Saturday, December 15, 2012

The Connecticut Shooting and the Amish


The tragic incident in Newton, Connecticut is on my mind.  

We've had several such incidents this year -- frequency seems to be going up.  I wonder why.  

I have to think it must be the economy: frustrated people with no where to go building up pressure.  The pressure destabilizes emotionally unstable people. 

It makes me think back to when I was an associate at Kenyon & Kenyon, and I was doing litigation support for a case involving recipes for cookies.  This work curiously involved my going to interview Old Order Amish and Old Order Mennonite people about their cookie recipes.

It was a strange juxtaposition, the patent attorney from New York City with the fancy education, and the simple people who don't want education past the eighth grade, and who reject technology -- or at least some technologies.

They turned out to be far more intelligent than I had expected.  They told me that one of their problems with technology was that it put people out of work, and they felt that work was a good thing to be doing: good for people psychologically as well as financially.  They particularly objected to automating people out of agricultural work, naturally.

Hard to argue with that.

Sort of a challenging assignment for a patent attorney, talking with people about that -- eh?  Oh, did I mention that some of them were in Canada?  

I wonder, when I see these mass shooting incidents, most of which involve men with work problems, whether the Amish don't have a very good point.

Saturday, December 1, 2012

What is wrong with Gottshalk v Benson


I have the feeling that people are unlikely to read my entire brief from Bilski.  Therefore I am excerpting here just the part that criticizes Gottshalk v Benson, so that people can find it more easily.

GOTTSHALK V. BENSON[X]
This seminal case in the field of patentable subject matter was decided with an opinion written by Justice Douglas.  When the undersigned was first learning about patent law, she heard patent attorneys sniping rather cynically about Justice Douglas, opining that the approach of Justice Douglas towards patents was “The only valid patent is one that has not been reviewed by this court.”  Perhaps attorneys did not say so in court papers, but they said so to each other.

The Benson case contains a number of statements that invite clarification or repudiation. 

Anxiety about the idea of patent monopoly manifests, e.g. “The end use may (1) vary from the operation of a train to verification of drivers’ licenses to researching the law books for precedents and (2) be performed through any existing machinery or future-devised machinery or without any apparatus…” 408 U.S. at 68

Some of this language seems to contradict the opinion’s later conclusion that the algorithm had no practical application outside a digital computer. 

Additionally, the anxiety expressed here about breadth of claims really has nothing to do with subject matter.  If one imagines hypothetically the first inventor of the carpentry nail, for instance, such an inventor could get a patent that would cover a nail, whether that nail were to be used in constructing a house, constructing a boat, scratching the surface of a soft material, or cleaning dirt out of a crevice.  This is the nature of a patent, to give the inventor broad scope of protection – and, yet, if one were to apply the reasoning of the above paragraph, one might strike down a patent on such an original mechanical device out of fear of its scope.  This would defeat the whole purpose of the patent law.

Another statement in Benson is “A digital computer, as distinguished from an analog computer, is that which operates on data expressed in digits, solving a problem by doing arithmetic as a person would do it by head and hand.” 409 U.S. at 65.[xi] Perhaps some computer scientists thought this was  true at the time, but experts in artificial intelligence and neurology no longer believe that computers think like people, at least when using the type of program that was at issue in this case[xii].  People may have in their heads some illusion that they are thinking the way that computers process data, but this is not at all a complete explanation of the mysterious workings of the human brain.

Another statement from Benson is:
We have, however, made clear from the start that we deal with a program only for digital computers… The mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that if the judgment below is affirmed, the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself.  409 U.S. 71-72
These assertions recognize that the invention can only be practically used in a computer and then jump to the conclusion that the entire algorithm is pre-empted.   This reasoning, operating in conjunction with the belief stated earlier that computers think like people, gives rise to the disturbing implication that software related inventions include human thought, “pre-empting the entire algorithm” — that if computers think like people, then a claim reading on a computer processing reads on a person thinking.  Such a leap of logic would be a clear fallacy.  If one starts from a premise that an airplane flies like a bird, one should not therefore conclude that a claim reading on an airplane flying would read on a bird flying. 

