239 thoughts on “Administrative Rules for Implementing a First-to-File System”
239
Ned,
I began typing a response and realized that I was just typing in all of the comments already made on this thread.
I then realized that you are not seeing the real picture because you are overly focused on Pennock (your last two comments indicate this: “has anything to do with Pennock” and “ Since Pennock occurred 20-30 years prior to the first trade secret case ever“).
You are not grasping the actual issue under discussion which is larger than Pennock.
The actual issue under discussion is the constitution and all of the laws involved in a calculation of protected time.
I had thought you understood this when you typed that you did not see the constitution question limited to patents and when you acknowledged that the time of protection involved more than the time afforded under patents.
I now realize that you have blinders on and are only seeing patents and not the actual constitional question (the very question you provided).
Until you realize what the issue is, and then go back and read all of the comments on this thread that actually discuss the real (larger) issue, I am afraid that I cannot (nor can anyone else) help you understand the problem with the logic used in Pennock.
I think you are close to a breakthrough with some of your comments, but I also think that only you can draw back the final curtains and realize the full concepts involved.
It is not just patents.
It is not just Pennock.
I cannot (nor can anyone else) help you if you refuse to release the trunk of the elephant, take a step back, remove the blinders and look at the entire elephant.
I hope you choose to do so.
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TypePad HTML Email
Looking, you are going to have to help me here, as I do not see the issue
of trade secret protection being relevant at all.
Let’s make sure we are talking about the same thing. Trade secret protection occurs when a secret is a misappropriated by a
third-party through violation of trust, thievery, or otherwise. The law gives
one the right of action against the trade secret misappropriator, and an
injunction against his or her use of the trade secret. None of this has anything
to do with the existence of a trade secret, which can be maintained by simply
not allowing people access to one's factory.
With all sincerity, I simply do not understand how the concept the trade
secret protection has anything to do with Pennock.
237
Your conclusions are flawed for the reasons given. You choosing not to pay any attention to the reasons (because Pennock paid no attention) is itself logically flawed, and cannot overcome the flaws that you inherit (it should tip you off to the possibility of a problem as you note that Pennock occurred 20-30 years prior to the first trade secret case ever). Obviously, law developed after Pennock that must be accounted for.
You need to realize that talking about trade secret protection is critical to understanding exactly why the flaws are there.
The points raised are good solid legal points. The flaws must be addressed because they exist. All I am asking is that you recognize that the flaws exist and attempt some rationale to deal with the flaws. Saying “Don’t discuss the flaws” just doesn’t work.
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Hey, Looking Glass, the problem with the post was that all it wanted to talk about was trade secret protection and how that was coupled to the patent period to created a combined period. Since Pennock occurred 20-30 years prior to the first trade secret case ever, it did not depend upon trade secret protection for its theory.
The PO in that case was able to keep the secret of making fire hoses away from the public for a very long time. How he made the hoses was not self evident from the hoses sold, so no one could replicate the invention. (This is why I suggested that Pennock may also be pertinent to the issue of best mode. If the failure to disclose best mode actually prevents effective commercial competition, and this can be demonstrated, I think the patent still might be invalid.)
The Supreme Court was concerned that allowing such secret commercial use without disclosing the details of the invention to the public coupled with a subsequent period of exclusivity provided by a patent would not promote progress in the useful arts, but rather it would retard progress in the useful arts. It is on this basis that I concluded that Pennock was on point regarding the constitutionality of the AIA which seems to expressly authorize that which Pennock expressly held to be contrary to the purposes of the relevant constitutional provision.
235
“looking glass asked me to respond to this post”
compare
“1. Stop talking about trade secret protection.
2. The SC in Pennock made clear…”
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Ned. This is not what I suggested. You need to read and understand the points being made, not simply repeat the same mantra yet again. Asking you to think about the points does not yield a result of you saying don’t make those points!
The points are valid. You cannot disassociate the trade secret protection from the patent protection (and hence your constitutional question) because Pennock involves the trade secret protection.
You don’t wnat to discuss something that you have to discuss. That’s the point being raised. In fact, it is you that elevates the constitutional question beyond mere patents (your post on July 27 at 3:27 PM when you say regarding Article I Section 8: “Anon, I see nothing in there about patents. I see, however the concept of “exclusive Right” to their Discoveries. Congress can protect these it is said by the Constitution for ‘limited Times.’”
You keep on trying to dismiss points that you cannot dismiss because they are integral to the identified faults in the logic. This is like you saying that if you ignore the problems in the logic, there are no problems in the logic.
The problem is not in that people are trying to point out the logical flaws. The problem is that people are trying to pretend that such flaws don’t exist at all. This is quite beyond the holding of Pennock.
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Purist, looking glass asked me to respond to this post. I will.
1. Stop talking about trade secret protection.
2. The SC in Pennock made clear the problem of allowing patent protection after an indefinite period of monopoly exploitation where the monopoly was maintained by secrecy itself was the problem at hand. Such a regime violated the authorization in Art. I, Sec. 8, that exclusive rights be given to promote the Progress in the useful Arts. The SC held that such a regime, in the words of the Supreme Court, "…materially retard[s] the progress of science and the useful arts, and give[s] a premium to those who should be least prompt to communicate their discoveries."
The holding of the court is unmistakable. The regime authorized by Congress in response to the lobbying of the big European and Japanese companies who shouted down the startups of Silicon Valley, is UNCONSTITUTIONAL.
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Thank you, much appreciated.
232
looking, since I know you, I will review Purists posts at your recommendation.
231
You have dismissed the points before fully reading them. You have reacted prematurely and shut down your mind before understanding. It is as if you read until you find a reason to take offense and retaliate.
The posts make valid points and you need to read themm all the way through. There are ramifications to both Pennock and to the logic you have put forth that a critical mind will readily grasp. You are far too reactionary and you are not understanding what the conversation is actually about.
It is a good conversation to have. Your absence is unfortunate.
230
Mr. Glass, the post began by discussing my alleged assertion that trade secret protection was unconstitutional. Since I have many times said I had no problem with state trade secret protection, citing among other things, Kawanee, it was clear that Purist was more interested in establishing strawmen than in seriously discussing anything. i refuse to hold conversations with such folk, except if I know them, like I know anon, who have on occasion made serious substantive arguments.
229
I don’t even need a comparison for this: “Mr. Purist, I will no longer read your posts as they are a waste of my time. They are filled with ridiculous statement after ridiculous statement.”
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PURist’s post was clear, polite and accurate. Your response Ned is not only uncalled for, it is outrageous. Others, including me have informed you of the difficulties you cause by focusing on what is convenient for you.
As for addressing the points raised, well I think it is becoming evident that you simply refuse to address anyone’s points that you find inconvenient to your paradigms. If this is how you are going to treat well-reasoned and polite requests, I can only imagine that you will have no one willing to discuss any issues with you (at least not any regulars outside of MM and 6).
228
Mr. Purist, I will no longer read your posts as they are a waste of my time. They are filled with ridiculous statement after ridiculous statement.
227
Mr. Pur, I stopped reading your post after the first two ridiculous remarks. Just let me reiterate, I do not challenge the constitutionality of trade secret protection. See, Kawanee.
226
Ned,
With all due respect, the point of “what you prefer” should be a lesser consideration to what is most effective for all.
It is not only a matter of being courteous in your responses on their own, but rather, it is a matter of being courteous in your understanding of the discussion. I have seen on this thread alone you miss crucial aspects and appear to be dazed and confused as to the discussion. This only raise the ire and promotes the sniping that is so often seen.
I think your desire for “convenience” makes everyone suffer. In that respect, I agree with Anon that such is not reasonable nor professional. Your convenience should not be at others’ expense. It really is a matter of common courtesy, and I hope for at least those situations in which a dialogue is ongoing, that you “sacrifice” some of that convenience for yourself to make a better discussion.
225
Ned, You would note Anon’s attempt to divert so in error.
And you need to stop shooting arrows at Anon.
He is being very reasonable in attempting to make sure the logic involved here is understood by everyone. As Anon points out, your challenging the the constitutionality of trade secret protection IS NOT THE ISSUE! The issue is that in order to emply your logic, the challenge must happen in order to keep the logic from crashing in on itself. You must apply the logic consistently, and when you do that, the errors in Pennock are illuminated and the idea of a constitutional question are destroyed. You cannot only look at a partial picture, because the ramifications of the logic permeate and have repercussions that must be recognized.
Please visit the blog so that you can see the full string of comments in context. It is important that you do not get a partial picture on the concepts involved.
You acted first be supplying a “constitutional question” that you yourself indicated was not limited to patents (“I see no patents there”). You evidently did this so that you could take the Pennock case and use both the time of patent protection and the time of trade secret protection together as a basis to say that you have unlimited times of protection (I would remind you that these are very different types of protection covered by different laws and different “constitutional questions” – but we can come back to this point).
IF you only constrained yourself to patent time, your logic fails, as patent time is clearly limited time. You NEED to include trade secret time in your constitutional question. You have already admiited to such.
The problem is quite evident.
You need trade secret time to fall into your constitutional question in order to bridge the gap between the legal regime of patents (limmited time) and trade secrets (non limited time). The problem of course is that trade secrets by themselves, which you need, simply fail, by themselves, the constitutional limited times question.
The very thing you use to make your case that “patents” fail the limited time constitutional question because of the entrained trade secret time destroys the logic of what you are attempting to do, on their own. You cannot say “But I am only looking at patents, because you are not only looking at patents. You had to bring in the trade secrets and now you have to deal with trade secrets. They are on the table whether you like it or not. And further, the set of logic used and the the consitutional question under examination must be applied. You have no choice.
This is not a matter of diversion at all.
This is a matter of making you come face to face with the entire fallout of the logic you have to sign up to in order to make your Pennock case work.
The obvious problem is that the logic in Pennock is WRONG.
The logic of Pennock, of using the time of trade secrets in addition to the time of patents in order to broach the unlimited time of patents requires that the time of trade secrets be treated under the same consitutional question. Of course the immmediate problem is that this does not work because trade secrets themselves run for unlimited times (and thus immediately violate the constituional question).
You either must NOT use the time of trade secrets, in which case, the time under patent protection is for limited times and there is no violation of the constitutional question;
or you must abbrogate all of the state’s rights and their laws dealing with trade secrets and force trade secrets to be constrained to limited times.
You cannot have both! Logic simply does not allow an unequal treatment of trade secret time. Logic MUST be consitent. Logic cannot be arbitrary.
224
anon, I attempt to be courteous. However, I find the use of TypePad quite in an e-mail response convenient and more useful than the blog reply feature. I prefer it.
223
anon, I am not challenging the constitutionality of state trade secret protection. That issue has been decided in Kawanee.
I will note for the record your consistent attempts to divert the question from the facts of Pennock into some other question entirely.
222
“I look at the blog only when I have time”
I suggest you make the time. You post often enough to be considerate of others and post with some semblance of knowing what is going on.
If you want to post a new idea and start a discussion, that is one thing. But if you are iin a discussion you owe some common courtesy to the other person to see the entire context of the discussion.
After all, that is only reasonable and professional.
221
Ned,
This is another thread that you have shown an inablity to read and maintain focus on the conversation.
You do need to defend your “constitutional question” against trade secrets for the many reasons listed in this thread.
I suggest you visit the thread and read it in its entirety. You obviously are seriously missing the complete picture and your responses are gravely lacking (even though you think they are intelligent and complete – they are not).
