We've also issued new guidance to examiners to help ensure that patents cover only "new" and "non-obvious" inventions.
That's impossible in the field of software. There is simply too much activity and too many specialties for the patent office to have any hope of being able to reasonably evaluate whether a claimed invention is novel, or whether it's obvious to a skilled programmer in the relevant specialty.
This is one big reason (though not the only reason) why software is incompatible with the patent system. Patent law has a presumption of validity for issued patents, and that presumption is laughable if it's a software patent.
If millions of people carried machine shops around in their backpacks, mechanical engineering would be incompatible with the patent system too.
I still contend that this is a serious problem in a legal system that includes presumption of validity.
(I recently learned that examiners at the European Patent Office have no direct incentives for granting a patent and may internally bill more working time if they reject a patent application instead. However, as rejecting an application requires a lot more research than granting a patent, examiners still might have an incentive to just grant a patent.)
So "new" and "non-obvious" weren't already requirements?? That explains a lot.
On the off chance that you weren't being ironic, novelty and non-obviousness (to one "skilled in the art") have been requirements for decades.
The author of "we've issued new guidance" is either playing you for a sap or doesn't know patent law.
Ah, another person who doesn't remember when good metal shops in school were nearly universal and even the drones took shop and passed when that meant something.
And yes, it was relatively easy to get the equipment and start making things.
Everyone please sign this petition. The sign up process sucks but it will be worth it to make the Obama spin machine have to respond to this.
How out of character for the Obama administration.
Fixed that for you.
This can only be handled by Congress. They say that. It's a perfectly reasonable response.
Just as important, the president can use the power of his office as a "bully pulpit" to lead his party and the country on this critical issue.
Yes, I suppose Obama could start a push to change software patents, but frankly, there are more important things for him to deal with at the moment.
Congress has still not clarified this question. What should be followed is Supreme Court precedent, i.e. Benson, Flook, Diehr. Theoretically, that's the law until Congress says something different.
The word of the Supreme Court should be actual law, not just theoretical law. It's up to the executive branch to direct the USPTO to follow that law. Patents should be examined consistent with Supreme Court precedent.
I wasn't aware of that. However, I suspect that legally, Congress must clarify that before it comes into force as law. But I don't know, the Supreme Court is a funny thing. Good question for a lawyer...
If the circuit courts were flouting the judgment of the Supreme Court as blatantly as you allege, how come the Supreme Court hasn't granted certiorari on a suitably iconic case and reiterated its judgment in even clearer terms? It's not like there is any rule that prevents that, a grant of certiorari only requires 4 justices to sign on.
I laid out clearly why I think what I think about Benson, Flook and Diehr in http://ourdoings.com/ourdoings-startup/2011-07-28 and I have yet to see a similar outlay of the arguments for an opposing view.
If I've neglected a question about standards of review, I apologize. Please repeat it.
I'm on my phone at the moment and don't really have the time to write a long article in any case; but in a nutshell I think you are making too many assumptions about the meaning of the SCs words without considering their meaning as legal terms of art.
After 10 unsigned days, excluding Sundays, bills become law, unless Congress adjourns before the 10 days expire, at which point it is automatically vetoed—the so-called “pocket veto”: http://en.wikipedia.org/wiki/Pocket_veto
At town halls, even when he gets a coherent question, he'll go into "let me explain the situation to you rubes" for so long that when he's done talking he's only explained the problem and offered no solutions.
They say things like (not a quote) 'we need to balance both sides' etc even when the idea is truly stupid.
Only a few politicians have some balls to make a decision upfront.