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SCOTUS, Vaccine Mandates and Patent Law: God Help Us

“At some point, science, logic and intellectual honesty need to matter at the Supreme Court. The alternative, which has been uncomfortably on display for all to see – at least in the patent sphere for the last generation – is that Justices deem themselves infallible experts on every topic.”

https://depositphotos.com/66000415/stock-photo-weight-scale-on-the-peak.htmlIs the Supreme Court competent to handle issues dealing with technology? The question is often discussed in private among patent attorneys who find themselves completely befuddled by the wanton disregard and open duplicitous handling of patent laws by the Nation’s High Court. In one decision, the Supreme Court will wax poetically about the need to adhere to precedent, and citing stare decisis, and then overrule well-established, 30-year-old Supreme Court precedent. The whim and fancy – and intellectual dishonesty – of the Supreme Court knows no bounds when it comes to patent law.

But now, just how little at least some of the Justices know about basic science – and logic — has become glaringly and unmistakably obvious to everyone, thanks to the recent oral argument held regarding vaccine mandates. So, for those who have been hoping that the Supreme Court might eventually step in and fix the patent eligibility mess that they invented, and the Federal Circuit magnified, you can put those hopes on hold.

Whether you are for or against vaccine mandates doesn’t matter. At some point, science, logic and intellectual honesty need to matter at the Supreme Court. The alternative, which has been uncomfortably on display for all to see – at least in the patent sphere for the last generation – is that Justices deem themselves infallible experts on every topic and/or the Court has become a policy tribunal untethered by the rule of law as written.

Some Truly Scary Questions

Still, everyone, regardless of party affiliation or vaccine philosophy, should be able to agree that the performance of Justice Breyer last week calls into question whether he remains fit for service. During oral arguments, Justice Breyer asked in a truly befuddled way why there would be any question about mandating vaccines because if COVID vaccines were mandated, the number of people contracting COVID would go from 750,000 today to zero tomorrow. Breyer explained:

[M]aybe I’m wrong, and please tell me if I am, but the numbers I read is when they issued this order, there were approximately 70-something thousand new cases every day. And yesterday there were close to 750,000.

So if we delay it a day, and if it were to have effect, then 750,000 more people will have COVID who otherwise, if we didn’t delay it, wouldn’t have? I mean, I – I don’t doubt the power of the Court to issue a stay. I’m just saying what are the consequences of that?

And if I’m wrong, you better tell me I’m wrong because I – I thought that it really did make a difference to people who might get – you have the numbers. I saw the numbers.  

Well, all right, what – so what – what do you say? Now you say does not – that’s really not a problem?

There is so much wrong with what Justice Breyer said, it is almost understandable why no one corrected Justice Breyer, who came across like a doddering old man wholly incapable of comprehending even the most basic concepts surrounding vaccine technology and deployment. You might expect the advocates before the Supreme Court to tell Justice Breyer he was wrong. Nevertheless, a reasonable advocate would have and should have said something.

Unfortunately, Supreme Court advocates are often unwilling to actually advocate. So, no one actually told Justice Breyer he was wrong. What is the point of appearing before a court on any level as an advocate if you will not point out where and when the judge or Justice is mistaken? But that is what passes for Supreme Court advocacy for the most part; attorneys fearful of being ostracized for advocating and explaining when the Justice is about to make an enormous mistake.

With respect to the substance of Breyer’s comment/question, there is almost no appropriate place to start to unpack the nonsense. It seemed prior to these oral arguments that virtually everyone had become familiar with the fact that those who have been vaccinated can and do still get sick with the virus, and those who have been vaccinated can and do still transmit the virus. “[V]accinated people – whether they have symptoms or not – are contracting and spreading the virus in nontrivial numbers,” wrote the Scientific American in December, and it has seemed common knowledge for many months, with the CDC acknowledging these truths at least by September 2021, relating to the Delta variant.

But even if Breyer were living in a cave, and literally none of the written submissions in the case pointed out these critical scientific truths, it would be an impossible task for any vaccine, even a vaccine with near 100% efficacy (i.e., protecting those who receive the vaccine as well as preventing transmission) to cause a 100% reduction in the number of cases over the span of 24 hours. And that is even if the mandate were to apply to all 330+ million American citizens and residents, which is not the case. The mandates in question would apply to roughly 100 million workers, according to NPR. How or why Justice Breyer thinks a mandate that would apply to less than one-third of America would result in COVID being eradicated in a single day is unclear.

