Chien: Recent History Suggests that Supreme Court will Rule Bilski’s Claim Unpatentable

Professor Colleen Chien (Santa Clara) has written an interesting new article on the importance of amicus briefs in patent cases. Her article is titled Patent Amicus Briefs: What the Courts’ Friends Can Teach Us About the Patent System and is available online at SSRN.

Bilski v. Kappos: Professor Chien reminded me that as Solicitor General, Elena Kagan authored both the US government’s merits brief in Bilski case arguing that Bilski’s claim is unpatentable and the US government’s brief opposing cert. The article reports that “in the last 20 years, every single amicus brief authored by the US Government in a Supreme Court patent case except one predicted the case outcome.” Chien writes “If history is any indication, the Supreme Court will almost certainly follow the US Government’s lead and rule that the method is unpatentable and likely adopt some of its reasoning as well.” (Note that Bilski is a bit different because the Government is a party).

The abstract:

Over the last two decades, more than 1500 amici, representing thousands of organizations, companies, and individuals, have signed onto amicus briefs in over a hundred patent cases, many of them representing landmark decisions. This paper turns the spotlight on these “behind-the-scenes” actors in the patent system. It combines theoretical insights with an empirical study of amicus briefs filed in patent cases over the last 20 years in an examination of who is interested in the patent system, the positions they have advocated, and the effectiveness of their advocacy. Amicus filers have been instrumental in shaping the courts’ agenda; the Supreme Court was seven times more likely to grant cert, and the Federal Circuit eight times likely grant a petition for en banc rehearing, if urged to by an amicus. However, while certain briefs have been important, overall the balance of briefs on the merits have not had a measurable impact on the courts’ rulings. One exception has been the briefs of the US Government, which have been exceptionally prescient. Over the 20 years studied, every single amicus brief authored by the US Government in a Supreme Court patent case except one predicted the case outcome. That is to say, in almost all cases, the Court affirmed or rejected the lower court holding when the Government told it to, and in one case, dismissed cert as improvidently granted when the Government recommended doing so. In terms of who files briefs and their agenda, the results are somewhat surprising. Although debates about the patent system are usually cast as a fight between the pharmaceutical and hi-tech industries, patent lawyers comprise a powerful interest group, filing the most briefs of any single group. In addition, among companies, what seems largely to determine how they advocate is their business model – non-practicing entities, for example, nearly always weighed in for the patentee and public companies, often against the patentee. These and other results have implications for those seeking to understand the patent system and those seeking to influence it.

Download the article.

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

285 thoughts on “Chien: Recent History Suggests that Supreme Court will Rule Bilski’s Claim Unpatentable

  1. Nice 6 – I see the Michael R Thomas response style is alive and well.

    In any event, I’m through talking to you tards about it.

    No, you are not. You don’t have the will power to ignore what you see as the great injustice of the patent systemlol.

    As for the clarity position, ya be wrong again. I aint advocatin nothin of the sort that the Supremes will be crystal. I be pointing out that you are arguing on the side of AI when it comes to them deciding about Business Method patents.

    AI says that they will not be outlawed outright. You first say they will be, which is funny, cause that be a bright-line type of clarity type o rule. But when pressed, you say can’t-separate and case-by-case basis, which be not a bright-line rule and which means that the Supremes will not rule them out of patentability. Ya see, ruling them out be what needs clarity, keeping them does not. Keeping them would be more in line with KSR, not that you comprehend legal logic.

    I tried to help you with the mutual exclusivity thing, but you aint smart enough to recognize help, so I will just have to continue chuckling at you.

    Your crayon Mona Lisa will look good though on the refrigerator. “Mommy” will surely put it there, won’t she?

  2. “For your position to hold, you must provide the clarity lacking to separate patentable from non-patentable.”

    We’ll see. Or, I should say, you and AI will see. Just like Noise just did here recently, and JD and etc. did before that where they get on here supposedly advocating/half-advocating for a nonsensical position that is clearly contrary to lawl and think that there has got to be some magically clear cut explanation that will settle things down for them and that no other explanation would do. The fact of the matter is, looking over the recent USSC patent decisions you can see quite clearly that the USSC understands quite clearly that clear cut delineations such as the one you are proposing is necessary are in fact not necessary and in fact are not the lawl. See KSR, a “paragonlol” of provision of clarity lacking to separate patentable from non-patentable.

    When will you tardfaces learn that the patentlawls are inherently subjective and not clear at all about the separation of patentable from unpatentable in many cases? Furthermore, when will you realize that the courts are going to decide cases in just those fashions? You would think that recent history would be enough to persuade you of this, but if you need more, look back a little further.

    In any event, I’m through talking to you tards about it. We’ll see here very shortly how things go down. Or should I say, you tards will get another lesson in how the judiciary isn’t here to make things crystal clear for you when the statute might not be crystal clear itself. You will see them make it as clear as they can and that is all, and that is all that should be required of them, or of me. Perhaps you’ll see tomorrow if they put out some decisions.

  3. One way or the other, more is needed of you 6. For your position to hold, you must provide the clarity lacking to separate patentable from non-patentable. You only so far have denied AI with hand-waiving, and when pressed, have admitted to AI position. You are being bested by an amateur.

    Still. Even sides all the hand-waiven-what-the-other-guys-have-said stuff.

  4. “Ah 6, now you have fallen to the logic of AI. If there be no separation “down the middle””

    I didn’t say there was no separation down the middle of the boundary between these two species. I said that these two species don’t separate everything in existence. For example, there are political processes that are neither business or technological processes. The separation between business methods and technological processes does not split political processes in the least. God, if you’d take half the time to read and attempt to understand what I write that you do to come up with half-wit replies our conversation would be done in like half the time.

    Furthermore, even assuming I had gone into the “well there’s no good way to tell the boundary” (which I don’t really believe) that doesn’t excuse us from disallowing those methods that plainly belong on one side of the fence.

    ” If you do not have a test that can separate, how do you apply the law?”

    On a case by case basis? Regardless, it isn’t exactly rocket science to come up with a test that works just fine in 99+% of cases. Previous posters have posted variations of it many times on these boards.

    “For your position to hold, you must provide the clarity lacking to separate patentable from non-patentable.”

    Hardly, not having a strict enunciated test, or even a general one like in Bilski, does not mean that all of a sudden people should get patents on things that blatantly are not covered by the statute. You and I only wish to ask for more because you think it will make it more difficult for a court to hold against you. It’s called “kicking up dust”.

  5. suppose I had written about another adjective.

    Suppose I had written about another subject altogether…

    So what? I didn’t write about another adjective. Try sticking to the topic we are discussing, cause ya haven’t answered my question yet.

    Let’s see ya esplain how this “technical” which is “already at a fundamental level and do not need any deeper definition” can have your multiple different tests, and at the same time, not be defined, or be different, or both.

  6. ping, suppose I had written about another adjective. Thus “I don’t accept that there is only one “obvious” test”. Would you have challenged that? The EPC defines “inventive” as “not obvious”. There are some words, like “obvious” or “technical” that are already at a fundamental level and do not need any deeper definition.

  7. They aren’t a separation right down the middle of every process in existence. They are species of a very large genus.

    Ah 6, now you have fallen to the logic of AI. If there be no separation “down the middle“, how do you separate them in actuality? If no separation, then you can have no test that separates. If you do not have a test that can separate, how do you apply the law?

    One way or the other, more is needed of you 6. For your position to hold, you must provide the clarity lacking to separate patentable from non-patentable. You only so far have denied AI with hand-waiving, and when pressed, have admitted to AI position. You are being bested by an amateur.

    Maxie,

    I don’t accept that there is only one “technological” test.

    Why is that and what are the differences? Is it because the word “technological” itself has not been uniquely defined?

  8. I don’t accept that there is only one “technological” test. For a start, the one operated ever more effectively by the EPO is not the one decried by SCOTUS. So, I think there is room to reconcile some sort of technological test with the earlier decrying.

    Shall we see about that? I think so too.

  9. “6’s definition of business method is what is left after you take out the Technological Test items ”

    That’s not really the case. They aren’t a separation right down the middle of every process in existence. They are species of a very large genus.

    “But wait, – hasn’t the Technological Test been decried by the same judiciary that said there is no such thing as a business method exception?”

    Oh we’ll see about that sir. Maybe tomorrow 😉

  10. There you have it AI.

    6’s definition of business method is what is left after you take out the Technological Test items (Maxie will be so happy with you 6).

    But wait, – hasn’t the Technological Test been decried by the same judiciary that said there is no such thing as a business method exception?

  11. Claim 3. did say… An Agent can just get help if Prosecution arises.
    Sorry they either don’t allow it on the thread. Or mess it up

  12. How to make it look like you have a Registration at the USPTO.

    Abstract
    A Business method on being capable of working at the USPTO. and how to Prosecute in both areas of the USPTO…

    Claim 1. The INDEPENDENT Claim needs some thought I am working on it.
    Claim 2. Help from Baby Daddys Firm to do Trademarks.
    Claim 3. An Agents an just get help if prosecution arises.

    I guess 6 you would say that claim 2 and claim 3 would be a dependent claim.
    Sorry 6 that Business method was a work in progress.. until just recently. But because it was working for more than a year. You know the rest of the story.”But” maybe if they give this argument to a Court and explain the process and how it was applied by all involved, it may work? They may have a point ROFLMAO

  13. “6, Are the two mutually exclusive?”

    I wouldn’t say that there is no overlap because there might be some example that I’m not thinking of of hand. But at least for the most part, yes. If it is technological then it doesn’t only involve a business method. Notice the word “only”.

  14. “What’s the difference?”

    One involves only business methods. One involves a process which is technical.

  15. 6 wrote: “In other words you still don’t understand that you can’t just magically turn a business method into a “technological process”.

    What’s the difference?

    ::silence::

    And you STILL……

    Have nothing.

    Know nothing.

    Are nothing.

  16. “He has been warned before and obviously does not care. It speaks volumes about what’s wrong with our Patent system when insolent, ignorant, belligerent examiners like 6 can live off our tax dollars and not be fired. ”

    I don’t live off your tax dollars. Your fees on the other hand… What application do you feel like I’ve inappropriately commented on sir?

  17. “6, do know that you are not supposed to comment on the patentability of a pending application? ”

    To which “pending application” are you referring?

    What exactly is it that you’re btching about here sir?

  18. “In other words you have no grounds. ”

    In other words you still don’t understand that you can’t just magically turn a business method into a “technological process”.

