Thomas Massie: America’s Inventor Congressman

By Gene Quinn
July 5, 2017

Congressman Thomas Massie (R-KY)

Congressman Thomas Massie (R-KY)

Congressman Thomas Massie (R-KY) never intended to run for office or become a politician when he was majoring in electrical and mechanical engineering at the Massachusetts Institute of Technology (MIT). “I look forward to returning to my prior life of inventing and working on my farm,” Massie told me via telephone in an extended interview that took place on Wednesday, June 28, 2017. “I look at this as my service.”

Inventors and others who believe in the importance of patents to the U.S. economy no doubt hope that Congressman Massie, himself an inventor with two dozen U.S. patents to his credit, is in no great rush to return to his entrepreneurial life – running his own company built on the inventions he made. There is no doubt that Congressman Massie is a steadfast ally in the never-ending battle over the future of the U.S. patent system. And make no mistake – it is a never-ending battle.

“I can tell you, every day Congress is in session there are lobbyists here trying to weaken the patent system,” Massie explained.

In Massie’s words, those companies that come to Capitol Hill and lobby to weaken the patent system want to get into new fields, but the problem is they didn’t invent in those fields, so they face problems. Patent problems. A lot of those companies want to become automobile manufacturers, or cell phone manufacturers, or they want to write software for operating systems, but they didn’t invent in those areas and they don’t own the patents that have historically been the touchstone of innovation ownership. “They’d love to just come in and start playing in those fields and start using their size and scale as an advantage, and to them, patents look like a hindrance,” Massie explained. “They are here in Congress looking to weaken patents and they are not just interested in weakening patents issued in the future, they are looking to weaken all patents.”

The distinction Massie draws about the interest in weakening all patents is an important one. So frequently those that lobby for rules and laws that weaken patents claim to be doing so simply as part of an effort to ensure greater quality. Massie sees reform efforts differently though.

“Reform is not about strengthening the patent granting system, but about making it harder for patent owners to assert patents to protect their rights,” Massie said emphatically. “They didn’t read the Constitution and come to say they have a better way more in line with what the Founding Fathers had in mind. They just want all the patents to be public domain today. It is very short sighted to attack the patent system in this way.”

Unfortunately, it is easy to understand, at least from a mechanical/process perspective, how it is that those companies who would prefer the demise of the patent system seem to continually get their way on Capitol Hill. “There is a certain critical size companies reach before they hire lobbyists, which means only the big companies are represented on Capitol Hill,” Massie said. “Patents help the little guy, whether you are a one person company or a company with 10,000 employees, you have the same rights. That is repulsive to the company with 10,000 employees.”

Inventors will Invent

One of the well-worn talking points used by those lobbying against a strong patent system relates in one way or another to be the belief that inventors will invent regardless of whether they can obtain a patent because that is what inventors do. Massie disagrees.

“I’m often amused at some of the academics that talk about intellectual property,” Massie said. “They talk about inventions happening in the same vigor even if inventors are not compensated with a patent, and that notion is ridiculous. You have to make a living somehow. People will go into the field of invention if it is a lucrative field and they won’t if it isn’t.”

Massie is, of course, correct. At some point in time people need to feed their families, put a roof over their head and pay bills in the real world. If inventing cannot be a means to that end it will never be anything more than a hobby.

“Don’t be surprised if people don’t want to go into [inventing] if the reward system or compensation mechanism are taken away,” Massie said emphatically.

Congressman Massie didn’t stop; he was on a roll. “We wring our hands at the notion we are falling behind in science, engineering, technology and math compared to other countries,” Massie said.” The answer is simple: make inventing a lucrative field of endeavor for children to aspire to be a part of the industry. More importantly, children need role models. “If you take away the compensation for their heroes – their role models – if you impoverish their role models, how are they role models any more?”

