Iancu: ‘It is unclear what is patentable and what is not, and that can depress innovation’

By Gene Quinn
May 22, 2018

Earlier today USPTO Director Andrei Iancu testified at an Oversight Hearing before the House Judiciary Committee. In his prepared statement, Chairman Bob Goodlatte (R-VA) explained that the hearing would “investigate whether the PTO is implementing AIA post-grant review proceedings as Congress intended, to address patent litigation abuse, and whether it is doing so in a manner that is fair to patent owner and petitioner alike.”

At the outset of the hearing Chairman Goodlatte wasted little time, seemingly rather annoyed that the Office is undertaking reviews and changes to the post grant processes that have so fundamentally changed the patent landscape over the past six years. Goodlatte began by asking Director Iancu what changes the Office is likely to make to post grant proceedings in the coming months and why those changes are necessary.

After explaining the recent change announced to the claim construction process used during post grant proceedings make it consistent with that used in federal district courts, Director Iancu explained that the Office is looking at the amendment process “to increase the ability and to simply the process for amendment during the AIA trial process itself.”


“We are also looking at the institution process,” Iancu explained to Chairman Goodlatte. “The Office has discretion as provided by the AIA on institution once the substantive standard is met. And there are a variety of things to consider during the institution process. For example, has the same issues been considered already by the examiner during the initial examination, or by a court in parallel litigation or otherwise.”

“We are also looking at the actual hearing itself,” Iancu continued. “We have heard from stakeholders that perhaps there is not enough time in some of the proceedings at the hearing. Some folks have asked whether there can be testimony, witness testimony, at the hearing, or an increased opportunity for such testimony. There are pros and cons for those issues.”

Chairman Goodlatte also asked Director Iancu about his views on the Supreme Court’s patent eligibility test and what, if anything, should be done to fix it.

“The Supreme Court’s framework from Alice is a two-step analysis that the courts and the Patent Office is implementing, and there is some confusion in the industry as to what some of the terminology means and what is patentable and what is not patentable,” Iancu explained. “So, thing such as what exactly is an abstract idea? What exactly does it mean to be ‘directed to’ – those specific words ‘direct to’ the abstract idea? What does it mean to be conventional, which is part of step two. And what we can try and do from the Office’s perspective, within that construct, is to try and provide better guidance for our examiners, and obviously the applicants who come before us as to some of those terms, as we did last month when we provided additional guidance as to the term conventional. What does it mean, and how should the examiners document it? That was an example of some of the things we can do, and we are looking at providing additional guidance on some of the other aspects.”

Later on, in the hearing, Congressman Doug Collins (R-GA), returned to the issue of patent eligibility, specifically raising the question about the impact current standards are having on life sciences. Collins again asked what Congress could be and should be doing, but this time also added a twist to the question, asking Director Iancu what would exceed the authority of the Office to do with respect to patent eligibility.

“The issue is very significant. It is significant to the Office, to our applicants, and it is significant to the entire industry,” Iancu responded to Congressman Collins. “In some areas of technology, it is unclear what is patentable and what is not, and that can depress innovation in those particular areas. Our plan at the PTO is to work within Supreme Court jurisprudence to try and provide better guidelines. What we think is in and what we think is out, and provide, hopefully, forward looking guidance that helps examiners and the public understand what at least from the PTO’s point of view we think is right.”

“Section 101, the code itself, has not been amended since 1952,” Iancu went on. “In fact, the language is by and large written by Thomas Jefferson in the early 1790s, with very little amendment ever since then. Obviously, we have developed some new technologies since then. So, if this Committee, or Congress in general, is interested in tackling Section 101, we would be very happy to work with the Committee on those issues. In the meantime, the PTO is going to do what we must do, which is help the examination process.”

Congressman Collins followed up and specifically asked Director Iancu to provide him with a list of what he feels would exceed the authority of the Office. Reading between the lines, and knowing that Collins is generally pro- intellectual property, it seems that he may be interested in amending Section 101. This would be particularly interesting if Republicans keep control of the House of Representatives in the 2018 mid-term election given that Collins would likely take control of the House IP Subcommittee.

Director Iancu’s prepared statement can be read here.

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 28 Comments comments. Join the discussion.

