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« In re Silver -- Texas Supreme Court Recognizes Patent Agent Privilege | Main | USPTO Issues Memo Clarifying Written Description Guidance »

February 27, 2018


This "Oh NO, may affect the future" is nothing more than a mis-perception of part of what makes a STRONG patent system.

A strong patent system operates from both a carrot approach (those things that benefit innovators directly), as well as a stick approach (those things that make infringers cringe).

The adage of "Necessity is the mother of invention" is borne out when that very same "feared" aspect of "Oh NO" is presented, and man's innovations flow to explore heretofore unthunk paths.

Another adage: spare the rod and spoil the child.

By hearkening to the nigh constant lament that patents "are B A D," and ever seeking to weaken patents, we have not only weakened the actual ability to innovate, we have induced a large sub-culture of those who spurn the nature of innovation, and we have strengthened the Efficient Infringers who would much rather compete on non-innovation terms (large, established Big Corp's who have a war chest of other means on which to compete).

We also are presented with ALL THREE branches acting to weaken what instead should be strengthened.

A last adage, the Pogoism of: We have met the enemy and he is us.

(the Royal "We," of course, as some of that "We" have been actively voicing concerns as the current trajectory has unfolded)

Hey Kevin,

A very thoughtful and reasoned discussion on this issue. If only SCOTUS would consider your post here too. But as one of the commentators on this blog would say, "I remain skeptical."

Very Insightful! The Supreme Court is not an administrative agency for Constitutional/statutory issues. I would guess that SCOTUS has humanist concerns that outweigh any technical policy conflicts.


SCOTUS will do what it can get away with.

This stems in no small matter to attorneys who refuse to understand their oath of Office** and place the Supreme Court ABOVE the Constitution.

**one recognized outlier is the Commonwealth of Massachusetts which appears to kowtow to the Supreme Court as a client first, and the Constitution merely secondary.

It's the process category that seems to be the nexus of almost every eligibility controversy.

Mr. Snyder,

That is merely a perception.

This is due - in no small part - to the limitations of the English language, coupled with the fact that innovation in the "Fourth Wave" most easily lends itself to words of action.

Others (patent attorneys) have confused software with the EXECUTION OF software.

Software is not the execution of software.

Software is a "ware," a computer component that by design choice can take the form of any other "ware" (hardware or firmware, for example).

If one were to enforce a certain degree of inte11etual honesty across all debates on the eligibility question, the purposeful obfuscation and dissembling would gut that anti-software movement.

We would return to a rather simple exercise for evaluations under 35 USC 101.

The "two step" would mirror the two steps intended by Congress (and not the Court):

1) Is it roughly (See the Court's closest to the mark views on this in Chakrabarty) fitting into at least one of the statutory categories.

2) Does it meet the decidely low bar for having utility (within the Useful Arts).


All else is muckery.

You can try to keep pounding your square peg anon, but the word software appeared exactly zero times in this article. Medical diagnostic methods may or may not be software based.

It's not about software, it's about what a "process" implicates. To me, it implicates a result, and the nature of that result is where the analysis of eligibility needs to be focused.

Mr.Snyder, it should go without saying (but apparently needs to be six to you), that my comment applies to the same TYPE of argument that is levied against software patents.

Yes, here in the instant case, software is not mentioned.

Can you follow though how the reply addressing software speaks to your noted concern over the statutory category of “process?”

Since you talk about statutory processes I presumed that you were at least familiar with them. I also provided a relevant legal point (Chakrabarty) that you should look into as regards the “at least one” notion of fitting a statutory category

The point I present still inures. If you want to have a dialogue on that point, may I suggest that you gear your reply to some substantive element?

The comments to this entry are closed.

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