This is mostly an argument for raising the bar on the non-obviousness requirement.

However, even if concurrent discovery is common, that may only be because of the concurrent incentive to discovery. Any of the hard-working, innovative, inventors could come up with the invention. Each is being spurred on by the promise of the exclusive right waiting at the end of the tunnel. Just because one gets to the patent office before the other doesn't mean that the patent didn't provide the incentive to do the work.

Perhaps, but the question Zontar asked was how the clause provides justification for the current patent regime.

It's not that simple. In Gottschalk v. Benson, the US Supreme Court considered a method for binary conversion, and said: "The mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that if the judgment below is affirmed, the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself."

The idea is that the patent claim must "add “significantly more” to the basic principle, with the result that the claim covers significantly less." If the patent claim is co-extensive with an unpatentable algorithm, the claim is not eligible for patent.

What "significantly more" means, and what it means for an invention to be coextensive with an unpatentable abstract idea (mathematical formula, or algorithm) are points under contention at the CAFC right now. I expect this to reach the Supreme Court for clarification in the near future.

Then, how do I, as a poor inventor without the means to implement my invention, how would I be rewarded for revealing my invention to the world?

I would normally just sell the patent to an entity with the resources to actually develop the patent. If I can't transfer the patent, then I hold an exclusive right that I don't even have the resources to protect. I'll never cash in. I'd probably just keep the invention secret and not tell anyone.

However, if patents are transferable, like they are right now, I would have incentive to publish my invention in a patent in exchange for the exclusive right to make, sell, or use it. Then, I'd sell that right to somebody else who could bring it to market or have the legal resources to run a proper licencing scheme. I'd get rewarded for my invention. The public would get the knowledge of the invention. And the invention may be more likely to reach market.

How do you know that "the only way a patent troll makes money is if someone willing to actually make the thing has the same idea"? Patents are published, so the person willing to implement the invention could have just read the published patent and decided they want to make it. That is one of the mechanisms that patents promote the progress of science and useful arts: the public gives the inventor an exclusive right (which they can assign or licence), and the inventor gives the public his/her knowledge. It's a trade.

You are correct, and that is exactly how software is patented. The algorithm itself not patentable.

The only things that are patentable are processes, machines, manufactures, or compositions of matter.

People patent processes. People patent machines that run those processes. People patent manufactures that consist of computer-readable storage media containing instructions to run those processes.

See http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-1301.Opinion.5-8-2013.1.PDF for a good review of the case law leading to these strange constructions and the current disagreement at the CAFC regarding whether or not this is all just draftman's art trying to patent an unpatentable algorithm.

Article 1 Section 8 "empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause." (Golan v. Holder, 565 U.S. ____, and Eldred v. Ashcroft 537 U.S. at 222).

The level of scrutiny that applies to patent legislation is the "rational basis" test. That is the lowest level of scrutiny that the Supreme Court applies. Basically, if the government can show that the legislation is rationally related to the purpose (promotion of the progress of the science and useful arts), it is within the scope of power enumerated in the constitution.

Article 1 Section 8 "empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause." (Golan v. Holder, 565 U.S. ____, and Eldred v. Ashcroft 537 U.S. at 222).

Congress isn't required to keep its copyright and patent legislation within what *you* think promotes the progress of the science and useful arts.

So inventors without resources to develop that invention are out of luck?

Ah I'm wrong. But still: > To summarize our conclusions, we do not hold that someone who texts to a person driving is liable for that person's negligent actions.

It's not binding precedent.

What injury was there?

Was the injury a foreseeable outcome of Gladwell's actions?

Does Gladwell owe a duty of care to the injured person or people?

Did Gladwell's actions cause the injury?

Yes, this is correct. Justice Thomas writes (at page 17 of the slip opinion): "As a result, cDNA is not a “product of nature” and is patent eligible under 101, except insofar as very short series of DNA may have no intervening introns to remove when creating cDNA. In that situation, a short strand of cDNA may be indistinguishable from natural DNA."

The court on the one hand looked to the "information" contained in the isolated DNA sequence to say that it was a product of nature, and ignored the molecular changes due to cleaving the sequence from the chromosome.

On the other hand, with respect to cDNA, the court ignored the information similarity between mRNA and cDNA and instead looked at the molecular differences.

These two situations are distinguishable. The court said that Myriad does not "rely in any way on the chemical changes that result from the isolation of a particular section of DNA". (p 14) However, Myriad does rely on the chemical changes that distinguish cDNA from mRNA.

Thomas did not call the construction of cDNA "trivial".

Nowhere in nature do you find genes encoded in GATC sequences on a dioxyribose backbone with their introns removed.

"Human genes cannot be patented" is an overly broad interpretation of the ruling.

To say that these "isolated segments of naturally occurring human genes cannot be patented" would be more correct.

In the case where an inventor creates nonnaturally occurring gene sequence with markedly different characteristics from anything occurring in nature, it is left open whether or not those are patentable.

Plant genes meeting these criteria have been held to be patentable. See Monsanto, for example. It is possible that animal genes, or even human genes that meet this criteria would be patentable.