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IP, Patent

When Donald Chisum Speaks, Listen.

FromPeter Zura’s blog,

[Donald Chisum] cogently points out … the Supreme Court’s decision in Benson, and that the decision “served noone’s interest . . . Its ambiguity allowed software patent proponents to subvert any bar that software patent opponents desired [and] also deterred legitimate inventors of software-implemented inventions from applying for patent protection.”

I don’t spend much time criticizing Supreme Court cases, instead opting to follow the late Judge Rich’s advice:

However, it will get litigants nowhere to tell the lower federal courts that the Supreme Court has lost is marbles! … That would cause the Court to lose face and it would be disrespectful …. No lawyer in his right mind would do that.

Giles S. Rich, Escaping the Tyranny of Words – Is Evolution in Legal Thinking Impossible?,  NONOBVIOUSNESS – THE ULTIMATE CONDITION OF PATENTABILITY, at 3:301 – 324 (1980), reprinted in 14 FED. CIR. B.J. 193, 194 (2004)

Nevertheless, Chisum lays out a convincing argument, including a lengthy dissection of the famous Benson quote: “Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.”

I highly recommend reading Peter’s synopsis here, or Chisum’s full article on SSRN.



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