Bits and Bytes

• I am teaching obviousness this week in my introductory patent law course here at the University of Missouri School of Law. The Justice Douglas concurrence in the 1950 A&P case always gives me pause: 
• • "The Constitution never sanctioned the patenting of gadgets. Patents serve a higher end--the advancement of science." 
  • Douglas quotes the 1882 case of Atlantic Works v. Brady, 107 U.S. 192, 200 (1882). “It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufacturers. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities to lawsuits and vexatious accountings for profits made in good faith." 
• Lichtman's IP Colloquium: Can Content Survive Online with Guests: Brad Smith (General Counsel, Microsoft); Scott Martin (Executive Vice President, Paramount Pictures); Dan Cooper (Vice President of Business & Legal Affairs, MySpace).
• Kappos Events:
• AIPLA: Oct 15 (Link) (I’m late posting this, but webcast is available)
• Association of Corporate Counsel: Oct 20 (session 205) (Link)
• IPO: Dec 7 (Link)
• The Fifth Annual Finnegan Distinguished Lecture on Intellectual Property at American University: Oct 20.  Professor Rochelle Dreyfuss (Pauline Newman Professor of Law at NYU) speaks on “What the Federal Circuit Can Learn from the Supreme Court--and Vice Versa” (Live; Webcast).

Comments

[MaxDrei]

Dennis, draw it to their attention that "obvious" comes from the Latin "lying in the road". In the context of what's not patentable, that is of course "lying in the road of technological advance".

There, done that. Next topic.

[skyywise]

Dennis, where in the A&P concurrence did you get that J. Douglas quote? I like the conciseness of the quote, but is it from another source?

http://supreme.justia.com/us/340/147/case.html

[Lowly]

We need patents to be available for 'gadgets,' otherwise LittleCorp will never, ever be able to compete with BigCorp.

No, MM, trade secrets don't work when the widget is something easily reverse engineered.

[6]

“It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufacturers. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities to lawsuits and vexatious accountings for profits made in good faith."

That's a great quote. QFT.

[Things that make you go hmmmmm]

"Patents serve a higher end--the advancement of science."
- Justice Douglas, Associated Supreme Court Justice -

"The fact is that one new idea leads to another, that to a third, and so on through a course of time until someone, with whom no one of these ideas was original, combines all together, and produces what is justly called a new invention."
- Thomas Jefferson, Director of the 1st U.S. Patent Board -

FYI -- the above was shamelessly stolen from the Patent Prospector website.

Another tidbit shamelessly stolen from a Donald Chisum speach:
Justice Douglas was the most extreme of all the anti-patent justices. According to Justice Douglas you virtually had to be eligible for a Nobel Prize in order to get a patent. He listed a whole bunch of patents on gadgets, or cases involving patents on what he called gadgets, and asked: Why is the Patent Office doing this? Now, he did admit that an invention need not be as startling as an atomic bomb to be patentable, but he also stated that a patentable invention, and here is the quote, "has to be of such quality and distinction that masters of scientific field in which it falls will recognize it as an advance."

People have thought that Dennis and MM are one and the same. If Dennis thinks that the writings of Justice Douglas deserve "pause," I can see where the connection has been made.

[MaxDrei]

We need patent protection for non-obvious gadgets, otherwise the incentive for Corp., Big and Small alike, to develop better and better medical devices that save lives, will be diminished. This ought to be of interest to any politician or judge who enjoys anything less than perfect health.

[anonymous]

Where's "Just an ordinary speculative schemer(TM)" this morning?

[Just an ordinary inventor(TM)]

It is indeed a memorable occasion when the longest-serving justice in the history of the Supreme Court makes a perfect ahss of himself publicly.

[broje]

The patent laws don't permit the discoverer of the great discovery to patent the discovery. They only allow protection of a particular application of that discovery. Did Justice douglas advocate expanding what is patentable subject matter?