  1. temorit May 22, 2018 1:26 pm

    Let’s see. The head of the agency doesn’t know what 101 means. Judges are all over the place. How can we expect Examiners to be consistent when their superiors and reviewing courts don’t even know what the law means?

    So yes, we need some clarification/revision of the law.

  2. Anon May 22, 2018 2:06 pm

    “We are also looking at the institution process,” Iancu explained to Chairman Goodlatte.

    That detective, is the right question.
    Program terminated.

    https://www.youtube.com/watch?v=E_8E_pmKKcU

  3. Anon May 22, 2018 2:13 pm

    “So, thing such as what exactly is an abstract idea? What exactly does it mean to be ‘directed to’ – those specific words ‘direct to’ the abstract idea? What does it mean to be conventional, which is part of step two.

    The Office lacks legal authority to write the answers to those questions.

    In truth, the judicial branch (i.e., the Supreme Court) ALSO lacks authority – if doing so is engaging in the writing of law (as opposed to a true interpretation of what has been written).

    Lastly, and the elephant in the room as pertains to this specific point, is that there exists a legal term describing the writing of law that the Supreme Court has engaged in on this point: Void for Vagueness,

    Void for Vagueness applies – even to non-criminal law matters, and even to laws written by the judicial branch.

    Sadly (and especially as the Court is the one that is supposed to safeguard against laws that are Void for Vagueness), no one in the executive or legislative branches seem willing to say out loud that the Emperor(s) are not wearing any clothes in regards to 35 USC 101.

  4. momo May 22, 2018 2:50 pm

    It would be grand if Iancu simply said that the SCOTUS “guidance” on 101 is unconstitutionally vague and that the PTO will no longer make 101 determinations, leaving that to the courts.

    Otherwise, the Examiners have no choice but to apply it in an arbitrary and capricious manner.

    That would get some attention (and make everyone’s lives easier).

  5. Bemused May 22, 2018 5:36 pm

    Anon@2: Ding, ding, ding. That made my ears (eyes) perk up, too. That is exactly the post-Oil States fix that we need until the Congressional critters (hopefully) get their collective heads out of their collective…

    To wit: A significantly stricter institution process to get IPRs back to what they were originally advertised to be: an extraordinary remedy that is sparingly granted.

  6. Mike May 22, 2018 7:29 pm

    “We are also looking at the institution process” could be spot on. The Director has authority and final discretion whether or not to institute an IPR, and if Iancu wants to put his money where his mouth is, I hope he begins denying IPRs left and right.

    He said “there are a variety of things to consider during the institution process. For example, has the same issues been considered already by the examiner during the initial examination, or by a court in parallel litigation or otherwise.”

    However, there’s one more thing to consider during the institution process:

    Constitutionality for retroactive application of IPRs on preAIA patents.

    SCOTUS in Oil States even acknowledged this, and Iancu, as director, if he cares about the “reliability of the patent grant”, should flex the powers of the executive branch and deny IPR requests for preAIA patents. For one: No preAIA patent applicants/holders agreed to the patent bargain of being additionally examined under the AIA/PTAB/IPR post-grant. And two: preAIA patents are examined under preAIA statutes, and the Office admits that IPRs are examinational. So preAIA patents also being subject to AIA examinational statutes is not consistent. And three: Implementing IPR on preAIA patents runs directly against constitutionality due to the reliance interest created by the patent grant and that preAIA patent holders did not waive their rights to challenge due process or takings.

    Iancu’s discretion if final. Let’s hope he puts his money where his mouth is.

  7. Mark Martens (@MarkMartens42) May 22, 2018 7:36 pm

    Gene, I agree that working to get Congress to do something is the smart strategy. After all the new problem is an economy-wide depressed innovation system, and that is a gold-plated issue for any politician.

  8. EG May 23, 2018 8:50 am

    Hey Gene,

    As registered Republican, I’ll be glad when the likes of Goodlatte and Issa are gone from Congress. The disaster that the AIA (Abominable Inane Act) is crosses party lines. I realize that Iancu has to tread carefully here, but he needs to be blunt that what Congress has done in the AIA, and SCOTUS is doing in “legislating from the bench” on 101 patent-eligibility issues is hurting U.S. innovation terribly. Indeed, I find it ironic that Congress seems to be so concerned with the theft of IP by China in terms of the latest international trade talks, yet has no apparent concern with how the multinational Goliaths are stealing IP from the Davids of Innovation through efficient infringement and IPRs.

