Silent Spring for Patents

By Raymond Van Dyke
March 9, 2017

“Corporations in their quest to eliminate all patent challenges by delegitimizing the entire patent system have created this crisis… inventors will be silenced and innovation will suffer.”

SIlenceOver fifty years ago, Rachel Carson shocked the world, our government, and several large corporations, with her publication Silent Spring.  She demonstrated that the zealous quest of big industry to wantonly use pesticides had deleterious implications, insidious side-effects of contamination of the ecosystem.  Her book created a new dialogue and serious questioning of the benevolence of corporations to society.

Today, we face another crisis, one that is more abstract in nature, but just as insidious to our very wellbeing.  Just as our ecosystem is a fine balance of many factors, many competing with each other, the inventive process is just as delicate.  In our increasingly complex world, inventors conceive of new gadgets and new ways of doing things.  Most of these innovators are individuals at small companies, and their idea is key to the company’s growth.  These inventors file patents and endure the gauntlet of requirements of the U.S. Patent Office to get their patents, which often represent the entire value of the burgeoning company.

Unfortunately, due to the actions of some of the large corporations, the value of these patent assets has diminished greatly over the past decade, along with the survival of many small companies relying on those patents for protection against rampant copying.  Sadly, the quintessential American inventor, building a better mouse trap or now an app, has now been effectively cut off from the advantages of their patented inventions, while corporations take whatever they want.  Of course, not all corporations engage in this destructive behavior, euphemistically and derisively called “efficient infringement,” but some are especially influential in manipulating Congress and the patent system to their own ends, and even demonizing the small inventor community for daring to compete.

Large corporations in particular have capitalized on the so-called “patent troll” threat to better silence inventors under the guise of necessary reform, bamboozling Congress into broad patent reform.  The term “patent troll” was coined by an executive at a large corporation to pejoratively describe anyone who had the audacity to sue them, and the moniker stuck.  The intended consequence of the patent reform legislation and ongoing lobbying has been to curtail small inventors’ access to the advantages of the patent system, thereby allowing corporations to make, use and sell others’ patented ideas with zero royalties or payments.  Corporate lobbyists, in the tradition of George Orwell, did not inform Congress as to these motives, and instead have collectively labeled all small inventors evil trolls, thereby discrediting and deconstructing all inventors into greedy people with lame ideas.

Little known in the press (and to Congress) is that, in addition to the few bad actors out there, the term “patent troll” includes all individual inventors, small companies, universities and anyone else (even another large corporation) trying to enforce their Constitutional rights.

Thus, small players with a new idea and patents are not taken seriously by most large corporations when approached for a license.  The majority of individual inventors do not have the ability to take on large corporations and enforce patent rights against them, i.e., stop the infringement.  Instead of cooperating with the small inventor community, most corporations now just take private innovations and have a “sue me” attitude.  To best protect the bottom line, it is easier to steal than to pay a royalty.

Inventors are thus forced to sell or license their patents to others who can bring the fight to the corporations.  These companies, created to better leverage patents so purchased, then approach the large corporations on behalf of the small inventor community.  A tiny percentage of these companies push the limits and abuse the system, and these very few are the actual trolls.  Nonetheless, even these actual patent trolls are but a side effect of the pernicious corporate undermining of the entire patent system, changing the patent environment and heavily tilting the playing field in their favor.

With legitimate innovators being lumped in with the few bad actors, the press promotes the fiction of the patent system being out of control.  Since just a few of the birds are dying, there is little reason for alarm or need to disrupt the corporate party line.

Congress heeded the call of the corporations to stop the trolls from pestering big industry, and passed the America Invents Act in 2011, which has further silenced the small inventor community, who are now living the nightmare of the AIA.  Whereas in the federal court system patents had some significant advantages, under the AIA patents can now be challenged easily and incessantly through the administrative courts at the U.S. Patent & Trademark Office.  Whereas in federal court a patent is presumed valid and only invalidated by a high evidentiary standard, the USPTO courts invalidate by a mere preponderance of the evidence standard, a significantly lower threshold.

Corporations can now repeatedly challenge any patent through these proceedings, casting a cloud on any patent, thereby undermining the value of all patents.  Just as a house with a questionable title is risky, now all patents are deemed risky by investors.  Since any patent can be easily challenged, even on frivolous or repetitive grounds, the values of patent portfolios have diminished precipitously.  Small companies and individuals now have great difficulty obtaining funding, compromising their survival.  The presumption of validity standard is but a memory.  This pestilential cloud of doubt over the entire patent system envelopes us all and undercuts future innovation.