In the absence of that expansion, should the patent laws then prohibit anyone who is not the original discoverer to patent yet another application of that discovery? Would not each application be a "gadget?" Is every "gadget" that follows on the first "gadget" then obvious?

It seems unlikely to me. I don't think these views can hold up under scrutiny, nor have they done so. 100 years gone by makes them no wiser.

[Justice Douglas]

What's this?, someone calling me an ass!

[BTP]

With respect to obviousness, can or should pre-Patent Act of 1952 cases be discounted? It was only then that anticipation and obviousness were statutorily distinguished. Prior to 1952, to the extent obviousness was an issue, it was analyzed under the guise of anticipation.

(I found this out working for another reader of this blog--I hope he chimes in.)

[6]

At least 4 people in this thread don't understand what he means by "gadget".

[Noise above Law]

Dennis,

What give you pause – the fact that there was a point in history that had such an anti-patent proponent, or that the arguments of today’s anti-patent group largely uses the same failed arguments?

[LeMieux]

"...It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities to lawsuits and vexatious accountings for profits made in good faith."

So, really, like I've been saying, since we really don't always know ahead of time what is "trifling" or not (many inventors of some of the most revolutionary technology either didn't know they had something, made a mistake when they stumbled on something, or actually thought what they had wasn't important), the real problem is the fear component.

So get back to work all you software types who think the sky is falling because someone told you something about "software patents." There is nothing to worry about.

P.S. According to this article (http://www.princeton.edu/~lawjourn/Fall98/belin.html) Douglas was essentially a Communist sympathizer, you know, the kind of guy that Mooney would like. He was also kicked out of a restaurant for looking like a bum

[broje]

"At least 4 people in this thread don't understand what he means by "gadget"."

I think there is one and it's you. Douglas differentiates between "scientific advance" and "gadget." Into which category does the clock/radio fall? Automobile airbags? The computer?

What about radio? Spread spectrum communications? Cellular networks? At what point is an "advancement" advancy enough to no longer be a "gadget?"

[LeMieux]

There is something interfering with the link above, so I'll post it again in all its glory:

http://www.princeton.edu/~lawjourn/Fall98/belin.html

Here is an interesting quote: "Douglas boldly compared the United States to the U.S.S.R., after the Court affirmed the conviction and jailing of Communist party leaders who were "teaching" and "advocating" the over-throw of government by force."

Comparing the United States to the U.S.S.R.?, well, he may have been right about that... but for all the wrong reasons.

[LeMieux]

I rather prefer Learned Hand for giving me my patent "pause."

Anyone who says something like:

"Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it"

Gives me far more pause when he says something like:

"The test laid down [in 35 U.S.C. § 103] is indeed misty enough. It directs us to surmise what was the range of ingenuity of a person "having ordinary skill" in an "art" with which we are totally unfamiliar; and we do not see how such a standard can be applied at all except by recourse to the earlier work in the art, and to the general history of the means available at the time. To judge on our own that this or that new assemblage of old factors was, or was not, "obvious" is to substitute our ignorance for the acquaintance with the subject of those who were familiar with it. Reiner v. I. Leon Co., 285 F.2d 501 (2d Cir. 1960)

Courts, made up of laymen as they must be, are likely either to underrate, or to overrate, the difficulties in making new and profitable discoveries in fields with which they cannot be familiar; and so far as it is available, they had best appraise the originality involved by the circumstance which preceded, attended and succeeded the appearance of the invention. Safety Car Heat & Light Co. v. General Electric Co., 155 F.2d 937 (2d Cir. 1946)."

[Malcolm Mooney]

"It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufacturers. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts."

[high five to Justice Douglas]

Great quote.

"since we really don't always know ahead of time what is "trifling" or not"

Not everyone is a stoopit kool-aid drinker like you, CaveMan.

[curious]

Sounds like Douglas is inartfully stating a 103 requirement.