  9. Anon May 23, 2018 9:26 am

    EG,

    Follow the money.

    (See Citizens United for the amplification effects of money as “voice”).

  10. Night Writer May 23, 2018 10:15 am

    The other thing with 101 is that it costs a lot more now to write a patent application because of 101. It is also harder to respond to office actions and to write an office action.

    Basically, what 101 has done is lower the quality of patent claims at the expense of being able to cancel any claim at anytime the fact finder feels like it for their own private reasons.

  11. Eric Berend May 23, 2018 12:02 pm

    NOT ONE INVENTOR before a ‘Committee’ of Congress in OVER A DECADE; yet, this idiot-clown RUSHES TO CONVENE one, at the slightest HINT of a “THREAT” to his IP Pirate Masters’ specially granted Private Poaching Preserve.

    Sen. Goodlatte: supposedly “REPUBLICAN”, spearheading a wanton destruction of properties and property values.

    Incredible. It seems the entire house must burn down, before these Roman Fiddlers realize what is truly happening.

  12. EG May 23, 2018 12:55 pm

    Hey Anon@9,

    Couldn’t agree with your more. Like Kelo before it , Citizen’s United is another terrible decision by SCOTUS, inconsistent with the concept that each citizen’s vote should be treated equally and without allowing that vote to be influenced (or corrupted) by how much money is spent.

  13. B May 23, 2018 2:56 pm

    “It would be grand if Iancu simply said that the SCOTUS “guidance” on 101 is unconstitutionally vague and that the PTO will no longer make 101 determinations, leaving that to the courts.”

    Unfortunately, the SCOTUS often issues heinously vague guidelines in a lot of different areas, but unfortunately it is the same SCOTUS that determines what is constitutional and what is not.

    That said, what the SCOTUS said in Alice/Mayo and what the lower courts heard appear to be quite different things. Oh, and don’t get me started on the USPTO braintrust that crafted their retarded internal 101 guidelines.

  14. B May 23, 2018 2:58 pm

    “Couldn’t agree with your more. Like Kelo before it , Citizen’s United is another terrible decision by SCOTUS, inconsistent with the concept that each citizen’s vote should be treated equally.”

    EG, could you tell me the holding of Citizen’s United? Just asking what you think it means, and how it is not consistent with votes being treated equally

  15. EG May 23, 2018 4:23 pm

    Hey B,

    What Citizen United essentially says is you can spend as much as you want to on political candidates (PACs are a good example of how that happens). So if you don’t have the $$ to spend, your influence on the voting process is less than those who can speed many more $$.

  16. B May 23, 2018 5:11 pm

    “What Citizen United essentially says is you can spend as much as you want to on political candidates (PACs are a good example of how that happens).”

    That’s not the holding of C.U.

  17. Curious May 23, 2018 5:25 pm

    EG, could you tell me the holding of Citizen’s United? Just asking what you think it means, and how it is not consistent with votes being treated equally
    We had an extensive conversation about Citizen’s United here: http://www.ipwatchdog.com/2018/05/09/supreme-court-anti-patent/

    I’ll just reproduce some of the snippets I wrote then:
    What SCOTUS think they did and what resulted from the opinion are two different things. The long and the short of it is that a corporation can now donate millions of dollars into a PAC, and that PAC can use that money to influence elections. They cannot support a particular candidate or party, but those are EASY limitations to get around.
    You appear to have confused the intended impact of the decision (as to the plaintiffs) with the actual impact of the decision [to campaign finance as a whole]. The actual impact of the decision is that people with lots of money have a lot more speech than those without.
    You do realize that political action committees have been around since 1944? As such individual people have LONG HAD THE RIGHT to pool their resources to make political statement.
    The ultimate result of Citizens United is that corporations and labor unions can make unlimited donations to what is now called a Super PACs. Additionally, because of the rules associated with Super PACs, people can set up shell corporations to donate to a Super PAC and be able to hide the true identity of the donation. So much for transparency ….
    Shutting down free speech was never the issue. The issue was whether free speech applied to corporations and labor unions. In today’s world, the more $$$ you have the more speech you have. Again, these means that Corporations (because they have magnitudes more money than labor unions) have more speech than nearly everybody else.

