The Supreme Court today vacated the Federal Circuit’s decision in AMP v. Myriad Genetics and has ordered the appellate court to reconsider the case in light of the recent Supreme Court decision in Mayo v. Prometheus. To be clear, the Supreme Court’s move here is not a ruling on the merits but rather merely a recognition that the validity of Myriad’s human gene patents may be impacted by the Mayo decision.
I previously wrote that one reasoned result of the Mayo decision is that Myriad’s claims directed toward isolated human DNA are now invalid.
Following Mayo, the court could logically find that the information in the DNA represents a law of nature, that the DNA itself is a natural phenomenon, that the isolation of the DNA simply employs an isolation process already well known and expected at the time of the invention, and ultimately that the isolated DNA is unpatentable because it effectively claims a law of nature or natural phenomenon. One distinguishing point is that Prometheus claimed a process while Myriad claims a composition of matter. As we have seen in recent cases, the Federal Circuit already largely rejects formalistic distinctions between process and composition claims. Here, that distinction is further minimized by the reality that the claimed DNA is functionally characterized by the already well known process of isolating human DNA.
ed Heller said in reply to Man Not Nature…
Man, is that the limit on Congress power, really? Is that your position that the only things that Congress can legislation on vis-a-vis the public domain are with respect to
What if Congress amended the law to expressly allow patents on any discovered thing, regardless that it was a new plant or animal or anything else, that was not publicly known, and regardless that it was made by man or merely discovered, and provided it was useful. It is your stated position that such would be beyond Congress power?
Maybe the 1600 renewal rate is so low because most of the time the only claims they’ll allow are so ridiculously narrow that they aren’t worth the paper they’re printed on…and maybe it takes the Applicant a couple of years to come to terms with that (or decide, by committee, to drop the maintenance fees that aren’t worth it).
Oh wait, that’s just the Examiners we get–I see ridiculously high allowance rates for other Examiners in the same art units. If the PTO randomly assigned applications to examiners, our allowance rate would be much higher
So I patent a new compound disclosing a use for it and the patent is invalid?
Sent from iPhone
Conjecture, you have the burden.
Give me one case that held that a composition of matter claim was invalid on the legal grounds that it was a product of nature.
In re Bergstrom flatly rejected that proposition and it is controlling law in the Federal Circuit unless it has been overturned. Certainly, no Supreme Court case overturned it.
“I cannot prove a negative”
You cannot prove anything with what you have shown.
Other than your propensity for falsehood.
Conjecture, you have the burden, not me, to show me one case, just one, where the court held that a composition of matter was not patentable on the grounds it was a product of nature. I cannot prove a negative. I have looked, but have found none.
Careful,
You will need an exact quote to suppport that contention.
“My point, in fact”
Absolutely Clueless Ned.
Identify the case?
Asked and answered.
Try Again.
Nothing in the post at 9:10 AM supports your conjecture Ned.
“This is standard stuff. Middle school math.”
It’s also a non-answer to the question of “What is the structure of that “standard stuff?” e.g. anything does not cut it for “structure.” Would arsenic work for your e.g.? Sounds more than just a little indefinite as to your high and mighty standards.
Read, man read.
As to the second question, you flail with a “Again, you stand corrected when you haven’t done any correcting. You say “Let it go” but you haven’t given anything to let go. You’ve been a bag of hot empty air, vacuous (as usual).
It’s easy to see that the swearing comes out when you have no real answer.
Truly pathetic.
Man, OK, just what case held that discovered compositions of matter were not patentable. Hand, in 1911, thought they were. So, it must have been after that date.
Identify the case.
Losing side? Check the result in Prometheus. Check the result in Bilski?
I know a losing side when I see it.
You guys are full of it, aren't you?
sockie X compositions and non-X compositions are not structure. What the h311 is a non-X composition?
I guess you can always make it more clear for the kindergartner crowd. If you have a composition that consists of at least 95% X, that means that the composition consists of at most 5% non-X. For instance, a 95% pure composition of chicken fat (by weight) may contain no more than 5% non-chicken fat substances, e.g., bone, meat, beak, toenails.
This is standard stuff. Middle school math.
The question for functional claiming was obviously to “isolating.”
