Why did the Supreme Court intentionally destroy the U.S. patent system? That is a question many have been asking themselves in the wake of more than a decade of dubious decisions that continually erode patent rights and limit what is patent eligible. There is little doubt the Supreme Court has burned a path through the U.S. patent system as the result of twelve years of activism and implicitly overruling its own prior precedent.
While the Supreme Court is many things, and it is perfectly accurate to characterize this Court as a whole as anti-patent, it is quite another to characterize the Supreme Court as a knowing and intentional actor. That would require a level of understanding and appreciation they simply do not possess. Indeed, this Supreme Court is no more an intentional actor than a three-year-old. Whether as the result of hubris, complete indifference, or lack of aptitude, this Supreme Court is simply uninformed when it comes to patents, technology and the impact both play on the broader U.S. economy.
Yes, of course, the Supreme Court has been overwhelmingly responsible for the destruction of the U.S. patent system over the past twelve years, starting at least since making it difficult if not impossible for victorious patent owners to obtain a permanent injunction against infringers in eBay v. MerchExchange in 2006. What good is an exclusive right without the right to exclude? The Supreme Court didn’t answer that then, and hasn’t seen fit to answer that simple question since. But isn’t that so typical with those with only first level understanding of a subject? When confronted with facts that expose their positions or uninformed opinions for what they really are they simply retreat, ignore, and feign moral injury.
But are they really intentional actors? That would assume the Supreme Court has knowledge and understanding about what they are doing. It would also mean that they could be reasoned with. Simply stated, the Supreme Court, with the exception of Justice Gorsuch, lacks all knowledge and understanding of patents and technology, and there is no reason to believe they can be reasoned with. Yes, Chief Justice Roberts joined Justice Gorsuch in dissent in Oil States, but where has he been in all the other patent cases decided since he has been on the Court?
The Supreme Court is certainly intentionally ignorant, and the hubris they demonstrate even with respect to matters they clearly don’t understand is of epic proportions. And with respect to patent matters, it is if they are the only Supreme Court ever to consider these issues, and certainly the only Supreme Court to ever get it correct.
Over the last several years this Supreme Court has overruled previous panels of the U.S. Supreme Court on matters of patent eligibility that had been so well-established that it was viewed as heretical to even question. At one time everything made by man under the sun was considered patent eligible. That is what the legislative history of the 1952 Patent Act says, and what every court, including the Supreme Court, had quoted since it was written.
The law as the result of Diamond v. Chakrabarty was that the touchstone of patent eligibility was human intervention and action, which was simply ignored in AMP v. Myriad Genetics. In Diamond v. Diehr the Supreme Court told inferior courts not to conflate novelty and obviousness with patent eligibility, and yet that is exactly what this Supreme Court did in Mayo v. Prometheus and Alice v. CLS Bank. Indeed, the hubris of this Supreme Court is without bounds, throwing settled patent eligibility law dating back generations into uncertainty, overruling their own prior precedent, and deeply injuring American technological competitiveness.
And at the same time the Supreme Court ignores generations of well-established patent law that has enormous implications for high-tech startups and the U.S. economy, in a case where there is absolutely nothing at stake for anyone other than the litigants they extol the importance of following stare decisis.
With such intellectual dishonesty and selective application of legal principles as they and only they see fit, it is understandable that some would believe the Supreme Court is intentionally attempting to destroy the patent system.
It is easy to establish that the Supreme Court does not understand innovation, they don’t understand patent law, and they seem completely incapable of understanding what they are doing to the U.S. economy, or perhaps they don’t care enough to understand. But does that make them intentional actors, or does that make them ignorant actors?
Tucked far away from reality the Supreme Court acts as if they know everything about everything. In a world becoming more complex and specialized by the day it is utter fantasy to believe that a homogenous group of senior citizens from Ivy League schools who have no scientific training possesses the breadth and depth of knowledge to wisely pontificate on any and every subject, particularly those relating to cutting edge technology. And specifically issues that will directly affect the U.S. high-tech economy and American competitiveness.
Indeed, we have proof of the folly associated with thinking that the Supreme Court is sufficiently competent to address issues of patent law and technology that are at the heart of American competitiveness. It is because of the Supreme Court that high-tech startups are unable to obtain patent protection necessary to attract investors. It is because of the Supreme Court that entities like the Cleveland Clinic have abandoned entire fields of endeavor, like medical diagnostics. It is because of the Supreme Court that investors interested in artificial intelligence are taking their money to China and funding startups there, where both software and business methods are patent eligible, instead of funding U.S. AI startupus. Investors simply aren’t interested in many U.S. high-tech startups because they know many patents in the software, biotech and medical arenas are extremely difficult to obtain, and even if obtained will be impossible to keep thanks to the curtailing of what is patent eligible by the Supreme Court.
Congress needs to save us from the Supreme Court. They are incapable of forming patent policy, and doing that it isn’t their job in the first place. If they want to be legislators let them resign and run for Congress. In the meantime, it is time for those actually elected to Congress exercise their Constitutional duties and take control of America’s patent policy. This means Congress must legislatively reform Section 101, which must be done in a way that even the Supreme Court will be required to follow the law.
Join the Discussion
67 comments so far.
AnonJune 3, 2018 12:01 pm
JX @ 64,
Excellent youtube link for the insight of Steve Jobs vis a vis power/reward in large scale econ (market) conditions.
JXJune 1, 2018 09:45 pm
Dear Inventor, it is not as bad as it may sound, although I do remember when the filing fee for a utility case was just $85. But gov doesn’t get to do anything without the explicit or implied consent of the governed and argument can be made that the “we the people” have not been eternally diligent in guarding the precious jewel called the public liberty. It is not entirely the blame of the system, since all political power inherently resides in the people ! I have no standing to challenge the will of the masses, if their will is towards ignorance an apathy. Perhaps some might not like this inconvenient truth, but liking it or not is irrelevant, it is like any other fact. If the people want a better patent system, the power is theirs to be had, as simple as clicking the ruby slippers and be home again. Also, relying on a single patent is never a good idea, continuations and design patents and other forms of IP maybe including trade secrets, all remain available to those willing to assert their rights. Having multiple applications raises the risk bar but there is also a certian amount of business acumen savvy needed by the inventor or their team, same as it ever was. Even in Edison’s day, it was largely the same. So, while some recent court decisions can seem discouraging, one can argue that things are same as they ever were. Many make fortunes without the patent system at all, others use it only partially. I think 25 years of practice, I havent’ yet seen a single client inventor make money from just getting a patent, the bottom line is that cash flow is the way to make money, same as it ever was. So, donl’t let court decisions bum you out, a lot of the patents which the Alice decision cut down should have never been issued. Patent examiners aren’t perfect, neither are their bosses, neither are the courts. The only competent authority is the People, and so far, the People have chosen to remain silent. Blame your ignorant neighbors maybe, I tend to blame them for my perceived ills, because their vote counts as much as mine, yet they never graduated from kindergarten
JacquesMay 31, 2018 07:12 pm
Well, I have to admit, I’ve read the original post and ALL of the comments up to this point.
