Bonum Certa Men Certa

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

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

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



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

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

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

Inscripta Granted Patents for CRISPR Gene-Editing Systems



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

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


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

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

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


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

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


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

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

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

Recent Techrights' Posts

Always Check Your Inputs
Garbage in, garbage out. Or wrong assumptions, wrong corollary.
 
Unable to Find Anyone to Work as Their Media Lawyer, Brett Wilson LLP Will Continue Losing Female Staff
What sort of sick person would wish to join Brett Wilson LLP to carry this baton?
Microsoft-Sponsored Propaganda Site Has Removed False 'Hit Piece' About Dr. Stallman (With Fake and Misrepresented Imagery) But Only After 4 Years
So they only removed that page some time around 2025, i.e. about 4 years after it had been published
Dan Neidle Said That Tax Evasion Facilitator Mr Zahawi (Working to Silence Bloggers Through Brett Wilson LLP) Targeted Not Only Him (But The Others Kept Quiet)
"Mr Neidle said after repelling Mr Zahawi he was contacted by bloggers and tweeters who had received similar threats. They deleted their work “and in most cases never commented publicly on anything again”."
SLAPP Funding Transparency Urgently Needed in the UK and Elsewhere (in Practice, Not Just in Theory)
Writing about crime - including Microsoft crime - is not a crime
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 09, 2025
IRC logs for Wednesday, July 09, 2025
Elodie Bergot Still Doing Illegal Things at the EPO, Based on the Local Staff Committee Munich
They keep taking away from the staff while compelling the staff to do illegal things
Gemini Links 09/07/2025: Extreme Testing and Golang Documentation in Geminispace
Links for the day
Vice President of the European Patent Office (EPO) Complains That Techrights Gives Visibility to Legal and Technical Issues at the EPO
"Follow-up on enquiries relating to Dir. 1218 and 1001"
Slopwatch: linuxsecurity.com and Various Slopfarms That Lie About "Linux" and Are Promoted by Google News
Google does not seem interested in tackling this problem
Links 09/07/2025: War Updates and Microsoft Moving to India to Cut Costs
Links for the day
GNU/Linux Was Always a 'Movement' of Inclusion of Tolerance
Even the licences themselves remove access barriers
Links 09/07/2025: "Subprime AI Crisis" and "OpenAI May Be in Major Trouble Financially"
Links for the day
Huge Piles of Legal Papers ('Paper DDoS') Do Not Impress Judges and Regulators
they just make judges and regulators even more suspicious of the eagerness to resort to 'paper DDoS'
Brett Wilson LLP Sent Over 5 Kilograms (or Over 12 Pounds) of Legal Papers! Because Writing About Microsoft Abuses is 'Illegal'.
How do you guys sleep at night? On a big pile of Microsoft money?
Extremism as a Weapon Against GNU/Linux (Microsoft Lunduke)
He ought to know the Halloween Documents. Wasn't he a Microsoft employee when these came out?
Lunduke Isn't Even Hiding His Anti-Linux Agenda (From "Linux Sucks" to "Linux is Pedophiles")
just trying to make a lot of trouble
Some People Use Computers to Get Actual Work Done
Tolerance and inclusion must extend to acceptance that some people don't agree with you, might never agree with you, and imposing what allegedly works for you on them is unreasonable
Example of "Old" Things That Still Work
The notion that something being "old" implies it must be discarded is typically advanced by those looking to sell more of something
Some Scheduled Maintenance Later Today
Typically the most vulnerable service during short interruptions is IRC
Computers Are Just a Tool
People don't get married because they love weddings, folks don't join the army because they love war, and most drivers don't drive to work because they love cars
Apple Way Past Its Prime
Apple deserves a decline
The FSF's SysOps Team Recovered From Serious Hardware Issue Within Hours
About half a day ago I noticed that all/most GNU/FSF sites were not reachable and thus reached out to a contact for any details
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 08, 2025
IRC logs for Tuesday, July 08, 2025
Slopwatch: Turning Bugs Into FUD About "Linux", Getting Basic Facts Wrong
all the screenshots are of fake articles; we don't want to link to any
Technical Reasons, Not Politics: With Wayland "it feels a lot like Linux from 20-25 years ago, which is horrendously frustrating, because it feels like we wasted one or two decades of progress and stability"
Lately, quite a few benchmarks were published to show Wayland compares poorly compared to what we had
PCLinuxOS Recovering From Fire
It looks like a nightmare scenario, where even backups onsite get destroyed
Links 09/07/2025: More Heatwaves, Officials Culled in Russia
Links for the day
Gemini Links 09/07/2025: XScreensaver and Resurrection
Links for the day
Links 08/07/2025: "Cyberattack Deals Blow to Russian Firmware" and "Cash Remains King"
Links for the day
FSF40 T-shirt message
by Alex Oliva
Gemini Links 08/07/2025: Creativity, Gotify with NUT Server, and Sudo Bugs
Links for the day
More on "Lunduke is Actually Sending His Audience to Attack People"
"pepe the frogs"
Links 08/07/2025: Sabotage of Networking Infrastructure, Microsoft XBox Game Pass Deemed “Unsustainable”
Links for the day
Dalai Lama Succession as Evidence That Determined, Motivated People Can Reach Their Nineties
And we need to quit talking about their death all the time
Many Lawyers (for Microsoft) and 1,316 Pages to Pick on a Litigant in Person Who Exposed Serious Microsoft Abuses
Answers must be given
Gemini Links 08/07/2025: Ancillary Justice and Small Web July
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 07, 2025
IRC logs for Monday, July 07, 2025