim falls within the § 101 categories of possibly patentable subject matter.

    vs. Alice, which says “machine” is “beside the point,” and what matters is element-by-element novelty, conventional, obvious.

  95. Gene Quinn February 27, 2017 5:11 pm

    David @90-

    I agree with much of what you write, except for the part that suggests that there is nothing that the PTO could do to mutiny. Of course they could mutiny and all within the law and without ever ignoring the Supreme Court.

    First, the Supreme Court has never said that software is patent ineligible. In fact, they have ruled that software is patent eligible in Diehr and continue to admit at ever opportunity that the invention in State Street was properly patent eligible. So the PTO could start with the premise that software is patent eligible and create a test that beings with that assumption since nothing in Alice suggests that is incorrect.

    Second, the Supreme Court has specifically said that business methods are patent eligible, yet the business method Art Units have allowance rates that range as low as 1%. So clearly the PTO could follow the Supreme Court and do something about that.

    Third, Mayo dealt with an extraordinarily poor claim set and innovation. Both the PTO and CAFC could, and should, interpret it to mean absolutely nothing apart from the specific claims. Much like the CAFC did with Perfect Web where it was deemed to be the exception to obviousness rather than a new rule, Mayo is an exception to 101 not a new rule for 101. Which actually must be the case since SCOTUS continues to tell us Diehr is good law and Diehr remaining good law means whether something is conventional is simply inappropriate under 101. So there has to be something one-off significant about Mayo. So it provides no useful guide to anything other than itself.

    Fourth, the Supreme Court in Myriad admitted that the claims did not cover something that is naturally occurring, but were for an unexplained reason patent ineligible under the law of nature doctrine. Again, that creates an unrepeatable test that has to be some one-off situation that sets up an exception given that it is an impossibility to both be and not be something simultaneously (apologies to Schrödinger and his cat).

    So there are all kinds of ways that district courts, appellate courts, agencies, and administrative tribunals have always limited the destruction of stupid Supreme Court decisions. The Supreme Court paints with broad brushes, never gives a specific test (i.e., in Bilski they said business methods can be patented but didn’t say what they would look like) so they leave it to others to fill in the gaps (which are really cavernous gaps).

    If the USPTO were pro-patent they would do these things, and focus on pro-patent CAFC cases and fire recalcitrant examiners. They don’t, so it is hard to defend the USPTO.

    -Gene

  96. David Boundy February 27, 2017 5:24 pm

    A Supreme Court decision is not all that important for its outcome in an individual case. It’s important for its reasoning.

    Agreed, the PTO has authority to structure its examination anywhere on the spectrum defined by the Supreme Court. But given the Supremes’ reasoning, that spectrum is not all that attractive.

    I think the PTO’s examiner guidelines almost go out of way to avoid patent-unfavorable positions (which sounds good, until you realize that that makes them so mealy-mouthed they don’t say much of anything at all).

    I agree, that one of the big problems at the PTO is that there is no accountability for anyone — examiners, SPEs, TC Directors, or Deputy Commissioners for Examination Policy — that think they’ve got the authority to override the law, whether that law originates with the PTO or courts.

  97. Caesar Salazar February 27, 2017 5:29 pm

    David Boundy,

    To the point that Alice said that a machine is besides the point, the rationale was that:

    There is no dispute that a computer is a tangible system (in §101 terms, a “machine”), or that many computer-implemented claims are formally addressed to patent-eligible subject matter. But if that were the end of the §101 inquiry, an applicant could claim any principle of the physical or social sciences by reciting a computer system configured to implement the relevant concept. Such a result would make the determination of patent eligibility “depend simply on the draftsman’s art,” Flook, supra, at 593, thereby eviscerating the rule that “ ‘[l]aws of nature, natural phenomena, and abstract ideas are not patentable,’

    There was a distinction between novelty and 101 inquiries. If I remember correctly from the Mayo oral argument (which isn’t binding of course but illustrative), I believe counsel for Mayo stated that using 102, 103, and 112 without using 101 could result in e=mc2 as being patent eligible (because it would be new, non-obvious, etc.). But this would run afoul of the judicial exception. Thus there must be a threshold 101 analysis before moving on to other provisions. So they aren’t trying to “sneak in” a novelty analysis into a 101 analysis, but rather prevent a claim from encroaching on forbidden territory. It may seem like a smuggled novelty and obviousness analysis to the untrained eye, but it is an entirely different analysis.

  98. jbavis February 27, 2017 5:31 pm

    In response to common knowledge that Google infiltrated the U.S. govt, Caesar @ 61 said:

    “That sounds almost conspiracy theory like, no offense.”

    This is no conspiracy theory, there is a lot of evidence that supports Google has infiltrated the U.S. govt – for a start look at: http://precursorblog.com/?q=content/how-google-anti-employment-anti-property-pro-regulation


    I. Google’s Unprecedented Lobbying Influence

    Current Alphabet-Google Chairman Eric Schmidt enjoys the privilege of being the only corporate leader of a publicly-traded company on the President’s nineteen member Council of Advisors on Science and Technology.

    Coincidentally, former senior Google executive from 2003-2014, Megan Smith, is the U.S. Chief Technology Officer, responsible for all tech policymaking in the Executive Branch.

    Coincidentally, Former Google Deputy General Counsel for intellectual property from 2003-2009, Alexander Macgillvray, is the Deputy U.S. Chief Technology Officer for intellectual property & privacy policy.

    Coincidentally, former Google Senior Engineer from 2006-2013, Mikey Dickerson, is Deputy U.S. Chief Information Officer and Administrator of the U.S. Digital Service, a new organization and position.

    Renata Hesse, Google’s former outside antitrust defense counsel, is coincidentally now Acting U.S. Assistant Attorney General for Antitrust, who coincidentally is the lead liaison with EU antitrust authorities concerning the EU’s three pending monopolization cases against Google.

    Former Google Deputy General Counsel and head of patents and patent strategy from 2003-2012, Michelle Lee, is coincidentally now Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent & Trademark Office, who coincidentally joined the USPTO just when Google faced several new serious patent lawsuits.

    And coincidentally yet again, the U.S. Register of Copyright, Maria Pallante, just got fired coincidentally after she disagreed with Renata Hesse and Google’s position on a music copyright consent decree and with the FCC-Google position that FCC authority should supersede copyright in the FCC’s Set-Top Box rulemaking.

    Coincidentally, Google employees visited the Obama White House 427 times per White House Logs including 128 visits coincidentally by Google’s lobbyist Joanna Shelton alone, many more times than any other special interest.

    And a final coincidence, Google also has generated the most “revolving door” moves of any company with this Administration with 251 Google employees either entering the government or government employees joining Google, according to the Google Transparency Project.

    So Caesar, do you still suggest this is merely a conspiracy theory?

  99. jbavis February 27, 2017 5:36 pm

    Paul Morinville @ 58:

    Good point – I would add that you omitted 2 large smartphone manufacturers that directly influenced Android: RIM Blackberry and Apple. The others are important too but these 2 large influenced who Google stole IP from.

  100. jbavis February 27, 2017 5:59 pm

    Caesar @ 79:

    ” Let us discuss the state of the law without speculation but with reasoned analysis. ”

    Said the person who accuses others of conspiracy theories.