Of course, even if inventors would work for free, “who would invest in the idea,” Massie asked. “Ideas are expensive to reduce to practice. There are otherwise great ideas that will never be reduced to practice if the investors who might invest can’t see a way to recoup their investment.” Eventually people will lose the interest in creating anything new.

 

Next Generation Better Off?

Massie would tell me that America was founded on rugged individualism, where you own the fruits of your labor. “Some people believe you didn’t build that and your idea doesn’t belong to you, but that notion is contradicted by the Constitution, Massie explained. “The Constitution says ‘exclusive right’ which means that idea belongs to you, not to the community… Private ownership is what sets us apart from countries that have come before us. That whole system set up by our Founding Fathers a couple hundred years ago has served us well and is still not replicated over seas. So as long as we don’t screw it up I think we are going to be competitive overseas.”

But will the next generation be better off than the last generation? Will we see our children have reduced economic opportunity? Those are questions that Massie says he hears frequently when he speaks with concerned Americans.

“When I get that question I think it is ridiculous,” Massie explained. “Of course the next generation will be better off, but it won’t be because of Washington, DC, it will be because of the inventors who come up with life saving devices, labor saving devices, and we won’t forget those that were made 5 years ago, 10 years ago, we will build on those. So the next generation will be better off because of inventors as long as politicians don’t screw it up.”

Inventors are Not Trolls

“Something that I find really offensive is this notion that inventors who don’t manufacture their own inventions are trolls,” Massie told me.

It was at this point of our conversation that Congressman Massie really heated up and became exponentially more passionate (if that is possible for someone who is already thoroughly engaged in these issues). Massie explained:

Somehow inventors who don’t manufacture are on a lower moral footing than other careers. Inventors and engineers are just out to extract rent from other people if they don’t manufacture their ideas. That is ludicrous on several levels. Does an author have to have a printing press and a bookstore to have a legitimate career? No, that is ludicrous, but somehow lobbyists have been able to sell this idea that if you are an inventor and you don’t subsequently try and build a factory and distribution center to get your invention out there you are somehow not a legitimate member of society. That I find very offensive, and dangerous too, if our society is going to be an information society.

If we are creating this notion that ideas in and of themselves do not have value we are in trouble because our country has already decided to move from a manufacturing economy to an information society. Those two things are incongruous and are setting us up for failure.

Massie couldn’t be more correct. 70% of early U.S. inventors did not even graduate high school. Indeed, the founding fathers purposefully set up a system that had one particularly unique attribute: Unlike the British Patent System, the U.S. patent system was set up to be cheap enough for everyone to afford the fees, which meant that anyone could be an inventor. Clearly, the founding fathers knew that the patent system they were purposefully creating to be affordable enough to be used by average citizens would lead to individuals obtaining patents on their inventions. The Founding Fathers also would have known that those average citizen inventors would not have the means to be able to manufacture, but would instead license those patent rights to others. Therefore, the U.S. patent system was initially set up to purposefully create a licensing regime whereby inventors would invent and companies that manufacture and distribute would focus on what they did best. Fast-forward to today and suddenly patents are only pro-competitive if you are manufacturer. Massie is absolutely right to notice and call-out the incongruity.

 

What can inventors and supporters of the patent system do?

According to Congressman Massie, the best (and cheapest) way to communicate with your Member of Congress is to actually pick up a phone and call. “I would not write a letter and I would not send an e-mail,” Massie told me. “Fewer and fewer people think to pick up the phone and make a phone call, so it is a channel where there is not a lot of communication.”

Massie pointed out that bots can send thousands of e-mails with similar scripts, and letters are frequently nothing more than a form letter that gets printed and sent by hundreds or thousands of people to hundreds of Members Offices. “My Congressional Office receives ten phone calls a day,” Massie said. “A human has to respond when someone calls, so that makes it an excellent medium for contacting your Member of Congress.”

Increasingly, inventors and average citizens are taking time to get more involved and making the trek to Washington, DC. This, however, is not without substantial cost, and according to Congressman Massie is probably not the best return on your investment.