Let me first state, I am not a patent attorney or Agent or anything related to such. I am also not an attorney of any kind. I am a private citizen who has several patents (both utility and design).
Here’s my input. After being granted my patents and paying the required maintenance fees, I am appalled at the fact that someone or group of politicians or Judges can arbitrarily Void my patent(s).
If my initial filings with the USPTO didn’t meet the standards of the patent office, and examiners(s) and my application was incomplete or inaccurate, then THAT would be the time to disqualify my patent. NOT after issuance and various payments made.
IMO, the problem is with the USPTO and their rules and examiners. Put the blame where it belongs.If I’m wrong, please explain.
JXMay 27, 2018 06:29 pm
yawn. its the same old question again – are the Judges making these rulings truly wanting to see companies run by sales and marketing people, or do they perhaps see more benefit to society from enabling the system to instead be product-driven. So far, they’ve made some poor choices, maybe there remains some hope for change https://www.youtube.com/watch?v=-AxZofbMGpM
step backMay 26, 2018 04:52 pm
On all the IPW posts there is a long delay between when Submit is hit and comment actually posts … sometimes on the order of hours
That’s why you see multiple posts of same thing 😉
AnonMay 26, 2018 10:43 am
AnonMay 26, 2018 08:53 am
I am using words to mean as they mean in the legal sense of those words. If one wants to not do so, but to co-mingle a non-legal parlance, that then is the error of the one so choosing.
You fully may choose to attempt a legal discussion in error, just as I may fully point out such.
You will, however, need (Ned?) to be more precise as to what exactly we may be “agreeing to disagree” about.
The fact of the matter is that your path encourages that nose of wax mashing while my path discourages that nose of wax mashing.
Would you not agree – especially in light of the mess created by the Court – that my path is the better path?
step backMay 26, 2018 08:11 am
Here we apparently Ned to agree to disagree.
You say no one can invent new lyric,
You say no one can invent new song,
To any discussion,
Such gibberish naire’ belong,
I beg to differ,
I plead no contest,
Words can be twisted,
Words can be bent,
Like noses of paraffin,
To one’s unholy intent,
You go your way
I’ll go mine
The world will keep spinning
Everything will be fine 😉
AnonMay 25, 2018 07:49 pm
The ** or not reference was inadvertently omitted – See Chakrabarty.
JXMay 25, 2018 06:23 pm
Legislating from the Bench, re the reinterpretation of 101 for so many already-issued patents, at some level seems to have the color or effect of an ex post facto law, without being Law. It renders certain activities illegal (enforcing your previously-issued patent) after a grant of right to exclude others has already been conferred according to the Statutes and implementing Regulations. This whole new notion of judicial exception should be inapplicable to those scores of thousands of already-granted patents it might appear to impact. Doesn’t Equity demand some form of restraint on the few rogues on the Bench, from effectively legislating, ex post facto doctrines into place ?
AnonMay 25, 2018 04:58 pm
step back – sorry, but you have just engaged in a fallacy in your attempted explanation.
There is no such thing as “a new song with unobvious novel music and lyrics”
Items that so clearly do not belong to the Useful Arts simply serve no meaningful role as examples in attempts to explicate the meaning of words “novel” and “unobvious” as those terms are used in patent law.
I had this as a long running issue with the late Ned Heller. Even that other blog had a post dedicated to this as a fallacy a number of years back, with the quote attributed to Wolfgang Pauli of “Not even wrong.” Of course, what this means, is that the attempt is a non-starter, it is nonsense.
You have NOT in fact met the requirements of 102/103/112 as what you seek does not have meaning as those sections of law are understood.
PART of your post is correct, though: this type of item does fail the utility portion of 101 (the Useful Arts requirement – as contrasted with the Fine Arts).
I realize that you may well realize this (but for others who do not), 35 USC 101 can be viewed as having two – and only two – parts:
1) Can an invention be put into one or more** of the statutory categories?
2) Is the utility of the invention of the right type of utility (Useful Arts versus Fine Arts).
That is it. All else that people with different agendas are trying to make 101 into being are messing with what 101 has always been meant to be.
and another part of your post is (sadly) correct: “Your attention is misguided if you keep focusing on the name, “Alice”. Pay attention to the defendant’s name, “[Big] Bank”.”
[Big] Bank is part of the Big Corp “mindset.” It does not matter to them (directly) if NO ONE gets to have patent protection, as they would rather compete on non-innovation factors.
JXMay 25, 2018 04:45 pm
I think, yes, your song being played on a computer should be patent-eligible. It renders the known device to have a new function, namely, playing your new song. Not a H of a lot of novelty there and in the claims you’d probably have to include some “code”, such as the musical score and lyric in order to render the claim patentably distinct. Any such patent however, would be extremely narrow and limited to your one song. Novelty: yes. Obvious: probably not provided the tune wasn’t obvious to try and there wasnt’ motivation in the prior art suggesting the lyric/music combination.
The Public Interest would not be harmed by a patent to the system that plays your song, since the claim language in a properly-allowed case would be limited to that one song. Indeed, your song COULD be part of the useful arts, sonotherapy has been used to lower blood pressure, etc. I have original music I play out and it always makes the audience happy, I could get many to sign Affidavits attesting a beneficial effect on their mood.
Of course, copyright is better, since copyright covers regardless of how the song is played, whether live performance, DVD, or 33 1/3 LP vinyl, etc. Importantly, case law shows that works lacking originality do not qualify for copyright subject matter, kinda the 101 of copyright law, viz., directory listings. One question might be, are the patent statutes being properly applied analogously as how one would disqualify copyright subject matter, as the principle is applied to patents. They’re two different animals, but I see some parallels. Can lack of originality for copyright works be at some fundamental level a parallel extended to disqualifying patents ? I believe yes, if one is merely taking a computer and using it to do what’s already known. You’re right, those are loaded words “what is already known”. But, your original song wasn’t already known.
