Category: News
CLS Bank v. Alice Corp was an en banc decision that attempted to set the record straight on 35 USC 101. IT FAILED. The patents in suit deal with settlement risk in financial transactions. The holding can be boiled down to we don’t like patents on software or on financial transactions and we really don’t like patents that cover both.
Is 35 USC 101 Judge by the Claims?
As I tortured myself reading this decision I wondered if 35 USC 101 is really a question about the claims or about the specification? 35 USC 101 states:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
This section does not say anything about the claims and while the claims define the invention they are not the invention. To suggest otherwise is to confuse reality and elevate the draftsman’s art above the inventor’s work. Now you might argue that even if this is true, what is important is whether the claims are directed to statutory subject matter, not whether the specification or the inventor’s actual creation is directed to statutory subject matter. I disagree. If the specification describes patent eligible subject matter and the claims do not, then the claims fail under 35 USC 112(b), not under 35 USC 101.
The CAFC and the Supreme Court are being contradictory when they state that the manner or cleverness of drafting the claims cannot overcome a 35 USC 101 issue and then examine those claims to make a 35 USC 101 determination. They should be looking at the specification to determine whether 35 USC 101 is being met and even then the answer should be that the inventor failed to describe something that meets the requirements of 35 USC 101. If the court determines that the specification meets 35 USC 101 but the claims are not directed to statutory subject matter, then the answer is that the claims fail under 35 USC 112(b). In other words the claims are not supported by the specification.
An example will help clarify this matter. Assume you invent the first LASER. Your patent attorney correctly describes how to make and operate the LASER, but his claims state, “I claim a painting of a woman with an enigmatic smile.” Clearly, the claim is not directed to statutory subject matter, but a 35 USC 101 rejection is inappropriate, because the invention is a LASER. The correct determination is that under 35 USC 112(b) the inventor failed to draft claims to the invention and his claims do not have support in the specification.
If we treated patents as property rights, which they are, we would be wary of invalidating a patent because the patent attorney and the patent office made an error in draftsmanship. But everyone knows that the real answer is that the Supreme Court judges are anti-patents and are just making up excuses to arbitrarily invalidate patents. The Supremes do not understand property rights and their decisions are not based on logic and reason as applied to the law and facts of the case. What matters to the Supremes is getting the outcomes they believe are right in spite of logic, reason, the law or facts.
Nation of Men
The opinion states “Next, the cases repeatedly caution against overly formalistic approaches to subject-matter eligibility that invite manipulation by patent applicants.” P 16.
This is the bastion of lazy thinking. Imagine a physics professor who cautioned against overly formalistic thinking to physics problems. Is too F=ma formalistic?
“Bright-line rules may be simple to apply, but they are often impractical and counterproductive when applied to § 101.” P 17.
Sure the law is special and clear rules in law are counterproductive. Whether your invention is patent eligible does not depend on logic and reason, it depends on which examiner, or group of judges you get. This is the epitome of a NATION OF (arrogant) MEN, not a NATION OF LAWS. John Adams must be rolling over in his grave.
Crazy Quotes from the Opinion
“Short and unadorned, § 101 appears deceptively simple on its face, yet its proper application to computer-implemented inventions and in various other fields of technology has long vexed this and other courts.” P. 7
This is because the judges do not understand what a computer is.
Supposed Test of Majority
“We must first ask whether the claimed invention is a process, machine, manufacture, or composition of matter. If not, the claim is ineligible under § 101. If the invention falls within one of the statutory categories, we must then determine whether any of the three judicial exceptions nonetheless bars such a claim—is the claim drawn to a patent ineligible law of nature, natural phenomenon, or abstract idea? If so, the claim is not patent eligible. Only claims that pass both inquiries satisfy § 101.” pp 9 &10
Note that laws of nature are not a “process, machine, manufacture, or composition of matter.” Natural phenomena are not a “process, machine, manufacture, or composition of matter.” And an abstract idea is not a “process, machine, manufacture, or composition of matter” or it would not be abstract. The so called judicial exceptions are nonsense and are the result of judge who do not understand engineering and science and have failed to think logically about the statute. Instead they decided to ignore the statute, logic, and reason and just work with words they were more comfortable with.
What about the Constitutional
Not once in this opinion does the court talk about the requirement that Congress secure the RIGHTS of inventors to their inventions. It is amazing how they can dance around the statute, insert new requirements beyond the statute to invalidate patents but never discuss the Constitution. There is no threshold level of invention in the Constitution and if 35 USC 101 is narrower than what inventions are then it is un-Constitution and should be changed.
The nonsense argument that the preample limits patent rights also does not fly. The preamble is explanatory not limiting this is true throughout the law. In addition, a preamble is an explanation of the likely effect but not a condition precedent for the law. Let me give an example from real life. “To be happy you should be honest.” Does this mean that if you are not happy, you should not be honest? Does it mean that you should only be honest if in this case it will make you happy? No. It means that your happiness will be promoted by honesty.
“First and foremost is an abiding concern that patents should not be allowed to preempt the fundamental tools of discovery—those must remain “free to all . . . and reserved exclusively to none.” Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130 (1948).” P 15.
Note the hidden assumption that patent stifle future invention and research, but there is absolutely no evidence for this assumption and it is not part of the Constitution or the law.
The opinion calls patents monopolies in several places in contradiction to the Constitution, the statute, and reality.
“It is difficult to see how giving a particular man-made drug to a patient or drawing and testing blood could be considered purely abstract or preordained. Yet the Court held that those steps failed to render the claims patent eligible.” P 21
The court is trying to make sense of the irrational opinions of the Supreme Court.
“Analyzing patent eligibility, in contrast, considers whether steps combined with a natural law or abstract idea are so insignificant, conventional, or routine as to yield a claim that effectively covers the natural law or abstract idea itself.” P 22
Further attempting to make sense of the irrational.
“The concept of reducing settlement risk by facilitating a trade through third-party intermediation is an abstract idea because it is a “disembodied” concept.” P. 26
You can only reach this conclusion by ignoring the specification and claims.
“The requirement for computer implementation could scarcely be introduced with less specificity; the claim lacks any express language to define the computer’s participation.” P. 26
This shows a complete lack of understanding of the technology and also confuses the purpose of the claims (to define) with the purpose of the specification (to explain).
“At its most basic, a computer is just a calculator capable of performing mental steps faster than a human could. Unless the claims require a computer to perform operations that are not merely accelerated calculations, a computer does not itself confer patent eligibility.” P. 27
No at its most basic a computer is an electronic circuit – but don’t expect a bunch of Political Science (that’s an oxymoron) and English majors to know this.
“With the term “shadow record,” the claim uses extravagant language to recite a basic function required of any financial intermediary in an escrow arrangement—tracking each party’s obligations and performance.” P. 27
I think the Judges should be forced to attempt to create a computer system that accomplishes what Alice Corp did and then explain that it’s just an abstract idea.
The CAFC violates the statute by examining each step of the claim individually. 35 USC 103 specifically prohibits this. Every Judge who signed onto this opinion should be impeached (fired) for their inability to read a simple statute.
“In other words, they are merely method claims in the guise of a device and thus do not overcome the Supreme Court’s warning to avoid permitting a “competent draftsman” to endow abstract claims with patent-eligible status.” P 31
Funny that the Supreme Court would complain about competence – Perhaps it is because the SUPREMES are completely incompetent – at least when it comes to patent law.
“before us not the patent eligibility of specific types of computers or computer components, but computers that have routinely been adapted by software consisting of abstract ideas, and claimed as such, to do all sorts of tasks that formerly were performed by humans.” P.37
Luddites of the world unite. A tractor is just performing tasks that were performed by humans, a steam engine is just transporting things that were transporting thing that were transported by humans. Time to close the Patent Office.
“Not only has the world of technology changed, but the legal world has changed. The Supreme Court has spoken since Alappat on the question of patent eligibility, and we must take note of that change.” P. 37
In other words don’t bother us with logic. On the one hand computers are just adding machines on the other hand technology has changed – what?
Dissents
“Any claim can be stripped down, simplified, generalized, or paraphrased to remove all of its concrete limitations, until at its core, something that could be characterized as an abstract idea is revealed. Such an approach would “if carried to its extreme, make all inventions unpatentable because all inventions can be reduced to underlying principles of nature which, once known, make their implementation obvious.”
Finally some actual logic and it actually follows the law of not allowing each step to be analyzed in isolation.
“At the outset, a computer-implemented invention is eligible for patenting under Section 101. Computers are “machines.” Machines are expressly eligible subject matter under Section 101. Having said that, however, were it not for software, programmable computers would be useless. A computer without software collects dust, not data. The operation of the software changes the computer, altering its ability to perform one function or another as the software indicates.”
Some actual logic.
“Indeed, in theory, an inventor could claim a machine combination with circuitry, transistors, capacitors, and other tangible electronic components precisely arrayed to accomplish the function of translating Chinese to English. CLS BANK INTERNATIONAL v. ALICE CORPORATION 29 These complex interrelated machine components would squarely fit within the terms of Section 101 and involve nothing theoretical, highly generalized, or otherwise abstract. The fact that innovation has allowed these machines to move from vacuum-tube-filled specialized mechanical behemoths, to generalized machines changed by punch cards, to electronically programmable machines that can fit in the palm of your hand, does not render them abstract.”
