By Jason Rantanen
This morning the Supreme Court granted certiorari in Already, LLC dba Yums v. Nike, Inc., No. 11-982, an appeal carrying the potential for profound implications for patent law. The question presented asks:
Whether a federal district court is divested of Article III jurisdiction over a party’s challenge to the validity of a federally registered trademark if the registrant promises not to assert its mark against the party’s then-existing commercial activities.
The Petition focused on a split between the Second and Ninth Circuit, but similar disagreements have simmered in the Federal Circuit. Under controlling Federal Circuit precedent, it has long been the law that a patent holder can divest a federal court of Article III jurisdiction over the defendant's counterclaim for a declaratory judgment of patent invalidity by promising not to sue. See Super Sack Mfg. Corp. v. Chase Packaging Corp., 57 F.3d 1054, 1059-60 (Fed. Cir. 1995). A subsequent dissent by Judge Dyk, however, urged the abandonment of the Super Sack rule. See Benitec Australia, Ltd. v. Nucleonics, Inc., 497 F.3d 1340, 1350-55 (Fed. Cir. 2007) (Dyk, J., dissenting).
Should the Court agree with Petitioners, it thus would very likely spell the end of the so-called Super Sack covenant, making it harder for patent holders to withdraw their patents once placed into litigation.
Notes:
- Prior PatentlyO commentary on this case: https://patentlyo.com/patent/2012/04/supreme-court-looks-to-take-trademark-standing-case-following-covenant-not-to-sue.html
- Counsel for the parties is the same as in KSR v. Teleflex, with James Dabney and John Duffy representing the Petitioner and Tom Goldstein representing Respondent Nike.
- Professor Duffy provided me with copies of the parties briefs:
- The Second Circuit opinion: Nike, Inc. v. Already, LLC, 663 F.3d 89 (2nd Cir. 2011)(Lohier, J.)
Mr. Hurts, you obviously do not engage in discussion. You are a belligerent bully. You need help, and possibly some jail time.
“Let’s see if suckie can get his sh-t together and provide some answers.”
Since the ACLU folk were nice enough to get their sh-t togethr and provide some answers, can we expect you to get your sh-t together and provide some answers?
Or do you only ask questions?
” you recall why, in Prometheus, the Supreme Court held 9-0 that the indisputably transformative steps were “not enough” to rescue the claim from ineligibility?”
Yes, Integration. From the syllabus:
“(b) A more detailed consideration of the controlling precedents rein- forces this conclusion. Pp. 11–19.
(1) Diehr and Flook, the cases most directly on point, both ad- dressed processes using mathematical formulas that, like laws of na- ture, are not themselves patentable. In Diehr, the overall process was patent eligible because of the way the additional steps of the pro- cess integrated the equation into the process as a whole. 187. These additional steps transformed the process into an in- ventive application of the formula.”
Prometheus claims simply described the law of nature then adds steps for applying it. Similar to Flooks claims. But as you can see this is not enough. The law of nature, natural phenomenon, or abstract concept must be fully integrated in the claim from start to finish. Otherwise the Court will declare the added application, transformation, machine, or technology steps to be extra solution activity.
Interestingly enough it appears that the Supreme Court and their Clerks were listening to Actual Inventor and not MM, Malcolm Mooney or Ned Heller, since they used the DCAT, AI’s Diehr Concept and Application Test/analysis to make their ruling, and not any mental steps test or MOT from MM and Ned. So in reality It should be AI on here shouting 9-0 DCAT! Most on point in this thread is that the Prometheus Court did not rule products of nature to be patentable subject matter. And those are the facts.
“as it is clear you are not listening”
And neither is Ned Heller.
Ned,
You do realize that you are talking about process claims and even under the Products of Nature sxclusions ot patent eligibility processes of making Products of Nature may very well be patent eligible, right?
But none-the-less it was a valient attempt at kicking up some dust.
Maybe it’s the same reason you refuse to engage in meaningful conversation on tough issues.
Maybe not.
Do you ask someone how they feel when they step on an anthill? Because, that’s about the scope of you rlegal arguments and ability to entertain those who question those arguments.
You want more respect? Give more respect to those who ask you questions. Answer fully. Answer honestly. Leave out the legal hijinks. Don’t be so brazen when you pervert the law and own up to it when people nail you for what you are attempting. It’s not like you are dealing with little children in awe of you rname and who think that just because you say something, it must be so.
You want more respect? Earn it.
Deal?