Alas, Justice Breyer wasn’t the only member of the Supreme Court challenged by science. Justice Sotomayor somehow came up with a clearly erroneous figure for the number of children sick with COVID. She said:

We have hospitals that are almost at full capacity with people severely ill on ventilators. We have over 100,000 children, which we’ve never had before, in – in serious condition and many on ventilators.

“That’s wildly incorrect,” wrote the Washington Post, who gave Justice Sotomayor four Pinocchios for a claim they call “absurdly high.”  According to the Washington Post only 5,000 children were in the hospital with confirmed or suspected COVID as of January 8. According to an interview with CDC Director Rochelle Walensky several days after the Supreme Court oral argument, the number of hospitalized children with COVID is 3,500.

Whether Sotomayor is off by a factor of 20 or 30, the question of how many hospitalized children are in serious condition is not known. Neither is the number of children in the hospital “with COVID” versus the number of children in the hospital “because of COVID.” Indeed, data from around the country suggests that between one-third to one-half of those “with COVID” are admitted for reasons other than COVID and then subsequently test positive. See New York (Daily Mail reporting), Colorado (KDVR reporting), Austin, Texas (NBC News reporting), Florida (Business Insider reporting). Obviously, this is not to say that the issue of children with COVID should be ignored, but it should be self-evident why it is critically important for Justices to rely on actual fact, rather than mythology, when making a decision.

Good Luck, All

After hearing these truly uninformed, rather scary questions, a friend who is not an attorney asked: “Doesn’t the Supreme Court have access to experts? Will someone correct them?”

The answer to the first question is yes, all the facts and truth will be in the filings submitted to the Court; whether they pay attention to that data is another question entirely in an era where the Supreme Court seems uniquely interested in policy and legislating rather than interpreting the law.

The answer to the second question is more disturbing. Only Congress can correct the Supreme Court, which has happened with Congress passing legislation specifically overruling the Supreme Court a number of times throughout America’s 230-year history. But aside from an Act of Congress, the Supreme Court will do whatever they want to do, and if that means getting science wrong, or making up facts, well, that is something you get used to as a patent attorney.

Let’s not forget that the Supreme Court actually ruled that a pH of 5 is equivalent to a pH of 6. Of course, pH is logarithmic, which means that a pH of 5 is 10 times more acidic than a pH of 6. So, while 5 and 6 are close when counting on Sesame Street, they are not at all close when dealing with pH. But then again, the Supreme Court also found magnesium and manganese to be equivalents, and they found that isolated DNA just randomly exists in nature without the assistance of human activity to isolate the DNA. So, this group of jurists are not exactly known for scientific accuracy when it comes to decision-making, even when advocates might be willing to point out that the understanding of Justices is four Pinocchios wrong, or just plain incoherent.

So, good luck to everyone hoping that the Supreme Court takes the American Axle case and rectifies the gross miscarriage of justice of the Federal Circuit. But frankly, the best thing would be for the Supreme Court to simply ignore the case. One can only imagine that this band of scientific heavyweights might think Hooke’s law has something to do with Captain Hook and start asking questions about Peter Pan!

 

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Join the Discussion

31 comments so far. Add my comment.

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    January 12, 2022 06:58 pm

    I chuckled all the way through this. Naturally, you are correct, Mr Quinn, in your imputation that the Court tends to embarrass itself when the justices try to tackle science. It really is too bad. I can think of a solution to the problem when it comes to patent cases, but this example shows that their science-illiteracy extends beyond patent cases.

  • [Avatar for John White]
    John White
    January 12, 2022 07:45 pm

    When “hope” resides in what the Supreme Court may decide, at least with respect to Patent Law, “hope” may well be lost. Whatever fix we have resides in the CAFC. Amici to the rescue!