220
looking, as I said before, I normally respond to e-mails. I look at the blog only when I have time.
219
Mr. Purist, "I am asking you to defend your constitutional question against trade secrets."
My constitutional case against trade secrets?
I am not arguing that state trade secret protection is unconstitutional. Not at all. Further see, Kewanee Oil. link to supreme.justia.com
On the patent question, however, Pennock is clear. Practicing an invention for years, maintaining a monopoly by keeping the invention secret (or at least keeping the way of making it secret), and then obtaining a further period of exclusivity, retards progress of the Useful Arts. Congress's power to grant exclusive rights seems limited under Pennock to promoting progress in the Useful Arts.
Pennock may also be pertinent on the issue of best mode. Keeping the way of practicing the invention secret certainly would grant a commercial patent without enriching the public with the necessary know how. How this bleeds into best mode is of interest from a constitutional perspective as well.
218
“I ask you to think as well”
compare
“stop interpreting my remarks but simply accept that what I am talking about”
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Ned, try to remember that what you ask is right here and easily seen.
Will you stop playing games and stop parroting Pennock already? I don’t even want to get into how your continued avoidance of looking at the blog like a normal person is causing all sorts of headaches.
217
You really don’t read the posts, do you Ned?
Pennock was a case on patents. Your quote and the case having nothing to do with what I am asking you!
I am not asking you to defend your consitutional question against patents. I am asking you to defend your constitutional question against trade secrets.
If you rest your case before you even address the issue raised you lose by default.
Let me repeat my earlier posts
2:23 PM: Further, I too want to see how you handle the unlimited times of trade secret under your consitutional question. It’s your consitutional question so you should defend it.
2:53 PM: No Ned, I am asking you to defend not against patents, but against the unlimited times of trade secrets
I cannot understand how you can understand my posts.
216
Pennock is not on point? You seriously have to be kidding. Let me quote you the language on point,
"While one great object was, by holding out a reasonable reward to inventors, and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was "to promote the progress of science and useful arts;" and this could be done best, by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible; having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long period of years retain the monopoly, and make, and sell his invention publicly, and thus gather the whole profits of it, relying upon his superior skill and knowledge of the structure; and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any farther use than what should be derived under it during his fourteen years; it would materially retard the progress of science and the useful arts, and give a premium to those who should be least prompt to communicate their discoveries."
What did the SC say? Monopoly exploitation for years, followed by a patent. The monopoly maintained by keeping the secrets of his invention secret.
I rest my case.
215
“Regarding unlimited times, and the constitutional question”
No Ned, I am asking you to defend not against patents, but against the unlimited times of trade secrets. Pennock is not on point for that defense. You brought up the consitutional question and you said that you do not see patents there, thus you broadened the constitutional question beyond patents and you included the time of protection under trade secrets. But your logic fails at that point because trade secrets are for unlimited times. You need to address this failure.
“you define protection way too narrowly”
No I define by what the law actually is. You are misusing the legal term “Prior User Right” and your answers to 1 and 2 thus remain in error.
214
Mr. PURist, you define protection way too narrowly, indeed. If the muscle man comes into your place of business and offers you protection, what you get is protection from them. In the same way, a PUR offers protection from a patent.
Regarding unlimited times, and the constitutional question, I refer you back to the words I quoted from Pennock. That is the position of the Supreme Court of the United States of America, in a case penned by Story, and in which John Marshall participated. I do not have to argue the constitutional issues. They are framed quite nicely by the Supreme Court itself.
213
The association is ancillary. The Protection is technically not for the trade secret. It is for something newly created under the AIA called Prior User Right.
You ascribe more than what is there.
Your further comment is beyond my point but I will address it as you include it in the response to me. It is not only “what” you are (not) contending as to what federal right of action may exist that you must consider. You must consider the benefits of the law that you are taking and assuming falls under the constitutional question that you gave as an answer. You clearly are takiing the benefits of trae secret protective time, and you cannot take that without accounting for the law that actually provides that benefit.
Your answers to 1 and 2 remain in error. Further, I too want to see how you handle the unlimited times of trade secret under your consitutional question. It’s your consitutional question so you should defend it.
212
Mr. Prior User, but a PUR does protect the trade secret user from a patent. THAT is a form of protection.
We all know that one does not have a federal right of action for trade secret misappropriation. I never contended that we did.
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Mr. Wrong, you repeatedly stated, and continue to state that Stanford was the applicant. Until you figure out why this statement is completely wrong, or someone tells you why, we cannot discuss things further.
You obviously are not a patent attorney because every patent attorney knows the reason why. Every, single, one.
210
Actually, anon, I ask you to think as well. But, we will continue to join on issues to extent you continue to avoid discussing hypotheticals.
209
I think there is error in Ned’s answers to 1 and 2.
PUR is not synonomous with trade secrets.
Trade secrets remains under the purview of state law, which means differences from state to state. Trade secret unlimited times remain while PUR exists only for the life of the patent against which they may apply. PUR as well does not necessarily mean that something must have been maintained to the same rigor as a trade secret and further, a trade secret may be more than the claimed PUR.
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Anon,
Ned cannot even get the right thread. And you want him to do some independent thinking?
Are you high?
207
“Mr. Wrong, but you start from a premise that is contrary to law.”
Oh really? You want to provide a cite for what you think my wrong starting premise is?
And let me tell you that you are STILL arguing the WRONG case in the WRONG courtroom with your asinine replies from eamil or whatever you are doing. Even after I tell you that you are doing so and even after I give you the time stamps of my comments on this thread for this discussion.
If you repeatedly did this in a court of law, would you be sanctioned? It seems that you lack even the minimum of due care.
206
The problem Ned is that I am asking you to NOT “simply accept.”
I am asking you to THINK. I know, it is a radical concept to be sure.
Are you willing to think and apply your own logic? Are you ready to see the contradictions that are so plainly there if you would only open your eyes?
205
Anon, if you would stop interpreting my remarks but simply accept that what I am talking about is Pennock, we can get a lot farther in our discussion. Pennock says what it says and no matter what you say you cannot change its words.
204
Ned,
I asked you to think for yourself.
What you think Pennock holds is in error. Quoting Pennock is meaningless unless you can account for the error. You need authority that is not in error, that recognizes that the time under trade secret protection is not the time under patent protection and that patent protection itself is for limited times. You need to stop contradicting yourself by saying that you are not involving trade secret law – as you must if you are counting on time for protection under that legal philosophy (you cannot have the time with out the law).
If you open your eyes and THINK, instead of blindly parroting the mistakes made in the past, you will see the fallacy of how the logic was applied. If that fails, please kindly answer Wrong is Wrong’s point concerning trade secrets alone. Under your logic, please square the fact that trade secrets can run for unlimited time with your constitutional question.
Are you ready to challenge the fact that trade secrets can runfor unlimited times in violation of your logic?
THINK for yourself. What do the answers to my questions tell you. Don’t feed me mindless parroting. THINK man.
203
Anon:
"The exclusive period of the trade secret use was to be considered part of the exclusive period of the patent." ?
Under what authority is this statement made? You MUST remember that the two (patents and trade secrets) do NOT rest under the same legal authority.
From Pennock:
"The single question then is, whether the charge of the court was correct in point of law. It has not been, and indeed cannot be denied, that an inventor may abandon his invention, and surrender or dedicate it to the public. This inchoate right, thus once gone, cannot afterwards be resumed at his pleasure; for, where gifts are once made to the public in this way, they become absolute. Thus, if a man dedicates a way, or other easement to the public, it is supposed to carry with it a permanent right of user. The question which generally arises at trials, is a question of fact, rather than of law; whether the acts or acquiescence of the party furnish in the given case, satisfactory proof of an abandonment or dedication of the invention to the public. But when all the facts are given, there does not seem any reason why the court may not state the legal conclusion deducible from them. In this view of the matter, the only question would be, whether, upon general principles, the facts stated by the court would justify the conclusion."
"In the case at bar; it is unnecessary to consider whether the facts stated in the charge of the court would, upon general principles, warrant the conclusion drawn by the court, independently of any statutory provisions; because, we are of opinion, that the proper answer depends upon the true exposition of the act of congress, under which the present patent was obtained. The constitution of the United States has declared, that congress shall have power "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." It contemplates, therefore, that this exclusive right shall exist but 17*17 for a limited period, and that the period shall be subject to the discretion of congress. The patent act, of the 21st of February, 1793, ch. 11, prescribes the terms and conditions and manner of obtaining patents for inventions; and proof of a strict compliance with them lies at the foundation of the title acquired by the patentee….
"These are the only material clauses bearing upon the question now before the court; and upon the construction of them, there has been no inconsiderable diversity of 18*18 opinion entertained among the profession, in cases heretofore litigated.
…
"We think, then, the true meaning must be, not known or used by the public, before the application. And, thus construed, there is much reason for the limitation thus imposed by the act. While one great object was, by holding out a reasonable reward to inventors, and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was "to promote the progress of science and useful arts;" and this could be done best, by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible; having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long period of years retain the monopoly, and make, and sell his invention publicly, and thus gather the whole profits of it, relying upon his superior skill and knowledge of the structure; and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any farther use than what should be derived under it during his fourteen years; it would materially retard the progress of science and the useful arts, and give a premium to those who should be least prompt to communicate their discoveries."
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Anon:
Here are answers to your questions.
Straight up and with no dodging or changing the subject answer these four questions:
1) Under patent law, (and please be specific) what protections are afforded someone that has a trade secret?
Answer: none on the current law. Prior use against a third-party patent under the AIA.
2) Under patent law, (and please be specific) what protections are afforded someone that is not using the patent system?
Answer: today, none ; tomorrow, prior use rights.
3) Now, tell me, under patent law, (and please be specific) what protections are afforded someone that has decided to use the patent system?
Answer: a patent, without any Right of exclusivity per eBay.
4) Is that time of protection limited or unlimited?
Answer: there is no Right of exclusivity. However, patent term is 20 years from filing
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Mr. Wrong, but you start from a premise that is contrary to law.
Discuss:
1) a first inventor invents, a second inventor invents the same invention.
Who owns the invention?
If they both file patent applications, who owns the respective patent applications?
2) a first inventor invents having an employment agreement containing a present-assignment-of-future-inventions clause.
Who owns the invention?
If they both file patent applications, who owns respective the patent applications?
Vary from the above that the employer names himself as the inventor. Who owns the respective patent applications?
3) same as 1, first and second inventors of the same invention; however, a pirate of the first inventor files first and the second inventor files second. The first inventor does not file at all.
Who owns the invention?
Who owns the pirate's patent application?
Being a second inventor, can the second inventor still claim to be the owner of the first inventor's patent or patent application?
4) an inventor works for a boss of Big Red, but this time there is no present-assignment-of-future-inventions clause. He has, however, and obligation to assign. Both the inventor and the boss file patent applications on the very same day naming themselves as inventors. The boss assigns the patent application to Big Red. The inventor quits and goes to work for another corporation, call it Big Blue. He records an assignment of his patent application to Big Blue. Both Big Red and Big Blue are BFP's under the recording statute.
Who owns the invention?
Who owns the boss's application?
Who owns the inventors application?
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Ned,
I have further responded to your post on the appropriate thread.
As to “pressing the issue,” I find your comment insulting. Shall we compare “experience” on who engages and who disengages when the discussion does not suppport a participant’s views? I don’t think that such a comparison would be to your advantage – experience shows that you tend to disappear when the discussion does not support your philosophies.