I’ve had good…. call it luck…. in overcoming multiple and multiple complex 103’s at the Board, I won’t get into it on here its a long-winded topic as you know, but trust me I know 103 well. Every case I’ve seen where “they” are confusing the issues by invoking this 101 under some judicially-created new doctrine, I personally ask myself, why a good strong 103 wouldn’t have worked. I ponder perhaps you could give me any case that’s been rejected under an Alice concept directed to one of these judicial exceptions, that I couldn’t instead formulate an irrefutable prima facie case under 103, to what an applicant was attempting to improperly claim.
Obviousness-type double-patenting is a Judicially-created Doctrine. With our new “judicial exception” language in the guidance, a new Judicial Doctrine is put onto the system – Legislation from the Bench ,some might argue it violates the alleged “separation of powers” concept. I’d concur with that. I think when the Bench makes Law, it opens up a big box of (barnyard explicative). It should be up to the Legislature and not the courts, the courts job is to provide clear and consistent interpretation of the statutes, in my little perfect bubbleworld. Its a matter of practicality for those who push this, its far more expedient to impact/influence a few Judges, than it is to get the Congress to do anything.
My view, we don’t need a re-write of 101 by the Bench. Americans deserve to have Congress make the laws, so they can be represented in the process. I think 103 handles everything pretty well when properly applied. The newfangled re-interpretation of 101 is a dangerous and subversive ruse to our system.
step backMay 25, 2018 01:52 pm
It seems your basic question has not been answered.
” If anyone believes all these issues are irresolvable by a 103 analysis, I’d like to be explained why.”
Let’s say that last night I composed a new song with unobvious novel music and lyrics. I digitized it all and recorded it inside my computer.
Am I entitled to a patent for say, “1. A computer comprising a processor and memory coupled to the processor, the memory having stored therein first data representing my new music and second data representing my new lyrics and further comprising synchronization data for synchronizing the lyrics with the music.”?
It’s not obvious.
I’ve met (assume) all the requirements of 112.
The problem is that my work product is not part of the “useful arts”. It fails the utility part of 101.
As for Alice and 103, I suggest you read the details of the case including the actual claims.
Your attention is misguided if you keep focusing on the name, “Alice”. Pay attention to the defendant’s name, “[Big] Bank”.
Who do you think our “conservative” SCOTUS is going to side with (at all costs)?
Got it? Get it? Good.
AnonMay 25, 2018 01:05 pm
I “get” your point in distinguishing the purposes of 101 and 103 (and have no arguement with that point).
However, your statement of “apply a computer to doing things that are known in the art to do.” packs more than I think that you realize (and is subtly – but importantly – different than your prior statement).
As with any art, if something is known, then it may well be obvious. If individual steps are known, it is NOT a given – NOT a prima facie state – that obviousness is present.
As with any art, the configuration itself – the claim as a whole – is what must be judged under the legal precepts of obviousness.
JXMay 25, 2018 12:38 pm
@ anon, 51, I think it is prima facie obvious to apply a computer to doing things that are known in the art to do. My perspective is that 101 doesn’t apply. Rather, have the examiners and courts apply the Graham analysis. Initially, the examiner will allege a prima facie case for using a computer to do that which is known. Then, the burden shifts to Applicant to refute, as usual. In some cases, the 103 won’t be overcome, in others, Applicant can argue the usual 103 issues and overcome the prima facie case. In my view, there is absolutely no reason whatsoever to even look at 101. A lot of the PTO guidance on Alice is actually part of the 103 analysis anyway. This nonsense about whether the “claim as a whole amounts to more than ________” is a veiled inventive step analysis. The courts have no business whatsoever suddenly changing interpretation of 101, that is for the Congress, and the intent of the statute at its enactment should be what controls judicial interpretation. Re-interpreting 101 in a way that prejudices promotion of the useful arts is mischievous meddling I expect only aids and abets the interests of those foreign to the United States !!
TernaryMay 25, 2018 12:23 pm
I agree Anon. This “just do it on a computer” is often a very difficult technical issue. My impression is in many of these 101 cases an initial reaction is a baseless: oh, I could have done that (if I were a trained engineer/scientist). When the technical issues are considered, the solutions often are not obvious at all. The Courts, (including SCOTUS), faced with these issues have as a gut reaction: this is too simple, I could have done that. But they can not articulate how it could be done. So, they come up with the fundamentally nutty argument that it is “merely using a computer.” Nobody in his right mind would say that a combustion engine is “merely using mechanical parts.”
The “being directed to an abstract idea” is a lazy and dishonest way of saying “if I had unlimited technical skills I could have done that” in order to preempt the next and obvious question “then tell me how you would have done that” to which most of the Examiners and Courts of course have no answer. Alice is the new “flash of genius” requirement.
AnonMay 25, 2018 11:15 am
Respectfully, 103 is much more difficult than a bald pronouncement of “just do it on a computer is obvious.”
There is a famous XKCD cartoon about that (dealing with the difference between a mere GPS lookup and a bird recognition capability).
Beware the trap of “just buy a pizza for a few college boys down at the coffee shop and you will have it over the weekend.”
There is zero meaningful tie to actual law down that path (that path is a mere reflection of an anti-patent Justice with disdain for innovation; well along the expressly rejected Flash of Genius lines).
JXMay 25, 2018 09:41 am
@ Ryan 38, et al., the way Alice could have been better handled was under the existing section 103 analysis. If something is already known, then using a computer to do it should be rejected as obvious. There is no need for a 101 analysis. By doing Alice, they’ve, shifted the focus of the patent lawyers join an issue that should not be an issue and should not be joined. If its the handiwork of Man, its eligible, plain and simple as from Chakrabarty. All the hoopla and mis-direction from all judicial and quasi-judicial bodies concerning 101 issues need to be thrown out the window, including all the PTO guidance. In the place of all that crapola, the instructions to examiners and others need simply to be “do a 103 analysis” If anyone believes all these issues are irresolvable by a 103 analysis, I’d like to be explained why. Thanks !
step backMay 25, 2018 12:36 am
“Directed to an abstract idea” … is utter ..nonsense.
T’is brillik and jaberwock.
That’s how the SCOTU-ties roll.
Knowing full well there will be a cage full of worshiping sycophants pawing at the gates, waiting to be unleashed to interpret for the rest of the world in the typical scholastic manner what the great ones of Mount Olympus meant.
TernaryMay 24, 2018 05:48 pm
Software, when executed on a processor, generate signals that control hardware/devices. In Re:Nuijten it was held that “An apparatus that generates the signal is of course a machine.” The programmed (or configured) processor generates signals that cause a useful action, often in another machine.
What a signal actually means (“the abstract idea”) can only be ascertained through some translation/conversion process, such as conversion of signals into characters on a screen. Before that conversion the whole machine merely executes a (usually unique) physical process of processing and generating signals and as such would be patent eligible. However, by explaining what the signals mean (or how they are interpreted) the machine may now considered to be directed to an abstract idea. In that sense an electronic calculator that performs standard arithmetic is directed to the “abstract idea” of arithmetic.