  101. Anon February 27, 2017 6:00 pm

    David – it is you that did not read my comment and sought to dismiss it out of hand as “crank.”

    Now that you have read it again, you somehow say that I am not reading your comments and “this is not fun.” It is most unclear how you jump to that conclusion.

    Follow your own advice, please.

  102. step back February 27, 2017 6:05 pm

    David Boundy @96

    I forget whether it was in Marbury v. Madison or elsewhere, but I recall at least one Justice recognizing that the Court has no army, no tax collectors and no divine authorization. The only thing it has is the validity of its reasoning. The people will either respect the Court’s reasoning or not. And if not, the Court is in trouble.

    Well sir, in the cases of Alice/Mayo (as well as Dred Scott, Citizens United), the Court has gotten itself into deep deep trouble.

    The PTO does not at all have to ‘follow’. It may merely spin the crystal shard on a string and decide in each and every case that the claim is indeed “directed to” eligible subject matter because the claim recites a new and useful process, machine, manufacture or composition of matter.

    The PTO has chosen otherwise. It has decided to play the spin the shard game with outcomes arbitrarily and capriciously coming out the other way, that the direction of the claim is always North by North Abstract West. Those outcomes come under control of the current Director and them who brought her to this dance. The connection is how you say? “Obvious.”

  103. Anon February 27, 2017 6:05 pm

    David,

    Above you say “A Supreme Court decision is not all that important for its outcome in an individual case. It’s important for its reasoning.” which therein, lies the concern that envelopes those who you would term as “crank.”

    The reasoning along the stretch of 101 cases is simply not sustainable.

    There are some of us who would prefer that the Emperor actually put on some clothes, rather than admire the nothingness that the clothiers have woven.

    Top call that “crank” and dismiss is rather unseemly, given all of the facts, don’t you think?

  104. jbavis February 27, 2017 6:09 pm

    Caesar @ 92:

    ” For example, it would be bad practice to advise a client on the “Google boogeyman.” Reasoned, dispassionate debate is important amongst civil and well-meaning jurists.”

    If a client was a small inventor with a patent thinking about approaching Google to show them their invention, would it be bad practice to advise against that given all that we know about Google’s stance on software patents?

  105. Gene Quinn February 27, 2017 6:43 pm

    Caesar @92-

    First, you say it would be bad to tell clients about Google’s practices. That is naive to the extreme. While I agree reasoned debate is important, putting your head in the sand and ignoring the reality that Google is advocating against the patent system accomplishes nothing other than getting sand in one’s ears.

    Second, you say that Myriad and Chakrabarty are consistent, which is wrong. See:

    http://www.ipwatchdog.com/2013/07/14/why-scotus-myriad-ruling-overrules-chakrabarty/id=43249/

    Chakrabarty stands for the proposition that human activity and involvement is sufficient to render a claimed invention patent eligible. Myriad clearly and directly overrules that fundamental holding in Chakrabarty. You can say otherwise, but you are wrong. SCOTUS admitted the claims in Myriad had human activity, they did not exist in nature and were still patent ineligible. The ruling is inconsistent with Chakrabarty, period.

    Mayo clearly overrules Diehr. See:

    http://www.ipwatchdog.com/2017/01/23/mayo-v-prometheus-lawless-decision-wreaking-havoc-patents/id=77438/

    As I explained, and you didn’t understand apparently, Diehr specifically says considering whether something is new (i.e., conventional) is inappropriate under 101. Mayo says they exact opposite. So Mayo overrules Died. You can say otherwise, but you are wrong.

    I notice that you didn’t even bother to try and say how Alice is consistent with other cases, but rather just concluded it was. I understand why you did that since it clearly is not consistent in any way with prior precedent, but saying and wishing it to be consistent doesn’t make it so.

  106. Caesar Salazar February 27, 2017 7:05 pm

    Gene,

    I addressed Alice in comment @97 in response to an inquiry by David Boundy.

  107. David Boundy February 27, 2017 8:20 pm

    Salazar, Step Back, and Anon —

    Any fool can miscaharacterize what someone said, and go off on a riff about that. But it doesnt move the ball anywhere.

    Enough. Over and out.

  108. Anon February 27, 2017 8:34 pm

    Caesar,

    A few simple questions, if you do not mind:

    Do you understand the difference between statutory law and common law?

    Do you believe that patent law is statutory law?

    Do you recognize the limitations on each of the three branches of the government, as imposed by the Constitution, and of the selected doctrines that police the checks and balances critical to our form of government?

    I ask these based on what I can perceive in your response @97 to an inquiry by David Boundy.

  109. Caesar Salazar February 27, 2017 10:28 pm

    Anon,

    I do understand them. Why do you ask?

  110. Caesar Salazar February 27, 2017 11:11 pm

    Anon,

    I think I see where you may have an issue. You seem to think that I’m putting SCOTUS jurisprudence on a pedestal while ignoring statutory law and the separation of powers.

    Here’s how one would respond to such a charge. SCOTUS has traditionally been “in charge” of deciding how 101 is interpreted. Some may see this as encroaching on the statutory language in 101 (that contains the patent eligible categories) and that the judicially created exceptions are problematic and should be abolished.

    But why would Congress leave out the judicially created exceptions instead of codifying them? It seems as though there is a simple reason why. When Congress enacted 101, it likely decided that it would not disturb the judicially created exceptions. For example, the abstract idea concept goes back to the Morse case, well before the 1952 patent act. Yet when Congress enacted the 1952 patent act, they chose not to disturb the judicially created exceptions by expressly disavowing them. But if they wanted to keep them, why did they leave them out? This could likely be a statutory styling issue. Meaning that by not speaking about the exceptions, they were implicitly approving of them. Now what is the evidence of this. One can look to the fact that they did codify 103 to specifically to overrule the the Hotchkiss v. Greenwood notion that a “spark of discovery” was required for a patent. Thus why 103 in the 1952 act read “Patentability shall not be negated by the manner in which the invention was made.” So if they were well aware that they wanted to change the 103 requirement to be less of a hurdle than Hotchkiss and spoke directly to the subject, then the fact that they didn’t speak to the 101 exceptions is implicit approval of them.

    Thus it seems that Congress wanted SCOTUS to continue on with defining the bounds of 101 jurisprudence. This would satisfy any separation of powers arguments and justify why SCOTUS is in charge of 101 law.

    Now what about the AIA? The same argument seems to hold true here as well. Many changes were made, but 101, 102, 103, 112 were pretty much left similar to how they were in the 1952 act (the only significant changes to 102 involved first inventor to file changes). If Congress wanted to get rid of judicially created exceptions and 101 jurisprudence, it would have explicitly done so (as it had done with 103 in 1952 and did so with the first to invent system change in the AIA). The fact that it didn’t explicitly do so indicates that it wanted to let SCOTUS keep holding the baton on 101 jurisprudence.

    So it seems that what started out as “SCOTUS common law” (the judicial exceptions) was not expressly disavowed in the 1952 act, so Congress more or less implicitly accepted and delegated the responsibility of 101 (and anything not expressly changed in 102, 103, 112, etc.) to SCOTUS through statutory law.

    So there is no issue with common law vs statutory law. Or with the separation of powers and limitation of each of the branches.