Again, you stand corrected. Let it go, sockie. Oh, I forget. You can’t do that because you’re a dissembling axxhole.
“did in fact do that in 1793”
Not according to the Supreme Court, the regular courts, the Office (and pretty much anyone else who looks at this rationally).
You sure do enjoy the swagger of 6 and MM (and compared to them, the comments here are downright meek).
In truth, you are just mad because you are on the losing side again of the GD War.
Well, MAN, Congress did in fact do that in 1793, but limited to compositions of matter.
“What if Congress amended the law to expressly allow patents on any discovered thing, regardless that it was a new plant or animal or anything else, that was not publicly known, and regardless that it was made by man or merely discovered, and provided it was useful.”
Then your ramblings might have a chance of being correct.
Come back and post your nonsense when that happens.
It is your stated position that such would be beyond Congress power?
No. It is merely my stated position that such has not happened and that you would need such to happen for your view to have any traction. As it is, you are spouting groundless rhetoric and butchering case law to no end.
Yeah.
You guys behave like Roseanne Barr who tweeted the address of Zimmerman's parents for the sole purpose of intimidation, retaliation and h*ate.
Really nasty folk, she.
Man, is that the limit on Congress power, really? Is that your position that the only things that Congress can legislation on vis-a-vis the public domain are with respect to man made things?
What if Congress amended the law to expressly allow patents on any discovered thing, regardless that it was a new plant or animal or anything else, that was not publicly known, and regardless that it was made by man or merely discovered, and provided it was useful. It is your stated position that such would be beyond Congress power?
Now, on what do you base your authority?
“disregard of manners, civility, due respect, or any other hint that the poster could possibly be one of proper upbringing, a member of civilization, or a gentleman or lady.”
Enjoy the swagger Ned.
Diehr, have you even been near a law school?
Cluesless yet again Ned.
You attempted to use Golan to say that the subjecte matter of nature can be made patent eligible.
BZZZZZZZZZZZZZZZZZZZT. Wrong.
In Golan the subject matter of that case wherein the subject matter was removed from the public domain was ONLY subject matter created by man in the first place.
Will you please wake up and understand the posts beofre commenting?
“You really need to understand what dicta is.”
Quote of the day from someone who is clueless.
Man, My point, in fact. You are not fighting with me, my friend. We are on the same side here against the poster who said that Golan excluded natural phenomena.
You really need to understand what dicta is.
Would inherency be at play?
Are you flippin dense?
The Golan case was explicitly about copyrights as subject matter. Basic copyright law is that copyrights are only available on subject matter created by man. Ergo, the works available to be taken out of the public domain are not those made by nature, but by man. You cannot stretch Golan beyond the controlling facts of that case.
Works of nature belong to all.
“L ia R, OK, cite the case where the Supreme Court clearly held that compositions of matter found in nature were not the proper subject of a patent.
Cite please.
Chakrabaty.
Duh.
No, the poster referenced the Golan case. Where in that case is the exclusion he claimed was there for Congress' power vis-à-vis the public domain. He said it was there. Now let him back it up. We are not talking about basic copyright law. We are talking about a specific Supreme Court case and what it held about Congress's power to withdraw subject matter from the public domain. This had nothing specifically to do with copyrights.
L ia R, OK, cite the case where the Supreme Court clearly held that compositions of matter found in nature were not the proper subject of a patent.
Cite please.
I am aware of no such cases anywhere. That is why I said what I said; and it is not a lie, but based upon research.
In contrast your post is illustrative of your routine disregard of manners, civility, due respect, or any other hint that the poster could possibly be one of proper upbringing, a member of civilization, or a gentleman or lady.
R U serious Ned?
basic copyright law, dude.
Try, are you Chara Batty? You use the same misspelling in the same lack of common sense.
Man, really? Cite me the passage of the Supreme Court case on copyrights that actually said what you said it held.
it is clear that the Supreme Court was operating under the assumption that a composition of matter found in nature was not patentable.
“operating under the assumption”
A duplicitous way of saying what the Supreme Court clearly understood the state of patent eligible matter.