    “( regardless of what it comprises”

    If it “comprises” a business method then I will reject it under 101, ala Bilski. Actually, I might reject it under 101 and inform the courts that further, beyond the “clue” to patentability the USSC has provided us with, there is the additional requirement given us by the founders, and I would be happy to give them some historical perspective. Citing generously from Stern’s brief and other sources I have gotten together. I doubt if the applicant would bother to appeal sadly :(

    “Never mind the fact that isn’t even a court sanctioned test or a test at all, you can’t even articulate what the so called useful arts test would be, or even define Useful Arts for that matter.”

    It’s not exactly rocket science to figure out that a business method isn’t in them :) And that’s all that matters in one individual case. I’ll leave the general rule to the court to craft.

    As to what I “do” or “don’t” know, well, I do know what the term “Useful Arts” plainly covers and I do know what the term plainly doesn’t cover. There might be some small area that is questionable, but business methods don’t even approach that.

    But you’re right, your case would be closed, in abandonment. 😉

  19. “Please Examiner 6, enlighten all the Patent Professionals and Actual Inventors here and inform us on what grounds will you reject claims drawn on a technological process as non statutory?”

    That depends on what the supremes hold here shortly and what your “technologicalololol process” actually comprises tardface. If it comprises naught but a method of doing business that would be excluded by whatever test the supremes enunciate, then I would reject.

    In other words you have no grounds.

    You can’t cite a single test, law or policy you would use to reject a technological process ( regardless of what it comprises) as being non statutory under 101.

    You are waiting on the Supremes??

    They nor you can even define a method of doing business.

    Can’t you use Bilski as it stands now?

    What about the office guidelines, or any 101 case from the board that has been handed down in the last two years?

    You would use the Stern Useful Arts test you say?

    Never mind the fact that isn’t even a court sanctioned test or a test at all, you can’t even articulate what the so called useful arts test would be, or even define Useful Arts for that matter. Not now, not in 1789, not ever.

    Fact is no one can cite any clause of the Constitution, statute, case law, or Office policy that says a technological process is non statutory subject matter.

    You have nothing.

    You know nothing.

    You are nothing.

    CASE CLOSED!

  20. Posted by: Night Writer Patent Attorney | May 26, 2010 at 08:24 AM: ” That is not the reason it is disturbing to read 6’s comments about real applications. What is the reason is that he is breaking ethical obligations he has as a federal employee. It illustrates a level of unprofessionalism that is disturbing.”

    Well said. And the fact that MaxDrei, who claims to be a Patent professional, applauds this behavior is appalling. I would NEVER hire such an attorney.

  21. Sarah, you’re on the wrong blog for complaints about patent attorneys behaving unethically. I doubt you’ll find that here (except perhaps those with a thing about MM). Try the Just’n’Examiner blog.

  22. Sarah >Look in the Mirror.

    What are you going on about Sarah? Can you give me some examples of any of my behavior of mine that is unprofessional? You seem to want to come up and sock me as if we are in the playground.

  23. >>After all, it might

    That is not the reason it is disturbing to read 6’s comments about real applications. What is the reason is that he is breaking ethical obligations he has as a federal employee. It illustrates a level of unprofessionalism that is disturbing.

  24. Sarah, you do understand, don’t you, that:

    1. 6 is a USPTO Examiner. It is indeed his job to object to an app, if it fails to meet one or other provision of the Act or the Rules, but

    2. 6 is forbidden to discuss on this blog any particular case he happens to be examining at the moment.

    3. Other bloggers here get really hot under the collar if they detect that 6 is telling us about a real case. After all, it might be one of theirs that he is researching, and preparing to decapitate.

  25. What does that mean Sarah?

    6 is fun to converse with and he will learn eventually. At least 6 feels like he is a fish swimming up stream and not a stagnate cat fish in a pond.

  26. You could sign it “Mr Angry”.

    But seriously, what intrigues me is how 6 can spend so much time blogging, and still deliver enough disposal points. Should the required number of points be doubled?

    Or should some other management tool be tried, to encourage Examiners to meet the terms of their Employment Contracts?

    The time 6 spends on this blog is not wasted. It makes him a sharper Examiner, more aware of the legitimate needs of Applicants. And, despite what you write, AI, he’s a quick learner. I enjoy his interjections. I would encourage him to stick around.

  27. Posted by: Night Writer Patent Attorney | May 25, 2010 at 09:09 AM: 6, do know that you are not supposed to comment on the patentability of a pending application?”

    He has been warned before and obviously does not care. It speaks volumes about what’s wrong with our Patent system when insolent, ignorant, belligerent examiners like 6 can live off our tax dollars and not be fired. I have a good mind to write the Director a letter.

  28. 6, do know that you are not supposed to comment on the patentability of a pending application?

  29. technologicalololol

    Now that was funny – a keeper for the lol collection.

    examininglol and AUlol

    not so much.

  30. trailing behind a 7th non-zero number out front

    Perhaps, but starting it all is that darn decimal point.

  31. J6 wrote: Just the other day I may have hypothetically rejected a similar hypothetical tardface under 101 for submitting a a claim drawn to “associating” software with some piece of matter.

    ___

    I would advise any applicant that was so unlucky as to draw an examiner as belligerent as you, to immediately appeal. And don’t even waster time trying to converse. Better to get the application in the hands of more intelligent and hopefully, competent people.

  32. “Please Examiner 6, enlighten all the Patent Professionals and Actual Inventors here and inform us on what grounds will you reject claims drawn on a technological process as non statutory?”

    That depends on what the supremes hold here shortly and what your “technologicalololol process” actually comprises tardface. If it comprises naught but a method of doing business that would be excluded by whatever test the supremes enunciate, then I would reject it under 101. And that includes a simplistic “useful arts” test as Stern advocates in his brief.

    You would have to do more than call it a “technological process” to get it by me tardface. Just the other day I may have hypothetically rejected a similar hypothetical tardface under 101 for submitting a a claim drawn to “associating” software with some piece of matter. He hypothetically called it a “method of manufacturing” if you can believe it. I suppose he thought it was a “technologicallololololol process” or something, but it’s going nowhere but abandoned. Someone forgot to let him know that claims don’t dictate reality, reality dictates what claims mean. Let’s see, he has about 2 weeks to respond, and I do hope he does. I really hope he does. I so rarely get cases where I can feel truly invigorated by my work. I guess he’s waiting on Bilski to issue to get back to me on the 101 issue and I truly cannot wait.

    Although, to be sure, I myself would never stoop to examininglol such biz method trash so that someone could go scam a legit businessman out of money in court. If that was the best AUlol the office had to offer me then I would leave the office as all of the self-respecting examiners currently employed in such an AU ought to have done many years ago.

  33. Posted by: 6 | May 24, 2010 at 04:11 PM wrote: “Good luck tardface. Maybe you should start with the title in the patent app. That’ll be the easy part. Then you can work on the slightly more difficult part, the claims.”

    Please Examiner 6, enlighten all the Patent Professionals and Actual Inventors here and inform us on what grounds will you reject claims drawn on a technological process as non statutory?

    And somehow I don’t think “tardface” is in the MPEP, Caselaw, and certainly not in the statute or Constitution. So you will have to come up with some other reasoning.

  34. Posted by: 6 | May 23, 2010 at 10:44 PM wrote: oh sht, I didn’t even notice that gem. That’s funny, I could have gone to a “top 33% lawl school” already tardface, I’m trying to get into like the fin no. 1 patent lawl school, which just happens to be in the top 10% of lawl schools overall.

    Do be sure to let us know when your cousin puts “it’s a constitutional issue” for the answer on all his bar exam questions and fails. lolololol”

    Impressive. Why not just print this out and mail it into the admission committee at Harvard. I am sure you will get a full ride scholarship and have at least 10 firms reserve 6 figure jobs for you up on graduation.

  35. “However, without a concrete scientific or technological definition for business methods, all inventors have to do is change the name of their inventions to something else, like … a technological process.”

    Good luck tardface. Maybe you should start with the title in the patent app. That’ll be the easy part. Then you can work on the slightly more difficult part, the claims.

  36. Ned wrote: “However, the Supremes were not happy with BM patents. Stern offered a way to declare them unpatentable regardless of form.”

    But a specific form is needed in order to make a sound argument. After all we are dealing with science and technology of the 21st century not poetry.

    So please, can you provide a scientific and/or technological definition of Business Method patents?

    ::silence::

    Ned I have asked you and others that talk about the so called “way” to declare business methods unpatentable, this questions many times.

    And the answer is always the same.

    ::silence::

    Not even crickets chirping!

    The reason why you are silent is because you have no “way”! Sure the Supreme Court has the ability to just write down on paper, as apparently Stern has, that business methods are unpatentable because of whatever made up, self rationalized reason that pleases them.

    However, without a concrete scientific or technological definition for business methods, all inventors have to do is change the name of their inventions to something else, like … a technological process.

    And bingo! Patent eligibility!!

    So this Stern brief, which apparently has become a Stern doctrine to you has feet of clay ready to be smashed.

  37. The earlier discussion regarding whether Congress has the power to grant temporary exclusive rights for business methods, if those are not considered either “useful arts” or “science” under the “IP Clause,” has me wondering. Is there any room to think that Congress could extend such rights under the Commerce Clause, even if they are found incontrovertibly to lack that power under the “IP clause?” I mean, really, they’ve done all kinds of weird stuff with that clause. Exclusive rights in business methods would seem to impact interstate commerce a lot more than, say, domestic violence.

    Plus, I must comment on the reference to the 10th amendment prohibiting Congress from issuing business method patents if not specifically empowered to do so. The 10th amendment would then presumably reserve that right to the states, so I guess your state could open a patent office and start issuing business method patents. But then that would affect Interstate Commerce, wouldn’t it? So that power would fall back to Congress if I am not mistaken. Or does no one get it? I think someone must have it, and that someone must be Congress.

  38. >>Section IV. CONGRESS DID NOT ENDORSE >>PATENTELIGIBILITY OF BUSINESS METHODS,

    It is interesting that people are building their mental models of how the congress works. Basically, the arugment being advanced is that Congress did act but only minimally to help out business, but they aren’t capable anymore of actually legislating so we shouldn’t assume that they actually meant to endorse business method patents because a patent reform bill would never get through congress. So, basically, we are going to build a model of congress’s behavior to fit any fact pattern to come to the conclusion we want.

