- John Wiley & Sons and American Institute of Physics v. McDonnell Boehnen Hulbert & Berghoff (MBHB) (N.D. Ill.) (Complaint)
- American Institute of Physics and John Wiley & Sons v. Schwegman Ludberg (D.Minn) (Complaint)
The Hoboken publishing company (John Wiley) and the non-profit American Institute of Physics have continued their quest to pursue copyright infringement charges against US patent attorneys who submit copies of journal articles to the US Patent Office during the patent application process. The submission of those documents is required by law and attorneys who fail to submit known and relevant prior art can be subject to ethics charges and the associated patents held unenforceable. Earlier this year, the US Patent Office issued a memo indicating its belief that copying and submitting copyrighted documents should be considered a non-actionable fair use. Firms already pay for access to the articles and the USPTO also has its own access to most of the articles. The issue is whether the patent applicants must pay an additional fee for making a copy for the USPTO and an additional copy for the in-house file.
The first two law suits were filed yesterday. The first against my former law firm MBHB LLP in Chicago and the second against the Schwegman firm in Minnesota. These two firms are known for the high level of scientific and technical expertise of their attorneys. (Full Disclosure – MBHB is the primary advertiser on Patently-O)
The complaints allege two particular infringing acts:
14. In connection with researching, filing and prosecuting certain patent applications, McDonnell made and/or distributed to the United States Patent and Trademark Office (“PTO”), and perhaps others, unauthorized copies of copyrighted articles from plaintiffs’ journals … Such unauthorized copies were used for the commercial benefit of defendants and their clients.
15. Upon information and belief, defendants made (a) additional copies of the copyrighted works that defendants included or cited in their patent applications to the PTO, including those identified on Schedule A, and (b) copies of plaintiffs’ copyrighted works that defendants considered in connection with those applications, but did not ultimately cite or provide to the PTO. Plaintiffs cannot know the full extent of defendants’ copying without discovery. Apart from the copying of plaintiffs’ works accompanying the patent filings described above, this internal copying infringes plaintiffs’ copyrights.
In his article for PaidContent, Jeff Roberts sees these two as “a test-run. . . . If the firms fold their cards and settle, John Wiley and the physicists may be emboldened.” (See also Zach Winnick at Law360).
In the complaint, Wiley identifies two articles that MBHB allegedly submitted to the USPTO:
- Raznikov, V., et al., “A new approach to data reduction and evaluation in highresolution time-of-flight mass spectrometry using a time-to-digital convertor datarecording system,” Rapid Communications in Mass Spectrometry, vol. 15, No. 8, pp. 570-578 (2001); and
- Erchak, A., et al., “Enhanced coupling to vertical radiation using a twodimensional photonic crystal in a semiconductor light-emitting diode,” Applied Physics Letters, vol. 78, No. 5, pp. 563-565 (2001).
The complaint in the Schwegman case are based upon these two articles:
- McDonald S., et al., “Photoconductivity from PbS- nanocrystal/ semiconducting polymer composites for solution-processible, quantum-size tunable infrared photodetectors,” Applied Physics Letters, vol. 85, No. 11, XP012062554, ISSN: 0003-6951, pp. 2089-2091, (Sep. 13, 2004); and
- Greenwald, et al., “Polymer-Polymer Rectifying Heterojunction Based on Poly(3,4-dicyanothiophene) and MEH-PPV,” J. Polym. Sci. A: Polym. Chem., vol. 36:17, pp. 3115-3120, (1998).
I have contacted the authors of each of these articles, but have not yet received any response. MBHB’s managing partner Marcus Thymian released a statement referring to the USPTO’s position on fair use. “We note that the United States Patent and Trademark Office has released its position — that it is a fair use for a patent applicant to submit a copy of non-patent art to the patent office to fulfill the disclosure requirement imposed by the patent regulations.” It will also be easy for the law firms to obtain an opinion that internal copying also qualifies as a fair use under Section 107 of the Copyright Act.
In a statement to Law360, the plaintiffs attorney Bill Dunnegan appears ready to admit – despite language in the complaint – that submissions to the USPTO are not actionable. He is quoted as saying “The crux of what our case deals with is the internal copying by the law firms after they have one copy in their hand. . . . Those copies are not licensed, and the patent office didn’t take a position on whether or not fair use would apply to those copies.” The copy-for-file issue seems to fall in line with the Supreme Court’s analysis in Sony v. Universal (1984). In that case, the court held that it was a fair use for home consumers to record television broadcasts so the consumers could view the shows at a later time.