  111. Caesar Salazar February 27, 2017 11:16 pm

    So in a weird way, Congress actually gave SCOTUS flexibility in defining the judicially created exceptions by not expressly disavowing SCOTUS in its interpretation. If it wanted to, it could have done so. So the absence of any disavowal is an implicit approval.

  112. step back February 28, 2017 1:02 am

    @109 CS

    O’Reilly v. Morse was originally seen as an over-breadth case, not as a 101 exceptions case

    https://supreme.justia.com/cases/federal/us/56/62/case.html

    There are many embarrassing historical cases e.g. Graver Tank (manganese v. magnesium) where Congress gives SCOTUS a pass due to desired comity between co-equal governmental branches.

    We in the patent community cannot dictate to Congress where it will focus its attentions.

    In all probability it will take a Sputnik level event to re-awaken the sleeping giant (Congress). Until then, progress in the useful arts will probably slow to a crawl in these United States while the rest of the world passes us by.

    Don’t forget that the inventing community is an insular minority. The average voting Joe couldn’t care less where his next smartphone comes from. The average Congressperson therefore also couldn’t care less. It is only the above average visionaries in Congress who might see the big picture. And those are a near extinct species in these post-modern times.

  113. step back February 28, 2017 1:08 am

    Or as one well watched current politician might say, Let’s make America pre-Sputnik again.

    https://en.wikipedia.org/wiki/Sputnik_1

  114. Caesar Salazar February 28, 2017 5:53 am

    step back,

    O’Reilly v. Morse was originally seen as an over-breadth case, not as a 101 exceptions case

    I see what you’re saying and get your point, but SCOTUS did reference it in Benson when supporting the abstract idea exception.

  115. step back February 28, 2017 8:56 am

    CS @113

    Benson v. Gotchalk was just a first baby step by the Supremes into what David Boundy too politely calls the Deep Woods of [Psychotic] Error.

    Le Roy v. Tatham took place in 1852.
    O’Reilly v. Morse took place in 1854.

    Somewhere between that stone age era and now (circa 2014) the “Supreme” minds of our land should have gotten some hint that science and alchemy no longer see the universe as composed of earth, wind, fire and water or of ‘principles’, motives and fundamentals.

    Apparently the message never got through on their sequential relays telegraph system. 😉

  116. Night Writer February 28, 2017 3:21 pm

    Scope of enablement of the claims fixes all the problems and is the proper way to think of claim scope.

  117. Anon March 1, 2017 7:35 am

    Caesar, your view of the law is not anchored in how the law works.

    You do not get to provide such powers to the judicial branch so “implicitly.”

    Apparently, you should know better, have now been told so repeatedly, and yet persist to play such games. That benefit of the doubt is evaporating. the semantics you play are taking the law out of its context and into pure sophism.

    Make sure that you stay in context.

  118. Caesar Salazar March 1, 2017 7:52 am

    Anon,

    I am not providing such implicit powers to the judicial branch. It appears that Congress did so.

  119. Anon March 1, 2017 7:54 am

    Caesar, your thrust at post 110 is not correct.

    Congress DID act to restrain the Court and its waywardness with the pre-1952 101…

    (you do know that section 101 was created in 1952, right?)

    …ability to set the meaning of the word “invention” by the power of common law evolution…

    (an ability provided by Congress to the Court in prior patent acts)

    …by taking that pre-1952 single paragraph and creating separate sections of law – and critically – NOT allowing further common law treatment of “invention” and choosing instead to go an entirely different path with the statutory section of 103.

    Congress did not codify the judicial exceptions because it did not want them codified, and instead 101 was to be a wide open welcoming gate with two – and only two – rather low hurdles:

    1) be at least in one of four very, very, broad categories.
    2) be of the utility that is covered by the Useful Arts (in other words, not be of the Fine Arts).

    That is it.

    It is only the Court, addicted to its pre-1952 power that has stealthily at first (with its mantra of “implicit” – a sophist game that you seem to enjoy); and then more and more acted more brazenly, culminating in Justice Stevens losing his majority writing honors in the Bilski case in which what he would have done would have outright rewritten and negated the words of Congress.

    Sophists and rhetoric abound about the incorrect power usage by an activist Court. It is an “easy path” to certain desired Ends.

    Unfortunately for such people, the Constitution is absolutely clear about the separation of powers concerning the statutory law that is patent law, with patent law being an area of law called out explicitly in the Constitution as NOT belonging to the judicial branch.

    This is also why I advocate for the long term solution of jurisdiction stripping.

    Do you understand what jurisdiction stripping is?
    Do you understand the Constitutional power of that mode that is allocated to Congress?
    Do you understand that Congress can employ jurisdiction stripping to ANY area of law unto the Supreme Court that is outside of the Supreme Court’s set of original jurisdiction?
    Do you understand that patent law appeals are outside of the the Supreme Court’s set of original jurisdiction?
    Do you understand that Congress need only set up a new (and I posit new, because the existing CAFC has been tainted and brow-beatened by the Supreme Court) Article III Court to adhere to the Marbury holding of judicial review?

  120. Anon March 1, 2017 7:55 am

    Caesar @ 118,

    No – it is you attempting to attribute such to Congress where no such attribution is warranted.

  121. Anon March 1, 2017 7:57 am

    I do hope that you realize that cross-branch power sharing is allowed – but is NOT allowed on any such open-ended “implicit” basis.

    Such is the stuff of violation of separation of powers.

    As we see in the immediate banterings, such “implicitness” leads only to sophistry, and to ruin.

  122. Anon March 1, 2017 7:59 am

    Caesar @ 109:

    I am glad that you think that you know what the differences are.

    Tell me then, why do you think that I would ask such a question?

    And yes, please tie your answer directly to patent law.

  123. Anon March 1, 2017 8:00 am

    And while doing so, develop your historical knowledge please of why 103 was created.

    You have a very noticeable gap there.

  124. David Boundy March 1, 2017 8:08 am

    Anon —

    Please do not contribute error. (Mr. Salazar got it wrong too — the judicial power does not arise from Congress, it’s vested by Article III of the constitution. The scope of the judicial power to make law is discussed in Madison’s Notes on Debates on the Constitution, in The Federalist Papers, and in several of the state ratification debates, notably Virginia.)

    It might be helpful for you to read the Wikipedia article at https://en.wikipedia.org/wiki/Common_law especially the topics
    — Common law as opposed to statutory law and regulatory law > interstitial common law
    — Interaction of constitutional, statutory and common law

    This paragraph from Wikipedia is especially relevant to your view —

    Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law. It is important to understand that common law is the older and more traditional source of law, and legislative power is simply a layer applied on top of the older common law foundation. Since the 12th century, courts have had parallel and co-equal authority to make law—”legislating from the bench” is a traditional and essential function of courts, which was carried over into the U.S. system as an essential component of the “judicial power” specified by Article III of the U.S. constitution. Justice Oliver Wendell Holmes, Jr. observed in 1917 that “judges do and must legislate.” There are legitimate debates on how the powers of courts and legislatures should be balanced. However, a view that courts lack law-making power is historically inaccurate and constitutionally unsupportable.

