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Jason Taylor
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I’m highly offended that Dennis would suggest that we abolish either the ITC or the Fuhrer’s supreme power over it. Hehe. More seriously, where’s the drop box for the COWH (Court of the White House) if we need to file an appeal brief? Oh, and where’s the rules pdf url? And do we get oral hearings? A jury trial, as is promised? Does one need have campaign contributions in one’s budget? Dennis, did you forget to mention there’s no res judicata? Yeah, judges just can do what they feel like. Very cool. Definitely no kangaroo court no sirree. Right. They go through a ton of hurt to put through the AIA but this atrocity of justice still exists? Nice url about POTUS’s duties here: Funny aside: The notion that someone who uses a Motorola Razr ( would have anything to say about smart phones (let alone patents). Jason
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Jason Taylor is now following Brian Galvin
Feb 21, 2013
Well said MM. Moocow, you're clearly right, I should indeed just *blindly* trust Monsanto to not to sue me. After all, it's not like Monsanto is the world's most evil corporation or anything.
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I think we should not dispense with the exhaustion doctrine trivially given other aspects of our society. Here, for example, SCOTUS seems set to make composts illegal. Claim 122 reads, “A seed of the plant of claim 116, wherein the seed comprises the DNA sequence encoding an EPSPS enzyme having the sequence of SEQ ID NO: 70.” The lack of a restriction on the generation implies all progeny are protected. All seems good. Except California’s Prop 37 (allowing consumers to know if seeds are GMO) lost. Therefore, consumers have no idea whether or not they are required to follow Monsanto’s licensing agreements. If you put some seeds you buy at the store in your son’s salad, who actually hates veggies, and he doesn’t eat all of it, and you compost the uneaten food, now you just might have infringed on claim 122, since the compost might grow a plant.
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As best I recall, the AIA act supposedly prohibits this. It should go into a special PTO reserve fund. But there's going to be a huge surplus unless the PTO needs some $10,000 toilets, examiner training sessions in the bahamas, etc. Inflation isn't 200%. Jason
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Or get some lab space.
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I largely agree with the other posters here in that I indeed think secret prior art should be used for 102 but *NOT* for 103 rejections. But to best understand why, one needs to step outside the KSR playpen and perhaps use a more realistic model of what obvious is in relation to the inventive process. The longer after the initial invention, the more obvious it would have been to do something to improve it. For instance, when light bulbs first came out, who cared about the fact that the voltage on the wires was so low it required thick wires and lots of copper. People were just crazy about it even working at all. Only much later, over time, as one was gaining experience in lighting buildings, would it have become obvious to someone skilled in the art that the voltage should be increased to decrease wiring costs. Edison, who apparently invented high voltage lights, filed within a year of Swan, so was probably fast enough it was non-obvious IMO. (As it turned out, Edison was denied. He eventually got some light bulb patents, but as I understand needed Swan’s permission to sell his lights here in the states.) Hypothetically speaking, had Edison waited long enough, he probably shouldn’t have gotten a patent for a high-voltage light bulb, because over time people realized high voltages lowered electrical power transportation costs. The point is that it took time for that idea to penetrate PHOSITA thought. This is one example, used purely because it seems the most popular, but I am pretty sure it works for most inventions. What we use in my company is what we call the “obviousness cone test.” It borrows heavily spacetime diagrams with light cones. In this paradigm, all inventions are sort of like the branching joints in a tree. Each joint represents a new idea that can cause new inventions to arise over time. The “obviousness cone” of one specific idea is such that as time goes upwards, prior-art ideas must be outside the cone, but the later ones could be inside the obviousness cone, depending on how different they are. KSR only deals with that “difference distance,” not its relation to time dimension. Over time, new ideas “branch out” into new directions as improvements become obvious within the inventive tree. The larger the lateral distance between two simultaneous ideas, the less obvious they were from one anther. To be exact, our obviousness cone test (i.e., is it inside or outside the cone of obviousness) requires knowing the rate at which PHOSITAs learned of the problems in the prior art, which sets the lateral “distance to the fixes” leading to the new invention. Eventually, if you waited long enough, all idea cones overlap, so everything becomes obvious from anything else. Now the law need not be as good as that model. But presently it only discusses the lateral distance. That is, Graham v. Deere 103. It doesn’t take into account the *time* distance dimension. (It assumes only square step functions.) Nothing is perfect, but clearly one can see the amendment as getting closer to the “obviousness cone test” for obviousness, because if the art is secret, there is no branch leading upward to it. The cone doesn’t even exist yet. The branching start exactly and only after the POSTIA gains potential awareness of the previous invention. That’s when the branch begins growth. That’s the point of the upside-down cone. Therefore, the amendment making secret prior art valid for 102s but only for 103s is indeed needed. Hope this brings some clarity to this issue. Sorry to any readers who already saw me post on this topic before. Cheers, Jason Taylor
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Jason Taylor is now following The Typepad Team
Mar 2, 2011