Chakra Batty (as you call yourself), it is clear that the Supreme Court was operating under the assumption that a composition of matter found in nature was not patentable. That being said, there is no case that I can find anywhere in Supreme Court jurisprudence that has actually held that a newly discovered composition of matter found in nature is not patentable. That issue was never squarely before the Supreme Court and they did not decide it.
Furthermore, we learned from the recent copyright case that Congress has the power to grant copyrights for works that are in the public domain. So the objection that a composition of matter might be in the public domain is not a proper objection to Congress's power to authorize patents for compositions of matter found in the public domain. The only question is, did Congress authorized the patenting of newly discovered compositions of matter or not, and if they did, did they limit in any way that the compositions may not have been discovered from a product of nature?
Now for your information, the authority for granting patents and compositions of matter entered the statutes in 1793. The Patent Act of 1793 read, and I quote,
"That when any person… shall allege that he… invented any new and useful… composition of matter… not known or used before the application… [shall receive] letters-patent… [on] said invention or discovery…."
From the recent en banc Zoltek case, we learned that when construing the terms in a statute we look to what those terms meant when they were enacted. Since the granting of patents and compositions of matter were first placed into the statutes in 1793, our understanding of what Congress meant by the terms has to be in reference to understanding at that time.
We know from Pennock v. Dialogue that "not known or used" before the application meant not known or used "publicly". There is no hint whatsoever in that case, or in any other case of that era, that some composition of matter found in nature but otherwise unknown to the public was not the proper subject matter of a patent.
Furthermore, the very first case the talked about not patenting laws of nature or scientific principles was Le Roy v. Tatham. There is no hint in that case that compositions of matter found in nature were not the proper subject of patents. That case was all about not being able to claim the laws of nature or principles in the abstract. That case cautioned that principles and abstract could not be claimed, but applications of the laws of nature or principles that produced new and useful results were the proper subject of patents. Mayor politely suggest that a composition of matter is such an application. It is not something abstract.
So may I politely suggest that there is no authority whatsoever anywhere in the Supreme Court jurisprudence that would clearly hold that the plain act of Congress in 1793 to authorize patents on compositions of matter not known or used has no exception that the composition of matter might be found in nature.
“Why don’t you discover the words of the statute.”
35 U.S.C. 101 Inventions patentable.
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
[1]
process
[2]
machine
[3]
manufacture,
[4]
composition of matter
Clearly the judicial exceptions apply after reaching one of the categories. Just as clearly as Ned’s category of choice is process, an equally susceptible category is composition of matter.
You will note that Ned does not address this logic.
After noting this, then read the Chakrabaty posts.
After that, let’s see Ned try again.
“I have been considering the body of case law on this topic”
LOL. Is that what you call it?
I think there’s something faulty alright.
“authorize copyrights on works that are in the public domain”
sure – works made by man.
oops, forgot about that little aspect
Worth repeating:
Congress thus recognized that the relevant distinction was not between living and inanimate things, but between products of nature, whether living or not, and human-made inventions.
Products of nature are not patent eligible. Period.
“Are you going to defy Thomas Jefferson. Are you going to defy Congress’s plain words?”
No, that’s why we have the Supreme Court. Hey, it’s their three exclusions:
The Court has long held that this provision contains an important implicit exception.
[1]
“[L]aws of nature,
[2]
natural phenomena, and
[3]
abstract ideas” are not patentable.
Diamond v. Diehr, 450 U. S. 175, 185 (1981); see also Bilski v. Kappos, 561 U. S. ___, ___ (2010) (slip op., at 5); Diamond
v. Chakrabarty, 447 U. S. 303, 309 (1980); Le Roy v. Tatham, 14 How. 156, 175 (1853); O’Reilly v. Morse, 15 How. 62, 112–120 (1854);
Furthermore, how can you call yourself a student of history and not cite the premier and broadest indication of patent eligibility cases, Diamond v. Chakrabarty, 447 U.S. 303:
While laws of nature, physical phenomena, and abstract ideas are not patentable, respondent’s claim is not to a hitherto unknown natural phenomenon, but to a nonnaturally occurring manufacture or composition of matter — a product of human ingenuity “having a distinctive name, character [and] use.” Hartranft v. Wiegmann, 121 U. S. 609, 121 U. S. 615. Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U. S. 127, distinguished. Pp. 447 U. S. 308-310.
