Magical 'Cancer Cure' Wins EFF's Stupid Patent Of The Month

from the curing-cancer dept

Good news everyone! The Patent Office has granted a patent on a cure for cancer.

Last December, the Patent Office issued Patent No. 8,609,158 on a “potent drug” that “rebukes cancer, cancer cells, and kills cancer.” According to the patent, this drug cures a litany of other maladies. What is this wonderful invention, you ask? It is a combination of “evening primrose oil, rice, sesame seeds, green beans, coffee, meat, cheese, milk, green tea extract, evening primrose seeds, and wine.” As the patent’s abstract says, “it works.” 

There is no reason to doubt the sincerity of the person who filed this application. But the patent examiner could and should have rejected it on any number of grounds, including enablement, indefiniteness, and utility. Why would the examiner issue the patent despite its clear infirmities? The answer to that question reveals the fundamental imbalance at the heart of the patent system.

This patent’s most obvious flaw is lack of utility – there’s no proof that the invention works. But the system places the burden of proof on the Patent Office, not the person asking for a 20 year monopoly. The examiner likely decided a rejection was not worth the effort – frankly, we wonder whether the examiner even read the application. In a similar case, the Patent Office issued a patent to an applicant whose work was widely known to be fraudulent. (The purported inventor had even spent time in jail for the fraud.) As Professor James Grimmelmann observed at the time: “The USPTO is an armory handing out legal howitzers on the honor system. What could possibly go wrong?”

The patent system also provides inadequate review of the crucial questions of anticipation and obviousness, i.e. is the patent really a new invention? Buried by hundreds of thousands of applications, the Patent Office can preform only a cursory review of each one. Examiners spend an average of only 19 hours per application (assuming that the claimed hours are real) and only a portion of that time is spent on the difficult and time consuming task of searching for prior art. Recent research confirmed that “examiners are more likely to approve marginal inventions when pressed for time.”

Despite this plainly inadequate review, granted patents are powerful litigation weapons. An issued patent, even Patent No. 8,609,915, is presumed valid and can only be invalidated in court with clear and convincing evidence. This is part of the reason why defending a patent suit is so expensive, even when the patent is weak. Patent trolls use this as leverage to extort settlements.

This month’s winning patent may be something of an outlier. But finding other bad patents is not difficult. Our (dis)honorable mentions this month include the recent patents US 8,793,159, US 8,793,178, and US 8,793,183. (Each of these patents, despite being issued after the Supreme Court’s decision in Alice v. CLS Bank, merely ties an abstract business process to a computer.) Whether we consider this month’s stupid patent or the runners-up, it’s clear we need fundamental reform to stop the flood of bad patents.

Reposted from EFF's Stupid Patent of the Month

Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    DogBreath, Aug 29th, 2014 @ 11:10am

    I've heard of the blind leading the blind, but this is more like the quacks leading the quacks, but with a patent.

     

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  2.  
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    Brazilian Guy, Aug 29th, 2014 @ 11:13am

    "According to the patent, this drug cures a litany of other maladies. What is this wonderful invention, you ask? It is a combination of “evening primrose oil, rice, sesame seeds, green beans, coffee, meat, cheese, milk, green tea extract, evening primrose seeds, and wine.” As the patent’s abstract says, “it works.” "

    Cancer Cure? It looks more like an Elder Scrolls Alchemical formula. Plenty of healing too.

     

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  3.  
    identicon
    Anonymous Coward, Aug 29th, 2014 @ 11:19am

    'This patent’s most obvious flaw is lack of utility'

    no it isn't! it's having an patent 'idiot' examine' it!!

     

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  4.  
    identicon
    Anonymous Coward, Aug 29th, 2014 @ 11:22am

    Re:

    Sounds more like one of my ex-wife's dinner recipes. Can you patent a recipe?

     

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  5.  
    identicon
    Anonymous Coward, Aug 29th, 2014 @ 11:57am

    Once I again I claim the Patent office just approves everything rather than wasting resources checking the validity of a patent. The patent office might get that odd bad apple that spends to much time on investigating and negatively increases the average time spend reviewing patents.

    Quick approval and less examination off loads the cost to PROVE a patent to the industry who can afford real experts. Also it make it appear the patent office is doing a great job as the performance metrics clearly indicate how many patents they approve as a good thing - also helps validate their own budget and jobs.

     

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  6.  
    identicon
    DogBreath, Aug 29th, 2014 @ 12:08pm

    Re:

    I was expecting to find the word "Synergy" in there somewhere. I am disappointed.

     

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  7.  
    identicon
    Anonymous Coward, Aug 29th, 2014 @ 12:45pm

    this patent holder is the real cancer....

     

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  8.  
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    Keroberos (profile), Aug 29th, 2014 @ 12:58pm

    I want to know how it "rebukes" cancer--does it speak sharply to it and give it a time out?