  • [Avatar for MaxDrei]
    MaxDrei
    January 13, 2022 03:52 am

    Mr Quinn, your piece brings to mind C P Snow’s famous 1959 address on “The Two Cultures” (arts vs sciences). Readers, check it out on Wikipedia. Its most often quoted passage is on point. Here it is:

    “A good many times I have been present at gatherings of people who, by the standards of the traditional culture, are thought highly educated and who have with considerable gusto been expressing their incredulity at the illiteracy of scientists. Once or twice I have been provoked and have asked the company how many of them could describe the Second Law of Thermodynamics. The response was cold: it was also negative. Yet I was asking something which is the scientific equivalent of: Have you read a work of Shakespeare’s?[5] I now believe that if I had asked an even simpler question – such as, What do you mean by mass, or acceleration, which is the scientific equivalent of saying, Can you read? – not more than one in ten of the highly educated would have felt that I was speaking the same language. So the great edifice of modern physics goes up, and the majority of the cleverest people in the western world have about as much insight into it as their neolithic ancestors would have had.[5]

  • [Avatar for Lost In Norway]
    Lost In Norway
    January 13, 2022 05:48 am

    Patent law is difficult. Why are a bunch of people not qualified to pass the patent bar making rulings that are critical to entire technology fields? My guess is pure ego.

    I know that it is too much to demand that the court that is the last word in patent case law, would act be technically qualified to at least understand science. But if they can’t understand the science, shouldn’t they read the briefs and talk to experts?

  • [Avatar for Mike]
    Mike
    January 13, 2022 08:51 am

    It is frustrating that the oral argument didn’t focus on the real benefit of vaccines – it’s not about transmission, it’s about keeping our health care system from collapsing. Of course, scientific expertise, which we all agree the SC should consider, is that vaccinated people don’t end up in the hospital nearly as much. Like a factor of 10 or so. So vaccine mandates are about protecting our healthcare system.

    It’s not surprising that Gene is beating up on these particular Justices given his political leanings. But if his point is the SC ignores science and settled law to damage our patent system, that for the most part sits very much in the laps of Republican SC appointees.

  • [Avatar for Keith]
    Keith
    January 13, 2022 10:35 am

    The merits/benefits of the vaccine and/or the science behind it should not be a consideration. SCOTUS’s job here is to determine if the executive branch overstepped in creating a mandate. Does the executive branch have the power to create a mandate like this or must that come from Congress or the States themselves? When SCOTUS starts debating the rationale for the mandate they are acting in the capacity of another deliberative body (aka Congress). That is not their job.

  • [Avatar for cj]
    cj
    January 13, 2022 11:03 am

    I think everyone here doesn’t get the fact that SCOTUS does not make judgments on feelings or what people think is better. They are here to make sure the law is constitutional and follows our constitution. You want to change the way that works this is what you need to do.

    Authority to Amend the U.S. Constitution

    Article V of the United States Constitution outlines basic procedures for constitutional amendment.

    Congress may submit a proposed constitutional amendment to the states, if the proposed amendment language is approved by a two-thirds vote of both houses.
    Congress must call a convention for proposing amendments upon application of the legislatures of two-thirds of the states (i.e., 34 of 50 states).
    Amendments proposed by Congress or convention become valid only when ratified by the legislatures of, or conventions in, three-fourths of the states (i.e., 38 of 50 states).

  • [Avatar for Paul Cole]
    Paul Cole
    January 13, 2022 11:54 am

    The reference to the 20- (not 30-) year old precedent in Mayo/Prometheus is less than helpful.

    The claim of US 6,355,623 that was in issue in that case read:

    A method of optimizing therapeutic efficacy for treatment of an immune-mediated gastrointestinal disorder, comprising:
    (a) administering a drug providing 6-thioguanine to a subject having said immune-mediated gastrointesti­nal disorder; and
    (b) determining the level of 6-thioguanine in said subject having said immune-mediated gastrointesti­nal disorder,
    wherein the level of 6-thioguanine less than about 230 pmol per 8×10/\8 red blood cells indicates a need to increase the amount of said drug subsequently admin­istered to said subject and
    wherein the level of 6-thioguanine greater than about 400 pmol per 8×10/\8 red blood cells indicates a need to decrease the amount of said drug subsequently ad­ministered to said subject.

    Thiopurine drugs were well-known at the date of the invention, so that there was no novelty in the preamble or in feature (a) of the claim. The formation of the 6-thioguanine metabolite and the method for determining its level were recited in a published paper referred to in the description of the patent, and so that feature (b) also lacked novelty on the face of the document.