On this thread, for thisdifferent discussion, I am STILL waiting for your answers to my questions. Even though those questions are plainly here for normal blog readers to see, I repeat them for your convenience:
Straight up and with no dodging or changing the subject answer these four questions:
1) Under patent law, (and please be specific) what protections are afforded someone that has a trade secret? 2) Under patent law, (and please be specific) what protections are afforded someone that is not using the patent system?
3) Now, tell me, under patent law, (and please be specific) what protections are afforded someone that has decided to use the patent system? 4) Is that time of protection limited or unlimited?
How can you in one paragraph state “know you think that trade secret law is somehow involved of this conversation. Trust me, it is not.” and in the very next contradict yourself by saying “The exclusive period of the trade secret use was to be considered part of the exclusive period of the patent.” ?
Under what authority is this statement made? You MUST remember that the two (patents and trade secrets) do NOT rest under the same legal authority.
After you are done directly and without further games answering my questions, I look forward to you answering Wrong is Wrong’s questions and your explanation of how trade secrets by themselves do not violate your stated “constitutional question.”
Can you engage without your games?
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“Perhaps 101 Integration Expert would be kind enough to demonstrate his integration analysis of this claim?”
Yes, I will be glad to perform the Integration Analysis to this claim but I will post it to the Is Software Patentable? thread where it belongs.
Unlike MM, that merely looks at a claim and if it is a process claim, calls it cra p. Or 6 that just dreams up an abstract concept and declares the claim preempts, “Integration Analysis” requires an objective, and rigorous law based analysis in which the claims are read in light of the specification, drawings, and with deference to the actual inventor as subject mater expert that defines the invention.
198
“The spotlight is all yours. Try not to choke, dodge, weave, prevaricate, or run away.”
MM FAIL
197
“We cannot discuss things in the absence of dicussion…..”
I am waiting for you to join the discussion and answer the points and questions that are already on the table. You have some explaining to do to support your proffered constitutional question (it has some serious logic flaws that need to be corrected).
See my posts at 10:39 AM, 11:17 AM, 12:53 PM, 12:56 PM and 2:21 PM on this thread (and any of the posts by Anon). Please pay attention and do not mix the separate conversations.
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Mr. Wrong, why don't yoiu stop this s h i t and simply answer the questions yourself then. We cannot discuss things in the absence of dicussion…..
195
“refuses to engage is obvious”
On the contrary Ned Heller, it is you that is refusing to engage.
Not only that, you are mixing threads and arguments for the umpteenth time.
Your comment to standing clearly indicates that you are confused. You just posted to the adminsitering thread and the discussion on conflation of trade secret law and patent law with a reference to the discussion on rights innuring to an inventor or applicant. Two very different discussions. There is no standing element to the discussion of the constitutional question and the conflation of patent law and trade secret law. The standing element belongs to the pirate applicant thread.
You really need to either address one argument at a time or not answer by email. You look incompetent in both discussions. It’s like showing up in the wrong courtroom and arguing the wrong case before the wrong judge. If your organiztion skills cannot handle multiple discussions, then don’t engage in multiple discussions. You just end up WRONG in multiple discussions.
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Mr. Wrong, the reason Anon refuses to engage is obvious.
But, i won't press the issue. Just chalk it up to experience.
The bottom line is that standing is not challenged by trying to show that the named inventor did not invent.
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Then answer my question as to how trade secrets, in and of themselves, can be allowed under your constitutional question.
192
You admit to repeating an error. Congrats, now you can appreciate the Dred Scott reference.
Now try thinking for yourself. Answer Anon’s questions, see the logic, and think about it untarnished by mistakes of the past.
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I incorporate the time of exclusive use of the applicant with the exlusive period added by patent. Yes. So did Pennock.
190
Ned postulates “Article I Section 8” as his constitutional question and proceeds to conflate trade secret time and patent time.
But by doing so he sets himself for the following logical conundrum:
If patents are “not seen” in his constitutional question, then more than just patents are allowed under the constitutional question.
If more than just patents are allowed under the constitutional question, then something else, completely on their own and in their own right fall under the constitutional question
If this other thing falls under the constitutional question, then it would be unconstitutional for that thing to run for unlimited times.
That other thing is trade secrets.
Applying the famous Ned Logic, trade secrets are unconstitutional becuase they can exist for unlimited times which violates Article I Section 8.
Explain why this scenario is excused from your logic Ned.
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Two words for Ned’s over-reliance on Pennock: Dred Scott.
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The answer is still the same indeed. Your answer is still wrong because you do in fact incorporate the time that is under trade secret law into the aspect of time under patent law.
This is clear legal error, no matter who does it. you need to grasp and understand this. To not understand this and maintain “but I’m not talking about trade secret law” is to contradict yourself and nullify your position.
Return and provide actual answers to my questions.
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anon,
1) Under patent law, (and please be specific) what protections are afforded someone that has a trade secret? 2) Under patent law, (and please be specific) what protections are afforded someone that is not using the patent system?
3) Now, tell me, under patent law, (and please be specific) what protections are afforded someone that has decided to use the patent system? 4) Is that time of protection limited or unlimited?
The point of the matter is that ANY time before the person engages the patent system DOES NOT COUNT as time provided as protection under the patent law.
Anon, I tried to point out to you in a previous post that trade secret protection is not part of my argument and has nothing to do with my argument. No matter how many times you phrase the question in alternative language, the answer is still the same. You seem to want to divert this train of thought off the rails and into some irrelevant gully. You're not going to be able to do that.
The Supreme Court in Pennock said that it would be a violation of the concept of "limited times" to allow one to exploit his invention in secret for any time and still be able to obtain a patent. The goal of the patent system is to bring into the public domain a description of the invention and to allow the public to use it after a limited period of exclusivity. Allowing indefinite trade secret use followed by a period of exclusivity enforced by the patent frustrates both objectives.
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Ned,
Straight up and with no dodging or changing the subject answer these four questions:
1) Under patent law, (and please be specific) what protections are afforded someone that has a trade secret? 2) Under patent law, (and please be specific) what protections are afforded someone that is not using the patent system?
3) Now, tell me, under patent law, (and please be specific) what protections are afforded someone that has decided to use the patent system? 4) Is that time of protection limited or unlimited?
The point of the matter is that ANY time before the person engages the patent system DOES NOT COUNT as time provided as protection under the patent law. The time period of exclusivity through patent law as governed by the constitution IS limited.
How can you in one paragraph state “know you think that trade secret law is somehow involved of this conversation. Trust me, it is not.” and in the very next contradict yourself by saying “The exclusive period of the trade secret use was to be considered part of the exclusive period of the patent.”
Under what authority is this statement made? You MUST remember that the two (patents and trade secrets) do NOT rest under the same legal authority. You can even use your holding/dicta schema, but you must trace this treatment of trade secrecy to a primary authority.
If you actually try to look at this without a pre-conceived “well a smart judge said it so it must be right” view, you can see the error. If you close your eyes, you will not see it.
“The exclusive period of the trade secret use was to be considered part of the exclusive period of the patent.” This is legal error. Just because a Judge (or Justice) made that error does not make it any less an error. There simply is no patent protection and no concurrent patent coverage in the time span that something is a trade secret and not under the rule of law for patents.
It’s an irrefutable fact.
185
Anon, why don't we discuss the examples I gave on the topic of "who owns the invention?"
184
“Should I now treat you as Um No would treat me?”
That would be your choice Ned.
But do you really want to compare untouched topics and questions?
Do you really?
Plus there is a substantial difference in that this topic you have shown no understanding and have been all over the map. Show me in any of our discussions that you have chosen to left unanswered a similar state for me. You will not be able to show anything of the sort.
As I said, Ned, your choice. Choose well (or not).
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Should I now treat you as Um No would treat me?
182
Anon, I don't know where you get the idea that I have been discussing trade secret law, or that my views in any way depend upon trade secret law.
I know you think that trade secret law is somehow involved of this conversation. Trust me, it is not.
However, how long in the inventor may exclusively practice an invention before it must be surrendered to the public for their use is the topic at hand. The Constitution demands that the time period of exclusivity be limited. The Supreme Court in Pennock was of the view that allowing exclusive secret use was part of the period of time that must be considered in determining whether the time period was limited. The exclusive period of the trade secret use was to be considered part of the exclusive period of the patent.
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“Punt” implies fourth down and you have stopped me on three previous downs.
With Chakrabarty you have stopped no one but yourself.
Pass.
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“you pass? “Punt” is the better term.”
No Ned, “pass” as in “not engage” is the better term. You haveshown such an erratic nature on Chakrabarty that I choose not to discuss that case with you.
I suggest you stick to one discussion at a time. Choose one and focus on that.
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Ned,
“I see nothing in there about patents.”
Now you are being just plain silly. Please grow up and leave the childish games aside. We all know that federal patent law comes from Article I, Section 8. We also know that Trade Secret Law does not come from that section of the constitution and is not even a Federal Law item.
Are you seriously making a position that it is otherwise? Seriously? Are you saying that like patents, trade secret laws at the State level are barred by the consitution? Seriously?
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"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."
Anon, I see nothing in there about patents. I see, however the concept of "exclusive Right" to their Discoveries. Congress can protect these it is said by the Constitution for "limited Times."
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Ned,
As noted on the link to patentlyo.com thread by Oops (as well as on previous thread by me), Article I Section 8 only covers patents and the time period for patents is still “for limited times.”
You are confusing the time for Trade Secret protection which does not fall under Article I Section 8.
I repeat Oops’ post in this reply for your convenience:
One other problem Tacurrier: you (like many) are co-mingling time frames.
“the risk is very real that the monopoly can be made virtually perpetual.”
You must be clear as to “the monopoly” you refer to. This comment is absolutely true for Trade Secrets (even today!). The comment is absolutely false for Patents. Do not get caught in the trap of mixing up these two time periods as they are goverened under different laws.
There is one set of time governed by patents and implicated in any constitutional discussion.
There is quite a different set of time that is not governed by patents and NOT implicated in any constitutional discussion.
Keep firmly in mind: Trade Secret Law is generally a state law concern. Thus any protection afforded by Trade Secret is distinct from (both actually and legally) the protection afforded by Patent Law.
Don’t feel bad about the mistake either. There are very few people smart enough to recognize this subtle (but very real) point of law.
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The power of the voices of these two justices can still be hear despite the distance of years.
Hearing voices again, Ned?
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Art. I, Section 8: …for limited times… exclusive rights.
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anon, you pass? "Punt" is the better term.
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MM pawned again.
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MM: It’s old.
That’s Novelty, which has no place in 101. See Diehr.
MM: If it’s properly claimed, I don’t see why it should not be.
That would be a draftsman art tricks. Also not allowed. See Prometheus.
MM: Note that I believe that any such claim is likely anticipated, at least inherently. So the issue of eligibility (or rather, the issues raised by your hypothetical) are moot.
Again, that is for 102 anticipation and does not apply for 101 eligibility questions. So your point is not only moot, it’s irrational, illogical, and illegal.
MM: Again, we are back to the question of what “found in nature” means.
It means found in nature. See Diehr stating:
“Unless otherwise defined, “words will be interpreted as taking their ordinary, contemporary common meaning,” Perrin v. United States, 444 U. S. 37, 444 U. S. 42 (1979), and, in dealing with the patent laws, we have more than once cautioned that “courts should not read into the patent laws limitations and conditions which the legislature has not expressed.'” Diamond v. Chakrabarty, supra, at 447 U. S. 308, quoting United States v. Dubilier Condenser Corp., 289 U. S. 178, 289 U. S. 199 (1933).”