Too bad the Supremes are too incompetent to understand these simple facts.
“The claims do not claim only an abstract concept without limitations that tie it to a practical application. Confirming this, someone can use an escrow arrangement in many other applications, without computer systems, and even with computers but in other ways without infringing the claims.”
“Obviously, the claim does not simply state “use an escrow.”
“And let’s be clear: if all of these claims, including the system claims, are not patent-eligible, this case is the death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents.”
“Looking at these hardware and software elements, it is impossible to conclude that this claim is merely an abstract idea.”
Judge Newman’s Dissent
“This section 101 issue appears to have its foundation in a misunderstanding of patent policy, for the debate about patent eligibility under section 101 swirls about concern for the public’s right to study the scientific and technologic knowledge contained in patents. The premise of the debate is incorrect, for patented information is not barred from further study and experimentation in order to understand and build upon the knowledge disclosed in the patent.”
I have seen no competent analysis of how these technologies and industries would be affected by a fundamental reduction in patent-eligibility. Dramatic innovations, and public and economic benefits, have been achieved under the patent law as it has existed.
Patents do not prevent experimentation with patented subject matter, whether the purpose is scientific knowledge or commercial potential. To hold otherwise would be to deny a foundation of the system of patents. However, the popular press has accepted the theory that experimentation is barred for patented subject matter, as have my colleagues, who cite that position as grounds for restricting eligibility under section 101.
Excellent Advice from Chief Judge Rader
And I find myself resorting to exactly the same phrase: When all else fails, consult the statute! And for evidence that all else has failed, I need only recite Bilski v. Kappos, 130 S. Ct. 3218 (2010), Mayo Collaborative Servs. Inc. v. Prometheus Labs., Inc., 132 S. Ct. 1289 (2012), Ass’n for Molecular Pathology v. U.S. Patent & Trademark Off., 689 F.3d 1303 (Fed. Cir. 2012), cert granted in part, 133 S. Ct. 694 (2012), MySpace, Inc. v. GraphOn Corp., 672 F.3d 1250 (Fed. Cir. 2012), Dealertrack, Inc. v. Huber, 674 F.3d 1315 (Fed. Cir. 2012), and Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d 1057 (Fed. Cir. 2011), and this list can and will go on and grow.
And the remedy is the same: consult the statute!
Below is an updated chart of the CAFC judges and whether they are patent attorneys or have a technical background. In my opinion and based on the latest rulings out of the CAFC all the Judges on this court should have a technical degree and be patent attorneys. Presently only four of the judges are patent attorneys and only five of the judges have a technical background. This is down from five judges being patent attorneys in 2010 and in April of 2011. Clearly neither Congress or the Obama administration have put a very high priority on the quality of judges at the CAFC.
| Judge | Patent Attorney | Technical Background |
| Rader | No | No |
| Newman | Yes | Yes – Ph.D |
| Mayer* | No | No |
| Plager* | No | No |
| Lorie | Yes | Yes – Ph.D |
| Clevenger* | No | No |
| Schall* | No | No |
| Bryson | No | No |
| Linn | Yes | Yes – BEE |
| Dyk | No | No |
| Prost | No | Yes – BS |
| Moore | Yes | Yes – MSEE |
| O’Malley | No | No |
| Reyna | No | No |
| Wallach | No | No |
* Senior status.
The following additional information was provided by stepback.
PAULINE NEWMAN, Circuit Judge: … She served as patent attorney and house counsel of FMC Corp. from 1954 to 1969 and as research scientist, American Cyanamid Co. from 1951 to 1954. Judge Newman received a B.A. from Vassar College in 1947, an M.A. from Columbia University in 1948, a Ph.D. from Yale University in 1952 and an LL.B. from New York University School of Law in 1958. From http://www.cafc.uscourts.gov/index.php?option=com_content&view=article&id=126:pauline-newman-circuit-judge&catid=1:judges&Itemid=24. Not surprisingly I have often believed Judge Newman is the most intelligent judge on the CAFC.
KIMBERLY A. MOORE, Circuit Judge: … was an Associate at Kirkland & Ellis from 1994 to 1995. From 1988 to 1992, Judge Moore was employed in electrical engineering with the Naval Surface Warfare Center. Judge Moore received her B.S.E.E. in 1990, M.S. in 1991, both from the Massachusetts Institute of Technology, and her J.D. (cum laude) from the Georgetown University Law Center in 1994.
RICHARD LINN, Circuit Judge: … was a Partner and Practice Group Leader at the Washington, DC law firm of Foley and Lardner from 1997 to 1999. He was a Partner and head of the intellectual property department at Marks and Murase, L.L.P. from 1977 to 1997. Judge Linn served as Patent Advisor, United States Naval Air Systems Command from 1971 to 1972, was a Patent Agent at the United States Naval Research Laboratory from 1968 to 1969, and served as a Patent Examiner at the United States Patent Office from 1965 to 1968 … He received a B.E.E. from Rensselaer Polytechnic Institute in 1965, and a J.D. from Georgetown University Law Center in 1969.
According to Kiwi Blog “A good move from the Gov’t on patents” there is a new Patent Bill that will prohibit patents on software. Logically, this suggests that there is something special about software that is incompatible with patents. In order to determine, we first have to have a clear understanding of what software is and what a patent is. A patent is a property right that a person earns by creating a new invention. But what is an invention? An invention is anything created by man that has an objective result. This definition clearly delineates that inventions are not things in nature or
occurring naturally. An invention, also, is not everything created by man. For instance, a painting or a song is a creation of man, but they do not have an objective result. Songs and paintings fall into the category of aesthetic creations. Their goal is to elicit a subjective response and people will react differently. An invention has an objective result. For instance, a controllable heavier than air powered craft, such as the Wright brothers invented has the objective result of controllable powered flight. Software is a set of written instructions that are converted by a compiler (interpreter) into a wiring scheme that opens and closes transistors. Software that is not converted into instructions is just a bunch of bad writing.
Now that we have a clear definition of a patent and software, we can examine whether there is something special about software that would cause it to not be patentable. The written instructions of software do not have an objective result, unless they converting into a wiring scheme. Therefore, software code is not patentable. No country has patent laws that apply to software code. The way this is normally stated is that software per se is not patentable.
If this was all the New Zealand bill was proposing, we could stop here. But all indications are that the proposed law would not allow patents for inventions in which software was used to wire an electronic circuit. As any electrical engineer knows and software developer should know, solutions to problems implemented in software can also be realized in hardware, i.e., electronic circuits. The main reason for choosing a software solution is the ease in implementing changes, the main reason for choosing a hardware solution is speed of processing. Therefore, a time critical solution is more likely to be implemented in hardware. While a solution that requires the ability to add features easily will be implemented in software. Software is just a method of converting a general purpose electronic circuit (computer) into an application specific electronic circuit. If software is not patentable it leads to absurd results. For instance, if I design a pacemaker using logic circuits, it is patentable. However, if I use a microcontroller to do the exact same thing, it is not patentable.
Software per se is not patentable. Executed software is just a way of wiring an electronic circuit. Electronic circuits have objective results, are a creation of man and therefore an invention. There is no logical reason to distinguish between software-implemented inventions and other inventions. This bill is based on emotion or an anti-property rights agenda or both.
The following gives the history of the global warming movement and explains why the scientists overwhelmingly believe that human CO2 does not play a significant role.
History:
In the 1970’s there was a period of global cooling which led the media to a frenzy of reporting a coming ice age. A considerable body of knowledge existed on climate change and the phenomena which have caused it to occur. Examples are such phenomena as changes in the earth’s orbit, the orientation of the earth axis of rotation, variation in cosmic ray flux, and changes in the ocean currents. For decades the Greenhouse Effect on the earth’s temperature had been known. Therefore, during the 1970’s, a Swedish scientist proposed that humans increase their output of CO2 in order to increase the Greenhouse Effect so as to increase the 1970’s global cooling.
During the 1970’s cooling, Britain suffered because their supply of fuel was disrupted, (a) by the Middle East fuel oil embargo, and (b) by British coal miners’ strikes.
In about 1979 global cooling changed to global warming. Prime Minister Thatcher wanted Britain to shift from coal to nuclear power as France had done. Therefore, she established a committee to report whether an additional argument for a shift to nuclear power was to reduce the output from burning hydrocarbons and thereby reduce the global warming then occurring. The committee didn’t directly address the other various theories of the cause of climate change. It studied the effects of human-related CO2 emissions on the earth’s average surface temperature, and the consequences to humans of the hypothesized continuing warming.