  39. Anon, recall that State Street bank decided that businesses were patentable because they were not expressly excluded by the patent statutes even though they had been excluded by court decisions for some time. Now word is simply a matter of statutory construction, the court State Street would have been completely correct in its decision. I suspect the Supreme Court did not take the State Street bank case en banc at that time because to overrule the case one would have to rely on constitutional grounds. At that time I do not think the constitutional argument was well developed. Stern has now supplied the historical development lacking at that time.

    I suggest you read the entire brief before drawing any conclusions about the merits of Stern’s argument. It seems persuasive.

    Now regarding 273, it clearly was a measure to protect businesses against the State Street bank case. It was a State Street bank case that settled unsettled expectations. That is the true meaning of section 273.

  40. Max, clearly, the Bilski claims are useful. However, the Supremes were not happy with BM patents. Stern offered a way to declare them unpatentable regardless of form. The Supremes might take that avenue if they really want to focus on BMs an leave software per se alone.

    As to the historical point, I think it is more than arguable that BMs were “odious monopolies” and were not considered in 1789 to be useful Arts.

  41. Anon, even supposing that Congress thought about it at all, and then came to the considered conclusion that the patent-eligibility of BM is established fact, that doesn’t make it so, does it. SCOTUS tells Congress what’s patent-eligible under the US Constitution, no?

    What about Myrick’s “settled expectations” point, his warning to SCOTUS that you can’t now invalidate all those expensively acquired BM patents in one fell swoop. Can they? Has there ever been any such “settled” expectation?

  42. Thank you for the link to the Stern brief.

    I have glanced at it only briefly, but if the level of insight in the rest of the document follows the argument in Section IV. CONGRESS DID NOT ENDORSE PATENTELIGIBILITY OF BUSINESS METHODS, I will be very disappointed. Such conclusionary statements make for a very poor legal base.

    Merely stating that the petitioners are wrong in that section 273 lacks any addressing of patent-eligibility misses the point that Congress in talking about defenses to business method patents de facto acknowledges the legitimacy of those patents. Simply put, one would not need any defense if the patents were not available in the first place.

  43. Ping doesn’t know how to be a Man. He took the low road. He wouldn’t know the Constitution if it bit him in the arse.

    sarah – you’ve got the wrong ping. I’m not who you think I am.

    geesh – nothin like a lady scorned – cepts when the lady thinks she’s been scorned and she hasn’t.

  44. Sorry Ned, you just lost me there.

    On the one hand, you urge us to read Stern.

    On the other hand, you urge “BM ought to be protected because they are in fact useful.”

    If The Constitution is King, and says “only the Useful Arts”, and if Stern convincingly agues that BM is not “Useful Arts”, how shall SCOTUS come up with an Opinion that renders BM 101 patent-eligible? You’ve probably told us already, but I don’t recall it. Where, for you, different from Stern, does “Useful Arts” reach its limit?

  45. Hey 6,
    Ping doesn’t know how to be a Man. He took the low road. He wouldn’t know the Constitution if it bit him in the arse.
    And don’t worry, this is not going to be hidden much longer. My Phone and my Computer are just that.. mine. Duh.. That must mean I need to use another? Duh.

  46. “Meanwhile my Nephew graduated last week from a top 33% law school in just two years. And he is studying to take the bar at the end of July”

    Oh sht, I didn’t even notice that gem. That’s funny, I could have gone to a “top 33% lawl school” already tardface, I’m trying to get into like the fin no. 1 patent lawl school, which just happens to be in the top 10% of lawl schools overall.

    Do be sure to let us know when your cousin puts “it’s a constitutional issue” for the answer on all his bar exam questions and fails. lolololol

  47. “And if they dare go ahead make that decision they set the stage for a huge constitutional law challenge.”

    I can’t wait to see this sht.

    “Ned tried to argue, using Sterns brief as evidence, that business methods of 2010 are were not within the useful arts of 1789.”

    You’re apparently not very familiar with what “evidence” means. Ned tried to use the teachings found within stern’s brief to argue thus. You should try reading it tardface. Someone even posted you a link.

    “BTW hows LSAT school working out for you? Isn’t this like your 5 th year?”

    Um, let’s see, I decided I might want to take the LSAT 4 mo. ago, and I’m still hoping to do better than what I am to get into GW. Although, I’ve spent more time picking up pus sy lately than I ever have in my life, so my studying isn’t exactly speeding along. Plus, the lawlyertards let the economy collapse by rescinding the lawls that we had in place to prevent the shady financial “practices” aka scams that led to the meltdown, thus apparently lawlyers aren’t all that in demand atm. Forgive me if I’m not jumping at the chance to spend $$$ of my own money to go to school to not have a job in that field when I get out.

    AI do as Ping should and be a man about being caught in your business method/computer program authorship scams. Stop being a pus sy already.

  48. You are right Ned BM is a perfect reference. Lets hope he is standing under the window as I shout look out be loooo.

  49. Oh god the same Genetic predisposed mess. That’s another reason why DNA should never be patented.

  50. They were the so-called “odious monopolies.”

    However, I still think BM ought to be protected because they are in fact useful.

    Ned

  51. Posted by: 6 | May 21, 2010 at 10:42 PM: No, he means Stern “really” means what he said. Which had nothing to do with whether or not the invention already existed in 1789.

    Ned tried to argue, using Sterns brief as evidence, that business methods of 2010 are were not within the useful arts of 1789.

    Of course he was quickly smacked down now silently backs away. While you remain the blog court jester. BTW hows LSAT school working out for you? Isn’t this like your 5 th year?

    Meanwhile my Nephew graduated last week from a top 33% law school in just two years. And he is studying to take the bar at the end of July.

  52. Stern’s Brief:

    /media/docs/2009/10/casrip-am-cur-brf.pdf

    Posted by: Ned Heller | May 23, 2010 at 02:54 PM

    So Ned, why don’t you post here where in the brief Sterns offers any scientific, technological, or legal proof that business methods of 2010 where not within the useful arts of 1789?

    ::Ned Silence::

    And no, 6, calling people tards is not proof.

    I tell you why you remain silent. Its because there is no such proof! The SCOTUS therefore has absolutely no statutory or constitutional basis for a wholesale categorical elimination of business methods in the Bilski decision. And if they dare go ahead make that decision they set the stage for a huge constitutional law challenge.

    SCOTUS has no power to remove the useful arts category from the Constitution.

    Only WE THE PEOPLE, through our representatives in Congress can do that.

  53. Thanks Ned. I note that Stern (pages 30 and 31) bats away the EPO test “technical” saying that “technical” is much narrower than “useful arts”. Very neat. It leaves SCOTUS free to endorse Stern without leaving itself open to the jibe that it has meekly adopted the European approach.

    Of course, European “technical” is of the same scope as Stern’s “useful arts”, but it’s not helpful to say that out loud, eh?

    What is such fun, in all of this, is whether to shut out that which is not the “useful arts” under 101 or 103. In Europe, the purist Brits wanted to do it under 101. But that stirs up a load of trouble, as the Brits found out. The pragmatists at the EPO were rather more stealthy. They let every CII claim under the sun through 101 (hooray) but then quietly suffocate with their 103 pillow all that subject matter that ain’t eligible.

    As for SCOTUS, that stealthy option isn’t available, right? For patent-eligibility, it’s the 101 filter or nothing, right?

    Fascinating stuff. Thanks again Ned.

  54. Readers, ping asks me for comment on the German Bilski Decision reported on the 271 blog. I hope that pong will add his take, to what I write below. Perhaps Paul Cole will want to write something too?

    1) Recalling that the EPO got its “technical” treatment of patentabilty from Germany, it is hardly surprising that the German Supreme Court is here getting into line with EPO jurisprudence.

    2) With so much consistency and predictability by now, in the smoothly ongoing EPO jurisprudence, it is hardly surprising that a domestic Applicant like Siemens AG has become adept at writing their software patent applications to thread the needle.

    3) And with such drafting skills, it is hardly surprising that we can observe that well-known and well-understood phenomenon of “creep”, in the limits of what CII subject matter Applicants can get to issue in Europe. This is probably what alarms Herr Mueller’s faction.

    4. But wait. In the sister patent application pending in the EPO, the debate has hardly started. Both Applicant and Examining Division now have the German BGH reasoning to hand, to sharpen and focus their ongoing debate on 103 (Art 56 EPC) patentability. Who says the EPO application will get to issue?

    5. I would say that “German Bilski” is a bit of a misnomer, because this case in Germany is about patentability rather than patent-eligibility, about “technical effect” rather than “technical nature” or “technical character”. Would you not agree, Herr Mueller?

  55. “Go and learn” ping admonishes. So, following a tip from pong, I looked at the Printed Matter Doctrine in Wikipedia.

    Now I see that it is wide-ranging enough to dismiss all Beauregard claims.

    Which strikes me as daft.

    Because, when the patentable invention is embodied in software, well then, to control the market, and get his (or her) quo, the inventor needs a patent claim directed to the disc carrying the software that implements the program that embodies the invention.

    ping, are you telling me that this consequence of the Printed Matter Doctrine is a “good thing”. I think it’s crackpot.

    Back to my coffee mug, my Braille, and my disc with new and inventive computer-readable stuff on it. All patent-eligible. In Europe. But in the USA? You tell me.

    And please, don’t tell me that inventor can have his (or her) claim to a method or a programmed computer but not to the software on a carrier, for then readers might conclude that US patent law worships form over substance.

  56. “Reading” Maxie, doesn’t cut it – you obviously need better education on the subject – go and learn.

  57. ping, educate me, whence comes this holy writ, the “Printed Matter Doctrine”. Must I really genuflect to it? Any definition of “printed” around?

    Is that it? So far, I’m distinctly unimpressed. Anyway, my old coffee mug has nothing “printed” on it. Only something chiselled into it. And that something transforms the brain of the human reader. How does that compare with 1) Braille and 2) software chiselled into a little disc and read by a computer?

    The German decision? I didn’t see in it anything new. Have you followed up yet the link I gave you, on the thread where you asked for my thoughts?

  58. inventive new poem ? (sigh – another who needs to learn the Printed Matter Doctrine)

    Maxie – hows come you didn’t wrap the German decision into your thoughts?

  59. Actual, your latest diatribe brings Mark Twain to mind. You know, the bit about keeping your mouth shut, so only you know the awful state of your lamentable ignorance (as opposed to opening it and advertising it to the whole world).