Patent systems have been shown to benefit society by giving inventors a short term exclusive right on their invention, which is later granted to the community.  America has especially benefited by a wealth of inventors.  Indeed, these private rights help the many by releasing the invention into commerce more quickly, allowing others to use it (under a license) and improve upon it.  Eric Schmidt of Google said that true innovation does not come from the corporations, but from the “crazy person” or “graduate student.”  However, the present challenges to such inventors are jeopardizing the ability of these “crazy” people to partake in the patent system and also benefit society.

Just as in Silent Spring, where the healthy ecosystem was corrupted by DDT and other contaminates, the stability of our patent system is dangerously out of balance.  Individual inventors, not just corporations, should be able to benefit from the fruits of the inventive mind.  The limited private right of a patent is a necessary reward to fuel innovation, something recognized in the Constitution and by both President Washington and President Lincoln.  Corporations in their quest to eliminate all patent challenges by delegitimizing the entire patent system have created this crisis, all to protect their bottom line and thwart competition.  In time, just as the birds in Carson’s book, inventors will be silenced and innovation will suffer.

The Author

Raymond Van Dyke

Raymond Van Dyke has been an intellectual and technology attorney and consultant for over 25 years, specializing in IP procurement, prosecution, IP portfolio building and management, licensing, legislative advocacy and expert witnessing. He is licensed to practice law in Washington, DC, Maryland, New Jersey, New York, Texas, and the Patent & Trademark Office of the United States. He is also admitted to practice before the Supreme Court of the United States, the Court of Appeals for the Federal, Second, Third, Fourth and Fifth Circuits, as well as the Federal Court of Claims and the Court of International Trade. For more information or to contact see his profile at Van Dyke Law.

The views expressed in the article are his own and not those of his clients or organizations.

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 49 Comments comments.

  1. Ray Van Dyke March 9, 2017 11:22 am

    I welcome a discussion on this critical topic and hope that the Trump Administration will be objective, unlike the previous administration which became beholden to Google in all things.

  2. Raymond Van Dyke March 9, 2017 11:56 am

    I welcome a discussion on this topic. Hopefully, the Trump Administration will take effective action to balance the patent system and undo some of the damage inflicted by the AIA. The small inventor community must be encouraged to invent and discover, thereby enriching us all. The march of the large tech corporations to kill competition must also be halted.

  3. Anon March 9, 2017 1:32 pm

    Well stated – weaves a common narrative long heard in some camps as to the machinations afoot.

  4. Bluejay March 9, 2017 2:42 pm

    Agree 100%.

  5. Paul Morinville March 9, 2017 3:12 pm

    Completely agree. Thank you for writing it. Small inventor have absolutely been wiped out as their patents can no longer be enforced. Investors know this and venture capital is fleeing to China. While it may seem to only a few birds, the entire flock is in a tail spin and splatting on the pavement.

  6. Paul Cole March 9, 2017 4:20 pm

    The great thing we can do as a profession is to appreciate that the improvement in patent quality called for by Michelle Lee lies mainly in our hands, and that we should ensure that the quality of the claims and descriptions that we draft are fit to present to a court if the need arises.

    Those who have been involved in litigation will appreciate the intensity of the spotlight under which the specification is placed, the abundant resources that will be available for pointing out weaknesses and the need for preparation to ensure that the patent will stand up in court. In particular, over-broad and poorly defined main independent claims may fail to impress the court, and once that happens credibility is likely to be lost and important and otherwise defendable positions may become buried in the avalanche. Although the decision in Ariosa v Sequenom is in my opinion clearly wrong, a little more detail in the main independent claims could have made them much harder to attach without giving anything significant away. The broadest claim we can get past the examiner on a Friday afternoon, tempting as it is, may not be the best for the client.

  7. Eric Berend March 10, 2017 6:42 pm

    @ 6. ‘Paul Cole’:

    I do not agree with you in this, not by a single iota. To make reference to a standard promulgated as deceptive anti-patent propaganda by a captive agent of Google, Inc. – the most notorious pirate in ‘gold-plated’ SiliCON Valley – is to accept the enemy on their terms, on a fighting field of their choice.

    NO, SIR – and I challenge you, right here and now, to present some sort of proof, that you are NOT acting in agency with ‘efficient infringers’. Your phony preening as to “may not be the best for the client”, does little to disguise the reality of your ‘code words’: terms consistently utilized to disadvantage and denigrate actual inventors; whose ingenuity supplies the very raison d’etre for the patent form of intellectual property protection in the U.S. Constitution; and, the 200-year plus jurisprudence of its laws, as well.