[Malcolm Mooney]

This Judge Dyk-penned Federal Circuit case is interesting for what it portends:

In re '318 Patent Infringement Litigation
http://www.cafc.uscourts.gov/opinions/08-1594.pdf

The utility requirement prevents mere ideas from being patented. As we noted in Genentech, Inc. v. Novo Nordisk A/S, 108 F.3d 1361, 1366 (Fed. Cir. 1997), “[p]atent protection is granted in return for an enabling disclosure of an invention, not for vague intimations of general ideas that may or may not be workable. . . . Tossing out the mere germ of an idea does not constitute enabling disclosure.” See also In re Fisher, 421 F.3d 1365, 1373 (Fed. Cir. 2005) (inventions fail to meet the utility requirement if their “asserted uses represent merely hypothetical possibilities, objectives which the claimed [inventions] . . . could possibly achieve, but none for which they have been used in the real world”).

The utility requirement also prevents the patenting of a mere research proposal or an invention that is simply an object of research. Again as the Supreme Court stated in Brenner, “a patent is not a hunting license. It is not a reward for the search, but compensation for its successful conclusion.” 383 U.S. at 536.
-------------------------------------------

What's interesting is that the Federal Circuit upheld the District Court's invalidation as non-enabled because by merging 101's utility requirement with enablement. The facts are that at the time of filing (and issuance) the applicant did not have data showing that its disclosed and claimed therapy for Alzheimer's worked (two page application!). But it certainly taught the therapy and how to administer the therapy so that one skilled in the art could practice the therapy. There just was no way to know *for certain* as of the filing (or issue date) that the method would work (this was admitted by the applicant in defense of an obviousness charge). Now the therapy is being pursued by Big Pharma, who have demonstrated its efficacy.

Question for the peanut gallery: what is the "successful conclusion" of an idea for a new software application?

[Things that make you go hmmmmm]

"Great quote."

Case closed.

You have to wonder why 6 and MM want to work with patents, inventors, and inventions. It is like an obstetrician who hates children.

No wonder MM has such a bad temperment -- he works in an environmet that drives him crazy. As for 6, he is too stoopit to know any better.

[Malcolm Mooney]

"It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies"

That's the meat of the quote. And it's this loud, whining "class of speculative schemers" who have, unfortunately, fouled up the US patent system.

[hindsight from the future]

and they have been fouling it up since the patent system was put in place. imagine people actually want to get patents. oh wait a minute, that doesn't make sense now does it. man i sound like mooney.

[Malcolm Mooney]

Larry Summers: "We in the Administration are determined to create economic expansion and growth not based on financial bubbles, but instead on real production and distribution of goods and services for the benefit of all the citizens of our country. That is a lesson not just of this most recent crisis, but of the agonizing pattern we have witnessed eight times during the past three decades."

Earlier in the speech Mr. Summers referenced the dot.com bubble as an example of a financial bubble. So tell us, Diehrbots, how will issuing more patents on algorithms and business methods promote "real production and distribution of goods and services"?

[Actual Inventor]

MM Wrote: "how will issuing more patents on algorithms and business methods promote "real production and distribution of goods and services"?

In order to actually produce and deliver goods and services in a timely and quality manner you need to continuously innovate. At the heart of every innovation is a new and more efficient process. The patent system provides incentive for the forward thinking individuals and entrepreneurs that invent the better way to produce goods and services that all of society enjoys.

The patent system lets an inventor know that one they will get credit for their work and two, have an equal opportunity to participate in the capitalist system of work and reward, that has made America the envy of the world.

[Malcolm Mooney]

AI: "In order to actually produce and deliver goods and services in a timely and quality manner you need to continuously innovate. "

Well done: start out with a lie and descend into aphorism.

[captainloucapatainloualbano]

http://en.wikipedia.org/wiki/Flash_of_genius

nuff said about ignorant douglas

[captainloucapatainloualbano]

how about some nice quotes from Judge Giles Sutherland Rich?

[Actual Inventor]

MM Wrote: "Well done: start out with a lie "

Where is the lie in my post?