    Everyone else in the legal system recognizes the authority of the Supreme Court to do what it did in Bilski, Alice, Mayo, Myriad. Judges, Congress, lawyers, the Patent Office all accept that the Supreme Court is indeed “supreme.” Are you representing to us on this list that you have a specific constitutional interpretation that is visible to no one else, and the entire rest of the system, with trillions of dollars of commercial certainty riding on it, is wrong, only you know the truth? In any other forum, that would be called a “delusion.”

    What institution is there in the American legal system that can overrule the Supreme Court by a review path (rather than by a new statute or constitutional amendment)?

    You’ve raised this absurdity several times on both this blog and at Patently-O. Please stop.

  125. David Boundy March 1, 2017 8:28 am

    And just to reiterate for a couple folks that don’t read carefully —

    I’ve said several times in this thread that the Supreme Court’s §101 cases are “irrational” and “lost in the Dark Wood of Error.”

    All I’m saying @ 124 is that the Supreme Court has the power to interpret § 101 as it did, not that that interpretation is rational.

  126. Caesar Salazar March 1, 2017 9:48 am

    David Boundy,

    Thanks for clearing things up. Just to clarify my position. I never said that the judicial power arised from Congress… I said that Congress implicitly was “cool with” SCOTUS’ interpretation of patent law with respect to 101 jurisprudence because it did not speak expressly to reject those principles (e.g. judicial exceptions).

  127. David Boundy March 1, 2017 10:29 am

    Mr. Salazar —

    I wouldn’t infer that. Any legislative overruling takes a long time — even on political hot buttons, it takes some time, and on low-political-emotional power issues like patents, it can take several years.

    Mayo and Alice, the two cases that are in 180-degree conflict with Diehr, are only a couple years old. I don’t think any court would infer that five years of Congressional inaction, with no other significant amendment to the statute, is “acquiescence.”

  128. step back March 1, 2017 10:33 am

    @124 writes
    Everyone else in the legal system recognizes the authority of the Supreme Court to do what it did in Bilski, Alice, Mayo, Myriad. Judges, Congress, lawyers, the Patent Office all accept that the Supreme Court is indeed “supreme.” … What institution is there in the American legal system that can overrule the Supreme Court… ?

    Everyone?

    I, as one more do not agree.
    I believe Night Writer might be another one who will not agree.
    Anon does not stand alone.
    Who else will step up from the silent crowds?

    What institution is there?
    It’s called, We the People. It’s called freedom to redress “our” government.
    When a gross injustice is committed, the fists of the people rise.

    First it is one brave soul (Anon) who says, No!
    Then another voice rises from the crowd.
    And another. …

    Part of common law practice is that advocates can argue to the courts again and again that a previous version of the common law is just simply wrong. The judges hear. The judges (fair minded, rational ones) respond.

    If indeed the Supremes are part of this long and not yet lost tradition of responsive law, then they should hear and they should change their ways. They need to understand that they are being played by the “friends” of the court. They need to understand that they are coming off as buffoons, at least as far as modern science and modern notions of reality are concerned. And also in so far as history will judge them to have been buffoons.

    Le Roy v. Tatham is not a proud moment in SCOTUS history.
    Graver Tank is not a proud moment (confuses manganese and magnesium).
    Benson comes off no better.

    Bilski, Mayo, Alice, Myriad, Sequonem constitute a doubling down and buffoonery and injustice. The people have a right, an obligation, to stand up and say No. No more of this Medieval buffoonery and ex post facto unjust revisionism of the quid quo pro bargain. Violation of basic contract law is not and never has been a traditional part of the common law.

  129. Caesar Salazar March 1, 2017 10:37 am

    David,

    I get what you’re saying. Yet how would that explain the AIA with respect to the 1952 Act? With respect to 101, they were identical. Congress would seem, at first glance (and maybe at a deeper glance as well), to have been “cool” with the judicial exceptions. If it wasn’t, it would have expressly codified something that would overrule them.

  130. Caesar Salazar March 1, 2017 10:40 am

    And there were many, many years for Congress to think about the issue since 1952.

  131. step back March 1, 2017 10:40 am

    ex post facto law making:

    “An ex post facto law (corrupted from Latin: ex postfacto, lit. ‘out of the aftermath’) is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law. …”

    https://en.wikipedia.org/wiki/Ex_post_facto_law

  132. Caesar Salazar March 1, 2017 10:44 am

    step back,

    Your goals of “We the People” are admirable, I just fear that they might just be illusory. While there are many that want to change the system, the cultural zeitgeist in our current era sides with SCOTUS on issues of patent eligibility. One could see the election of Trump as a sign in the opposite direction, but upon further analysis, the people who elected Trump into office are the same ones that would get upset at the notion that they cannot fix their John Deere tractors themselves. Thus the “masses” on either side (liberal Democrat or working class Republican) would find your solution a hard pill to swallow.

  133. David Boundy March 1, 2017 10:47 am

    Step back @124,

    Do you understand the difference between the Supreme Court’s authority to render a decision (and that that decision is binding on the rest of the system) vs. rationality of that decision?

    Of course Supreme Court decisions can be reversed — through overruling by the Court itself, or through statute. Many people (including me) are working on those two (productive) routes. But in the mean time, the Supreme Court is supreme.

  134. Caesar Salazar March 1, 2017 10:53 am

    step back @131,

    Be careful with your use of Latin phrases. They are extremely anathema to Anon. He may call to ban you.

  135. David Boundy March 1, 2017 10:56 am

    Mr. Salazar —

    I’ll spell out what I said above @ 127, with dates plugged in.

    The AIA was passed in 2011. Mayo was in 2012. In 2011, the standing interpretation of the § 101 exceptions was Diehr.

    If there’s Congressional acquiescence, it’s to Diehr, not to the 180-degree opposite approach to the § 101 exceptions in Mayo, Myriad, and Alice.

  136. Caesar Salazar March 1, 2017 11:03 am

    David,

    I get what you’re saying, but why then didn’t 101 of the AIA codify this? There could have been one sentence to the tune of “process means xyz [insert Diehr definition].” But it didn’t do that. Does that mean it wasn’t acquiescing to just Diehr but to SCOTUS’ reasoning in general when it comes to 101?

  137. David Boundy March 1, 2017 11:19 am

    Mr. Salazar —

    Sorry, this strikes as a REALLY dumb question, in two respects.

    1. Congress is busy. If it ain’t broke, Congress does not spend time to fix it. If the courts are interpreting the existing language correctly, why would Congress change it? Your “there could have been” is just irrational.

    2. What in the world does “SCOTUS’ reasoning in general” even mean? That’s a nonsense phrase, and it’s really frustrating to deal with a third time (see me @ 94, Gene @ 89). The two lines of cases are in irreconcilable conflict — the Diehr line says the properties you measure with a weight scale are relevant and what you measure with a calendar is irrelevant. The Mayo/Alice line says 180 degrees the opposite.

    I really hate responding to people that don’t read first, think second, type third. You’re now on that list. At 94, I asked you to read the cases before you post again, and read the post you’re replying to before you start typing. I will not be paying attention to you again until you demonstrate that you’ve done so.

  138. Caesar Salazar March 1, 2017 11:49 am

    David @137,

    1. Congress is busy. If it ain’t broke, Congress does not spend time to fix it. If the courts are interpreting the existing language correctly, why would Congress change it? Your “there could have been” is just irrational.