Notes:
- Submitting Citations: Several years ago, the USPTO realized that it already had copies of all issued US patents within its in house databases and asked patent practitioners to stop sending-in copies of patents. Rather, the patent attorneys were asked to simply submit a list of US patent documents that materially related to the patent being examined. To the extent that the USPTO already has access to many of the publications in question here, a similar solution could work that allows patent practitioners to simply submit the citation to articles within the USPTO databases.
- Open Access: Depending upon pricing structure, access to a journal such as the Journal of Applied Physics costs as much as $15k per year. Academic authors generally receive no compensation for publication and there is a growing movement amongst academia toward open access journals. Almost all law reviews make their works freely available online. This enforcement project may push the sciences in that direction as well.
The show more comments hyperlink is still busted on this thread.
Lance P. Richard P.A. has an experienced team of legal professionals who are committed
to defending your rights in Personal Injury, Criminal, and Family Law cases throughout
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If I don’t hear from my family by Sunday, I will be sure that there is a GAG. And all of this is just one big Chain. And now I will know what to do listing each and every one.
Of course one difficulty is that online subscriptions may not be a “first sale” under copyright law. So there is no “fair use.” Instead the subscriber is only permitted the uses licensed to them in the subscription contract.
Interesting en banc case on Section 1498 and eminent domain:
ZOLTEK CORP v. US
/media/docs/2012/04/09-5135.pdf
Authorization and consent, and all that.
anon, video tape? Can you copy it. Obviously not.
Whatever happened to our good friend Tell me where I’m wrong?
Fact finding and law checking shouldn’t take this long.
IPB,
I’m having trouble following your line of thought on this. Can you clarify?
“He either has a right to copy the copy he has, or he does not.”
Interesting question Ned. Can we apply an anology? For example, does this apply to videotapes? Say a friend purchases a copy of a videotape. He owns it all nice and legal.
He gives it to you.
Can you copy it?
Can you copy it 10,000 times and sell those 10,000 copies at $5.00 each?
Why one and not (presumably) the other? What controls?
Now we add a fact not in evidence, do we?
If the client owns a legal copy and sends it to you, just how is he violating any contract?
Regardless, the law firm is not bound by any contract the client may have. He either has a right to copy the copy he has, or he does not.
Then are you saying that the client you represent may have violated the contract? That the copy you have is not a legal copy?
And that makes the situation better how?
Double, I, as do everyone else here, appreciate your thorough analysis as to why 1498(b) does not apply, given the assumptions.
Easy, not so easy if the client sends you a copy he purchased. The contract is with the client not with the firm.
No, seriously though, what about all the interpretations of “introduced into commerce”, such as use, advertising or offering for sale, or delivering, or use in the ordinary course of trade, or others, which are applied to various CFR provisions?
“It’s an application for an exclusive government permit to make, use and sell something.”
No. It is not.
A patent is a negative right, not a permit to do anything but tell others they cannot do something.
Nevertheless, the field impacted is the field of “make, use or sell (or not),” which is essentially a commercial field.
“if you honestly believe it to be an essentially commercial activity, can you please describe why.”
It’s an application for an exclusive government permit to make, use and sell something.
That was amusing, but if you honestly believe it to be an essentially commercial activity, can you please describe why.
Now I am going to find out if that Counterfeit one was added to the mix to control me for those that wanted to run my life by taking what was mine after they threw me away or the Monkey. This is going to be fun.
Oh and don’t forget the Tucker Act HAHAHAHAHAHAAAAAAA!
“is statutorily authorized by 28 USC §1498(b)”
What you said upstream was wrong upstream. Now you have a wrong statement here too.
Congrats.
Your comment is…
Still wrong foot.
Do you think that you are the examiner?
You are the one who is supposed to be making a worthwhile comment.
Try again.
“where in substance is the difference if one retains a copy in the first place”
Easy. In the contract.
Try to remember contract basics (as in party to a contract)
As I said upstream, if fair use depends at all, as Dennis suggested, upon a requirement imposed by the Federal Government pursuant to regulation (1.56, 1.97, 1.98); then I would also suggest that the conduct of making a otherwise infringing copy and submitting it to the PTO as required by the rules is statutorily authorized by 28 USC §1498(b).