“If you really want to get the attention of the Congressman go to one of their fundraisers,” Massie said. “I don’t care whether you are ideologically aligned on social or fiscal issues, but if patents really matter to you do what high dollar lobbyists do, which is to go to one of their fundraisers. I watch people spend $5,000 to go on a trip to DC to meet with someone on the staff when they could have meet with the Congressman themselves back in the district for much less and received a much larger portion of their attention.”

Massie went on to explain that during the 113th Congress the Innovation Act passed in the House, which would have been a disaster. It was defeated in the Senate, but came back in the House during the 114th Congress, but this time it was defeated in the House. “They didn’t have the element of surprise in the last Congress, and we were able to enlist universities and VCs. They were able to mobilize and stop the weakening of our patent system,” Massie explained. “ I talked until I was blue in my face to my colleagues, but it was because I talked with people on the outside and they were able to talk to their Congressman. That is how these battles are won.”

So the fight is never over, but inventors and other supporters of a vibrant patent system have a strong and steadfast ally in Congressman Thomas Massie.

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 40 Comments comments. Join the discussion.

  1. EG July 5, 2017 9:45 am

    Hey Gene,

    Here, here, for Congressman Massie! I wish he was mine but he’s at least in neighboring Bluegrass State (I’m in the Buckeye State to the north).

  2. Tesia Thomas July 5, 2017 9:58 am

    What EG said.
    I’m also from the Buckeye State.
    I think we should elect more Congress-people like Massie.

    As far as the whole “inventors are not trolls.” YES!
    I think every inventor would love to be able to manufacture his/her technology; however, doing so initially is so expensive. Investors don’t want to fund manufacturing set up (Millions of dollars) before the product has a lot of sales.

    And, how do you get sales without being able to make product?
    Typical Catch 22.

    It’s obvious that companies hate that they ultimately become less innovative. That is the fate of nearly every large company.
    It’s akin to ‘teaching an old dog new tricks.’
    Eventually they optimize and streamline what they currently make which leads to producing high quality, quickly distributed, outdated products.

    Everything has a term. These companies fear death.
    What they’re doing is akin to killing healthy, promising youth to feed the old and sick. Killing the future.

  3. angry dude July 5, 2017 11:10 am

    I wish that dude was on the Scotus panel for the last 10 years, instead of being a lowly congress critter (one of 435)
    but thanks to congressman anyway for speaking out the truth

  4. Bluejay July 5, 2017 11:24 am

    Typo in second paragraph of second subhead, “filed (field) of invention.’

    Love this guy. Should be Director of USPTO,

  5. Gene Quinn July 5, 2017 11:47 am

    Thanks Bluejay. Typo corrected. Cheers.

  6. Bemused July 5, 2017 12:42 pm

    Bluejay@4: Amen, brother.

  7. Invention Rights July 5, 2017 1:31 pm

    There are also a fair number of inventors that have attempted to commercialize their inventions, but failed because the incumbents simply ignored the patents. This is a safe play since they know inventors don’t have 8 years and $15M to enforce their patents. And even if the inventor survives and prevails, the infringer is not enjoined because the inventor could not prove irreparable harm since he was unsuccessful commercializing his invention. Nevermind that the infringing alternative was the main impediment to commercialization.

    Yes, a licensing business model is proper. But the policymakers (in all three branches) have blocked any alternative. It is not possible to build a company that relies on the phantom of exclusive patent rights during the start-up phase. Inventors are expected to just keep their heads down and churn out inventions and thank their masters if they get a 0.25% royalty or a paycheck. The incumbents must be protected from creative and ambitious start-ups.

  8. Ternary July 5, 2017 3:34 pm

    Excellent analysis. When you create sufficient barriers that disincentivize inventors they will eventually stop inventing. A lesson that many countries (especially in Europe) have learned the hard way and have trouble reversing. We now seem to follow that same path, no matter how many people warn about the dire consequences.