[further:]
This is not to suggest that § 101 has no limits, or that it embraces every discovery … Such discoveries are “manifestations of . . . nature, free to all men and reserved exclusively to none.” Funk, supra at 333 U. S. 130. (See Id. 309)
[continuing:]
His claim is not to a hitherto unknown natural phenomenon, but to a nonnaturally occurring manufacture or composition of matter — a product of human ingenuity “having a distinctive name, character [and] use.” Hartranft v. Wiegmann, 121 U. S. 609, 121 U. S. 615 (1887). The point is underscored dramatically by comparison of the invention here with that in Funk. There, the patentee had discovered that there existed in nature certain species of root nodule bacteria which did not exert a mutually inhibitive effect on each other. He used that discovery to produce a mixed culture capable of inoculating the seeds of leguminous plants. Concluding that the patentee had DISCOVERED “only some of the handiwork of nature,” the Court ruled the product nonpatentable…They serve the ends nature originally provided, and act quite independently of any effort of the patentee.” 333 U.S. at 333 U. S. 131.
[and further:]
“There is a clear and logical distinction between the discovery of a new variety of plant and of certain inanimate things, such, for example, as a new and useful natural mineral. The mineral is created wholly by nature unassisted by man. . . . On the other hand, a plant discovery resulting from cultivation is unique, isolated, and is not repeated by nature, nor can it be reproduced by nature unaided by man. . . .”
S.Rep. No. 315, supra at 6; H.R.Rep. No. 1129, supra at 7 (emphasis added). Congress thus recognized that the relevant distinction was not between living and inanimate things, but between products of nature, whether living or not, and human-made inventions.
As AI says,
::Case Closed::
“if made to a court would, result in an immediate citation for contempt.”
So would your lies.
Doesn’t stop you, now does it?
Try again.
Try again, ""a new physical result." This has already been shot down. Try again."
How can anybody even begin to address this form of argument? You don't say who shot it down, where and what by what authority. This kind of argument, if made to a court would, result in an immediate citation for contempt.
Try, you try. Why don't you discover the words of the statute.
Thomas Jefferson was of the view that we should authorize patents on the discovery of new compositions of matter. That is why it is in the statute.
Are you going to defy Thomas Jefferson. Are you going to defy Congress's plain words?
Are you aware of the recent Supreme Court case that said Congress had the power authorize copyrights on works that are in the public domain? If Congress has the power to do this respect copyrights, does it not have the power to do so with respect to patents on compositions of matter? Whether a composition of matter is in the public domain or not is quite beside the issue if Congress has the power authorize patents to the first discoverer of the composition of matter regardless that is in public domain.
“a new physical result.”
This has already been shot down.
Try again.
“The statutes expressly authorize a patent on one of the two and not the other.”
Clearly, this is wrong. What are the FOUR enumerated categories expressly authorized by statute?
Try again.
Correcting, and stop taking things out of context. I am not talking about the discovery of a phenomena of nature. I am talking about the discovery of a composition of matter. The statutes expressly authorize a patent on one of the two and not the other.
A phenomena of nature is a principle, a law, a motive power. See Le Roy. One may not have a patent for that in the abstrast. One has to provide a useful application; and that means, a new physical result.
I think Prometheus would have been OK if he had simply completed the claims with a treatment step. What is your take?
Correcting, if you discover a new composition of matter, you may have a patent for it.
That is what the statute says.
When we are talking about laws of nature, you need to provide a useful application.
That is what the cases say.
So, where is your problem?
Correcting, the issue of what knowledge is is in fact discussed in Pennock. The question asked by the post is “How do you know what you do not know.” According to Pennock, your own discovery is not prior art to yourself.
Ned,
Your other posts are not worth repeating as you merely repeat the same mistakes in logic that you already have been corrected on.
Repeating your mistakes will not transform them your suppostions into correct statements of law.
From Ned’s link, he states the following:
“Nature, Thus, the Court has written that “a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter.” However, the statute does authorize that discovered compositions of matter are patentable. These are not the same thing as a plant or mineral.”