Thatcher’s committee released a report in the mid-1980’s finding that the rising CO2 content of the atmosphere since 1980 did correlate with the increase in global temperature. Without proof it postulated cause-and-effect. It predicted, without proof, a continuing temperature rise that would be disastrous to mankind. The media gave lurid reports of the predicted catastrophes. Environmentalists seized reducing CO2 output as a means to protect the earth. Cold war activist organizations shifted their efforts to anti-global warming. Many saw economic opportunity. Then-Senator Al Gore had learned about global warming in college classes in the 1960’s. As a Senate Committee Chair, he became a staunch supporter of the human-CO2 hypothesis.
The UN then appointed its Intergovernmental Panel on Climate Control (IPCC) with the mission of protecting the earth from climate change. The panel was made up of political appointees (scientists and non-scientists) appointed by UN-member nations. The panel established technical groups with an appointed IPCC member-scientist heading each. The lead politically-appointed scientists recruited volunteer scientists of established reputations to address explicit technical issues. They were to do this by a literature search – not by independent investigations. One small cohort of climatologists evaluated findings on the “IPCC Hypothesis: human CO2 makes a significant contribution to global warming.” This cohort was not concerned with evaluating other potential causes of global warming. The remaining scientists were to address the various effects which would result from the assumed, continuing, long-term increase in future global temperature.
The technical groups, as I understand it, were to submit individual group reports of human-related CO2 emissions, to a separate, elite, editing group composed of IPCC’s political appointees (scientists and non-scientists). That editing group was to prepare a “Summary Report for Decision Makers.” In doing so, these editors were free to change the scientists’ findings without further input from the scientists on the changes the editors made. The Summary Report would be released to “decision-makers” and to the public. Then the groups’ reports would be melded into a single “IPCC Assessment Report,” which also would be available to the public. The Assessment Report…” would conform to the editor’s Summary Report.
The stage was set for a malfunctioning process.
There have been four such pairs of these two kinds of reports (assessment and summary) issued to date.
Genesis:
The fiction of scientists’ consensus on global warming gained began with the publication of the “First IPCC Summary Report for Decision Makers” in about 1992. It matured with the Second Report, issued in 1996 and listing some 2,500 “contributors.” Scientists in the IPCC group expert in the Greenhouse Effect, were a very small fraction of the 2,500 “contributors. They reported in 1996 that, “No study to date has positively attributed all or part [of the climate change observed to date to anthropogenic [i.e., human] causes.” It was an unequivocal statement.
The politically-appointed editing group changed that scientists’ finding to say, “The balance of evidence suggests that there is a discernable human influence on global climate.”
Thus, the politicians reversed the scientists’ findings. The subsequent full IPCC 1996 Assessment report was prepared throughout to agree with the reversal. There was dismay among many climatologists, worldwide. A number of scientists who had participated asked that their names be removed from the reports’ contributors list. The IPCC denied these requests, saying, “You contributed. You just didn’t agree.” It did comply with an eminent French scientist who sued the IPCC in a French civilian court.
Asked why the change was made, the lead editor said it was due to “pressure” from U.N. member nations. One activity pressing was the U.S. Department of State. It was during Clinton/Gore Administration and V.P. Gore is said to have been involved.
All of the foregoing in this attachment is based mostly on, “A Skeptics Guide to Debunking Global Warming Alarmism…,” U.S. Senate Committee on Environment and Public Works, 12/09/06. See particularly pages 21-22.
Because of the raging controversy following the 1996 report, a social sciences professor at UC, San Diego, read the abstracts of some 900 articles on global warming in the literature and reported that three-fourths of the authors supported the IPCC-Gore human CO2 hypothesis. A European scientist involved in the global warming program reviewed the same 900 articles plus a few more. In contrast, he reported that only 10 papers “fully supported” that hypothesis and only 34% “somewhat supported it.” His report was not published when first submitted for publication in a journal, and the media did not learn of it at the outset.
“Scientific Consensus” and “Settled Science:
Having read the IPCC’s “Second Summary Report for Policymakers” and the paper by the UCSD professor, media personnel believed that it was a broadly accepted scientific conclusion: i.e., “Settled Science.” [“Consensus opinions” is the media’s inaccurate view on how scientific decisions are made.]
Sequentially, the generally used scientific method it is to make an “hypothesis,” validate it to establish a “theory,” have a dialog to establish a generally-accepted theory, and ultimately to establish a “law.” The dialog is among scientific peers who try to replicate the original experimental findings or to refute those findings with replicated experimental findings. That dialogue continues until the significant issues underlying the theory have been settled with unrefuted evidence. After some time span of no significant further dialog and of continuing reinforcement, the theory becomes a “law.” (There are other scientific methods, but none of the other methods were completed on the IPCC Hypothesis, either.)
The IPCC Hypothesis is still an hypothesis. There are no scientific data demonstrating its truth.
In science, correlation does not of itself prove cause-and-effect. I.e., a third variable could be causing the other two variables to change value. Further, as a basic concept, it is not the opinions of a majority of scientists or anyone else who determine the validity of a theory. Validity is determined by the demonstrated facts pertinent to the issue. Up to a century or two before Columbus, everyone “knew” the world was flat and the sun revolved around it.
Believing that the IPCC’s second “Summary Report for Policymaker” established a valid theory, the mainstream media has suppressed news which did not support the IPCC Hypothesis. For example, sixteen months ago I received a response to a draft OpEd submitted for publication. The rejection said in part, words to the effect, “Our editorial board has decided the global warming issue is settled and there’s no point in prolonging the issue. We would welcome papers on what to do about it.” [Recently, that media activity apparently negated that decision.]
Scientific dialogue on the IPCC Hypothesis still continues, but the mainstream media still ignores it. Given the media’s biased reporting, most of the American public and its politicians were taught to believe it’s “settled science,” but the percentages of true believers among our citizens continues to decrease. Of those scientists in the field who initially supported the hypothesis, many or most no longer do. On the other hand, no publicized “denier” scientists have become supporters.
Support for the IPCC Hypothesis:
(a) Private Enterprise: Industrial purveyors of “green” power sources stand to make billions on equipment, all of which would furnish power at greater expense than current sources. GE, the corporation which would profit more than any others, reportedly has spent three times as much lobbying Congress as all the oil and coal corporations combined. Ethanol and other biofuel industries have solid federal political support. (For drawbacks of green power sources, see below).
(b) Foreign Nations/United Nations. An obvious solution to the non-problem defined by the hypothesis is to reduce the industrial CO2 output into the atmosphere. Since we, the developed nations, are major emitters of CO2 and allegedly can “afford” the added expense of reducing that output, we are expected to make major reductions. However, the Kyoto Accord exempted all developing nations, including China, India, Brazil, and Indonesia, from the requirement – even though they together place prodigious and rapidly-growing amounts of CO2 effluent. Nations with appreciable nuclear power sources produce appreciably smaller CO2 – but environmentalists and others in America proscribe more American nuclear plants. The effects of drastic CO2 emission curtailment on the USA’s economy and environment would be large, but the USA’s reduction would have only a minor effect on the world’s atmospheric CO2 load. An overwhelming majority of UN nations support its hypothesis and will benefit at the expense of the developed nations grown affluent by the foresight, earnest attention, and hard work of its citizens.
(c) American Government. Many key politicians in our national and state governments vote in conformance with, (1) polls of their generally-misinformed voters, and (2) the vested-interests of their financial contributors. Equally important, the government deficit funding supports industrial, commercial, and agricultural interests, which generates current government tax income.
(d) Environmentalist: There are valid concerns about trace emissions from burned hydrocarbon fuel. For example our cars’ catalytic converters have devices to reduce this pollution and have mostly eliminated smog. Further reduction is desirable: we need to stop polluting the planet. However, the combustion fuel pollutants do NOT include CO2. Atmospheric CO2 itself is NOT only is NOT a pollutant; as described below, it is beneficial to both animals and plants.
Opposition to the IPCC Hypothesis.
(a) In the early 1990s, concerned climatologists (and the organizations they formed) challenged the technical claims being made by the human-CO2-effects proponents. These organizations evolved into the pro bono “Non-governmental International Panel on Climate Control (NIPCC).” Headed by icons in the climatology field, the NIPCC has published two major reports and held two major, widely-attended, three-day, international conferences in New York City. [Please Google, “NIPCC.”] The mainstream media failed to report these NIPCC news items, while publicizing the UN-sponsored global warming meetings – meetings in which, NIPCC-member papers were denied presentation for seemingly political reasons.
(b) The media also failed to report the numerous surveys of professionals in the field who dispute the IPCC Hypothesis – such as the Global Warming Petition Project of 31,500 signees. Active opposition is needed to counter the biased education of the voters, but only the conservative talk radio and the Fox News Network are reporting the countervailing facts.
(c) In addition to the problems with the Second IPCC Assessment Report given above, the Third and Fourth IPCC Assessment Reports have had similar egregious technical faults. For example, the Third Assessment Report emphasized the “hockey stick graph” which wrongly portrays global temperature history and events before 1970 and since 1998. IPCC scientists unsuccessfully opposed its inclusion in the report, and the American Academy of Science later judged to be “of little utility.” Subsequently, the hockey stick graph disappeared from scientific discourse.