Isn’t that called “swagger?”
Ned, does it really matter who you are talking to? As if that makes a difference whether you will actually address the issues being raised?
DOn’t you think that if you really wanted to set the record straight, that you would have engaged the issues being put forth?
Ned Heller,
Not at all. But when I have in fact explained things to you, how else do you wish to have me phrase my reminder to you?
As for insulting, your actions are what are insulting. As I mentioned, you should not lecture anyone on respect when you cannot perform with a minimum of that quality.
It is insulting to recycle points of your arguments that have been shown to be false and baseless. So instead of the apology I and other readers should be getting from you, you deign to give lectures on proper behavior.
It’s quite some chutzpah you are demonstrating.
“Is water “known?” Could it be that the statement that one cannot patent “water” have something to do with the fact that water is known?”
No. It does not matter.
It’s still water.
It’s still a phenomenon of nature.
It’s still an exception to patentable subject matter.
There is no legal way around this.
The ad hominem fits.
It’s hardly a personal attack, when you deluge the boards with your utter nonsense and refuse to address those who make counter points.
You should be more concerned with what that says about you.
Mr. 7, water is a concept?
Regarding Funk Brothers, http://scholar.google.com/scholar_case?case=15445131955420619562&q=funk+brothers&hl=en&as_sdt=2,5
Funk Brother was concerned with patenting a law of nature, the fact that certain bacteria were not mutually inhibitive. The following passage (p. 130) says it all,
"The qualities of these bacteria, like the heat of the sun, electricity, or the qualities of metals, are part of the storehouse of knowledge of all men. They are manifestations of laws of nature, free to all men and reserved exclusively to none. He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end."
Law of nature and natural phenomena are the same thing.
Mr. Truth, why the ad hominem? Is it always your wont to personally attack those with whom you disagree? What does that say about you?
Mr. Water,
Is water "known?" Could it be that the statement that one cannot patent "water" have something to do with the fact that water is known?
As to the frog, if no one knows of the frog because it exists, or existed at one time, only in the laboratory of the inventor, how can one say that the chemical found in the frog is not subject to being patented on the theory that all men have a right to the frog chemical even though the only frog that has that chemical is owned by the inventor, who does not want to share?
Mr. Dish, all case authority is to the contrary. ALL.
Malcolm, just in case I was not clear, I was talking about the man-employed process to create the claimed composition in the first place. Your hypo suggested 28 steps.
How nature makes the same composition is irrelevant. It also does not matter if the composition were accidentally made by other before the inventor.
The only question pertinent is whether the claimed composition was known, whether how to make it was known and whether its utility was known. Cf, Tilghman v. Proctor, http://scholar.google.com/scholar_case?case=16571243265392971238&q=Tilghman+v.+Proctor&hl=en&as_sdt=2003
"We do not regard the accidental formation of fat acid in Perkins's steam cylinder from the tallow introduced to lubricate the piston (if the scum which rose on the water issuing from the ejection pipe was fat acid) as of any consequence in this inquiry. What the process was by which it was generated or formed was never fully understood. Those engaged in the art of making candles, or in any other art in which fat acids are desirable, certainly never derived the least hint from this accidental phenomenon in regard to any practicable process for manufacturing such acids.
The accidental effects produced in Daniell's water barometer and in Walther's process for purifying fats and oils preparatory to soap-making, are of the same character. They revealed no process for the manufacture of fat acids. If the acids were accidentally and unwittingly produced, whilst the operators were in pursuit of other and different results, without exciting 712*712 attention and without its even being known what was done or how it had been done, it would be absurd to say that this was an anticipation of Tilghman's discovery."
Mr. Abusive Poster, why do you like to push people around as if you were a deathcamp guard?
The Supreme Court disagrees with me? I think not.
Mr. List, I can repeat myself, but I shall not, as it is clear you are not listening.
Mr. Source, and you sir are a abusive, would-be bully.
Mr. Dittohead, your taglines and abusive tone tell us who you are.
Mz. Nature, it is of course your intent to be condescending and insulting.
Mr. Almond, the tagline betrays you.
Mr. Almond, since you have revealed your true identity in "Are you even an attorney?" tag line , I know you have no genuine interest in anything I have to say.
Bye.
Why would the Supreme Court even bother GVR’ing if the case was a 102/103 case?
The silence from Ned and MM on this point of law has been deafening.
MM’s prediction is that the CAFC will return a decision saying that the Myriad case is not a case concerning 101 at all
That’s not my prediction. Claim 20 is a method claim and may very well implicate 101.
