Saturday, March 31, 2012

Mayo v. Prome (Noteworthy Commentaries)

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a) Mayo v. Prometheus (blogs, last 24 hours): here

b) Mayo v. Prometheus (blogs, past week): here

More recent noteworthy's are on top of the list:

nn) --Title-- ((Mock Title )) (author m-dd-2012)

17) --Life Will Find a Way-- ((Or Myriad goes for the Madness)) (by Kevin E. Noonan May 30, 2012)

16) --DNA Sequence [is] a Law of Nature?-- ((Or How I learned to stop thinking harder and embraced the Duh)) (by Alison Keeley May 30, 2012)

15) --WildTangent v. Ultramercial - Supreme Court Rejects-- (Robert Moll 5-21-2012)

14) --Supreme Court to Federal Circuit: Fix Ultramerical Decision-- (Julie Samuels 5-22-2012)

13) --Mayo v. Prometheus -- (Anne Barschall 5-26-2012)

12) --The wrong Rat-- (by: Paul Cole 5-06-2012)

11) --Supreme Error-- (Burdick Law 4-15-2012)

10) Mayo v. Prometheus – Some Observations and Opinions (Ryan Alley 3-23-2012)

8) Supreme Court's Ruling against Prometheus Shakes Up Personalized Medicine

7) Mayo v. Prometheus: A looming ‘disaster’ for tech transfer?

6) Three Weeks Later: Attack of the Mayo Zombies (Patently-O)

1. Punishing Prometheus: Part III - Conclusions Masquerading as Analysis

2. “Law of Nature” Bars the Patentability of Determining the Adequate Dosage of a Drug

3. The Prometheus meteorite impacts here (SmartGene v. ABL decision)

4. SmartGenes or Technical-Ignorance Genes? You decide: here

5. Crunched Tech Head (Patent Law 101: What’s Wrong And Ways To Make It Right)

Friday, March 23, 2012

Genuinely Insignificant Thoughts from Genuinely Insignificant Minds (cont'd)

Prometheus Pic

SubTitle: Mayo v. Prometheus or How I stopped worrying and learned to love the Idiocracy)

(The above first link is to all things Mayo v. Promo (a Google search). This following link: here provides the decision in HTML accessible format as opposed to PDF format here: Mayo v. Promo. Left click on image at right to see list of Briefs filed before the US Supreme Court.) Click on summary bullet number to jump to section.

Not-BIO -DH Pic

Not Here Pic

It is the patriotic duty of an informed public to loudly protest when a governmental body, even the US Supreme Court, comes out with a Stinko-da-Mayo result such as this one.

Overview: Sadly, what this post will show is that:

• 1. The US SCt does not know, or intentionally misinforms on what a "patent" is (patents are not self executing monopolies),
• 2. The US SCt does not know, or intentionally misinforms on what function a "patent claim" is supposed to perform,
• 3. The US SCt does not know, or intentionally misinforms on what a "method step" is,
• 4. The US SCt does not know, or intentionally misinforms on what a "Law of Nature" is
• 5. ... (to be continued/updated)

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Why even care?
Because soon they will be hanging a new BANNER,
draped across the entrance to the SCt. Building:
(Not To Be Invented Or Discovered Here)

Bleed Finger Pic Indeed, a claim for "Barbed Wire" recites nothing more than Laws of Nature:

1) A ductile metal bent into shape retains its shape
2) If you bump into a sharp point, you will bleed

American inventors are being slowly bled to death by one unkind SCt. cut and then a thousand more like it: Benson, Bilski, Prometheus, ... and what is next?

Perhaps a blog post that sums up the situation most succinctly (for patent experts) is Patent Doc's lament: "We have met our 'Benson' and its name is 'Mayo' " (paraphrased). For more Patent Doc laments, see here

__________________________ Detailed analysis:

In the "Legal Universe", when the US Supreme court speaks, its words trump the very "Laws of Nature".

On the other hand, in the more humble world of "Science" (should you even be so lame brained as to believe in that most-obvious of "hoaxes" /sarcasm),

(1) Mother Nature always bats last,

(2) always bats first and

(3) is at bat throughout the almost-endless baseball game.

In that game, she often moves in a way that blocks scientists from seeing exactly how (or getting to understand exactly how) Mother Nature bats.

If lucky, they get a glimpse of the ball's trajectory after Nature has cracked her bat against it.

Then they go at it by making up stories, rules, abstract theories about what they think Mother was doing, how she was doing it and what she will do if confronted in the future with similar inputs. (The last part is called predictive modeling --calling the ball's trajectory even before Mother Nature bats its out of the ball park).

Mother doesn't care one owl's hoot about what the scientists' abstract theories say.

She does her thing irrespective of the noises the monkeys make amongst themselves.

Mother has no plans of coming down from the mountain top with stone tablets in hand, merely for the sake of proclaiming her "laws" to one tribe of monkeys or another. No one knows if her laws can even be expressed in a manner that the human mind can grasp. That possibility is one that Mother does not fret over.