     

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  9.  
    identicon
    trekological, Aug 29th, 2014 @ 1:06pm

    haha

    "There is no reason to doubt the sincerity of the person who filed this application. "

    oh me thinks your just tooooo nice....

     

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  10.  
    identicon
    Anonymous Coward, Aug 29th, 2014 @ 1:31pm

    I love the honourable mentions: Scan a reciept and recieve "reward from a list", "Path of Exile"-inspired barter market-place tool (that game may be his target!) and my favourite: A simple database searching algorith for customer support.

     

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  11.  
    identicon
    Anonymous Cowherd, Aug 29th, 2014 @ 2:16pm

    a rejection was not worth the effort?

    Its saying something about the patent system when the most efficient way to get rid of junk mail is to buy whatever it is they're selling without even reading it.

     

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  12.  
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    nasch (profile), Aug 29th, 2014 @ 3:11pm

    RJR

    Waiting for RJR / PIAA to jump to the defense of bad patents...

     

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  13.  
    identicon
    zip, Aug 29th, 2014 @ 3:13pm

    time for injecting 'public review' into the patent approval process?

    It's a wonder that even now, in the third decade of the internet, that the US Patent Office does not even have a system that allows public review of patent applications before they can be approved.

     

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  14.  
    identicon
    Anonymous Coward, Aug 29th, 2014 @ 3:23pm

    Re: time for injecting 'public review' into the patent approval process?

    They do - you can now submit prior art in pending applications. But there are so many applications it's not really practical.

     

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  15.  
    identicon
    any moose cow word, Aug 29th, 2014 @ 3:55pm

    "Stupid Patent Of The Month"? They're not trying hard enough. There's enough stupid patents being ramrodded through the USPTO to do a weekly competition. That might even make an interesting reality show, where the applicants have to prove to a group of 5th graders that their patent actually works.

     

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  16.  
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    Uriel-238 (profile), Aug 29th, 2014 @ 7:05pm

    Patent for the Cure

    Can they patent the action of curing cancer? If their recipe doesn't work, can they still sue for infringement if someone else develops one that does?

     

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  17.  
    identicon
    gnudist, Aug 29th, 2014 @ 8:37pm

    I rebuke you cancer in the name of evening primrose oil, rice, sesame seeds, green beans, coffee, meat, cheese, milk, green tea extract, evening primrose seeds, and wine!

     

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  18.  
    identicon
    Anonymous Coward, Aug 30th, 2014 @ 8:26am

    (spits tobacco juice)

    How is it with stains?

     

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  19.  
    icon
    hydroxide (profile), Aug 30th, 2014 @ 3:21pm

    If any more evidence was needed that the only thing the USPTO excels in is incompetence...
    But then, it's likely only the consequence of big companies demonstrating you should patent every ridiculous idea out there just so you can sue anyone else into oblivion...

     

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  20.  
    identicon
    Anonymous patent agent, Aug 30th, 2014 @ 11:07pm

    Re: non-examination

    I work with real inventors who have real inventions (new molecules, medical devices), whose patent applications get rejected by idiots who can't read, let alone think, and therefore apply inapposite publications. Why can't my clients get complete and total idiot examiners like this one? BTW, all this case demonstrates is the need for reform within the patent office, not a need to completely gut the system as many here seem to propose.

     

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  21.  
    identicon
    Anonymous Coward, Aug 31st, 2014 @ 2:15am

    This is a great patent

    I think the value of this patent is being missed:

    FDA (or equivalent) requirements means it will never actually be allowed to be marketed, but having this patent means the "inventor" can stop anyone else from doing this either. It works.

     

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  22.  
    identicon
    Anonymous Coward, Aug 31st, 2014 @ 6:07am

    A Pro Se application that issued with one exceedingly narrow "picture claim" that even a rock can design around. Hardly anything to lose sleep over. If EFF wants to provide some form of a public service regarding dubious patents, perhaps it should change its focus to patents having seemingly real world relevance.

     

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  23.  
    identicon
    Anonymous Coward, Aug 31st, 2014 @ 6:42am

    Re: Re:

    "Can you patent a recipe?"

    No, but you are allowed copyright upon the presentation.

     

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  24.  
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    niiwe (profile), Sep 1st, 2014 @ 12:02am

    Future developments....

    Does this mean that if someone, in 5 years from now, finds a compound in coffee (or rice, or...) that can be used as the basis for an actual cancer fighting drug, that they can't develop that drug as it would infringe on this patent?

     

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  25.  
    icon
    Mike Masnick (profile), Sep 1st, 2014 @ 4:01am

    Re:

    A Pro Se application that issued with one exceedingly narrow "picture claim" that even a rock can design around. Hardly anything to lose sleep over. If EFF wants to provide some form of a public service regarding dubious patents, perhaps it should change its focus to patents having seemingly real world relevance.