    The only two allegedly novel features were those recited in the “wherein” clauses which define the lower and upper levels of the therapeutic window. However, these features recite no more than pure information and do not involve any technical step involving the hand of man. They clearly do not themselves fall into the category of a process, machine, manufacture or composition of matter or improvement thereof which are recited in 35 USC 101 as justifying grant of a patent. They do not support patentability as explained by Justice Breyer in the unanimous decision:

    “These instructions add nothing specific to the laws of nature other than what is well-understood, routine, conventional activity, previously engaged in by those in the field. And since they are steps that must be taken in order to apply the laws in question, the effect is simply to tell doctors to apply the law somehow when treating their patients.”

    If you add the features of periodically checking patient blood level of the thiopurine metabolites and periodically adjusting the thiopurine dosage so as to maintain blood level within the therapeutic window, then the subject-matter is transformed into a method of medical treatment in a widely accepted eligible category.

    The straightforward and easily applicable rule of law that flows from this decision is that the features of novelty in a patent claim have to be defined in terms which fall withiin at least one of the four eligible categories, which are well-known, defined in the statute, and are discussed in the MPEP. The inability of many of our profession to use a student-level legal training to identify the essential facts that led to the decision, derive its correct ratio decidendi and apply that ratio decidendi straightforwardly to the drafting and analysis of future patent claims is astonishing.

  • [Avatar for Anon]
    Anon
    January 13, 2022 12:32 pm

    Mike – sorry, but the only intrusion of politics on reasoning that I see is yours.

    And as for patents, your aim is badly off, given the vast majority of harm to patent jurisprudence has come from the other side of the aisle.

  • [Avatar for Anon]
    Anon
    January 13, 2022 12:38 pm

    Mr. Cole,

    This repeat of your view STILL employs unsound legal reasoning of parsing claims (not taking them as a whole), and conflating such things as novelty with patent eligibility (and that at a piece part level).

    And I won’t even get into the lack of cohesiveness from one decision to another (while processing not to change prior decisions – with such statements being pure balderdash).

    You would seek to “honor” jurisprudence that should be disdained (unanimously arrived at or otherwise).

  • [Avatar for Mia]
    Mia
    January 13, 2022 12:40 pm

    @Mike – if vaccination prevents hospitalization, why are there more people in the hospital now than there were before we had any vaccines? I know that Omicron is more contagious, but it is also generally mild. Also, more people are vaccinated now that at any time throughout the pandemic (63% fully vaccinated, 23% boosted, and another 12% with at least one vaccine), should we not expect to see a reduction in hospitalizations, not an increase? There is no rationale for mandating a vaccine that doesn’t work, especially a vaccine using new technology for which we have no long term safety data, and for which we have already seen a risk of serious injury and death in the short term, especially to younger people. I can assure you this has nothing to do with my political leanings, it’s just common sense. I hope the SC applies some common sense, which thus far has been shown to be in very short supply.

  • [Avatar for Model 101]
    Model 101
    January 13, 2022 12:56 pm

    Ahhhh… they’re Supreme Megalomaniacs.

  • [Avatar for Eileen McDermott]
    Eileen McDermott
    January 13, 2022 01:25 pm

    “if vaccination prevents hospitalization, why are there more people in the hospital now than there were before we had any vaccines?” – while overall hospitalizations in the US may be higher due to the more infectious nature of Omicron and because the virus is everywhere now, in New York for instance, ground zero for the pandemic in 2020 when the rest of the country was still largely unaffected, overall hospitalizations are much lower than they were at the worst point in 2020, due to vaccines (6000+ now versus 19,000 in 2020). Also, we’re far below the record for deaths/ critical care, and nearly all patients on ventilators are unvaccinated according to most hospitals’ stats. So the vaccines undoubtedly work.

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    January 13, 2022 01:54 pm

    Does the executive branch have the power to create a mandate like this or must that come from Congress or the States themselves?

    This framing misstates the question. Pres. Biden asserts two grounds for the mandate: (1) an OSHA regulation; & (2) a restriction on where government funds might be spent. The second applies only to government employees and contractors, while the first applies to all workers in the U.S. (even private sector workers).

