Patent Quality Nonsense
There has been a constant drumbeat of propaganda suggesting that the U.S. is issuing low quality patents. The academic papers supporting this propaganda compare the issue rates of patents that were filed in the U.S. and in the EPO (European Patent Office) or JPO (Japanese patent office). While a number of papers have pointed out the methodolical problems with these academic papers (see Patent Quality Myth ), the bigger question is whether they selected the correct metric in the first place. This post suggests that other metrics are more appropriate measures of patent quality and do not suffer from imposing other countries’ goals on the U.S. patent system. These metrics show that U.S. patent quality has been steadily increasing for over a fifty years and shows that perhaps the U.S. system is becoming an elitist system – much like Europe and Japan have practiced for years. Read more »
Explaining Patent Law Through the Lens of Natural Rights
For engineers and scientists it is easier to understand the major concepts of patent law from the perspective of natural rights, since it is consistent with their scientific training. Natural rights and science share the assumptions that the world is comprehensible and that reason plus observation can be used to understand how nature operates. A third assumption needed for this analysis is that a person owns themselves. This assumption is consistent with John Locke’s conception of natural rights.
Real Property
Property law results from the analysis that if a person owns themselves, then they own the product of their labor.[1] An example from United States history is the Homestead Act. The concept behind the Homestead Act is that land is not owned by anyone until it is improved by a person’s labor. Once the person has improved the land, then they are the owner. Similar concepts are used to define who owns a wild animal. Once a person owns property they can trade if for other property and this is the basis of a market economy. Read more »
ACLU – Gene Patent Non-Sense
In the ACLU v. Myriad case, the ACLU has alleged that the patents involved in the case cover genes found in nature. This statement is so patently (pun intended) false, that the ACLU either purposely deceived the court or is guilty of gross negligence about the facts plead in the case. As Gene points out in his post, Fired up: Challenging the Constitutionality of the Patent Act none of the claims in question cover genes found in nature. These claims are directed to screening, identifying, and isolating the BRCA1/2 genetic sequences. This is not a claim to the gene itself, but methods of screening, indentifying and isolating the genes, which are processes not found in nature. There are claims to an isolated gene, but genes are not isolated from human cells in nature. These claims are similar to claims on vitamin B12. More than 80 years ago, prior to the isolation and purification of vitamin B12, the only “treatment” for megaloblastic anemia was for patients to consume a pound of raw liver a day. Since isolated and purified vitamin B12 is not found in nature, a patent issued for isolated B12. The ACLU purposely deceived the court when they stated, “The patents cover the human genes themselves”, paragraphs 3-4, 55-67, & 102 of the complaint, while ignoring that isolated genes do not occur in nature. Read more »
Is Money an Abstract Concept?
In H&R Block Tax Services v. Jackson Hewitt Tax Services Inc., the court stated that “although tangible in some forms, money is simply a representation of a legal obligation or abstract concept.” A similar sort of attitude seems to be involved in the Bilski case. Both cases involve patents where money is used a unit of measure, and this seems to cause all sorts of confusion to the courts.
Is money just a legal obligation as the court states? The court is incorrect that money is a legal obligation. Money exists separate from a functioning legal system. Money is a medium of exchange that measures the total amount of goods and services that can be traded for a certain amount of money. The court seems to be confused by the legal tender rules, but money existed long before any legal tender laws ever existed. Read more »
Gene Patents
Gene Quinn in IPWatchdog.com has an excellent article (please read the whole article) on the Myraid Genetics case. Mr. Quinn explains the absurdity of the claims by the ACLU. But the part his article I want to focus on is the assertion by many critiques of “gene patents” that the Patent Office is issuing patents on naturally occurring genes. As Mr. Quinn’s excellent article shows the claims are clearly not directed to naturally occurring genes – see below.