    I started inventing (reducing an idea to practice) because it seemed worthwhile to get a patent. As any inventor knows: an idea is merely the start of an invention. A patent no longer looks like an incentive but more like a punishment and my motivation to obtain a patent and thus reducing an idea to practice has drastically diminished.

  9. Edward Heller July 5, 2017 4:09 pm

    I thought I’d share this.

    “But for the patent the thing patented is open to the use of any one. Were it not for this patent any one would have the right to manufacture and use the Berliner transmitter. It was not something which belonged to the Government before Berliner invented it. It was open to the manufacture and use of any one, and anyone who knew how could contrive, manufacture and use the instrument. It conveyed to Berliner, so far as 239*239 respects rights in the instrument itself, nothing that he did not have theretofore. The only effect of it was to restrain others from manufacturing and using that which he invented. After his invention he could have kept the discovery secret to himself. He need not have disclosed it to anyone. But in order to induce him to make that invention public, to give all a share in the benefits resulting from such an invention, Congress, by its legislation, made in pursuance of the Constitution, has guaranteed to him an exclusive right to it for a limited time; and the purpose of the patent is to protect him in this monopoly, not to give him a use which, save for the patent, he did not have before, but only to separate to him an exclusive use. The Government parted with nothing by the patent. It lost no property. Its possessions were not diminished. The patentee, so far as a personal use is concerned, received nothing which he did not have without the patent, and the monopoly which he did receive is only for a few years.”

    US v. American Bell (1897), 238-239

  10. Edward Heller July 5, 2017 4:19 pm

    Someone has to tell Congress that if there was a troll problem related to assertion of invalid patents or that were not clearly infringed in order to extract below litigation cost settlements, that problem is over after the Supreme Court cases in recent years, particularly, Octane Fitness, Nautilus. Many times these cases are out on 12(b)(6), or soon after claim construction. Attorneys fees are awarded.

    There simply is no need for CBMs, PGRs, IPRs or reexaminations. None whatsoever. In fact, the obvious problems with these post-grant procedures make their repeal or invalidation through court review (Oil States?) absolutely a top priority.

  11. Edward Heller July 5, 2017 4:55 pm

    Also, I do not agree that our patent system was wholly revolutionary. We modeled everything on the British system, particularly on the common law case development from well before the State of Monopolies that was, after all, a mere codification of the current state of English law.

    What we got from England was a good sense of what an invention was — something not known or used by others and which was a new or improved manufacture, or an Art of making manufactures.

    We also got a sense of due process, where only a court of law could adjudge either validity or infringement, and where juries were available to decide disputed facts. This distinguishes from all modern systems outside the US.

    The advent of reexaminations began a slow slide away from the idea that patent are property and that the inventor is entitled to a period of quiet title and that only a court of law and a jury could revoke one’s patent. That is the system we inherited from England. That is the system that today is under assault.

  12. Anon July 5, 2017 6:21 pm

    or an Art of making manufactures

    Mr. Heller, please see the changes made in the Act of 1952, vis a vis 35 U.S.C. 100(b).

    For your convenience (with emphasis added):

    (b) The term “process” means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.

    Your engagement with assaulting our system has long been noted in your own “versions” or what is and what is not patent eligible based on nothing more than your own personal desires.

    I find you to be a “fair weather friend” at best when it comes to protecting the patent system against assault.

  13. Edward Heller July 5, 2017 6:34 pm

    anon, the Supreme Court has extended the concept to the making of signals on wires and to machine processes. But at the founding, that is what Art meant. Whether it is extended to new subject matter now depends on whether the invention is an “inventive application,” and that means something new or improved in the realm of machines, etc. As I have said before, the Federal Circuit seems to be following the MOT, even if it does not acknowledge that it is.

    You should be aware that the Supreme Court has never agreed that all processes are ipso-facto patentable subject matter under 101. Ditto, compositions of matter (human DNA?).