MM: Recognize that anything and everything that is created by man can not be distinguished from a composition “found in nature” from the moment that the composition is created.
Wrong.
1. Television Sets
2. Cell Phones
3. Plastic Jugs
4. Any series of steps that produce an objectively measurable guaranteed result………
MM: A hot dog with a novel pattern of piranha bites is no less a “product of nature”
A hot dog is made by man and it’s method of being manufactured can be classified as a process as well for 101 statutory purposes.
MM: If the Federal Circuit and its hapless clerks are too dense to acknowledge this issue I guarantee you that the Supreme Court’s clerks are not.
The CAFC and the Supreme Courts and their clerks apparently ignore you and your theories as none have been included in their holdings. On the other hand “Integration Analysis” has been explicitly used and recognized by the Supreme Court and the USPTO.
See Prometheus holding: .. the basic mathematical equation, like a law of nature, was not patentable. But it found the overall process patent eligible because of the way the additional steps of the process “integrated” the equation into the process as a whole.” (12 MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC. describing Diehr. Opinion of the Court) “See From the Syllabus. Emphasis added.
Also see the Official USPTO Office Guidelines on Integration Analysis:
The concept of integration, and the word itself, is used in four distinct sub sections of USPTO Guidelines for 101 statutory analysis. Changing everything from M or T to the buttressing Diehr’s Concept and Application Test/Analysis as follows:
1. To show “integration”, the additional elements or steps must relate to the natural principle in a significant way to impose a meaningful limit on the claim scope. The analysis turns on whether the claim has added enough to show a practical application.
2. Along with “integration”, the additional steps must be sufficient to ensure that the claim amounts to significantly more than the natural principle itself by including one or more elements or steps that limit the scope of the claim and do more than generally describe the natural principle with generalized instructions to “apply it.”
3. A machine or transformation that is merely nominally, insignificantly, or tangentially related to the steps or elements, e.g., data gathering or data storage, would not show integration. This claim would pass Inquiries 1-3 in the above analysis as it is a process that includes the Arrhenius equation as a limitation, with additional steps that “integrate” the Arrhenius equation into the process and are sufficient to narrow the scope of the claim so that others are not foreclosed from using the Arrhenius equation in different applications.”
MM: “Not unlike the b.s. in Diehr about “claim dissection.”
Not Dicta, the Diehr case turned on the express prohibition against dissection. See Diehr: “A claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula, computer program, or digital computer. Respondents’ claims must be considered as a whole, it being inappropriate to dissect the claims into old and new elements and then to ignore the presence of the old elements in the analysis. The questions of whether a particular invention meets the “novelty” requirements of 35 U.S.C. § 102 or the “nonobviousness” requirements of § 103 do not affect the determination of whether the invention falls into a category of subject matter that is eligible for patent protection under § 101. Pp. 450 U. S. 185-191.”
That concludes today’s lesson. Next week your assignment is to perform the “Integration Analysis” on Ultramercial’s claims, using the Official USPTO Guidelines on Integration for instructions.
::CLASS DISMISSED::
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AND YOU BEING RAY’S TRUE CHILD CHANGE3S NOTHING! HAHAHAHAHAAA .FINALLY I CAME OUT ON TOP!
170
And if I was as my Birth Cert. says Guerwoods and Marcella’s whoever claims they are because they happen to be my Twin.. Tuff tooties! You ain’t Guerwoods! BUT I AM HAHAHAHAHAHA
169
Leopold,
too late (for you MM and 6)
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I also shudder to think what clerk is stup id enough to believe that a halftoned image is a “computer data structure”.
6, the old adage, “Better to remain silent and be thought a fool…” comes to mind.
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Fix bold tag.
166
” “I don’t have any hard questions for you, just the usual strawman/wife-beating variety.”
It is not a straw man to state that you duck, and dodge the “Integration Analysis” . That is a fact. Every time you post in celebration of the Prometheus 9-0 decision you celebrate the very analysis you are afraid to perform and even acknowledge exists. Yet this very analysis is now required of the entire patent examiner corps.
MM, why are you so afraid?
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Oh, and if you need further instruction on ” Integration Analysis, please see the Official USPTO Guidelines, which incorporates “Integration Analysis in the Courts previous precedents. Changing everything from M or T to the buttressing Diehr’s Concept and Application Test/Analysis. I do find it quite odd that you ignore the Court and the Office on this most telling and crucial point of patent law.
“1. To show “integration”, the additional elements or steps must relate to the natural principle in a significant way to impose a meaningful limit on the claim scope. The analysis turns on whether the claim has added enough to show a practical application.
2. Along with “integration”, the additional steps must be sufficient to ensure that the claim amounts to significantly more than the natural principle itself by including one or more elements or steps that limit the scope of the claim and do more than generally describe the natural principle with generalized instructions to “apply it.”
3. A machine or transformation that is merely nominally, insignificantly, or tangentially related to the steps or elements, e.g., data gathering or data storage, would not show integration.
This claim would pass Inquiries 1-3 in the above analysis as it is a process that includes the Arrhenius equation as a limitation, with additional steps that “integrate” the Arrhenius equation into the process and are sufficient to narrow the scope of the claim so that others are not foreclosed from using the Arrhenius equation in different applications.” ( USPTO Official Guidelines )
164
Breyer stated that Diehr was most on point.
“LOL. And then what happened? LOL. 9-0.”
Yes, 9-0 for Integration Analysis. Remember it’s Diehr’s concept and application analysis that is controlling precedent, with Prometheus’s “integration” as the key to as the Court said: :transform the process into an inventive “application” of the formula. ( See Prometheus )
“The Court pointed out that the basic mathematical equation, like a law of nature, was not patentable. But it found the overall process patent eligible because of the way the additional steps of the process “integrated” the equation into the process as a whole. Those steps included “installing rubber in a press, closing the mold, constantly determining the temperature of the mold, constantly re- calculating the appropriate cure time through the use of the formula and a digital computer, and automatically opening the press at the proper time.” Id., at 187. It nowhere suggested that all these steps, or at least the combination of those steps, were in context obvious, al ready in use, or purely conventional. And so the patentees did not “seek to pre-empt the use of [the] equation,” but sought “only to foreclose from others the use of that equa tion in conjunction with all of the other steps in their claimed process.” Ibid. These other steps apparently added to the formula something that in terms of patent law’s objectives had significance—they transformed the process into an inventive application of the formula.”
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“I look forward to the CLS decision being ripped to shreds and tossed in the wastebasket.”
Let us offer the instant decision as an offering to the gods of preemption. Surely they will smile upon us.
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“and examiners as ”
Well, r tar ded ones that are unfamiliar with the animal called claim construction.
Simply construing them as products with instruction structures and watching as hilarity ensues with 101, 112 and 102 is priceless.
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Another sacrifice upon the almighty alter of preemption! High priests, bring the wood!
“To salvage an otherwise patent-ineligible process, a computer must be integral to the claimed invention, facilitating the process in a way that a person making calculations or computations could not. ”
That right there is going out the window shortly as it is contrary to lawl. There is no way to “salvage” an “otherwise” ineligible claim, at least in so far as you’re still trying to claim ineligible subject matter with your claim. Such is blatantly just another species of the draftsman’s trickery that was just addressed in Prom and had been indirectly addressed in BFDB. The only way to quote “salvage” an ineligible claim is to stop trying to claim the ineligible subject matter causing the problem.
“In that case, the asserted patents claimed processes for enabling a computer to render a halftone image of a digital image by comparing, pixel by pixel, the digital image against a twodimensional array called a “mask.” ”
Look at that, the CAFC finally realizes what the facts were in that case. Too bad they can’t now go back on their ruling.
“We reversed the district court’s grant of summary judgment that the asserted claims were invalid under § 101, concluding that the processes were not “so manifestly” abstract as to override the statutory language of § 101.”
Contrary to lawl…
“In so holding, we observed that the claimed
“invention presents functional and palpable applications in the field of computer technology.””
Technically only one application… the only application for such a two dimensional array…
“First, the claimed processes in Research Corp. plainly represented improvements to computer technologies in the marketplace.”
Well, an improvement to arrays of numbers anyway.
“For example, as compared to the prior art, the “inventive mask produce[d] higher quality halftone images while using less”
Actually the mask itself only produced “better” 1’s and 0’s inside a computer.
“the method in Research Corp., which required the manipulation of computer data structures (the pixels of a digital image and the mask) and the output of a modified computer data structure (the halftoned image), was dependent upon the computer components required to perform it.”
It not only “required” it, it was solely about manipulating computer data structures. And the mask was not manipulated at all, it was provided at the outset if memory serves. I also shudder to think what clerk is stup id enough to believe that a halftoned image is a “computer data structure”.
Microsoft should have appealed in Research Corp.
I really do think that if the CAFC would simply write out what the mask is, in longhand form, every time they try to justify their boo boo they’d correct it faster.
““inventive mask produce[d] higher quality halftone images while using less”
Even trying to say “inventive TWO DIMENSIONAL ARRAY produce[d] higher quality halftone images while using less” just sounds rtar ded.
“Second, the method in Research Corp., which required the manipulation of computer data structures (the pixels of a digital image and the mask) ”
Again, writing it out long hand, “Second, the method in Research Corp., which required the manipulation of computer data structures (the pixels of a digital image and the TWO DIMENSIONAL ARRAY), it just sounds r tar ded.
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“if you invent a composition which vastly improves one’s ability to observe an otherwise useless composition found in nature, you should be denied a patent because you’ve “pre-empted” everyone else from “using” the natural composition in the manner enabled by the invention”
Well I will consider substantive debate on this subject through, for this thread at least, but I will say this: that is amazingly close to my “argument”, aka what the law demands. But not quite. I would go with something a little bit more like this:
“if you invent AND CLAIM a composition which vastly improves one’s ability to observe an otherwise useless composition (or phenomena etc) found in nature, you should be denied a patent because you’ve “pre-empted” everyone else from “using” the natural composition in the manner enabled by the invention” … because what you have claimed covers the only realistic/substantive things which one would use that natural composition (judicially excepted subject matter) for.
You will of course remember that a certain Morse invented just such a composition. And of course he could have a patent on his very specific device, because those claims did not stop everyone from using the phenom. But as soon as he claimed just a generic device where the claim did have that effect, it died.
But on the whole, your education on the preemption doctrine is coming along swimmingly. You have literally made leaps and bounds since last year so far as I can tell. Now that you know it, it will be something when you accept it.
I was somewhat amused by the deja vu that I was struck with when I heard you channeling NWPA with this gem:
“Indeed, your argument is essentially that Myriad’s claimed compositions have too much utility. ”
You practically took it right out of his mouth. He literally said nearly or exactly that not a year or two ago although obviously he was talking about his algorithms that he wanted to save. And I appreciate you guy’s having this view on what the law demands. Perhaps sometime in the future the USSC will change it slightly.
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Ned,
What precisly is the “constitutional” question at stake?
Keep in mind that trade secret rights are not a part of the constituional patent power and any time under that benefit cannot be combined with an “unlimied times” argument under the constitution.
Venerating great names of jurisprudence blindly is not true veneration.
158
“Their test cannot be consistent with the Supreme Court holding”
Ned, before we can discuss, you need to show you understand what holding is in regards to the Chakrabarty case.