::Mooney Silence::

[Malcolm Mooney]

MM Wrote: "Well done: start out with a lie "

Where is the lie in my post?
-----------------------

You don't need to "continuously innovate" to deliver goods and services in "a timely and quality manner." I mean, where do you come up with crap like that?

[broje]

If you don't need to continuously innovate, then you shouldn't have any problems infringing other people's patents. You can just keep doing things just they way they were done in the 1970s.

Or maybe you meant thet you don't need to continuously innovate, because you just need to wait for others to do it and copy them.

[Actual Inventor]

MM Wrote: "You don't need to "continuously innovate" to deliver goods and services in "a timely and quality manner."

Apparently, thats what GM thought. And look how that worked out. Hey, maybe you should be their in house patent counsel.

[Things that make you go hmmmmm]

"You don't need to 'continuously innovate' to deliver goods and services in 'a timely and quality manner.' I mean, where do you come up with crap like that?"

... says the man who doesn't know dck about business. What is considered "a timely and quality manner" is always changing in business. What was "timely" and high "quality" today may be late and substandard work tomorrow.

If you are not continuously innovating in busines, you will eventually be left behind. The problem MM is that he has little real life experience to base is observations on. Being cooped up in the basements of the USPTO, preparing filing receipts, and his mom's house hasn't left him much time to see what is going on in the real world.

[inspector gadget]

what you talk about willie

[A plurality of thresholding units]

Things: We don't call it a basement - we call it a concourse.

[Things that make you go hmmmmm]

"We don't call it a basement - we call it a concourse."

Thanks for the clarification. However, I think MM will appreciate it even more -- it will be a lot easier for him to pick up chicks at the local community college by saying he lives in the concourse of his mom's house.

[6]

""At least 4 people in this thread don't understand what he means by "gadget"."

I think there is one and it's you. Douglas differentiates between "scientific advance" and "gadget." Into which category does the clock/radio fall? Automobile airbags? The computer?

What about radio? Spread spectrum communications? Cellular networks? At what point is an "advancement" advancy enough to no longer be a "gadget?"
"

Broje no need to be mad because I lumped you in with 3 other people who have a mental block and just don't get it.

For at least the first instance of enabling disclosure (and probably several thereafter):

a. sa
b. sa
c. sa
d. sa
e. "Spread spectrum communications?" that depends on if you mean the concept of spread spectrum comm or a device utilizing the concept. If the later then probably sa.
f. "Cellular networks?" same as e.

"At what point is an "advancement" advancy enough to no longer be a "gadget?""

When it is actually an advance rather than a mere "sidestep"? This isn't very hard to demonstrate if you take a specific invention and put it next to the closest prior art and take into account the rest of the scope of the prior art. And if there is a genuine dispute, fine give it to the inventor. Not a big deal because usually there will be no genuine dispute.

And btw, the popa vote is now concluded.

63% for
37% against.

The drones carried the day :(

[anon]

6, how can the PTO get rid of the 37% naysayers, now that we know who they are.

[6]

Lol, good luck. And actually we don't really know who "most" of them would be, a substantial amount of people didn't even sign up to vote.

Besides, the 37% probably break down like this: 90% primaries and 10% other. Whereas the 63% probably breaks down 10% primaries and 90% other.

I don't think you want to lose all the primaries. Like it or not, they make this place go round.

[Malcolm Mooney]

AI "What is considered "a timely and quality manner" is always changing in business."

Another ridiculous over-statement, told intentionally. What's sadder is that it isn't even relevant to the discussion. "Change" doesn't necessarily equal "innovation."

"If you are not continuously innovating in busines, you will eventually be left behind."

Again: false.

[Posing as Mooney]

We don't have innovation on the french fry line. Patents never did us any good (except for the guy who invented this darn thing, but he was just a greed grubbing schemer, I think his name was Ray Kroc)

[Posing as Mooney]

Yes, as a matter of fact I AM a Communist Sympathizer

[LeMieus]

At least I pay for my Kool-Aid, with my own money. I don't get mine from the dole like you communist sympathizers.