    As to the implied justification for your oh-so-pious seeming concern, isn’t that what we had U.S. Courts and jurisprudence established for? Shouldn’t a vague or weakly defined claim fail normal scrutiny, under any such process? But NPE’s still exist; independent inventors have fled the scene; and, instead of the administrative procedures set up as substitutes for judicial due process actually screening out so-called ‘weak’ or ‘low quality’ patents, these tribunals are utilized primarily to attack the best and highest quality patents which hold substantial scope of protection rights claimed in particular industries – and the hell with any other harm suffered by any other industry or the overall U.S. economic system, no matter how massive or costly.

    This is a war – an all out fight for the very survival of this essential component, of the economy of the United States of America. The patent practitioner community has been slow to recognize and respond to this reality. In war, it is axiomatic that it is not necessary for the side which is attacked, to have sought the conflict, in the first place; and, in any case, has little choice but to either suffer the consequences unreservedly or defend itself.

    Before I ever invented, as my father before me, I was a milnerd. I studied military history; strategy and tactics, the history of many battles, and the psychology of approaches to armed conflict as practiced by many different cultures worldwide.

    This whole contention over property rights of patents, in particular, has been raised (or lowered depending upon your point of view) to a war: there is threat to the very survival of the community that is under attack; the opponents refuse to respect existing conventions as to conflict engagement; and, these opponents refuse to cease with having gained some small curtailment of or harm to our Constitutionally legitimate property interest: having amply demonstrated their determination; to orchestrate a concerted effort engaging stations of intellectual authority (e.g. Lemley, et al), to sustain a prolonged effort over years and now entering decades (i.e., the ‘K Street’ beat every single year for at least 10 years) , and to deceive on a massive and widely public scale (e.g., spending millions to promulgate the ‘patent troll’ canard, decrying patents to the software and smartphone user communities while simultaneously suing over alleged infringement of its own patents); with a singular goal of causing the most destruction possible to patent property protection.

    In such a circumstance, anyone who purports to have enough intelligence to understand this issue comprehensively, is fooling themselves if they cannot admit that this truly is; and has been been for some time approaching a decade at least; an all-out war, for the very survival of U.S. patents as a viable instrument of their original intent.

    As an attorney of some intelligence and persistent participation, over quite some time in this forum, it is difficult to to believe that this concept is unknown or unrecognizable to you. Time to own up, Paul. Just which side are you on, here, anyway?

  8. Anon March 11, 2017 8:24 am

    Eric,

    Paul’s position – to give him the benefit of a doubt – is a plausible one, in that we as client advocates should always be striving to have a “best practices” mindset.

    To give you the benefit of a doubt in return though, Paul’s apparent “appeasement” attitude is indeed misplaced, if we take his writing at face value and look at it as some type of call to NOT pay attention to what is going on.

    On this second point, I have repeatedly put to Paul that at least his admonitions are mistimed, and at middle they will be ineffective to combat what needs to be combatted, and at most – like you here – call into question just which side is he supporting.

    The bottom line here is that while a “best practices” advice is always sage – in and of itself – such advice may not touch on the actual issue that needs to be highlighted and pursued.

    To that end, Mr. Cole, please be aware that any responses challenging you and your posts are NOT challenging what you are putting forth as “best practices.” Those practices and advice as to such practices remain good advice. But the appearance (if not more) comes across as goal-post moving and kicking up dust on what many consider a much more important focal point.

    Please do not obscure the focal good point with (even solid) advice not germane to that focal point.

  9. Anon March 11, 2017 9:21 am

    oops on last sentence, “focal good point ==> “good focal point

  10. Paul Cole March 11, 2017 9:34 am

    @ Eric Berend

    Building on your study of military history, I am not on the bridge of the patent system battleship deciding on when to engage in battle and steering the ship towards the enemy. Our patent prosecution profession crews the No 2 gun turret, and it is our job to prepare the shells for firing, ensure that they are properly primed and not duds, and fire them as directed at an enemy ship. All that we can do for overall success is to perform the tasks allocated to us as individuals as well as possible, leaving strategy to those on the bridge but honing our skill and tactics to achieve the best possible results.

    As you will recall, HMS Hood, pride of the Royal Navy, was sunk by a single lucky hit on the magazine. That was by a well aimed, live, shell. But what if it had been a dud?