    Here’s the Bilski thing:

    Some people say that paper and pencil, old coffee mug with an inventive new poem written on it, and old computer with a new program in it, should all be patent-eligible. Amongst those are the members of the Supreme Court of the EPO (G3/08, last week’s news).

    Yes, the anti-software-patent brigade are now even more outraged, that the EPO will patent anything at all under the sun that is implemented on a computer.

    Yet, the EPC forbids patenting computer programs and business methods. It’s in the language of Art 52 of the Statute itself. Could not be more explicit. And the pro patent software brigade (which includes you) has been in a state of outrage about that for years, even more so after G3/08.

    Those who know something about the subject are debating here whether the EPO litmus test is the right one, and whether SCOTUS (the Stern Brief) should follow the G3/08 line of thinking, or write a different line of their own. Europeans wait with bated breath, to see whether SCOTUS can write something that exposes G3/08 as flawed, and then come up with something better. So advances (internationally, these days)science, technology and, also, pleasingly, the law.

    How shall I get there Dear Henry, Dear Henry? By reading, Dear Liza, by reading it up.

  60. “So you and Stern want people to believe that technological processes invented today that did not exist in 1789 are not patent eligible because they are..well, new? So much for innovation and pioneering inventions.”

    Um, I don’t think he said much about “technological processes” necessarily being invalid. But since you’re a re tard I’ll leave it at that. Maybe you should just read his brief.

    “But then you say, wait, wait, wait, Stern really means if the invention already existed in 1789 and was not patent eligible then ( not within useful arts), it should not be allowed today.”

    No, he means Stern “really” means what he said. Which had nothing to do with whether or not the invention already existed in 1789.

  61. “Ned wrote:

    “Stern does not argue that utility should be limited to only the useful Arts then known, but should extend to analogous arts known today. But he also argues that things well understood at the time not to be among the Useful Arts should not be among the Useful Arts today. Logically, this is quite sound.”

    Oh God.

    Ned this is illogical, bogus and dishonest and you know it. Let’s play it out for the peanut gallery shall we?

    First of all, every technology ever discovered, whether an improvement or a pioneering breakthrough is analogous to something in the natural world that has always existed

    For example, a birds wing is analogous to an airplane wing.

    A plug and an outlet is analogous to male and female reproductive parts, as well as the technological processes for making and using these inventions.

    So you and Stern want people to believe that technological processes invented today that did not exist in 1789 are not patent eligible because they are..well, new? So much for innovation and pioneering inventions.

    Google shred all your patents!

    Apple, no iPatents for the iPad!!

    Shut down the Super Collider, no patents on technology will be coming from some imaginary splitting of a yet to be seen God Particle!!!

    But then you say, wait, wait, wait, Stern really means if the invention already existed in 1789 and was not patent eligible then ( not within useful arts), it should not be allowed today.

    Okay, well show me one so called patented business method that exists today and existed in 1789 and therefore should be not patent eligible!

    Go ahead do it!

    ::waits::

    Now, anything you write is irrelevant. WHY? Because if the business method existed in 1789 it would not pass 102 and 103 sections of the statute today. And you KNOW this Ned!

    But in our modern complex global economy there are clearly business methods that do exist and were not known or in use in 1789., and therefore can’t be considered analogous to any so called business methods of 1789 and to not be among the useful Arts.

    For example, could the founding fathers even have fathomed a global economy, with derivatives, options, and paperless electronic transactions? Heck, did they even have General Stores in 1789? Let alone sophisticated global franchise systems.

    They were still literally counting beans back then. So according to Sterns own logic, the only modern business methods not eligible for patent examination today would be methods of counting beans.

    DOWN GOES STERN!

    LONG LIVE BUSINESS METHODS!!

  62. I love how you have a hard time citing even one mis-issued patent to prove your point.

    Sunshine, I don’t have a hard time – Iza too lazy to do more – If you have a hard time (being in the Office and all) from choosing amongst the 38,650 patents I mention, thatsa different story now (aint your speciality finding things?).

    ‘sides – I wouldn’t be finding mis-issued patents, now would I? Only mis-issued in your mind which we can see is tard obsessed. Its mighty funny to see you proclaim an end when you are so clueless. wassa matta 6 – the mommy references hitting a little too close to home? Having a little trouble figuring out what it means to be a man, are you?

  63. “No. Funny how the rest of the world seems to be mishcaracterizing to go around your feeble mindset. Why do you think that be the case?”

    Funny how the “rest of the world” (aka all the retar ded attorneys) seemed to mischaracterize SS and ATT too isn’t it? Look how long that lasted en banc with someone reasonable arguing against it.

    It only takes a judge 10 seconds to make a few errant pen strokes, but it takes a couple of decades to reel in the tards that rely heavily upon it.

    Face your end like a man.

  64. “38,650 patents with the word software in the claims. I think you might find claims mean sht in a patent.”

    You might not realize this tard, but software can be in a claim and the claim is not directed to software per se.

    I love how you have a hard time citing even one mis-issued patent to prove your point.

  65. American Cowboy: “Can’t wait for the real Bilski decision to be handed down; it will HAVE to raise the level of this discourse. At least for 2-3 posts….”

    I’m guessing you won’t be able to hear the discourse over all the wailing and gnashing of teeth.

  66. When the family or sub-family is derived after a proper name, it should be capitalized.

    Stephen Colbert would like a W0RD.

    See also Salmonella mjordan.

    But most importantly, there’s a pretty fundamental difference between species/subspecies and family/subfamily. Family is capitalized, but is almost never used to identify the organism in conversation.

  67. Hahahaha yeah right, go ahead and cite us an example tard.

    I cited you an example and you weren’t happy.

    Will you be happy with this:
    38,650 patents with the word software in the claims. I think you might find claims mean sht in a patent.

    Or did one of them mischaracterize

    No. Funny how the rest of the world seems to be mishcaracterizing to go around your feeble mindset. Why do you think that be the case?

    Iza can quote if you want me to (nah, better make that if I want to – and I don’t).

  68. Sorry Mooney/INSANE/Willton

    When the family or sub-family is derived after a proper name, it should be capitalized.

  69. “I dunno – Rich, J. Newman, Lourie, Rader, Archer, Nies, Plager, are a few that happened to agree in one case that comes to mind.”

    Did they? Or did one of them mischaracterize what was previously held in a one liner that you’ll now want to quote? Mmmm, we’ll see.

    “23,144 patent abstracts with the word software”

    You might not have heard, but the abstract doesn’t mean sht in a patent.

  70. Judges on the other hand haven’t said sht about allowing this nonsense,

    I dunno – Rich, J. Newman, Lourie, Rader, Archer, Nies, Plager, are a few that happened to agree in one case that comes to mind.

    Hahahaha yeah right, go ahead and cite us an example tard.

    23,144 patent abstracts with the word software; ima too lazy to do more.

  71. While you’re being “exact”, you’re only supposed to capitalize the generic term in a trinomial name.

    For future reference, try to remember that name-calling, when done right, is supposed to make the other guy look dumb.

  72. it will HAVE to raise the level of this discourse.

    If you don’t raise the level of your discourse, we’ll be sure to hound you about it.

  73. NWPA: I’ve noticed that MM sure calls people a lot of names.

    Finally, the truth comes out. You’re one of Malcolm’s many sockpuppets.

  74. “I am a lawyer, of course you can trust me. ”

    Hah

    “The rest of what you wrote is nonsense. What I wrote is correct. ”

    Well as long as you admit that the argument you present against programmed gen purpose comps is correct then I guess we’re done here. I don’t really mind which argument prevails so long as one does. And if I have to sac elec circuits I also don’t mind. My buddy who examines them might tho lol, he’s been hard up for cases lately anyway, had to examine antenna’s for awhile. He didn’t like it much but he did say it was pretty ez.

    “that Kappos had the Office’s finest lawyers also say differently”

    Lawlyers saying sht don’t make it so bucko. Judges on the other hand haven’t said sht about allowing this nonsense, especially not when someone who knows what they’re doing is presenting the case.

    “In any event, per se and as such “software” is merely a label that means several things, of which many are patentable and belong to well recognized statutory classes.”

    Hahahaha yeah right, go ahead and cite us an example tard.

  75. >>OK – we’ve ridden the merry-go-round again. >>What next?

    Good description.

  76. since you have not materially changed the computer

    6, I could get all Neddy on you and cite case law(wait, it wouldn’t be Neddy, since I’d be right), or I could point out that Kappos had the Office’s finest lawyers also say differently, but I don’t think that you would listen to either.

    Or we can bring back visions of bailiffs and the high court (with debates about the meaning of “use” and “configure” and such…

    In any event, per se and as such “software” is merely a label that means several things, of which many are patentable and belong to well recognized statutory classes.

    OK – we’ve ridden the merry-go-round again. What next?

  77. ” “Chien” is French for “dog.”

    You see, folks: the patent bar is filled to the brim with nice folks who would never, ever lie to the PTO just to get a patent.”

    Mooney gets the non-sequitur of the year award. But then again, every breath and every neuron firing event is a non-sequitur for Mooney(IANAE/Willton).

  78. >>but I don’t think I can trust you.

    Gee 6 thanks a lot. I am a lawyer, of course you can trust me. And, 6, if you want to take me to an appeal, well, it happens all the time and I win most of the time.

    The rest of what you wrote is nonsense. What I wrote is correct.

    I’ve noticed that MM sure calls people a lot of names. Doesn’t seem like he should be a member of a protected class.

  79. “GOD BLESS THE USA!
    Posted by: Actual Inventor

    Oh geez, someone woke the giant teebugger.
    Posted by: Malcolm Mooney | May 19, 2010 at 04:24 PM”

    FINALLY! A clue as to Malcom’s identity. Who knew we had a celebrity among us. Welcome Reverand Wright.

  80. “Chien” is French for “dog.”

    You see, folks: the patent bar is filled to the brim with nice folks who would never, ever lie to the PTO just to get a patent.

  81. “6, no he believes that thinking occurs outside the physical body.

    A machine that does what people do. The argument against patentability: I could build a gneral purpose computer and then write software to run the general purpose computer and then say software isn’t patentable and since your machine cuold be built this way, then your machine isn’t eligible for patentability.

    The same argument removes all electrical circuits from patent eligibility.

    I want to see a cite for your first proposition and I also want to see where the f you saw that supposed “argument” made against software. So far as I can tell, what you wrote down as an argument is jibberish, you need to write it down better.