[Actual Inventor]

MM Wrote: AI "What is considered "a timely and quality manner" is always changing in business."

MM: Yet again you have wrongly attributed a quote to me. The first few times I chalked it up to simple era but now its a deliberate dishonest pattern on your part.

BTW, you have yet to quote the lie you accused me of telling. I demand that you now quote the original lie you accused me of telling or admit you were wrong and apologize.

[Malcolm Mooney]

"he was just a greed grubbing schemer, I think his name was Ray Kroc"

You're right: "greed grubbing schemer" is a great term for Ray Kroc. Enjoy your processed chicken parts, fake ice cream and whatever other garbage the geniuses at Hamburger Universary "innovated" for you to die on.

[Jules]

"Lol, good luck. And actually we don't really know who "most" of them would be, a substantial amount of people didn't even sign up to vote."

To be clear, the real reason you won't know who that 37% was is because the vote was anonymous.

[posing as Mooney]

Hey you're the one on the french fry line not me...

Wait, I AM me...

[Actual Inventor]

MM Bitterly wrote: "You're right: "greed grubbing schemer" is a great term for Ray Kroc."

Oh why? Because he was a successful entrepreneur that made a profit?

What about all those farmers that sell potatoes, tomatoes, lettuce and beef to McDonalds? What about those farmer's kids that have clothes, food and shoes bought with those greed grubbing schemer profits? Would you call those kids little greed grubbing schemer profit kids too?

What about the Ronald McDonald House charities that have given sick kids with cancer and their families a place to stay and heal and be together? Would you call those dear kids little greed grubbing schemer profit kids too?

What about ALL the business that have started up and grown to supply McDonald's? What about the homes those suppliers have bought and money they have spent taking care of their families and sending their children to college? Would you call those hardworking, honest, tax paying families little greed grubbing schemer profit families too?

What about all the hundreds of thousands of people that work at McDonald's just trying to make an honest living. They get up early to serve the breakfast and make your coffee and take your gruff and stay late late at night cleaning the counters, draining the grease, and moping the floors. Some working their way up to management and an opportunity to own their own franchise someday, others working their way through college and still many just trying to keep from being homeless, or on welfare. Should all these people feel like little greed grubbing schemer profiteers? Should they just stay home and live off the state or be bums on the street?

And what about all the millions of dollars in taxes all these businesses and employees pay to keep America strong and safe? Taxes that are spent feeding the poor world wide, providing disaster relief, and medicine to other countries.

Taxes spent on innovations and developing new technology like the internet so socialist-communist and do nothing hypocrites can type anti patent, anti capitalist messages on a blog and feel important.

Just imagine what it would be like without all those greed grubbing schemers. There would be no dreamers, no jobs, no progress, not even a you.

[Ned Heller]

Douglass sounds just like Microsoft and Cisco.

[HTTR]

"Besides, the 37% probably break down like this: 90% primaries and 10% other. Whereas the 63% probably breaks down 10% primaries and 90% other."

Really? Primaries have most to gain under the new system, the lower one's expectancy the more the 2 hr/BD increases one's time/production. I.e., as a primary the 2 hr/BD boosts my production 13% whereas a GS-7 increases only 7%. Simply stated, the new system favors primaries, not juniors. Fact.

[HTTR]

"63% for
37% against.

The drones carried the day :("

Why are they drones? Is it because they I) can do the math and realize the new system benefits them, or II) simply declined to subscribe to your mindless dribble? Perhaps both?

[Tsetse Fly]

Why was Douglas so concerned about patenting "every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufacturers."? Assuming Douglas' comment about these devices/ideas are true, then it also is true that any skilled mechanic or operator in the ordinary progress of manufacturers easily could come up with a device/idea that is non-infringing-different from the patented "trifling" device. Douglas' parade of business horrible is proven untrue by his own premise. Arrogant potshots at inventors is no way to implement the patent clause of the US Constitution.