    Boiling all of this down results in the following: unlimited contributions into these Super PACs. These unlimited contributions can come from corporations or individuals. I was looking at one list (for individuals in 2016) and the top individual donor spent $66M and #10 was at $17M. For corporations in 2016, the top donor spent $90M and #10 was $33M. However, that doesn’t account for individuals that can spread around donations from multiple corporations that they control. For example, the Koch Brothers are rumored to be spending $400M for the 2018 campaign. I was looking for numbers for George Soros in the 2018 campaign but I couldn’t find it. Anyway, these individuals (and the corporations run by these individuals) have magnitudes more speech than I do because of Citizen’s United.

    As such, when EG wrote “without allowing that vote to be influenced (or corrupted) by how much money is spent,” I think he pretty much hit the nail on the head. It is not refuted that spending on advertising in politics influences votes. The more you can advertise, the more votes you can get. Heck, that is what the whole “marketing” and “advertising” industry is about — influencing people’s opinions (and the decisions they make based upon those opinions).

    It has gotten to the point that member of Congress (and state legislatures) first job is not to draft bills but to raise money for their reelection campaigns. These same members of legislature also know that the mega-donors can make or break them so they get extra special attention.

    I read this article today: https://www.politico.com/story/2018/05/23/dreamers-republican-donor-threaten-603428
    Here is the opening paragraph: An influential, multi-millionaire GOP donor is threatening to choke off campaign resources to Republican congressmen who haven’t engaged in the latest immigration battle in Congress.

    You could have a thousand inventors march on Congress looking for change, but they are nothing in the eyes of Congress compared to a donor who can spend multi-millions. Does this dichotomy embody the principles of free speech and individuals having an equal say in the running of this country? I think not.

  18. Anon May 23, 2018 5:27 pm

    B,

    Why don’t you share what you think the holding is (and how it differs from the views that you seem to not want to accept)?

    As I pointed out the last time you engaged on this matter, the relative effect is something that you have not grasped. I “get” that you think it great for individuals (separate real persons) to be able to form a juristic person, but you fail to understand the reach of juristic persons, and more importantly, the relative effects by the different juristic persons. You have a myopia of “what you like” blinding you to both the reality of the decision and the reality of the effects of the decision.

  19. Joachim Martillo May 24, 2018 4:41 pm

    2106 Patent Subject Matter Eligibility [R-08.2017] includes the following text.

    Second, the claimed invention also must qualify as patent-eligible subject matter, i.e., the claim must not be directed to a judicial exception unless the claim as a whole includes additional limitations amounting to significantly more than the exception. The judicial exceptions (also called “judicially recognized exceptions” or simply “exceptions”) are subject matter that the courts have found to be outside of, or exceptions to, the four statutory categories of invention, and are limited to abstract ideas, laws of nature and natural phenomena (including products of nature). Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. _, 134 S. Ct. 2347, 2354, 110 USPQ2d 1976, 1980 (2014) (citing Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. _, 133 S. Ct. 2107, 2116, 106 USPQ2d 1972, 1979 (2013). See MPEP § 2106.04 for detailed information on the judicial exceptions.

    When I was suffering from 5 months of vertigo, trying to make sense of the SCOTUS decisions on eligibility actually helped the world temporarily stop spinning.

    Here’s my thought on directed to.

    Can the claim be reformulated as a Jepson claim? If not, look at the claim as a whole. Does it claim significantly more than a judicial exception? If it (like Benson’s claims 8 & 13) does not , that claim is not patent-eligible.

    If it can be so formulated (as the Prometheus claim could), then look for the judicial exception in the improvement. If there is only a judicial exception therein, the claim is not patent-eligible. Otherwise, ask yourself “whether the claim recites additional elements that amount to significantly more than the judicial exception.” If it does not, the claim is not patent-eligible. This procedure solves the hole in 103, which only addresses an obvious combination of prior art and not an obvious combination of prior art with a natural phenomenon (the issue at the heart of Prometheus).

    Of course, we must now ask what “significantly more” means.

    Later on that question.

  20. Anon May 24, 2018 6:40 pm

    Joachim,

    I do not know where you got this notion that a Jepson claim format has anything to do with the jurisprudence on 35 USC 101.