Frankly, you are all over the map on that case, seemingly making things up to go with what suits your views on different issues of law on any particular day.
Ned,
I began typing a response and realized that I was just typing in all of the comments already made on this thread.
I then realized that you are not seeing the real picture because you are overly focused on Pennock (your last two comments indicate this: “has anything to do with Pennock” and “ Since Pennock occurred 20-30 years prior to the first trade secret case ever“).
You are not grasping the actual issue under discussion which is larger than Pennock.
The actual issue under discussion is the constitution and all of the laws involved in a calculation of protected time.
I had thought you understood this when you typed that you did not see the constitution question limited to patents and when you acknowledged that the time of protection involved more than the time afforded under patents.
I now realize that you have blinders on and are only seeing patents and not the actual constitional question (the very question you provided).
Until you realize what the issue is, and then go back and read all of the comments on this thread that actually discuss the real (larger) issue, I am afraid that I cannot (nor can anyone else) help you understand the problem with the logic used in Pennock.
I think you are close to a breakthrough with some of your comments, but I also think that only you can draw back the final curtains and realize the full concepts involved.
It is not just patents.
It is not just Pennock.
I cannot (nor can anyone else) help you if you refuse to release the trunk of the elephant, take a step back, remove the blinders and look at the entire elephant.
I hope you choose to do so.
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Looking, you are going to have to help me here, as I do not see the issue
of trade secret protection being relevant at all.
Let’s make sure we are talking about the same thing. Trade secret protection occurs when a secret is a misappropriated by a
third-party through violation of trust, thievery, or otherwise. The law gives
one the right of action against the trade secret misappropriator, and an
injunction against his or her use of the trade secret. None of this has anything
to do with the existence of a trade secret, which can be maintained by simply
not allowing people access to one's factory.
With all sincerity, I simply do not understand how the concept the trade
secret protection has anything to do with Pennock.
Your conclusions are flawed for the reasons given. You choosing not to pay any attention to the reasons (because Pennock paid no attention) is itself logically flawed, and cannot overcome the flaws that you inherit (it should tip you off to the possibility of a problem as you note that Pennock occurred 20-30 years prior to the first trade secret case ever). Obviously, law developed after Pennock that must be accounted for.
You need to realize that talking about trade secret protection is critical to understanding exactly why the flaws are there.
The points raised are good solid legal points. The flaws must be addressed because they exist. All I am asking is that you recognize that the flaws exist and attempt some rationale to deal with the flaws. Saying “Don’t discuss the flaws” just doesn’t work.
Hey, Looking Glass, the problem with the post was that all it wanted to talk about was trade secret protection and how that was coupled to the patent period to created a combined period. Since Pennock occurred 20-30 years prior to the first trade secret case ever, it did not depend upon trade secret protection for its theory.
The PO in that case was able to keep the secret of making fire hoses away from the public for a very long time. How he made the hoses was not self evident from the hoses sold, so no one could replicate the invention. (This is why I suggested that Pennock may also be pertinent to the issue of best mode. If the failure to disclose best mode actually prevents effective commercial competition, and this can be demonstrated, I think the patent still might be invalid.)
The Supreme Court was concerned that allowing such secret commercial use without disclosing the details of the invention to the public coupled with a subsequent period of exclusivity provided by a patent would not promote progress in the useful arts, but rather it would retard progress in the useful arts. It is on this basis that I concluded that Pennock was on point regarding the constitutionality of the AIA which seems to expressly authorize that which Pennock expressly held to be contrary to the purposes of the relevant constitutional provision.
“looking glass asked me to respond to this post”
compare
“1. Stop talking about trade secret protection.
2. The SC in Pennock made clear…”
W
T
F
Ned. This is not what I suggested. You need to read and understand the points being made, not simply repeat the same mantra yet again. Asking you to think about the points does not yield a result of you saying don’t make those points!
The points are valid. You cannot disassociate the trade secret protection from the patent protection (and hence your constitutional question) because Pennock involves the trade secret protection.
You don’t wnat to discuss something that you have to discuss. That’s the point being raised. In fact, it is you that elevates the constitutional question beyond mere patents (your post on July 27 at 3:27 PM when you say regarding Article I Section 8: “Anon, I see nothing in there about patents. I see, however the concept of “exclusive Right” to their Discoveries. Congress can protect these it is said by the Constitution for ‘limited Times.’”
You keep on trying to dismiss points that you cannot dismiss because they are integral to the identified faults in the logic. This is like you saying that if you ignore the problems in the logic, there are no problems in the logic.
The problem is not in that people are trying to point out the logical flaws. The problem is that people are trying to pretend that such flaws don’t exist at all. This is quite beyond the holding of Pennock.
Purist, looking glass asked me to respond to this post. I will.
1. Stop talking about trade secret protection.
2. The SC in Pennock made clear the problem of allowing patent protection after an indefinite period of monopoly exploitation where the monopoly was maintained by secrecy itself was the problem at hand. Such a regime violated the authorization in Art. I, Sec. 8, that exclusive rights be given to promote the Progress in the useful Arts. The SC held that such a regime, in the words of the Supreme Court, "…materially retard[s] the progress of science and the useful arts, and give[s] a premium to those who should be least prompt to communicate their discoveries."
The holding of the court is unmistakable. The regime authorized by Congress in response to the lobbying of the big European and Japanese companies who shouted down the startups of Silicon Valley, is UNCONSTITUTIONAL.
Thank you, much appreciated.
looking, since I know you, I will review Purists posts at your recommendation.
You have dismissed the points before fully reading them. You have reacted prematurely and shut down your mind before understanding. It is as if you read until you find a reason to take offense and retaliate.
The posts make valid points and you need to read themm all the way through. There are ramifications to both Pennock and to the logic you have put forth that a critical mind will readily grasp. You are far too reactionary and you are not understanding what the conversation is actually about.
It is a good conversation to have. Your absence is unfortunate.
Mr. Glass, the post began by discussing my alleged assertion that trade secret protection was unconstitutional. Since I have many times said I had no problem with state trade secret protection, citing among other things, Kawanee, it was clear that Purist was more interested in establishing strawmen than in seriously discussing anything. i refuse to hold conversations with such folk, except if I know them, like I know anon, who have on occasion made serious substantive arguments.
I don’t even need a comparison for this: “Mr. Purist, I will no longer read your posts as they are a waste of my time. They are filled with ridiculous statement after ridiculous statement.”
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PURist’s post was clear, polite and accurate. Your response Ned is not only uncalled for, it is outrageous. Others, including me have informed you of the difficulties you cause by focusing on what is convenient for you.
As for addressing the points raised, well I think it is becoming evident that you simply refuse to address anyone’s points that you find inconvenient to your paradigms. If this is how you are going to treat well-reasoned and polite requests, I can only imagine that you will have no one willing to discuss any issues with you (at least not any regulars outside of MM and 6).
Mr. Purist, I will no longer read your posts as they are a waste of my time. They are filled with ridiculous statement after ridiculous statement.
Mr. Pur, I stopped reading your post after the first two ridiculous remarks. Just let me reiterate, I do not challenge the constitutionality of trade secret protection. See, Kawanee.
Ned,
With all due respect, the point of “what you prefer” should be a lesser consideration to what is most effective for all.
It is not only a matter of being courteous in your responses on their own, but rather, it is a matter of being courteous in your understanding of the discussion. I have seen on this thread alone you miss crucial aspects and appear to be dazed and confused as to the discussion. This only raise the ire and promotes the sniping that is so often seen.
I think your desire for “convenience” makes everyone suffer. In that respect, I agree with Anon that such is not reasonable nor professional. Your convenience should not be at others’ expense. It really is a matter of common courtesy, and I hope for at least those situations in which a dialogue is ongoing, that you “sacrifice” some of that convenience for yourself to make a better discussion.
Ned, You would note Anon’s attempt to divert so in error.
And you need to stop shooting arrows at Anon.
He is being very reasonable in attempting to make sure the logic involved here is understood by everyone. As Anon points out, your challenging the the constitutionality of trade secret protection IS NOT THE ISSUE! The issue is that in order to emply your logic, the challenge must happen in order to keep the logic from crashing in on itself. You must apply the logic consistently, and when you do that, the errors in Pennock are illuminated and the idea of a constitutional question are destroyed. You cannot only look at a partial picture, because the ramifications of the logic permeate and have repercussions that must be recognized.
Please visit the blog so that you can see the full string of comments in context. It is important that you do not get a partial picture on the concepts involved.
You acted first be supplying a “constitutional question” that you yourself indicated was not limited to patents (“I see no patents there”). You evidently did this so that you could take the Pennock case and use both the time of patent protection and the time of trade secret protection together as a basis to say that you have unlimited times of protection (I would remind you that these are very different types of protection covered by different laws and different “constitutional questions” – but we can come back to this point).
IF you only constrained yourself to patent time, your logic fails, as patent time is clearly limited time. You NEED to include trade secret time in your constitutional question. You have already admiited to such.
The problem is quite evident.
You need trade secret time to fall into your constitutional question in order to bridge the gap between the legal regime of patents (limmited time) and trade secrets (non limited time). The problem of course is that trade secrets by themselves, which you need, simply fail, by themselves, the constitutional limited times question.
The very thing you use to make your case that “patents” fail the limited time constitutional question because of the entrained trade secret time destroys the logic of what you are attempting to do, on their own. You cannot say “But I am only looking at patents, because you are not only looking at patents. You had to bring in the trade secrets and now you have to deal with trade secrets. They are on the table whether you like it or not. And further, the set of logic used and the the consitutional question under examination must be applied. You have no choice.
This is not a matter of diversion at all.
This is a matter of making you come face to face with the entire fallout of the logic you have to sign up to in order to make your Pennock case work.
The obvious problem is that the logic in Pennock is WRONG.
The logic of Pennock, of using the time of trade secrets in addition to the time of patents in order to broach the unlimited time of patents requires that the time of trade secrets be treated under the same consitutional question. Of course the immmediate problem is that this does not work because trade secrets themselves run for unlimited times (and thus immediately violate the constituional question).
You either must NOT use the time of trade secrets, in which case, the time under patent protection is for limited times and there is no violation of the constitutional question;
or you must abbrogate all of the state’s rights and their laws dealing with trade secrets and force trade secrets to be constrained to limited times.
You cannot have both! Logic simply does not allow an unequal treatment of trade secret time. Logic MUST be consitent. Logic cannot be arbitrary.
anon, I attempt to be courteous. However, I find the use of TypePad quite in an e-mail response convenient and more useful than the blog reply feature. I prefer it.
anon, I am not challenging the constitutionality of state trade secret protection. That issue has been decided in Kawanee.
I will note for the record your consistent attempts to divert the question from the facts of Pennock into some other question entirely.
“I look at the blog only when I have time”
I suggest you make the time. You post often enough to be considerate of others and post with some semblance of knowing what is going on.
If you want to post a new idea and start a discussion, that is one thing. But if you are iin a discussion you owe some common courtesy to the other person to see the entire context of the discussion.
After all, that is only reasonable and professional.
Ned,
This is another thread that you have shown an inablity to read and maintain focus on the conversation.
You do need to defend your “constitutional question” against trade secrets for the many reasons listed in this thread.
I suggest you visit the thread and read it in its entirety. You obviously are seriously missing the complete picture and your responses are gravely lacking (even though you think they are intelligent and complete – they are not).
looking, as I said before, I normally respond to e-mails. I look at the blog only when I have time.