    I don't think anyone is legitimately worried about *this* patent. The point of this series, which is obvious to basically anyone with the intelligence and reasoning skills of a rock or better, is that if the patent office is allowing crap like this through, then what else are they allowing? The whole point is in highlighting just how bad the review process is.

    But, I know, I know, we can't post anything to Techdirt that criticizes copyright or patent law, without you chiming in to knock it. Some life you must lead.

     

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  26.  
    identicon
    Anonymous Coward, Sep 1st, 2014 @ 5:27am

    Re: Re:

    The vast majority of things you post on your site that are critical of copyright or patent law do not engender any response from me. In this case I made a comment only because so much negativity was being directed here at the person who received the patent. Only a rock would have believed this would not be the result, which led me to conclude that the EFF, not being a rock, presented the article in a deliberate and cheap attempt to score points at the expense of an individual. In addition, from the substantive content of the article it is clear to me that the author is a novice in the field of the law and procedure associated with patent prosecution.

    One can level criticism without holding others up to personal ridicule. This is something I believe the article's author should consider before writing his next article.

     

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  27.  
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    Mike Masnick (profile), Sep 1st, 2014 @ 6:39am

    Re: Re: Re:

    In this case I made a comment only because so much negativity was being directed here at the person who received the patent.

    Really? It appears to be directed at the person who approved the patent, and the nature of the USPTO that allows such things to occur. In fact, I'd argue that response has been tame concerning the issues related to the individual who received the patent, because it's pretty clear she is not the problem here (though, she may have problems).

    In addition, from the substantive content of the article it is clear to me that the author is a novice in the field of the law and procedure associated with patent prosecution.

    In addition, from your usual blabber comments, it is clear to me that the author of your comment is totally clueless about Daniel's knowledge and experience.

    But, you know with you, that's par for the course. All I need to do with you is say "Bret Easton Ellis" to remind you that you regularly speak from a position of near total ignorance and will never, ever admit it once called on it. Let's do this again: do you still think it's "hard to believe" that Ellis has fans? Because I still find that funny.

     

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  28.  
    identicon
    Anonymous Coward, Sep 1st, 2014 @ 8:18am

    You should read comments more closely. For example, referring to the recipient as a cancer is not in good taste.

    While reading, you are invited to go bak in time where you will discover you are repeating an erroneous construction of a comment long ago made.

     

    reply to this | link to this | view in thread ]

  29.  
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    Mike Masnick (profile), Sep 1st, 2014 @ 10:07am

    Re:

    You should read comments more closely. For example, referring to the recipient as a cancer is not in good taste.


    Oh gee. One anonymous commenter makes a lame joke and you condemn the original author? What is wrong with you?

    While reading, you are invited to go bak in time where you will discover you are repeating an erroneous construction of a comment long ago made.

    Yes, let's. We wrote an article about Bret Easton Ellis -- one of the most successful authors of our time, with a massive following, and you wrote: "The expertise of these gentlemen in film is as screen writers, so it is a bit difficult to see how they would have a fan following."

    https://www.techdirt.com/articles/20120518/07054018969/hollywood-talent-turns-to-kickstar ter-to-escape-institutional-censorship.shtml#c226

    And when myself and many others pointed out that you were totally and completely clueless, you continued to deny it, insisting that you didn't actually mean that you didn't think Bret Easton Ellis had much of a fan following, despite WHAT YOUR VERY WORDS SAID. I know I go back to this a lot, but just because it's the quintessential example of what you ALWAYS do.

    What I want to know is why? What in your mind thinks that you're being productive in society when you spout pure ignorance, while looking down on everything we post? You're an accomplished individual, not a standard internet troll. Why do you so lower yourself into acting worse than your average troll? What compels you to so constantly be so pedantic while consistently being *so* wrong, and *so* unable to admit to being so wrong? It's fascinating.

     

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  30.  
    identicon
    Anonymous Coward, Sep 1st, 2014 @ 1:04pm

    Re: Re:

    From your link:

    "First you claimed that these "screenwriters" have no fans. You were totally wrong."

    Would you be so kind as to point out where this was specifically stated? Saying something is difficult to see is not the same as "no".

    BTW, that rabid fan base does not appear to be as strong as you would have others believe given the stats for the movie's performance. Wonder if having a stronger producer would have helped?

     

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  31.  
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    Mike Masnick (profile), Sep 1st, 2014 @ 2:49pm

    Re: Re: Re:

    Would you be so kind as to point out where this was specifically stated? Saying something is difficult to see is not the same as "no".

    Anyone knows that when you said "it is a bit difficult to see how they would have a fan following" that you were clearly suggesting they did not have a fan following.

    You were wrong. You could admit it, but you've spent years digging your heels in and not admitting. I'm still wondering why.