To the extent that the copying goes beyond that necessary to comply with the disclosure rules, I doubt that §1498(b) applies. For the same reason, I doubt that their use would apply.
As for the PTOs position on its own copying, I think their position leaves something to be desired.
Your comment is invalid as lacking substantial utility.
101 fail!
Wow, 101 is handy.
Demosthenes?
In before Locke.
Going back to the initial issue here..
It seems to me that what you need in the US is a clear, handy exemption covering this situation, such as we have in Australia , see link to corrigan.austlii.edu.au. A copy made for the purposes of getting professional advice should not be an infringement – it is a fair dealing on any reasonable analyis.
Invisible, if the law firm cannot retain a copy but can get a copy from the PTO based on fair use without paying the copyright owner, where in substance is the difference if one retains a copy in the first place?
“because on is also practically required to retain a copy.”
Orly?
Funny, I don’t see that in the law.
I agree to an extent. I think the issue is close enough that one could believe that one is required to make a copy because on is also practically required to retain a copy. What is a firm to do, get a copy of the reference from the PTO? The PTO asserts the right to make copies and furnish them to applicants and members of the public copying the record.
I think there's a good case that a law firm has immunity under 28 USC §1498(b).
I got it:
“He runs away just like Malcolm and Ned.
hmmmmm…”
“including especially those that pop up with alarming frequency from what appears to be one or two persons with dozens of screen names.”
OH NOES, it’s the sockie-troll virus…
“6, the word “antenna” is a metaphor.”
Right, just like all this “everything is energy” is a “metaphor”. We’re talking science here you ar se, stop talking in “metaphors”.
I’m through discussing this with you.
Define “sensible.”
In this context, “sensible” means “having, containing, or indicating good sense or reason; rational; reasonable.” Unlike the vast majority of the posts here, including especially those that pop up with alarming frequency from what appears to be one or two persons with dozens of screen names.
Are you swayed by your bias as to what you feel the results should be?
Not consciously. I’m reasonably confident that I’m not, because I don’t really have any strong feelings as to what the results “should be”. Do you? My clients might care one way or the other, but I don’t really give a hoot. I work hard enough to keep up with what the law “is”; I don’t have much energy left over to worry about what it should be. But I think I understand the difference. Thanks for asking!
“I believe the essence of any fair use defense that law firms might assert is that their actions are required by government.”
Except they would not be. That’s a losing argument.
What is required is a submission of a reference. Making copies (that may or may not violate any agreement made in order to first obtain the reference) is strictly not a part of the equation.
In other words, the government couldn’t care less if you had to give up your single controlled copy of a copyrighted work. They don’t care what type of contract you entered into to get that reference. If you did something silly to get the reference, like contract away your fair use rights, then as someone said, “Tough Nougies.”
“(Although I’m still curious as to why regulations aren’t law.)”
LOLZ
The shoe is on the wrong foot. The obvious and glib work to my favor and against your silly supposition.
Try again.
“The Department of Commerce would beg to differ.”
Invalid as obvious, and unenforceable as glib.
BigGuy, I believe the essence of any fair use defense that law firms might assert is that their actions are required by government. However, if the defendants' actions are required by the government, then they can assert immunity under 28 USC §1498(b).
Thanks, Ned. I don’t think that a patent attorney or his client is “acting for the Government” when he submits a reference, even if that submission is required by the government. Further, 1498(b) doesn’t purport to define the contours of infringement (or fair use) in any way; it just presupposes that it is possible for the Government or a government contractor to infringe, which is quite reasonable. Bottom line, I don’t think 1498(b) is of any use in answering the question of whether making a copy of a reference to submit to the PTO is fair use.
Thanks again. (Although I’m still curious as to why regulations aren’t law.)
Big guy, if the government requires you to copy and submit the copy of a copyrighted work, your act is authorized by government, but is not fair use. See, 28 USC §1498(b). Rather, the requirement of the government is an act of eminent domain. However, the copyright holder must seek a remedy in the Court of Claims.
28 USC §1498(b) which reads in part
"b)Hereafter, whenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensation as damages for such infringement,"
“To amplify a point somebody made, I don’t think that the prosecution of a patent application before the PTO can successfully be characterized as an essentially “commercial” activity”
The Department of Commerce would beg to differ.