Nice try, though.
“You obsession with this line of arguing is just as crazy as your old notion that business methods were not patent eligible.”
Ned needs a new hobby since Duplicity, Thy Name Is Ned Heller shattered Ned’s hold on reality by disclosing what the actual holding of Bilski was.
It’s really quite sad.
Water is a concept of a composition of matter. You can get a patent on an application of the concept such as water in a cooling system or rubber curing mold. Someone already mentioned ice cubes I think. But you cant get a patent of the water itself. Wasn’t it Funk Bros that said you can’t get a patent on a new mineral found in the earth? I think water fits in that as well.
“witless”
An apt word for Ned Heller.
Yes water exist as a phenomena of nature. ( Ask any Quantum Biologist )
Yes water exist a law of nature or formula ( Ask Archimedes) or see ( H2O),
Yes water exist as a composition of matter. ( Eat some ice )
However you can’t patent any of the above. You might be able to get a patent on the use of any of the above in a process, providing there is something more than the law of nature and the natural phenomenon itself. Which could be the case if you have integrated the concept in a way that makes the process an inventive application of the concept. ( See Prometheus)
But once and for all Ned,
You can’t patent chemicals in a frog.
You can’t patent water.
You can’t patent anything found in nature.
You obsession with this line of arguing is just as crazy as your old notion that business methods were not patent eligible.
So MM’s prediction is that the CAFC will return a decision saying that the Myriad case is not a case concerning 101 at all and that 102 and 103 are perfectly equipped to deal with the case and will be so decided purely on those grounds.
“And as I’ve already pointed out (and the Supreme Court clerks already know) there is no need for such a test when 102 and 103 are perfectly equipped”
LOL LOL LOL LOL
And as already been pointed out by the Supreme Court itself, the enumerated categories DO NOT get preferential treatment one to another. That is the way of the lawyer’s craft getting in the way.
LOL LOL LOL LOL
Your attempt at passifying yourself is a JOKE.
“Clearly from your example, if it takes a man made process to produce the resultant claimed composition, the claimed composition cannot be the same as the composition that exists in nature.”
Clearly this is flat out wrong.
A composition made by man can be EXACTLY the same composition that exists in nature.
Any one who understand basic chemistry would understand this.
“Why is it that we do not know the answer”
You do not know the answer because you refuse to listen to reason.
It’s that simple.
“The parameters of a novelty test”
You keep on making the same mistake of wanting only to look at 102. The Supreme Cour has been clear on this: you must use 101. The CAFC has been clear on this: the issue is 101.
You and MM are the only two in the entire world running from 101.
It is pure delight that you two were also the ones so exuberantly celebrating Promethues. Exuberantly embracing the WHUT-EV conflation!
You are now reaping what you had sown.
Ned Clearly from your example, if it takes a man made process to produce the resultant claimed composition, the claimed composition cannot be the same as the composition that exists in nature.
I’m not sure what you’re referring to, Ned. Nothing in my example suggests that “it takes a man-made process” to make any of the compositions referred to therein. The patented composition referred to in my example was certainly first “made by man” before its first description in the patent application. But the identical composition was equally indisputably “made by nature” afterwards, unless one wishes to argue that oxidation (for example) is “unnatural.” Such an argument is representative of the sort of logical absurdity that the USPTO and courts will inevitably need to deal with should they choose to adopt any of the ill-considered “product of nature” tests for patent eligibility which have been proferred thus far. As I’ve already pointed out (and the Supreme Court clerks already know) there is no need for any such test when 102 and 103 are perfectly equipped to deal with overly broad composition claims (in stark contrast to method claims which implicate ineligible subject matter, e.g., claims in the form [oldstep]+[newthought]).
Ned Clearly from your example, if it takes a man made process to produce the resultant claimed composition, the claimed composition cannot be the same as the composition that exists in nature.
I’m not sure what you’re referring to. Nothing in my example suggests that “it takes a man-made process” to make any of the compositions referred to therein. The patented composition referred to in my example was certainly first “made by man” before its first description in the patent application. But the identical composition was equally indisputably “made by nature” afterwards, unless one wishes to argue that oxidation (for example) is “unnatural.” Such an argument is representative of the sort of logical absurdity that the USPTO and courts will inevitably need to deal with should they choose to adopt any of the ill-considered “product of nature” tests for patent eligibility proferred to date. And as I’ve already pointed out (and the Supreme Court clerks already know) there is no need for such a test when 102 and 103 are perfectly equipped to deal with overly broad composition claims (in stark contrast to method claims which implicate ineligible subject matter, e.g., claims in the form [oldstep]+[newthought]).