“Directed to an abstract idea” of computers is utter technical nonsense. There is no scientific or engineering validation to assign the label of “abstract idea” to a machine. A machine is not a human being, has no self awareness and is not able to generate or process abstract ideas. A processor does not know that 6 is greater than 5, or that 1 is greater than 0. It has to be programmed for that. That is how “abstract” computers are.
step backMay 24, 2018 05:26 pm
I wouldn’t be that harsh on Ryan.
As human beings we all live in our private bubbles of delusion.
We all believe we are extra smart and all knowing.
Clearly it is those other people who are unintelligent.
(Of course those of us who are open minded, curious and keep studying soon learn that the more educated we become, the duh_mber we feel because we realize we will never know it all. We will be extremely lucky if ever we get to know and understand even 0.01% of it.)
step backMay 24, 2018 05:25 pm
I wouldn’t be that harsh on Ryan.
As human beings we all live in our private bubbles of delusion.
We all believe we are extra smart and all knowing.
Clearly it is those other people who are unintelligent.
(Of course those of us who are open minded, curious and keep studying soon learn that the more educated we become, the dumber we feel because we realize we will never know it all. We will be extremely lucky if ever we get to know and understand even 0.01% of it.)
AnonMay 24, 2018 01:52 pm
While not precisely agreeing with angry dude here, he has the better position.
Software is a design choice and patent-equivalent to hardware or firmware.
It is clear that Ryan has drunk deep of the lemming school of thought that infests such places as Techdirt and Slashdot. For all the technical competency that may exist in many such programming types, the lack of applied intelligence when it comes to IP is downright startling.
angry dudeMay 24, 2018 12:55 pm
Software = (silicon) hardware (ASIC, FPGA etc)
Write it on your forehead and give it a rest, dude
Gene QuinnMay 24, 2018 10:33 am
The only ignorance here is in your comment. You say you are a software developer and then proclaim to have superior knowledge about the law to lawyers who have practiced in this area for a generation or more. That type of hubris is found only in software developers and Supreme Court Justices. Well done. That level of ignorance is hard to match.
You cry that software patents are the majority of patents as if that is shocking. In a world where practically every innovation is driven by software it is entirely predictable that patents would be directed to software related inventions. So if you are shocked that only demonstrates just how little you know about the topic you are commenting on, and how unjustified your arrogance really is.
TimMay 24, 2018 07:48 am
I tried to post once before. I ask many of you to contact Peter Schweizer. I just finished his last expose’ “Secret Empires”. Great read and well documented about how those in our government use their offspring to make deals that they cannot legally get involved in. And I did a search, yesterday on Schweizer. He’s now doing research and going after Google and big tech for squeezing the little guys. This thread would be a great asset to him! I hope Gene or others can contact him.
TimMay 24, 2018 07:23 am
Great article! I wish you would do a search for Peter Schweizer on the net and send him this thread with a link to your site. I just finished his excellent expose “SECRET EMPIRES”. It will make your blood boil. And now, he’s working on one about the “big techies” and how they have free reign over everyone. “Of course” I wrote him through one of his sites. I hope he see’s the post. I exclaimed briefly about the Vringo case and how a corrupt system tossed a unanimous 12-man jury. Peter would do well with all the great information on this thread! Please contact him! XSPA is now in the $.34 cent range. So sad!
Lost In NorwayMay 24, 2018 05:42 am
One of the big problems is that discussing IP is just not “sexy” for the candidate. I have been trying to come up with a decent “elevator pitch” that doesn’t make me sound like a complete crazy person who hates the SCOTUS with ever fiber of my being.
I love what I do and don’t want to leave the patenting game. But sometimes it’s hard to look a client in the eye and tell them that the US market is a safe place for them.
To the subject of the original article. I can’t believe that SCOTUS does it on purpose, but I will agree that it is hubris. Quite frankly they are not qualified to practice patent law . But since they are the Highest Court In The LAND, they are by definition qualified.
John KMay 24, 2018 02:53 am
RyanMay 24, 2018 12:19 am
This article attacking the Supreme Court is written from the perspective of ignorance. As a software developer, I understand precisely the holding of Alice. In fact, I find it clear as day.
Alice must be understood from the backdrop of software patents, which comprise the majority of patents these days. Alice basically invalidated the “do this thing we already know how to do but use a computer to do it” patents that have flooded the patent office.
As a software developer, I for one would welcome the total demise of software patents; but even allowing for software patents, Alice and other Supreme Court precedents are just a return to sanity.
step backMay 23, 2018 07:57 pm
More briefly, the standard PTO position is that an abstract idea does not become not abstract simply because it is novel or nonobvious. And dressing it up by adding merely generic conventional technology does not save the day when you apply the Alice/Mayo 2-step dance.
Jose NunezMay 23, 2018 07:00 pm
Gene @ 33
I have had several cases with 101 rejections and no prior art rejections. Examiners have always said that novelty does not mean that the claims are not abstract. In one of my cases I brought up the Verint case, something like this:
“As noted by the Examiner, the present claims are allowable under §102 and §103. In re Verint (Verint Sys. Inc. v. Red Box Recorders Ltd., 166 F. Supp. 3d 364, 379–80), the court stated the following:
‘The difference between what the second step of Alice examines, and that which a court would examine in analyses under §§ 102 and/or 103, is that step two of Alice is limited to claimed benefits and improvements, versus true novelty or obviousness as measured against prior art. These inquiries are no doubt closely related. Certainly, if an invention passes a §§ 102 or 103 analysis, it should pass Alice step two. But it may be the case that—as here—there is an insufficient record to analyze inventiveness against the standards in those provisions, and the Court instead must rely on what is claimed in the specification itself.’ (Verint, slip op., at 17, emphasis added).
Here, the claims pass the §§ 102 or 103 analysis. Thus, the prior art does not show that each and every element of the claims was known in the prior art. For this reason, the undersigned submits that the specific elements are not ‘well known, routine, and conventional.’ Therefore, the claims are inventive and non-conventional, and are subject-matter eligible for at least this reason.”
This case was later allowed, but I’m not sure why.