    The problem I that I think you have is that you think the ’52 Act was a repeal and replace, when all Congress intended to do was to codify the old RS code into a new US Code, with updates as appropriate.

  14. Anon July 5, 2017 7:01 pm

    You do realize that writing the statutory law that is patent law is NOT up to the Supreme Court, right, Mr. Heller?

    What you seek to dismiss (without actually giving credit to the plain words of 35 USC 100(b)), is what Congress actually DID DO in 1952.

    How else do you explain your retreat from any meaningful discussion of 35 USC 100(b)?

  15. Edward Heller July 5, 2017 7:21 pm

    Listen, anon, Federico explained what they were doing — codification. There was no intent to change the law except to limit Halliburton, and to “overrule” Mercoid and Cuno Engineering. The codification of 271(a)-(c) was unnecessary and has led to a lot of confusion, and a change in the law to the advantage of infringers. Section 112(f) is a statute we all “abhor.”

    103 was added to overrule Cuno Engineering as it seemed to require some flash of genius. But the law it codified the first sentence was identified as Hotchkiss v. Greenwood by Federico. There was no intention to change the law. But what happened in the codification of 103 was that that section’s reference back to “prior art” as defined in 102 began to include everything in 102 when all that was meant by the drafters was 102(a). This is confirmed by the statute’s reference to “at the time of the invention.”

    Even the adding of 102(e) was a gigantic mistake because the law prior invention was already codified as a defense to infringement, and was placed into the statute in the form of 102(g). We now know that 102(e) has become a monster.

    All the craziness we have had since 52 is related to the way the ’52 act was crafted. It was not well-crafted, and its intention not to change the law was largely ignored by very aggressive people intending to change the law, which they did, and not to the benefit of the patent system.

  16. Anon July 5, 2017 8:08 pm

    For all of your clamor here, I notice that you still refuse to be inte11ectually honest about 35 USC 100(b).

    Further, the notion of “just codify” is a known falsehood.

    Known.
    Falsehood.

    Let me know when you are willing to be inte11ectually honest about ALL of the assaults on patents, and not just the ones that you “like” to protect against.

  17. Edward Heller July 5, 2017 8:14 pm

    anon, let us agree to disagree from time to time on details, as you and I see eye-to-eye on the big picture. OK?

  18. Ternary July 5, 2017 10:06 pm

    Perhaps not the right place to ask, but instigated by Edwards’s @9: What is actually a Judicial Exception in Law? Is there a formal basis for it? I found very little on it. Mainly on patents, on at-will employment, on the corporate veil and on abortion, with no description what triggers a “judicial exception”. (Because a Court says so, but that seems not good enough) And what if there is no support in the constitution or the statute for the “judicial exception?”

    And does the judicial exception hold, no matter what congress decides? In other words, are our objections to the Alice decision moot as long as we have a SCOTUS that support large companies, no matter what congress says?

    Suppose (an unlikely case) that Congress decides/codifies that “anything under the sun” is patent eligible, can SCOTUS still decide that there are “judicial exceptions” such as “abstract ideas?”

  19. Edward Heller July 5, 2017 11:35 pm

    Ternary, well the exceptions are from the common law cases from England and the US that continued to develop the fundamental law of patents. The ideal that one could not patent laws of nature and principles in the abstract stems from a case decided in 1895 in England. Joseph Story was the prime mover in developing the notion that one could not claim abstract principles. The Nielsen case, from England, is still cited by today’s court in its jurisprudence on 101.

    The common law guides statutory construction. It still operates even when considering such things as exhaustion, where Coke was cited in the Lexmark case.

    The Supreme Court says it like this: The statutes are deem to embody the common law decisions unless it appears that they are intended to change the law. See, e.g., Pennock v. Dialogue. And, of course, our own law of patents is based in English common law.

  20. Night Writer July 6, 2017 7:43 am

    This isn’t accounting for the problems at the executive and judicial branch of government which are just as bad.