    It seems we’ll have to see what Congress says on its next round of patent reform then. If it keep the current language of 101, then it would be an acquiescence. But we’ll never know until that happens. Thus I’m not incorrect in stating that Congress “could” still acquiesce to SCOTUS’ interpretation of 101 (including what I call reasoning in general).

    Like I said, we’re dealing with “could” and “perhaps” statements. So nothing I have said is inherently incorrect.

  139. Caesar Salazar March 1, 2017 11:50 am

    David,

    It’s also not “irrational” to speak to this effect either. Sure Congress is busy, but that doesn’t mean that it disapproves of SCOTUS’ interpretations of 101 or other areas of patent law.

  140. Night Writer March 1, 2017 4:17 pm

    @125 David All I’m saying @ 124 is that the Supreme Court has the power to interpret § 101 as it did, not that that interpretation is rational.

    I don’t agree with this regarding Alice, because their opinion in Alice is unconstitutional. They held that all claims that “fit” the Alice test “may tend not to promote,” and thus were unconstitutionally granted. That is the holding in Alice. And, I don’t think that is Constitutional.

  141. David Boundy March 1, 2017 4:53 pm

    Mr Salazar —

    Your statement @ 136 was “There could have been one sentence …” Past tense. Then in @138, to justify that your earlier statement was “not incorrect,” you shift to “[Congress’] next round of patent reform…” Future tense, There’s one thing that costs credibility even more than not reading before responding, or arguing disconnected non sequiturs (as in 139), and that’s misquoting.

    When you’re in a hole, stop digging. Instead, follow the simple rules: 1. Read. 2. Think. 3. THEN type.

    Night writer @140 — I assume you remember from your first year Constitutional Law class that clauses like “promote the progress” are very lax, subject only to “rational basis” review. Almost any explanation suffices. The Supreme Court gave an explanation, preserving rights for future research. You can disagree with that explanation (and I would agree with you that Mayo/Alice are irrational), but its enough for Constitutional “rational basis” purposes.

  142. Anon March 1, 2017 8:57 pm

    David,

    You have not read my posts closely enough. There is a difference between statutory law and common law and there are definite limitations to the “Supreme”-ness of the Supreme Court.

    Take a close look at your State attorney oath. Does it place the Supreme Court above the Constitution?

    You seem very eager to ask others if they remember first year Constitutional Law.

    Perhaps you need a refresher.

  143. step back March 1, 2017 9:25 pm

    @133 David writes:

    the Supreme Court’s authority to render a decision (and that that decision is binding on the rest of the system)

    First off David, you know I commend you for having the bravery to come out under your real name whereas others here, including yours truly, hide under a pseudonym.

    But with that said, one can easily think of many hypotheticals where SCOTUS might try to exercise this alleged “authority” of theirs and yet most everyone in the system would not find it “binding”.

    1) As a first example, suppose SCOTUS opined that after careful judicial consideration, E does not equal mc^2 but rather mc^3.

    Will any rational person feel “bound” by this Supreme proclamation?
    Of course not.

    2) As a second and more audacious example, suppose SCOTUS opined that after careful judicial consideration, there is a long held exception (almost 2000 years old) to the “thou shall not commit murder” rule in the Ten Commandments, the exception being that if a member of SCOTUS asked you to do it on their behalf, it’s OK.

    Will any rational person feel “bound” by this second Supreme proclamation?
    Of course not.

    Not only is it morally wrong, but it is based on a lie. SCOTUS has not been around for 2000 years. Therefore the exception could not have been a long held one even if they insist otherwise.

    3) In Alice/Mayo and elsewhere, the SCOTeti keep insisting that there has been a long held (over 150 years long) exception based on use of a magic crystal shard dangling at the end of a string and seeing which way it points after you give it a spin so that one can discern what an underlying claim is “directed to”.

    That is a lie. There has never been a “directed to” basis for invalidating patent claims that are lawfully granted pursuant to the words actually in 35 USC 101.

    They made it up out of thin air. They made it up just now. Their logic is that of the “appeal to authority” fallacy.

    Do I feel that everyone should be “bound” to this third example of the SCOTeti going off their rockers? No.

    If you do, well that’s between you and the higher power you answer to.

    BTW. We’re merely debating here you know. No hard feelings. 🙂

  144. step back March 1, 2017 10:16 pm

    For those who are not familiar with the “appeal to authority” fallacy:
    https://en.wikipedia.org/wiki/Argument_from_authority

  145. step back March 1, 2017 10:20 pm

    For those here who are not familiar with the tactic of telling a “big lie” and then steadfastly “sticking to the story” :

    https://en.wikipedia.org/wiki/Big_lie#Goebbels.27s_use_of_the_expression

  146. David Boundy March 1, 2017 10:38 pm

    Step back @144 and Anon @ 142 —

    There are two areas where the “appeal to authority” fallacy is not a fallacy — religion and the law. In those two fields, truth is truth because of a pronouncement of someone who has authority to say what the truth is within their fields. For Catholics, it’s the Pope. And in U.S. law, words mean what they mean because the Supreme Court says that’s what they mean, and the law is the law because the Supreme Court says so.

    But of course, the Pope’s authority ends at the ends of matters governed by religion, and the Supreme Court’s authority extends only to legal matters. So in a court, E = mc**3, even though outside a courtroom, E = mc ** 2.

    The Supreme Court does have the authority to stay, reverse, or affirm death penalty convictions. They can’t create the sentence, but they can and often do affirm another court, and have the last say, “Kill such and such a person on behalf of the state,” or “Do not.” Admittedly not your exact hypothetical, but enough to show that “authority” is no fallacy.

    Anon, in the U.S., whose interpretation of the Constitution is supreme? If you claim anyone other than the Supreme Court, please identify the presidential appointment and Senate confirmation (or other mechanism) that made it so. And explain why you disagree with Justice Holmes and Justice Marshall.

  147. Anon March 2, 2017 12:07 am

    David,

    You do know what original jurisdiction means, right?

    You are aware that even the Supreme Court is a court of limited jurisdiction, right?

    Why does it seem like you want to talk about a lot of things that I am not talking about?

    Why does it seem like you are making incredible – and completely unsubstantiated leaps instead of actually looking at what I have written?

    Please don’t throw around “big names” like the mere act of throwing them around actually means something.

    Every branch of the government is subservient to the Constitution and that includes the judicial branch – the entire judicial branch.

    Please tell me which State oath you swore to to become an attorney. Better yet, please list that oath. I want to see one that places the Supreme Court above the Constitution.

    Let me know when that happens.

  148. Anon March 2, 2017 12:12 am

    …and I am still wondering where you found the gall to dismiss the constitutional power provided to Congress of jurisdiction stripping as if it were some mere “academic” artifact, unattached to the actualhighest law of the land.

    Tell me, do you think that the Court could simply – by their say so – wipe out that part of the Constitution?

    If so, one of us definitely needs to brush up on their first year Con Law (and that would not be me).

  149. Anon March 2, 2017 7:18 am

    step back @ 143,

    To resonate the point that you present, there was one man inextricably linked with 101, from the writing input to Congress, to the application of that law in the lower courts (specifically one designated for bringing clarity to patent law) that DID stand up to the malarky of the Supreme Court and did not treat every word of that Court as gospel: Judge Rich.

