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June 24, 2010


This coming Monday, June 28, is the last day of the Supreme Court session that started in October 2009. It is also the final day that Justice Stevens sits on the high Court before retiring. The first case Justice Stevens authored was Parker v. Flook, 437 U.S. 584 (1978). Flook tried to patent use of a known algorithm, applied to computerized updating of alarm limits. The claimed method tripped over § 101 as not "eligible for patent protection," as being merely "the identification of a limited category of useful, though conventional, post-solution applications of such a formula." Bilski will also violate § 101, leaving only the question of exactly how the Court will cast the rejection. Pundit Hal Wegner expects the Bilski decision Monday, and puts the odds of Justice Stevens writing an opinion "almost certain," though hedges "the bigger question" of "whether his opinion will be for the majority or whether it will be a concurring or dissenting opinion."

Posted by Patent Hawk at June 24, 2010 8:12 AM | § 101


The New York Times (NYT) was recently running a series about incompetency. More to the point it was about a malady they refer to as “anosognosia”:


Basically it says there are areas of comprehension in which the person is so incompetent that he or she does not know of (or cannot admit to or comprehend) their own incompetency.

When it comes to matters of science and invention, the US Supreme Court has repeatedly flaunted its incompetency. KSR v. Teleflex is but one of many examples. Parker v. Flook came down over 30 years ago and soon we may know whether that was just a fluke or a predictor of greater foolhardiness to come.

But really, we can't fault the 9 Justices of the SCt. for incompetency over their own incompetency when it comes to matters of science and invention. The SCt is merely a reflection of the "wise" Latino or other political power groups lurking in our midst all with their own self-indulgent agendas.

Mother Nature is too wise (and too powerful) to care about the political agendas of the lightly haired apes who call themselves human beings. If they are foolish enough to believe that Mother Nature comes down from a mountain top with a set of nonphysical and "informational" tablets announcing her "laws" (Laws of Nature) then let them do so. If they are clueless enough to stifle the inventive juices of the rare few among them who have half of an analytical and unhysterical brain, then let them do so.

What does it matter? After all, they are just doomed primates rattling around inside the cage of physics and flinging mud at each other in their last hours of desperation.

"Bilski" may not only be a last hurrah for one aged and stuck-in-the-mud judge, it may be a last hurrah for what was once known as Yankee ingenuity. Time is running out and soon it shall tell.

Posted by: step back at June 25, 2010 2:13 AM

P.S. The posted picture of the two "book"ended primates is quite apropos for this topic.

We are all book learned monkeys.

The real question is what book are we reading from, Charles Darwin or Tea Time for Tea Baggers (and Mad Hatters)?

Posted by: step back at June 25, 2010 2:20 AM

One small step back for man...

Posted by: Pedantic Pete at June 25, 2010 2:48 AM


You speak volumes of wisdom, more so than I'm afraid these 9 technologically-challenged Justices when they speak (cringe) on Bilski. In Gottshalk Douglas spoke nonsense about computers. Flook was a disaster where Stevens said that which is unknown is prior art under 35 USC 103. After SCOTUS called software analogous to an architectural blueprint in Microsoft v. AT&T nothing could be clearer than that this Court is unable to understand even basic technological facts. Like Dirty Harry said in Magnum Force, "a man has got to know his limitations." SCOTUS unfortunately don't know (or acknowledge) theirs, and the consequences are monumental and adverse for us in the patent law area. Get out your Ouija board and pray hard that we don't see any more rhetorical nonsense on Monday.

Posted by: EG at June 25, 2010 3:26 AM

It is somewhat myopic to single out the USSCt's ignorance in technical/patent matters.

The technological deficits are characteristic of each level of the entire federal judiciary, which is why USSCt sides with the PTO virtually 100% of the time. (See PatObv essay on this point.)

The technology and patent law are not less complicated than bankruptcy and tax law. Why Congress doesn't implement an Article I judicial system for patent law along the lines of the tax courts and BR courts is beyond me. Basically, you need a court run by people with technological knowledge to develop the facts and take a first shot at applying the law as to validity.

BPAI is already an Article I tribunal; shouldn't take much to extend the concept to patent trial courts. The judges would have to have technical backgrounds, preferably PhD's, and would have power to appoint commissioners to develop facts.

As to claim construction and validity of the patent -- no juries. Juries don't belong in those determinations anymore than judges with BA's in art history do. When the jury gets the case, the claims have been construed and the patent has been found to be valid. All the jury has to do is determine infringement. Interlocutory appeals of claim construction and validity calls to FedCir. No appeals at all to USDC.

This mess needs to be cleaned up first of all at the level where the facts are determined. The heavy technical lifting should be done by tribunals equipped to do it.

Posted by: Babel Boy at June 25, 2010 8:01 AM


You can't determine infringement (True vs. False) unless you first know what the scope and content of the claim is is.

Before asking for judges with technical competency how about we all clamor for patent examiners with technical competency?

Posted by: step back at June 25, 2010 8:24 AM

You can't determine infringement (True vs. False) unless you first know what the scope and content of the claim is is. -- Step Back

Thanks. That is precisely my point. Let those with technical skills do the claim construction and validity analysis. At that point you have developed the scope and content of the claims for the jury and the court understands the patent well enough to explain it to a lay jury.

I agree with your assessment, and that is the source of a lot of the problems. The judge/jury never really understands the invention or the claims or the scope because they are exposed to all the bickering and multiple expert views while trying to remember 10th grade biology or 11th grade chemistry. If you don't know pH from HP, you're just gonna' quietly flip out with all the jargon.

Markman tried to limit this problem, but a non-technical judge doing the claim construction is almost as bad as a non-technical jury, regardless of whether it's fact or law.

Posted by: Babel Boy at June 25, 2010 1:56 PM