Subject: Re: [Freesw] priorart.org
From: "Frank BENNETT (フランク ベネット )" <bennett@nomolog.nagoya-u.ac.jp>
Date: Thu, 17 May 2001 15:47:57 +0900

On Wed, May 16, 2001 at 11:53:34PM -0600, Richard Stallman wrote:
>     I don't see how the no-cooperation view squares with evidence that the PTO has
>     been pushed by the Court to expand the scope of things that can be patented.
> 
> The CAFC has pushed the expansion in patentable subject matter, but
> that is not the issue here--the question of whether certain subject
> matter is patentable has nothing to do with prior art.  Prior art
> affects the question of whether a given patent or patent application
> is new and unobvious.

True.  Nonetheless, the observed behavior of the CAFC does not foster
confidence that it wants to be a check on PTO excess.

>       Put another way, would not the principle that the enemy of my
>     enemy is my friend apply here?
> 
> That isn't a principle, just a heuristic.

Yep.  Consider my wrist to have been slapped.

> Our enemies are patent holders.  If they had an enemy, maybe it would
> be our friend.  But the PTO is not their enemy, it is their assistant.
> It does not quite rubber stamp their patent applications, but it comes
> pretty close.

The lasting enemy is prospective patent holders, and it is easier to use the
PTO against them than it is the CAFC.