The rebuttal:
Ned, here too your asnwer is simply incorrect. You seem to lack an understanding that the judicial exclusions are exceptions to 101. You think that your argument has won the day if only you can get ot a point where you have arrived at fitting into one of the categories and then saying “Aha, it is explicit that I can get a patent on that.”
Need I present any of your comments on processes (which are also clearly listed as a category under 101?
In essence, your arguments here are 180 degrees opposite your well known stand on business (medical?) method patents. Clearly, any business method is a process, and a process is explicitly covered under 101, yet we both know that the judicial exception can always apply. Just as in processes, the judicial exceptions, all three of them can apply to the other categories enumerated in 101.
As I have stated, I have better logic than you.
From Ned’s link, he stated the following:
“Benson, phenomena of nature are the laws of nature. See Le Roy v. Tatham for more. These are not compositions of matter, not at all.”
The rebuttal:
Ned, how many judicial exclusions are there?
The answer is three, not two. Clearly you are incorrect. For a cite, just look at any Court or court decision that enumerates the judicial exclusions. Three, not two, are always present.
From Ned’s link, he asked the following:
“How do you know what you don’t know? The mere fact that am application for patent has been completed means that the item is known. The applicant while being an individual is also a member of the public. If any member of the public knows of something that is of nature, then the premise of unknown fails. Mere first to find is not enough. There is nothing inventive in that. Much like the Prometheus case ( which WAS MORE than ) a Law of Nature, natural phenomena are a recognized exception Which demands something more.” Asked and answered. See, e.g., Pennock v. Dialog that has a full discussion on this issue. Not known or used before means not publicly known. The discovery is not prior art to the disoverer himself.”
The response:
Asked and answered; asked yes, but answered incorrectly.
Repeating your incorrect answer does not change it into a correct answer. No such transformation is possible.
Your faulty understanding of Pennock has been well versed. At best a mere discovery is a start at a inchoate invitation to an inchoate right. You still have to complete it, not only through the patent process, but more on point to our discussion, you need to have something more, some inventive aspect. See Prmoetheus.
Just as Prometheus proclaims “just apply it is not enough, the exception, the judicial exclusion which trumps 101 requires something more, something extra to make new in kind. Mere discovery is not new in kind. Further, you must look at this, not through a lens that is 100 years old, but through the lens of Prometheus. Your musings lack an up to date view of the law, which is the point of this discussion.
"How do you know what you don't know? The mere fact that am application for patent has been completed means that the item is known. The applicant while being an individual is also a member of the public. If any member of the public knows of something that is of nature, then the premise of unknown fails. Mere first to find is not enough. There is nothing inventive in that. Much like the Prometheus case ( which WAS MORE than ) a Law of Nature, natural phenomena are a recognized exception Which demands something more."
Asked and answered. See, e.g., Pennock v. Dialog that has a full discussion on this issue. Not known or used before means not publicly known. The discovery is not prior art to the disoverer himself.
Benson, phenomena of nature are the laws of nature. See Le Roy v. Tatham for more.
These are not compositions of matter, not at all.
Nature, Thus, the Court has written that “a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter."
However, the statute does authorize that discovered compositions of matter are patentable. These are not the same thing as a plant or mineral.
How do you know what you don’t know? The mere fact that am application for patent has been completed means that the item is known. The applicant while being an individual is also a member of the public. If any member of the public knows of something that is of nature, then the premise of unknown fails. Mere first to find is not enough. There is nothing inventive in that. Much like the Prometheus case ( which WAS MORE than ) a Law of Nature, natural phenomena are a recognized exception Which demands something more.
Plowing, back into metaphysic, are we?
"Your error is in confusing made by the hand of man compositions with those things NOT made by the hands of man, and ASSuming that which you need to establish.The Court has been clear: the exceptions OVERRULE the categories of 101. Thus, a mere composition of matter, while no doubt a category under 101, STILL must make it past the judicial exception of natural phenomena. Just as you cannot merely say "Apply it" you cannot say "Found it."
You consistently equate laws of nature with composition of matter. The two things are not the same thing. Further, the patenting of discovered compositions of matter is expressly authorized by statute!