Mr. Neller:
NOT answering the questions put to you: a signature weakness.
Svcks to be you!
The Supreme Court clearly disagrees with you.
Why should anyone take your word over the government body charged with making the official determinations of what the law of Congress means?
You offer nothing but broken and over-extended dicta to create a legal position that cannot and will not match the position clearly stated by the proper authorities.
You cannot possibly convince any sane rational objective person that your view should triumph.
Ned, your posts is confusing and you seem to be all over the place. Well, where do we start? Here let’s just deal with this one problem first.
“The composition was previously unknown and therefor not prior art under 102. ”
Ned, Prometheus made it clear that the “exceptions” to patentable subject matter is strictly a 101 issue, and not 102. Which makes your reliance on Bergstrom to prove Novelty, irrelevant.
Now that you have been defeated on Benson, Leroy V Tatum, and Bergstrom, you have no more case law authority to base your argument on.
So what do you have to say?
Mr. Troll,
“Answer the questions put to you….”
A signature line.
Malcolm, I’m not so sure we really understand the ACLU position. Clearly from your example, if it takes a man made process to produce the resultant claimed composition, the claimed composition cannot be the same as the composition that exists in nature.
That brings us to the next question:
If the exception does indeed exist, What is it?
Why is it that we do not know the answer to this question from the likes of Chakrabarty and Prometheus?
In contrast, we have a wealth of Supreme Court cases, and we have Parke-Davis and we have Merck and we have Bergstrom, that all relate in one way or another to known products, albeit extracted from nature, and whether the claimed compound was patentable in face of the known compound. The parameters of a novelty test vis-a-vis prior art are set forth in the cases.
The outlier is the dicta in Chakrabarty. That cases seemed to suggest a 101 product of nature exception, when, even in that case, the real question the SC answered was whether the manufactured bacteria was different in kind from the known bacteria. That was the question they answered as they had no way of knowing whether the claimed bacteria was novel over all other bacteria in nature — that being impossible to know.
In Myriad, the question really should be is whether the BRCA gene (albeit, not necessarily its sequence) and its association with breast cancer was known. If it was not, the inventors had every right to patent the gene, particularly in the form that results from the man made isolation or purification process.
If it was known, i.e., both the gene and its use, then there is a question of obviousness that has to be resolved.
But that is a question, again, of prior art and of 102/103, not of 101.
“To be patent eligible, they must be applied to one of these. In contrast, compositions of matter are patent eligible by statute.”
From the onset of this discussion it was made clear that the judicial exceptions apply to all of the enumerated categories and apply regardless if all other portions of the patent law being met.
You are going backwards in your reeling attempts to find some foundation for a position that will find none. Repeating once more this notion that compositions of matter are patent eligible by statute is meaningless drivel. Processes are patent eligible by statute. The judicial exceptions apply even if something can be placed in one of the enumerated categories.
You are in a logic freefall.
You are rambling incoherently.
You are a sad and desparate man.
Ned,
Your response of the word word “ditto” concerning your continued choice to ignore the carefully chosen words of the Supreme Court when they chose the word “IMPLICIT” does not make any sense whatsoever.
You are rambling incoherently.
Ned Heller,
Thou doth protest too much.
If “explained to you” is considered being disrespectful, then you do not understand the concept of respect.
For it is exactly accurate and true that I “explained to you” why your views were not appropriate. If anything, your reuse of those views AFTER you have been shown the error of them is disrespectful, as you show no concern for truth by purposefully using known false positions in your legal arguments.
Such would earn you a censure in a professional context.
Do not lecture others on “respect” when you cannot perform with a minimum of that quality.
Further,
Your response ignores the fact that I called you out for misrepresenting the holding of the case.
If you are goiing to engage in talking with other people, the bare minimum common courtesy is to acknowledge when your stated position no longer holds true.
You do not apperantly understand the narrowness of the scope of the holding.
You are trying to take this case as some example of the limits of the judicial exception.
It is preposterous what you are trying to do.
Are you even an attorney?
By your own admissions then, you are choosing case law as authority that does not have the authority you say it does.
Further, you continue to base you legal theory on dicta from this case law. You continue to ignore the holding and its scope.