[Justice Douglas]

And, of course, if you give enough monkeys each a typewriter and teach them to press the keys, in time, at least one of them will type the Bible as long as you feed them enough bananas till the job is done.
As I have previously commented:

It is indeed a memorable occasion when the longest-serving justice in the history of the Supreme Court makes a perfect ahss of himself publicly.
Posted by: Just an ordinary inventor(TM) | Oct 16, 2009 at 10:47 AM

[Justice Douglas]

Hey guys and gals -- there is no spam filter today. Let's have at it and make hay while we may.
Posted by: Justice Douglas | Oct 16, 2009 at 10:53 AM

[Dick Schulze]

With respect to Justice Douglas, when he said "The Constitution never sanctioned the patenting of gadgets. Patents serve a higher end--the advancement of science," he got it wrong. It was the copyright, not the patent right, that was placed in the Constitution to promote the advancement of science. The patent right was put into the Constitution to promote progress in useful arts. Much progress in useful arts has manifested itself in "gadgets".

[Malcolm Mooney]

AI: "What about ALL the business that have started up and grown to supply McDonald's? What about the homes those suppliers have bought and money they have spent taking care of their families and sending their children to college? Would you call those hardworking, honest, tax paying families little greed grubbing schemer profit families too?"

AI, I'm going to be blunt. If you believe that criticism of McDonald's can or should be defended with this ridiculous bullcrap you've just spouted, then you're a hopelessly pig ignorant m0r0n. Either that, or your a brilliant satirist.

"And what about all the millions of dollars in taxes all these businesses and employees pay to keep America strong and safe? Taxes that are spent feeding the poor world wide, providing disaster relief, and medicine to other countries."

Again: my guts tell me that this must be parody because no self-respecting human being could ever utter something so absurd. Then again, my brain knows better because I know there are self-interested wealthy people who peddle this nonsense, and legions of teabagging idi0ts who lap it up. For a recent case in point, see Paul Sullivan's op-ed in the "liberal" rag, the New York Times (which routinely features news stories about the poor plight of the super rich who are froced to sell their back-up lear jet):

http://nomoremister.blogspot.com/2009/10/worst-new-york-times-article-ever.html

[Just an ordinary inventor(TM)]

Dear anonymous [and Dick Schulze],

"To promote the
Progress of Science and useful Arts,
~ by securing for limited Times to

Authors and Inventors
~ the exclusive Right to their respective

Writings and Discoveries;"

* * * * *
Viewed this way, it is soo so obvious, yet soo so obscure; Brilliant!

Amazing that no one on Patently-O noticed this before, Just amazing!

Incidentally, obvious, but obscure inventions, have always been my favorite.

That’s what intellectually challenged KSR folk cannot comprehend.

Posted by: Just an ordinary inventor(TM) | Mar 06, 2009 at 10:57 AM

[Actual Inventor]

MM Wrote: "If you believe that criticism of McDonald's can or should be defended with this ridiculous bullcrap you've just spouted, then you're a hopelessly pig ignorant m0r0n. Either that, or your a brilliant satirist."

Its not defense of McDonalds per se. Its a defense of business method-process patents, capitalism and the American way!

You, on the other hand, having been intellectually B slapped by all the attorneys here to the point they don't even think you are an attorney should not be calling anyone names.

[Noise above Law]

Actual Inventor,

That's all Jame's got.

[Malcolm Mooney]

It: "That's all Jame's got."

Does anybody have any idea what the troll is smoking now?

[Ned Heller]

Douglass's quote from Atlantic Works omits the first two lines of the paragraph, which contradict his own preceding sentence about the purpose for patents to advance "science." Those two lines read

"The design of the patent laws is to reward those who make some substantial discovery or invention which adds to our knowledge and makes a step in advance in the useful arts. Such inventors are worthy of all favor. " Id. at 200.

A proper quote by Douglass would have placed the opening letter in brackets.

Now, what are we to take from this misquotation? What are we to understand about Justice Douglass in terms of his respect for prior authority and precedent?