Why thank-you, Mr. Bloom!
I know the commercial/non-commercial use discussion is only relevant to fair use, but what I liked about “tell me”‘s post was the fair use analysis.
I think that IF the fair use test is applicable, that it would be satisfied in this instance.
I must admit I haven’t read through this thread completely to find out if anybody has tried to answer the specific question of whether the right to “use fairly” can be contracted away in the initial license, and if so, whether or not obligations and restrictions incurred under the license survive a lawful transfer of the physical article in which the copyrighted content manifests, and if they do, if they pertain to only the copy purchased or licensed, or to all works embodying the copyrighted content.
Apologies if these questions are nonsensical, again, I’m not a copyright guy.
Leopold,
Define “sensible.” Are you making a value judgment on the desired result, rather than the content of various other posts? Are you swayed by your bias as to what you feel the results should be?
IBP, that’s one of the most sensible posts I’ve seen here in a while. Thanks.
I still find “Tell me”‘s take appealing…after all, it was I who first suggested on the companion thread that copying a USPTO file serves a public purpose, and that the particular expression in a scientific journal was “de minimis”, and that the crucible of scientific writing was specifically aimed at eliminating all “artistic expression”.
Although there is nothing like validation, I’m left feeling hollow with “Tell me”‘s disappearance.
To amplify a point somebody made, I don’t think that the prosecution of a patent application before the PTO can successfully be characterized as an essentially “commercial” activity (“direct and immediate”, as “tell me” said).
The submission and prosecution of an application does not reflect commerce, yet–there is no property as yet that can form the subject of a commercial transaction, unless one wishes to characterize the entirety of the submission as copyright belonging to the patent applicant.
It is the submission of a claim for recognition of the existence, scope, and ownership of property, the outcome of which is a decision–said decision itself having no commercial value; it is the subsequent use of said decision that is the commercial activity. It is only when there is an attempt to monetize or otherwise quantify the property rights that the decision is used in the realm of commerce.
Just a thought–again, I’m no copyright expert–but it seems to me that if such use was characterized as essentially commercial, so would all civil litigation proceedings. Also, if commercial, would not the government/courts be a party to the commercial transaction, and therefore have to pay for any copyrighted material it might use in its decision, that was not necessarily supplied by the parties?
This will be fun to watch.
BigGuy,
Ned is highly selective of which questions he will answer. Good luck in your efforts.
TmiT(a),
Perhaps he has not run away, but merely has realized that his case is not closed after all.
As a good litigator, I am sure that he is carefully checking out the facts and the law before he shouts out anything as silly as “CASE CLOSED” again. Doing so once is pardonable, doing so twice is questionable, but to do so yet again in error would be disatrous.
Lolz at the pretentious Tell me where I’m wrong.
Gotta love it when the self-righteous crash and burn so gloriously.
He runs away just like Malcolm and Ned.
hmmmmm…
But you haven’t answered my original question”
Are you surprised?
Ned?
6, the word “antenna” is a metaphor. A metaphor is a figure of speech in which a word or phrase is applied to an object or action to which it is not literally applicable. I thought you would have at least understood that much without me having to explain it. I can tell your frustration and initial confusion is from a lack of understanding of the difference between the cellular level and the quantum level, of all life. Your college text books on basic biology most likely stop at the cellular level and do not teach or explain the connection to the quantum level. As I explained to you before Neuroscience is an interdisciplinary field which requires a total systems frame of reference for learning. You seem to be stuck struggling with one specific branch of knowledge. None the less I may be able to help sheds some light for you.
Look at it this way. Hold your hand out in front out you. What do you see? At the biological level you may say flesh, skin. And you would be right. Now imagine that same hand in placed under a very powerful microscope and I ask you to look in the microscope and tell me what you see. This time you may say, cells. And again, you would be right. Now let’s say I ask you to take the same hand and place it in a P.E.T. Scanner, or SQUID, (superconducting quantum interference device), and then ask you to tell me what you see. This time you may say, energy fields, and again you would be right. In fact if we had a device powerful enough you could see the mass of your hand reduced to a state of atoms, and even sub atomic particles, down to lepton pairs, quarks, and even neutrinos. Beginning to understand now?
And here, since you have a hard time citing some respectable sources I will cite you some.
link to personal.ashland.edu
link to ebiomedia.com
Those articles tell you about how cells OBTAIN energy and what energy is “IN” the cell. Note that there is not a word spoken about how cells supposedly, according to you, ARE energy.