    How about you could say this:

    A machine that does what people do. (Irrelevant but I wanted to say it anyway) The argument against patentability: I could buy a general purpose computer off the shelf and then write software to run the general purpose computer. I also know that software per se isn’t patentable since it fits in no statutory category. Furthermore, since your claimed machine is supposedly made this way, and you are not the inventor of the machine which you purchased and are not eligible to claim it in a patent since you have not materially changed the computer and have instead merely provided it with instructions to run.

    The same argument does not remove all electrical circuits from patent eligibility. The same argument is merely one of many against programmed gen purpose computers.

    That’s a little better, but the wording is funny because I was trying to go along with what you stated as a basis.

    BTW NWPA I just had one of my first apps with the words “software” included in the claims the other day. I probably should have xfered it as it is not really my area, but it had some stuff in it I found to be interesting since I always have these discussions with you. There was some stuff in it about configured fuses as well.

    I likely killed it in a hail of righteous rejections of all kinds 101, 112, 102, 103 I might have even put a 151 in there for good measure. It’s scheduled to go abandoned shortly :) If this sounds like one of your cases, do be sure to send in a response I’d love to take this nonsense to the board. I might would even show you the case but I don’t think I can trust you.

  82. If the Supremes ignore the distinction between Bilski claims that don’t mention a computer and comparable claims that positively recite operating that method on a computer, then all sorts of mischief will result.

    Unfortunately, I would not put it past them.

  83. Interesting.

    The Supremes really were not happy with the argument that the only thing wrong with Bilski claims was their form. Had they recited a computer, claimed a machine or an article of manufacture, the USPTO would have been quite happy with the claims as a general proposition. But not the Supreme Court.

    So, it is argued here that the Supremes will simply decide this case on MOT, leaving Biskli to get his patent with a simple amendment to the claims. I suggest that this is not going to happen.

  84. >>that deals solely with BMPs and does not >>address anything else.

    I don’t think that what is and what is not a BMP is so clear. And, I think there is the mere computer implementation of a BMP to invalidate patents under 103.

    So, I don’t think this is something that can be wrapped up so easily.

  85. Golly, IANAE, you practice political correctness better than anybody I have ever seen.

    Golly, Cowboy, you practice anti-intellectualism better than anyone I have ever seen.

  86. would seem correct by comparison.

    fixed for ya IANAE.

    Ned,

    How can I not attack your bizarro sense of legal logic? The case was argued on MOT, but you say it has to directly attack something else and not MOT to avoid ruling broadly on whole areas of issues not before the court…???

    BMP happens to be a broad whole area not before the court (at least not before the court to the same extent as software).

    This must be some Socratic (or more likely so-crap-ic) method that you must have learned back in the day (to steal a 6-ism) here to conflict with yourself and make yourslef sound intelligent while saying nothing.

  87. Night, I read his brief.

    It is apparent the Supremes, and many others, do not like BMPs. The US argued that what was wrong with Bilski was it failed the MOT; but that if written as a machine or article of manufacture, it would pass MOT. This is the current patent office policy, not necessarily that of the Fed. Cir.; but State Street has not been overruled. So clearly, unless the Supreme want to rule broadly on whole areas of issues not before the court, such as software patents, etc., where its ruling could have unforeseen consequences, it has to directly attack BMP, not on MOT grounds, but on whether BMPs fall within the “useful Arts.”

    Thinking this way, the bar should surely welcome a narrowly focused opinion that deals solely with BMPs and does not address anything else.

  88. you practice political correctness better than anybody I have ever seen.

    Thanks. You’re the best I’ve ever seen at gratuitous statements like “the Chinese eat dogs” directed at an American law professor in response to her article about a Supreme Court case that is in no way dog-related.

    I can see how pretty much anything I say would seem politically correct by comparison.

  89. Max, the scary thing is that the Chinese eat dogs.

    What, you’ve never seen an American named Plant or Berry or Rice or any of the things we white folk eat?

    I assumed her name was a variant of Chen.

  90. There now.

    How about that for a name? Looking at her picture, it seems to me a total misnomer. But on reflection, perhaps it is a good way for an academic to get their name to stick in everybody’s memory.

  91. I hesitate to ask the question, in case it is seen as frightfully lacking in gallantry, but what is the correct way to pronounce “Chien” in the context of this thread. I suppose it is closer to Chinese than French (Viet-Nam?), more like CHEE-EN than SCHYAN.

  92. 6, no he believes that thinking occurs outside the physical body.

    A machine that does what people do. The argument against patentability: I could build a gneral purpose computer and then write software to run the general purpose computer and then say software isn’t patentable and since your machine cuold be built this way, then your machine isn’t eligible for patentability.

    The same argument removes all electrical circuits from patent eligibility.

  93. Ned: did you read Stern’s paper on this? I did. It is ridiculous. The chains of progress he proposes following would be tedious and unpredicable. His method would merely allow for the courts to pick and chose what they wanted to include in 101 and what they wanted to exclude from 101. That is what he wants. A lame way to justify allowing the courts to do what they want to do.

    The worst kind of legal reasoning.

  94. There is a difference

    Yes there is.

    you boast that you have dismantled my stands on legal issues

    Yes I do – with abundant glee for all to see.

    you do not dismantle my stands on legal issues

    Au contraire – Even in my admitted laziness, I show why your case cites are lacking and distinguished. I supply the legislative sections that you miss – regarding both intent and optional (and fully legal) reading of “or” phrases.

    You have no reply but a feeble, “well, I purposefully left that out“. Just think of what an unlazy person would do.

  95. Ned, who was it who wrote “There is none so blind as he who will not see”. On “useful arts” there is nothing difficult about the point, but there are some people round here who simply cannot countenance the prospect that Stern might be right. It reminds me of the English Law Lord judging the appeal of the Birmingham 6 (Irishmen falsely convicted of planting bombs in English pubs), who said that to allow the appeal would be to admit that the police had been lying, and that would open a vista so appalling that it could not be permitted. Appalling vistas are what some patent attorneys apparently see, if business method patenting is stopped.

    The Law Lord was utterly convinced he was right. Nevertheless, the day dawned when the Irishmen won their appeal. And the world is a better place as a result.

    At least that Law Lord was driven by a motive higher than naked self-interest.

    ping, so what, if Congress said something about business methods being patentable? As far as I know, it is the Constitutional burden of SCOTUS to tell Congress what is or is not in accord with the US Constitution. Can’t it do that in “dicta”. My hunch tells me it can if it feels like it and, if it does, that will carry weight. There is a good reason why we have the word “dicta” in our vocabulary.

  96. Ping, you do not dismantle my stands on legal issues: you boast that you have dismantled my stands on legal issues.

    There is a difference.

  97. Ned,

    No (you think you be Socrates?).

    Save you buffonnery of IMHO-Ned Law where it might be welcome. If you got a problem with my dismantling of your legal stands – then think through them a bit more carefully.

    Or would that be self-evidently spurious?

  98. ping, you remind me of an annoying child, who, when he had nothing better to say, simple started yelling and screaming wildly.

    I remember the likes of you in school, people who refused to want to think critically, to explore issues in depth, and who only wanted the black letter law spoon fed to them. The whole point of the Socratic method was, on them, a waste of time.

    I have had just about as much of you that I am willing to take. So, I will ask you politely, to behave civilly. Save your buffoonery for some other time and place where it might be welcome.

  99. Max, you got it about our constitution. The powers that are not specifically granted are intended not to be granted. One of our amendments, the 10th, actually had to say this in order for the 13 colonies to get on board and sign the constitution.

  100. Ima pretty sure that the term “the useful arts” does not have sucha cut-n-dried listing.

    Otherwise this blog would not be having this conversation.

    Ima pretty sure that any conversation started by Ned on historical matters will end up with a wrong conclusion. I think Ned’s ability to process changes in law stopped somewhen near 1952.

    Ima also pretty sure that the Supremes won’t be saying that a business method patent exception exists.

    One, it would be merely dicta, since it is not required for the Bilski case (Oh, we could all get Neddy, and make up holdings outa dicta).

    Two, the Supremes would then haveta actually deal with Congress specific intent questions in the fact that Congress themselves have said business patents are legit (again, we could get all Neddy and parse the crap out of legislative law).

    Course, we could all jump in our time machine and jam the loop at 1789, so that progress stays at that point. Oh wait, the time machine hasn’t been invented yet. Wait, everything’s been invented – OH NO, I’m stuck in my own conundrum.

    Andis, get my car. It’s parked on abstraction level three.

  101. he thinks that the ideas which we think are immaterial. And he’s likely right.

    He is right, when the “thinker” is 6.

  102. Ned the patents clause in the Constitution does not say that Congress shall not have the power to go patenting outside the “useful arts”. Rather, it says that it shall have the power to grant patent monopolies within the useful arts. Excuse my ignorance, but where in the Constitution do you get your explicit authority that Congress has no power to go beyond the useful arts? Is it implicit in the Constitution, or what?

  103. AI said: Ned,

    Since every patent at its core is a method of doing business, even going back to 1789, on what legal, scientific or technological basis could such a decision be made? Stern certainly has no such basis in his brief and the Supremes have nothing to fall back on.

    Yes, yes I know you can argue that there were no computers, information processing and complex business systems and such back in 1789 But doesn’t that defeat the purpose of promoting the progress of science and the useful arts? How can we “progress” when the only useful arts
    ( technology) that is patent eligible is the technology that was already discovered as of 1789?

    AI, you would be surprised that “useful Arts” was a well understood term in 1789. It was defined in current dictionaries, quoted by Stern. Also well understood were other “Arts,” such as Literary, Martial, etc.

    Stern does not argue that utility should be limited to only the useful Arts then known, but should extend to analogous arts known today. But he also argues that things well understood at the time not to be among the Useful Arts should not be among the Useful Arts today. Logically, this is quite sound.

    He then argues that methods of conducting business were among the odious monopolies at the time, and were not considered to be among the Useful Arts. If this was true, and I suspect he is right, this should end the controversy, as Congress would have no power to authorize the patenting of something that was known in 1789 not to be among the useful Arts.

  104. “Think about your software built as a separate chip.”

    I rather like the thought.

    “Stevens believes that thinking is something that occurs beyond our physical body. ”

    No, he thinks that the ideas which we think are immaterial. And he’s likely right. I know you have a hard time seeing the difference in these two statements, but you could try sometime.