Moreover, there remains the inconsistency between the one statement saying that the claim reads on a person and the other statement that says the reasoning is motivated by the fact that the algorithm has no substantial application outside a computer.  Indeed, no art having apparently been cited, it would appear that no one was motivated to attempt this rather cumbersome representation of decimal numbers prior to the arrival of computer storage with its binary nature.

Another sub-optimal aspect of this opinion is a failure to make a distinction between two very different claims.  Claim 13[xiii] could conceivably have read on a human working with head and hand.  Claim 8[xiv], on the other hand, recited the use of a shift register.  A shift register is a piece of electronic equipment that can only be used with other electronic equipment, such as sources of power, electronic data signals, and clock signals.  A shift register absolutely and categorically cannot be used by a human’s naked hand.  This is physically impossible.  The failure of Benson’s insufficiently considered opinion to recognize the distinction  between these two claims has given rise to much later confusion.

There seems to be a prejudice against electronic devices in both Benson and Morse.  Patent attorneys, with their scientific training, have studied Newtonian mechanics[xv] together with Maxwell’s Equations[xvi] regarding electricity and magnetism in the same physics courses with the same physics professors.  They have seen, in quantum mechanics, how subatomic wave/particles — surrounded mostly by empty space — cooperate to create classical mechanics, electricity, magnetism, and radiation — allowing one form of physical phenomenon to be transformed into another: matter into energy and energy into matter[xvii].  Those thus trained have no philosophical rubric with which to distinguish electrical and mechanical devices one from the other logically, rendering the distinctions between the two categories from the point of view of patentable subject matter unjustifiable.


Endnotes:

[x] Gottshalk v. Benson, 409 U.S. 63, 172 U.S.P.Q. (BNA) 673,  (1972)
[xi] The aspect of computer software that looks like mathematics, namely its source code, belies the fact that upon compilation and execution that software actually becomes a configuration of a hardware device. see e.g. “Dissent of Commissioner Hersey” to the report of the National Commission on Ne Technological Uses of Copyrighted Works” at Ch. 3 (CONTU) (1978) http://digital-law-online.info/CONTU/contu14.html.
[xii] cf  M. Minski, “Why People Think Computers Can’t”, (MIT, Cambridge, 7/6/2005)) http://aleph0.clarku.edu/~jbreecher/public/2005_Can_Computers_Think/Minsky-WhyPeopleThinkComputersCant.pdf  (Describing how early computer programs were quite different from human thought and how researchers are trying to make them closer);  J. Bryner, “Greatest Mysteries: How Does the Brain Work?” (Live Science, Au., 2, 2007)  http://www.livescience.com/strangenews/070802_gm_brain.html (explaining that scientists still do not know how the brain works, because of the complexity of neurons, so it would be difficult to conclude that binary electronic circuits such as are found in a computer actually work “like” the brain)
[xiii] “A data processing method for converting binary coded decimal number representations into binary number representations comprising the steps of—
“(1) testing each binary digit position i , beginning with the least significant binary digit position, of the most significant decimal digit representation for a binary ‘0’ or a binary ‘1’;
“(2) if a binary ‘0’ is detected, repeating step (1) for the next least significant binary digit position of said most significant decimal digit representation;
“(3) if a binary ‘1’ is detected, adding a binary ‘1’at the (i+1)th and (i+3)th least significant binary digit positions of the next lesser significant decimal digit representation, and repeating step (1) for the next least significant binary digit position of said most significant decimal digit representation;
“(4) upon exhausting the binary digit positions of said most significant decimal digit representation, repeating steps (1) through (3) for the next lesser significant decimal digit representation as modified by the previous execution of steps (1) through (3); and
“(5) repeating steps (1) through (4) until the second least significant decimal digit representation has been so processed.” 409 U.S. at 74
[xiv] “The method of converting signals from binary coded decimal form into binary which comprises the steps of—
“(1) storing the binary coded decimal signals in a reentrant shift register,
“(2) shifting the signals to the right by at least three places, until there is a binary ‘1’ in the second position of said register,
“(3) masking out said binary ‘1’ in said second position of said register,
“(4) adding a binary ‘1’ to the first position of said register,
“(5) shifting the signals to the left by two positions,
”(6) adding a ‘1’ to said first position, and
“(7) shifting the signals to the right by at least three positions in preparation for a succeeding binary ‘1’ in the second position of said register.” 409 U.S. at 73-74
[xv] see, e.g. I. Newton, De motu corporum in gyrum (1684); I. Newton, I Newton, Philosophiae Naturalis Principia Mathematica (1687)
[xvi] In electromagnetism, Maxwell's equations are a set of four partial differential equations that describe the properties of the electric and magnetic fields and relate them to their sources, charge density and current density. These equations are used to show that light is an electromagnetic wave. Individually, the equations are known as Gauss's law, Gauss's law for magnetism, Faraday's law of induction, and Ampère's law with Maxwell's correction.
These four equations, together with the Lorentz force law are the complete set of laws of classical electromagnetism. The Lorentz force law itself was actually derived by Maxwell under the name of "Equation for Electromotive Force" and was one of an earlier set of eight Maxwell's equations.  “Maxwell's equations,” http://en.wikipedia.org/wiki/Maxwell%27s_equations (18 February 2009, at 01:59)
[xvii] In the immortal prose of Albert Einstein E=mc2