[6]

"Why are they drones?"

That's an excellent question. I assume it is because God made them that way. Or perhaps because their schools failed them. I'm going to leave it up to you to do the grunt work to figure out why they are.

If you wanna go down the conspiracy theorist route you can do that:

http://www.youtube.com/watch?v=uXMrM8N9jps&feature=related

In all seriousness though I'd say it is mostly because a hefty amount of these people never had a healthy discussion about the entirety of the changes, and the more rarely known effects of these changes. And furthermore, and perhaps most importantly, because those making the presentations didn't provide good information to those being presented to.

[Noise above Law]

Talk about irony, coming from 6 "Or perhaps because their schools failed them."

Keep bringing the rope my friend.

[broje]

6 said "'At what point is an 'advancement' advancy enough to no longer be a "gadget?''

When it is actually an advance rather than a mere 'sidestep? This isn't very hard to demonstrate if you take a specific invention and put it next to the closest prior art and take into account the rest of the scope of the prior art."

Going back to the example of the clock/radio, you surprised me by saying that you would consider it a "scientific advance." Surely, after KSR, you would 103 it over a reference to a clock and a reference to a radio. Every time you 103 something, you are saying that it is a mere "gadget," not a "scientific advance."

[Malcolm Mooney]

broje: "Going back to the example of the clock/radio, you surprised me by saying that you would consider it a "scientific advance.""

Not unless it has a lubricious coating.

[Noise above Law]

Malcolm wants to talk about clock/radios with lubricious coatings and HE wants to know what I am smoking?!?

[Alun Palmer]

IMHO, BTP is right. Pre-1952 decisions can have no relevance to obviousness, as the act was INTENDED to change the state of the law on this very point, according to its drafters. The concept of obviousness was created by the act, and was not meant to have the same legal standard as the earlier concept of 'invention'.

C'mon, now, Dennis, you're a law professor and I'm only a patent agent. What were you thinking?

Of course, it is no surprise that MM and 6 both applaud this antediluvian decision. They probably would uphold Cuno, given their druthers, but the 'spark of genius' test is no longer considered good law.

[Paul Cole]

I have not checked Graham V John Deere for a while, but my recollection of that case is that the intention of the law was to CODIFY and not CHANGE the state of the law as it then existed. The flash of genius test was dropped, but pre-1952 decisions were indeed relevant and were cited with approval. Much useful guidance is to be found in such decisions, and it would be surprising if some 150 years of accumulated experience were to be summarily thrown away and found valueless. The modern reader can find useful lessons in such 19th century decisions as Winans and the Glidden barbed wire case, to name only two.

I fear that the standard of the 1882 Brady case is something we have to live with. In the UK it is described as a right to work test, i.e. if an alleged infringement differs insignificantly from the prior art, then the patent system cannot be invoked and no valid claim can cover it.

In Winans the Supreme Court said that improvements in machinery are almost always made by changing the form of one or more parts, thereby introducing a new principle or mode of action and thereby obtaining an improved result. Not a bad statement of the law for its time, and indeed a useful guide for us now.

[curious]

Examiners do not understand restriction/election.

[Just Visiting]

Just a little something I saw on www.popa.org:

Dear Bargaining Unit Member,

I am pleased to announce that the POPA membership vote on the Count System Initiatives has concluded with the package being APPROVED by the membership.

The final vote was:

63.4% Yes 36.6% No.

On behalf of the Joint Task Force I wish to thank everyone who participated in the many briefings over the past two weeks. The questions and comments you submitted provided an incredible amount of useful feedback. I would especially like to thank each and everyone of you who participated in the POPA vote and made your voice heard.

As we now go forward with the implementation of this Agreement, please be assured that POPA will continue to monitor the impacts of these initiatives to make sure that no examiner is harmed and we will continue to work with the Agency to find more ways to improve your worklife here at the USPTO.

Thank you.