The USPTO holds the position that no prior art does not mean not abstract. The recent USPTO Berkheimer memo states:
“The question of whether additional elements represent well-understood, routine, conventional activity is distinct from patentability over the prior art under 35 U.S.C. §§ 102 and 103. This is because a showing that additional elements are obvious under 35 U.S.C. § 103, or even that they lack novelty under 35 U.S.C. § 102, is not by itself sufficient to establish that the additional elements are well-understood, routine, conventional activities or elements to those in the relevant
field. See MPEP § 2106.05. As the Federal Circuit explained: ‘[w]hether a particular technology is well-understood, routine, and conventional goes beyond what was simply known in the prior art. The mere fact that something is disclosed in a piece of prior art, for example, does not mean it was well-understood, routine, and conventional.’ Berkheimer, 881 F.3d at 1369. ”
That section § 2106.05 of the MPEP states, “Because they are separate and distinct requirements from eligibility, patentability of the claimed invention under 35 U.S.C. 102 and 103 with respect to the prior art is neither required for, nor a guarantee of, patent eligibility under 35 U.S.C. 101.”
step backMay 23, 2018 05:51 pm
Oh no Gene, not you too @33 !
See my posts @22, 23, 25
I can’t think of a case off the cuff, but IIRC there should be many where novelty and non-obviousness did NOT save the devious scrivener from his appointment with the death squad panel.
AnonMay 23, 2018 05:35 pm
good posts, Gene, Ternary, and step back – thanks!
Gene, per your point – how about 102 and 103 rejections based on patents as opposed to patent publications (which may yet fail for any number of reasons)?
One might presume that if a prior art item that has been deemed to pass 101 by the Office is being used in an attempt to deny patentability (as distinct from patent eligibility), that the Office has de facto made a legal admission “against their interests” in regards to ALSO rejecting under 101.
One might presume that in order for any such rejection to “stick,” that the Office must concurrently sua sponte invoke a post-grant process in order to revoke those very granted patents being attempted to be used for 102/103 purposes. After all, is not the Office “concerned” about such “bad patents”…?
Gene QuinnMay 23, 2018 04:17 pm
Do you know of a specific example where the Office has prevented the applicant from pointing to the absence of prior art on 102/103 in order to make the step 2 argument?
I’ve been arguing that the argument should be made that if there is no 102 or 103 rejections then the invention can’t possibly be patent ineligible for a variety of reasons. First, how could it possibly be “abstract” within any fair meaning of that word if it can be evaluated for purposes of 102 and 103? Second, if the examiner cannot find prior art to invalidate then the claim must, as a matter of both fact and law, contain something that is non-conventional. Indeed, the hunt for the inventive contribution is complete by failure to find a 102 or 103 reference. The only caveat being for claims that are so indefinite that a 102 or 103 analysis could not be carried out.
TernaryMay 23, 2018 03:28 pm
Step back, you are right of course, but it may also be too soon for this wake-up call. The real public concern about Japan in the USA arose in the mid-80s only after Japanese companies basically demolished US car and consumer electronics companies. Luckily, at that time already the basics for re-development of novel US technology (microprocessors, wireless technology and bio-tech, plus an emerging VC industry) were in place.
China is not yet at the stage that Japan was then. They may produce good things cheaply and they are extremely entrepreneurial. However, I see not yet revolutionary product ideas coming from China. But I believe they are close to approaching that stage. There seems to be (unjustifiably) little concern policy-wise that China will reach that point anytime soon.
So, unfortunately, whatever we (as representatives of the .01%) say, it currently falls on deaf ears. With Japan, we had enough R&D pipeline to counter that threat as the 1990s demonstrated. Furthermore, Japan really did not want to project and leverage power as a nation. It certainly seems to be different with China, which is and acts as an adversary power to US interests. Russia, which is a clever political operator and an adversary, seems technologically much less of an economic threat.
Still, it seems awfully beneficial to foreign interests how our patent system is being demolished at this very rapid pace. It should be of strategic concern to both our policy wonks and politicians and the general public, before it is really too late. Once we lose the benefit of a strong base of independent inventors (and original thinkers) it may turn out to be impossible to re-create this unique (and almost self-funding) infrastructure.
step backMay 23, 2018 02:21 pm
We have to do the math.
Less than 10% (probably way less) of the American public has education in science and innovation policy.
The vast majority (90% plus) just walk into their local big box store (Walmart, Best Buy, Costco) and find the magical devices always being there, bigger and better every year. (4K HD TV sets, TeraByte memory Computers with Gaming action accelerator boards, Artificial Intelligence Echo Boxes –Alexa do you hear me? Oh so sorry Siri. I meant you.)
Progress is inevitable.
So he needs or cares about inventors and patent laws?
The politicians aren’t go to waste their time with the 0.01% of the population that knows or cares about patent policy.
We have to find the few policy wonks who do care. It’s not the politicians.
PTO-IndenturedMay 23, 2018 02:18 pm
Oops I double posted / pasted @29
Dang, I was stuck atop my soapbox and apparently did not hop off soon enough. Apologies.
PTO-IndenturedMay 23, 2018 02:12 pm
Gene raises an excellent distinction in this post. That there is a BIG difference between ‘thinking you know’ the nuances of a system (having complexities) then pronouncing law bearing long and hard on that system, versus ‘actually knowing’–deservedly, at a steward’s level of understanding–those nuances and complexities then pronouncing law.
Another important point Gene makes is that a worse scenario occurs by ‘thinking you know’ the nuances of a system (when you clearly don’t), pronouncing law bearing long and hard on that system (based on such not-knowing), and then simply conclude your pronouncement is best, despite regularly accruing evidence quite to the contrary.
If, every pronouncement by a body representing a majority of such decision makers, clearly, repeatedly and irreversibly shows harm being caused to a system–that the system keeps getting worse and/or weaker due to such–that body would do well to concede to some lacking of knowledge or awareness and demonstrate in good faith corrective measures it is taking to overcome such.
How tolerant would any one of the SCOTUS judges be if they encountered at trial an individual who, without question, was repeatedly doing harm to many others (reported objectively by many respected in the field, even highest of CAFC judges); that much of the harm was being done out of ignorance, but the individual would show no willingness to improve the lack of knowledge and awareness and just keep doing more harm?
Lacking knowledge or awareness is often a correctable problem–determined by an extent one is willing to learn. Interestingly, the origin of the word “discipline” (and disciple) goes back to a root word essentially meaning ‘one who is willing to learn’. Note that ‘willing to learn’ is a modest threshold, one can otherwise be eager to learn, or love to learn. But showing no willingness, demonstrating no corrective measures, is not in the equation. And in any case knowledge and awareness are not location or person specific, it can be acquired from a number of sources:
One definition of intelligence is “The ability of someone to get the information that they need, when they need it”. With this definition in mind, anybody, including the SCOTUS, can up their game, so long as the ‘acquiring’ is done in a fair-handed manner e.g., serving the highest interests of the most people directly affected, not creating a greater divide between the haves and the have nots.
