Let’s revisit the well….

“This is all about the on sale bar and really ought not to involve obviousness.”

Yet again, MaxDrei wants to avoid a critical look at the law undergirding the choices of the US sovereign.

Under those choices, the legal fiction known as PHOSITA (Person Having Ordinary Skill In The Art) is the consistent notion that applies to any and all scenarios of “prior art.”

All.

That is the US Sovereign’s choice – and it has been expressly made.

With that critical understanding, one then is required to recognize that a fundamental aspect of the AIA was – quite opposite as to what Ron K notes – “The pre-AIA forfeiture bars were never about prior art.“: pre-AIA purposefully folded in the forfeiture bars to be as prior art. Ron K. is simply – and fundamentally – in error as to the pre-AIA forfeiture bars. Congress knew well and easy how to fashion a law that would not have folded the personal forfeitures into the prior art section of the law. It would have been extremely easy for Congress to merely create a separate section of personal forfeitures.

They did not do so.

Were they ever “exactly the same?”

Of course not.

But they were legally treated as the same.

Yes. Yes, they were.

It was the express purpose of the AIA to change that.

We’ve been over all the various points that I have put on the table for discussion (points, I remind you, that have never been negated: from the direct re-titling of the sections, to various pronouncements -including the Soliloquy that occurred PRIOR to the Senate version being picked up by the House and then returning to the Senate).

MaxDrei then “asks”:

“Is it open to SCOTUS here,… change the definition of the state of the art against which novelty is to be assessed”

As so very recently pointed out, MaxDrei attempts to spin the US Sovereign’s choice to NOT bifurcate the legal notion of PHOSITA and wants to apply that notion SOLELY to the novelty point.

Why?

Why is MaxDrei trying so very desperately to impart a bifurcation where none exists (under the choice of the US Sovereign)?

And why does MaxDrei phrase this such as the wrong branch of the government rewriting the words of Congress to even arrive at his (desired) bifurcated state?

As subtle as MaxDrei gets, he then provides that he DOES know and understand that the US sovereign HAS made a particular choice, but leaves a denigrating quip as to his feelings about making such a (bifurcated) use of the notion of PHOSITA, making it appear that an underlying concept of the legal fiction is somehow “silly” when applied to obviousness – but no sense of that silliness is in play when CONSISTENTLY applied to the notion of novelty. He omits the very core point that I so recently pointed out to him: the US has chosen consistency of the legal fiction known as PHOSITA, and does not -as ROW does – mishmash that legal fiction with real inventors and pretend that a mishmash has somehow not been chosen.

“I’m looking forward to the outcome with great relish.”

Hmm, I have to take this as the type of “great relish” that one would see in those morbid onlookers of a train wreck or natural calamity.

I do not see this as a sign of someone interested in the Rule of Law, or the critical thinking that may underscore the creation, application, or consistency of that Rule of Law.