Mr. Purist, "I am asking you to defend your constitutional question against trade secrets."
My constitutional case against trade secrets?
I am not arguing that state trade secret protection is unconstitutional. Not at all. Further see, Kewanee Oil. link to supreme.justia.com
On the patent question, however, Pennock is clear. Practicing an invention for years, maintaining a monopoly by keeping the invention secret (or at least keeping the way of making it secret), and then obtaining a further period of exclusivity, retards progress of the Useful Arts. Congress's power to grant exclusive rights seems limited under Pennock to promoting progress in the Useful Arts.
Pennock may also be pertinent on the issue of best mode. Keeping the way of practicing the invention secret certainly would grant a commercial patent without enriching the public with the necessary know how. How this bleeds into best mode is of interest from a constitutional perspective as well.
“I ask you to think as well”
compare
“stop interpreting my remarks but simply accept that what I am talking about”
W
T
F
Ned, try to remember that what you ask is right here and easily seen.
Will you stop playing games and stop parroting Pennock already? I don’t even want to get into how your continued avoidance of looking at the blog like a normal person is causing all sorts of headaches.
You really don’t read the posts, do you Ned?
Pennock was a case on patents. Your quote and the case having nothing to do with what I am asking you!
I am not asking you to defend your consitutional question against patents. I am asking you to defend your constitutional question against trade secrets.
If you rest your case before you even address the issue raised you lose by default.
Let me repeat my earlier posts
2:23 PM: Further, I too want to see how you handle the unlimited times of trade secret under your consitutional question. It’s your consitutional question so you should defend it.
2:53 PM: No Ned, I am asking you to defend not against patents, but against the unlimited times of trade secrets
I cannot understand how you can understand my posts.
Pennock is not on point? You seriously have to be kidding. Let me quote you the language on point,
"While one great object was, by holding out a reasonable reward to inventors, and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was "to promote the progress of science and useful arts;" and this could be done best, by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible; having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long period of years retain the monopoly, and make, and sell his invention publicly, and thus gather the whole profits of it, relying upon his superior skill and knowledge of the structure; and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any farther use than what should be derived under it during his fourteen years; it would materially retard the progress of science and the useful arts, and give a premium to those who should be least prompt to communicate their discoveries."
What did the SC say? Monopoly exploitation for years, followed by a patent. The monopoly maintained by keeping the secrets of his invention secret.
I rest my case.
“Regarding unlimited times, and the constitutional question”
No Ned, I am asking you to defend not against patents, but against the unlimited times of trade secrets. Pennock is not on point for that defense. You brought up the consitutional question and you said that you do not see patents there, thus you broadened the constitutional question beyond patents and you included the time of protection under trade secrets. But your logic fails at that point because trade secrets are for unlimited times. You need to address this failure.
“you define protection way too narrowly”
No I define by what the law actually is. You are misusing the legal term “Prior User Right” and your answers to 1 and 2 thus remain in error.
Mr. PURist, you define protection way too narrowly, indeed. If the muscle man comes into your place of business and offers you protection, what you get is protection from them. In the same way, a PUR offers protection from a patent.
Regarding unlimited times, and the constitutional question, I refer you back to the words I quoted from Pennock. That is the position of the Supreme Court of the United States of America, in a case penned by Story, and in which John Marshall participated. I do not have to argue the constitutional issues. They are framed quite nicely by the Supreme Court itself.
The association is ancillary. The Protection is technically not for the trade secret. It is for something newly created under the AIA called Prior User Right.
You ascribe more than what is there.
Your further comment is beyond my point but I will address it as you include it in the response to me. It is not only “what” you are (not) contending as to what federal right of action may exist that you must consider. You must consider the benefits of the law that you are taking and assuming falls under the constitutional question that you gave as an answer. You clearly are takiing the benefits of trae secret protective time, and you cannot take that without accounting for the law that actually provides that benefit.
Your answers to 1 and 2 remain in error. Further, I too want to see how you handle the unlimited times of trade secret under your consitutional question. It’s your consitutional question so you should defend it.
Mr. Prior User, but a PUR does protect the trade secret user from a patent. THAT is a form of protection.
We all know that one does not have a federal right of action for trade secret misappropriation. I never contended that we did.
Mr. Wrong, you repeatedly stated, and continue to state that Stanford was the applicant. Until you figure out why this statement is completely wrong, or someone tells you why, we cannot discuss things further.
You obviously are not a patent attorney because every patent attorney knows the reason why. Every, single, one.
Actually, anon, I ask you to think as well. But, we will continue to join on issues to extent you continue to avoid discussing hypotheticals.
I think there is error in Ned’s answers to 1 and 2.
PUR is not synonomous with trade secrets.
Trade secrets remains under the purview of state law, which means differences from state to state. Trade secret unlimited times remain while PUR exists only for the life of the patent against which they may apply. PUR as well does not necessarily mean that something must have been maintained to the same rigor as a trade secret and further, a trade secret may be more than the claimed PUR.
Anon,
Ned cannot even get the right thread. And you want him to do some independent thinking?
Are you high?
“Mr. Wrong, but you start from a premise that is contrary to law.”
Oh really? You want to provide a cite for what you think my wrong starting premise is?
And let me tell you that you are STILL arguing the WRONG case in the WRONG courtroom with your asinine replies from eamil or whatever you are doing. Even after I tell you that you are doing so and even after I give you the time stamps of my comments on this thread for this discussion.
If you repeatedly did this in a court of law, would you be sanctioned? It seems that you lack even the minimum of due care.
The problem Ned is that I am asking you to NOT “simply accept.”
I am asking you to THINK. I know, it is a radical concept to be sure.
Are you willing to think and apply your own logic? Are you ready to see the contradictions that are so plainly there if you would only open your eyes?
Anon, if you would stop interpreting my remarks but simply accept that what I am talking about is Pennock, we can get a lot farther in our discussion. Pennock says what it says and no matter what you say you cannot change its words.
Ned,
I asked you to think for yourself.
What you think Pennock holds is in error. Quoting Pennock is meaningless unless you can account for the error. You need authority that is not in error, that recognizes that the time under trade secret protection is not the time under patent protection and that patent protection itself is for limited times. You need to stop contradicting yourself by saying that you are not involving trade secret law – as you must if you are counting on time for protection under that legal philosophy (you cannot have the time with out the law).
If you open your eyes and THINK, instead of blindly parroting the mistakes made in the past, you will see the fallacy of how the logic was applied. If that fails, please kindly answer Wrong is Wrong’s point concerning trade secrets alone. Under your logic, please square the fact that trade secrets can run for unlimited time with your constitutional question.
Are you ready to challenge the fact that trade secrets can runfor unlimited times in violation of your logic?
THINK for yourself. What do the answers to my questions tell you. Don’t feed me mindless parroting. THINK man.
Anon:
"The exclusive period of the trade secret use was to be considered part of the exclusive period of the patent." ?
Under what authority is this statement made? You MUST remember that the two (patents and trade secrets) do NOT rest under the same legal authority.
From Pennock:
"The single question then is, whether the charge of the court was correct in point of law. It has not been, and indeed cannot be denied, that an inventor may abandon his invention, and surrender or dedicate it to the public. This inchoate right, thus once gone, cannot afterwards be resumed at his pleasure; for, where gifts are once made to the public in this way, they become absolute. Thus, if a man dedicates a way, or other easement to the public, it is supposed to carry with it a permanent right of user. The question which generally arises at trials, is a question of fact, rather than of law; whether the acts or acquiescence of the party furnish in the given case, satisfactory proof of an abandonment or dedication of the invention to the public. But when all the facts are given, there does not seem any reason why the court may not state the legal conclusion deducible from them. In this view of the matter, the only question would be, whether, upon general principles, the facts stated by the court would justify the conclusion."
"In the case at bar; it is unnecessary to consider whether the facts stated in the charge of the court would, upon general principles, warrant the conclusion drawn by the court, independently of any statutory provisions; because, we are of opinion, that the proper answer depends upon the true exposition of the act of congress, under which the present patent was obtained. The constitution of the United States has declared, that congress shall have power "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." It contemplates, therefore, that this exclusive right shall exist but 17*17 for a limited period, and that the period shall be subject to the discretion of congress. The patent act, of the 21st of February, 1793, ch. 11, prescribes the terms and conditions and manner of obtaining patents for inventions; and proof of a strict compliance with them lies at the foundation of the title acquired by the patentee….
"These are the only material clauses bearing upon the question now before the court; and upon the construction of them, there has been no inconsiderable diversity of 18*18 opinion entertained among the profession, in cases heretofore litigated.
…
"We think, then, the true meaning must be, not known or used by the public, before the application. And, thus construed, there is much reason for the limitation thus imposed by the act. While one great object was, by holding out a reasonable reward to inventors, and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was "to promote the progress of science and useful arts;" and this could be done best, by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible; having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long period of years retain the monopoly, and make, and sell his invention publicly, and thus gather the whole profits of it, relying upon his superior skill and knowledge of the structure; and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any farther use than what should be derived under it during his fourteen years; it would materially retard the progress of science and the useful arts, and give a premium to those who should be least prompt to communicate their discoveries."
Anon:
Here are answers to your questions.
Straight up and with no dodging or changing the subject answer these four questions:
1) Under patent law, (and please be specific) what protections are afforded someone that has a trade secret?
Answer: none on the current law. Prior use against a third-party patent under the AIA.
2) Under patent law, (and please be specific) what protections are afforded someone that is not using the patent system?
Answer: today, none ; tomorrow, prior use rights.
3) Now, tell me, under patent law, (and please be specific) what protections are afforded someone that has decided to use the patent system?
Answer: a patent, without any Right of exclusivity per eBay.
4) Is that time of protection limited or unlimited?
Answer: there is no Right of exclusivity. However, patent term is 20 years from filing
Mr. Wrong, but you start from a premise that is contrary to law.
Discuss:
1) a first inventor invents, a second inventor invents the same invention.
Who owns the invention?
If they both file patent applications, who owns the respective patent applications?
2) a first inventor invents having an employment agreement containing a present-assignment-of-future-inventions clause.
Who owns the invention?
If they both file patent applications, who owns respective the patent applications?
Vary from the above that the employer names himself as the inventor. Who owns the respective patent applications?
3) same as 1, first and second inventors of the same invention; however, a pirate of the first inventor files first and the second inventor files second. The first inventor does not file at all.
Who owns the invention?
Who owns the pirate's patent application?
Being a second inventor, can the second inventor still claim to be the owner of the first inventor's patent or patent application?
4) an inventor works for a boss of Big Red, but this time there is no present-assignment-of-future-inventions clause. He has, however, and obligation to assign. Both the inventor and the boss file patent applications on the very same day naming themselves as inventors. The boss assigns the patent application to Big Red. The inventor quits and goes to work for another corporation, call it Big Blue. He records an assignment of his patent application to Big Blue. Both Big Red and Big Blue are BFP's under the recording statute.
Who owns the invention?
Who owns the boss's application?
Who owns the inventors application?
Ned,
I have further responded to your post on the appropriate thread.
As to “pressing the issue,” I find your comment insulting. Shall we compare “experience” on who engages and who disengages when the discussion does not suppport a participant’s views? I don’t think that such a comparison would be to your advantage – experience shows that you tend to disappear when the discussion does not support your philosophies.