Indeed, I don’t even know why i’m having this conversation, you plainly don’t even know what the scientific definition of what energy even is.
But here is a respectable article from which you may glean the correct definition:
link to faculty.clintoncc.suny.edu
Or you can also see page 23:
link to geo.cornell.edu
Note that a cell is not an “capacity”, and it sure as f is not the capacity to produce change.
“6, there are a great deal of references to epi-genetics on google.”
So cite me some that you think are pertinent old man. I will review them.
“As far as cells being facilitators of energy, well this is basic biology. You do remember that cells have an antenna so to speak that picks up signals in the environment and then communicates those signals to the DNA of the cell and other cells don’t you?”
No I don’t recall cells generally having an “antenna” “so to speak” or “literally to speak”. Cells generally have little “receptors” “so to speak” and “literally to speak”. I also recall my stating that you manage to confuse just about every subject you attempt to speak on because you’ve never seen the inside of a college classroom where most of these subjects are taught.
link to en.wikipedia.org
The only “antenna” that SOME cells have are such as this:
link to en.wikipedia.org
and they aren’t for gathering “energy” at least in the form of electrical signals. Those “antennas” are just what some biologists started calling these little structures:
link to en.wikipedia.org
because they kind of look like antenna. Although they sense things in the same old CHEMICAL fashion as nearly all of the rest of our cells do, the exeptions being neurons and the nervous system which, btw, do not have “antenna”.
“If you have a sincere interest in learning the basics, may I suggest you do some reading and then return to the discussion with your questions.”
I already know “the basics” you ar se. I, unlike you, took bio and I still have my textbooks. You’re the one that is all the time confusing “the basics” so badly that you come to outrageous nonsensical conclusions about cells being energy and all the rest of this hors sht you spew on a daily basis.
The only “question” I have is what literature you are gleaning your outrageous nonsense from. Because either a. you misunderstood that literature, or b. that literature is from someone similarly uninformed as yourself and is not respectable literature on the subject matter. I’m willing to help you out AI, but I can’t help you if you don’t tell me where you’re reading this ridiculousness.
But I will say this, if you don’t go ahead and tell me I’m going to give the f up on you because I’m tired of chatting about the boring “basics” that you misunderstand because you never went to college.
I’ll ignore the insult, Ned. I don’t think it was called for, as you were the one who first injected snark into the conversation.
Yes, regulations are related to the government. But you haven’t answered my original question – Aren’t regulations law?
And you haven’t answered my other question, where I asked for some sort of basis for your tantalizing suggestion that fair use analysis might somehow distinguish between obligations imposed by administrative regulation and obligations imposed directly by statute. You do agree that both are legal obligations, don’t you?
Come on, you claim to want real discussion – I’m offering one, based on your post.
Ned what new point, if any are you trying to make? And you need to define new math, if that is what you wish to inject into the discussion.
6, there are a great deal of references to epi-genetics on google. And quite a substantial collection of lectures on youtube, although I have not seen them. I assure it is not fantasy. As far as cells being facilitators of energy, well this is basic biology. You do remember that cells have an antenna so to speak that picks up signals in the environment and then communicates those signals to the DNA of the cell and other cells don’t you? If you have a sincere interest in learning the basics, may I suggest you do some reading and then return to the discussion with your questions. Right now you have not demonstrated enough command of the topic to even pose a specific question, let alone a credible challenge.
I take that risk itself is a mathematical abstraction, thus balancing of risk according to new math is nothing more that manipulating a mathematical abstraction.
Big I diot;
I really should not respond. And I will not, but to say, nice try.
When you deal with the government, regulations apply.
“I am discussing a branch of Quantum Biology, known as Epi-genetics so that our friend 6 may understand why cells at their essence are essentially energy. Epi ( meaning epidermis) and (genetics) meaning the gene. The term is loosely translated as, “above the gene”. Now, 6 and I had a conversation in the thread of another article about cells being facilitators of energy and this is how Epi-genetics entered the picture.”
So, you’re discussing a branch of actual science that in no way implies or states that cells “at their essence essentially are energy” but does sort of, in an only slightly messed manner of understanding it, imply that cells are “facilitators of energy”. And we discussed it in a previous thread that only you remember so that is how it “entered the picture”. And you do not feel obliged to point us to even the tiniest shred of a publication supporting these outrageous nonsensical claims so that we may indulge your fantasies by reading them and becoming as enlightened as you are.