You continue to ignore the Supreme Court words for real authority. You continue to ignore the meaning of the word “IMPLICIT” and the source of authority for all of the Supreme Court’s judicial excpetions. An answer of “ditto” later in this thread is no answer at all.
Are you even an attorney?
Mr. Almond, clearly the court held that the purified compositions were novel (a 102 issue) even if the art knew that von Euler prostaglandin had something in it that had the beneficial effect.
Here is the precise holding from the opinon:
"whether the claimed pure materials are novel as compared with the less purematerials of the reference." [Emphasis supplied.] It seems to us that the answer to that question is self-evident: by definition,[10] 1402*1402 pure materials necessarily differ from less pure or impure materials and, if the latter are the only ones existing and available as a standard of reference, as seems to be the situation here, perforce the "pure" materials are "new" with respect to them.
Mr. Almond, if you would like me to publish n.7 in its entirety, I will. But the argument was made that the art KNEW that something in von Euler's prostagladin had the disclosed beneficial effect. They just didn't know what it was.
This is an argument about prior art.
Moreover, the court opined, that even if the impure compound that caused the beneficial effect was somehow KNOWN, the court held in the main opinion that the claim to the pure compound to be novel, just as Hand held the purified form of adrenalin was NOVEL in Parke-Davis. The claims were NOT directed to impure forms of the compositions.
All of this is about prior art and not about some witless product of nature exception.
Water is a composition of matter and hardly a phenomena of nature as that term was used by the SC. A phenomena of nature is essentially the same thing as a law of nature. It describes the way things work: e.g., one does this, and that happens.
I urge you to read Bergstrom which had almost the exact facts as the frog example. There the CCPA did not agree that claimed composition was unpatentable based on a product of nature theory. Why? The composition was previously unknown and therefor not prior art under 102. Moreover, there is no 101 novelty test different from 102. If the compostion is not prior art under 102, it is not new under 101.
That ends the debate, or at least it should.
Then the Supreme Court gets lost in dicta in Chakrabarty. Now we do indeed have a mess. But why? The fricken USPTO, that is why? Since Latimer, they believed their was an exception for products of nature. The PTO has never understood the problem all along was prior art.
Back to compositions of matter, they are not the same thing as laws of nature at all. Laws of nature are not machines, processes, manufactures or compositions of matter. To be patent eligible, they must be applied to one of these.
In contrast, compositions of matter are patent eligible by statute. The only statutory exception is prior art and lack of utility. Period.
Ditto.
Mz. Nature, "explained to me?"
Mz. Nature, if you wish to engage in a conversation, do so. But if you insist on being disrespectful, you will get no response.
MM,
This thread at Jun 28, 2012 at 03:34 PM
“Anytime you want to prove that you are not a “d–chebag and a troll” and answer the questions put to you, by all means, have at it.”
““Consider bergstrom held such a chemical patent eligible”
This is incorrect. See my post infra. You are using the legal term “held” incorrectly.
“I can’t satisfy you”
translation: yes, MM is afraid to put forth any type of honest answer.
“Maybe you just need to try harder”
Maybe you should begin to just try.
T O O L
“In the end, I think the simple answer is provided by In re Bergstrom in combination with Parke-Davis”
Ned, your own application of In re Bergstrom falls victim to the very misapplication of dicta to arrive at what you consider the law to be.
See Footnote 7. The holding rests purely [pun intended] and narrowly on the fact that the purified form was different in kind from the unpurified form (and thud, different in kind from that which exists in nature). This falls completely within the doctrine of Product of Nature exclusions from patent eligible subject matter. Further, the purified item was not known prior further sinking your “novel” theory. Had the PGE2 and PGE3 been later found to have existed in nature, (aka been determined to be Products of Nature), then they would have been berift of patent eligibility as the Supreme Court has determined under 101.
“And trace this it’s origins and it has nothing to do with a product of nature exception.”
It does not even have to rise to the debate of what’s a product of nature since water is still a phenomena of nature under your origins theory.
Inventor receives a patent on new composition X, a synthetic chemical which requires more than 20 steps in the laboratory to synthesize. Composition X is proven to be effective in the treatment of childhood leukemia.
Inventor sues infringer for selling composition X ten years after the patent grants. Three years into the case, the infringer argues that composition X is a “product of nature.” He presents as evidence indisputed data showing that when one hundred pounds of composition Y is exposed to air for three years, 0.0001 micrograms of composition X is formed “naturally.” According to your analysis, the patent is now ineligible.
