Bonum Certa Men Certa

Asking the USPTO to Comply With 35 U.S.C. ۤ 101 is Like Asking Pentagon Officials to Pursue Real, Persistent Peace

Related: Michael Frakes and Melissa Wasserman Complain About Low Patent Quality While Watchtroll Lobbies to Lower It Further

What bombs do These cost $132,000 each about 60 years ago (more than $3 million by today's money)



Summary: Some profit from selling weapons, whereas others profit from patent grants and litigation; what's really needed right now is patent sanity and adherence to the public interest as well as the law itself, e.g. Supreme Court (SCOTUS) decisions

THE SCOTUS ruling on Alice more than 4 years ago ought to have sufficed. It ought to have stopped software patent grants in the US. Sadly, however, parties often need to appeal to the Federal Circuit (very expensive) in order for such patents to be intercepted; sometimes a Patent Trial and Appeal Board (PTAB) inter partes review (IPR) would suffice, but not always. Then there are overzealous courts like the tribunal of ITC, which impose sanctions even in defiance of PTAB. For small businesses in particular, PTAB is all they can afford. Embargoes to them may mean life or death. They may declare bankruptcy overnight.

"Then there are overzealous courts like the tribunal of ITC, which impose sanctions even in defiance of PTAB."In spite of Mayo, another SCOTUS decision that shaped 35 U.S.C. ۤ 101, the USPTO is still granting patents on life itself (the EPO increasingly does this too, in arrogant defiance of the EPC). Here is a press release that is only a few days old:

Inscripta Granted Patents for CRISPR Gene-Editing Systems



Inscripta, a leading gene-editing technology company, today announced two significant milestones. First, the USPTO granted Inscripta its first patent covering systems using MAD7, the company's first free CRISPR enzyme, as well as patent coverage for systems using another MADzyme, MAD2. Second, Inscripta released new data run by external partners showing MAD7 can edit mammalian cells.

"Today marks a major step forward in the gene-editing revolution we started seven months ago when we released our own, unique CRISPR enzyme (MAD7)," said Kevin Ness, CEO of Inscripta. "We and our partners have shown that MAD7 is an effective tool in editing microbial and mammalian cells. All researchers, both academics and industrial scientists alike, can use MAD7 confidently, and Inscripta is committed to providing a license to its related patents for customers to perform free research and development using the enzyme."


Why was this granted? Need someone petition PTAB now (IPR)? Does someone have the financial incentive to do so? We sure hope so. Otherwise we need to wait for some court battle, knowing that Inscripta might prey on small companies that simply cannot afford court battles (and would rather shell out 'protection money'). This kind of patent would do no good; if facilitates nothing except shakedown (a form of extortion) or patently frivolous litigation. The US does not, in principle, allow CRISPR monopolies. There are SCOTUS precedents to that effect.

"This kind of patent would do no good; if facilitates nothing except shakedown (a form of extortion) or patently frivolous litigation."Cellspin Soft, Inc. v Fitbit, a case that we mentioned days ago in this post, is now being covered by Michael Borella (McDonnell Boehnen Hulbert & Berghoff LLP) in Patent Docs (reposted here, maybe for a fee so as to appear more widely). Here's the part relevant to 35 U.S.C. ۤ 101 although the more interesting angle is the possibility that the plaintiff will get punished for frivolous litigation. Quoting Borella:

Cellspin sued Fitbit and thirteen other defendants in the Northern District of California alleging infringement of U.S. Patent Nos. 8,738,794, 8,892,752, 9,749,847, and 9,258,698. The defendants filed a motion to dismiss, alleging invalidity of the patents under 35 U.S.C. ۤ 101.


As we said some days ago (for the second time), we hope this case can become a deterrent against frivolous litigation in the US, but we can't quite count on it. Many courts, especially the lower ones, don't pursue fact-finding. Instead they let juries decide. It's pretty silly to do patent trials by jury, for reasons we've explained many times before (many in the jury are incapable of understanding the technical details inside patent claims), yet here we are in Mass Engineered Design, Inc. v Planar Systems, Inc. -- the case which now potentially deals with treble 'damages' over alleged infringement. As Docket Navigator put it yesterday:

The court granted plaintiff's motion in limine under FRE 403 to preclude defendant from telling the jury that damages could be enhanced or trebled at a willfulness retrial and rejected defendant's argument that its supplier's indemnification agreement should similarly be excluded.


What does the jury know? These aren't professionals in the said field? It's understandable that juries can decide cases like homicide or drug sale/use, but patents? Seriously?

"If the ultimate goal is justice rather than profit, then the status quo is "unfit for purpose" (i.e. not good enough) and always favours deep-pocketed corporations as well as law firms."In another new development, in Shire LLC et al v Abhai LLC, "[t]The court granted in part plaintiffs' motion for discovery sanctions and sanctioned defendant $1.5 million after defendant disclosed corrected stability dissolution testing data during a bench trial," according to this new Docket Report.

The way things stand at the moment -- and we shall elaborate on that later in the week -- patent justice isn't easy to find in the US. The law is still dominated by law firms (they write the law by lobbying/lobbyists) and patent examiners are better rewarded for granting a lot of patents rather than rejecting most. If the ultimate goal is justice rather than profit, then the status quo is "unfit for purpose" (i.e. not good enough) and always favours deep-pocketed corporations as well as law firms. The latter want eternal war.