On this thread, for this different discussion, I am STILL waiting for your answers to my questions. Even though those questions are plainly here for normal blog readers to see, I repeat them for your convenience:
Straight up and with no dodging or changing the subject answer these four questions:
1) Under patent law, (and please be specific) what protections are afforded someone that has a trade secret? 2) Under patent law, (and please be specific) what protections are afforded someone that is not using the patent system?
3) Now, tell me, under patent law, (and please be specific) what protections are afforded someone that has decided to use the patent system? 4) Is that time of protection limited or unlimited?
How can you in one paragraph state “know you think that trade secret law is somehow involved of this conversation. Trust me, it is not.” and in the very next contradict yourself by saying “The exclusive period of the trade secret use was to be considered part of the exclusive period of the patent.” ?
Under what authority is this statement made? You MUST remember that the two (patents and trade secrets) do NOT rest under the same legal authority.
After you are done directly and without further games answering my questions, I look forward to you answering Wrong is Wrong’s questions and your explanation of how trade secrets by themselves do not violate your stated “constitutional question.”
Can you engage without your games?
“Perhaps 101 Integration Expert would be kind enough to demonstrate his integration analysis of this claim?”
Yes, I will be glad to perform the Integration Analysis to this claim but I will post it to the Is Software Patentable? thread where it belongs.
Unlike MM, that merely looks at a claim and if it is a process claim, calls it cra p. Or 6 that just dreams up an abstract concept and declares the claim preempts, “Integration Analysis” requires an objective, and rigorous law based analysis in which the claims are read in light of the specification, drawings, and with deference to the actual inventor as subject mater expert that defines the invention.
“The spotlight is all yours. Try not to choke, dodge, weave, prevaricate, or run away.”
MM FAIL
“We cannot discuss things in the absence of dicussion…..”
I am waiting for you to join the discussion and answer the points and questions that are already on the table. You have some explaining to do to support your proffered constitutional question (it has some serious logic flaws that need to be corrected).
See my posts at 10:39 AM, 11:17 AM, 12:53 PM, 12:56 PM and 2:21 PM on this thread (and any of the posts by Anon). Please pay attention and do not mix the separate conversations.
Mr. Wrong, why don't yoiu stop this s h i t and simply answer the questions yourself then. We cannot discuss things in the absence of dicussion…..
“refuses to engage is obvious”
On the contrary Ned Heller, it is you that is refusing to engage.
Not only that, you are mixing threads and arguments for the umpteenth time.
Your comment to standing clearly indicates that you are confused. You just posted to the adminsitering thread and the discussion on conflation of trade secret law and patent law with a reference to the discussion on rights innuring to an inventor or applicant. Two very different discussions. There is no standing element to the discussion of the constitutional question and the conflation of patent law and trade secret law. The standing element belongs to the pirate applicant thread.
You really need to either address one argument at a time or not answer by email. You look incompetent in both discussions. It’s like showing up in the wrong courtroom and arguing the wrong case before the wrong judge. If your organiztion skills cannot handle multiple discussions, then don’t engage in multiple discussions. You just end up WRONG in multiple discussions.
Mr. Wrong, the reason Anon refuses to engage is obvious.
But, i won't press the issue. Just chalk it up to experience.
The bottom line is that standing is not challenged by trying to show that the named inventor did not invent.
Then answer my question as to how trade secrets, in and of themselves, can be allowed under your constitutional question.
You admit to repeating an error. Congrats, now you can appreciate the Dred Scott reference.
Now try thinking for yourself. Answer Anon’s questions, see the logic, and think about it untarnished by mistakes of the past.
I incorporate the time of exclusive use of the applicant with the exlusive period added by patent. Yes. So did Pennock.
Ned postulates “Article I Section 8” as his constitutional question and proceeds to conflate trade secret time and patent time.
But by doing so he sets himself for the following logical conundrum:
If patents are “not seen” in his constitutional question, then more than just patents are allowed under the constitutional question.
If more than just patents are allowed under the constitutional question, then something else, completely on their own and in their own right fall under the constitutional question
If this other thing falls under the constitutional question, then it would be unconstitutional for that thing to run for unlimited times.
That other thing is trade secrets.
Applying the famous Ned Logic, trade secrets are unconstitutional becuase they can exist for unlimited times which violates Article I Section 8.
Explain why this scenario is excused from your logic Ned.
Two words for Ned’s over-reliance on Pennock: Dred Scott.
The answer is still the same indeed. Your answer is still wrong because you do in fact incorporate the time that is under trade secret law into the aspect of time under patent law.
This is clear legal error, no matter who does it. you need to grasp and understand this. To not understand this and maintain “but I’m not talking about trade secret law” is to contradict yourself and nullify your position.
Return and provide actual answers to my questions.
anon,
1) Under patent law, (and please be specific) what protections are afforded someone that has a trade secret? 2) Under patent law, (and please be specific) what protections are afforded someone that is not using the patent system?
3) Now, tell me, under patent law, (and please be specific) what protections are afforded someone that has decided to use the patent system? 4) Is that time of protection limited or unlimited?
The point of the matter is that ANY time before the person engages the patent system DOES NOT COUNT as time provided as protection under the patent law.
Anon, I tried to point out to you in a previous post that trade secret protection is not part of my argument and has nothing to do with my argument. No matter how many times you phrase the question in alternative language, the answer is still the same. You seem to want to divert this train of thought off the rails and into some irrelevant gully. You're not going to be able to do that.
The Supreme Court in Pennock said that it would be a violation of the concept of "limited times" to allow one to exploit his invention in secret for any time and still be able to obtain a patent. The goal of the patent system is to bring into the public domain a description of the invention and to allow the public to use it after a limited period of exclusivity. Allowing indefinite trade secret use followed by a period of exclusivity enforced by the patent frustrates both objectives.
Ned,
Straight up and with no dodging or changing the subject answer these four questions:
1) Under patent law, (and please be specific) what protections are afforded someone that has a trade secret? 2) Under patent law, (and please be specific) what protections are afforded someone that is not using the patent system?
3) Now, tell me, under patent law, (and please be specific) what protections are afforded someone that has decided to use the patent system? 4) Is that time of protection limited or unlimited?
The point of the matter is that ANY time before the person engages the patent system DOES NOT COUNT as time provided as protection under the patent law. The time period of exclusivity through patent law as governed by the constitution IS limited.
How can you in one paragraph state “know you think that trade secret law is somehow involved of this conversation. Trust me, it is not.” and in the very next contradict yourself by saying “The exclusive period of the trade secret use was to be considered part of the exclusive period of the patent.”
Under what authority is this statement made? You MUST remember that the two (patents and trade secrets) do NOT rest under the same legal authority. You can even use your holding/dicta schema, but you must trace this treatment of trade secrecy to a primary authority.
If you actually try to look at this without a pre-conceived “well a smart judge said it so it must be right” view, you can see the error. If you close your eyes, you will not see it.
“The exclusive period of the trade secret use was to be considered part of the exclusive period of the patent.” This is legal error. Just because a Judge (or Justice) made that error does not make it any less an error. There simply is no patent protection and no concurrent patent coverage in the time span that something is a trade secret and not under the rule of law for patents.
It’s an irrefutable fact.
Anon, why don't we discuss the examples I gave on the topic of "who owns the invention?"
“Should I now treat you as Um No would treat me?”
That would be your choice Ned.
But do you really want to compare untouched topics and questions?
Do you really?
Plus there is a substantial difference in that this topic you have shown no understanding and have been all over the map. Show me in any of our discussions that you have chosen to left unanswered a similar state for me. You will not be able to show anything of the sort.
As I said, Ned, your choice. Choose well (or not).
Should I now treat you as Um No would treat me?
Anon, I don't know where you get the idea that I have been discussing trade secret law, or that my views in any way depend upon trade secret law.
I know you think that trade secret law is somehow involved of this conversation. Trust me, it is not.
However, how long in the inventor may exclusively practice an invention before it must be surrendered to the public for their use is the topic at hand. The Constitution demands that the time period of exclusivity be limited. The Supreme Court in Pennock was of the view that allowing exclusive secret use was part of the period of time that must be considered in determining whether the time period was limited. The exclusive period of the trade secret use was to be considered part of the exclusive period of the patent.
“Punt” implies fourth down and you have stopped me on three previous downs.
With Chakrabarty you have stopped no one but yourself.
Pass.
“you pass? “Punt” is the better term.”
No Ned, “pass” as in “not engage” is the better term. You haveshown such an erratic nature on Chakrabarty that I choose not to discuss that case with you.
I suggest you stick to one discussion at a time. Choose one and focus on that.
Ned,
“I see nothing in there about patents.”
Now you are being just plain silly. Please grow up and leave the childish games aside. We all know that federal patent law comes from Article I, Section 8. We also know that Trade Secret Law does not come from that section of the constitution and is not even a Federal Law item.
Are you seriously making a position that it is otherwise? Seriously? Are you saying that like patents, trade secret laws at the State level are barred by the consitution? Seriously?
"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."
Anon, I see nothing in there about patents. I see, however the concept of "exclusive Right" to their Discoveries. Congress can protect these it is said by the Constitution for "limited Times."
Ned,
As noted on the link to patentlyo.com thread by Oops (as well as on previous thread by me), Article I Section 8 only covers patents and the time period for patents is still “for limited times.”
You are confusing the time for Trade Secret protection which does not fall under Article I Section 8.
I repeat Oops’ post in this reply for your convenience:
One other problem Tacurrier: you (like many) are co-mingling time frames.
“the risk is very real that the monopoly can be made virtually perpetual.”
You must be clear as to “the monopoly” you refer to. This comment is absolutely true for Trade Secrets (even today!). The comment is absolutely false for Patents. Do not get caught in the trap of mixing up these two time periods as they are goverened under different laws.
There is one set of time governed by patents and implicated in any constitutional discussion.
There is quite a different set of time that is not governed by patents and NOT implicated in any constitutional discussion.
Keep firmly in mind: Trade Secret Law is generally a state law concern. Thus any protection afforded by Trade Secret is distinct from (both actually and legally) the protection afforded by Patent Law.
Don’t feel bad about the mistake either. There are very few people smart enough to recognize this subtle (but very real) point of law.
The power of the voices of these two justices can still be hear despite the distance of years.
Hearing voices again, Ned?
Art. I, Section 8: …for limited times… exclusive rights.
anon, you pass? "Punt" is the better term.
MM pawned again.
MM: It’s old.
That’s Novelty, which has no place in 101. See Diehr.
MM: If it’s properly claimed, I don’t see why it should not be.
That would be a draftsman art tricks. Also not allowed. See Prometheus.
MM: Note that I believe that any such claim is likely anticipated, at least inherently. So the issue of eligibility (or rather, the issues raised by your hypothetical) are moot.
Again, that is for 102 anticipation and does not apply for 101 eligibility questions. So your point is not only moot, it’s irrational, illogical, and illegal.
MM: Again, we are back to the question of what “found in nature” means.
It means found in nature. See Diehr stating:
“Unless otherwise defined, “words will be interpreted as taking their ordinary, contemporary common meaning,” Perrin v. United States, 444 U. S. 37, 444 U. S. 42 (1979), and, in dealing with the patent laws, we have more than once cautioned that “courts should not read into the patent laws limitations and conditions which the legislature has not expressed.'” Diamond v. Chakrabarty, supra, at 447 U. S. 308, quoting United States v. Dubilier Condenser Corp., 289 U. S. 178, 289 U. S. 199 (1933).”