    There nearest I can tell is that you have identified (without perhaps being aware of it), the judicial mockery that goes on when the Ends desired requires a means of improperly parsing a claim and NOT taking a claim as a whole (wherein the improperness is wanting to identify merely one portion of a claim and somehow elevating that single portion into the item that – in and of itself – is evaluated under 35 USC 101 as if ONLY that portion is what is being claimed as the invention.

    This of course violates the words of Congress, specifically the words of 35 USC 112, wherein Congress set forth BOTH the requirement and the authority as to which entity precisely is the entity that sets forth what the invention is (and that entity is expressly NOT the judicial branch).

    With “look for the judicial exception in the improvement. If there is only a judicial exception therein, the claim is not patent-eligible” you have effectively provided that a claim need not be looked at as a whole – as is required.

    As to “This procedure solves the hole in 103” – you only get there by violating the law somewhere else.

    One cannot get around the law with such mockery.

  21. Joachim Martillo May 25, 2018 12:03 am

    Don’t assume that I had no awareness of the point that I was making implicitly!

    There is a loophole in § 103 because of judicial exceptions. If a natural phenomenon could be patented and be prior art, there would not be a loophole in § 103. If there were a research exemption to 35 USC § 271, why not allow the patenting of natural phenomena?

    On the other hand, SCOTUS’ view of the natural phenomenon exception is supported by a history going back to Boulton & Watt against Bull, Saturday May 16, 1795.

    I do not deny that Mayo v. Prometheus was casuistry. If SCOTUS’ found the Prometheus claims patent-eligible, those claims would provide a road map for patent term extension in the pharmaceutical industry.

    As long as the USPTO pulls crap like SAWS and USPTO senior officials are involved in criminal acts in denying patents to applicants that are entitled, I don’t see anything particularly wrong with patent term extension. In most cases such extension would restore term to which patent owners are entitled by law.

    The internal USPTO emails documents that were not obtained via FOIA and that I have been reviewing suggest involvement at least of Faile and Matal. I know you don’t think much of looking at USPTO misbehavior from the standpoint of tax law, but some of my family’s lawyers are criminal lawyers. As they have explained the issue to me, it really does not matter that in most cases of USPTO misbehavior, taxes would not have been defeated. They say that it only takes one case to put the crooks in jail.

    Consider Telebrands v. Tinnus PGR, in which the PTAB found an essential feature of the English language to be indefinite apparently at the behest of senior USPTO officials. If the PTAB had not been improperly instituted (the patent claims are obviously valid) or had not produced a crooked written decision, Tinnus would without competition would have paid more taxes on greater revenue, or Telebrands would have been paying license fees, on which Tinnus would have paid taxes.

    As for legal basis to rewrite a claim into Jepson format, examiners don’t care. They just need an effective procedure in MPEP chapter 2100 to determine whether the applicant is entitled to a patent. Outside of examination in an Article III court, Judge Lourie in CLS Bank Int’l v. Alice Corp. (Fed. Cir. 2013) (en banc) tells us “under § 101 we must look past drafting formalities and let the true substance of the claim guide our analysis.”

  22. Anon May 25, 2018 7:37 am

    That is not a loophole – that is the direct impact of the Act of 1952 and Congress removing the power of common law evolution from the Court to define the term “invention,” and in its place use the new carve-out from the previous to 1952 single paragraph of “obviousness” instead.

    As I have suggested previously, the one jurist most knowledgeable on this – Judge Rich – wrote about this (circa 1962), and was the one that stood up to the Supreme Court shenanigans (Benson and Flook) that – at least temporarily stemmed the anti-patent tide – resulting in Diehr and Chakrabarty.

    The mess we all see is directly because the Supreme Court is addicted to its fingers in the nose of wax of 101. They are acting as if Congress did not act in 1952 (the misleading notion of “just codify” is often bandied about). The Act of 1952 DID codify, but was never a “only codify.”

    The Supreme Court wants no one to remember its own prior role in making eligibility into a mess from its own self-described “role” of “the only valid patent is one that has not yet appeared before us.”

  23. Anon May 25, 2018 10:04 am

    There is a loophole in § 103 because of judicial exceptions.