Tuesday, November 27, 2012

Change in FB policies

This drivel that is going around about the new FB policies is making me insane. Everyone is going hysterical over nothing. 

1) they are asking for your feedback. It's not a final policy. If you don't like it, let them know; 

2) a license means that you are authorizing them to put your material on the site. If you don't want them to put the material on the site, why would you post it? If you 
don't give them a license, then they have to delete it. That's stupid.

3) the license is subject to your privacy settings. You aren't giving over ownership of the property to them. They say that they will delete it if you delete it. A non-exclusive license is not an assignment, which conveys ownership.

Their terms are reasonable and necessary. Stop spreading mindless panic.

Monday, November 26, 2012

Working on a creative business card


I am in the process of creating a new business card.  I decided to do it with calligraphy, which is one of my hobbies.  I'm going to put a slightly paraphrased version of the U.S. Constitution, Article I, section 8, paragraph 8 on the back. 

I kept doing different versions of this clause, not liking any of them.  Now when I look at them, I like all of them.  


                             










This is my current version of the front. 


Right now, I am thinking the 6th one above best matches the front.

Friday, October 19, 2012

Perils of free software

My son, David, is a Stallmanite. This means that he has a religious attachment to free software. 

He recommended "Libre Office" to me for use on my new deskbook, since I did not want to pay for Microsoft Office. I used this software to work on my third novel last summer.

Now I'm back using Microsoft Word for Mac 2011 and trying to process the .rtf files generated by Libre Office.

I had previously noted last sumer that Libre Office deleted a lot of punctuation from the .rtif files coming from WORD, which was a huge problem. Now I am noticing that it inserted Chinese characters going back to WORD.  It particularly seemed to create a sequence that results in WORD for mac 2011 interpreting directional apostrophes and quotation marks as part of the succeeding character.

My son's passion for free software is undiminished and he believes I should abandon .rtf files in favor of open document files. He cites

http://diaryproducts.net/for/geek/microsoft_rtf_specification_nightmare

I have corresponded with Libre Office. They apparently lack Microsoft Word for mac 2011 and therefore cannot reproduce the problem.

On the one hand, I suspect that David is right that Microsoft is doing things to make its file formats indecipherable so that competitors cannot make software that reads them. On the other hand, I value compatibility more than idealism on this issue and feel annoyed with David for inducing me to take on this obscure office suite.

Addendum 11/3/12

My son persists in touting the benefits of free software and cites this:




Addendum 11/26/12

Someone claims that Libre Office 3.6.3 has corrected this problem.  I don't know.

