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October 24, 2016

Comments

You will not have the anti-software people even attempting a workable model.

You will have either of three things:

A call for an across the board de facto ban.

A call for those wanting what the words of Congress already provides to come up with some "compromise" (shuffling the work to those that already believe in the importance of software innovation).

A call to partake in new fantasies unconnected to the law, its history, or to the plain facts of the software arts.

Hey Michael,

With all due respect, I completely agree with what Gene Quinn said on IPWatchdog: Mayer needs to step down IMMEDIATELY. What he says in his concurring opinion in Intellectual Ventures is embarrassing for its judicial overreach and failure to be governed by the rule of law. A similar comment could be said of SCOTUS in terms of how it interprets and treats 35 USC 101: writing in exceptions where none are stated in the statute.

Well, this certainly isn't the first time that an author at this blog engaged in bizarrely excessive denial about some pretty basic propositions. We all remember Kevin and his backflips prior to Prometheus, right?

http://www.patentdocs.org/2010/12/patent-eligibility-and-in-re-grams.html

And the issues that Mayer is driving at are (surprise!) closely related. The best Kevin could do was admit that, if he were dictator, he'd prefer a patent system that allowed entities (including the government, apparently) to use patents to control who gets to communicate what information over existing communication lines.

And now Mike Borella is here to tell us that *of course* there's not First Amendment issue here.

In the forseeable future, Mike's post will be a fun post to look back upon and chuckle over. Positively quaint!

This part is probably the most amusing of all:

"hopefully, it will not gain traction"

LOL It's already way too late for that, Mike. Maybe get out of your bubble sometime? Mayer didn't just make this stuff up yesterday, you know.

The biggest problem with your post, Mike, is so obvious that it's painful to have to point it out to you. Mayer's First Amendment concerns don't rise from patents on communciation *technology*. They rise from patent claims that recite only existing technology and then layer on top of that recitation "limitations" about what/when/how information is communicated with that technology, or between whom. There are a lot of these patents out there, they are asserted all the time, and they are ineligible junk. Ask yourself: how on earth did we get to a point where abstractions like "authorization" are deemed to represent some non-abstract "structural" limitations worthy of patent protection? Do you know the answer, Mike? If not, I suggest you think about it a bit. Perhaps then you won't be surprised when those types of patent claims are buried forever. That day is coming soon.

Mike: "The widespread distributed denial of service (DDOS) attacks that made a significant number of Internet services unreachable on October 21, 2016 is just one example of how a lack of the proper communication restriction technologies can impact tens of millions of individuals."

The idea that "granting *more* patents on methods of restricting access will prevent future service denials" is so incredibly ridiculous that I can literally hear Mike Borella's credibility crying as it swirls down the drain.

"A call to partake in new fantasies unconnected to the law, its history, or to the plain facts of the software arts".

I appreciate the shout-out.

As to the merits: I think Michael got off track in getting away from method patents that result in pure information, because it's the free flow of information that implicates the First Amendment.

Mayer was sloppy himself in conflating communications tools with communications content; tools should always been eligible while content either should never be eligible, or in my scheme, only eligible when consumed by non-human actors.

Look at Sequenum v. First Amendment. You use a prior art invention to look at something, and if you see what you are looking for (that you now know to look for because of the patent's disclosure) it's an infringing act to tell someone else what you have seen.

That's the argument, not a strawman about firewalls and such.

PS anon, I know more about the software arts than you do.


One foot in the tech world and a blind disregard for the legal world simply does not compare to one foot solidly in each.

Your "passion" from your tech side (personal tragedy) is a DIS-service with your fantasies regarding the law.

I'm not in the legal world; if I had designs on that I would go to law school. Instead, I'm a member of the tech community/system user who has some big problems with the system and a few ideas to help fix it.

The essence of achieving political change is steady advocacy and pragmatic choices about messaging content, forum, and esp. coalition building.

When you start hearing my stuff from other people, you can note the first steps from fantasy to reality.

"Would patents aimed at allowing only one specifically-identified person to engage the trigger of a firearm (see, e.g., U.S. Pat. No. 5,953,844) implicate the same?"

If the patent doesn't affect what prior art gun owners can do with their guns, I don't see a problem.

But here's a little hypothetical for you that's a bit closer to the subject, Mike. Imagine the PTO grants a claim that provides exclusive rights to "A computerized display, wherein said display provides price comparisons between weapons, wherein at least one of said weapons is sold in the same state in which said display is located, and wherein at least one of said guns comprises a barrel consisting of between 10-15% titanium."

This is a typical "do it on a computer" patent that implicates the First. If you like, we could salt in "specific rules" to the claim so it complies with your wonderful McRo decision. But the PTO grants patents like this all the time.

Now imagine that this patent is asserted against the NRA which provides such displays over its webpage (perhaps the patent is owned by the government, or maybe its owned by the Dove Lovers Society). Assume it's deemed non-obvious. How does this play out, do you think? You think the patent owner is going to win because "technology"? You think the First Amendment doesn't apply to this type of situation? C'mon.

You can run, Mike, but you can't hide. You need to deal with the issue because it's not going away. Ask Kevin about his experience.

This is what I like to call an "I wish someone would invent . . ." invention. In this case it is "I wish someone would invent [a way / a machine] [to screen / that screens] computer data that is being transferred over phone lines for viruses, and [removes / can remove] the viruses."

If a claim can be easily recast in the "I wish someone would invent . . ." format, then it just an idea and not an invention.

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