"Also, your contention that 101 expressly authorizes the patenting of newly discovered compositions of matter fails in the critical application to compositions of matter in nature (think bacteria for certain legume roots composed to be a mixture of species)."
In Funk, all the bacteria were known and there was no issue of discovering an unknown composition of matter involved in that case. None at all.
In Parke Davis, adrenalin in an unpurified form was KNOWN and was not the discovery of Takamine. link to books.google.com;
Takamine was the first to purify Adrenalin, something the discoverer of the compositon, Abel, had tried unsuccessfully to do for some time without success. See the story in the link above.
The case involved whether the purified composition was novel and non obvious. "Different in kind" was a general standard used in 1911 to describe "invention." We now describe this as the test under 103.
Nothing in Parke Davis supports the view that had adrenalin not been known that the first discoverer could not obtain a patent therefore. That issue was not squarely before Hand. Even so, it was Hand's expressed view that Abel's unpurified compound was patentable:
[T]he base was an original production of Takamine's. That was a
distinction not in degree, but in kind. But, even if it were merely an
extracted product without change, there is no rule that such products are
not patentable. Takamine was the first to make it available for any use by
removing it from the other gland-tissue in which it was found, and, while it is of course possible logically to call this a purification of the principle, it became for every practical purpose a new thing commercially and therapeutically.
link to stlr.org
Ditto the asprinin case. Aspirnine was the purified form of a known compound.
There is nothing is any of these presidents that even suggests that the discovery of a unknown compostion of matter from nature is unpatentable. Manifestly, the are patentable.
Regarding the quote from Cochrane v. Badische Anilin & Soda Fabrik, 111 US 293 (I884), the product was a known composition with a known chemical formula. The court made this abundantly clear. This case supports my point that the prior cases on compositions of matter all involved KNOWN products.
“The Court has been clear: the exceptions OVERRULE the categories of 101”
Someone tell Ned that’s why they are called exceptions.
LOLZ,
Prometheus rocked Ned’s world so hard that he misses a quote from Benson that he has read like a gazillion times.
The only question remaining is how big will the fireball be from Ned’s truck’s going off the cliff.
How about “Phenomena of nature, though just discovered” ?
How about “same). Thus, the Court has written that “a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter.”
The range of examples is illustrative: from the simpliest of minerals to the complexity of a living plant.
That which belongs to nature belongs to all.
“always was an expression of the idea that a claim had to provide a new result.”
Revisionist History Ned at it again. Yet the bone-head blithely is unaware that a little case called Morse provides for the outright explicit policy of multiple patents (for different ways of) reaching the cary same (and thus old) result.
Ned, when approaching the edge of the cliff in your truck, try to remember that the brake IS TO THE LEFT.
LOLZ at sockie-MM.
Yet another instance of him accusing others of that which he does.
Way to smack him around CN.
Silly Ned, tricks are for kids.
You provided a cite to the very thing you say you cannot find.
“While a new process for producing it was patentable, the product itself could not be patented”
It’s also in Correcting Ned’s post. Right above the neglected words: PAY ATTENTION.
Also, implicit in the adrenaline case, think about what would have been the result if the purification was not something “of a different kind?” No patent for you!
Further, you beg CN for a citation to authority, yet shockingly absent is your citation for authority that “new” means “not known.” Please provide a citation for your contention.
Double standards are not very nice.
Also, your contention that 101 expressly authorizes the patenting of newly discovered compositions of matter fails in the critical application to compositions of matter in nature (think bacteria for certain legume roots composed to be a mixture of species).
Your error is in confusing made by the hand of man compositions with those things NOT made by the hands of man, and ASSuming that which you need to establish.
The Court has been clear: the exceptions OVERRULE the categories of 101. Thus, a mere composition of matter, while no doubt a category under 101, STILL must make it past the judicial exception of natural phenomena. Just as you cannot merely say “Apply it” you cannot say “Found it.”
Correcting, just one small update here:
Prometheus was about a law of nature, not about a composition of matter.
I contend that 101 espressly, not implicitly, but expressly authorizes the patenting of newly discovered compositions of matter.
The only question is whether the composition is “new.”
I contend that “new” means “not known.”