To paraphrase: As you treat the least among you, so have you treated justice.
Gene raises an excellent distinction in this post. That there is a BIG difference between ‘thinking you know’ the nuances of a system (having complexities), then pronouncing law bearing long and hard on that system, versus ‘actually knowing’–deservedly, at a steward’s level of understanding–those nuances and complexities, then pronouncing law.
Another important point Gene makes is that a worse scenario occurs by ‘thinking you know’ the nuances of a system (when you clearly don’t), pronouncing law bearing long and hard on that system (based on such not-knowing), and then simply conclude your pronouncement is best, despite regularly accruing evidence to the contrary.
If, every pronouncement by a body representing a majority of such decision makers, clearly, repeatedly and irreversibly shows harm is being caused to a system–that the system keeps getting worse and/or weaker–due to such, that body would do well to concede to some lacking of knowledge or awareness and demonstrate corrective measures it is taking to overcome such.
How tolerant would any one of the SCOTUS judges be if they encountered at trial an individual who, without question, was repeatedly doing harm to many others (reported objectively by many respected in the field); that much of the harm was being done out of ignorance, but the individual would show no willingness to improve the lack of knowledge and awareness causing the ongoing harm?
Lacking knowledge or awareness is often a correctable problem–determined by an extent one is willing to learn. Interestingly, the origin of the word “discipline” (and disciple) goes back to a root word essentially meaning ‘one who is willing to learn’. Note that ‘willing to learn’ is a modest threshold, one can otherwise be eager to learn, or love to learn. But showing no willingness, demonstrating no corrective measures, is not in the equation. And in any case knowledge and awareness are not location or person specific, it can be acquired from a variety of sources:
One definition of intelligence is “The ability of someone to get the information that they need, when they need it”. With this definition in mind, anybody, including the SCOTUS, can up their game, so long as the ‘acquiring’ is done in a fair-handed manner e.g., serving the highest interests of the most people, not creating a greater divide between the haves and the have nots.
To paraphrase: As you treat the least among you, so have you treated justice.
Night WriterMay 23, 2018 02:00 pm
I actually interacted with my congressional candidates on FB about IP law. Not one had an intelligent thing to say. Not a priority to even figure it out.
PerkinsMay 23, 2018 01:05 pm
I’m trying to get all of my state candidates in the midterms to state whether or not they support strengthening patents and improving protections for small business. Unfortunately the responses I am getting are form letters that amount to no answer at all. Is it possible to elevate these matters to election issues for the general public thereby forcing the candidates to expose their positions? Of course that will lead to questions about whether they really mean what they say but at least it would be a start.
PTO-IndenturedMay 23, 2018 11:47 am
Note to SCOTUS: Disrelate Cause and Effect — Injustice Abounds
Where patent rights and their crystal clear protection built into the U.S. Constitution are concerned, SCOTUS has turned a blind eye and a deaf ear. And has done so no matter how consequential their decision making has been. U.S. patents previously having a limited ‘twenty year life’ are ousted/rendered toothless, replaced by a new era of strong-arm monopolies of unprecedented size, power and ‘influence’ (countable on one hand) instead sustained, unassailably in perpetuity. Keep patent law ambiguous long enough for patent applications to be intentionally abandoned or expire and the same companies subsume the IP via the public domain bolstering their positions all the more.
Consequence alone could have been a guiding light of an imminent/urgent need for course correction, but SCOTUS’ non-reaction was–even while the U.S. patent system plummeted from 1st-ranked to12th-ranked worldwide (and spiraling further downward?) as if their amibiguities urged into patent law had played no role, as if, such decisions were void of the consequential (all that was consequential being void of consideration). As if effect completely disrelated from cause was some new/preferred form of jurisprudence.
What do I mean by ‘the conseqential’ (not taken into account), the: big, decisive, earnest, earth-shattering, earthshaking, epic, eventful, fatal, fateful, grave, heavy, historic, important, major, material, meaningful, momentous, monumental, much, serious, significant, sincerely of concern, strategic, substantial, tectonic, weighty…
Good law, is just and fair law, and to render even an ‘appearance of fairness’ must take into account the consequential. Such has not been the case in SCOTUS’ stewardship of U.S. patent law. It is has instead relegated, arguably the finest, most innovative patent system in the world, to the ‘rank’ of a third-world system. The extent of the cause and effect impact not taken into account is unfathomable.
step backMay 23, 2018 11:40 am
sb @23 continued …
To fully understand, you have to re-red the original Alice v. CLS Bank decision.
The SCOTU-ies concluded that you and your devious scrivener attorney are witch and warlock.
You stood over your magical cauldron and brought forth from the depths of Hades this monstrous thing called, an abstract idea.
Then you hid your evil deed by covering it up with generic over-clothes. You did not truly invent something in the first place and you did not add “something more” in the second instance.
A witch/warlock detection test has to be fashioned to find you out. Hence, the Alice/Mayo 2-step dance.
PatdadMay 23, 2018 11:39 am
As a patent attorney prosecuting applications for over 35 years, I understand the 2 step Alice process, and the confusion that has resulted. I agree it currently is complex, but should not be. A return to Chakrabarty would be better – anything under the sun made by man. So (simplistically), once the invention is made (reduced to practice, beyond the abstract concept), it is patent eligible. Whether it meets 102, 103 & 112 are separate issues.
step backMay 23, 2018 11:32 am
sb @ 22 continued …
A proper 101 Alice/Mayo rejection for abstract idea, if you get one to begin with because even many an examiner don’t understand how to do it, starts off with an allegation of what abstract idea your claims are “directed to” and some sort of justification for why that is the proper level of abstractionation.
Then there has to be an analysis showing why there is no “something more” other than the addition of conventional, routine and well-understood other stuff (i.e. generic computational functionality).
If the above sounds to you like a lot of gobbledygook, you’re right it is. But that is the way the game is currently being played.
It has nothing to do with whether you can touch it, feel it, etc.
step backMay 23, 2018 11:23 am
A large number of people read this blog without chiming in.
I’m glad you did because many readers like yourself probably understand the Alice/Mayo 2-step dance at that rudimentary level.
However, if you get a 101 Alice/Mayo rejection from the US Patent Office and try to fight it that way (whether pro se or even with aid of an agent/attorney) by saying my invention is not “abstract” because I can touch it, you will lose.
The Alice/Mayo 2-step dance is far more devious and complex than that rudimentary understanding. (To be continued in a below posting …)
Night WriterMay 23, 2018 09:14 am
The most disappointing part of Oil States was that Alito did not go along with Gorsuch. That means that rather than 2 we need an almost impossible 3 new justices. I just hope that dumb a$$ Ruth retires/leaves soon.