  105. Mr Kaulins, thanks for:

    “Stevens was right in his dissent in Diamond v. Diehr in requiring that the actual process to which source code instructions are directed must itself be patentable, quite apart from the software and its execution on a computer.”

    which reminds me of the EPO position, allowing Beauregard claims when the “actual process” passes muster.

    I liked your “na Ja” too.

  106. Andis: A machine that reads an x-ray and determines whether or not there is a tumor. That is something that should not be eligible for patentability? You are confusing the form of the software. The software functionality would be better off being built as a stand alone machine than running on a general purpose computer. The software is only a short hand for a machine. (You realize that all electronic circuits could also be described in software and then executed by a general purpose cirucit.)

    The software doesn’t transform the general purpose computer per se. It transforms represented information. (and can interact with the physical world.)

    Stevens believes that algorithms are laws of nature. Stevens believes that thinking is something that occurs beyond our physical body.

    Think about your software built as a separate chip. Should that not be eligible for patentability? The line of basic should be eligible for patentability just as a cut log nailed together with another cut log should be eligible for patentability.

  107. “Source code” by itself makes “NOTHING” happen.

    Do people out there know how software works? Let’s compare source code and sheet music.

    Source code — compiler (or interpreter) — CPU — computer hardware.
    Sheet music — performing artist — instrument (or)
    Sheet music – music roll – automatic piano.

    As shown in the comparison above, the relative “distance” between source code and its ultimate execution on a computer is in fact one order of distance further removed than from sheet music to a musical instrument played by a musician or an automatic piano.

    As anyone who has ever done any programming knows, source code is simply text written in a given “language” that can be written on piece of paper just like sheet music. Simply putting such text to paper alone — or typing it onto the screen — makes “nothing” happen. Like any other language text, source code has to be read to be useful.

    Source code to do “anything” has to compiled or interpreted by special software written for this purpose. Most source code is written for compilation and a CPU (central processing unit) can not execute it if it is not compiled. A compiler transforms the source code into “assembly language” or “machine code” which the CPU can execute, whereas an interpreter, as the name suggests, translates the source code in an ongoing process to the CPU. This latter process is less efficient and less useful.

    The source code does not “transform” the CPU or the computer any more than sheet music “transforms” a musical instrument. After software is removed from a computer, the CPU and computer hardware can be reverted to the original default setting. RESET or TURN OFF to await new instructions. The musician puts his instrument back in his case, UN-transformed, awaiting new sheet music instructions.

    Even if computer software is slumbering on the hard drive, it does NOTHING until told to do so. It is merely a set of instructions which the computer is capable of executing — that is all.

    The essential problem with arguing for the patenting of software is that the source code consists simply of text which contains instructions written according to a given programming “language” and in which numerous algorithms are standard. Subsequently giving that source code patent status as an “invention” seems to give source code a character it does not deserve. Nor does the fact that this source code is compiled and then fed into a computer as a program make the source code an “invention” of a patent claimer, since the actual code used is not what he wrote at all. That is why many people who understand software are against software patents because they ask — where is the invention?

    I say this as someone who some years ago wrote a 10 megabyte commercially-sold adventure game — something I did for the learning effect.

    Here is a possible Basic programming language command: “if n=1, go to 2”. That is not an invention, even if you have thousands of lines of such instructions.

    The fact — as in Bilski — that certain types of instructions can be written down as source code, compiled and then fed into a computer for execution by the CPU does not make a software program either a “process tied to a machine” or a “transformation” of anything.

    Software exists independent of “a machine” – and – until compiled — is not even usable by that machine. Software can be used by not just one but many separate computers for instructions — but those computers are not transformed — since they revert back to their original status after use. Or you simply format the hard drive.

    That is why Stevens was right in his dissent in Diamond v. Diehr in requiring that the actual process to which source code instructions are directed must itself be patentable, quite apart from the software and its execution on a computer.

    Na ja, when Bilski comes, we will see.

  108. His idea was to use the other guy’s idea.

    Boring and trite IANAE – the “House” analogy has already been obliterated.

    This is so beneath your level of posting skill, that I think an imposter is at work here. Will the real IANAE please show up.

  109. A machine that does what people do. How could that not be eligible for patentability?

    It is. Whoever invented the machine should absolutely get a patent for it.

    Whoever told the machine to do what it was built to do, not so much. His idea was to use the other guy’s idea.

  110. Show me one patent NOT “related” to conducting business?

    Do you mean “show me one patent where the invention is not related to a method of conducting business”? Or do you mean “show me one patent for a commercially useless invention that the inventor hasn’t even bothered to try to license or sell or make any money from”?

  111. Besides, IANAE, a computer is executing instructions, but it is an abstraction level. The program defines a machine and the general purpose computer is used to emulate that machine. If a specific computer is built for a program the program can be much more efficient and smaller.

    A machine that does what people do. How could that not be eligible for patentability?

  112. So, let’s see when I follow instructions (let’s call it a method) of making a pharmaceutical does that mean I am infringing?

    Probably. It depends on the claim. If you’re carrying out the claimed method, you’re infringing. If you’re carrying out a method that produces a claimed product, you’re infringing.

    Does that infringement make you a different person? What if the defendant identified in the complaint is the old you?

  113. Posted by: IANAE | May 19, 2010 at 02:04 PM:The patent is. But the term “business method patent” refers to a patent wherein the disclosed/claimed invention relates to a method of doing business.

    __________

    Show me one patent NOT “related” to conducting business?

    :: Mooney/IANAE Silenced::

    Now that you have been intellectually backed into a corner, as usual, you can change into another sock puppet and start waxing about airplane rest rooms and such.

  114. MM>>What is the invention?

    Ding, ding, ding. Now think about that question some MM. And answer it for yourself.

    >>when you’ve been instructed to file a patent >>application, does that instruction in your >>brain (a prosecutor-readable medium) make you >>a different person?

    So, let’s see when I follow instructions (let’s call it a method) of making a pharmaceutical does that mean I am infringing?

  115. The USA should really do something about all that sneezing, now that it has access to health care.

  116. Posted by: MaxDrei | May 19, 2010 at 06:25 AM: Funny, isn’t it, AI, how each of us sees what we want to see, and disregards the rest.”

    _________

    No, that would be called subjectivism, something used for viewing/appreciating art, poetry, music and other copyright protected expressions. A business method is a technological process. A series of steps that is executed the same way every time and when done according to instructions produces the same exact result. It’s how we get to the moon, make toast, and get the people through the line at McDonald’s.

    If indeed the UK does not understand the difference between subjective expression and objective execution then perhaps that’s the reason you are not number one and the USA is.

    GOD BLESS THE USA!

  117. its purpose is BUSINESS!

    The patent is. But the term “business method patent” refers to a patent wherein the disclosed/claimed invention relates to a method of doing business.

    I assume you know that and are just trolling as usual, so this will be my last attempt to explain the obvious to you.

  118. Posted by: IANAE | May 19, 2010 at 09:44 AM wrote:
    That is a ridiculous characterization.

    Maybe the patent is obtained for profit (as it should be), but that doesn’t make the invention itself a business method in any meaningful sense. A method of making horse shoes is a method of crafting a mechanical article. You may well intend to sell that article, but your patent is no more a business method patent than it is a gene patent simply because the patented article will wind up nailed to an animal.
    _______________

    WTH? Your strained, twisted logic, if it can even be called logic, is what’s ridiculous. It does not matter what category the invention falls under, or what the motivation was for “obtaining” it, whatever that means.

    Whether a patent is a Gene Splicing Method, Horse Shoe Making Method, or a Method of Hedging Funds for that matter, its purpose is BUSINESS!

    Wasn’t it Judge Rich that said something to the effect that just because an invention conducts business is no reason to deny it’s patent eligibility?

    Smart man!

    You, Mooney/IANAE can irrationally deny it all day long but you can’t refute it with any fact, science, or technology.

  119. NWPA So, if I build a machine that moves around viles and then program it to make pharmaceuticals then I guess making pharmaceuticals is now like music and not eligible for patentability.

    What is the invention? The machine? The method of moving viles? Or the instructions you are feeding the machine? Or the method of instructing the machine? Or the method of writing the instructions?

    Learn to write clearly, NWPA. I know clarity doesn’t matter for your software apps, but it helps around here.

  120. but, but, but, the information is transforming.

    Oh, right. A new program makes a prior art computer into a whole new patentable computer. Because it’s been told to do something different.

    Tell me, when you’ve been instructed to file a patent application, does that instruction in your brain (a prosecutor-readable medium) make you a different person?

  121. I can hear MM say, but, but, but, the chemicals are transforming, but, but, but, the information is transforming. Just sad that you keep rehashing these same arguments.

  122. NWPA,

    You expect too much – some of these guys cannot handle parking leveles, much less abstraction levels.

  123. It is quite revolutionary what happened with computers.

    Indeed. The guy who invented the computer is clearly entitled to a patent.

    Also, the guy who invented the transistor should get some credit. Wonderful ideas, both.

  124. It is quite revolutionary what happened with computers. A level of abstraction was built into the process of inventing. You boys just can’t seem to get your head around that.

  125. So, if I build a machine that moves around viles and then program it to make pharmaceuticals then I guess making pharmaceuticals is now like music and not eligible for patentability. We can get MM’s aunt to make all the new inventions anyway.

  126. Of course, if any of you bright boys want to handle the court case I laid out on a similar topic, y’all welcome now (ok, stole – but I did add some jazzy steps) yous can ask 6 where it is (he avoided it so weel, he gotsa have it memorized).

  127. Of course I’ll pass Maxie – this sounds like NAL’s terrain and I don’t have that “four-page-legal-journal” dissertation to whip out.

  128. ping Sheet music doesn’t make things happen.

    It does if you feed it into a computer that reads sheet music. Is is it patentable, in that case?

  129. It’s a pity that Wilton didn’t cite those old metal machine cylinders with a specific pattern of holes in them, that transform a silent musical box into a machine tinkling out a familiar melody. Now they really do “do” something.

    Tell me I’m wrong, ping. Or are you going to pass on this one too?

  130. Software is to computers as sheet music is to musical instruments.

    What wonderful crap. Sheet music doesn’t make things happen. Sheet music doesn’t transform an instrument. Let’s just ignore reality altogether with statements like this.

  131. But is there any response, pro or no, to my hypothesis that the reason the USSCt follows the SG 95% of the time on patent cases is because the justices are all technophobic and they basically don’t have a clue what it’s all about, so they just tuck in behind the SG?