Please introduce whatever caveats you deem necessary to avoid this outcome, if you perceive the outcome to be undesirable. If you believe the outcome is desirable, please explain why. Include in your explanation a description of how your analysis promotes progress in the art of developing useful compositions of matter.
Good luck, suckie.
suckie you have never provided a clear prediction
LOL. I can’t satisfy you, suckie. Nobody can. And we all know why. Hint: rhymes with “bowl.”
Here’s another hint, suckie: if you could articulate a coherent “product of nature” test that doesn’t logically and indisputably lead to the inevitable ineligibility of essentially all chemical compositions (and many other classes of compositions as well), you might begin to recover some of your long-lost credibility in this broad topic area (that would be patent law).
Maybe you just need to try harder. Yeah, that’s it.
LOL.
“”Just as man cannot patent water?”
What is the legal basis for this statement? ”
“Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not pa tentable, as they are the basic tools of scientific and tech nological work.” Gottschalk v. Benson, 409 U. S. 63, 67 (1972).”
Ned: “Mr. Want to See, I have just posted on the origin of the “phenomena of nature” exception. It is the equivalent of a law of nature exception in the original Supreme Court case that first announced a law of nature exception. See, Le Roy v. Tatham.”
Ned,
Okay let’s take your theory to it’s logical conclusion, using your frog chemical as an example. The chemical inside the frog is a natural phenomenon. No one denies that. Now the chemical after being extracted is still the same same chemical and is still a natural phenomenon. No one denies that.
A bio chemist can then describe the frog extract in a formulae and chemical equation but according to your own logic this would be nothing more than a law of nature via Le Roy v. Tatham.
And according to Gottschalk v. Benson, 409 U. S. 63, 67 (1972). ( Natural Phenomenon)
So using your theory of Le Roy v. Tatham ( Law of Nature ) being the equivalent of a ( Natural Phenomenon) the frog chemical is still non statutory subject matter and thus patent ineligible.
See Ned?
Even using your own logic defeats you!
MM,
Since you have never provided a clear prediction, how can anyone ascertain any meaning to your statement of “ It looks like we’re in for a repeat. Good times.“?
Doesn’t such false bravado taste horrible in your mouth?
Do you need someone to hold your hand and find the list of questions from me that you still have failed to answer? Are you that afraid?
In response to my 10:17 post, suckie provides the usual non-answers and wrong answers. That was predictable.
“Desirability” is immaterial.
The issue, suckie, is whether you desire your test to die in the street with a giant bullet hole through its head, or whether you desire to give it another chance at life. In that sense, “desirability” is highly material. But it seems what you desire most is to keep trolling and proving to everyone that you are a dissembling id-jit.
The notion of the judicial exemptions are geared to the limits of the patent system, and not to the promotion of the progress. Your invocation of that notion of promotion is a non-sequitur.
LOL. Maybe you should read the Constitution again. And read the Prometheus decision again. And read the briefs in Prometheus again. And read the briefs filed in Myriad again. And go back and re-read your extensive whining, suckie, about how using 101 to kill [oldstep]+[newthought] claims was going to destroy American innovation forevah. You really do make me pewke, suckie.
An answer you do not like is not a non-answer. Taking the answer to its logical conclusion merely proves that you are wrong. Your questions have been answered.
LOL. Just because you say something is so, suckie, doesn’t mean that it is so. In fact, the opposite is true nearly every time. If I’ve made a mistake in interpreting your “product of nature” test, suckie, let me know exactly where that occurred. Or fix your test. It’s that simple. Otherwise the logical application of your test results in an absurdity that I guarantee you the Supreme Court is aware of and will never, ever abide.
The Court has repeatedly denounced any such special treatment and warned against exactly what you think
LOLOLOL. Remember when suckie was convinced that Prometheus’ claims would be valid under 101 because of the Supreme Court’s warnings in Diehr? That was fxcking hilarious. Sad for suckie, tho. It looks like we’re in for a repeat. Good times.
LOL.
Your reliance on the dicta/holding paradigm has been destroyed.
The authority comes from Congress per the U.S. Supreme Court authority to interpret the words of law as written by Congress. No “holding” is required.
You continue to ignore the carefully chosen word of IMPLICIT.
Ned Heller, you post in vain.
To reiterate, your last two points are completely bogus, and have been pointed out by many people whom you are afraid to directly address.
“I have carefully explained that there is a material difference between “laws of nature” and products of nature. “Laws of nature” are universal. “Products of nature” are local.”