EGMay 23, 2018 08:43 am
Whether SCOTUS is intentionally destroying the U.S. patent system or not, it is clearly “legislating patent policy from the bench,” as the Imperious Seven so obviously did most recently in Oil States, as well as so despicably in Alice, Myriad, and Mayo. Only the newest (and in my view, most enlightened) Justice on the bench (Gorsuch) understands the harm that creates to the U.S. patent system. We need 4 more like Gorsuch on the SCOTUS bench to turn this disastrous tide that is killing U.S. innovation by the Davids while the multinational Goliaths in Silicon Valley smirk with glee.
PatdadMay 23, 2018 08:37 am
I agree that “abstract idea” should not be an exception. An abstract idea is the beginning of innovation, i.e., let’s find a cure for cancer. Once there is a reduction to practice, either actual or constructive via an enabling patent application, then the inventor has moved beyond the abstract idea stage. Even more troubling is how a commercially available product/process, which is generating revenue via buyers and sellers in the marketplace, is “abstract.” If you can touch, feel, see and/or use the invention, how is it “abstract”? Concluding that commercially valuable inventions somehow revert to an abstract idea is a non-sequitur.
AnonMay 23, 2018 08:09 am
Nice post and link.
From that link: “The word gibberish is more commonly applied to informal speech, while gobbledygook (sometimes gobbledegook, gobbledigook or gobbledegoo) is more often applied to writing or language that is meaningless or is made unintelligible by excessive use of abstruse technical terms. “Officialese”, “legalese”, or “bureaucratese” are forms of gobbledygook. The related word jibber-jabber refers to rapid talk that is difficult to understand.”
I am reminded (immediately) of the anti-software posts (and celebrations thereof) on that other blog of the academic Prof. Collins, who would take a rather simple concept and so inflate the concept with his own brand of mental constructs as to render the discussion UNintelligible. It is quite easy to see through such kicked-up billowing dust by noting “the company they keep” and seeing who cheerleads on such non sense.
JasonMay 23, 2018 06:39 am
I would like to point out some irresponsible discussion of patentability standards in China. You say that China considers software and business method patents eligible. This is a half truth in that they have a European style approach to eligibility but consider “technical” subject matter under inventive step. In effect this this raises the “eligibility” for software and business methods to a higher standard than the US. I know this as a professional of a foreign county with a close eye on the law of all major jurisdictions. But I suppose half truth is what one should expect from this site…
step backMay 23, 2018 12:20 am
“so they have to come up with the Alice framework”
Jose Nunez @15
Not disagreeing with most of what you say.
However there is a contradiction in logic when you say “they” (the SCOTU-ies) are clever enough to come up with the Alice 2-step dance and yet not smart enough to understand them there 21st century new fangled inventions.
In all likelihood “they” did not come up with any of it. Somebody fed it to them. Just like some “friends” of the court and country feed them all their lines.
As Night Writer aptly points out, a “real” appellate court wouldn’t contrive factual conclusions such as that one where patents “may” stifle “innovation.” A real appellate court wouldn’t place itself into the shoes of real scientists and decide what constitutes “abstract” ideas, laws “of nature” and “natural” phenomenon.
These are not real appellate judges. They are merely mindless vessels in black robes with strings pulled by behind the scene puppet masters.
All this is gobbledygook talk was clearly conjured up by far more masterful wizards of the manipulable human mind and the wax-nosed English language.
Jose NunezMay 22, 2018 05:48 pm
Thank you. I couldn’t agree more. How can a bunch of old lawyers decide the boundaries of technology where innovation takes place? They don’t understand technology so they have to come up with the Alice framework to allow them to decide if something is an invention without having to justify their reasons.
The old fashion way of looking to see if something has been done previously did not leave enough room to kill technology developments at will.
For example, the Federal Court deciding to kill an encryption patent by saying that it was similar to the famous “one if by land, two if by sea” signaling system is an insult to all engineers and their efforts to improve technology, minimizing the challenges that privacy protection requires today.
To stop bad ideas from becoming inventions, all the Courts have to do is to apply the existing law: 101, 112, 102, and 103. There is absolutely no need for an abstract idea exemption, which by its own nature an amendment to the law created by the Supreme Court.
Amending 101 would be a good solution. But Congress telling the SC to apply the existing law without amendments would also suffice. Congress makes laws, not the Supreme Court.
Night WriterMay 22, 2018 05:37 pm
You are right in that changing “may” to “would” is quite a leap. And, I remember many times you have said that these lines of cases are unconstitutional because of the “may.”
AnonMay 22, 2018 02:57 pm
JNG @ 4,
Thank you for that link.
Let me point out one (not small) error in that write-up, occurring on page 4:
“In interpreting this statute, the Supreme Court emphasizes that patent
protection should not preempt “the basic tools of scientific and technological
work.” Gottschalkv. Benson, 409 U.S. 63, 67 (1972); Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71 (2012); Alice Corp. Pty.
Ltd. v. CLS Bank Int’!, 134 S. Ct. 2347, 2354 (2014). The rationale is that
patents directed to basic building blocks of technology would not “promote
the progress of science” under the U.S. Constitution, Article I, Section 8,
Clause 8, but instead would impede it. Accordingly, laws of nature, natural
phenomena, and abstract ideas are not patent-eligible subject matter. Thales
Visionix Inc. v. U.S., 850 F.3d 1343, 1346 (Fed. Cir. 2017) (citing Alice, 134
S. Ct. at 2354).”
The error here is that the Court NEVER used the words “would” – or made such a definitive statement,
Rather, the actual words – and the actual basis of this seemingly grab for power – uses the subjective, projecting, (and lack of current case or controversy) word of “may” – as in, the view expressed by the Court naturally includes the meaning of “but may not.”
In truth, as the Court is attempting to foretell a future event of what may or may not happen (innovation may or may not be “impeded”), there CAN BE NO affirmative use of the word “would.”
And quite in fact (as noted on another thread by Joachim), the action of BLOCKING someone has long and historically been recognized as a DRIVER of innovation (along the lines of “necessity is the mother of invention”). ANY such blocks as may occur with a granted patent carry with it a mandatory expiring lapse of control, which also bespeaks that the “b00geyman” conjured up by the Supreme Court is just that: a b00geyman.
The ensuing confusion/conflation of “old” with “abstract” – as offered by the panel, NEVER GETS AROUND to actually defining “abstract.” All it does is parrot the nonsense mouthed by the Supreme Court.
