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July 15, 2015


"SAP countered that § 101 is generally understood to be an invalidity defense."


Unfortunately accurate because the Royal Nine continues to blip over the explicit language of what 35 USC § 282 say is a proper validity defense (only "conditions for patentability" and not "requirements" of which § 101 is the latter).


Does that not continue on the "Alice " theme, with words meaning what the Court wants them to mean, when they want them to mean what they want them to mean?

How much is enough?


It does (also unfortunately). It also means we no longer have a justice system based on the rule of law, but instead one based on judicial fiat.

The irony, of course, is that many (maybe all) of the patents being shot down under 101 could be invalidated under 103. And this could be accomplished without the intellectual gymnastics required by Alice.


How true.


That would require the Court to recognize the limits placed on it by Congress in the Act of 1952.

And yet the Court still tries to insert "gist of the invention" into its powers of writing patent law by common law technique.

As Justice Stevens recognized (and yet still was not able to break himself of the affliction): bending and mashing the law of 35 USC 101 like a Nose of Wax to "play policy" is just a sign of power addiction.

What we are really seeing here is a power struggle between the branches of the government that make any Justice of the Peace commission look like a minnow next to a blue whale.

Will the pundits recognize what is really going on - and openly discuss it, even spend some (academic) effort on pointing out that the King is parading around without a stitch? Or will those wanting to insert their own policy changes continue in their efforts to broaden and FEED that addiction to the point at which claimed things - things - real non-abstract things, recognized by both parties to a cause (the necessary predicate for court involvement) are merely "Gisted" to erase that mutual-party understanding and the Court declare that the claimed thing really isn't a thing after all, but some UNDEFINED other "thing" that is just "Abstract."

The legal "logic" as it were cannot be treated in a NIMBY manner, or a "polite" manner, constraining that logic to only one art field. Paul Cole attempts to write about what the judiciary SHOULD do, but he is in plain error because he simply refuses to recognize what is actually going on, and refuses to embrace what the logic used really means. That "logic" just does not have the "stop at the facts of this particular case" restraint. That "logic" is like a cancer - uncontrollable at one mere "undesired" art field. Especially an art field - software - that is itself not constrain-able to one single discipline of application.

It's just a fallacy to think that ALL of patent law will not be affected by the atom bomb of using 101 to achieve judicial activism.

Will this stop either the judicial activism OR those who wish to use (and abuse) that activism to achieve their desired ends through the judicial branch instead of through the legislative branch?

Sadly, I remain...

@ Skeptical

A very senior commentator has told me that I allow logic and analysis to get in the way of clear thinking. Make of that what you will.

On the whole, though, if it is a choice between malice and inexperience and inattention to detail, I have found that the latter explanation is usually the correct one.

On Ariosa, my recent posting has pointed out that Judge Reyna's opinion that amplified DNA is a product of nature is, on the face of his own opinion, in error by a factor between 10 exp 3 and 10 exp 6 - i.e. the opinion is based on an appreciation of the facts that is not only wrong but grossly and quantifiably wrong. The lesson we can learn is that when faced with non-technical judges, it is a task for the bar to explain the underlying facts sufficiently clearly and directly for the court to get them right because the judges like to get their facts (and law) right and are likely to take these into account if clearly explained to them.

Rational argument should help even if we are faced with a power struggle and at the moment that is all we can provide.

Mr Cole,

Politely - but emphatically and repeatedly - you are in error if you think that such is ALL we can provide.

That is simply not the type of thinking that took back the US Patent system from a then as well anti-Patent Court in the Act of 1952.

@ Skeptical

It is difficult to see that the 1952 Act changed everything at a single stroke as you suggest. In Graham v John Deere the Court said: "We conclude that the section was intended merely as a codification of judicial precedents embracing the Hotchkiss condition, with congressional directions that inquiries into the obviousness of the subject matter sought to be patented are a prerequisite to patentability." As I remember my US friends telling me, the circuit courts had variable approaches to 35 USC 103, and it was not until the advent of the Federal Circuit that things really improved. That was affirmed by a brilliant and informative talk that Judge Newman gave at Washington University Law School just before the AIPLA annual meeting last year.

I am the last to deny that legislative change might improve things, as also would the appointment of more technically trained judges with experience in patent law to the Federal Circuit. However these are matters of US politics in which I as an alien cannot and should not interfere. When I visit the AIPLA I am not entitled to attend the political fund-raising reception lest I, as an alien, might corrupt the purity of the US political process.

Mr. Cole,

I am not sure I understand your comment about "at a single stroke." The Act of 1952 is what it is. It accomplishes what it accomplishes. Whether or not this is understood or given its due credit is a different matter. Whether or not the Court accepts this, or uses dicta to claw back what it perceives its power base to be is also a different matter.

Please, please, please be aware that our Supreme Court is NOT above the law. Do not partake in the fallacy that just because they have said something, that what they have said is indeed correct (especially things said in dicta, but even things said in holdings).

As to "corruption by aliens," there already is plenty of "corruption" by non-aliens - and what I call "partial-aliens" (that is, multi-national corporations that have both a "voice" in the US AND have no set allegiance as would a true citizen). Verily, it is the "corruption" from within from such entities that have no true national allegiance, whose only allegiance is to their next quarterly profit and who can - and do - relocate cost factors from country to country on a slimmest marginal advantage that the most pernicious "corruption" takes place. It is from this quarter that WEAKENING patent protection, or making such protection a "Sport of Kings" is an ACTIVE pursuit.

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