Robert D. Budens
President
Patent Office Professional Association

[Joseph Reisman]

Dennis-

I am an adjunct at the University of San Diego, and have been pointing students and colleagues to this 'Speculative Schemers' passage since the Court took up KSR. Seesm that, for over a century, the Court has recognized that too-generous patentability standards (or remedies schemes) encourages 'trolls.' Oddly, however, there have been no easy judicial fixes to the opposite problem: the effects of too-narrow patentability and remedies doctrines that discourage innovation. Fundamental changes in the administreative state in the early 20th century, and the advent of the Fed Cir have provided balance over the years, but what will remedy this next wave of narrowing? There is truly . . . Nothing New Under The Sun.

[Malcolm Mooney]

"Oddly, however, there have been no easy judicial fixes to the opposite problem: the effects of too-narrow patentability and remedies doctrines that discourage innovation."

Nobody has provided any evidence that **innovation** has been discouraged by any of the changes in US patent law.

[Tao Jonesing]

Dennis,

Justice Douglas was not talking about the modern non-obviousness requirement in 1950. Congress first articulated that in Section 103, which was added in 1952 precisely to overcome the type of subjective tests that Douglas was flogging.

The only reason to pause at Douglas' rant is to point at it as something that 35 USC Sec. 103 repudiates. It has no relevance other than that.

[Actual Inventor]

"how about some nice quotes from Judge Giles Sutherland Rich?"

Posted by: captainloucapatainloualbano | Oct 16, 2009 at 03:06 PM

_____

Okay, here is a quote:

"Invaluable though it may be to individuals, the pub-
lic, and national defense, the invention of a more ef-
fective organization of the materials in, and the tech-
niques of teaching a course in physics, chemistry, or
Russian is not a patentable invention because it is
outside of the enumerated categories of “process,
machine, manufacture, or composition of matter, or
any new and useful improvement thereof.” Also out-
side that group is one of the greatest inventions of
our times, the diaper service.
Giles S. Rich, Principles of Patentability, 28 Geo. Wash.
L. Rev. 393, 393-394 (1960). "

Many Amici that are anti business method, including the Government in its Bilski briefs, have used this quote to foster their belief. However I do not see how its offers them any help. Since a diaper service is only an idea or name for a business and not a specific application for running any part of the business. For example, consider the following fictitious names....

Is “Tony’s Terrific Tire Service!” patentable?

No.

Is “Janes Juicy Burgers” patentable?

No.

LIke Giles diaper service, neither business is patentable because they are merely ideas for a business and not applications of specific business methods and processes.

However, Tony’s Terrific Tire Service process for curing rubber is patentable just like the case in Diehr. As is Jane’s process for providing, making, and serving juicy burgers.

So this idea of using Judge Rich’s, “diaper service” quote as somehow implying that business methods are not patentable in and of themselves or when not tied to specific machines or transformations is false!

Even the Government tacitly concedes this in their own brief by claiming only industrial and technological processes are patentable subject matter. No one can deny running a diaper service, tire service, or burger joint requires an application of industrial and technological processes.

So the proper question should be which industrial and technological processes will be allowed as patentable subject matter and which will not? Where do we draw the line?

Clearly Diehr’s process for curing rubber is patentable. And if that is the case then why shouldn’t every other process within that business be patentable as well? Processes such as:

A) Loading the tire on the rack in the warehouse.

B) Displaying the tires on the showroom floor in the store.

C) Selling and delivering the tires to the customer.

Its all industrial, technological, and a series of successive steps A.K.A. process. Why should the only patentable process in Diehr’s business be the operation of the rubber curing machinery?

If operating the rubber curing machinery is beneficial to society then surely all the other aforementioned processes are well.

If a new and improve method and process for operating the rubber curing machinery advances the useful arts then surely new and improved processes for loading the tire on the rack in the warehouse, displaying on the tires in the showroom floor in the store, and selling and delivering the tires to the customer does so as well.

There is nothing in the constitution, statute, or case law that that says otherwise and as far as I have been able to ascertain, neither does Judge Rich.

R.I.P.