    That’s been addressed by a few people already. When the SG is an amicus, it’s essentially giving a run-down of what the current law is. The Supremes tend to follow what the current law is. A high correlation is to be expected. It doesn’t necessarily mean anything sinister is going on.

    When the SG is a party, it takes the government’s side. Sometimes it wins, sometimes it loses. You won’t see a 95% correlation in those cases.

  132. I dare say you’re right, IANAE. I don’t really mind. It’s just that, being a European patent attorney, I have one foot in science and the other in the law. I observe how international peer-reviewed science is, the useful arts are, the glorious English language is. Having been involved in the Markman case at SCOTUS (were there jury trials in patent cases in England?), I like to think that patent law is a little bit international too.

  133. Umm . . . ‘cuse me. It was my quite innocent post that INANE responded to that got this major tiff energized. I am so gratified when I can contribute to a century thread on any blog. Well done all you 10th Amendment aficionados.

    But is there any response, pro or no, to my hypothesis that the reason the USSCt follows the SG 95% of the time on patent cases is because the justices are all technophobic and they basically don’t have a clue what it’s all about, so they just tuck in behind the SG?

    I raise this issue again with the sincere hope that we can do a double-century on this thread. Dennis will thank me in his will.

  134. Bad joke, read the cases involving “strings” attached to government money, especially the cases the resulted from “revenue sharing.”

    Congress can spend money on the general welfare and attach strings. That is all I am saying.

    Now, if you disagree with the “string” cases, let me know.

  135. This conclusion you are coming to, ping, that you will have to pass. It’s very welcome I must say. Mark Twain would surely approve.

  136. Even if SCOTUS chooses totally to ignore the 30 years of EPO jurisprudence summed up in G3/08, I doubt it can be quite so dismissive of the logic behind that speech in Australia.

    I think you’ll be unpleasantly surprised at how dismissive Americans in key decision-making positions can be.

  137. Since this distinction between cabinet-making and the reduction to material form of creativity in literary and artistic thought is up and running, I wonder if Paul Cole can provide a link to the recent speech in Australia by Lord Leonard Hoffmann (a South African). He has just retired as a judge of the UK Supreme Court, where in recent years he has been single-handedly creating a string of seminal patent decisions.

    So, no taint of “European” clinging to him then.

    But in that speech he does elegantly stiletto the difference between the useful arts and the finer arts.

    Even if SCOTUS chooses totally to ignore the 30 years of EPO jurisprudence summed up in G3/08, I doubt it can be quite so dismissive of the logic behind that speech in Australia.

    Soon we will know.

  138. Can’t you come up with something that makes me think

    Wow, now that’s a challenge. Not sure I’m up to it Maxie, cause I haven’t seen any evidence that you can actually think. Something about blood and stones comes to mind.

    Ima gonna haveta pass – maybe my main man IANAE can take this one.

    6,
    software market probably wasn’t one that was going to pay my bills

    And MickyD’s is doing so much better for you too.

    come from a cabinet making background in my far-far off past
    Hiding in one while watching Mommy doesn’t count.

  139. “6 has obviously never written any real software. ”

    Guess that depends on what you mean by “real” software. I co-wrote some software to program a machine that a business would buy if that’s good enough for you. Fyi, I was the one who “reduced to practice” the programming enough to where it would have been ready for patenting in today’s lolable environment. The fact that the whole market was about 15 items large and would probably only pay less than the microcontrollers cost notwithstanding, is that “real software”? Or do I have to write for a larger market for it to be “real”?

    Needless to say, I quickly learned that the software market probably wasn’t one that was going to pay my bills, so I decided to go ahead in my studies in the useful arts instead.

    The fact of the matter is, tardface, that I’m more than qualified to comment on your software writing nonsense being not within the useful arts, or even anywhere close to them. I do, in fact, come from a cabinet making background in my far-far off past, and could make you one were I so inclined to. Funny enough, when my dad (one person who helped teach me to make cabinets) was done making cabinets as one of his day JOBS, he’d come home and PAINT, WRITE SOFTWARE, or PLAY MUSIC for LEISURE. Funny the distinction there huh? The line just so happened to fall right down the useful arts line. Sure, he made some $$$ off the painting and music, but he only did them for leisure.

    Come to think of it, maybe what I should have done was taken my invention, abstracted it to the extreme, patented it, and then trolled the f out of MS et al. once they made something even remotely similar to the overbroad abstraction I came up with for my software. Why bother with making any products to sell when MS et al. can make similar ones and I can just take a cut out of that?

  140. ping, nice retort about the tongs and the bag. A bit sad though, and it adds no value to the thread. Can’t you come up with something that makes me think (rather than something that just makes me laugh).

  141. Awww, poor pingey wingey, conversation doesn’t go his way and he has to resort to changing the topic to even more nonsense.

    Face the end to your shinanigans like a man fool.

  142. “software aint shxt”

    6 has obviously never written any real software. The kind that actually controls machines.

    Come to think of it, all the evidence we’ve seen here suggests that 6 has never written anything of any value.

  143. 6,

    Let’s not hear any of your nonsense, OK?

    You are lucky that I am not a vindictive blogger and chase you back to the court room. Are you still dreaming of Mommy and those handcuffs?

  144. “Except Maxie, software writing is a far cry closer to the cabinent maker than to the painter or musician. Software does things. It is functional.”

    Hardly on both accounts. Sofware writing is nowhere near closer to cabinet making than to painting or music writing/playing. One involves making something, the other two involve mere writing or use of an instrument. Guess which one software WRITING/computer USING is closest to?

    Furthermore, to address your reason why it supposedly is: Software itself ain’t sht, and it sure ain’t functional. It ain’t nothing but a work o artistic value on its own (and very poor artistic value). Take your windows Vista and just try some sht on your old Tandy. The only thing that makes software worth a dam is the computer makers (aka your cabinet makers).

    It’s like in the olden days making writing a poem in a special way patentable (or a cabinet inscribed in this special poetic fashion) because it could be argued that this poetic writing method is “functional” because it happens to make the front of a cabinet be worthwhile as a bottle opener and then allowing the claim thereto based on what the poem states, or the “functionality” as a bottle opener (where the art makes no connection between the poetic style and the functionality of a bottle opener)rather than the structure of the portion of the cabinet that was actually a bottle opener portion.

    Ridiculous nonsense, just as it would have been back in the day.

  145. And Ned, the general welfare? Seriously?

    If Congress could make laws on any topic “for the general welfare”, then why bother with the rest of the consitution, speficially the enumeration of powers and the 10th amendment?

    General welfare clause? Think a little.

  146. IANAE, I’m glad I don’t live in your parallel universe. I think I’m a lot more successful by knowing what is true and what is not.

    The fact of Obamacare is that you’re asked to pay premiums that federal mandates are causing to skyrocket. If you don’t pay, you’re fined, and if you don’t pay the fine, jail. It’s that simple. So you and your fellow progressives/statists/communists, whatever you call yourselves these days, will offer to solve the problem you created by going to single payer system. That was always the intent, and we both know that’s the truth. The dishonesty is just getting old when it’s so obviously not working and a waste of time. We’re grownups here, you can drop the facade.

  147. From my understanding, citizens under Obamacare will be required to have health insurance or else pay a penalty.

    I’m sure it won’t be long before one of those poor, oppressed people who was cruelly forced to have health insurance against his will challenges the law in court.

    You hear it all the time. Ordinary people taking to the streets to complain that they have too much health insurance, and they wish people would let them die homeless in peace and agony on their own terms.

    Wait, can people still refuse medical treatment under the health care bill? Presumably there’s a penalty for that.

    Since every patent at its core is a method of doing business,

    That is a ridiculous characterization.

    Maybe the patent is obtained for profit (as it should be), but that doesn’t make the invention itself a business method in any meaningful sense. A method of making horse shoes is a method of crafting a mechanical article. You may well intend to sell that article, but your patent is no more a business method patent than it is a gene patent simply because the patented article will wind up nailed to an animal.

  148. Maxie,

    I try not to use any lens when examining your contributions – mostly tongs and a nice plastic bag.

  149. Night, agreed. But when I wrote “technical” I had in mind not just 101 “technical character” but also 103 “technical effect”. Never mind, private joke.

    ping, poetry and paintings and music can move the world, not just electrons in a data processor. Art has a valuable function. It “does things” too.

    My lens is not perfect, I agree. Did I say otherwise?

    But how about that lens you are using, to examine mine. Are you saying it is perfect?

  150. “Bilski’s method-if claimed on a machine–should be eligible for patentability.”
    As it would be in Europe. Except in Europe it would then be thrown out on obviousness for lack of any novel features beyond the bare, patent-ineligible method; i.e. for lack of any “technical” contribution to the art.

  151. Today, we have writers of software, trying to earn an honest crust, also just as much in business as the portrait painters and piano teachers of yore.

    Except Maxie, software writing is a far cry closer to the cabinent maker than to the painter or musician. Software does things. It is functional.

    It appears that your lens is the distorted one.

  152. Max: a machine that processes information is “technical.” A machine that can do what a person can do.

    Bilski’s method-if claimed on a machine–should be eligible for patentability.

  153. Funny, isn’t it, AI, how each of us sees what we want to see, and disregards the rest. We agree there were people in business in 1789, trying to earn an honest crust, not just by making nice tables but also by giving piano lessons or painting portraits. I do not accept that the teachers and painters were any less “doing business” than the cabinet makers.

    Today, we have writers of software, trying to earn an honest crust, also just as much in business as the portrait painters and piano teachers of yore.

    Even had there been computers in 1789, the Constitution would still have said (and meant) “useful arts”, thereby excluding much of the business activity of 1789.

    My point is that it is unconvincing to me when you invoke the belated invention of the computer to subvert the plain meaning of “useful arts” into “any form of business”.

    Take the European Patent Convention, written in 1973, after the invention of the computer. Business methods (as such) out, but “all fields of technology in. I do not accept that “technical” is obsolete, as a litmus test of patentability. It goes back to a root that is in common with the “useful arts” expression in the US Constitution.

    Sorry, but only people with an axe to grind see it otherwise, through a lens that distorts their view.

  154. Posted by: Ned Heller | May 18, 2010 at 02:35 PM Wrote: Night Writer, I don’t think they will have to decide the full scope of what comprises the “useful Arts” to decide that “methods of doing business” were not within the useful Arts in 1789.”