(d) All of the IPCC Reports are based on the assumption that human-related CO2 caused the global warming between 1980 and 1996. That assumption is based on the alleged correlation of the increases in atmospheric CO2 and in average annual global temperature during those years. However, Gore and others plotted the two curves going back eons of time with one curve separated on the graph some distance above the other. If the two curves are plotted so that they overlap, it is clear that the temperature changes first and then one or two hundred years later the air’s CO2 content changes. Because of that time relationship, changes in the atmospheric CO2 does not cause the temperature change. It’s vice versa. This time lapse is because the ocean is the earth’s largest storehouse of (dissolved) CO2; and an increasing water temperature decreases the ocean’s solubility constant for dissolved gases. Because water warmed by the sun, ocean currents, etc., is lighter than cold water, it takes many years of roiling the ocean water for the heat to be transferred to the full volume of oceans so as to obtain the full release of dissolved CO2.
(e) Increasing CO2 will benefit plants. Doubling (2X) atmospheric CO2 will increase foodstuff production worldwide about 24%. It will increase all plant growth rates [e.g. pine trees, about 40%]. In the ranges of interest in the IPCC Hypothesis, warming doesn’t hurt plants.
(f) Increased food and renewable resources benefits humans. Historically, the high points of civilization have occurred during periods of global warmth. The threshold at which CO2 becomes physiologically harmful is at atmospheric concentration about 25X that at present. Note that Gore’s agog was concerned about an (improbable) increase to 2X by the next century. Global warming benefits humans
(g) The CBO estimated that passing Cap and Trade will cost the average household an extra $875 in electricity costs in the year 2020, not the $175 estimated by the Administration. Further, this $875 will greatly increase in subsequent years when the additional reductions in carbon emissions are required. In addition to the increased costs of citizens’ home power consumption, Cap and Trade will significantly increase the cost of citizen’s food, clothing, shelter, and services, and any other activities requiring the use of power – like travel and golf course maintenance.
(h) Change of corn harvest from food to ethanol has already decreased the supply of corn as food for the earth’s population; causing starvation in poor countries. Corn for ethanol production requires vast arable land areas.
(I) Wind power substituted for coal will increase power costs 75%. It will take four hundred (400) square miles of land and thousands of miles of power lines to produce enough energy to power a typical city with wind power. Offshore windmill installations will be an ecological disaster to marine life and migrating birds; and it will be very more expensive than land-based windmills.
(j) Solar (thermal) power will require large land areas and will cost 570% more than coal. Solar (photoelectric) will require large land areas and will cost 887% more than coal.
(k) In time we will exhaust present supplies of economical fossil fuels. Before that happens we can phase in nuclear power. The waste storage of all the wastes from nuclear power plants of the world to date will take only the volume of one commercial building; and space to take America’s waste exists in prepared underground chambers underneath the Nevada Test Site. The nuclear accidents at Three Mile Island and Chernobyl occurred with unsafe, unstable designs that are no longer used. Our Navy has been nuclear-powered commencing in the 1950’s without human damage, and since perhaps since the 1960’s France has produced most of its power from the atom. It’s the environmentalists’ unreasonable dread of a nuclear power plant explosion or of a vast spill of nuclear wastes that dropped America from world leadership in the nuclear power field – not the ability to construct a safe industry.
(l) Development of nuclear fusion power sources was halted in parallel with that of stopping nuclear fission power plant construction. There is a nearly inexhaustible source of deuterium in the world’s oceans, but the unattained task is to contain the fusion reaction.
(m) Considering all the IPCC assessment reports to date, there is not a shred of scientific evidence that human-related CO2 has an observable effect on the earth’s annual average surface temperature. There is ample evidence that it does not. For example, even though the atmospheric CO2 concentration has continued to the present, the earth stopped warming in 1998, commenced cooling soon after 2000, and is still cooling. The rate of cooling between 2006 and 2007 was the greatest rate of change for either heating or cooling since such measurements have been recorded.
(n) Further, There are many other indications that the cause of the 1980-1998 temperature rise is not increasing atmospheric CO2. (1) If the IPCC hypothesis were valid, than per thermodynamics the troposphere temperature should be rising. It isn’t. (2) At least in America, and probably in other developed nations, the thermometers measuring surface temperature are in urban areas; and in these areas there is a “heat island” effect compared to surrounding areas. Urban growth itself raises the difference in temperature between urban areas and the much larger adjacent rural areas. (3) Many temperature-measuring instruments in America have been identified as being in faulty locations such as adjacent to air conditioner heat exhausts. Thus, the US NOAA-measured temperatures have been found to have been significantly increased by such faults. (4) All the computer programs used to predict future temperatures have used the assumption of a positive feedback effect from low-level clouds caused by condensation of rising moist air rising from heated earth’s surfaces. However, the predicted human CO2 effect is exaggerated. It recently has been shown that the low-cloud feedback is not positive – it’s negative.
(o) Assume, for purposes of discussion, that increasing atmospheric CO2 causing a larger Greenhouse Effect is the basic cause of the 1980-1998 global temperature increase. What percentage of that increase is due to human-related CO2 emissions? First, water vapor comprises more than 50% of the Greenhouse gases and contributes 96% of the Greenhouse Effect. Atmospheric CO2 comprises 0.04% of the atmosphere and contributes less than 4% to the Greenhouse Effect. Second, over 50% of the CO2 emitted into the earth’s atmosphere is emitted by volcanoes (on land and underwater). During global warming, next is the CO2 from the ocean. Other sources in decreasing importance come animals’ emissions (excluding humans), then bacterial emissions, then humans with a very small percentage. Because the human CO2 effect on Greenhouse warming is a >4% times a very small percent, human-related CO2 emissions contribute less than 0.1% of an increase in the earth’s Greenhouse Effect.
Doubling human emissions from less than 0.1% to less than 0.2% would cause an immeasurably small change in the overall Greenhouse effect.
Conclusion.
The data show that human-related CO2 has an insignificant effect on the Greenhouse Effect’s ability to raise global surface average annual temperature. Even if it did, CO2 is beneficial, not harmful, to humans, animals, and plants. The “global warming religion” is not based on “science.” It is based on other human motivations.
Benjamin H. Colmery, PhD is an honor graduate of the U.S. Naval Academy. He holds two masters degrees (Ohio State, physics, and UCLA, Eng. Mgt.) and a PhD (Wharton, Management).
Earth Day was created in the Nixon administration and the first was in 1970. This day violates the 1st Amendment by the Federal Government “respecting an establishment of religion.” Environmentalists are often portrayed by the Media as lovable, good natured people; people who only want to save some adorable furry creature and pick up trash. Environmentalist groups target new technologies claiming that they are dangerous or unproven. For instance, they killed off the nuclear power industry. The policies they advocate are anti-innovation and have destroyed advances in
medicine, food production, power generation, vaccines, and more. These policies have resulted in the deaths of more people than Hitler, Stalin, and Moa combined. These deaths are not the result of good intentioned policies gone wrong; these are the purposeful goals of environmental groups. Environmentalists have consistently proven that they are willing to lie in order to achieve their objectives. Being “Green” is worse than being a Nazi, worse than being a Marxist; BUT these policies do work hand in hand with these statists philosophies.
I will briefly outline three environmentalist policy areas where environmentalists have lied about the science and even more important than lying, these policies have killed millions of people.
DDT
Silent Spring by Rachel Carson resulted in the banning of DDT.
Deaths Caused by DDT Ban
In 1970, the U.S. National Academy of Sciences estimated that DDT saved more than 500 million lives during the time it was widely used. http://www.wnd.com/2004/07/25428/ Banning DDT has resulted in about 100 million deaths, many of whom were pregnant women and children. By comparison: Hitler killed about 6-7 million, Stalin killed around 10-14million, and Mao killed between 60-68 million.
FYI: The ban on DDT is why the US is currently having infestations of bed bugs; most people born after 1940 thought these were eradicated like polio.
Lies about DDT
Carson claimed DDT thinned the eggshells of birds resulting in fewer offspring that endangered raptors existence. This was based on 1956 study by Dr. James DeWitt, published in the Journal of Agriculture and Food Chemistry. However, DeWitt’s study actually showed that 50 percent more eggs hatched alive from the birds subjected to DDT than the non-DDT group. Other claims suggested that raptor populations declined because of the use of DDT; however, raptor populations were failing before the introduction of DDT. In fact, the Audubon’s Eagle counts from 1941 to 1961 actually increased when DDT was mostly widely used. All the latest evidence shows, Carson’s claims were nothing but outrageous lies.
Goal of Banning DDT was to Kill People
Alexander King, founder of the Malthusian Club of Rome, wrote in a biographical essay in 1990:
“My own doubts came when DDT was introduced. In Guyana, within two years, it had almost eliminated malaria. So my chief quarrel with DDT, in hindsight, is that it has greatly added to the population problem.” http://jiminmontana.wordpress.com/2012/01/15/environmentalism-the-green-religion-of-dehumanization/
Dr. Charles Wurster, one of the major opponents of DDT, is reported to have said,
“People are the cause of all the problems. We have too many of them. We need to get rid of some of them, and this (referring to malaria deaths) is as good a way as any.” http://jiminmontana.wordpress.com/2012/01/15/environmentalism-the-green-religion-of-dehumanization/
Nuclear Power
Anti-Nuclear power activists claimed that nuclear power generation would result in the deaths of thousands of people. This movement was able to kill off the nuclear power industry in the United States after the Three Mile Island accident in which no one was killed and the average person within ten miles of the accident received the equivalent on one chest x-ray of radiation.
