I can't tell if you are heavily drinking the kool-aid, or trolling, but ...
You say each has a "well-known and mostly consistent history behind it"
None of these have a consistent history, being subject to the whims of changing panels and ideological en-banc fights every couple years when a new judge gets appointed.
You act as if they are well thought out, well applied doctrines, when they are completely hit-or-miss bullshit that has caused the MPEP to explode due to the inconsistencies.
"I'm guessing this is going to make the PTO's and Federal Circuit's job even harder and more inconsistent."
The federal circuit needs no help becoming more inconsistent, they do a great job on their own.
> I can't tell if you are heavily drinking the kool-aid, or trolling, but ...
No, just armchair-lawyering :-) My experience in this field, while more extensive than most non-attorneys, has been as a hobbyist. What I lack in hands-on experience, however, I try to make up by reading empirical studies.
I would agree that the standards of 101, 102, etc. have not been evenly applied, to say the least. In fact, that's why the Federal Circuit was formed. There are studies evaluating to what extent they have been successful in harmonizing patent law. To your point, there is even a study on how consistent (or not) the CAFC is. (Will try to dig them up when I get a chance.)
However, what I'm trying to say is, regardless of how the statutes have been implemented, the theory is sound and rational: a patent has multiple, largely orthogonal, dimensions and it should be judged along those lines. To my engineering mind, anything that conflates those dimensions is an inelegant and problematic ruling.
However, what I'm trying to say is, regardless of how the statutes have been implemented, the theory is sound and rational: a patent has multiple, largely orthogonal, dimensions and it should be judged along those lines. To my engineering mind, anything that conflates those dimensions is an inelegant and problematic ruling.
Yeah, the problem with that idea is that rulings aren't intended to implement abstract theories independent of the controlling enactments (the statutes and the Constitution). The theory that patents have "multiple, largely orthogonal dimensions", at least as you seem to identify those dimensions -- and particularly the idea that newness is a consideration only for Section 102 patentability, and not Section 101 patent eligibility -- is inconsistent with the actual text of Section 101, which explicitly requires for eligibility that the thing sought to be protected is (a) an invention that is (b) new and (c) useful.
Your aesthetic preference for orthogonal considerations where newness would be a considered only for Section 102 patentability is, of course, a legitimate aesthetic preference -- but its not what the statute says, and I think it would a more "problematic ruling" for the court to ignore the statute simply out of aesthetic preference for orthogonal categories with a certain configuration.
This is more true to the realities of this issue than anything else in these comments. We're still stuck with an "I know it when I see it rule" that depends on what the examiner/judge had for breakfast.
Comments
I can't tell if you are heavily drinking the kool-aid, or trolling, but ...
You say each has a "well-known and mostly consistent history behind it"
None of these have a consistent history, being subject to the whims of changing panels and ideological en-banc fights every couple years when a new judge gets appointed.
You act as if they are well thought out, well applied doctrines, when they are completely hit-or-miss bullshit that has caused the MPEP to explode due to the inconsistencies.
"I'm guessing this is going to make the PTO's and Federal Circuit's job even harder and more inconsistent."
The federal circuit needs no help becoming more inconsistent, they do a great job on their own.
> I can't tell if you are heavily drinking the kool-aid, or trolling, but ...
No, just armchair-lawyering :-) My experience in this field, while more extensive than most non-attorneys, has been as a hobbyist. What I lack in hands-on experience, however, I try to make up by reading empirical studies.
I would agree that the standards of 101, 102, etc. have not been evenly applied, to say the least. In fact, that's why the Federal Circuit was formed. There are studies evaluating to what extent they have been successful in harmonizing patent law. To your point, there is even a study on how consistent (or not) the CAFC is. (Will try to dig them up when I get a chance.)
However, what I'm trying to say is, regardless of how the statutes have been implemented, the theory is sound and rational: a patent has multiple, largely orthogonal, dimensions and it should be judged along those lines. To my engineering mind, anything that conflates those dimensions is an inelegant and problematic ruling.
Yeah, the problem with that idea is that rulings aren't intended to implement abstract theories independent of the controlling enactments (the statutes and the Constitution). The theory that patents have "multiple, largely orthogonal dimensions", at least as you seem to identify those dimensions -- and particularly the idea that newness is a consideration only for Section 102 patentability, and not Section 101 patent eligibility -- is inconsistent with the actual text of Section 101, which explicitly requires for eligibility that the thing sought to be protected is (a) an invention that is (b) new and (c) useful.
Your aesthetic preference for orthogonal considerations where newness would be a considered only for Section 102 patentability is, of course, a legitimate aesthetic preference -- but its not what the statute says, and I think it would a more "problematic ruling" for the court to ignore the statute simply out of aesthetic preference for orthogonal categories with a certain configuration.
Replying since I can't edit the post... Some studies regarding the contributions, consistencies and inconsistencies of the CAFC.
1. "Promoting the Progress: Three Decades of Patent Jurisprudence in the Court of Appeals for the Federal Circuit", Damon C. Andrews" - http://law.missouri.edu/lawreview/files/2012/11/Andrews.pdf
2. "On the Causes of Unpredictability of Federal Circuit Decisions In Patent Cases", Paul M. Janicke - http://papers.ssrn.com/sol3/papers.cfm?abstract_id=960636
3. "How Federal Circuit Judges Vote in Patent Validity Cases", Mark Lemley and John R. Allison - http://papers.ssrn.com/sol3/papers.cfm?abstract_id=189512
This is more true to the realities of this issue than anything else in these comments. We're still stuck with an "I know it when I see it rule" that depends on what the examiner/judge had for breakfast.