  21. Night Writer July 6, 2017 8:20 am

    The only way to fight this is with a PAC that has money. Goodlatte and his like get their campaign money from Google. You have to match that if you want them to listen to you.

  22. Night Writer July 6, 2017 8:21 am

    I see Ed the Ned is up to his usual games regarding 101.

  23. Night Writer July 6, 2017 8:44 am

    I think another aspect of this is the media. For example, the other blog on patents has become a forum for anti-patent propaganda. It is clear that some of the posters are paid bloggers and the moderator of the blog heavily edits out pro-patent posts and allows anything that is anti-patent (no bounds on personal attacks or slander at all.) I also think that some professors have become very influential in promotion decisions and hiring decisions so academia is being affected by the K Street money too.

    I think that other blog should stop being called a blog and more a propaganda forum for the anti-patent judicial activists.

    But get that K Street pays lots of people to influence the media.

  24. Ned Heller July 6, 2017 9:16 am

    Night, are you suggesting that some professors, aside from the notoriously “unbiased” and “ultra reliable authority” Lemley, are being influenced directly or indirectly by lobbyist money?

    We all know this is an issue for big firms. They must satisfy their clients less they lose them; and most big clients today are in the “efficient infringer” side of the fence.

  25. Edward Heller July 6, 2017 9:17 am

    Sorry my post above referenced a 1895 case from England when it should be 1795.

  26. Night Writer July 6, 2017 9:34 am

    @24: Yes Ed the Ned I am suggesting just that. I am also suggesting that Lemley has become very influential and has a lot to do with promotions and hiring in many law schools.

    I think we have reached the death spiral. Lemley brings a case to the CAFC that is stacked with Google selected judges and rule in Lemley’s favor. The unethical are now in power and their power is growing.

  27. Night Writer July 6, 2017 9:44 am

    My guess Ed the Ned is that the other blog has become so anti-patent because the blog owner wants to make it to full professor.

  28. Night Writer July 6, 2017 9:44 am

    1795 I believe is after the English cases were incorporated into US common law.

  29. Edward Heller July 6, 2017 9:52 am

    Night, point. But, even so, those cases, including Neilson v. Harford, Webster’s Patent Cases 295, 371 (1841), another English case discussing patenting principles in the abstract, are even today being cited by the Supreme Court.

  30. Ternary July 6, 2017 10:04 am

    Thanks EH. Very helpful. I did read the cases you mentioned.

    The United States Supreme Court explained the Neilson decision in O’Reilly v. Morse:
    “It is very difficult to distinguish it [the Neilson patent] from the specification of a patent for a principle, and this at first created in the minds of the Court much difficulty; but after full consideration, we think that the plaintiff does not merely claim a principle, but a machine, embodying a principle, and a very valuable one. We think the case must be considered as if the principle being well known, the plaintiff had first invented a mode of applying it.”

    What struck me is: “we think that the plaintiff does not merely claim a principle, but a machine, embodying a principle.” The principle is deemed to be in the prior art, but the machine is not. It appears to promote to claim machines that embody principles, a leftover from Enlightenment. That makes sense as it stimulates inventions and development. It is painful to read how SCOTUS reached the opposite conclusion for the 21st Century.

  31. Night Writer July 6, 2017 10:17 am

    @30 Ternary: great post.

  32. Night Writer July 6, 2017 10:22 am

    Still the right way to think about this is not abstract vs. concrete, but scope of enablement. What is enabled? That solves all the problems.

  33. Ternary July 6, 2017 11:28 am

    Night. I agree. Anything that generates a measurable or detectable physical phenomenon should be patent eligible and any machine that is enabled to generate that phenomenon is patent eligible. That is what Neilson is about. However, that is not what SCOTUS says.