Deaths Caused by Nuclear Power Ban
The main alternative to nuclear power plants,to date ,have been coal fired plants. For each person killed by nuclear power generation (including deaths due to Chernoybal), 4,000 die from coal. The previous data is adjusted for how much power is produced by each method of power generation. http://www.the9billion.com/2011/03/24/death-rate-from-nuclear-power-vs-coal/ The number of people killed per year in the US because of this change is at least 10,000. These deaths are mainly due to particulate pollution (nuclear power has no particulate pollution). This figure also includes an increase in the number of mining deaths, and increases in the number of deaths due to the extra transportation required to move coal compared to transporting uranium. In the United States alone: this environmental pogram has resulted in at least 300,000 deaths. Why has this not made headlines??! While the rest of the world has not followed the U.S.’s lead completely, the anti-nuclear movement has definitely retarded the development of nuclear power plants around the world. As a result, a reasonable estimate of the deaths worldwide because of this environmental policy is at least 600,000.
Nuclear power plants represent a huge reduction in air and water pollution. Real reductions in pollution are the result of advancing technologies, not regulator schemes such as the EPA. In fact, regulatory agencies can be credited with increasing pollution levels compared to what it would be without their influence.
The largest one time event fatality toll from energy production was in 1975. 30 dams in central China failed in short succession due to severe flooding. An estimated 230,000 people died. The fatalities from hydroelectric power far outnumber deaths from all other energy sources. http://www.newscientist.com/article/mg20928053.600-fossil-fuels-are-far-deadlier-than-nuclear-power.html Of course, hydroelectric power is one of the environmentalists’ favorite sources of power.
Lies about Nuclear Power
The number one lie about nuclear power is that an accident could result in the death of thousands of people. There is absolutely no evidence for this claim. Another related boogey man of the environmentalists is that the half lives of the byproducts from nuclear power lasts tens of thousands of years. What if the half life were infinite? Wouldn’t that be worse? If the half life were infinite, the elements (compounds) would be stable. Longer half lives mean that there is less radiation. Nuclear power plants accelerate the natural radioactive decay of uranium, so leftover fuel rods are less radioactive than the mined material.
Another lie of environmentalist s that nuclear power plants are too expensive to make economic sense.
Nuclear power is not intrinsically expensive. What drove nuclear plant costs up were environmentalist delays (caused by anti-nuclear “interveners” and the high interest financing rates—both perpetrated by those who wanted to kill nuclear power, and who now complain that nuclear costs too much. Source: Electric Power Research Institute
Goal of Banning Nuclear power was to Kill People?
There does not appear to be any environmental wacko comments to this effect; certainly it has been the result and since the environmentalism movement believes there are too many people-well, it seems this was likely part of their goal in killing off nuclear power.
Global Warming
Man made global warming or Anthropogenic Global Warming (AGW) is the latest hoax being thrust upon us by Environmentalists, who I have already shown, have a very poor track record.
Deaths Caused by Global Warming Hoax
The United States is spending about $10 billion a year on Global Warming research. http://frontpagemag.com/2011/01/28/the-black-hole-of-global-warming-spending/ I think it is safe to say that at least $100 billion has been spent worldwide on Global Warming over the last decade. It costs about $20 to provide infrastructure for clean water for one person. According to WHO, 30,000 deaths occur every week from unsafe water and unhygienic living conditions. Most of these deaths are children under five years old. That is over 600,000 deaths per year because of poor water infrastructure. If the $10 billion being wasted on Global Warming research were instead applied to water infrastructure, this could save 50 million lives. The Global Warming Hoax has cost the lives of at 6 million people.?
How AGW Advocates Have Lied
“The latest data released by the Met Office, based on readings from 30,000 measuring stations, confirms there has been no global warming for 15 years.” http://www.dailymail.co.uk/news/article-2096277/Global-warming-James-Delingpole-claims-green-zealots-destroying-planet.html#ixzz1xP61Eo2b
It is well known that the main driver of the temperature on Earth are the variations in the amount of solar energy the Earth receives. “Experiments at the CERN laboratory in Geneva have supported the theory of Danish physicist Henrik Svensmark that the sun — not man-made CO2 — is the biggest driver of climate change.” http://www.dailymail.co.uk/news/article-2096277/Global-warming-James-Delingpole-claims-green-zealots-destroying-planet.html#ixzz1xP61Eo2b
The biggest greenhouse gas is water vapor – over 95%, but you never hear about this from AGW advocates. http://www.creators.com/opinion/walter-williams/environmentalists-wild-predictions.html
“Natural wetlands produce more greenhouse gas contributions annually than all human sources combined.” http://www.creators.com/opinion/walter-williams/environmentalists-wild-predictions.html
Below, IPCC (Intergovernmental Panel on Climate Change -UN) Experts comment on the IPCC, which is the group at the UN that has been saying a consensus of scientist s “believe” in Global Warming http://ukipscotland.wordpress.com/2011/10/04/fifty-ipcc-experts-expose-global-warming-lies/
Dr Vincent Gray: “The (IPCC) climate change statement is an orchestrated litany of lies.”
Dr. Lucka Bogataj: “Rising levels of airborne carbon dioxide don’t cause global temperatures to rise…. temperature changed first and some 700 years later a change in aerial content of carbon dioxide followed.”
Dr Richard Courtney: “The empirical evidence strongly indicates that the anthropogenic global warming hypothesis is wrong.”
Dr Eigil Friis-Christensen: “The IPCC refused to consider the sun’s effect on the Earth’s climate as a topic worthy of investigation. The IPCC conceived its task only as investigating potential human causes of climate change.”
Goal of AGW
The goal of AGW is to kill capitalism and as a result kill millions of people. Patrick Moore, a co-founder of Greenpeace explained. (Environmentalism today is) more about globalism and anti-capitalism than it is about science or ecology….
“Ultimately, no problem may be more threatening to the Earth’s environment than the proliferation of the human species.”
— Anastasia Toufexis, “Overpopulation: Too Many Mouths,” article in Time’s special “Planet of the Year” edition, January 2, 1989. http://newsbusters.org/blogs/geoffrey-dickens/2012/04/19/earth-day-special-medias-top-25-wackiest-environmental-quotes#ixzz1xPBuQJxp
“Today, life on Earth is disappearing faster than the days when dinosaurs breathed their last, but for a very different reason….Us homo sapiens are turning out to be as destructive a force as any asteroid. Earth’s intricate web of ecosystems thrived for millions of years as natural paradises, until we came along, paved paradise, and put up a parking lot. Our assault on nature is killing off the very things we depend on for our own lives….The stark reality is that there are simply too many of us, and we consume way too much, especially here at home….It will take a massive global effort to make things right, but the solutions are not a secret: control population, recycle, reduce consumption, develop green technologies.”
— NBC’s Matt Lauer hosting Countdown to Doomsday, a two-hour June 14, 2006 Sci-Fi Channel special. http://newsbusters.org/blogs/geoffrey-dickens/2012/04/19/earth-day-special-medias-top-25-wackiest-environmental-quotes#ixzz1xPCThQaU
“My own doubts came when DDT was introduced. In Guyana, within two years, it had almost eliminated malaria. So my chief quarrel with DDT, in hindsight, is that it has greatly added to the population problem.” http://jiminmontana.wordpress.com/2012/01/15/environmentalism-the-green-religion-of-dehumanization/
Dr. Charles Wurster, one of the major opponents of DDT, is reported to have said,
“People are the cause of all the problems. We have too many of them. We need to get rid of some of them, and this (referring to malaria deaths) is as good a way as any.” http://jiminmontana.wordpress.com/2012/01/15/environmentalism-the-green-religion-of-dehumanization/
“A total population of 250-300 million people, a 95% decline from present levels, would be ideal,” Turner stated in 1996.[1]
A leading environmentalist, Dr. Eric R. Pianka advocated the elimination of 90 percent of Earth’s population by airborne Ebola in front of few hundred members of the Texas Academy of Science who rose to their feet, and gave him a standing ovation.[2] Dr. Pianka attempted to deny this, but the evidence was overwhelming including his student evaluations.
Environmentalism is a Religion – and that religion is anti-human and EVIL
[1] Ted Turner Repeats Call For Population Curb, by Paul Joseph Watson Prison Planet Monday, April 28, 2008 http://www.prisonplanet.com/articles/april2008/042808_ted_turner.htm
[2] Meeting Doctor Doom, By Forrest M. Mims, III, The Eco-Logic Powerhouse http://www.freedom.org/board/articles/mims-506.html.
