Wednesday, September 12, 2012

Germany's Ratification of European Stability Mechanism ESM Not Blocked by German Federal Constitutional Court, But With Some Conditions

As LawPundit predicted in its posting yesterday, the German Federal Constitutional Court ("the Court") today "reject[ed] calls to block the Eurozone rescue fund" (USA Today) (bailout of the weaker Eurozone economies) and ruled that Germany's ongoing process of ratification of the European Stability Mechanism (ESM) was legally acceptable, provided that the German contribution to ESM did not exceed € 190 billion Euros (US $240 billion dollars) and provided that the flow of comprehensive information to the German Parliament was not hindered.

Read in English at the following link Extracts from the decision of the Federal Constitutional Court of 12 September 2012 including as below the "Judgment" (which is not a definitive "legally binding" text in its English translation but is given here for information):
"The Federal Constitutional Court – Second Senate – with the participation of


The applications for the issue of a temporary injunction are refused with the proviso that the Treaty establishing the European Stability Mechanism (Bundestag printed paper (Bundestagsdrucksache – BTDrucks) 17/9045, pages 6 ff.) may only be ratified if at the same time it is ensured under international law that
As detailed by Nicholas Kulish and Melissa Eddy at the New York Times at In Victory for Merkel, German Court Backs Euro Rescue Fund:
"The court was not formally ruling on the constitutionality of what is intended as a long-term fund to bail out countries in financial trouble, but on requests to block the German president from signing the bill into law.

The question before the court was whether the new fund would weaken the German Parliament’s right to control the spending of German taxpayers’ money."
Peter Carvill in a Special for USA Today wrote:
"The court ruled only against an injunction to stop the ratification of the treaty Wednesday, and will make its final ruling in December. Even so, it laid out its reasoning for allowing the ESM to move forward. "The relevant factor to accommodate the principles of democracy is whether the (lower house of parliament) remains the institution that makes independent decisions on revenue and expenditure," judges wrote. But "no permanent mechanisms may be created under international treaties that would equal accepting liability for decisions by other countries." "
In a decision that reminded this writer of the wisdom of Chief Justice Roberts ruling opinion in the U.S. Supreme Court decision on Obamacare, German Justice Andreas Vosskuhle, President of the German Federal Constitutional Court, emphasized the rule of law and explained the decision as holding that not the Constitutional Court but rather the directly elected political representatives of the people should decide the future of Europe as well as budgetary questions related to its financial future.

Justice Peter Huber of the German Court noted about ESM that the Eurozone rescue fund does not permit German taxpayer monies to be spent without their approval and "does not hand over rights of budgetary decisions to any other actors." That was a chief worry of the applicants who had asked for the temporary injunction.

The process of the ratification by Germany of the European Stability Mechanism can now continue.

USPTO, Federal Circuit and Apple Patents for Finger Pinches, Taps and Scrolling Violate 35 U.S.C. § 101 as Unpatentable Natural Phenomena according to the U.S. Supreme Court Decision in Mayo v. Prometheus

Just imagine if the makers of door handles and door knobs had been able to patent the hand motion required to open and close doors by them, or if producers of pens and pencils had been able to patent the various positions and motions of the hand in using a writing implement, and you should then be able to understand the perfidy and absurdity of the modern patents granted for finger pinches, finger taps or finger scrolling on electronic displays.

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.
Let us quote a small "anecdote"....

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....

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.

As written at The Prior Art:
"This rebuke seems to indicate that as Roberts sees it, the Federal Circuit has a habit of blowing off Supreme Court precedent."
The "laughter" during oral argument in response to the Roberts' statement indicates that many in the court audience also appreciated what Roberts was talking about in pointing to a Federal Circuit that does not apply Supreme Court precedents the way they should be applied as a matter of law.

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:
"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)."
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.
  • 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.
Whether you are patenting human motion large or small makes no difference, since you are still patenting human motion and THAT is forbidden because human motion is a natural phenomenon which no human inventor has invented.

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.

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