One of the major problems in U.S. patent law is that the people at the USPTO and the Federal Circuit apparently:
- either misunderstand the statutory and case law limits of patentability,
- or are so blindered by their technology backgrounds that they are unable to shake off a subconscious tech bias favoring patent applicants, no matter what they are trying to patent.
In oral arguments to Carlsbad Tech., Inc. v. HIF Bio, Inc., Chief Justice Roberts in the course of discussion about the decisions of the circuit courts had a strong rebuke of the Federal Circuit which is probably unparalleled in American jurisprudence:
"Mr. Rhodes: I can't suggest what the Court might finally decide other than to say that -- that, again, the circuit courts of appeal have uniformly applied this....As written at The Prior Art:
Chief Justice Roberts: Well, they don't have a choice, right?
They can't say, I don't like the Supreme Court rule so I'm not going to apply it, other than the Federal Circuit.
"This rebuke seems to indicate that as Roberts sees it, the Federal Circuit has a habit of blowing off Supreme Court precedent."
The Federal Circuit as a unique nation-wide court of appeals in patent matters has caused great harm to the U.S. legal system in recent years, leading to the increasingly heard complaint that "the patent system is broken".
That system is broken in part because the USPTO keeps granting patents for things that are properly not patentable and the Federal Circuit keeps affirming those clearly erroneous patent grants. Frankly, we think the size of the USPTO should be reduced to a tenth of its present size and the Federal Circuit should be disbanded. We would have fewer senseless patents, while the normal circuit courts would do a better job with patent appeals as a matter of law.
Good examples of wrongful patent grants by the USPTO are Apple patents for finger pinching, finger tapping and finger scrolling and bounce-backing, about which LawPundit has posted previously in terms of prior art and obviousness.
Apple patents for "finger pinch" and "finger tap" and "finger scroll" in our opinion also violate 35 U.S.C. § 101 as being unpatentable according to e.g. the March 20, 2012 U.S. Supreme Court decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc., No. 10-1150 (2012), etc., according to which natural phenomena are not patentable. As written there:
"JUSTICE BREYER delivered the opinion of the Court.
Section 101 of the Patent Act defines patentable subject matter. It says:It is obvious to everyone that no patent applicant can go into the USPTO and try to patent finger pinching or finger tapping in general because these constitute human motion and thus are natural phenomena -- NOT invented by any human inventor. Whatever motion the human body is capable of, it is capable of, by nature, not by human invention.
"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." 35 U. S. C. §101.The Court has long held that this provision contains an important implicit exception. "[L]aws of nature, natural phenomena, and abstract ideas" are not patentable. Diamond v. Diehr, 450 U. S. 175, 185 (1981); see also Bilski v. Kappos, 561 U. S. ___, ___ (2010) (slip op., at 5); Diamond v. Chakrabarty, 447 U. S. 303, 309 (1980); Le Roy v. Tatham, 14 How. 156, 175 (1853); O’Reilly v. Morse, 15 How. 62, 112–120 (1854); cf. Neilson v. Harford, Webster’s Patent Cases 295, 371 (1841) (English case discussing same)."
- Natural phenomena are not patentable.
- Human motion is a natural phenomena, and thus is not patentable.
- General human motion is not patentable. That is clear.
- Specific human motion is not patentable, because what is true for the whole is true for the parts. You can not "rope off" a small section of human motion as a proprietary right.
- Hence, specific human motion applied to some gadget or application is not patentable.
Just because some company "picks" some human motion as its choice for the means to control or command a tool or machine in some manner does not make that selection "patentable". The "means" of control or command -- i.e. human motion -- are NEVER an invention. Selection of the means of human control is an option that can be freely chosen and used, based on the natural phenomena of human motion. That selection is NOT a protected invention.
A patent applicant may be able to obtain patents for capacitive or resistive "touch" screens as tools or machines -- they are of course human inventions -- but you can not patent any human motion by which such displays are to be commanded and controlled.
Similarly, if you patent a toothbrush or a hair dryer or razor, you can not obtain a patent for how the user is to brush his teeth with that toothbrush, hold and move the hair dryer when drying hair or circulate the electric razor on one's beard.
This is so simple that we simply do not understand how the modern legal and patent community have been unable to comprehend that electronic and other devices are no different. You can not patent human motion.
Sadly, this will remain a terribly confused area of law until the U.S. Supreme Court specifically declares that human motion -- as a natural phenomena -- is not patentable in any way, shape or form.
The Federal Circuit should be doing this -- but expecting the judges on that court to inject a dose of sanity into the patent world seems an illusory wish.