    In Mayo v Prometheus the patent was a dud. The features of novelty were defined merely in terms of information and as such did not fall into any of the four eligible categories of Section 101. The remaining features were old. In essence the Supreme Court found that there was nothing novel in a patent-eligible category, and an alert EPO examination or opposition division would have made precisely the same finding.

    Subsequently applicants have added to such a claim the steps of adjusting the dose and administering the adjusted dose to the patient, these being human activities falling within the “process” category. There have been a number of issued patents with claims of this kind since the Mayo decision was handed down.

    I will leave you to get the millions for advertising and the pocket-full of politicians. In the meantime I will, as I have done all my professional life, strive to learn from the past and draft better specifications.

  11. Fred Sinder March 11, 2017 11:08 am

    Wow!

    Thank you all for one of the few truly insightful discussions on this critical to our future topic.

    I started wanting to highly complement the main article, and having now read the comments following, have to do the same for the discussion.

    There’s immense value in all sides presented here, the value being in how they contribute and lead, one hopes, to a final answer.

    While I’m one of those forever doomed to see all sides, the cure for that is to finally decide which way to bet. If you think money on the line (as a model for the success of our world and clients), you’ll find yourself giving a more honest answer.

    So far, if one wants to hold on to their money, and maybe even increase it, it seems to me the betting must go with Brother Van Dyke. Having written that, I often have problems with court decisions that appear to be the result of badly described and claimed patented inventions, so am sympathetic to the other side. Still, those badly described and claimed patented inventions are likely not so much the cause of the problem as merely unfortunate tools used to carry out the purposes described by Brother Van Dyke.

    Thank you for your time reading.

    Fred

  12. step back March 11, 2017 12:05 pm

    @11 Fred

    This is not exactly a fair and balanced discussion.
    I would classify it more in terms of a …
    Silence of the Lambs“.

    The solo and small sized American inventors who are being taken out to slaughter (lambs) do not have the time, money or other resources to do battle with the multi-national forces who wish to put an end to American innovation.

    To focus the blame on a single SV company would be foolish. There are many all around the world who would dance in the streets once the US Patent Office metaphorically goes up in flames. Perhaps, perhaps, they are already dancing in Red Square.

    For too long, “Yankee ingenuity” has dominated the global innovation market. However, thanks to well planted “intellectual” articles by Quisling professors and buy-ins by clueless judicial accomplices, America is returning to her pre-industrial grand state of being a third world agricultural entity. (Great again.)

    The torches have already been lit at the foot of the witch burn pyre. The inventor hating mobs are already gathering in the streets with pitchforks and picks looking for any trollish or “unnatural” inklings of Frankensteinian doings, be it in the nature-tampering bio-genetic arts or in the mind boggling “generic” computer arts.

    The Supreme Court merely lit the matches in Alice and Mayo. The mobs then took over to pour gasoline onto the flames. Fear, loathing and disdain for inventors is not limited to the top echelons of the judiciary. It’s everywhere. Open your eyes. (Or maybe not. You don’t want to see who is now tied to the witch burning stake.)

    https://patentu.blogspot.com/2017/03/loath-and-disdain-cause-inventor-dared.html

  13. Paul Cole March 11, 2017 2:11 pm

    @ Step Back

    It is difficult to classify your last post as more than profoundly damaging hysterical clap-trap. It damages the patent system as much, if not more, than the phenomena to which you object. My interest in US history goes back many years. But I recognize nothing in the patentu blogspot link beyond counter-factual populist nonsense and offensive imagery.

    By attention to detail, reason and careful argument we can find ways for our clients out of many of the current problems. But saying that small inventors are being “taken out to slaughter” contributes nothing positive to the debate, accentuates the problems that we face, and needlessly discourages the support that small investors and SMEs need.

    With the utmost regret, SHAME ON YOUR LAST COMMENT!

  14. Anon March 11, 2017 2:35 pm

    Mr. Cole,

    You misspeak US patent law with your comment of:

    The features of novelty…did not fall into any of the four eligible categories of Section 101

    Section 101 is not applied to features of a claim, let alone features of novelty within a claim.

    Section 101 applies to the claim as a whole.

    Beware friendly fire. It will kill you just as assuredly as enemy fire.

  15. Paul Cole March 11, 2017 4:14 pm

    In Ariosa v Sequenom I contributed a personal amicus brief to the Federal Circuit and was lead author for the CIPA and EPI amicus briefs. Justice Breyer in Mayo went straight for the feature of novelty which was expressed in informational terms, just as I have said. Then he refused to add the other known features to that feature, just as I have said. Believe me, I have analyzed that case!