    Judge Rich simply did not take stray dicta that the Supreme Court infused into the Benson decision and shrug his shoulders with some type of “well, they are Supreme” mindlessness.

    And that is precisely what led to both Diehr and Chakrabarty.

    I do not understand why David appears to be so thoroughly confused with my position on the differences between statutory law and common law, perhaps he has not taken the time to read and understand. He appears to think that I think that there is no such thing as common law or that all common law is improper.

    I have NEVER indicated such.

    But on the same point, there IS a difference between common law and statutory law, and the Supreme Court does NOT have complete and unfettered ability to wield common law. Such a view places them above the Constitution.

    Such a view is also not in accord with ANY State oath for attorneys. I am not being flippant when I ask for attorneys to present their State oaths. I ask because attorneys have become so entranced by the clothiers connection with the emperor, that they “play along” with the notion that the emperor’s raiment are ever so fine, when the very duty of attorneys includes the duty to speak out and protect the Constitution – not the Emperor’s treatment of the Constitution. Constitutional amendments do not have a path through the Supreme Court. David’s attempt to re-charactize my views as some type of “other path” of interpreting the constitution for some other government entity is a strawman and itself a non sequitur to what I write.

    Likewise he attempts to paint a picture of my views as somehow being against the flow of every other legal mind out there.

    Such is dross. And clearly untrue, as the groundswell against the particular improper mix of common law power on a Constitutionally directed statutory law domain continues to grow. He should not confuse his own (valiant) attempts to work through other paths and think that the points I present are wrong just because of some notion “of the masses.”

    He admonishes others for engaging such tactics, and I find myself for the second time in a single thread asking him to heed his own advice.

    .

    Caesar at 134 and various other places,

    You once again mischaracterize what has been stated. It is not the use of Latin per se that I “took offense to’ – but was the pretentious use that you had exhibited that I took issue with. As David (correctly) points out, you flit about (with your verb tenses) and attempt to use a “well anything may happen in the future, so I am justified in presenting anything” type of sophistry in your discussion of legal points that is simply untethered to anything except game playing. I have patiently (and politely) pointed this out to you, as well as pointed out that I have not sought to have you banned (and in reality, quite the opposite). I have provided you guidance and explanation as to why your actions may see you banned.

    I have tried to help you understand the hole that you are in (to play off of David’s metaphor).

    You do appear intelligent and you should heed the advice provided to you (such advice including the observations that you have not denied as to how it is that you lack a cohesive knowledge of law, yet can cite certain legal positions, albeit not always accurately because of that lack of cohesive understanding). You say that you want to learn from those with experience, but your actions say something else when you repeat the sophist tricks and regurgitate the same scripted Ends to be reached.

  150. Anon March 2, 2017 7:39 am

    step back,

    By the way, great links at 144 and 145.

    Make no mistake readers, such propaganda is rampant from those who for a variety of reasons seek to diminish the power of patents. Their are ideologies from both the Left and the Right that DO seek to diminish that power. As I have noted in the past, the Left have a thing against all personal property (the superiority of the common, or commune), while the Right have a thing against the personal property of others that might threaten their own established power (the preference to do economic battle on factors that favor the established, and the fear of the power of disruptive innovation).

    Groupthink is a serious condition to watch out for. That is one reason why I have been so patient with Caesar. I do believe it is healthy to have opposing views question some of the views presented – even pro-patent views. Of course, there is a difference between questioning, and sophistry after the questions have been asked, but the questioning itself is healthy to have present.

  151. David Boundy March 2, 2017 7:44 am

    Dear Anon—

    You are entirely correct, I have no idea what you mean by “what you have written.” Could you point me to a written source that explains your understanding of the interrelationship of statutory and common law? And could you point me to at least one or two decisions that have applied your understanding?

    A pretty good lay man’s explanation of the conventional interrelationship between statutory and common law is at https://en.wikipedia.org/wiki/Common_law Could you point me to something analogous? To me, and I think to all practicing lawyers, “what you have written” is gibberish. I’d appreciate a pointer to an explanation of your view, so that I can read “what you have written” with understanding.

  152. David Boundy March 2, 2017 7:46 am

    An even better URL —

    https://en.wikipedia.org/wiki/Common_law#Interaction_with_statute

  153. David Boundy March 2, 2017 7:50 am

    Dear Anon—

    And by the way, I do know what “original jurisdiction” is. But I have no idea why you think it’s relevant to patents. What do you think the term means?

  154. Night Writer March 2, 2017 8:12 am

    @146 David: You are right in your authority argument in that it is difficult to reverse the SCOTUS.

    The reversal would have to come from Congress. But, let’s keep in mind that the SCOTUS can issue any opinion they want and claim it is Constitutional as you have with Alice (i.e., a rational basis).

    Let’s keep in mind then the question is how far astray has the SCOTUS gone from the intent of the Constitution and what safeguards are there to punish the SCOTUS for their opinions. And, let’s keep in mind one the opinion of the bar is very important.

    A “rational” basis is not sufficient to justify Alice. They cannot just make any opinion they want and say they did it because of some good they want. Well, they can, but it is certainly not what they are supposed to be doing.

    So, merely tagging some rational basis for a decision along with the decision does not justify how they got to Alice. It you spend a little bit of time and ask yourself what else could they do under the same reasoning of Alice.

  155. David Boundy March 2, 2017 8:21 am

    NW @ 154 —

    I fully agree that Alice is not “justified” and “not what they’re supposed to be doing.” But it sounds like you’ve backed off from @ 140 “Alice is unconstitutional.”

    And if that’s where we are, then I thank you for being the first sane person to join me here for some time.

  156. Anon March 2, 2017 8:27 am

    David,

    Your questions belie your criticisms towards me, and your own lacking of heeding the advice you have given others.

    Methinks you were too quick to pen your reply.

    It is not “gibberish”‘ just because you have not taken the time to understand it.

    Also, putting on me to explain “original jurisdiction” when I first put that on you is rather a weak cop out. If you really do understand the term, then you would not have attempted to dismiss my views on jurisdiction stripping as you have done. TO this day, you have not provided any cogent rebuttal, and have been merely dismissive and “groupthink” minded.

    Not your finest moments, to be sure (even understanding the fact that this is a mere blog, and you are perhaps answering ‘on the fly’).

    Perhaps instead of asking me to repeat myself, you can take a gander at post 119 and let me know what in particular “bothers” you. The logic presented is rather clear and direct.

    As to Night Writer’s reply at 154, and your own offering of “rational basis,” let me pile on just a little by quoting you: “The two lines of cases are in irreconcilable conflict — the Diehr line says the properties you measure with a weight scale are relevant and what you measure with a calendar is irrelevant. The Mayo/Alice line says 180 degrees the opposite.

    While offering “almost anything” just might be able to satisfy the rational basis prong, that offering is not – and cannot be – made in a vacuum, and I would be delighted to see ANY writing or case or any other authority that proffers the view that “irreconcilable conflicts” may serve as a rational basis (especially as your point is such that this CANNOT be rational. Sure, if you want to cherry pick any one piece of the Supreme Court jurisprudence to “back” any particular view, one can do that, but that too sounds in advice that you gave Caesar not to do (dare I say for a third time in a single thread that you should heed your own advice?)