MM: Recognize that anything and everything that is created by man can not be distinguished from a composition “found in nature” from the moment that the composition is created.
Wrong.
1. Television Sets
2. Cell Phones
3. Plastic Jugs
4. Any series of steps that produce an objectively measurable guaranteed result………
MM: A hot dog with a novel pattern of piranha bites is no less a “product of nature”
A hot dog is made by man and it’s method of being manufactured can be classified as a process as well for 101 statutory purposes.
MM: If the Federal Circuit and its hapless clerks are too dense to acknowledge this issue I guarantee you that the Supreme Court’s clerks are not.
The CAFC and the Supreme Courts and their clerks apparently ignore you and your theories as none have been included in their holdings. On the other hand “Integration Analysis” has been explicitly used and recognized by the Supreme Court and the USPTO.
See Prometheus holding: .. the basic mathematical equation, like a law of nature, was not patentable. But it found the overall process patent eligible because of the way the additional steps of the process “integrated” the equation into the process as a whole.” (12 MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC. describing Diehr. Opinion of the Court) “See From the Syllabus. Emphasis added.
Also see the Official USPTO Office Guidelines on Integration Analysis:
The concept of integration, and the word itself, is used in four distinct sub sections of USPTO Guidelines for 101 statutory analysis. Changing everything from M or T to the buttressing Diehr’s Concept and Application Test/Analysis as follows:
1. To show “integration”, the additional elements or steps must relate to the natural principle in a significant way to impose a meaningful limit on the claim scope. The analysis turns on whether the claim has added enough to show a practical application.
2. Along with “integration”, the additional steps must be sufficient to ensure that the claim amounts to significantly more than the natural principle itself by including one or more elements or steps that limit the scope of the claim and do more than generally describe the natural principle with generalized instructions to “apply it.”
3. A machine or transformation that is merely nominally, insignificantly, or tangentially related to the steps or elements, e.g., data gathering or data storage, would not show integration. This claim would pass Inquiries 1-3 in the above analysis as it is a process that includes the Arrhenius equation as a limitation, with additional steps that “integrate” the Arrhenius equation into the process and are sufficient to narrow the scope of the claim so that others are not foreclosed from using the Arrhenius equation in different applications.”
MM: “Not unlike the b.s. in Diehr about “claim dissection.”
Not Dicta, the Diehr case turned on the express prohibition against dissection. See Diehr: “A claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula, computer program, or digital computer. Respondents’ claims must be considered as a whole, it being inappropriate to dissect the claims into old and new elements and then to ignore the presence of the old elements in the analysis. The questions of whether a particular invention meets the “novelty” requirements of 35 U.S.C. § 102 or the “nonobviousness” requirements of § 103 do not affect the determination of whether the invention falls into a category of subject matter that is eligible for patent protection under § 101. Pp. 450 U. S. 185-191.”
That concludes today’s lesson. Next week your assignment is to perform the “Integration Analysis” on Ultramercial’s claims, using the Official USPTO Guidelines on Integration for instructions.
::CLASS DISMISSED::
AND YOU BEING RAY’S TRUE CHILD CHANGE3S NOTHING! HAHAHAHAHAAA .FINALLY I CAME OUT ON TOP!
And if I was as my Birth Cert. says Guerwoods and Marcella’s whoever claims they are because they happen to be my Twin.. Tuff tooties! You ain’t Guerwoods! BUT I AM HAHAHAHAHAHA
Leopold,
too late (for you MM and 6)
I also shudder to think what clerk is stup id enough to believe that a halftoned image is a “computer data structure”.
6, the old adage, “Better to remain silent and be thought a fool…” comes to mind.
Fix bold tag.
” “I don’t have any hard questions for you, just the usual strawman/wife-beating variety.”
It is not a straw man to state that you duck, and dodge the “Integration Analysis” . That is a fact. Every time you post in celebration of the Prometheus 9-0 decision you celebrate the very analysis you are afraid to perform and even acknowledge exists. Yet this very analysis is now required of the entire patent examiner corps.
MM, why are you so afraid?
Oh, and if you need further instruction on ” Integration Analysis, please see the Official USPTO Guidelines, which incorporates “Integration Analysis in the Courts previous precedents. Changing everything from M or T to the buttressing Diehr’s Concept and Application Test/Analysis. I do find it quite odd that you ignore the Court and the Office on this most telling and crucial point of patent law.
“1. To show “integration”, the additional elements or steps must relate to the natural principle in a significant way to impose a meaningful limit on the claim scope. The analysis turns on whether the claim has added enough to show a practical application.
2. Along with “integration”, the additional steps must be sufficient to ensure that the claim amounts to significantly more than the natural principle itself by including one or more elements or steps that limit the scope of the claim and do more than generally describe the natural principle with generalized instructions to “apply it.”
3. A machine or transformation that is merely nominally, insignificantly, or tangentially related to the steps or elements, e.g., data gathering or data storage, would not show integration.
This claim would pass Inquiries 1-3 in the above analysis as it is a process that includes the Arrhenius equation as a limitation, with additional steps that “integrate” the Arrhenius equation into the process and are sufficient to narrow the scope of the claim so that others are not foreclosed from using the Arrhenius equation in different applications.” ( USPTO Official Guidelines )
Breyer stated that Diehr was most on point.
“LOL. And then what happened? LOL. 9-0.”
Yes, 9-0 for Integration Analysis. Remember it’s Diehr’s concept and application analysis that is controlling precedent, with Prometheus’s “integration” as the key to as the Court said: :transform the process into an inventive “application” of the formula. ( See Prometheus )
“The Court pointed out that the basic mathematical equation, like a law of nature, was not patentable. But it found the overall process patent eligible because of the way the additional steps of the process “integrated” the equation into the process as a whole. Those steps included “installing rubber in a press, closing the mold, constantly determining the temperature of the mold, constantly re- calculating the appropriate cure time through the use of the formula and a digital computer, and automatically opening the press at the proper time.” Id., at 187. It nowhere suggested that all these steps, or at least the combination of those steps, were in context obvious, al ready in use, or purely conventional. And so the patentees did not “seek to pre-empt the use of [the] equation,” but sought “only to foreclose from others the use of that equa tion in conjunction with all of the other steps in their claimed process.” Ibid. These other steps apparently added to the formula something that in terms of patent law’s objectives had significance—they transformed the process into an inventive application of the formula.”
“I look forward to the CLS decision being ripped to shreds and tossed in the wastebasket.”
Let us offer the instant decision as an offering to the gods of preemption. Surely they will smile upon us.
“and examiners as ”
Well, r tar ded ones that are unfamiliar with the animal called claim construction.
Simply construing them as products with instruction structures and watching as hilarity ensues with 101, 112 and 102 is priceless.
Another sacrifice upon the almighty alter of preemption! High priests, bring the wood!
“To salvage an otherwise patent-ineligible process, a computer must be integral to the claimed invention, facilitating the process in a way that a person making calculations or computations could not. ”
That right there is going out the window shortly as it is contrary to lawl. There is no way to “salvage” an “otherwise” ineligible claim, at least in so far as you’re still trying to claim ineligible subject matter with your claim. Such is blatantly just another species of the draftsman’s trickery that was just addressed in Prom and had been indirectly addressed in BFDB. The only way to quote “salvage” an ineligible claim is to stop trying to claim the ineligible subject matter causing the problem.
“In that case, the asserted patents claimed processes for enabling a computer to render a halftone image of a digital image by comparing, pixel by pixel, the digital image against a twodimensional array called a “mask.” ”
Look at that, the CAFC finally realizes what the facts were in that case. Too bad they can’t now go back on their ruling.
“We reversed the district court’s grant of summary judgment that the asserted claims were invalid under § 101, concluding that the processes were not “so manifestly” abstract as to override the statutory language of § 101.”
Contrary to lawl…
“In so holding, we observed that the claimed
“invention presents functional and palpable applications in the field of computer technology.””
Technically only one application… the only application for such a two dimensional array…
“First, the claimed processes in Research Corp. plainly represented improvements to computer technologies in the marketplace.”
Well, an improvement to arrays of numbers anyway.
“For example, as compared to the prior art, the “inventive mask produce[d] higher quality halftone images while using less”
Actually the mask itself only produced “better” 1’s and 0’s inside a computer.
“the method in Research Corp., which required the manipulation of computer data structures (the pixels of a digital image and the mask) and the output of a modified computer data structure (the halftoned image), was dependent upon the computer components required to perform it.”
It not only “required” it, it was solely about manipulating computer data structures. And the mask was not manipulated at all, it was provided at the outset if memory serves. I also shudder to think what clerk is stup id enough to believe that a halftoned image is a “computer data structure”.
Microsoft should have appealed in Research Corp.
I really do think that if the CAFC would simply write out what the mask is, in longhand form, every time they try to justify their boo boo they’d correct it faster.
““inventive mask produce[d] higher quality halftone images while using less”
Even trying to say “inventive TWO DIMENSIONAL ARRAY produce[d] higher quality halftone images while using less” just sounds rtar ded.
“Second, the method in Research Corp., which required the manipulation of computer data structures (the pixels of a digital image and the mask) ”
Again, writing it out long hand, “Second, the method in Research Corp., which required the manipulation of computer data structures (the pixels of a digital image and the TWO DIMENSIONAL ARRAY), it just sounds r tar ded.
“if you invent a composition which vastly improves one’s ability to observe an otherwise useless composition found in nature, you should be denied a patent because you’ve “pre-empted” everyone else from “using” the natural composition in the manner enabled by the invention”
Well I will consider substantive debate on this subject through, for this thread at least, but I will say this: that is amazingly close to my “argument”, aka what the law demands. But not quite. I would go with something a little bit more like this:
“if you invent AND CLAIM a composition which vastly improves one’s ability to observe an otherwise useless composition (or phenomena etc) found in nature, you should be denied a patent because you’ve “pre-empted” everyone else from “using” the natural composition in the manner enabled by the invention” … because what you have claimed covers the only realistic/substantive things which one would use that natural composition (judicially excepted subject matter) for.
You will of course remember that a certain Morse invented just such a composition. And of course he could have a patent on his very specific device, because those claims did not stop everyone from using the phenom. But as soon as he claimed just a generic device where the claim did have that effect, it died.
But on the whole, your education on the preemption doctrine is coming along swimmingly. You have literally made leaps and bounds since last year so far as I can tell. Now that you know it, it will be something when you accept it.
I was somewhat amused by the deja vu that I was struck with when I heard you channeling NWPA with this gem:
“Indeed, your argument is essentially that Myriad’s claimed compositions have too much utility. ”
You practically took it right out of his mouth. He literally said nearly or exactly that not a year or two ago although obviously he was talking about his algorithms that he wanted to save. And I appreciate you guy’s having this view on what the law demands. Perhaps sometime in the future the USSC will change it slightly.
Ned,
What precisly is the “constitutional” question at stake?
Keep in mind that trade secret rights are not a part of the constituional patent power and any time under that benefit cannot be combined with an “unlimied times” argument under the constitution.
Venerating great names of jurisprudence blindly is not true veneration.
“Their test cannot be consistent with the Supreme Court holding”
Ned, before we can discuss, you need to show you understand what holding is in regards to the Chakrabarty case.
Frankly, you are all over the map on that case, seemingly making things up to go with what suits your views on different issues of law on any particular day.
I see no point in discussing this with you.
Pass.