‘Alice’ in Plunderland

American Spectator ^ | July 3, 2019 | Mytheos Holt

[Twotone]

For trial lawyers, Big Pharma, and assorted other profiteers off American misery, the Supreme Court case Alice Corp. v. CLS Bank is like holy water thrown in the face of a vampire. They cannot abide exposure to it and will shrink away into the darkness with a variety of imprecations and hissing sounds. Also like vampires, the anti-Alice crowd constantly seeks to be invited into the house to rid themselves of this nuisance. Well, actually, in the anti-Alice case, it’s both the House and Senate.

Which brings me to the case of Sens. Thom Tillis (R-N.C.) and Chris Coons (D-Del.), who might well be described as the vampires’ best friends in the Senate.

A little explanation is probably required. In a sane world, Alice v. CLS would be a perfectly nondescript and respected legal precedent. Written by Justice Clarence Thomas, no enemy of the rights of everyday Americans, the precedent sets forth strict limits on what can and cannot be patented under Section 101 of the Patent Act, which limits patentable inventions to what is “new and useful.” Alice applies this requirement to the case of a patent for carrying out the abstract idea of an intermediated settlement on a computer, and finds that simply patenting the idea of a computer doing something that was already routine and not patentable was an invalid patent. Please note: at issue was not, say, a computer program that would aid in carrying out an intermediated settlement — something that would have been both new and useful. At issue was the idea of a computer doing this at all. Naturally, limiting section 101 of the Patent Act this way made a lot of frivolous patents vanish in a puff of logic, which in turn prompted all sorts of cries of horror from trial lawyers..

[tcoxaz]

If you have Amazon Prime, check out The Patent Scam. These parasites are disgusting.

[House Atreides]

“...limiting section 101 of the Patent Act this way made a lot of frivolous patents vanish in a puff of logic, which in turn prompted all sorts of cries of horror from trial lawyers.....”
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Anything engendering cries of horror from trial lawyers makes me happy — though there could be scattered exceptions to that rule.

[Jagermonster]

The premise of this article is exactly 100% wrong. Congress has the constitutional power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Congress has used this power to create a patent system. The early U.S. patent system was plagued by an activist Supreme Court that consistently deemed itself the arbiter of what was "inventive," and what was not. The Supreme Court developed doctrines that described certain categories as not inventive, including "abstract ideas," "laws of nature," and"natural phenomena" The Supreme Court rarely every found any invention to be inventive enough to deserve a patent. This caused patents to be regarded as a fools errand, and removed much of the incentive to inventors.

In 1952, the Congress had had enough, and replaced the arbitrary 'inventive' standard with the modern 1952 Patent Act, which provided specific requirements for what was patentable, and what was not. "Inventiveness," "Abstract Ideas," "Laws of Nature," and "Natural Phenomena" were deliberately excluded from the act.

The Supreme Court could not be broken of its addiction to these "judicial exceptions" to the patent act, and gradually reintroduced the concepts in case law. Alice v. CLS Bank was just the final straw that broke the camel's back, and has caused a huge s#!tstorm in computing and medical patents. This is despite the Supreme Court's express recognition that it has no authority to make up judicial exceptions to statutes.

Alice, and all the Judicial Exceptions cases that led up to it, are bad law, and I applaud Senators Tills and Coons for actually working to do something about it. Their proposed draft amendment to Section 101 of the Patent Act is good, and would fix the many problems caused by the Supreme Court. They also added proposed amendments to Sections 100 and 112 that are not good, and are in fact downright bad. I suspect that the Section 100 and 112 amendments were last minute additions proposed by lobbyists. I expect that they will be removed or significantly re-worked in the next revision.

[ryderann]

Those of us in NC are embarrassed we put Tillis in office. I’m soooo ashamed of him and Burr. On the other hand, Meadows is MY representative.

[Jagermonster]

Further, Alice v. CLS Bank is one of Justice Thomas' worst opinions. I think he tried mightily to make all the Supreme Court's bad precedent hold together, and failed because it is impossible to do so.

It wasn't his fault.

Finally, Alice v. CLS Bank reached the right conclusion, but for all the wrong legal reasons. The patent at issue in the case should have been invalidated, but for other reasons - it would never have stood up to the proper analysis under Section 103 of the Patent Act.

But, in patent litigation, you cannot make a determination based on Section 103 until after the patent claims have been looked at carefully to understand their meaning to an ordinary skilled practitioner in that field. The desire to twist Section 101 to invalidate patents is because there is no procedural requirement that a court first go through the effort of understanding the meaning of the claims before rendering a decision.

[null and void]

Novel, useful and non-obvious is a pretty succinct and good criteria.

(s) nully, who has several patents...

[KC_Conspirator]

Tillis is shameful. We all knew what he would be like, but its embarrassing. So now its not just illegal aliens, H1bs, but add on innovation destroying, patent lawyer leeches.

[Brian Griffin]

“computing and medical patents”

I was a computer programmer.

I solved problems in exchange for a salary.

I was a hired gun. Show me the problem and give me enough cash and time and the problem would get solved.

I went to college with pre-meds. Doctors are smart people.

[Brian Griffin]

The patent system really should be eliminated except to protect specific single molecular entities pending FDA approval as a marketable drug and for say 17 years thereafter.

There are thousands of really smart people capable of solving even very tough problems.

[Jagermonster]

Show me the problem and give me enough cash and time and the problem would get solved.

And some of your solutions might have been deserving of patents. Just about every patented invention is invented to solve some problem.

[Jagermonster]

There are thousands of really smart people capable of solving even very tough problems.

True, but why would they dedicate their time to solving those problems? Compensation, of course.

(Congress has the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"). Congress set up the patent system so that it encourages advances in technology in two ways:

(1) Congress offers a big prize to inventors who advance technology: a limited monopoly (patent) on the advance. If the advance is actually a significant advance in technology, the value of that monopoly is large. If the advance is not significant, the value of the monopoly is small, or even non-existent.

(2) The grant of a limited monopoly on one kind of solution to a problem encourages inventors to look for other solutions to the problem, which also advances technology. The other solutions may also be worthy of a patent.

Note that the patent term is relatively short: 20 years from the date of the application. The deal Congress strikes with the inventor requires the inventor to teach (in the patent) the public how to make and use the invention. After the patent term expires, the public is free to make and use the invention without the monopoly.

It is actually a pretty good deal. The free market dictates what patents have value, and which do not, and the substance of all patent applications, both valuable and not, are contributed to the general body of knowledge.

Remember, things that are simple for you are not necessarily simple for other people. Congress decides to dangle a monopoly in front of you to encourage you, a clever person with training and skill in a certain useful art, to keep on solving problems.

Even if it is your employer who gets the patent, rather than you, or even if it is your competitor who has the patent, the broad patent system encourages problem solving in areas that may not otherwise have been explored.