The Supreme Court is hearing oral arguments in the Association for Molecular Pathology v. Myriad Genetics No. 11-725 case that revolves around the myth that you can patent a person’s genes. Typical of the idiocy surrounding this case is the article by the AP, which states that this case is about monopolies for human genes. The author proves not only their lack of understanding of the science, but also the fact that they do not know that patents are a property right. (For more on Patents, Property Rights and Monopolies see below) A number of books have also pushed the agenda that
human genes are patentable. The CAFC’s ruling in this case sets the record straight.
CAFC ruling under reviewed
The ruling in the 2012 version of this case was very similar to the ruling in 2011 that I discussed in my post Association of Molecular Pathology v. USPTO. Below I provide what I think are the most interesting excerpts from the opinion.
Composition claims are all eligible under 35 USC 101.
They (The isolated strands of DNA) are obtained in the laboratory and are man-made, theproduct of human ingenuity. While they are prepared from products of nature, so is every other composition of matter. All new chemical or biological molecules, whether made by synthesis or decomposition, are made from natural materials. For example, virtually every medicine utilized by today’s medical practitioners, and every manufactured plastic product, is either synthesized from natural materials (most often petroleum fractions) or derived from natural plant materials. But, as such, they are different from natural materials, even if they are ultimately derived from them. The same is true of isolated DNA molecules. PP. 38-39
The highlight portion points out a general rule of patent law (actually nature) – all inventions are combinations of existing elements, these elements are formed from natural materials. You cannot create something from nothing – it’s called conservation of matter and energy. Unfortunately, this simple rule of physics is often ignored by the courts – probably because most of them do not have a scientific background and are therefore unfit to rule in patent cases.
A composition of matter is not a law of nature. P. 51
The anti-patent crowd has been trying to expand laws of nature to include anything that occurs naturally. A law of nature is something that explains a host of data and can be used to accurately predict how things will behave in nature, such as gravity. Using a counterbalance in an elevator uses gravity – a law of nature, but it is not a law of nature.
It is undisputed that Myriad’s claimed isolated DNAs exist in a distinctive chemical form—as distinctive chemical molecules—from DNAs in the human body, i.e., native DNA. P. 44
The critics of patenting human genes miss this point. The claims do not cover native DNA, they cover DNA that does not exist but for the intervention and ingenuity of humans.
Claims 1 of the ’999, ’001, and ’441 patents, as well as method claims 1 and 2 of the ’857 patent—all of which consist of analyzing and comparing certain DNA sequences—not to be patent-eligible subject matter on the ground that they claim only abstract mental processes. P. 55
I strongly disagree with this statement. Myriad clearly showed that the analyzing step requires machines that are clearly described in the specification. Even if a doctor had the print out of the results of analysis and then he compared the results without a machine, then this is contributory infringement. The only justification for the CAFC’s decision is hyper technical analysis of the claim that requires a recited machine in the claims. This sort of overly formal interpretation does nothing to protect the property rights of inventors, but does advance the interests of entities that want to steal other people’s inventions.
We once again, even in light of Mayo, arrive at the same conclusion of patent-eligibility because at the heart of claim 20 is a transformed cell, which is made by man, in contrast to a natural material.
By definition, however, performing operations, even known types of steps, on, or to create, novel, i.e., transformed subject matter is the stuff of which most process or method invention consists. All chemical processes, for example, consist of hydrolyzing, hydrogenating, reacting, etc. In situations where the objects or results of such steps are novel and nonobvious, they should be patent-eligible. P. 61
The idiots at the Supreme Court have attempted to break claims down and determine if each step is new. You can’t create something from nothing and a step which is completely new does not meet the requirements of 35 USC 112. This form of interpretation of the claims was specifically rejected by the 1952 Patent Act under 35 USC 103. But the anti-patent Justices on the Supreme Court are not interested in logic, the Constitution, or the law. They are only interested in forcing their policy visions on the American public.
Patents and Monopolies
Patents: Monopoly or Property Right a Testable Hypothesis
If patents are a monopoly, as some suggest, then it should led to certain outcomes. A close examination shows that none of the supposed monopoly effects result from granting patents.
Monopoly/Rent Seeking vs. Property Rights/Intellectual Property.
This post explains the characteristics of a monopoly and a property right and poses three questions to show the difference. Patents fit all the characteristics of a property right and none of a monopoly. Note that professional license, such as a law license has some of the characteristics of a monopoly.
More on the Myth that Patents are Monopolies.
This post contains a number of quotes from philosophers explaining that patents are not monopolies.
Property Rights, Possession and Objects
This post explains the difference in the concepts of property rights, possession, and objects. Most economists and patent detractors confuse these concepts. The origin, definition, and legal basis of property right are explained.
The Myth That Patents are a Monopoly
This post compares the definition of a monopoly to the rights obtained with a patent. It shows that the rights obtained with a patent do not confer a monopoly.
According to CBC News Margaret Thatcher practiced patent law. After being called to the bar she specialized in patent law and then tax law, until 1961.
No wonder, she was one of the greatest leaders of the 20th Century. Thatcher died today at 87. As Prime Minister she took the decaying cesspool that Socialists and Marxist had turned Great Britain into and made it proud, strong and great
again. Barak Obama is exactly one of those “people hating” socialist/environmentalist that she fought against. Can you image Lady Thatcher saying ‘you didn’t build that’? Here are a couple of memorable quotes.
“Europe was created by history. America was created by philosophy.”
“There can be no liberty unless there is economic liberty. “
In a unanimous decision the Supreme Court ruled that State Courts have jurisdiction over malpractice cases related to patents. Gunn v. Minton, No. 11-1118, 2013 WL 610193 (U.S. Feb. 20, 2013) . At first glance this would appear to be an unimportant decision. But state courts do not understand patent law. How can they decide if there was a malpractice if they do not understand the underlying law. Most likely the judges also will not understand the underlying technology associated with the patent either. So what you will have is a judge that neither understands the facts or the law. Talk about kangaroo courts. And the AIPLA supported this nonsense. The AIPLA has proven that it is not a defender of US
patent practitioners or US patent law or the US economy. (For more on how corrupt the AIPLA has become see Why I Quit the AIPLA – American Intellectual Property Law Association)
According to one malpractice attorney:
Most patent attorneys don’t understand the crap shoot that many state courts present. In South Carolina, it is almost impossible for a defendant to get summary judgment in a case, no matter how weak the plaintiff’s position is. In SC, the standard is a “scintilla of the evidence.” As a state court judge said in a seminar, “do you know how small a scintilla is?”. Never mind that the state court rule is the same as the federal rule: a genuine issue of material fact.
Without a doubt, the likelihood of a patent attorney being sued is much higher than if the federal courts had exclusive jurisdiction. The time and expense incurred by a plaintiff’s lawyer in a federal case is much higher than bringing the same suit in state court. A plaintiff’s lawyer is therefore much more likely to bring a doubtful contingency case in state court than in federal court, hoping to extract some money on a doubtful claim, or if he or she is lucky, to confuse a jury in a difficult area of law, and get a giant verdict.
Then we have the fact that few carriers will write coverage for patent practitioners. You can expect that situation to get worse.
Then, we have AIA (America Invents Act), and with new rules and first to file rules, which increases the exposure for patent attorneys.
AIPLA has taken a position that increases the risk for patent attorneys, and decreases their ability to obtain coverage. Patent attorneys could be subject to a claim based on an application you filed 20 years ago. Since policies are claims made, patent attorneys could all end up with no coverage in years where we should be looking forward to, or are in, retirement.
The management of AIPLA is clueless, and is not the friend of patent practitioners who are not in large, big city firms.
Why is it that every other business in the world can go bankrupt except banks? Bankruptcy ensures that the assets are quickly put back into productive use and that we do not throw productive resources into unproductive (failed) enterprises). Bankruptcy ensures that market feedback mechanisms are preserved so that bad investments and bad management are not rewarded. Bankruptcy is not always bad and not all bankruptcies are the result of mistakes (or worse) on the part of investors or management. But even in these cases it is important to refocus people on new
enterprises not having them hold on to failed enterprises. As the saying goes in business,
Never throw good money after bad
I would suggest that the reason politicians refuse to allow banks to go bankrupt is the close relationship between banks and governments. This relationship is fostered by central banks and legal tender laws. Because of these governments are at risk when big banks fail and it stunts their ability to steal from average people and give money to the politically connected. I suggest the following solution that would be good for the people, good for the economy, good for honest banking, but not necessarily for politicians:
1) Repeal the legal tender laws. They are unconstitutional, not part of a free market, and allow governments to counterfeit.
2) Eliminate central banks. Central banks distort the market and are the presently accepted way for governments to counterfeit money.
3) Never bailout banks: BANK’s SHOULD GO BANKRUPT just like every other business.
The solution for Cyprus is to allow their banks to go bankrupt and get on with business. This would be the best solution for people of Cyprus and their economy.