    Neither of these are any sort of arrogation of authority to the executive branch. The Occupational Safety & Health Act is a duly enacted act of Congress (29 U.S.C. § 651 et seq.), so no additional action from Congress is necessary for Pres. Biden to take this action. The question at issue is not whether Pres. Biden has the power to act under OSHA, but rather whether Congress was entitled to grant such powers (or whether such regulations of workplace safety are more properly the domain of state police powers).

  • [Avatar for Paul F Morgan]
    Paul F Morgan
    January 13, 2022 02:08 pm

    Biased ignoring of worse factual assertions in oral argument by conservative Justices? “The Supreme Court on Monday issued a [very rare] revised transcript of oral arguments over a Biden administration vaccine rule that “clarified” a statement Justice Neil Gorsuch made about the number of annual flu deaths. The original, “uncorrected” transcript quotes Gorsuch as saying he believes the flu kills “hundreds of thousands of people every year.” [Order of magnitude off.]
    My all time favorite is Justice Robert’s “factfinding” that the former slave states are no longer trying to prevent black voting, so their statutory federal supervision is not longer needed.

  • [Avatar for Paul Cole]
    Paul Cole
    January 13, 2022 03:05 pm

    @ Anon

    Your criticism of my legal reasoning is equally applicable to that of Justice Breyer.

    Even more significantly, you have not provided a credible explanation as to why the claim in Mayo when considered as a whole relates to subject-matter that is both novel as required by section 101 and patent eligible.

    My published work includes reasoning why the well-known decision in the A & P case was flawed and the claimed subject-matter should have been held to be patent eligible. Unfortunately I have not identified any similar reasoning for Mayo.

  • [Avatar for Anon]
    Anon
    January 13, 2022 03:47 pm

    Respectfully, and noting that one cannot avoid the politics, the definition of “vaccinated’ itself has changed, and whether “it works” would be answered differently PRIOR to that change and now.

    In other words, as a vaccine (non-politically defined), it does NOT work. As a health assist, it certainly does work.

    This is not an idle distinction when the level (Federal) and nature (intrusive injection into a person’s body) are considered.

  • [Avatar for Model 101]
    Model 101
    January 13, 2022 04:23 pm

    Gene…I feel proud to add to your blog.
    Thank you for saying this.
    Your name is on it.
    I agree!

    Courage is what it takes.
    You have it.

  • [Avatar for Anon]
    Anon
    January 13, 2022 06:40 pm

    Mr. Cole,

    Nothing like doubling down on your error (my emphasis): “as to why the claim in Mayo when considered as a whole relates to subject-matter that is both novel as required by section 101 and patent eligible.

    There is NO novel as required by section 101.

  • [Avatar for Anon]
    Anon
    January 13, 2022 06:42 pm

    I see that Mr. DeLassus knows as much about OSHA as he does about software.

    It’s dangerous to be so assured when so wrong.

  • [Avatar for Paul Cole]
    Paul Cole
    January 14, 2022 04:33 am

    @ Anon

    35 USC 101:

    “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.”

    It is therefore beyond doubt that the requirement of novelty is common to 35 USC 101 and 35 USC 102, and the more detailed definitions in 102 are consistent with, but do not remove, the novelty requirement of 101.

    The analysis of the ratio decidendi in Mayo is consistent with the principles set out by the distinguished UK and UK law lecturer Arthur Goodhart, Determining the Ratio Decidendi of a Case, The Yale Law Journal, Vol. 40, No. 2 (Dec., 1930), pp. 161-183 in which he explained that: “The principle of the case is found by taking account (a)
    of the facts treated by the judge as material, and (b) his decision as based on them.”

    In Mayo, the material facts are as set out in my earlier comment. The most important part of Justice Breyer’s decision is at II where he holds that the wherein features simply set forth a natural law, the administering step simply referring to a pre-existing audience of doctors who administer thiopurine drugs, and the metabolite determination step being a well-understood, routine and conventional activity (possibly an over-statement since the determination step had been newly described in a paper referred to in the description). Judge Breyer went on to explain that:

    “Fourth, to consider the three steps as an ordered combination adds nothing to the laws of nature that is not already present when the steps are considered separately. See Diehr, supra, at 188 (“[A] new combination of steps in a process may be patentable even though all the constituents of the combination were well known and in common
    use before the combination was made”). Anyone who wants to make use of these laws must first administer a thiopurine drug and measure the resulting metabolite concentrations, and so the combination amounts to nothing significantly more than an instruction to doctors to apply the applicable laws when treating their patients.”

