That would explain why his words in Bergy are so on point. However, in various
opinions, he reinterprets words to suit the case in point.
It is the
intention of Congress and the actual word of the law that is important. If one
of the drafters of the law chooses (and I think that is what has happened) to
misread the law to suit his view of what should happen in a case, then he should
be called on it.
A case in point:
Judge Rich, in State Street
Bank v. Sign. Fin. Group said:Section 101 states that any new and
useful process, machine, manufacture,composition of matter, or any new and
useful improvement thereof is patentable. The
repetitive use of the term 'any'
in the section indicates the intent of congress not to place
any restrictions or
read any limitations on the scope of patentable subject matter. This
was
affirmed by the supreme court in Diamond v. Chakrabarty, where it held
that
anything under the sun made by man is patentable.
The missing
word 'or' changes the word of the law to fit his interpretation.
What
the Supreme Court actually said in Diamond v. Chakrabarty:
The
Court of Customs and Patent Appeals, by a divided vote, reversed on the
authority of its prior decision in In re Bergy, 563 F. 2d 1031, 1038 (1977),
which held that "the fact that microorganisms . . . are alive . . . [is] without
legal significance" for purposes of the patent law...
The Committee
Reports accompanying the 1952 Act inform us that Congress intended statutory
subject matter to "include anything under the sun that is made by man." S. Rep.
No. 1979, 82d Cong., 2d Sess., 5 (1952); H. R. Rep. No. 1923, 82d Cong., 2d
Sess., 6 (1952).[6]
This is not to suggest that ยง 101 has no limits or
that it embraces every discovery. The laws of nature, physical phenomena, and
abstract ideas have been held not patentable. See Parker v. Flook, (1978);
Gottschalk v. Benson, (1972); Funk Brothers Seed Co. v. Kalo Inoculant Co.,
(1948); O'Reilly v. Morse, (1854); Le Roy v. Tatham, (1853). Thus, a new mineral
discovered in the earth or a new plant found in the wild is not patentable
subject matter. Likewise, Einstein could not patent his celebrated law that
E=mc[2]; nor could Newton have patented the law of gravity. Such discoveries are
"manifestations of . . . nature, free to all men and reserved exclusively to
none."
Congress intended that statutory subject matter
should include anything under the sun that is made by man. What Congress
did not say is that a patentable invention should be allowed to include every
form of statutory subject matter and the law confirms that a patentable
invention must be in one of four types of subject matter. Until Congress choose
to rewrite the 'or' as an 'and' then the plain English interpretation of the law
holds. Judge Rich makes great play of the word 'any' as he is entitled to, but
he should not claim that it has any more weight than any other word of the law
when determining what it means.---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
|