  16. Paul Cole March 11, 2017 4:22 pm

    Still @ Anon

    I think you learn quite a lot from considering how these cases can be fitted into one of the four eligible categories.

    Fitting the Prometheus method into the process category is instructive. The first two features are clearly of an eligible character, but won’t do because they are old and for Section 101 as well as 102 you need novelty. The second two features are the upper and lower limits and add nothing eligible because they are not in themselves transformative. The ordered combination also lacked anything new and transformative. So as I said in an earlier posting the claim was a dud.

    Add the feature of administering an adjusted dose to a patient and the whole picture changes.. But that was not what the claim said.

  17. Anon March 11, 2017 4:43 pm

    …for section 101 you need Novelty…

    No.
    You.
    Don’t.

    That is conflating novelty and statutory subject matter.

    Just because that may be what the Supreme Court would like the law to be, does not make it so.

  18. Night Writer March 11, 2017 8:50 pm

    @7 Eric: I agree that it is a fight. This isn’t the first time something like this has happened. Just look at anti-trust or labor law. The SCOTUS bends the statutes to suite what the corporations say they need to survive and compete in an international climate. And all the money to K Street and Congress from Google and the others helps as well.

    My own personal belief is that we have no hope of winning the war in the short to medium term (30 years).

    The patent system will remain as long as it can be warped into something that suits Google. And, note too that the new trade secret laws are ominous in that they provide a way for Google to take everything and lock down their employees.

    It is odd that there are never any Google employees that get on here and push back. Not one. Must be a corporate policy that they can’t respond to the criticism. Should give people an idea of how much of a war this really is.

  19. step back March 11, 2017 11:47 pm

    By attention to detail, reason and careful argument we can find ways for our clients

    @13 Sir Neville Chamberlain Cole:
    Reason and argument?
    Negotiate?
    Peace in our time?

    Are you serious old chap?

    Don’t you realize the furnaces are up and running?
    They’re called PTAB death squads.

    Their only complaint over there on the inventor cleansing side is that the PGR sessions eliminate only one inventor at time.
    If they could perfect a mass production process that eradicates hundreds of inventors at a time they would. It’s only a matter of time.

    History?
    You want to talk history?

    According to the non-alternative facts:
    Back in the day, inventions were kept secret until a full quid pro quo bargain could be struck.
    No bargain, no disclosure. The inventor gets to keep his “property”.
    The deal was always for 17 years from date of issue.
    There were no post-grant kangaroo courts for take back of legally granted property rights.
    Injunctions against infringers was a given. That’s what “exclusive” rights means. Read the US Constitution.
    Discoverers and inventors were entitled to patents.
    Willful (efficient) infringement was a serious offense.
    35 USC 101 meant what it said. ANY new and useful …
    One had to show teaching, motivation, suggestion (TMS) before coming up with spurious theories of “obviousness”.

    Yes. we’ve come a long way baby.
    Smoke from furnace row now fills the skies.
    And you want to talk about careful reason and patient argument?

    https://patentu.blogspot.com/2017/02/the-post-modern-inquisition.html

  20. step back March 12, 2017 12:06 am

    Tell me Clarisse. What were the lambs doing? Could you save them?

    https://www.youtube.com/watch?v=zeKqD2g9-ic

  21. Paul Cole March 12, 2017 3:31 am

    @ Anon 17

    With the utmost respect, Section 101 reads:

    Whoever invents or discovers any NEW and useful process, machine, manufacture, or composition of matter, or any NEW and useful improvement thereof …

    Novelty is inescapably part of Section 101 eligibility even though it is dealt with separately in Section 102. Likewise the UK Statute of Monopolies, 1624 on which Section 101 is based refers to “any manner of NEW manufacture.”

    You may not like Justice Breyer’s analysis, but it is essentially what I have said in previous posts.

    And using his analysis points to a valuable way around the effects of Section 101 as currently applied. Essential novel features should be defined in ways such that they clearly count towards eligibility. New process features should be defined in ways that are transformative steps carried out by the hand of man, e.g. adjusting the dose of a medicament and administering the adjusted dose to a patient. New machine elements should be those that help to bring about a new result, and that result should be clearly identified at least in the description. New manufactures should be defined in ways that encapsulate their new form, new name and new utility (see Hartranft as quoted in Chakrabarty). The components of a new composition of matter should be clearly defined as a kit, mixture or compound synthesized by the hand of man.

