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| Authored by: Anonymous on Friday, March 29 2013 @ 12:16 PM EDT |
"Textualism is a formalist theory of statutory interpretation, holding that
a statute's ordinary meaning should govern its interpretation, as opposed to
inquiries into non-textual sources such as the intention of the legislature in
passing the law, the problem it was intended to remedy, or substantive questions
of the justice and rectitude of the law."
http://en.wikipedia.org/wiki/Textualism
"The sins against accepted principles of statutory interpretation in Judge
Rich's opinion in State Street seem so numerous, and so gross, that one might
expect that they would cause Justice Scalia's hair to stand up on end on reading
the opinion. Justice Scalia is a Textualist when it comes to statutory
interpretation"
The TEXT of the statute is thus:
35 U.S.C. § 101 35 U.S.C. 101 Inventions patentable.
Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent therefor, subject to the conditions and
requirements of this title.
It includes no exclusions of math, or algorithms or mental steps, or laws of
nature or any of the other nonsense courts have read into it.
So why would State Street make a textualist's hair stand on end?
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| Authored by: Anonymous on Friday, March 29 2013 @ 01:14 PM EDT |
"Thus Title 35 has shrunk down to sections 102, 103 and 112. What happened
to all the other sections of the statute?
Also what happened to the requirement that the purported inventor must ‘invent
or discover‘ something ‘new and useful’?"
102 covers new.
112 requires that the specification explain how to use the invention... so that
covers useful.[ Reply to This | Parent | # ]
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| Authored by: Anonymous on Friday, March 29 2013 @ 01:20 PM EDT |
" Whoever devises something useful falling within one of the four
stated categories shall receive a patent, subject only to the requirements of
§102, §103 and §112 ¶ 2.
Well that cuts out a lot of ‘surplusage’! Can we cut out a bit more? Time for
some legislative intent:"
It uses "falling within one of the four stated categories" in stead of
stating the categories and stating included in those categories are improvements
thereof ...." But if you know that's what "the four stated
categories" refers to, what surplus-age was removed?[ Reply to This | Parent | # ]
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| Authored by: PolR on Friday, March 29 2013 @ 04:32 PM EDT |
| Thanks for all this. It is informative. [ Reply to This | Parent | # ]
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| Authored by: macliam on Friday, March 29 2013 @ 04:35 PM EDT |
Having published early a long screed (longer than intended) on State
Street, I am planning to attach to this comment the first draft of an
account of some thoughts that have been going through my mind with regard to the
statutory interpretation or construction of section 101 of the Patent Statute
consistent with Supreme Court case law from Funk Bros. and earlier
through to Mayo.
The thoughts haven't of course come out of a
complete vacuum. I should in particular acknowledge reading some months ago an
academic paper by Douglas Rogers, on the faculty of the Moritz College of
Law of Ohio State University. And, to look again at the abstract, it would
appear that the conclusion he arrives at with regard to the construction of the
words “invention”, “new” and “useful” in the
statute seems consistent with that presented here. Insofar as the discussion in
that paper overlaps with that in the draft I intend to add as a comment here in
a couple of minutes, I can only say that I was inspired by reading his paper,
and that any infelicities, awkwardnesses, misunderstandings or errors in putting
such ideas forward here are my own.
I would also recommend the
Brief Amicus Curiae of Fifteen
Law Professors in the Supreme Court case ALU v. Myriad
Genetics.
The (hopefully) attached draft will probably be considered
lengthy and ponderous. I work forwards from the end of the sentence, through
the categories of subject-matter, to arrive at the construction of invent or
discover at the end of the draft. [ Reply to This | Parent | # ]
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| Authored by: Anonymous on Saturday, March 30 2013 @ 11:07 AM EDT |
All I can get from all the above discusion is firm and stark
confirmation that the who US patent system is hoplessly and
infinitely rediculous. It needs to be scrapped and never
see the light of day again.
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