If you have authority that actually contradicts this wrt compositions of matter, please give us all the cite. Malcolm and I are not aware of any such case.
Your reading skills really blow MM.
X compositions and non-X compositions are not structure. What the h311 is a non-X composition?
The question for functional claiming was obviously to “isolating.”
Correcting, "Invention" means "invention or discovery." That is only to make the subsequent statutes that mention invention easier to write. The subsequent references to invention include both.
However, section 101 is different. Expressly recites both invention and discovery. In this section as opposed to other sections, they do not mean the same thing.
Without getting into detail, invention requires an act of man, in particular making or doing something that did not exist before. In contrast discovery means finding or recognizing something that previously existed, as in, "Columbus discovered America."
What’s the exact and precise structure of “95%” pure?
Typically, if the compositions consists of at least 95% pure X, it means that non-X compositions comprise less than 5% of the composition. Have you heard of the FDA? Or the USDA? They use this sort of language routinely to prevent massive numbers of deaths from the consumption of impure products.
What’s with the functional claiming?
I have no idea how the term “95% pure”, in a composition claim, could possibly be deemed to be a “functional”.
Man, this blog has the dxmbest trolls.
You indicate 101 in blatant oversight of what I did provide you in 100.
How am I to hold a conversation with you if all you want to do is talk?
You will never learn anything new with a mindset like that. Now pay attention and review once more my several posts.
Correcting, the MOT always was an expression of the idea that a claim had to provide a new result. The problem was, if one could not dissect the claim into old and new elements and then determine whether there was a new result, old transformations count.
Even the government brief seem to acknowledge that if all transformations count, the Prometheus claims pass the MOT. However, if one is able to identify what is actually new and determine whether there is a new result, then MOT works the way it was originally intended.
I am sure that the courts in the future will recognize that the MOT has to be applied with respect to the new elements of claim sets that they operate provide a new result.
Correcting, what you did point out that discoveries in the Constitution also was involved with the copyright clause; but I also think you do not give weight to the fact that both "invent" and "discover" appear in section 101. You seem to think that the requirements for both have to be identical or at least, substantially the same. I think that is nonsense.
Prometheus? I see the problem there. Le Roy v. Tatham is the case. Had Prometheus been like Diehr and had actually done something with the correlations, I think the result would have been the same as Diehr.
I'm sorry. I don't recall you citing any authority at all for your statements.
Now if you said that the case law holds this or that without actually citing a case, have you actually cited authority?
sockie-MM,
For someone who criticized others about their reading comprehension skills, your application of that skill is rather disappointing.
First, note that I stated Ned’s MOT-all-but-required doctrine. Thus a sharp distinction between the actual (surviving MOT as a clue) doctrine is clearly indicated. If you are unaware of Ned’s version, you should probably read up on it before jumping to an errant conclusion of what others are talking about. Not only do you look foolish, but you lack the proper tone of respect as well. Playing the fool is no way to go through life son.
Second, don’t you have a whole boatload of questions addressed to you? Your time would be better spent actually formulating answers in line with real law (as opposed to your famous sniff-test style).
sockie They are effectively natural.
LOL. What in hxll does that mean, sockie? Why are they “effectively” natural? Nobody is prevented from using any naturally occuring nucleic acid molecule. Why are novel, non-obvious isolated nucleic acid compositions “effectively” natural?
Are there other molecules that are “effectively natural”? What about a novel, non-obvious isolated derivative of cholesterol with profound anti-heart disease properties? Is that “effectively natural”?
Man, this blog has the dumbest trolls.
sockie: no matter how tranformative those steps are. as an aside, you do realize that your MOT-all-but-required was laid to rest in this decision, do you not?
How do you figure that? The claim was found ineligible and it recited transforming steps. If there had been no transforming steps and the claim merely recited “A method of thinking about a correlation between metabolite levels and drug dosages”, it never would have gotten to the Supreme Court.
MOT is still a huge clue when it comes to determining 101 eligibility.
Further, Ned, I have corrected your misstatement as of your post at 10:19 AM regarding what patent law actually says (and what the constitutional clause says as well). Do you need links to those documents?
Instead of being surly, you should be gracious. You have a chance of bettering your understanding.