In an opinion piece on Fox News entitled “America’s patent system is all wrong for today’s high-tech world”, Mr. Forbes argues that “patent holding entities that do not produce anything in the way of devices or technology are disrupting the free market and stifling innovation for consumers.” Patent pools were first created during the sewing machine patent wars in the 1850s. (For more information see Adam Mossoff’s excellent paper The Rise and Fall of the First American Patent Thicket: The Sewing Machine War of the 1850s.[1] ) During the sewing machine wars it was found that overlapping patent rights made it impossible to produce the best sewing machine for the customer. As a result, a patent pool was created to clear these rights and allow manufactures to produce state of the art sewing machines. A patent pool is nothing more than a clearing house for people’s rights in their inventions, much like ASCAP works for copyrights. Patent pools allow for the efficient division of labor between inventors and manufactures and reduce wasteful litigation. In this sense they are similar to how title insurance works for “real” property.[2] Patent pools were and are a free market device that allows for the efficient clearing of property rights by contract. Patent pools combine people’s right to their property with their right to contract. Both of which are part of a free market. It is disappointing that Mr. Forbes who styles himself a free market proponent has missed these obvious facts.
Mr. Forbes uses the standard rhetoric of the antitrust laws. These laws are not part of the free market, and were championed by people who opposed the free market and property rights, such as Teddy Roosevelt. The FTC’s attack on patent pools and licensing in the 1970s did more damage to the economy than the 911 attackers did. For more information on the FTC’s traitorous attack on US property rights see Jobs, the Economy and Patents.
The article states a number of other fallacies. For instance, Mr. Forbes repeats the idea that there were too many dubious software patents issued. Any objective study of this issue has shown that it is nonsense. For instance, see the paper Of Smart Phone Wars and Software Patent.
The article also asserts that patents that are about to expire necessarily have a lower market value. First of all the market determines the value of patents, not Mr. Forbes arbitrary dictates. Second, patents that are older and cover technology on which numerous other inventions are built are more valuable because they are building blocks. Algebra is not less valuable today than it was when it was discovered, it is more valuable because other areas of math build on that knowledge.
Mr. Forbes suggestion in his conclusion that patents are regulations shows a profound ignorance of property rights and the free market.
America’s patent system is all wrong for today’s high-tech world
[1] My only complaint with Mr. Mossoff paper is that he suggests that a patent thicket existed. A patent thicket cannot exists in a free market, at least as the term was originally defined. There are a number of papers on point, if you want a link to them let me know.
[2] Real property in law refers to land and permanent structures. This is similar to the use of real in math to refer to real numbers. Imaginary numbers are real in that they exist as do patents, other intellectual property and personal property (Cars, tools, etc.).
Fox News has an article, Wright brothers flew 2 years after Gustav Whitehead, Researcher Claims, that suggests that Wright brothers did not invent the airplane. The article is correct; the Wright brothers invented the system that allows for controlled, powered flight. Their plane used wing wrapping, but their patent application made it clear that they could use control surfaces (ailerons, elevators, and rudders). Rudders were known before the Wright brothers. The article suggests that Whitehead was the first person to achieve powered flight, but this is clearly incorrect. There were numerous people before Whitehead and the Wright brothers who had achieved powered flight. Others had also understood the need for a rudder, but only the Wright brothers understood the need for all the control surfaces.
I decided to investigate if Whitehead had any unique control surfaces? Since most people do not understand what the Wright brother invented, this information is difficult to come by. But as best as I can tell Whitehead had a rudder and shifted his weight in the aircraft to control the plane. This was not unique when Whitehead undertook his flight. In other words Whitehead’s flight was a demonstration of what was known, not an invention.
This article is typical of the ignorance in the debate about invention and patents.
For another example of this ignorance see Did Edison Invent the Light Bulb?
I would like to believe these are innocent mistakes – but I don’t. I think they are a coordinated attack on the patent system and individual inventors. The goal of this attack is to suggest that no one invents anything and therefore the patent system is unfair and should be eliminated.
This story starts about 1982. At the time we were doing job shop work One of the Engines that drives the US economy is the US patent system. Any talk about changing it or doing away with it is stupid. The rewards that a patent can bring are a huge incentive to create. Without the US patent system, I would be near destitute. I have 28 patents I have had 5 licensing contracts. Some of these are world wide successes now. Do a Google search for my and get over 30,000,000 hits. Without US patent protection, I wouldn’t have had an incentive to create these inventions. Anyone who says the
opposite is juvenile-stupid or worse. This is why inventors from all over the world are flocking to the US to patent their inventions and corner one of the worlds biggest markets!
Another engine that drives the US economy is our free enterprise system.
[My business started] in my 2 car garage. One day my neighbor came over and asked if I could make some security wrenches for them. He was the manager for the warehouse of a large cable company. He showed me the sample and I could see it would be a very nasty job. So I said we were too busy. He kept coming back. On the third time I said we would. So I made him samples and received an order for 100. He reordered about every 9 months. In the mean time, another cable company wanted some of the same. My other machining business was evaporating. My son Eric said, “lets go in to the cable business,” so I said OK. The first thing Eric did, was to go to work for a large cable company. There, he learned the business and got acquainted with a lot of personnel. This helped with future sales because my son Eric knew a lot of people in the cable business. He worked there for the summer and then came back to work for me.
I decided to build a house first. It took 6 ½ months plus time for drafting and planning. I drew up plans and had them approved by the county. It was a raised ranch house with a 1700 square foot full basement, which would be a machine shop. It was great.
Eric came in one day and said, “ We need a name for this new business.“ I agreed.
I said,make a list tonight starting with your top choice, and we will discuss it tomorrow. The next morning we had the same name at the top of our lists. It’s ‘Cablepro”. I think this is a great name. Every cable installer that sees this name thinks in the back of his mind that these tools will make him more professional
Now the problem was expanding the business. We did several things which worked very well. One thing was that I bought a cable book which listed every cable system and their personnel in the USA. It cost me $375. I chose 1500 of the biggest cable systems in the US to make a mailing list. I made a flier although we only had a few tools and mailed them.
Mailing lists typically yield a return of around 2%. I received over 300 orders from this mailing. That is over 20%. It is important to recognize why this worked so well. First of all, everyone who received a flier was using these very tools. Secondly, big companies don’t want to sell a $10 wrench. They want to sell a truck load of amplifiers at several thousand dollars each or several miles of cable, All the orders were for one tool because they had never heard of us. A few months later I sent out another flyer with more tools and received over 100 orders which were $100-$300 dollars each. Now we were nationwide. I had to hire some more employees.
Another thing we did which worked very well was [to have] a truck with tools on the road. A customer would call and say they wanted to buy a dozen wrenches so the truck would be there the next morning. They usually bought more than they originally ordered. It is expensive to keep a truck and an employee on the road but it paid off. We took over the tool business in this town. An unforeseen benefit was new products. All cable systems have a box where they throw broken tools. My son Eric would ask to see if any of our tools were returned and none were. Whatever tool was the most prevalent in the box was our next new product guaranteed not to break. After we did this several times the cable companies starting saving the broken tools for us to redesign and make. Our biggest competitor was whining about how bad [the] sales of tools were. It was because he didn’t deliver. We never made money with that truck, but we built a business.
Now I had 5 men working for me full time. One on the road and 4 of us in the shop making tools. Business was booming. We had 25 products by now and sales had hit $25,000 per month. What I needed was some fancy machinery which I didn’t have. I didn’t have the money to buy the machinery or a shop big enough to use it. Growing New businesses soak up operating capital like a sponge.
All of a sudden, a potential buyer shows up. His sales had dropped 50% [in the] last year and he had fancy machinery sitting around. We soon had a deal. I sold him the rights to my products for 5% of sales for 7 years. I gave him a customer list, a line of products and my son Eric. My son knew a lot about how to make the products. He was in charge of getting the tools made at the new company. He was responsible for ordering materials, Scheduling production and running production. It went smoothly and soon I was getting royalties. I called it a licensing agreement but my accountant said it was a delayed purchase plan. Anyway, the checks cash the same.
At this time I had about $25,000 in receivables which I was able to collect and $25.000 in inventory which I sold to my licensee because he didn’t have anything to sell. One of the measures of business success is how long does it take to turn over your inventory. One month is outstanding. The shop was working 6 days a week and Sunday was for payroll, taxes, bookkeeping and preparing orders. I hadn’t taken any money out of the business since it started. These were factors which helped make the decision to sell,
Afterward, he asked me to see if I could design a crimper that would crimp a connector fitting round instead of the standard hex crimp. The standard hex crimp is on a round cable and it lets water and signal in and signal out. Does that make any sense? I am an engineer by trade, so I did it and it has been a real winner. This is an unusual situation, Using this crimper enables the cable company to use cheaper connectors, saving 5 cents each. If an employee is putting on 50 connectors a day you can see what a saving this new crimper is. The crimper will pay for itself. This tool and the others are being sold all over the world now.
By now the licensee has a factory in the USA, one factory in China, and two factories in India. He just finished building a new house for $11,000,000. This is what new products, intellectual property and hard work can do for you.