    As with all problems, when you know what you have to do to solve them, and what you are looking for, it is not so difficult. As I have said, post-Mayo patentees have added a dosage adjustment and administration step and that has enabled patenting to continue in this field.

    It is much more positive to look for answers and use them than to adopt the passive moaning approach of posts 5, 12, 18 and 19.

  22. Anon March 12, 2017 9:58 am

    “Novelty is inescapably part of Section 101 eligibility even though it is dealt with separately in Section 102”

    Then it is dealt with in 102 – NOT 101.

    Also, Mr.Cole, the word “new” in 101 is explained in the Congressional record for the Act of 1952.

    It most definitely is NOT what it being attempted to be “scrivened” by the Supreme Court.

  23. Anon March 12, 2017 11:31 am

    Further, the phrase is not “new,” but is rather “new and useful” which speaks more to the utility requirement of 101.

    Sorry Mr. Cole, but you do sound more like an apologist for the Court scrivening when you take such a misguided view of the single word and what you attempt to do is nothing more than conflating a Congressionally separated section (from what was once a [pre-1952] single paragraph.

    You are just not following your own advice of “By attention to detail, reason and careful argument

  24. step back March 12, 2017 11:52 am

    Many people miscomprehend the word “invent”, among them are Messr. Cole and ‘Bacus Brain Breyer.

    One can invent (invent or discover) without being the first in the world or in one’s country to have done so.

    Imagine a very clever bloke living on an island with limited communication. One day he “discovers” that he can compress air in a long tube piston to a very high temperature such that it ignites some kindling at the bottom.

    Has he invented and discovered something “useful”?
    Yes.

    Alas he is unaware that he was not the first to do so. It is is inventive but not “new” in the 101 sense.

    http://www.popsci.com/science/article/2010-03/how-start-fire-just-compressed-air

  25. step back March 12, 2017 11:55 am

    Of course, ‘Bacus Brain Breyer and Creationalist Cole will insist that it is not “eligible” because it is directed to the abstract idea of heating something until it catches fire. Upon review in a fair and unbiased fashion they will find that it fails to provide that elusive “something more”.

  26. step back March 12, 2017 11:58 am

    Also did we forget to mention that it is no more than a “natural” phenomenon?

    Only them who employ supernatural phenomenon are entitled to patents in the universe inhabited by ‘Bacus Brain Breyer, Clarence the Clown and Creationalist Cole. 😉

  27. Paul Cole March 12, 2017 12:37 pm

    @ Anon

    When I first read Mayo I definitely did so from your standpoint, taking the view that Section 101 was a qualitative subject-matter gateway, and novelty, obviousness etc were the province of the later sections.

    I have recently been restudying the whole topic for a panel discussion in California later this month, and have changed my view.

    I have tried to arrive at a Justice Breyer-eye view of the case to understand what was in his mind when he wrote his opinion.

    His instincts would have been to cut straight to the chase and to look at the last two claimed features which were the upper and lower limits because these were where the novelty was said to lie. However, they were simply items of information with no associated human activity, so that he understandably concluded that they did not contribute any subject matter within an eligible category.

    He then turned to the treatment and analysis features and concluded that they added nothing relevant because they were old.

    He went on to consider the claimed features as an ordered combination, and concluded that they contained nothing beyond the old features and the ineligible features, there being no new combined result. Since the claim did not go so far as to specify adjusting the dose, it could be argued that he was fully entitled to end where he did.

    That was his thought pattern as best I can reconstruct it.

    I don’t have the 1952 congressional record to hand and would be interested to learn what it had to say that was of relevance. But since Section 101 refers to “invention or discovery” and uses the word ‘new” twice it is impossible to avoid the conclusion that novelty is of statutory relevance. When construing a statute you cannot avoid its actual wording. The argument that subject matter is patent-eligible as a process when it has no feature that both clearly relates to the process category and is novel is not attractive.

    The moral is that we should ensure that our claims have main features of novelty that clearly link to one of the eligible subject-matter categories.

    I should reiterate that these points were not immediately apparent to me but only became apparent after much re-reading of the decisions and based on the view that the court should first look at compliance with an eligible category before going through the Mayo/Alice rigmarole. When I looked at the case from that standpoint it became apparent that that is in effect what Justice Breyer did.

  28. step back March 12, 2017 1:40 pm

    “He then … concluded that they added nothing relevant because they were old.”

    Wait a minute.
    He is old.
    Ergo he contributes nothing relevant.