    No. There is not. As I indicated, this line of thinking is in error. One needs to recognize the genesis of § 103 in order to understand that what you are thinking to be a loophole is NOT a loophole at all.

    Congress acted deliberately to rebuff an anti-patent Court in 1952, and § 103 was a direct act to rebuff the then use of “Gist.”

    That you think there be a loophole only means that you have been conned by what the Court has written, that you have not grasped that the Court itself is acting ultra vires when it comes to the words of patent law that Congress put forth.

  24. step back May 26, 2018 8:24 am

    Anon @23

    “Abstract idea” is the new “Gist”.

    (You know it. I know it. Joachim chooses to cover eyes and see not the evil.)

  25. Night Writer May 26, 2018 8:27 am

    @24 step back

    No doubt about it.

  26. Anon May 26, 2018 9:10 am

    Hmmm, step back @ 24,

    I think I see where you want to go with that, and I hope this does not come across as pedantic, but I have to disagree.

    I think that the Court has employed BOTH “Gist” AND “Abstract.”

    I think that you do not hold the Court accountable enough by letting the two things distill down into one thing.

    I think that perhaps the use of the two things brings about the same “Ends-driven-Court-writes-patent-law-as-it-WANTS-to-write-patent-law” that existed PRE-1952.

    In that era – before Congress rose up and took away from the Court the authority to use the t001 of common law (evolution) writing in regards to the single paragraph (pre-1952) that became our 101/102/103 – the Court had FAILED to coalesce the meaning of the word “invention” because they wanted to be able to twist (or mash) the undefined word to whatever the case may be that would be before them.

    Much like today. (those that do not learn from history, and all that…)

    However, I think that EACH word has its own faults, and that in maintaining a separateness between the two words, it may be easier to see that the Court has actually DOUBLED down on its addiction to sticking its fingers into the nose of wax.

    Like pre-1952, the Court engages in “scrivining” that is undefined with at least the word “Abstract” (other undefined conditions include “significantly more,” for example).

    However, the Court in its separate action of “Gisting” is actually violating a separate portion of the law as written by Congress. The current (separate) action of “Gisting” violates 35 USC 112, which not only provides a requirement, but also dictates a provision of which entity has the authority TO define “invention.”

    That entity is NOT the Court.
    That entity is the inventor.

    This is why, in part, I have often used the analogy of a double-edged sword when I refer to the weapon crafted by the Court – each of two separate blades are present.

    I grant that this may be merely a different way of aiming at the same meaning that you want to provide (hence the disagreeing, but with explanation).

  27. step back May 26, 2018 6:00 pm

    Anon @26

    Hyper-technically speaking, it may be true that “Gist [of the claim]” and “Abstract Idea [to which the claim is directed]” are not exactly the same thing.

    They both boil down to stripping the inventor of his statutory right under 35 USC 112 to define that which he regards as “his” invention.

    In both instances the Supreme Court is saying, Aha we are not going to be fooled by the obfuscating language that you and your devious scrivener attorney/agent have contrived. We are going to rip that all away and get to the heart of the matter. When we finally get to that illusive heart we will discover (as if we didn’t know from the start of our belaboring efforts) that you didn’t truly invent something of eligible merit. It is but no more than an abstract idea or a law of nature or a natural phenomenon hidden in the thick wools of generic, conventional, routine and well-understood over-clothing.

    Solvency. Get it? King Tut’s chits counted up on the abacus. Right? Why it’s as old and ordinary as the pyramids themselves. Nothing more significant than what any 2nd year engineering student can do over the weekend. Nyee ha ha.

  28. Curious May 26, 2018 7:48 pm

    In both instances the Supreme Court is saying, Aha we are not going to be fooled by the obfuscating language that you and your devious scrivener attorney/agent have contrived. We are going to rip that all away and get to the heart of the matter. When we finally get to that illusive heart we will discover (as if we didn’t know from the start of our belaboring efforts) that you didn’t truly invent something of eligible merit. It is but no more than an abstract idea or a law of nature or a natural phenomenon hidden in the thick wools of generic, conventional, routine and well-understood over-clothing.
    Bingo — SCOTUS can only get to where it wants to go (unfettered ability to pick and choose what inventions are worth protecting and those that are not) by ignoring the language of the claims. Really, it is as simple as that.

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