Addendum 12/20/12

I had an old computer around running Windows that had died of a virus.  I had already paid twice to revive it, $200 a pop; and did not want to pay again.  We decided to install Ubuntu on it.  Then we wanted to add a wireless card, so we could interface with our wireless router.  We bought a netis WF-2117.  It doesn't work.  I contacted them.  They say they only support Windows.  Frustrating.

Tuesday, October 2, 2012

A copy of my comment from Judge Posner's recent blog


Here in the USA, we live in an environment where traditionally there have been patents and copyrights.  This legal tradition has encouraged a culture where innovation is valued, because innovators have reaped the rewards of innovation.  In cultures where innovation was not rewarded, innovation was not valued in the same way.  As a result of the culture established here, due to strong intellectual property protection, the USA has traditionally had the best science and engineering in the world.

Software people cite the early progress in the software industry, when patent protection was either not available or not sought, as evidence that patent protection is not necessary.  This is a fallacy.

First, those software people worked in this culture that had engrained encouragement for innovation that came from our history of intellectual property protection.

Second, there was quite early on a strong move for at least copyright protection to help out those innovators.  Early copyright cases quickly started talking about protecting "structure, sequence, and organization," to try to extend protection as broadly as possible.  This was a bit of a stretch in the law, but it showed a recognition of the importance of rewarding those who created economic benefit to the country.

Problems with software patents have continued because at first the United States Patent and Trademark Office refused to hire patent examiners with a computer science background, so poor art searches were performed.

More problems have been created because the original Supreme Court  case on this topic, Gottshalk v Benson, has severe logical flaws and a nonsensical result.  I encourage people to read my brief in the Bilski case for more discussion of that.  My brief is up on my blog.

The nonsensical opinion in that first case has resulted in extensive legal uncertainty and much litigation, leaving the entire field of patent protection for software unsettled for almost half a decade.

Have nots always want to take from haves.  People who don't have money want to take money from people who do.  People who don't have houses want to take housing from people who do.  People who do not have intellectual property want to take it from those who do.   I find this ethos repugnant.

Patents need to be whole heartedly endorsed by statute and the entire line of cases stemming from Gottshalk v Benson needs to be overturned.  

Moreover, the idea that mathematics is not an invention also needs to be overturned.  

Tuesday, September 18, 2012

Ernestine C. Bartlett

Just a quick note on the passing of my colleague, Ernestine Bartlett, obituary here

http://www.legacy.com/obituaries/lohud/obituary.aspx?n=ernestine-conner-bartlett&pid=159874162#fbLoggedOut

She, like me, was a patent attorney at Philips Electronics North America Corporation.  We worked together for at least 10 years.

She was always beautiful, elegant, warm, and charming.  She was a classic lady, the sort of person everyone liked.   In her legal advice she was well-informed, cautious, conservative, and by the book.

Gone too soon.

Friday, September 14, 2012

My Viennese grandmother's recipe for Linzertorte


Most of the time, if I can ever find Linzertorte in restaurants or bakeries – and it’s hard to find because real Austrian cooking is very rare in the U.S. — it’s not at all the right stuff.  It is very good, when made correctly.  If made with an ordinary pie dough, as I sometimes have had it, it’s just a cobbler.  A cobbler is not a Linzertorte.

For myself, I no longer make it.  It requires ground almonds in the dough, and no one in my family other than me is willing to eat nuts, and I don’t eat desserts at all any more, so I hope some of you out there will be able to enjoy it. 

Linzertorte

Please note measurements are given in weights in this recipe, which is common in European recipes.  The weights were originally metric, but my mother (who was a proper American WASP of the old school) converted them to English measures, so that we could make them in the United States.  The way we measured ingredients — which are commonly measured in cups in the United States — is that we would put a paper plate on a small postal scale.  Then the postal scale had to be readjusted to zero, with the paper plate on it, so that it would give correct readings.  Then we would sift or place the ingredients onto the paper plate.  Actually we used a separate paper plate for each ingredient that needed to be measured. 