Your careful explanation on this point was rent asunder and you lost this point. Badly. You ended up attempting a falt earth, localized “laws of nature” that was a direct contradiction to your premise.
Don’t mess with me.
The Court has mandated that the IMPLICIT law as written by Congress is the authority that Products of Nature are excluded as patent eligible materials. Further, the carefully chosen words range in examples from simple minerals to complex living things as plants and explicitly state that time is not a factor (through the careful and deliberate choice of the word “new”).
Thus, your continued FALSE reliance on Holding/Dicta subterfuge is shorn of any impact.
This has been explained many times. You have never countered these points.
Your first two points have likewise been dismissed with comments that you have failed to address.
There is no legal requirement that the judicial exceptions, the understanding of the IMPLICIT law as written by Congress cannot mature over time. Your nose has been rubbed in the crrp of your own Freudian slip of depending too much on early case law. The Supreme Court has been clear that Products of Nature are covered by the judicial exception, and the authority for that exception is unchallenged.
Mr. Want to See, I have just posted on the origin of the "phenomena of nature" exception. It is the equivalent of a law of nature exception in the original Supreme Court case that first announced a law of nature exception. See, Le Roy v. Tatham.
The fact that Chakrabarty seems to have gotten this wrong is not that important because that portion of Chakrabarty is mere dicta.
Mr. Lady, with all due respect, you are misstating the facts.
1. My position is that all Supreme Court authority except for Chakrabarty that is alleged to be a product of nature exception actually is a case about prior art. I particularly point out the Wood-Paper case, which is said to be the seminal case on point for the exception. This is the case about prior art, not about a product of nature exception.
2. The cases that a recited in Gottschalk v. Benson, through Prometheus, recite a general list of excepted subject matter, including phenomena of nature. If one reads the case where this exception originated, Le Roy v. Tatham, one sees that this is rather about a law of nature. The case summarized the list exception as laws of nature, natural phenomena, and abstract ideas as "principles in the abstract." The case went on to opine, that principles in the abstract could not be claimed per se, but could be claimed when applied to produce new and useful results.
3. I have carefully explained that there is a material difference between "laws of nature" and products of nature. "Laws of nature" are universal. "Products of nature" are local. Claiming a law of nature automatically claims every application. Claiming a product of nature patented by the first discoverer of that product, prohibits others from making using and selling that product, and not universal truths, for limited time. Prior to the disclosure by the discoverer, the product was unknown and its utility was unknown. If the product was known, then one cannot claim the product per se because it is prior art.
4. The origin of the product of nature exception is the patent office, not the courts. Because the patent office cannot make law, In re Latimer, is not the law. That Congress may have discussed a product of nature exception assuming it was the law does not prove that it was the law. In order to be "law" a court, preferably the Supreme Court, must have held that a claim was unpatentable due to the exception. There is no case like that, not even Chakrabarty.
“Phenomena of nature, THOUGH JUST DISCOVERED, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and tech nological work.” Gottschalk v. Benson, 409 U. S. 63, 67 (1972).
Worth repeating (emphasis added to deflate the “known-ness” subterfuge attempt by Ned Heller).
More carefully chosen words that should not be ignored.
“What is the legal basis for this statement? Prior art? — because water is well known?”
Ned, your attempted (once again) misdirection from 101 to 102 is nullified by the direct words of Prometheus” See the post below at 11:43 AM.
You too, seek to undue your celebration of that decision. You cannot un-dance your jig.
“That is not what the Supreme Court “laid out” in Prometheus”
Au contraire:
“But in its view, other statutory provisions—those that insist that a claimed process be novel, 35 U. S. C. §102, that it not be “obvious in light of prior art,” §103, and that it be “full[y], clear[ly], concise[ly], and exact[ly]” described, §112 — can perform this screening function. In particular, it argues that these claims likely fail for lack of novelty under §102. This approach, however, would make the “law of nature” exception to §101 patentability a dead letter. THE APPROACH IS THEREFORE NOT CONSISTENT WITH PRIOR LAW. The relevant cases rest their holdings upon section 101, not later sections. Bilski, 561 U. S. ___; Diehr, supra; Flook, supra; Benson, 409 U. S. 63. See also H. R. Rep. No. 1923, 82d Cong., 2d Sess., 6 (1952)… And to shift the patent eligibility inquiry entirely to these later sections risks creating significantly greater legal uncertainty, while assuming that those sections can do work that they are not equipped to do… These considerations lead us to decline the Government’s invitation to substitute §§102, 103, and 112 inquiries for the better established inquiry under §101.