By Don Kesinger
Reason Magazine has released a video, entitled How Patent Trolls Kill Innovation. The magazine banner states that they support “Free Minds and Free Markets” but this video relies on the same irrational, emotion driven logic as the media. I cannot point out all the errors in this video, but below I will highlight some of the major points. Before I do that , let me show some of the sleazy attempts by Reason Magazine to use emotion and hidden assumptions to advance their argument, instead of reason and logic.
Emotion and Faith
*The video starts with the hidden assumption that patents are not property rights – faith not reason.
*The video uses the phrase “patent trolls” to immediately define who is right or wrong without actually proving their case – an emotional appeal.
*The video selects a small entrepreneur to narrate their story – using the typical liberal tactic of pretending this is a fight between a small virtuous entity against a big faceless entity. The reality is that so-called “Trolls” sue large entities much more often than small businesses. Emotional appeal, not reason.
*The video uses an “expert”, Julie Samuels, from a biased source, (Mark Cuban’s lobby group) who has no qualifications in the subject. She has a degree in Journalism and Law, which means she is NOT A PATENT ATTORNEY and does not have the technical skills to understand the underlying technology of patents. Faith not reason.
Title Search
The video never asks if Austin Meyer did a patent search and clearance opinion before building and selling his software. You would not build a house without doing a title search to make sure you owned the land. Given Mr. Meyer’s surprise that he was being sued for patent infringement, he almost certainly did not undertake this simple due diligence step.
Using Other Peoples’ Property
Mr. Meyer complains that he may have to pay the patent holder for the life of his product. Yes, that is what happens when you use someone else’s property. This is like a steel manufacturer complaining that they have to continue to pay for coal or pay rent for a building they do not own.
Note that the underlying technology is critical to Mr. Meyer getting paid, but he doesn’t want to pay for it.
East Texas
The anti-patent crowd always complains that these suits are brought in East Texas. If someone refused to pay you rent for staying in your house, would you chose the slowest court in the country or a faster court? Federal Court for the Eastern district of Texas has been one of the fastese to bring invention squatters to justice.
Patent Trolls
The video makes the implicit assumption that non-practicing entities (NPE) are evil. However, Edison was a NPE, as was Tesla, as was almost every great inventor in the last 200 years, as our most major corporations, as most of our Universities and Government labs. Our Founders looked at the issue of requiring inventors to practice their invention in order to keep their patent and rejected it. They voted for a FREE MARKET system where people could be independent inventors, just like writers do not have to be publishers in order to obtain or keep their copyrights. This is consistent with Adam Smith’s division of labor theory.
The video takes the stand that if you buy the patent rights instead of being the inventor,this is somehow evil. First, all corporations buy their patents – often by paying wages. Corporation don’t invent so they have to buy their patents. Second, we do not argue just because you didn’t build your house you cannot rent it out .
Old Technology
Mr. Meyer states in the video that the technology he wants to use is old, from the 80s. If this were true, Mr. Meyer would be free to use it. But, instead, he wants the updated version of the technology that ensures he gets paid, he just doesn’t want to pay for it.
The Patent Should Not Have Issued
Neither Mr. Meyer nor the so called expert, Julie Samuels, are patent attorneys. They are NOT QUALIFIED to evaluate the scope of the claims of a patent. It is interesting how lay people (I include attorneys who are not patent attorneys in this definition) believe they can just read a patent and evaluate it, but they would never try to do the same thing with a Warranty Clause in a contract or an Indemnity Clause. No one would believe a Journalism major or an attorney (non-technical) is qualified to comment on software technology; but somehow they are qualified to comment on patents on software? This is like asking a plumber to comment on the design of a Nuclear Power Plant.
Patents and the Free Market
Patents are property rights, just like a property right in a farm. The basis for all property rights is creation. Inventions are clearly creations. Property rights are part of the free market. Those countries that are the freest economically have the strongest patents laws, are the most innovative, and have the highest standards of living. REASON MAGAZINE is pushing a point of view that is much more consistent with a Marxist’s labor theory of value than Capitalism.
REASON MAGAZINE is neither promoting REASON or FREE MARKETS in posting this video.
According to IP Offerings the median value of patents sold in 2012 was $221,000 and the average price of patents sold in
2012 was $373,573. The full report lists transactions by date, buyer, seller, and technology area. The report appears to cover 6985 patents. The most valuable patents appeared to be in the WiFi space and then the wireless handset space. It seems unlikely that this report could be comprehensive, since so many of these deals include a non-disclosure clause.
At first glance the Koontz v. St. Johns River Water Management District case does not appear relevant to patent law. It is a Fifth Amendment regulatory takings case revolving around wetlands and private property. But as I will explain in more detail below the underlying problem in both these cases is a lack of understanding of property rights. The facts of the Koontz case according to Fox News are
Coy Koontz in the 1970s bought a parcel of land, the majority of which later was classified a wetland. When he sought a permit to develop a portion of it in the 1990s, the Florida agency in charge of the area said Koontz would need to take steps to remediate the damage he would cause.
Koontz offered to give the agency 11 of the 15 acres, in exchange for a permit to develop the remaining land. In addition, the state government said he would need to undertake other improvements. Options ranged from numerous changes to the original plot to paying for enhancement of 50 government-owned acres miles away from the Koontz plot.
Though Koontz continued to offer the 11 acres, he refused to go along with the government’s other requirements and decided to sue.
Antonin Scalia’s comments at oral argument illustrate this lack of understanding of property rights. “I can’t see where there’s a taking here,” Scalia said, adding, “Nothing’s been taken.” Ronald Reagan must be rolling over in his grave – he appointed Scalia (For more of Scalia’s outrageous thoughts see The Soviet Union’s Constitution Was ‘Much Better Than Ours’). Scalia’s thought process, as best I can understand it, is that Koontz still has legal title to his land and his land is still there – it was not taken. Judge Scalia seems to not understand the difference between property rights, possession, and the object. (For more information click here) Property rights define a relationship between a person and an object or thing. When Mr. Koontz acquired title to the land, it did not have lien or an easement that required him to give up a part of land or pay for the enhancement of government land. The government changed his rights in the land. The Fifth Amendment states “nor shall private property be taken for public use, without just compensation.” Mr. Koontz right to develop his property and his right to enjoyment of his property have clearly been altered without compensation. The government has taken these rights in his land for public use, so it is clearly a taking.
Scalia has also shown an appalling lack of understanding of patent law and it is because he does not understand property rights. Property rights derive from the fact that a person owns their self and therefore they own those things they create. Patents are property rights that the inventor gets because they created a new invention.
Mr. Koontz attorneys work for the Pacific Legal Foundation. This group does good work protecting economic freedom, but they also do not understand property rights either. At least one of their lead attorneys believes intellectual property should not exist – see Another Confused Libertarian on Intellectual Property . These people believe that property rights exist or should exist only because they result in more optimum economic outcomes. Really, they should call they them ‘property privileges’ or ‘property expediencies.’ Their commitment to so-called property rights only lasts until they are convinced they know what better to do with your property.
So what we have is a case in which the supposed defenders of property rights do not understand them. What do you think the likely outcome will be?
Patent and Property Rights
When the so-called defenders of property rights, believe they are just a political expediency that produces the best outcome for the collective, you can bet they will never support patents, which are property rights in an invention. I have seen patent attorneys attempt to use this line of reasoning with patents. They are happy to have people characterize patents as a monopoly, but think this is irrelevant because they can show patents are good for the economy. These people do not understand the philosophical battle over patents or the definition of a monopoly. They believe that because the anti-property rights crowd believe in monopolies for electrical and water systems, they will be in favor of monopolies for inventions. However, they forget that in the electrical and water systems case the anti-property rights crowd supports this because it increases government power, not for the bogus efficiency argument. But patents increase the power of the individual, not the state. So it does not matter how well you can show that patents are important for economic growth and improve everyone’s life, they will not favor it because it increase the power of private citizens.
Property rights are derived from the right to own oneself. If you do not own yourself, you are not free and do not live in a free society. If you own yourself, then you own that which you produce, including inventions. The patents are monopolies argument is without any merit from a historical, definitional, and empirical point of view. Understanding that patents are property rights is the key to both solving the patent problem and the Koontz case.
For more on patents and monopolies see.
Monopoly/Rent Seeking vs. Property Rights/Intellectual Property .
This post explains the characeristics of a monopoly and a property right and poses three questions to show the difference. Patents fit all the characteristics of a property right and none of a monopoly. Note that professional license, such as a law license has some of the characteristics of a monopoly.
Patents: Monopoly or Property Right a Testable Hypothesis
If patents are a monopoly, as some suggest, then it should led to certain outcomes. A close examination shows that none of the supposed monopoly effects result from granting patents.
More on the Myth that Patents are Monopolies.
This post contains a number of quotes from philosophers explaining that patents are not monopolies.
Property Rights, Possession and Objects
This post explains the difference in the concepts of property rights, possession, and objects. Most economists and patent detractors confuse these concepts. The origin, definition, and legal basis of property right are explained.
The Myth That Patents are a Monopoly
This post compares the definition of a monopoly to the rights obtained with a patent. It shows that the rights obtained with a patent do not confer a monopoly.
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