Alternatively, if you had a digital postal scale, I suppose you would have to subtract the weight of the paper plate from the total weight in order to get the proper weight of ingredients.  Nowadays, a food scale can be zeroed down to ignore the weight of a plate.

I seem to recall that this recipe may actually have made more than one Linzertorte, possibly one and a half.  It may depend on the size of the pie plate or cake pan that you use or how thick you make the crust.

  • ten ounces all-purpose flour, sifted
  • ten ounces butter
  • 5 ounces granulated sugar, sifted
  • five ounces ground almonds
  • ½  ounces unsweetened or semisweet chocolate, grated  (I think Linzertorte does not necessarily have to have chocolate in it.  But I fail to see why anyone would want to skip the chocolate.)
  • ½ teaspoon of cinnamon
  • juice of a whole lemon
  • peel of the same lemon, using just the thin yellow part, not the white part, grated or hashed
  • 2 egg yolks
  • one jar fruit preserves, preferably raspberry or apricot

The chocolate must be semisweet or bitter.  On no account should milk chocolate be used.  The chocolate needs to be grated.

If the almonds are not already ground, they should be covered with boiling water.  Then let them stay awhile in the water until the peels come off easily.  Then grind them.

Cream butter and sugar together.
Then add eggs and seasonings.
Mix the flour in in parts

All these ingredients have to be kneaded  (My grandmother said either on the kitchen sideboard or on a special wooden board.  I’m not sure why she added this.  I don’t see why you couldn’t knead it on the table, but you might want to use wax paper under as it can get a bit messy when soft, while you’re kneading it.)

When you feel that the paste is ready  (well blended), you wrap it in cloth and put it in an icebox for at least two hours.  You can also make it the day before you bake.  Indeed, I seem to recall that, since the recipe made more than one Linzertorte, there was often a ball of dough left over in the refrigerator for a second one another day.

You need a rolling pin and a greased pie plate (My grandmother said “cake plate,” but her English was not so very good, so I suppose she really meant “pie plate.”  A pie plate was certainly what my mother used.)  Roll out the dough to about a quarter of an inch thick (actually my grandmother did not say how thick, but this is my recollection from when I made it), being careful not to let it warm up.  You can measure a piece that fits in the bottom of the pan, by tracing around bottom of the pan on the table with a knife.  Put the bottom in the pie plate.  Then you need to use a part of the dough to make a rim a little less than an inch all around the sides and sitting on the bottom part of the dough.


Then you spread the preserves all over with a knife.

On top of that, you put a grid made of dough, with each individual bar being about a finger wide, and thin, thinner than the bottom.  You start out with a long vertical piece across the middle of the pie plate making shorter parallel vertical ones to the sides.  Then you cut small strips to go horizontal.  The horizontal strips should not overlap the vertical ones, but should just be set between them.



Bake in a medium oven for about three-quarters of an hour. 

Normally this is to be served slightly warm or at room temperature, not chilled, but not piping hot either.

-------------------------

Please let me know if you made this or need help making it.  You can contact me on twitter @AnneBarschall

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Saturday, August 4, 2012

Philosophical musings on the defects of physics

Contaminated with a mathematics that adopts the assumption of the existence of the concept of infinity, physics demonstrates that no physical reality corresponds with this assumption. The universe is large, but finite. Nothing is infinitely large. By the time one considers phenomena at the molecular level, and certainly below, matter and energy are quantized. Nothing is infinitely small.

How is this not a reductio ad absurdum?

Some historians assert that the original scientists departed from the concept of a loving, just, and merciful God. They felt that such a God would have to govern the universe in accordance with understandable laws -- the absence of laws being capricious and therefore tyrannical and unloving; the absence of understandability, analogously being capricious, tyrannical, and unloving. 

Departing from these assumptions of consistency, predictability and understandability, scientists began investigating a universe that they believed must behave in accordance with a mechanistic model, ultimately susceptible of mathematical modeling. 

The field of quantum mechanics demonstrates that at a fundamental level physical phenomena are random, and therefore arbitrary and capricious.