Stepping boldly forward into this arena there come the "Magnificent Nine" (M9). These 'Wisdom-spewing' lords and ladies arrive gowned in black robes and steeped in learned chanting of laws of the 'legalized mind'.

They stare unblinkingly at Mother Nature as she stands in the batter's box. They throw their curve straight at her face, fully expecting Mother to step back and to show some humble deference before the awesome powers of the "Magnificent Nine" (M9). They utter legal-eagle incantations about Her "laws". They fail to see that she steps back not. Their curve balls vaporize into hot air before even coming close to Mother Nature's batting position.

• 1. The US SCt does not know what a "patent" is, One of the findings of the Court is this:

Phenomena of nature, though just discovered, [or] mental processes, [or] abstract intellectual concepts are not patentable, as [these three things] are the basic tools of scientific and technological work.” Gottschalk v. Benson, 409 U. S. 63, 67 (1972). And monopolization of [any of] those [3] tools through the grant of a patent might tend to impede innovation more than it would tend to promote it [thus going against the intent of the Constitution: to promote the progress of science and the useful arts]. [bracketed text added]

Let's stop and think a bit more about the words "grant" and "monopolization".

The US Patent Office "grants" a patent by mailing out a stamped document known as "Letters Patent". Skilled practitioners understand that this is merely a ticket into the court room and little else.

So does the "grant" of a patent equal to the grant of a "monopoly" position in the market place?

No. Because if it were true, then every holder of a patent would have an Insta-gram INJUNCTION in hand by mere operation of law. Here as in many other spots within the Mayo. v. Prometheus (MvP) opinion, the Supreme Court chooses to exercise its prerogative of providing the public with misinformation and engaging in "selective amnesia". That's a pity because the general public expects to receive accurate information from SCt. opinions and expects the SCt. to behave as a rational and consistent decision-making body.

In using the word "monopolization" the Court suggests that every holder of a patent already has achieved exclusive ownership of its patent-covered market space. Did Prometheus Labs have such a by-operation-of-law INJUNCTION in hand?

No. That is why Prometheus was suing in a court of law in the first place. It's "granted" patent did not confer onto Prometheus the mythical Insta-gram INJUNCTION. Patents do not inherently mean possession of automatic INJUNCTIONS. This is so because of action by the same Supreme Court that in Mayo v. Prome pretends as if Insta-gram INJUNCTIONS are the reality. In eBay Inc. v. MercExchange the Supremes ruled that injunctions are not automatic:

According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. ...These familiar principles apply with equal force to disputes arising under the Patent Act.

Therefore, by operation of Supreme Court case law, a patent does not equal "monopolization" and the SCt. does not get it right even as this basic aspect of patent law.

(Later if time permits, we will show that everything is a "phenomenon of nature". That phrase makes no sense. The Court probably meant to say "Naturally occurring" [without the hand of man being in it] phenomenon of nature. In contrast to this, "laws of nature" are actually abstract ideas of man about how man currently believes nature works, and no more than that. Therefore, to argue that "laws of nature" are something apart from "abstract intellectual concepts" is to show that one does not know what one is talking about.)

• 2. The US SCt does not know what function a "patent claim" is supposed to perform, Another thing the MvP decision says is:

If a law of nature is not patentable, then neither is a process [[claim?]] reciting a law of nature, unless that process [[claim?]] has additional features that provide practical assurance that the process [[claim?]] is more than a drafting effort designed to monopolize the law of nature itself.

A patent [claim?], for example,could not simply recite a law of nature and then add the instruction “apply the law.”

Einstein, we assume, could not have patented his famous law by claiming a process [where the process claim is one] consisting of simply telling linear accelerator operators to refer to the law [E=mc^2] to determine how much energy an amount of mass [[inside their accelerator magically]] has produced (or vice versa).

Nor could Archimedes have secured a patent for his famous principle of flotation by claiming a process [where the process claim is one] consisting of simply telling boat builders to refer to that principle [(re displaced volume of water)] in order to determine whether an object will float.

The role of a patent claim is not that of reciting something to an audience with the addition of the obvious, that it should be "applied". Instead its role is specifically set forth in 35 USC 112:

The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.

Under strict (non-judicial-activist) construction of the law it is the inventor (the "applicant") who gets to decide what he regards as being his invention through the way he words HIS CLAIM.
Alas in MvP, the activist Supreme Court changed the rules and decided that, no, they will decide what they regard the invention to be. They will decide what are merely insignificant drafting dodges and which words truly give away the inventor's evil intent to block Mother Nature herself from practicing Her "Laws".

When a patent claim is presented, its words have to be construed (interpreted) in light of the specification and how skilled artisans would appreciate the same.

Still under *construction* ... to be continued

3. The US SCt does not know, or intentionally misinforms on what a "method step" is, ...

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• 4. The US SCt does not know, or intentionally misinforms on what a "Law of Nature" is ...

(Left & Right barbed wire images will jump you Back & Forward in section numbers)
(Left & Right barbed wire images will jump you Back & Forward in section numbers)