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IGNORING DUE PROCESS: HOW PATENT LAWS/COURT DECISIONS DESTROY YOUR PATENTS' VALUE



THE CONSTITUTIONALLY-IGNORED DUE PROCESS PUBLIC NOTICE FAILURE OF THE PATENT SYSTEM

"... judicial rulings on Section 101 have now become too numerous and too inconsistent to predictably and uniformly apply ..."
CAFC Judge Paul Michel, April 2020 - "too inconsistent to predictably apply" is a polite way to say unconstitutionally vague
For decades, the patent system has unconstitutionally used statutory terms (such as 'process', 'obvious', 'enabling', 'in the arts') and unconstitutionally judicially-created statutory terms ('abstract', 'claim construction' which violates 35 USC 112) to deny patents for inventions, or invalidate already issued patents, even those the use of most of these terms violates Constitutional requirements that the inventing public - patent owners and their competitors - be provide reasonably clear guidance as to what these terms mean to a reasonable degree of certainty, as required by the Due Process Public Notice requirements of the U.S. Constitution.

What follows is a review of the apathy of the patent system towards insuring Due Process rights for patent applicants/owners, clear examples of the complete lack of Public Notice for 35 USC 101, and some court decisions with language that patent lawyers should be using to defend the rights of their clients, but refuse to do so.

The Shadow Patent Office is creating a Patent Examination insurance policy that will help patent owners/applicants defend and enforce their Due Process rights guaranteed by the Constitution.
DUE PROCESS CASELAW - CIVIL LAW



PATENT VALUE DESTRUCTION DUE TO THE FAILURE TO APPLY DUE PROCESS PUBLIC NOTICE TO 35 USC 101 AND 'abstract'

The fundamental law for what is or isn't patentable is 35 U.S.C. 101:

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.
Given that the majority of patents issued nowadays are for software and algorithms - processes, the patent system users have a Consitutional right to know what the law means by 'process', which is a statutory construction that only Congress can perform. Unfortunately, when Congress passed this law in 1952, it did not define 'process'. The only definition provided is provided in 35 USC 100(b):
The term 'process' means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.
Presumably, without a providing an explicit definition (other than the circular 'process is a process', Congress intended the definition of 'process' to the well-known, universally accepted definition of 'process', as seen, for example, in the Merriam-Webster dictionaries:
a series of actions that produce something or that lead to a particular result
It is universally accepted that computer instructions that comprise software and algorithms are 'actions' that produce a result: the result of the software or algorithm running on a processor. All software is a process, and thus immediately satisfies 35 USC 101.

Yet, in 1972 decision, Gottschalk v. Benson, the Supreme Court effectively (and unconstitutionally) added a new word to 35 USC 101:
Whoever invents or discovers any new and useful process that is abstract, 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.
In the 50 years since this decision, the Supreme Court and its lower court, the Court of Appeals of the Federal Circuit, have REFUSED to define what they mean by 'abstract'. The judges are constantly insulting each other in decisions destroying patents, all of them arguing that the other judges don't understand 'abstract'.
"... judicial rulings on Section 101 have now become too numerous and too inconsistent to predictably and uniformly apply ..."
CAFC Judge Paul Michel, April 2020 - "too inconsistent to predictably apply" is a polite way to say unconstitutionally vague
Judge Michel's statement is the very definition of an unconsitutionally vague statute. The judges don't understand how to apply 'abstract' to software. No one does. Because the Supreme Court refuses to define 'abstract'. Which it can't, because no one on the Supreme Court understands computer science and software engineering.

The lack of a definition of 'abstract' is a complete violation of the threshold of vagueness for Due Process Public Notice for civil laws. Any patent application rejected, or any issued patent invalidated, for being 'abstract' was so destroyed unconstitutionally. Hundreds of millions of dollars have been wasted fighting 101 rejections. Billions of dollars of corporate value have been destroyed in patents invalidated for being 'abstract'. In this matter, the Supreme Court and the CAFC are threats to U.S. national economic security.

If your law firm refuses to spend some of its monies - your monies - fighting this betrayal of the Constitution (such as deleting 35 USC 101, everyone agrees that 35 USC 102, 103 and 112 are sufficient filters), FIND ANOTHER LAW FIRM. Your current law firm has not respect for you, your innovations, or your money.

Three related articles on the insanity, and thus unconstitutionality, of 35 USC 101 caselaw, by patent lawyer Burman York:



PATENT VALUE DESTRUCTION DUE TO THE FAILURE TO APPLY DUE PROCESS PUBLIC NOTICE TO 35 USC 103 AND 'obvious'

Why all application of 35 USC 103's 'obvious' violates Due Process Public Notice

How AI design tools combined with Due Process violating 'obvious' court decisions is a new way to destroy your patents

Every year, AI design tools become more powerful in terms of being to invent drugs, circuits, mechanical devices, computer programs - completely autonomously. If all the human/inventor/"individual" is doing is to press the "RUN" button, is that invention done by a "Whoever" to satisfy 35 USC 101? If one skilled of a PHOSITA - one skilled in the art - is to use such tools, are any inventions output from the program "obvious" and not patentable as the "predictable" outcomes of the PHOSITA under 35 USC 103?

We have created a database of papers on the
intersection of invention discovery tools and obviousness patent law, to help you explore these tools. And rules based on these development are being built into the Analyzer.



PATENT VALUE DESTRUCTION DUE TO THE FAILURE TO APPLY DUE PROCESS PUBLIC NOTICE TO 35 USC 112 AND 'enabled'



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