Quite in fact, while reading through the pages (spefically 9-10), it becomes easy to forget that 101 is under discussion – and that 102 or 103 is NOT under discussion. Sprinkle in a healthy discombobulation of 112 (mistaking breadth for “vagueness”) through pages 11-12 and what one ends up is an entirely unmitigated mess.
This too – as I have many times provided – is nothing more than the fruits of our Supreme Court attempting to not recognize what happened in the Act of 1952.
temoritMay 22, 2018 02:43 pm
American Cowboy – I presume you are talking about the Murray Gell-Mann Amnesia effect. Because we know about patent law, we see the errors in the Court. But because we are less knowledgeable about other areas of law, we assume that the Court is competent in those areas. You are right that the Court may be just as misguided in other areas.
ValuationguyMay 22, 2018 02:37 pm
Not advocating giving up. I was prodding for more info on who our allies are in Congress (particularly in the House)….because the only ones I have heard from was Coons in the Senate .
For the most part the only names that have mattered (since they drove the entire agenda) for past 6 years in the House have been Goodlatte and Issa…..and they are finally gone (in January) and I’m extremely curious as to the political winds of who would replace both. Is Sensenbrener an ally/foe/neutral? Lemar Smith doesn’t strike me as an ally.
I agree wholeheartedly about Nadler being bad if the Dems take control of the House….but I don’t see this happening. (And I think Zoe Lofgen would be much WORSE than Nadler so God help patent owners if the Dems do take control)
Thanks for updating me in your reply.
AnonMay 22, 2018 02:16 pm
My main problem with the “they are merely like a three-year old” argument is that such effectively denies culpability for actions that – at the least – exhibit a nigh-criminal disregard for maintaining that lack of understanding.
It’s not as if we all do not know or understand the gravity of the role that the Supreme Court fills.
American CowboyMay 22, 2018 01:27 pm
Just curious. Is it only patent law that Scotus is screwing up? How about other fields, say, FERC law, or FCC law, etc.?
I am not defending Scotus here, just wondering what the facts are.
Night WriterMay 22, 2018 01:13 pm
I would add too that none of this hard. What they have done is easy. For Alice, for example, they just generated some ridiculous test for abstract that can cover any claim —they knew exactly what they were doing. They also made the test as distant from any factual findings as possible to aid in SJ. Both of these generations of new law were easy.
Night WriterMay 22, 2018 12:58 pm
>t is easy to establish that the Supreme Court does not understand innovation, they don’t understand patent law,
So what? They know what they are doing with the law. They don’t need to understand patent law or science/technology to burn it down.
Night WriterMay 22, 2018 12:57 pm
There is no doubt in my mind that they know exactly what they are doing.
As I said, I predicted years before Alice/Bilski that the SJ would use 101 to create a case so that district court judges could invalidate all the claims on SJ. I was right. And as soon as I read Rader’s concurrence in Bilski, I said this will be it. Abstract.
The SCOTUS has a long history of knowing how to weaken statutes/common law. They know exactly what they are doing.
angry dudeMay 22, 2018 11:57 am
Scotus has been catering to BIG corporations for a very long time – not just patent-related but their other landmark decisions like Kelo and Citizens United are completely outrageous to any ordinary US citizen (if properly explained in layman language)
Me thinks those dudes should be impeached for violating US Constitution in a broadest sense on many occasions
(Gorsuch may stay though – he is new and not corrupt..yet)
Alas ..not gonna happen…
JNGMay 22, 2018 11:50 am
Hey Gene, great article! I agree SCOTUS has uniformly trashed patent rights. But what’s worse, to use a hockey-analogy, are the growing number of “non-calls” happening on a daily basis at the PTO, particularly at the PTAB, which continues to invent its own bastardized § 101 jurisprudence. They need to be reined in like… yesteday. Take a look at this one from today:
Notice the sleight of hand here that imposes a new double standard? By the PTAB’s logic, the Examiner can cite to the presence of something in the prior art for part 2 of the Alice test to prove conventional, routine, etc. But can the Applicant use the ABSENCE of that thing in the art to show “inventive concept”? NOT ON YOUR LIFE. That’s because, when the shoe’s on the other foot, the PTAB says “you can’t do that, 102/103 are separate from 101.” The intellectual dishonesty is thick as a London fog over there.
CuriousMay 22, 2018 11:48 am
Whether intentional or not, there is no question that nearly every decision by SCOTUS that touched upon patent law in the last decade plus has eroded patent rights. While this is great for the Googles and Facebooks of the world, it has been a disaster for independent inventors. Even if there is a change in the makeup of SCOTUS over the next few years, I don’t see the promise of significant change. Both Thomas and Alito have shown that they are not friends of inventors, and the liberal side of the court seems to be content to let the US patent system burn to the ground. That’s just too many votes against inventors as it is.
Gene QuinnMay 22, 2018 11:39 am
I could be wrong, but I don’t think the Senate is going to be the heavy lift for pro-patent reform in the next Congress. I think it will be the House. If the Dems win the House that means Congressman Nadler will almost certainly take over Judiciary. He is largely indistinguishable from Goodlatte it seems. If the Republicans hold the House it will be a much better playing field.
As for the Senate, Feinstein allowed Coons to step up during the last hearing, and Senator Harris was vocally supporting patenting of algorithms for artificial intelligence. The Committee also includes Durbin and Hirono, both of whom are pro-patent. Grassley seemed resigned to the fact that the glory days of reducing patent rights are over. I sense the tide is turning.
While I understand the skepticism and doubt, now is not the time to give up.
ValuationguyMay 22, 2018 11:24 am
Good luck with that Gene. If you are going to advocate for Congressional support…it might be useful to point out who (with Seniority) would be the most useful to be chosen for key committees in the upcoming Congress. Goodlatte and Issa are gone from the House…and Sessions already left the Senate (all a godsend to patent owners since it removes their roadblocks)…but neither of the two most senior Senate Repubs (Grassley) and Dems (Feinstein) are patent supportive. Coons is patent friendly….but does he have near enough the seniority to take over the SubCommittee (or Committee)? Given your involvement, I’m sure you can point us to who our allies are in Congress.
It’s going to take years….and several replacements on the Court itself (Kennedy and Ginsburg will both be gone within 3 years imo (if not sooner)) to restore the patent system imo.
In addition….you need a complete makeover at the CAFC as well (imo)…..and the problem there is the most knowledgeable jurist there (Newman) is going to be the FIRST to go (due to age)….as there is absolutely no one you can replace her depth of knowledge of the U.S. patent laws and how they interact with legislative history and legal precedence. Even replacing her with a pro-patent jurist will be a net negative.