    By the way, providing links to common law only perpetrates my point that you are chasing some strawman as if I have stated that there is no such thing as common law.

    As stated, I have NEVER put forth that position, so I do not understand your attempts to knock down something I have never stated.

  157. Anon March 2, 2017 8:29 am

    “Constitutional” is NOT whatever the Supreme Court says it is, David.

    That’s a bridge too far. You would have to have UNLIMITED authority to the Supreme Court for that statement to have any sense of merit.

    Let’s see your State attorney oath, if you don’t mind.

  158. David Boundy March 2, 2017 8:42 am

    Anon —

    OK. So let me give you one more chance here. Can you point me to a source that can explain your view in enough detail for me to understand anything else you write? Can you point me to a single decision that adopts and applies your view? Without those two, I infer that you have a theory of the way the law should work. And that’s fine. But not a single other person in the world shares it with you. That’s an OK place to leave this.

  159. Night Writer March 2, 2017 8:44 am

    @155 David But it sounds like you’ve backed off from @ 140 “Alice is unconstitutional.”

    I have backed off it because I think you raise a good point. What does it mean for the SCOTUS to act unconstitutionally? How can an opinion of the SCOTUS be unconstitutional? I think the only real recourse is to impeach the justices. The Congress can pass laws that remove jurisdiction or add justices, or change the statute. But at the end of the day, the SCOTUS can put Alice in any patent statute and there isn’t much we can do.

  160. David Boundy March 2, 2017 8:48 am

    NW @ 159 —

    A pretty good definition of sanity is “abject submission to reality.”

    Congratulations.

  161. David Boundy March 2, 2017 9:41 am

    Anon

    I’m sorry, my 158 was not as clear as it could have been. Though I don’t understand your 119 well enough to be certain, it seems that you have a view that “statutory law” and “common law” are entirely separate, non-interacting realms. I gatehr that your view is that because of that “separation of powers” silo’ing, courts do not have authority to interpret statutes. That seems to be a necessary predicate to your argument. Is that an accurate understanding?

    So, let me refine my question 158 again.

    1. I don’t understand your 119. Or rather, I understand each sentence, but the cause-and-effect links between successive sentences is not clear. Can you point me to a source that can explain your view of the interaction between statute and common law, and the role of the Supreme Court in interpreting federal statutes?

    2. Can you point me to one or two decisions (of any tribunal) that adopts and applies your view of the interaction between statute and common law, that holds that courts have no jurisdiction to interpret statutes?

    Without those two, I infer that you have a theory of the way the law should work. And that’s fine. But not a single other person in the world shares it with you. That’s an OK place to leave this.

  162. Anon March 2, 2017 10:38 am

    Interpretation is simply not the same thing as re-writing in the sense that common law is writing law.

    Interpretation is very much more limited than writing common law.

    Aside from that, why do you persist in not following what I suggest? The steps in post 119 are clear, yet you continue to want to play the “I don’t understand” card.

    I think instead of not understanding, you do not want to admit that my view on jurisdiction stripping is a sound one.

    Why you may feel that way is anybody’s guess, but your recalcitrance, evasion and dismissiveness is quite evident.

  163. step back March 2, 2017 10:47 am

    Anon and Night Writer:
    Guys,

    I don’t think above is the real DB.
    The real DB would not have time to dabble in this ridiculous back & forth.
    The real DB would know that no branch of government has unbounded power.
    Just like one cannot run into a theater and scream “fire” based on the 1st Amendment, one cannot say that white is the new black if the statute says black.

    DB if you are the real one, then reply to my email and include its original content.
    Gene replied.
    You did not.
    Leads me to think the on-IPWatchdog DB is just phishing and tr0lling here. 🙁

  164. Anon March 2, 2017 11:12 am

    Night Writer,

    To your last comment, my proposed solution of jurisdiction stripping IS the only possible (long term) solution.

  165. Anon March 2, 2017 11:18 am

    step back,

    That would explain his rather p00r showing here.

  166. Night Writer March 2, 2017 1:04 pm

    @163: step back: interesting. A more sophisticated paid blogger attack.

    To this whole issue: I think real or fake DB that he moved the issue properly to trying to define what it is that the SCOTUS did that is wrong rather than the term unconstitutional.

    For example, 1) making findings of fact; 2) making findings of fact prospectively; etc. I think it would be helpful to say why exactly what they did was wrong within the context of the Constitution. Sort of a draft document for impeachment. Not serious that it would ever happen, but some way to quality/quantify what exactly it is about Alice that is in conflict with the Constitution.

  167. step back March 2, 2017 1:07 pm

    … And is a live demonstration of the “appeal to/by authority” ploy.

    Because the phisher man (woman?) above claims to be DB we give that entity greater leeway to posit ridiculous ideas such as “supreme” means supreme.

    Just cause you attach a label to a thing doesn’t make it so.

    I can attach a placard that says “French cuisine” to a steaming pile of BS.
    That don’t make it so.

    And BTW, the arguments that the phisher-DB posits above is a steaming pile of BS.

  168. Night Writer March 2, 2017 1:47 pm

    @167: Step back: OK, but it is interesting to try to articulate in greater detail exactly what it is that is wrong about Alice. That is pretty much my only point.

  169. Anon March 2, 2017 3:04 pm

    Night Writer,

    I have previously articulated what is wrong with Alice a number of times on this blog relative to the “Constitutional” angle.

    You can take your pick of any number of Constitutional infirmities.

    The Court may not give advisory actions, and any reasoning that sounds in mere future subjective projections of what MAY happen lack the fundamental present case or controversy that provides authority to the Court.

    Patent law in particular has been Constitutionally set as statutory law and there exists a real difference between interpretating statutory law and writing common law and this invokes the separation of powers concern. Note as well that I have in the past even discussed the proper sharing of power between branches, such as what Congress does with the judicial branch as far the section of patent law dealing with what to do for infringement – and noting that no such sharing by Congress is made explicit (as is one of the requirements for cross-branch sharing) for the section of law as set by Congress in 1952 for 101/102/103/112.

    Or even take the notion that the law as written by the Court suffers from the “Void for Vagueness” problem in that such key terms as “abstract” and “significantly more” are left far too vague to serve properly as written law (even if we simply take for argument’s sake that the Court is Supreme and that any violation of the separation of powers can be “ignored”).

    Part and parcel of this Void for Vagueness is that what the Court itself did in Alice with its new weapon of the “Gist/Abstract” sword is that claims not at issue regarding 101 – claims stipulated by BOTH parties to have passed the statutory category section of 101 as to being machines, were nonetheless deemed “abstract.”

    Talk about an exception swallowing the rule, the unfettered (and undefined) power to “Gist” a claim by the Court (and adopted by lower courts and even the PTAB) all but guarantees that any determination is vague until a judge or Justice declares one way or another what the “result” is to be.

    We have members of the single body of the CAFC ideologically oppositely “applying” this Supreme Court “writing.”

    I have used “David Boundy’s” own quote to destroy the notion that the Supreme Court’s irreconcilable rulings could meet the low standard of rational basis review.

    As I stated: take your pick of one or more of these points.

    A major compounding problem that we have (as compared to the Congress that acted in 1952), is that the present Congress is either bi-partisanly split, or too interested in hearing the voice$ of special interest groups because such cases as Citizen’s United had grossly amplified the voice$ of jurisitic persons.