Recent Techrights' Posts

GNU/Linux Growing Worldwide (the Story So Far!)
Microsoft is unable to stop GNU/Linux
Red Hat Loves Microsoft Monopoly (and Proprietary Surveillance With Back Doors)
full posting history in RedHat.com
Microsoft-Connected Sites Trying to Shift Attention Away From Microsoft's Megabreach Only Days Before Important If Not Unprecedented Grilling by the US Government?
Why does the mainstream media not entertain the possibility a lot of these talking points are directed out of Redmond?
Windows Has Fallen Below 5% in Iraq, GNU/Linux Surged Beyond 7% Based on statCounter's Stats
Must be something going on!
Read "Google Is Not What It Seems" by Julian Assange
In this extract from his new book When Google Met Wikileaks, WikiLeaks' publisher Julian Assange describes the special relationship between Google, Hillary Clinton and the State Department -- and what that means for the future of the internet
Julian Assange: Factual Timeline From an Online Friend
a friend's account
Breaking News: Assange Wins Right to Challenge Extradition to the US
This is great news, but maybe the full legal text will reveal some caveat
 
Microsoft Windows Used to Have Nearly 100% in China and Now Google Has 50% (With Android)
Will China bring about a faster "fall" for Microsoft?
Pursuing a Case With No Prospects (Because It's "Funny")
the perpetrators are taking a firm that's considered notorious
GNU/Linux in Honduras: From 0.28% to 6%
Honduras remains somewhat of a hotspot
Good News From Manchester and London, Plus High Productivity in Techrights
what has happened and what's coming
[Video] The 'Linux' Foundation Cannot be Repaired Anymore (It Sold Out)
We might need to accept that the Linux Foundation lost its way
Links 21/05/2024: Tesla Layoffs and Further Free Speech Perils Online
Links for the day
Gemini Links 21/05/2024: New Gemini Reader and Gemini Games
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, May 20, 2024
IRC logs for Monday, May 20, 2024
[Video] Just Let Julian Assange Go Back to Australia
Assange needs to be freed
The WWW declares the end of Google
Reprinted with permission from Cyber|Show
Gemini Links 20/05/2024: CMSs and Lua "Post to midnight.pub" Script Alternative
Links for the day
Brodie Robertson - Never Criticise The Linux Foundation Expenses (With Transcript)
Transcript included
Links 20/05/2024: Protests and Aggression by Beijing
Links for the day
Can an election campaign succeed without social media accounts?
Reprinted with permission from Daniel Pocock
Fact check: relation to Julian Assange, founded Wikileaks at University of Melbourne and Arjen Kamphuis
Reprinted with permission from Daniel Pocock
Gambia: Windows Down to 5% Overall, 50% on Desktops/Laptops
Windows was measured at 94% in 2015
Links 20/05/2024: Microsoft Layoffs and Shutdowns, RTO as Silent Layoffs
Links for the day
The Issue With Junk Traffic in Geminispace (Gemini Protocol)
Some people have openly complained that their capsule was getting hammered by bot
Peter Eckersley, Laura Smyth & the rushed closure of dial-up Internet in Australian universities
Reprinted with permission from Daniel Pocock
Brittany Day, Plagiarist in Chief (Chatbot Slinger)
3 articles in the front page of LXer.com right now are chatbot spew
Guardian Digital, Inc (linuxsecurity.com) Has Resorted to Plagiarism by Chatbots, Flooding the World Wide Web With Fake 'Articles' Wrongly Attributed to Brittany Day
busted
[Meme] Bullying the Victims
IBM: crybully of the year 2024
Ian.Community Should be Safer From Trademark Censorship
We wish to discuss this matter very quickly
Microsoft and Its Vicious Attack Dogs (Attacking Women or Wives in Particular)
Sad, pathetic, destructive people
Upcoming Series About the Campaign to 'Disappear' the Father of GNU/Linux
Today we have Julian Assange's fate to focus on
A Month From Now Gemini Protocol Turns 5
June 20
Colombia: From Less Than 0.5% to Nearly 4% for GNU/Linux
it's not limited to this one country
Rumour: Well Overdue Red Hat Layoffs to be Announced in About 3 Days
we know they've planned the layoffs for a while
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, May 19, 2024
IRC logs for Sunday, May 19, 2024
Gemini Links 20/05/2024: Updated Noto Fontpacks and gemfeed2atom
Links for the day
GNU/Linux in Georgia: Looking Good
Windows down from 99% to less than 33%
Tomorrow is a Historic Day for Press Freedom in the UK
Take note of the Julian Assange case
Hiding in a Forest Without a Phone and Hiding Behind the First Amendment in the United States (US)
some serial defamer is trying to invert the narrative
Links 19/05/2024: Iran's President Lost in Helicopter Crash, WikiLeaks’ Julian Assange Awaits Decisions in Less Than a Day
Links for the day
Links 19/05/2024: Microsoft Investigated in Europe
Links for the day
4 Old Articles About Microsoft/IBM SystemD
old but still relevant
Firefox Has Fallen to 2% in New Zealand
At around 2%, at least in the US (2% or below this threshold), there's no longer an obligation to test sites for any Gecko-based browser
Winning Streak
Free software prevalence
Links 19/05/2024: Conflicts, The Press, and Spotify Lawsuit
Links for the day
GNU/Linux+ChromeOS at Over 7% in New Zealand
It's also the home of several prominent GNU/Linux advocates
libera.chat (Libera Chat) Turns 3 Today
Freenode in the meantime continues to disintegrate
[Teaser] Freenode NDA Expires in a Few Weeks (What Really Happened 3 Years Ago)
get ready
GNU/Linux is Already Mainstream, But Microsoft is Still Trying to Sabotage That With Illegal Activities and Malicious Campaigns of Lies
To help GNU/Linux grow we'll need to tackle tough issues and recognise Microsoft is a vicious obstacle
Slovenia's Adoption of GNU/Linux in 2024
Whatever the factor/s may be, if these figures are true, then it's something to keep an eye on in the future
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, May 18, 2024
IRC logs for Saturday, May 18, 2024
Links 19/05/2024: Profectus Beta 1.2
Links for the day