    Notwithstanding the lengthy further analysis, the material facts and the relatively simple and straightforward rule of law derivable from them are as set out in the earlier comment.

  • [Avatar for EG]
    EG
    January 14, 2022 08:15 am

    When I saw the video of what Sotomayor said during oral argument, my draw dropped. She made 2 totally incorrect statements on the facts as to omicron being more virulent and the number of kids hospitalized/on ventilators. Kagan made the nonsensical statement that these vaccines prevent spread-they don’t. Breyer made a puzzling statement as well. Either they are clueless on the science/facts or more ominously deliberately deceptive, take your pick. And their dissenting opinion later reflects the scary view that the executive branch can change the authority specified by Congress of the agency by simply invoking that “there’s an emergency.” And when it comes to the science, sadly it’s not just these 3 Justices that fail to understand it as we in the patent field have seen now for at least 2 decades. I’ve been retired now two and a half years and am not looking back.

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    January 14, 2022 10:13 am

    Kagan made the nonsensical statement that these vaccines prevent spread-they don’t.

    It is too early to say whether the vaccines prevent spread of omicron. There is no peer-reviewed study of sufficient statistical power out yet to answer that question. Justice Kagan may be right or she may be wrong. Clearly, however, she was speaking without knowledge.

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    January 15, 2022 03:39 pm

    [I]f vaccination prevents hospitalization, why are there more people in the hospital now than there were before we had any vaccines?

    You have neatly put your finger on an illustration of the point that it is not enough merely to vaccines. People need actually to take them in order for the effects to show up on a public health scale.

  • [Avatar for Anon]
    Anon
    January 16, 2022 12:45 pm

    Mr. Cole,

    We have covered this error of yours previously of trying to parse a single word of Section 101 as if that word was a “requirement.”

    First, the word you parse is properly understood as a compound phrase “new and useful” and is a US legal term of art. If you are going to opine on US law, you need to accept that such terms of art exist and not read your own desired narrative into the text.

    Second, and only but for argument’s sake, let’s ‘entertain’ the thought that Congress actually wrote a novelty requirement into Section 101.

    Please precisely tell me what Congress wrote this novelty requirement to be. How is this requirement met? Why would this requirement be any different than the actual section of law (written by Congress) that actually provides parameters of the requirement?

    As you like to opine on US Law, you also should be familiar with the concept of Void for Vagueness, and as you want to draw “requirement” from a single word — you should note that there is no actual requirement there (by Congress – and please note that any delegation of our Constitutional authority from one branch to another is covered by strict conditions – conditions absolutely absent in 35 USC 101. In contrast, see 35 USC 283 wherein Congress DID share its authority.

    These are not new points put to you — and you being a teacher of law (and someone who has put themselves forward to influence US law through your amici actions), I expect you to do better.

    We simply do not need ‘friends of the court’ that do not reflect the law as written by Congress.

  • [Avatar for Paul Cole]
    Paul Cole
    January 17, 2022 05:48 am

    @Anon

    Despite the blather, you have STILL not identified a flaw in the judicial reasoning in Mayo and explained why the claim should be held patent-eligible.

    And please provide judicial authority for the proposition that “new and useful” does not make two distinct requirements of novelty and utility.

  • [Avatar for Anon]
    Anon
    January 17, 2022 11:30 am

    Mr. Cole,

    Instead of merely labeling what I put to you as blather, why do you not instead answer that point.

    That is, what EXACTLY is the novelty requirement of 35 USC 101?

    Do you understand the US separation of powers doctrine?

    Do you not see your attempt as having a fatal flaw of Void for Vagueness?

    Rather than thinking that I have been blathering, you have some substantiation to do.

    And no, merely saying “the Justice in Mayo did X” does NOT help you because the bottom line here (the scoreboard is broken) is that Mayo was a downright asinine decision. Please do not clench tight your eyes to the ability to apply critical reasoning and accept anything that is fed to you as “must be right.” It is beyond clear that the Supreme Court writings — in and of themselves — have presented such a self-conflicting and unsupportable set of contradictions that prominent members of each of our three branches of government have stated that the jurisprudence is not workable.