  170. step back March 2, 2017 5:17 pm

    @169 Anon

    All good points.
    And all conveniently overlooked by them that don’t like American inventors too much.

  171. Night Writer March 2, 2017 6:35 pm

    I think the prospective argument is the strongest. The holding that a claim was unconstitutionally granted because it fits the Alice test based on the factual finding that anything that fits the Alice test “may” tend not to promote is far out there.

    So, I “may” tend to be a person that will be mischievous, so they better lock me up.

    Another bit one is that something is termed “abstract” that clearly is not abstract by any definition but the SCOTUS’s definition.

  172. Night Writer March 3, 2017 4:41 am

    I also think that the arguments for why Alice is incorrect need to be strengthened.

  173. Anon March 3, 2017 6:41 am

    Night Writer,

    Is it the arguments for why Alice is incorrect, or is it the structure of the system with a Supreme Court perhaps too powerful?

    If the latter, then the Founding Fathers concerns about a too-powerful judiciary may have come to roost.

    If the former, then the comments about the p00r job of the attorneys in the Alice case may have hit their mark.

    Truth be told, it may be both.

  174. Night Writer March 3, 2017 9:28 am

    @173, Anon:

    The point is to be able to make cogent arguments that Alice was wrongly decided.

  175. Anon March 3, 2017 10:46 am

    You need a receptive audience – there is plenty of cogent positions already.

  176. step back March 3, 2017 11:50 am

    Anon and Night (and fake DB):

    Read Alice very slowly and carefully.

    Nowhere do the SCOTeti create a law that says you people out there (judges, ALJ’s, magistrates outside the SCOTUS) must use this Alice/Mayo framework.

    Everyone of their sentences only uses the “we” (we the SCOTeti). Everyone else who chooses to follow suite does so of their own volition.

    From Alice:
    We hold that the claims at issue are drawn to the abstract idea of intermediated settlement, and that merely requiring generic computer implementation fails to transform that abstract idea into a patent-eligible invention. ” … ” We have long held that this provision contains an important implicit exception: Laws of nature, …” … ” we must distinguish between patents that claim the Buildin[g] block[s]”‘ of human ingenuity and those that integrate the building blocks into something more, …” … ” we set forth a framework for distinguishing patents that claim laws of nature, natural
    phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts. First, we determine whether the claims at issue are directed to one of those patent-ineligible concepts …”

  177. Night Writer March 3, 2017 5:26 pm

    @176: IDK step back. That seems to be the way it works. “We set forth a framework,” and we slobs use it.

  178. Anon March 3, 2017 8:27 pm

    Night Writer,

    As if it were that simple.

    “Setting the framework” very much matters in the means employed – much more so even than the Ends aimed at.

  179. Night Writer March 4, 2017 9:40 am

    @178: Anon.

    The goal is to be able to explain why Alice is wrong. DB fake or not was right that merely saying it is unconstitutional is not enough. For the Justices what we need is essentially articles of impeachment to illustrate that what they did in Alice is wrong.

    The better able we are to explain why what they are doing is wrong, the more likely it is that we will be listened to.

  180. Anon March 4, 2017 10:53 am

    Night Writer,

    Who do you think is “just saying anything?

    DB fake or not is NOT correct.

    Perhaps that is why that poster has disappeared from the conversation – “coincidentally” just like Caesar.

    It is a clear sign when an open invitation to actually discuss points is met with denial, dismissal, name-calling, and then silence.

    The points I have presented are still very much there on the table.

    Those points are also very much more than “just saying.”

    As such, it is unclear just what “more” it is that you are looking for. Can you flesh out what you mean?

    We both know (and want, I dare say) the proper means to be restored for patent law. Once those Means are respected, the Ends will take care of themselves.

  181. step back March 4, 2017 12:31 pm

    “The points I have presented are still very much there on the table.”

    All very good points and just the tip of the iceberg.
    The Alice and Mayo opinions are like well tightened Gordian knots, far more nuanced and twisted than first meets the eye.

    I doubt very much that Clarence (aka the Clown) Thomas J. wrote Alice himself. More likely the “friends” of the court provided the verbiage and then the Supremes unanimously signed on. It’s more than a “framework”. It is a framing –if you understand what that term implies in the mind manipulation world.

    For example how do they get past the prohibition against ex post facto rules of law?

    They create an alternative facts fiction.
    They claim that it’s our fault we did not know for over 150 years that the witch detection test was part of section 101 from the very beginning and in the first place. Say what?

    Instead of shame, they double down on Le Roy and Benson.

  182. Night Writer March 5, 2017 7:41 am

    @181: Anon and step and back:

    Anon: I started saying that Alice was unconstitutional the first day I read the opinion. I quoted the same passages I keep posting.

    Step back sums up the point well: “All very good points and just the tip of the iceberg.”

    And what step back said “More likely the ‘friends’ of the court,” is exactly right. R. Stern wrote Benson. There are people that devote years writing these opinions and figuring out ways to make it difficult to unwind the opinions. Some of them are some of the smartest people in the country.

    step back’s post captures the problem very well. (Just read Chisum’s analysis of Benson way back when. He said that “algorithm” was being used with 16 different definitions.

  183. Night Writer March 5, 2017 7:46 am

    >>Those points are also very much more than “just saying.”

    I agree they are more than “just saying,” and they are mostly the same points I have been making since day 1. But, they have counter arguments that muddy the waters. My point is what we have now is just not enough. It does not persuade the average attorney because they cannot wade their way through all the counter arguments. Some of the counter arguments are really quite excellent–wrong, but calculated to muddy the waters to the science/philosophy illiterate.

    (By the way, maybe it would affect “them” more if we added that they are ignorant of modern philosophy. They don’t seem to mind being called ignorant of science and technology and hold it as a badge of honor that they have all their material wants and respect in the world and never had to figure out who Newton was.)

  184. Anon March 5, 2017 8:04 am

    Night Writer,

    Perhaps the issue is that you are looking to unravel something, whereas the points I present are much more direct and to the issue of the decisions’ immediate infirmities.

    My “more than just saying” is simply in a different mode than what you are looking for.

    To get what you are looking for, we need to ask different questions. Those different questions have to do with the unraveling (as opposed to the effects of the “raveling”).

    May I suggest that if indeed you want to unravel something, that you at least list the items to be unraveled, and then we can focus on that list.

  185. Anon March 5, 2017 9:55 am

    Back to the original intent of this article,

    The new deadline is now extended to March 10, 2017

    is now less than a week away.

    What are the odds that even with a new Commerce leader, a clear and direct answer will not be forthcoming?

  186. Michael McCabe March 9, 2017 5:51 pm

    Any word yet? I just received a communication from the GC on behalf of Michele Lee as Director. Hardly definitive but still.

  187. Michael McCabe March 9, 2017 6:15 pm

    And does anyone know this: as a matter of law, does an agency head’s term end automatically upon the election of a new President? If not what is the legal basis for why a holdover agency head still has power to act when they have not been appointed by “the President” as required by the Constitution. They’ve only been appointed by “a President” who no longer has power. So even if she did not formally resign, was the act of resignation even necessary or did her ten end along with Obama’s term?