US Patent No. 5,693,473 is being challenged, and claim 1 states (in relevant part):
1. An isolated DNA comprising an altered BRCA1 DNA…
US Patent No. 5,709,999 is being challenged, and claim 1 states (in relevant part):
1. A method for detecting a germline alteration in a BRCA1 gene…
US Patent No. 5,710,001 is being challenged, and claim 1 states (in relevant part):
1. A method for screening a tumor sample from a human subject ….
US Patent No. 5,753,441 is being challenged, and claim 1 states (in relevant part):
1. A method for screening germline of a human subject…
US Patent No. 6,033,857 is being challenged, and claim 1 states (in relevant part):
1. A method for identifying a mutant BRCA2 nucleotide sequence… Read more »
Obviousness – Flow Chart
This is my second post on the nonobviousness standard for patents (35 USC 103). The earlier post focused on the practical questions that an inventor and his attorney face when negotiating with the Patent Office (PTO). This post attempts to provide a rational approach to the nonobviousness requirement.
Once it has been determined that a patent claim is novel, step 10 in the flow chart, there are only two things that can make the invention nonobvious. One is a new result and the other is a new combination that has provides same result in the prior art. At step 12, we determine if the invention has a new result. For instance, Edison’s light bulb had a new result of a high resistance filament. This result is important because it makes it possible to build an economically Read more »
Limits of Patentable Subject Matter (35 USC 101)
I was posed the following interesting question, if the constitutional purpose of patent law is to promote science and the useful arts why shouldn’t mathematics be patentable? Clearly, mathematics is useful and writings about mathematics are covered by copyrights. However, “mathematical algorithms” have generally not been considered patentable subject matter.
A possible reasons why mathematics has not been considered to be patentable subject matter is that laws of nature and mathematics describe what is, they are not creations of man. Laws of nature are per se prior art, they clearly existed before man discovered how they worked. While this is a good explanation for why laws of nature are not patentable, is it a good explanation for why mathematics is not patentable? Is Euclidean geometry a product nature or is it a human construct? Euclidean geometry is very helpful in understanding physics, chemistry, and other natural phenomena. However, Relativity shows us that our universe is not Euclidean, but curved. Alternatively, if a Fourier transform is a description of nature, are the different methods of calculating a Fourier transform descriptions of nature? I cannot see how the different methods of calculating Fourier transforms can be considered a description of nature. In my opinion the “per se prior art” reasoning for why natural laws are not patentable does not cover all areas of mathematics. Read more »
Anti-Patent “Scholars” Fail to Carry Their Burden of Proof
We know that in all areas of economics where it has been tested private property rights encourage economic activity. We also know that when the government establishes incentives, it always results in more of the incentivized activity. We also know that countries with the strongest patent laws have the most innovation and the greatest technology diffusion and vice versa those countries with weak or non-existent patent laws have little or no innovation and little technology innovation. Despite this Mr. Kinsella and the anti-patent crowd ask us to believe that patents do not follow the normal rules of economics and logic. As Thomas Paine pointed out in his book The Age of Reason, extraordinary claims require extraordinary evidence. Mr. Kinsella and the anti-patent crowd have provided no evidence that patents harm innovation.
About
This blog is devoted to intellectual property innovation, patent law and innovation. The moderator, editor, and main 
author is Dale B. Halling. Mr. Halling is patent attorney and entrepreneur. As a patent attorney, Mr. Halling, has represented numerous Fortune 500 companies including, McDonnell Douglas, Boeing, Motorola, Ameritech, SBC, MCI, Cypress, and numerous technology start-ups. He has helped his clients obtain patents worldwide. Mr. Halling has a BS in Electrical Engineering from Kansas State University, an MS in Physics from the University of Texas at Dallas and a JD from St. Louis University. Mr. Halling is the author of the book “The Decline and Fall of the American Entrepreneur: How Little Known Laws are Killing Innovation.”
-
Recent
- Hot Property
- “Mr. Watson. Come here. I need you.”
- Another Confused Libertarian on Intellectual Property
- Ayn Rand on Intellectual Property
- Patent Reform and Independent Inventor
- Patents & Innovation
- Peak Venture Talk 2/25
- The Next Big Thing
- President’s Day and Patents
- National Inventors’ Day
- Public vs. Private Action: Jobs Bill
- Political Chick – CBS Online Radio
-
Links
-
Archives
- March 2010 (3)
- February 2010 (16)
- January 2010 (17)
- December 2009 (12)
- November 2009 (9)
- October 2009 (11)
- September 2009 (11)
- August 2009 (10)
- July 2009 (10)
- June 2009 (14)
- May 2009 (11)
-
Categories
-
RSS
Entries RSS
Comments RSS