Gotcha. Wonderful AI. Great work. Great trolling at any rate. You sir are undisputably a master. How you doing on the perscription I gave you bro?
First, both did not apply “new” math to an old process. Its not like they invented and used for the first time, Calculus.
Bilski had nothing but applied math, thus it was easy for this Court to identify and declare his invention (math) a judicial exception.
So you see, Its still simple no matter how hard you try to make it.
…regulations applies to the government and how it conducts its business. Law is different.
Seriously? 37 CFR applies to the government but doesn’t apply to you and your clients? 26 CFR (the tax regulations) don’t apply to you?
Can you tell us the difference?
Yes I can, Ned. But can you? And can you give any reasoned basis for your notion that a fair use analysis might turn on a distinction between obligations imposed on you by statute and obligations imposed on you by administrative regulation authorized by statute? I’m seriously interested in your theory.
One more point, AI, is that since both Bilski and Diehr apply new math to an old process, one must inevitably look to the nature of the process for the reason why the one passed 101 and the other did not.
Look, Actual Inventor, I actually agree with you that the Bilski claims represented and application of mathematics to a practical problem. That's why so many people are puzzled by the decision.
This report is great. I got burned pretty bad this Spring with an eBay scam. It’s nice to have CWW watching out for me.
“please do stay on topic and know what you are talking about, before your speak.”
You cannot ask this of Ned. To do so would be to remove his drunken swagger. How would we believe the post to be from Ned without the trademark off topic BS?
There is nothing wrong with the 9 Justices in Bilski. The 9 Justices in Bilski are simply wrong according to the Supreme Court.
It’s the Supreme Courts job to tell the ( CAFC) when they are wrong.
So if one reads the decision carefully, then according to the Supreme Court even if a claim passes the DCAT it can fail for simply being a judicial exception, in this case math.
Even though the “math” in the Bilski patent “application” involved physical acts of communication such as speaking, writing and reading, those acts apparently do not remove “math” from the judicial exceptions.
What’s important to understand here is that the Bilski decision is limited to the particular application of math in that specific patent “application”, and cannot be extrapolated to ALL applications of math, and especially all applications of processes, including those for conducting business or designing software.
Simple: “Easy. It does not fail the test.”
AI : Brilliant!
There’s your answer Ned.
Ned: 6, I don’t believe that AI could possibly be talking about the entropic theory of gravity that you linked to a few months ago.
AI: You would be right. That is not what I am discussing. I am discussing a branch of Quantum Biology, known as Epi-genetics so that our friend 6 may understand why cells at their essence are essentially energy. Epi ( meaning epidermis) and (genetics) meaning the gene. The term is loosely translated as, “above the gene”. Now, 6 and I had a conversation in the thread of another article about cells being facilitators of energy and this is how Epi-genetics entered the picture. So if you wish to participate Mr. Heller please do try and keep up and stay on point.
Ned: “Regardless, I think AI would have a hard time justifying one of his applications if it required proof of an untested quantum theory of mass in order for his claims to be based in this universe. Next he will be arguing that a claim counting the number of Angels dancing on the head of a pin based upon his assertion, citing the Bible and other such literature, that Angels are real, and so on. I would think the PTO would like a demonstration.”
AI : Your above comment is totally irrelevant to the discussion at hand. I do not even think 6 is making such an argument. None the less you do need to understand that a fundamental canon of patent law simply requires an application of a concept in order to find an invention as statutory subject matter. Understanding this basic rule has great implications for what is and is not an un-patentble abstract idea. If you want to continue to participate please do stay on topic and know what you are talking about, before your speak.
Do you really think the Bilski decision is a good one?
That decision was written for a majority decision by Stevens, who lost his majority and could not retrieve it.
It is a piece of crrp.
Simple, I see. The Bilski claims pass the DCAT as enunciated by AI. Therefore, either there is something wrong with all 9 Justices in Bilski who were unanimous on agreeing that the Bilski claims were abstract, or there is something wrong with the DCAT.
Easy. It does not fail the test.
The easy conclusion is that the Bilski decision was wrong. Since the claims do distinguish from the Supreme Court’s extra-legislative additions to patent law (see the recent Golan decision for the proper attribution of who sets law), the Supreme Court has reache dbeyond the constitutional mandates that they have say over and their decision lacks to the force of law.