MAYO COLLABORATIVE SERVICES, DBA MAYO MEDICAL LABORATORIES, ET AL., PETITIONERS v. PROMETHEUS LABORATORIES, INC., 566 U. S. ____ (2012) at 20-22. (emphasis added).
Those are some carefully chosen words, not to be ignored.
“Never let it be said that trolls like you aren’t the world’s worst hypocrites — you really are!”
Says the biggest hypocrite on the site.
90%.
That’s not AI.
Try again.
“The silence is deafening.”
On point and devastating to the MM-NH agenda.
Thus guaranteed not to be addressed.
“Desirability” is immaterial. I am sure that both Bilski and Benson desired their patents to be judged valid.
The notion of the judicial exemptions are geared to the limits of the patent system, and not to the promotion of the progress. Your invocation of that notion of promotion is a non-sequitur.
The only thing you prove is that you don’t like the logical answer that follows from the law, that you desire to have the enumerated category of compositions treated differently than the enumerated category of processes without any reasoning or logic to back up that desire, and in direct contradiction to what the Supreme Court has said on the matter.
An answer you do not like is not a non-answer. Taking the answer to its logical conclusion merely proves that you are wrong. The fact that you cannot handle being wrong is not a surprise.
Your questions have been answered. It is your turn to answer the questions posed to you. Answer the questions without deceit or guile or prove that it is you that is the “d–chebag and a troll.”
The theory of Ned rests on the matter not being a 101 issue at all. The theory of Ned postulates that there is no Produc tof Nature exception at all.
Ned interjects the strawman of novelty, of Prior Art, of “known-ness,” even though the ACLU attorneys expressly state that such a timing concern belongs to 102 and is thus not at issue in this case, thus could only be considered as dicta.
Ned ignores clear language from the Supreme Court and Congress in order to pin his hopes on dicta from lower level courts, dicta shown to be errant.
Ned ignores the very decision under consideration that orignally and clearly stated that this is a 101 issue.
Ned ignores the Supreme Court of Prometheus which directs that 101 is the guiding section of law.
Ned does not realize how lost and alone he is, adrift with only the newly evangilized Thou-shalt-not-conflate (at least in Malcolm’s backyard) MM by his side.
The two that most celebrated Prometheus are the two most vehemently denying its application intoa na analagous enumerated catagory. Neither have addressed, let alone acknowledged the Supreme Court’s warnings on treating the categories differently. The silence is deafening.
MM’s questions have been answered. No matter how he belittles them, the answers are complete, they are thoughtful and they are logical. And yes, they do lead to the conclusion, the rightful conclusion, that MM and Ned are incorrect.
The only question now remains is will MM and Ned finally return the favor and answer the questions put to them?
There are no more excuses. Nowhere to run and hide.
And trace this it's origins and it has nothing to do with a product of nature exception.
Sent from iPhone
What is the legal basis? Consider bergstrom held such a chemical patent eligible.
Sent from iPhone
“”Just as man cannot patent water?”
What is the legal basis for this statement? ”
“Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not pa tentable, as they are the basic tools of scientific and tech nological work.” Gottschalk v. Benson, 409 U. S. 63, 67 (1972).”
“It is not so clear that I cannot patent that chemical, is it?”
As soon as the examiner, judge, Court or adversary ask, what did the applicant invent?..It will become VERY clear you CAN’T patent that chemical. Even the process for extracting the chemical and using it is going to be tough to get a patent on post Prometheus. But for certain, you can no more get a patent on the frog chemical itself than Prometheus can get a patent on combinations of metabo- lites in the blood.
“But here comes the important part which your tiny brain seems incapable of processing: the treatment of compositions is not at all analogous to the issues in Prometheus because, unlike the examination [oldstep]+[newthought] method claims, the examination of composition claims by comparison to compositions found “in nature” is completely practical and extremely well-grounded legally in 102 and 103 jurisprudence. ”
Some serious QQ and leave my neighborhood out of the 101 question.
Sorry MM, the enumerated categories cannot so treated, as this would lead the lawyers’ art of claim drafting and playing with one category versus another to making the judicial exceptions a dead letter. The Court has repeatedly denounced any such special treatment and warned against exactly what you think “tiny brains” don’t get. Apparently it is your tiny brain that does not get the message from the Supreme Court.
We now return you to more MM QQ.