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« Conference & CLE Calendar | Main | PTAB Life Sciences Report »

July 01, 2018


Another decision from which it is apparent that detail in the application at the time of filing, and claims that are not over-broad and over-speculative, are critical to success.


...and on a different note (more towards the elephant in the room),

"...ordered new briefing to allow for consideration of the § 101 issues in light of Federal Circuit patent-eligibility decisions since early 2016."

As a CAFC judge noted, the use of such cases to WRITE the law is known as "common law" writing.

Of course, the problem with common law writing is that patent law is a particular set of laws that the Constitution has set out so as to have only ONE authorized branch of the government that can be the writer of that law. And that branch is NOT the judicial branch.

This is not to say that Congress cannot share its authority. Such sharing has occurred on a number of occasions throughout this nation's history.

But it is to say that such sharing is very much constrained and requires (among other things) clear avowal and limits pronounced.

As has been (dangerously?) pointed out, the Supreme Court has NOT been granted such authority since Congress created section 35 USC 101 (and carved out from the previous single paragraph, section 35 USC 103).

The use of common law then for writing (in the common law style) the patent law of 35 USC 101 is thus ultra vires.

Will Congress (or for that point, pretty much any attorney hewing to their state ethics oaths) wake up to this FACT?

Sadly, I remain:

Patentable are a paper clip, chemicals, machines, methods of manufacture, the list goes on and on. These kinds of invention were patented because a growing commerce needed them. The patent office is essentially as old as the Constitution but failing because it is not evolving in a progressive manner.
35 USC 101 is illogical in denying all kinds of computing technology and worst of all is harming the US economy and the harm is growing as the legal system blindly invalidates valuable patents and hurts established companies. It is time for change. 35 USC 101 suffers the invertebrate mentality of discrimination which plagued [plagues]sexes and races. The purpose for patents is lost upon the high & mighty court gods who do not budge from playing it safe.
All computing technology must be used with computer hardware that is located somewhere. It is a farce to confuse mental acts with software that acts faster, has more memory, and can do things a human mind never can. Our minds are not driving like software at a super-high speed that operates within a manufactured computer. Biological mental acts and non-biological mental acts are not the same. The later should be patentable.
The patent office is doing unneeded harm to a major fast growing major profit sector of the US economy. It is anti-business and falling in its fundamental purpose. 35 USC 101 needs a big reality check.

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