High Court draws line on attempt to patent law of nature through artful drafting
groklaw.net
groklaw.net
A discovery is not an invention.
This is particularly so for the UK and other Anglo countries.
So, a good decision, indeed.
creative != novel and non-obvious. It's a much lower bar. And that is without considering the 'machine and transformation' side of things.
How long will it take the Federal Circuit to overrule this inexplicable nonsense? The novice reader may find that question to be ignorant, since the Supreme Court is the highest court of the United States. Those well acquainted with the industry know that the Supreme Court is not the final word on patentability, and while the claims at issue in this particular case are unfortunately lost, the Federal Circuit will work to moderate (and eventually overturn) this embarrassing display by the Supreme Court. This will eventually be accomplished the same as it was after the Supreme Court definitively ruled software is not patentable in Gottschalk v. Benson, and the same as the ruling in KSR v. Teleflex will be overruled. I have taken issue with Chief Judge Rader’s statements that nothing has changed in Federal Circuit jurisprudence as a result of KSR, which is not technically true. What is true, however, is that the Federal Circuit continues to refine the KSR “common sense test,” narrowing the applicability in case after case and tightening the ability for “common sense” to be used against an application. We are almost 5 years post KSR and there is still a lot of work left to be done by the Federal Circuit to finally overrule the Supreme Court’s KSR decision. It took almost 10 years to overrule Gottschalk v. Benson, so we are likely in for a decade of work to moderate the nonsense thrust upon the industry this morning.
Indeed, Breyer’s decision is the most intellectually dishonest decision I have ever read, which is saying a lot given the utter contemptuous understanding of patent law displayed by the Supreme Court over the years. It is truly troubling that all 9 of the Justices concurred in what history will regard as one of the worst decisions in the patent space EVER!
Yes, Congress will be asked to step in and rectify this absurd ruling, and they should. Knowing how the legislative branch operates I cringe at the thought of Congress coming to the rescue. The only thing that gives me solace is that the industries summarily executed this morning have an A+ lobbying game, which in Washington, DC means everything.
(http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-pr...)
The worst of it is: Quinn is exactly right (about the Federal Circuit, in every way an organ of the patent lobby). The Supreme Court is simply not in control of our foul, meretricious patent bar. (Of course, if they wanted to start getting in control of it, they're doing it right.)
Did all nine of the Supreme Court Justices just conflate patent eligibility with novelty and non-obviousness? Yes they did! But it gets worse — they explicitly admitted doing so!
and
The Supreme Court also further specifically ignored the Government’s objective, reasonable and until today correct assertion that any step beyond a statement of a law of nature transforms the claim into one that displays patent eligible subject matter
I had to double-check if this was some kind of parody site. Perhaps this could be an extension to Poe's Law?
It's always a lot easier to sound like the voice of reason when you're winning. Defeat, especially unexpected defeat, brings out the inner crazy even in the most reasonable.
But's still surprising to hear the notorious Quinn shrieking like Goebbels in March '45. That quote about the Federal Circuit is just priceless. It is absolutely correct. It's also an admission against interest, which is why you'll never hear anyone say it. Someone at EFF better get the screenshot pronto, before Quinn goes back on his meds...
He's mad because he just got Flooked[1].
Some patent lawyers have gotten too attached to the trick they've been using for decades now where they could just split up the section 101, 102 & 103 obligations to meet them each by parts, and consider anyone confused who supposes that the patent as a whole ought to live up to each of those obligations. Note that word "ought" though: for a long time, the courts were more than happy to let them do that. If he's dismayed, it's because the Supreme Court has the power to turn that particular ought into an is.
But this led to an odd state of affairs where so many bad patents issued where the only novelty they offered wasn't actually patentable and the patentable subject matter had already been invented.
[1] That was a bad pun. But this ruling honestly seemed, at least to me, like a return to https://en.wikipedia.org/wiki/Parker_v._Flook which is quoted extensively.