  29. Paul Cole March 12, 2017 1:56 pm

    @ 28

    Amusement value *****

  30. Anon March 12, 2017 2:53 pm

    What Justice Breyer did should not be confused with understanding the actual law as written by Congress without the ultra vires re-writing (and carefully noted that such is not interpretation), Mr. Cole.

    As I said, you should heed your own advice of “By attention to detail, reason and careful argument

  31. Anon March 12, 2017 2:55 pm

    …and yet again, the actual wording used twice was the phrase “new and useful.”

    This is just NOT the same as “new” as you strain to make it so.

  32. Paul Cole March 12, 2017 4:59 pm

    Anon @ 30, 31

    Your invitation to second-guess the interpretation of Srction 101 by the Supreme Court is respectfully decline,

    With reference to 31 “new and useful” makes the distinct requirements of novelty + utility.

  33. Anon March 12, 2017 5:13 pm

    It is not an “interpretation,” Mr. Cole.

    Novelty is not adhered to under 101.

    That would make 102 redundant.

    You may choose to “respectfully decline” all that you want, but if you are going to do so, kindly refrain from telling other people to “by attention to detail, reason and careful argument” – because you are “respectfully declining” to do so yourself.

  34. step back March 12, 2017 5:24 pm

    @32

    As repeated here many times and refused recognition by creationists such as yourself and your alter ego (Ed the Ned), the SCOTUS do not “interpret” section 101. Instead they add on a witch detection test that hath never been there before.

    Their addition is in contravention to the very words of section 101 which says:

    “35 U.S.C. 101 Inventions patentable.
    Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. [meaning; and not subject to added-on restrictions by the courts because this is a wide welcome mat at the entrance-way into the patent system]

    It has been understood for hundreds of years that this quadrant of the universe is composed of a finite number of atomic elements (and them of stable combinations of neutrons, protons, electrons).

    Almost no inventor (I said “almost”, Professor Seaborg) is going to go about “creating” new ones. They are going to be rearranging “old” parts.

    The mere fact that almost every invention is composed of “old” parts is irrelevant to novelty. It is the entirety of the combination that is tested for novelty and usefulness.

    That you and old foggy bottoms Breyer continue to scoff at these fundamentals of patent law simply indicates that neither of you has ant respect for inventors and discoverers (also known as the lauded “Whoevers” of section 101).

    You keep coaching others to be “careful”.
    I don’t see you following your own advice.
    I guess if I took enough micro-doses of LSD and other hallucinates, I too might be able to see the universe through the poet-laureate eyes of the Breyer as opposed to the view point of skilled artisans trained in the hard sciences.

    https://patentu.blogspot.com/2017/03/what-do-trump-and-supreme-court-have-in.html

  35. step back March 12, 2017 5:34 pm

    Dissection is for English majors, not for the appreciators of the inventive arts.

    https://www.youtube.com/watch?v=yXu-6nMUEew

  36. Anon March 12, 2017 7:36 pm

    Thank you step back – dare I say that was poetic, even as it was on point.

  37. Paul Cole March 13, 2017 5:43 am

    @ 35

    The problem with your argument is that Justice Thomas WAS an English major before he studied law. Justice Breyer majored in philosophy. Neither of them had prior skill in the inventive arts.

  38. Night Writer March 13, 2017 8:37 am

    @34 step back: good post.

  39. Anon March 13, 2017 9:26 am

    Paul @ 37,

    That actually reinforces his point (the problem is not patent law, but is in myopic (and lacking) views of the Justices).

    It is ok to “study” their writings and views, as long as you don’t lose your way doing so – which from your comments here, you apparently have done.

  40. step back March 13, 2017 11:12 am

    @37 writes:
    Justice Breyer majored in philosophy.

    One’s major in college hopefully is not the full measure of a person’s lifetime learning and comprehension of how the universe is put together.

    Hopefully, though, most readers here do understand that “science” is for the most part an antithesis of “philosophy”.

    Modern science rejects the belief of philosophers that they can simply sit in their ivory towers and by pure thought alone, derive an understanding of how the universe is put together.

    Instead, science requires the setting forth of a falsifiable hypothesis and relentless testing of that hypothesis with real world experiments.

    Nature does not come down from the mountain top to pass off to her favorite creatures (the lightly haired primates) “her” laws (laws “of nature”). Thus there are no laws of nature. There are only the currently vogue theories of man.

    Man is not separate and apart from nature. Thus there cannot be a separation between what man does and what is found on this planet and considered to be something not influenced by man. We live in the Anthropocene. Notions of “natural phenomenon” no longer make sense. (It is we who drove the Woolly Mammoth to extinction and turned the Sahara into a desert.)