    The Founders of our nation were exponents of the Enlightenment. This is from The Patent Act of 21 February, 1793:

    “That when any person or persons, being a citizen or citizens of the United States, shall allege that he or they have invented any(!) new or useful art, machine, manufacture, or composition of matter, or any(!) new or useful improvement on any(!) art, machine, or composition of matter, not known or used before the application,…. (copied from the Pennock case)

    Clearly, at that time we loved and embraced the possibility of improvement and invention. The almost limitless potential of scientific and technological development was recognized and educated people would have thought it to be counter-productive (not to say idiotic) to try to limit those developments and certainly not by patent law which was supposed to promote it.

    As a reminder: before the Enlightenment, authorities dictated what valid science was and many “scientists” deliberately avoided at least publishing anything that would question existing beliefs. (see the excellent book The Invention of Science by Wootton)

  34. Night Writer July 6, 2017 11:38 am

    @33 Ternary. That is interesting. Now we have the SCOTUS and CAFC telling us what science is that disagrees with the scientist. Taranto, e.g., said that automating any mental process was per se obvious. The EU scientist said that spending hundreds of millions of dollars trying to automate mental processes was a waste because we are too far from actually being able to automate the human mental processes.

    That is just one example. There are hundreds from the Google purchased judges at the CAFC and from the justices on the SCOTUS who admit they only read the briefs from Google and the like to understand reality.

  35. Anon July 6, 2017 11:40 am

    That is what Neilson is about. However, that is not what SCOTUS says.

    SCOTUS in fact holds for the exact opposite, given that certain claims in Alice were to machines (the machine statutory category was met, as stipulated to by both sides in that case).

  36. Ternary July 6, 2017 1:28 pm

    Anon:

    Neilson was deemed to be patentable because the patent provided a “mode of applying it.” “It” being the “principle” of pre-heating air. The implementation in Neilson was a “air-vessel or receptacle” made of iron, which was conventional at the time of the invention.

    Alice differs from Neilson in that the implementation on a processor or computer, though a machine, is held conventional and when implementing a “principle” on it is held to being directed to an “abstract idea.” This is why Alice is actually the opposite of the decision in Neilson.

  37. H2H July 6, 2017 2:26 pm

    Somebody who wasn’t in grade school when the Fed. Cir. was formed:

    Which industries/businesses lobbied the most for the Federal Circuit and stronger patent rights?

    I heard, anecdotally, that Silicon Valley companies. The HP, IBM, Bell, Kodak, DEC’s played the patent numbers game. The new players needed their relatively smaller patent portfolios to be stronger to fend off the incumbents. Is that true? If so, what a change of fortune.

  38. Night Writer July 7, 2017 9:40 am

    @37 I am not sure what they all wanted. I can tell you that Jimmy Carter was the one with the idea to make patents strong to make the corporations work.

    I can also tell you that before patents starting taking over software that software companies were doing strange things. They were trying to keep everything a trade secret and were hiding what they were doing from everyone and trying to limit what employees could do when leaving the company. Intel was actually designing a chip to make it harder to reverse engineer software, i.e., keep the software encoded up to the time it was executed and not allow for monitoring of the execution. Microsoft was trying to get a license on the software you created with their compiler. So, they wanted you to sign something that said that all the software that you generated with their compiler was part theirs.

    We are going back to those dark times…

  39. Night Writer July 7, 2017 9:42 am

    I was a developer at the time. Patents wiped out all this nonsense and there was an open forum for work and people could move easily. It was so great going from this dark period of being threatened that if you told anyone what you were doing that you would be sued and fired to an open environment where inventions were protected by patents.

    It was really quite remarkable.

  40. Anon July 7, 2017 10:48 am

    And yet, Night Writer, today’s “general programmer” not only is blithely unaware of this historical context, you have the lemming-like regurgitation of the anti-patent propaganda down to the fact that programmers (in the Royal You sense), do not understand the distinction between the 101 sense of eligibility and the 102/103 sense of novelty/obviousness.

    This is most visible on “the other blog” with recent posts by the (otherwise seemingly affable KnowBuddy).

    The anti-patent propaganda has been truly effective in some circles.

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