That’s the easy part. Actually enforcing the correct decision, now that’s the difficult part.
6, I don’t believe that AI could possibly be talking about the entropic theory of gravity that you linked to a few months ago.
link to en.wikipedia.org
Now that was a real mind blower. He seems to instead cite to something discussed on PBS 12 years ago.
Regardless, I think AI would have a hard time justifying one of his applications if it required proof of an untested quantum theory of mass in order for his claims to be based in this universe. Next he will be arguing that a claim counting the number of Angels dancing on the head of a pin based upon his assertion, citing the Bible and other such literature, that Angels are real, and so on. I would think the PTO would like a demonstration.
I’ll tell you what AI, if you will be so kind as to draw my attention to some published literature on the topics about which you are currently making sht up about then I will read them. Perhaps you’ll even learn something about them when you look up the pubs to show me.
In the mean time, do stick to the perscribed regimen.
6: “No AI I have not studied “Quantum Biology” or subsections thereof”
AI: I see. Then you are not yet fully competent to make up theories (e.g. your pre-emption doctrine) about a claim covering an abstract idea, are you?
May I suggest you start with the basic post Einstein precept that says, “everything in energry”
After all, until you understand what is real, and what is not, based on objective testable scientific evidence you are really in no position to deviate from that science, or the law that it influences.
No AI I have not studied “Quantum Biology” or subsections thereof so that I can understand/realize whatever nonsense you are currently pulling directly out of your arse. Nor have I tried to understand how a barely non-zero mass particle from the sun such as a neutrino supposedly “helps to give the earth and everything in and on it mass and form”. Nor have I decided that answering essay questions proposed by you is a good use of time. I also do not care about any of them.
What I did do however was perscribe you a treatment regimen for your trollitus. Have you been adherring to it rigorously? You don’t seem to be showing signs of improvement. Indeed, your rate of trolling appears to be quite steady and that is never good.
Perhaps we should ask my colleagues: do I need to perscribe a regimen with more bass?
Simple, applied math?
Apply this test to the Bilski claim below please! Below are the steps of the Bilski claim, summarized, from Wikipedia*. Give me a blow-by-blow why the claim below fails your test.
initiating a series of sales or options transactions between a broker and purchaser-users by which the purchaser-users buy the commodity at a first fixed rate based on historical price levels;identifying producer-sellers of the commodity; andinitiating a series of sales or options transactions between the broker and producer-sellers, at a second fixed rate, such that the purchasers' and sellers' respective risk positions balance out.
Just how is it that the "math" is not applied to balancing risk?
* link to en.wikipedia.org
BigGuy, regulations applies to the government and how it conducts its business. Law is different. Can you tell us the difference?
The easy answer is that there is a clear difference between math and applied math.
That’s it in a nutshell.
AI, may I ask you a question? If every judge of the Federal Circuit and the four Justices in dissent all agree that the five-justice major in Bilski did not explain WHY the claims in that case were abstract, how is that you know, and say so with aplomb, that the problem with the claims there was MATH?
Math! you say; but even as you say this, you also acknowledge that the Diehr claims also involved math. So, why were the Diehr claims not abstract and the Bilski claim abstract when Math was at their core in both cases?
You have advocated countless times that the holding in Diehr could be described as DCAT. If you could, would you apply the DCAT test to Bilski? Does it pass or does it fail, and why? Your reasoning is what we really need.
I mention the word law here for a reason. Rules are not the law.
Really? By “rules” I assume you are referring to federal regulations, right? Those are not law?
6 did you ever go study Quantum Biology so that you may understand why cells at their essence are essentially energy/?
Did you read the sub sections on epi-genetics so that you may realize that cells receive their operating instructions from energy signals in the environment?
Have you even tried to understand why the solar neutrinos discussed in the 2000 PBS documentary are the same neutrinos that flow thru the earth and everything in and on it to help give it mass and form?
And finally I expect to see you answer the following essay question:
How do these 21st century breakthroughs in science and technology factor into the PTO examiners analysis of 101 statutory subject matter and the definitions of un-patentable abstract inventions?
“banning paid for subscription journal services” is “one small step at a time.”
Anyone see this as NOT a small step?
Anyone?
Bueller?
Bueller?