    I will take any mindless insistence from you that “well, it must be right” AS the blather that you would accuse me of.

    Time for you to step up and defend your position.
    If you can.

  • [Avatar for Anon]
    Anon
    January 17, 2022 02:52 pm

    If you need help contrasting the non-vague content of ACTUAL novelty requirement under US law, I am happy to share:

    https://www.ipwatchdog.com/2017/06/10/patentability-novelty-requirement-102/id=84321/

    Let’s see your (non-blathering) equivalent for novelty under 101. And you do not even have to use non-legislative “judicial authority.” Quite in fact, your credibility would be enhanced (neigh, present) if you were to use legislative authority.

    Do you have something?
    Anything?

    Bueller?

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    January 18, 2022 12:05 pm

    [P]lease provide judicial authority for the proposition that “new and useful” does not make two distinct requirements of novelty and utility.

    Actually, judicial authority would be the only sort of authority that one might cite for this proposition. Obviously, there cannot be legislative authority for the proposition that a statutory text should not be read in its plain sense. The idea that it should not be read in its plain sense–that “new and useful” should, instead, be treated as a sort of single, compound word–can only come from judicial treatment of the statutory text.

    The best authority for the proposition that “new” in §101 is a dead letter comes in In re Bergy, 596 F.2d 952, 961 (C.C.P.A. 1979):

    Section 101 states three requirements: novelty, utility, and statutory subject matter. The understanding that these three requirements are separate and distinct is long-standing and has been universally accepted. The text writers are all in accord and treat these requirements under separate chapters and headings. See, e. g., Curtis’s Law of Patents, Chapters I and II (1873); 1 Robinson on Patents §§ 69-70 at 105-109 (1890); 1 Rogers on Patents (1914); Revise & Caesar, Patentability and Validity, Chapters II, III, IV (1936); Deller’s Walker on Patents, Chapters II, IV, V (1964). Thus, the questions of whether a particular invention is novel or useful are questions wholly apart from whether the invention falls into a category of statutory subject matter. Of the three requirements stated in § 101, only two, utility and statutory subject matter, are applied under § 101. As we shall show, in 1952 Congress voiced its intent to consider the novelty of an invention under § 102 where it is first made clear what the statute means by “new”, notwithstanding the fact that this requirement is first named in § 101.

    As you can see, this authority definitely treats each of “new,” “useful,” and the categories as separate and distinct requirements. It also, however, contends that we are not really supposed to think about “new” when applying §101, but instead should leave that consideration entirely for §102.

    I think that the CCPA’s approach here is a sound one. As it happens, however, the Supreme Court vacated Bergy when it took cert. on Chakrabarty. Therefore, Judge Rich’s Bergy opinion remains only as persuasive authority, not binding authority.

  • [Avatar for Anon]
    Anon
    January 18, 2022 01:56 pm

    To Mr. Delassus’s point, Chakrabarty subsumed Bergy – and thus this was not only persuasive authority but binding authority.

    But more to the point, has Mr. Cole actually complied with my point (instead of deviating into baseless insults), he would have quickly realized how correct I was: there is no “novelty” requirement in 35 USC 101.

    But perhaps he still wishes to teach us all a lesson and explicate the difference in novelty between 101 and “the conditions and requirements of this title” outside of 101.

    Speak friend (but stay on point and away from the mindless insults).

  • [Avatar for Anon]
    Anon
    January 23, 2022 11:01 am

    On the verge of this article (and more at point – the comments to this article) going to page three, let the record reflect that Paul Cole has no actual answer to the point put to him.

    So the next time (and rest assured, there will be a next time) we happen upon the fallacy of “novel requirement under 35 USC 101, we may remember to reflect that Paul has offered no substantiation (or differentiation under the law — especially in relation to he words of 101 itself: “subject to the conditions and requirements of this title“; that is perhaps Paul thinks that ALL ‘requirements of this title’ necessarily have “101 version.”

    Paul instead resorted to ad hominem fallacy and refused to address the point put to him.

    Refused, perhaps because he realized that I simply have the better view and that he has nothing on his side. The elapsing of time, and the slippage of this post into the dusty halls of memory cannot change what Paul lacks.

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