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

Not Just Slow News But Also Late News (Julian Assange Landing in Thailand)
Why did AP take so long (nearly a week) to release these?
[Meme] Smart Alec Poettering
How many Microsofters can the Debian Project withstand?
Getting Rid of Microsoft Does Not Go Far Enough
Microsoft already has many problems. One day Microsoft won't exist anymore. But that does not guarantee users' freedom.
Alyssa Rosenzweig's LibrePlanet Talk About Freeing the Apple GPU
Alyssa Rosenzweig is the graphics witch behind the reverse-engineered drivers for the Apple GPU. She previously led Panfrost, the free drivers for Arm Mali GPUs powering devices like the Pinebook Pro. She graduated in 2023 with a Computer Science degree from the University of Toronto and now writes free software full-time.
Links 30/06/2024: LLMs Under Fire and Dictatorship of the Old
Links for the day
[Meme] Walking Outside the Guardrails of the Walled Gardens Built by Monopolies
So-called "advertiser-unfriendly" material was never a problem for Wikileaks
This War Crime Footage, Nothing Political Per Se, Is What They Made Julian Assange Plead Guilty To (War Criminals Not Convicted, Only Those Who Expose Them)
Wikileaks' Julian Assange: Exposing the US Military Crimes
20 Years Passed, Let's Go Even Faster Now
We are hoping to bring more original stories
 
In the First 6 Months of 2024 Thailand Moved to GNU/Linux, Not to Windows Vista 11
maybe users moved from Vista 10 and 11 to GNU/Linux, seeing where Microsoft was heading with forced hardware "upgrades"
Eko K. A. Owen, New Outreach and Communications Coordinator for the FSF
Nice to see many new additions to the FSF's team
Microsoft Has Slaves and Enablers, Not Partners
Obligatory meme too
Windows in Åland Islands: From 100% to Less Than Half
Åland Islands lost the sense of urgency to move to GNU/Linux
Tobias Platen Covered Freedom-To-Play Games in LibrePlanet 2024
Freedom-To-Play games using Taler
[Meme] Opening a 'Webapp' With 'Only' 4 GB of RAM
Until 2020 none of my PCs ever had more than 2 GB of RAM
Destination 'Five Percent'
We reckon GNU/Linux can break the 5% barrier some time by the end of this year, even without counting Chromebooks
A Crisis of Online Journalism
Almost a week ago a journalist was forced to plead guilty for an act of journalism
Germany One of Many Countries Where Microsoft's Bing Lost Market Share After All That LLM Nonsense (Bing Chat and Further Rebrands/Renames)
openai.com traffic plunged 60% last month
Microsoft’s Latest Antitrust Scrutiny
4 new stories
Microsoft Layoffs, Mass Plagiarism, and More
outrage included
GNU/Linux Climbed 0.25% This Month (in statCounter)
Around midday on Tuesday we'll start seeing preliminary data for July
Ilya Gulko Introduces Pollyanna
"Pollyanna is a web framework that makes it easy to create your own libre social space, such as a social network or blog."
'FSFE': Underage Labour, GAFAM Fronting, and Identity Theft to Undermine the FSF's Current Fundraiser
looking to raise funds at the same time as the FSF
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 29, 2024
IRC logs for Saturday, June 29, 2024
Links 29/06/2024: Astronauts at Risk, Ukraine Updates
Links for the day
Fedora and Red Hat Leftovers
mostly redhat.com
Microsoft is Now Googlebombing or Spamming 'Open Source' and 'Linux' to Promote Proprietary Surveillance, Azure
Notice the title and the image, what's being promoted etc.
Seychelles: GNU/Linux Doing OK
Seychelles cannot be considered poor
Gemini Protocol Isn't Even Remotely "Dead"
"Lupa knows of 505,000 (half a million!) working Gemini URLs at present, up from about 425,000 this time last year"
About 10 New Free Software Foundation (FSF) Members Per Day
The total changed from 46 to 47 while typing the article
Vista 11 Adoption Unusually Low in Germany and It's Going Down, Not Up
This is not happening only in Germany
Kevin Korte on Computers Being Allowed to Make Decisions Based on Cryptic Algorithms and Proprietary/Secret Data
It uses buzzwords where none are needed
[Meme] Garbage In, Garbage Out (linuxsecurity.com)
It is neither Linux nor security, just chatbot-generated slop
Microsoft-Invaded CISA Spreads Anti-Free Software FUD (as If Proprietary Software Has No Memory Safety Issues), Brittany Day Uses Chatbots to Amplify and Permutate the Microsoft FUD
linuxsecurity.com became an anti-Linux spam site
Microsoft Laying Off Staff in an Act of Retaliation and Union-Busting
retaliatory layoffs at Microsoft
Gemini Links 29/06/2024: Content Drowning in 'Goo' and LLM Slop
Links for the day
Windows Lost Almost 92% Market Share in Egypt
From over 99% to just over 7%
In Ecuador, GNU/Linux Adoption Surged From Under 1% to Over 4% in About 3 Years
Not even counting Chromebooks
LibrePlanet: Cultivating Backups (of Recordings)
an appeal to recover some of these talks
Microsoft/Windows Machines Are Turned Off (or Windows Deleted/Decommissioned) in Web Servers, as the "Market Share" Collapse Continues
Taking full history into account, this is a decrease of over 90% in some cases
Corwin Brust Hosting Freedom: A Behind-the-scenes Tour With the GNU Savannah Hackers
"the "smiling faces" behind it."