How is this also not a reductio ad absurdum?

When I was a physics student, my physics professor baldly stated that the Dirac delta, aka impulse function, had been proven by mathematicians not to exist; but that we were going to use it anyway, because it was useful. 

Negating infinity, but using geometry and calculus based on infinity; continuing to use the scientific model after having proven it false; using mathematics while baldly rejecting it -- is physics not, at its core, a dishonest topic?

When I was a T.A. for a physics course in college, I spent many hours trying to explain to an otherwise intelligent student why, in two dimensional Newtonian mechanics, we were going to break up motion into x and y coordinates. He failed to understand this concept. I came to the conclusion, not that he had a learning disability or was stupid, but that his intuition rejected this model. Indeed, it is odd to suppose that motion can be so decomposed.

You ask why women do not enter science. In the corporate world, women have often been whistle blowers -- pointing out egregious malfeasance by male superiors. Perhaps, in science, women look intuitively at the faulty reasoning that science is laced with and reject it as nonsensical. 


Also at http://tl.gd/im1u4r

Addendum 11/3/12:

I contacted my old physics professor and he denied saying that the Dirac delta had been disproved by mathematicians.  He said that mathematicians have used series of probability distributions to justify it, but he did say that Dirac himself used the function without adequate proof of its existence.

Saturday, May 26, 2012

Mayo v. Prometheus -- a critique


            This writing will focus on how Mayo v Prometheus[i] muddies the distinction between mathematical models and natural phenomena, between human invention and things outside of human invention; and generally rests upon dicta in drawing an unsupportable conclusion.

I There are no “Laws of Nature”
            First, I would like to discuss how the term ”law of nature” is an oxymoron.
            The court, in an unfortunate bit of obiter dictum, equate Einstein’s mathematical statement, E-mc2, with a “law of nature.”  This reasoning misconstrues the essence of science.
            Science involves creating hypotheses, designing observational protocols, performing the protocols, collecting the results, and verifying whether the results tend to confirm or controvert the hypotheses.  Frequently, the hypotheses take the form of mathematical models.
            Mathematical models are useful, because they allow prediction in a generalized fashion.  If confirmed, they enable prediction of a larger number of real phenomena than would a single observation or a set of observations.
            Confusing mathematics and the occurrences being observed is a common error of reasoning.   This error begins with very small children, when we teach them to count on their fingers.  We tell them they have five fingers on each hand.  Many of them come to believe that the number five exists in their hands, when in fact the number is a product of human thought.
            If we look more carefully at each finger, we see that no two are the same.  Each is a unique creation, with its own print, slight differences in shape and angles of joints, differences in mechanical function, and differences in control structure as well.  We designate the number five to describe how we perceive these fingers.  This perception is a characteristic feature of many human minds, not so much of the fingers.
            There are people who have little or no ability to perceive the world in a mathematical fashion.  We think of these people as having a learning disability.  We give them bad grades in mathematics in school.
            Nevertheless, these people may have many other cognitive abilities that show them to be intelligent.  Curiously, despite the obvious intelligence of some of these people, we think of them as having something wrong with them, as opposed to concluding from their very existence that mathematics exists only inside the heads of some people.
            E=mc2 is no law of nature.  It is a mathematical model, invented by a human being, which has proved useful.  Like all mathematical models it could be modified or discarded subsequent to further observation.  Nature, by contrast, will not go away with the model, should the model happen to discarded.
            Scientific theories need not be expressed in mathematics.  For instance, the theory of evolution is expressed in words.  While I personally happen to believe in evolution, many people do not.  They love to point out that this theory could always be overturned in the face of further evidence, which is absolutely true.  Similarly to mathematical models, verbal theories do not exist in nature.  They are ideas that people have about nature that describe the results of observation.
            In general, nature has no “laws.”  People devise laws to help them describe what they observe about nature.  Personally, I see no reason why these human inventions should not be patentable, even though they are mathematical and human thought; however they have nothing to do with the claimed invention in the case at hand.
            It is lamentable that the Supreme Court finds necessary to insert dicta on this subject, and has done so repeatedly.