    The Justices apparently operate from a basis that does not withstand scientific scrutiny.

    https://www.pinterest.com/pin/238479742741263360/

  41. Night Writer March 13, 2017 11:18 am

    Bryer must have forgotten all the philosophers after the 11th century and before the 1st century.

    The man works from medieval thinking.

  42. Paul Cole March 13, 2017 11:45 am

    @41

    So what if Justice Breyer (he would definitely appreciate having his name spelled right) does work from medieval thinking? If he is judging your case, you have two alternatives, firstly (a) to adjust to his way of thinking and work within it, or (b) loose.

    And as I have suggested, if you DO work from his way of thinking you might just find solutions which get your clients the protection that they require. I believe I have found helpful solutions that will benefit clients in a lot of cases and have been at pains to expound them.

  43. Paul Cole March 13, 2017 11:50 am

    Incidentally, you will see from my last posting, and with sadness at the loss of Douglas Adams, that it is the answer to the meaning of life, the universe and everything.

  44. Anon March 13, 2017 12:00 pm

    Mr. Cole,

    The fact that you only see two ways is directly tied to the danger of your (false) positions.

    You omit (at least) one clear alternative: advocate to put a stop to the nonsense.

    I will cut you some slack for advocating “best methods,” but you cross the line (and dangerously so) with your type of advocating of “just take it.”

    Here in the US, an attorney’s oath requires more than mere fealty to the Supreme Court, and the type of mindlessness that you advocate in that regard tarnishes your otherwise fine reputation.

  45. Paul Cole March 13, 2017 12:08 pm

    @ Anon

    I don’t deprecate your advocacy for the long term, but as I have said in earlier comments I am not on the battleship bridge but in the No 2 gun turret, and my concern is that the next shell we fire is live and not a dud. So I think we share the same concerns but from different standpoints.

  46. step back March 13, 2017 12:42 pm

    42?

    In what base of counting? (How many digits do your aliens possess on each appendage and how many appendages per alien?)

  47. staff March 13, 2017 2:15 pm

    ‘Unfortunately, due to the actions of some of the large corporations, the value of these patent assets has diminished greatly over the past decade, along with the survival of many small companies relying on those patents for protection against rampant copying. ‘

    ‘rampant copying’…otherwise known as theft.

    For inventors and many small entities the patent system is worse than that. It is now too hard, expensive and slow for us to get and enforce our patents. We no longer have a fair chance at commercializing, or fairly benefiting from our inventions -if at all. Large multinational infringers have so bamboozled or commandeered some in government that they can’t tell the robbers from the robbed.

    For our position and the changes we advocate (the rest of the truth) to truly reform the patent system, or to join our effort, please visit us at https://aminventorsforjustice.wordpress.com
    or, contact us at aifj@mail.com

  48. Anon March 13, 2017 2:45 pm

    Mr Cole @ 46,

    That amounts to “I am just following orders.”

    Since at least Viet Nam (and especially in light of your own advice here), that mind set just won’t do.

    I don’t accept it, and a person of your stature should not either.

  49. Raymond Van Dyke May 2, 2017 3:18 pm

    From my perspective, the ardent discussion above obviously engenders strong feelings about the underpinnings of the “American” patent system. A my article notes, I harbor great fears that our patent system is being dismantled bit by bit. Years ago the small inventor community was active and vocal – preventing corporate shenanigans. And the Supreme Court waxed and waned through history on patents, although the creation of the Federal Circuit was the result of the Court despising patents – and several Justices still do. The small inventor community now is too disorganized to block the lobbyists afoot in DC.

    We have come to a fork in the proverbial road. To the right is respect for innovation and the innovator by properly rewarding them for their creations – whether individuals, small companies or large corporations. To the left is the continuation of the course we are on – the ongoing denigration of innovators and destruction of the patent system by lobbyists and the Patent Office itself, e.g., the death squads of the PTAB. Even the Wright Brothers are now condemned as nothing more than trolls!

    Modern innovation is increasingly abstract – that is the way it is. We do not live in the Industrial Age anymore, which was governed by physical things. Innovation now, such as in Ariosa, is much more advanced and nuanced. Nonetheless, where the legislators fail to curtail patent rights, the Supreme Court has stepped right in to fill that gap, blocking whole swaths of innovation – critical innovation that America excels at!

    We must all do what we can to stem this attack, fight for the protection of innovation, and encourage others to assist in this effort. I am trying to do my part, but all of this is damn discouraging to be sure!

    Keep up the good fight!

    Ray

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