Android at 90% or More in Chad
Windows below 2%
David Wilson: Cultivating a Welcoming Free Software Community That Lasts
"a feeling of shared ownership for all users."
Julian Assange Might Continue Wikileaks, But Certainly Not Yet (Recovery Time Needed)
And probably at a symbolic capacity only
Bringing in 12 Santas and Taking 13 Out (Old Interview With Julian Assange)
Julian Assange's life inside the Ecuadorian embassy
Neil Plotnick on GNU/Linux in the High School Classroom
uploaded to the LibrePlanet instance of MediaGoblin
Asia Appears to be Fastest to Adopt GNU/Linux
the home of a considerable majority of the world's population
Alexandre Oliva's LibrePlanet 2024 Talk About "Software Enshittification"
in spite of technical difficulties encountered while recording
What They Used to Do With Mono They Now Do With Systemd (Lower and Deeper Down Than Userspace)
Now we have a project started primarily by Red Hat (and managed by Microsoft GitHub, which is proprietary) being managed by Microsoft and primarily serving Microsoft and IBM
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 28, 2024
IRC logs for Friday, June 28, 2024
Links 28/06/2024: Kangaroo Courts and Patents Spam, EFF Still Fighting for CPC's TikTok (a Digital Weapon)
Links for the day
Links 28/06/2024: Overton window and Polarization
Links for the day
[Meme] In 50 Years...
Microsoft's Vista 11 will take 50 years to be fully adopted
Only About 1 in 8 Russian Windows Users is Using Vista 11
it looks like over the past 12 months Vista 11 hardly grew and it remains very low at around 12% of Windows usage in Russia
Links 28/06/2024: More Attacks on the Press, More Censorship in Russia
Links for the day
Gemini Links 28/06/2024: Christmas Prematurely, Self-hosting
Links for the day
IBM: So Long, Suckers. Your Free OS is Now Proprietary. Pay IBM or Else.
almost exactly a year after turning RHEL into proprietary software
Vista 11 is Doomed and Despite Lack of Adoption Microsoft Already Speaks of Vapourware ("12")
"Microsoft has pulled a Windows 11 update after users reported boot loops and startup failures."
ChromeOS Reaches Highest Share in Years at the World's Most Populous Nation, Windows Now at All-Time Low of 13%
We're talking about India today
[Video] "It Is Incredible That Julian Assange Survives"
There was a positive and mutual relationship between Wikileaks and Dr Jill Stein
Never Assume That Because the Law Exists the Powerful Will Follow the Law
Who's going to hold them accountable now?
Nearly a Month Has Passed and Nobody at the Debian Project Even Attempted to Explain What Seems Like Back-dooring of Debian (and Hundreds of Distros That Are Debian-Derived)
I can cynically guess that only matters when a user with a Chinese name does it
[Video] Julian Assange Explains Wikileaks' Logistics
predating indefinite detention
IBM Was Never the "Good Guy", Just a Self-Serving and Opportunistic Money- and Power-Hungry Monopolist, Living Off of Taxpayers' Money (Government Contracts)
The Nazi Party of Germany was its second-biggest client at one point and now it's looking to profit from the work of slaves
"I Hated Working at IBM. They Were the Most Unfriendly People."
Don't forget what Watson the son did to a poor woman on a plane
State of the News (and Depletion of Journalism Online, Not Just Offline)
Newspapers are not coming back and the Web is not coming back either
GNU/Linux Consolidates in North America
Android rising a lot this year, too
[Meme] More Monopolies Granted While Patent Examiners Die (Overworking for Less Compensation)
Work more; Get less
Staff Union of the EPO (SUEPO) is Taking the New Pension Scheme (NPS) to an International Tribunal (ILOAT)
SUEPO wants more EPO staff to participate in collective action
Stella Assange and the Legal Team Speak to the Media a Day After WikiLeaks Founder Julian Assange Arrives in Australia
Published yesterday by a number of mainstream publishers
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 27, 2024
IRC logs for Thursday, June 27, 2024
RIP Daniel Bristot de Oliveira, Red Hat death
Reprinted with permission from Daniel Pocock