    I mean, I could say "It's almost as if you're the dumbest motherfucker on the planet" and then you would call me out for cursing at you and using such language about you -- but then, I'd easily retort I never said that about you. I just said "it's almost as if" which doesn't necessarily mean that I *actually* think you're the dumbest motherfucker on the planet, right?

    BTW, that rabid fan base does not appear to be as strong as you would have others believe given the stats for the movie's performance.

    Any particular movie -- even those made by folks with giant fan bases -- can fail for various reasons. Ellis' failed, in part, because he had difficulty with a cast that involved a struggling Lindsay Lohan, and there was tremendous controversy at the time about her performance on set.

    None of that counters the fact that Ellis has a huge fan base, and you spoke out -- ridiculously -- implying that such a thing was unlikely.

    It's almost as if you're the dumbest motherfucker on the planet. Almost.

     

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  32.  
    identicon
    Anonymous Coward, Sep 1st, 2014 @ 3:17pm

    Re: Re: Re: Re:

    Apparently that huge fan base did not materialize into ticket paying customers, which makes me wonder if it is as huge and rabid as was then and now asserted.

    Who knows. Perhaps a stronger producer could have been of help.

     

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  33.  
    icon
    Mike Masnick (profile), Sep 1st, 2014 @ 3:31pm

    Re: Re: Re: Re: Re:

    Are you going to keep dodging the question?

    Can you admit that you were wrong?

     

    reply to this | link to this | view in thread ]

  34.  
    identicon
    Anonymous Coward, Sep 1st, 2014 @ 5:06pm

    Re: Re: Re: Re: Re: Re:

    Since nothing was said or intended to suggest that the writer(s) did not have a base, it is not clear what was wrong with the statement other than the failure to anticipate a strawman interpretation concerning what was not said or intended.

    As things turned out, it seems the fan base was possibly not as rabid or huge as repeated here. This does not mean it is insignificant. No, not at all. It does suggest, however, that the writers may perhaps have been better served had they allied with a producer having more solid credentials within the movie industry. A movie may represent an artistic creation, but making, promoting, and distributing it is a business endeavor.

     

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  35.  
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    Mike Masnick (profile), Sep 1st, 2014 @ 6:10pm

    Re: Re: Re: Re: Re: Re: Re:

    Since nothing was said or intended to suggest that the writer(s) did not have a base

    You mean other than "it is a bit difficult to see how they would have a fan following." Right?

    it is not clear what was wrong with the statement other than the failure to anticipate a strawman interpretation concerning what was not said or intended.

    Ok. Now you are claiming that it's a "strawman" to argue that "it is a bit difficult to see how they would have a fan following" meant that it is a bit difficult to see how Bret Easton Ellis would have a fan following? You sure you really want to make that idiotic argument? Because, really, it reflects on you if you are saying that.

    As things turned out, it seems the fan base was possibly not as rabid or huge as repeated here.

    As I noted, it had little to do with the fan base -- the fan base did come out and support the crowdfunding. It's just that the movie turned out to be crap in large part because of Lohan going through some craziness during the filming.

    It does suggest, however, that the writers may perhaps have been better served had they allied with a producer having more solid credentials within the movie industry.

    You are now referring to a DIFFERENT comment in that thread, not the one I am asking you about. Either way, this comment was bullshit as well, since the team in question did have pretty fucking solid credentials in the movie industry -- something you would know if you actually knew anything instead of spouting off ignorantly like you usually do.

    Either way, *if* you actually knew anything, you'd also know that plenty of productions with experienced producers end up flopping, just as plenty of movies with inexperienced producers do amazingly well. My cousin is a very successful Hollywood producer, and produced one of the biggest hits on his first shot exec producing. Last year he produced one of Hollywood's biggest flops -- when he had a lot more experience.

    You could just admit you fucked up. But you're too stubborn to do so. No worries. You are just confirming that you're "almost like the dumbest motherfucker on earth."

     

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  36.  
    identicon
    Not Just Another Anonymous Coward, Sep 2nd, 2014 @ 7:37am

    Perspective

    The bad news...

    is that this patent ever issued in the first place. It probably could have been rejected under 35 USC 103(a), and probably under 35 USC 101, and maybe even 35 USC 112.

    The good news...

    is that the patent is essentially unenforceable. When you read the patent it is clear that the "administering" of the "therapeutically effective amounts" are taken over a period of time (which thus leads to the 103(a) rejection, since it is likely that people somewhere on the planet have eaten similar combinations of foods; i.e., it has been done already). So, to enforce the patent you would have to know that someone was already following this method (which is virtually impossible, unless they are bragging about it on the internet). Then, you would have to sue this individual - assuming you could even find them in the first place.

    On the other hand, this patent does make for interesting conversations about the quality of examination.

    FYI: Not even one office action in this case before the patent issued.

     

    reply to this | link to this | view in thread ]


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