II Natural Phenomena Are Not Novel -- and serve therefore as poor examples
            The Supreme Court also gives the example of a new plant or mineral discovered in the wild as not being patentable subject matter.  
            These are examples of phenomena of nature rather than “laws.”  
            Moreover, existing phenomena are not novel.  The fact that humans might not have previously known of them does not mean they did not exist.  These phenomena are therefore poor examples to reason from as they are in any case inherently unpatentable.  Referring to them is also lamentable dicta in the area of patentable subject matter.
            These existing phenomena examples are in some sense the converse of the discussion of mathematics and natural laws above.  The fact that mathematics or scientific theories exist in the minds of many people does not mean that these exist outside the human perception of them.  Even the writing of mathematics or theories on paper is not mathematics, absent the ability of the mind to perceive what has been written.  Similarly, the lack of perception of a mineral or plant does not prove its non-existence, nor does the sudden discovery of that same mineral or plant make it new.[ii]
            Natural phenomena exist in nature.  In order for humans to invent something, it must not exist in nature.   
            Reasoning based on flawed understanding of the distinction between scientific theories and natural phenomena is bad enough; but worse, still, these examples seem to have absolutely nothing to do with the case at hand and therefore do not serve as the basis for any legitimate reasoning.

III. The claimed invention is not a “law of nature” or natural phenomenon
            The court says that the claimed invention in Mayo v. Prometheus is a law of nature, but that is not so.  
            The claimed invention relates to the human administration of a man made chemical, a drug.  The drug is administered as part of a claimed process, not by nature.  Doses are adjusted based on responses of a natural system, but the responses are not natural, because they are the result of the administration of the drug, which is not a natural phenomenon. Therefore, the consequences of the administration of the drug are not a “law” of nature, but the responses of natural systems to human intervention.
            Let us consider the examples of: downhole equipment, which determines the existence of natural phenomena such as presence or absence of petroleum; and industrial inspection equipment, which determines whether manufactured goods comply with predetermined criteria.  In such cases, a discovery might be made that measuring in accordance with certain criteria would yield useful information.  
            Assuming that the measurement equipment is not new, but only the criteria are new, I do not think that previously anyone would have supposed that such a new use for an old machine would fall outside the domain of patentable subject matter.  Instead, the only question that might have presented was whether the new use was really non-obvious.
            This case therefore has broad ranging unanticipated implications.
            I find disturbing, that the Supreme Court has so frequently come down on the side of unpatentable subject matter.  This creates perpetual uncertainty in the law and their reasoning does not hold up to scrutiny.
            In any case, I find that the reasoning again fails to support the conclusion.

IV. Misguided amicus briefs?
            Apparently, the court was influenced by the submission of amicus briefs from people in the medical field alleging that the patent in question was going to inhibit research.  I have not read these briefs, only the court's characterization of them.
            This particular patent is narrowly framed.  It is difficult to see how it could have a significant negative influence on research in general.   The conclusion that such a narrowly framed patent could have influence on the progress of the broad field of research is another example of obiter dictum.
            In general, one can find non patent holders wishing that they could practice claimed inventions.  Similarly, one finds people without large amounts of money wishing they could be rich.  Does this mean that the court should give just outright give the “have-nots” what they seek?

V. Conclusion
  1. There is no such thing as a law of nature;
  2. Natural phenomena are not novel, therefore any discussion of their falling within the domain of patentable subject matter is dicta;
  3. No natural phenomena are claimed in this application;
  4. The idea that this patent would have an inhibitory effect on research is far fetched.
I find, therefore, that the reasoning in this case is so flawed as to be completely incapable of supporting the conclusion drawn.  Perhaps we can get Congress to overturn the thing?

[this blog was edited Dec. 1, 2012]



[i] decided by the Supreme Court of the United States on March 20, 2012 No. 10-1150
[ii] I gather that there are people who believe that if a tree falls in the forest and no one hears it then it did not make noise.  I am not one of those people.