    Ned,

    Since every patent at its core is a method of doing business, even going back to 1789, on what legal, scientific or technological basis could such a decision be made? Stern certainly has no such basis in his brief and the Supremes have nothing to fall back on.

    Yes, yes I know you can argue that there were no computers, information processing and complex business systems and such back in 1789 But doesn’t that defeat the purpose of promoting the progress of science and the useful arts? How can we “progress” when the only useful arts
    ( technology) that is patent eligible is the technology that was already discovered as of 1789?

    And as far as methods of doing business is concerned think about the typical inventions of the 18th century such as making horse shoes, harnesses for horses, plows and new ways to plow fields and the like. You think people where discovering and improving these types of inventions for fun and leisure? For liberal arts and higher learning? Maybe as an exercise of pure creative expression? No way! These inventions where discovered for one purpose and one purpose only, as a way to do business and make money! Cold hard in your face commerce.

    And it’s worth noting that these inventors of 1789 were for the most part small business owners trying to create jobs for themselves and their families and communities. It’s irrational that some want the SCOTUS to take away from small business owners of today the very Constitutional Rights and tools of commerce that helped make this country great.

    So I leave you with this question, shouldn’t the small business owners of the 21st century enjoy the same rights and tools of commerce afforded by the patent system as the small business owners of the 18th century?

    I say YES! Our economy, our country, our very way of life depends on it!

    God Bless The US Patent System!

    God Bless America!

  155. “it my still be unconstitutional because it amounts to a per capita tax, which can only be levied equally among the entire population. ”

    The income tax does that too, but thanks to the infinite wisdom of the courts nobody holds them to that.

  156. IANAE, the line crossed in the line separating regulation from spending.

    IIRC, the US government can give private institutions federal assistance and then require them as a condition to abide by government regulations. What the government cannot do is require you to accept government money against your will, or to regulate beyond the enumerated powers without your voluntarily accepting government money.

    From my understanding, citizens under Obamacare will be required to have health insurance or else pay a penalty. There seems to be no consideration of the specific financial circumstances of the individual and whether he or she can afford health insurance without government assistance. Now if this is correct, the law may be unconstitutional if it is not within the enumerated powers, and, even if it is, it my still be unconstitutional because it amounts to a per capita tax, which can only be levied equally among the entire population.

  157. No IANAE.

    My wife is from a foreign land. I always joke with her that I would have no trouble getting along in her country without a translator as all I would have to do to be understood would be to speak louder.

  158. The problem with the Obamacare is that it appears to have cross the line.

    Is it a line that Obamedicare doesn’t also cross?

  159. Constitutional scholars, it is one thing to spend money and quite another to regulate an activity. The one requires money, the other requires a constitutional power.

    I think Congress can spend money on the general welfare and even attach strings. But what it cannot do is tell the states and the people who do not accept the money what it can or cannot do unless the activity is within the powers granted to Congress or the president.

    The problem with the Obamacare is that it appears to have cross the line.

  160. I hope Barry invites you guys to the White House for a beer.

    Not likely. I hear Barry hates white people.

    But I know he’s not averse to serving imported beer, so if invited I would accept.

  161. “Wilton” (Mooney)

    “developing a brilliant business model”

    BWAHAHAHAHAHAHA.

    You mean appropriating CP/M and having family money connections?

    Besides, what does it matter that Beck had a little trouble in his life. Makes him a whole lot more real.

    “what’s he been right about”

    Just about everything, Mooney.

  162. But if we tell Mooney that socialism is wrong, all he will do is stop listening. We need to do better.

    Have you tried telling him louder? It seems to work on Republicans and foreigners.

  163. Mooney is a socialist. He admits it. But if we tell Mooney that socialism is wrong, all he will do is stop listening. We need to do better.

  164. The 10th amendment says that the GOVERNMENT DOES NOT HAVE THE POWER TO PROVIDE HEALTH CARE TO ALL AMERICANS because it’s not a power specifically delegated to the Federal govn’t.

    Great, we’re right back to first principles. Whose job is it to do something about this alleged violation of the 10th Amendment?

    That’s right, the courts. Don’t complain to us, complain to them.

  165. Conservatives: what did Attila the Hun stand for? The mass slaughter of civilians until the enemy surrendered.

    So why is it, then, that Rush Limbaugh sits, according to his own words, on the Attila the Hun chair? I don’t get it.

  166. Mooney, on the other hand, has a deep emotional investment in the class warfare myth, in the “money/prosperity is bad” myth, in the “Democrats are not Socialists” myth, and so on.

    That’s why he wears Birkenstocks and worries about gay marriage.

  167. RWA: “There’s a very good reason why the man never graduated college.”

    Come to think of it Bill Gates also had a “very good reason.”

    RWA, really? You are going to compare Glenn Beck to Bill Gates? Tell me, what reason did Beck have for failing to go to college until he was in his 30’s and then dropping out after one class in theology? Then, once you’ve recited the reason, tell me why it should be in any way comparable to developing a brilliant business model for technology that was in its infancy?

    BJA: I love the ad hominem attacks on Beck. “He’s dumb.” “He’s totally insane.” “There’s a reason he didn’t go to college.” So what exactly has he been wrong about?

    Perhaps the better question is to ask what he has been right about.

  168. “because you said you were for federal legislation providing health insurance to the poor”

    Wasn’t me.

  169. Can we throw a little patent law in here on this debate? All this political party stuff puts me to sleep. It’s not as if both sides wouldn’t rip you off in your sleep.

  170. Mooney, yes, please do come up with something real. Bwhahaha. You’re asserting that he’s wrong about the overarching effect of the outcome of a lawsuit? Bwahahahaha.

    KSR provides clear guidance. Well, the court says it, so it must be true, right?

  171. RWA, because you said that you were for federal legislation providing health insurance to the poor.

  172. BJA So what exactly has [Glenn Beck] been wrong about?

    Hmmm… where to start? I guess this will do as well as any. Remember when the Iowa Supreme Court declared that the state law banning gay marriage violated the state Constitution? Here’s what Glenn “Legal Expert” Beck said on FOX News, April 13, 2009:

    this case is actually about going into churches and going in and attacking churches and saying you can’t teach anything else.

    Insofar as the Iowa Supreme Court expressly stated otherwise, he was dead wrong about the case. Let me know if you need more examples. I’ve got a lot more lined up, all of which involve Beck playing on the fears of ignorant teebugger types.

    Really, though: if this is news to you, you’re probably too emotionally invested in the myth to handle the truth.

  173. Mooney, I can understand if you lacked the upbringing that would have allowed you to appreciate the financial wisdom in buying gold.

    Did I say gold? I said “gold coins.” You know, like the gold coins that Glenn Beck’s buddy Goldline International advertises in commercials during Glenn Beck’s show. You know the show, right? It’s the one where Glenn Beck tells people how our “socialist” President is trying to destroy the United States, therefore people should invest in gold before it’s too late.

    God Bless America.

  174. And RWA, you may think we’re on the same side, but we’re apparently not. I oppose medicare, social security, Obamacare, earned income credits, welfare, unemployment insurance, and the thousands of other handout programs and systems that remove individual freedom and responsibility. There is NO authority in the Constitution for such programs at the FEDERAL level, and I am generally against things that are illegal.

  175. “There’s a very good reason why the man never graduated college.”

    Come to think of it Bill Gates also had a “very good reason.”

  176. IANAE,

    Ah, now you’re showing your colors. “I also don’t know what most Republicans would have supported…”

    Does it matter? The 10th amendment says that the GOVERNMENT DOES NOT HAVE THE POWER TO PROVIDE HEALTH CARE TO ALL AMERICANS because it’s not a power specifically delegated to the Federal govn’t. So, you previously said exactly what you meant: the government can take any right they want at any time.

    I love the ad hominem attacks on Beck. “He’s dumb.” “He’s totally insane.” “There’s a reason he didn’t go to college.” So what exactly has he been wrong about?

  177. “…they kept refusing to have an honest public debate about what would be a reasonable way to give everybody health care.”

    The sad part is INSANE doesn’t even realize let alone understand the fallacious reasoning contained in this very statement.

    Who said it was a good idea to “give everybody healthcare?” Why not just replace “healthcare” with “a brand new Mercedes?” Where does the government’s generosity with the taxpayer’s money end? I’ll tell you, when the productive element of society is bled dry and there is no more to “give.”

  178. Mooney, I can understand if you lacked the upbringing that would have allowed you to appreciate the financial wisdom in buying gold. You might try reading something like “Rich Dad/Poor Dad” and read the “Rich Dad” part this time around.

    We can also now better understand the profound bitterness that seeps from every sentence you have ever posted here on PatentlyO. Now that you have admitted your proletariat upbringing, we can all understand that your values are severely skewed when it comes to issues like prosperity.

    Heck, we can even understand the bitter partisanism so painfully evident in your attacks against dead presidents.

    So you go ahead and get it all out of your system. We understand that it may take a lifetime.

  179. I do not know of any Republican that would have opposed this in principle.

    Lucky for you that you have no obligation to conduct a search.

    Why doesn’t someone simply ask the like of Glenn Beck this question?

    If only there were some way of knowing what Glenn Beck thinks.

  180. IANAE, some of what you said is true, some not so true about what happened. But speaking only for me, I would have supported a bill to give the poor basic health insurance. I do not know of any Republican that would have opposed this in principle.

    But the proof is in the pudding, as they say. Why doesn’t someone simply ask the like of Glenn Beck this question?

  181. By the way, anyone that tries to have a logical debate by channelling Glenn Beck needs to have his head examined.

    I don’t think I’ve ever seen anyone attempt logical debate by channeling Glenn Beck. Least of all Beck himself.

    I think most Republicans would have supported a narrowly focused bill to give the poor basic health insurance. But that is not what happened, was it?

    I don’t know if that’s what happened. I also don’t know what most Republicans would have supported, because they kept refusing to have an honest public debate about what would be a reasonable way to give everybody health care. And then they whined that they never got a chance to debate the issue. And then they whined about the bill passing by majority vote because that was somehow undemocratic.

  182. Ned I think most Republicans would have supported a narrowly focused bill to give the poor basic health insurance.

    BWHAHAHAHAHAHAHAHHAHAHAHAHHAAHHAHAAHAHAHAAHAHA!!!!!!!!!

    Hey Ned: Glenn Beck just called. He said you should invest in gold coins today.

  183. IANEA I remember distinctly how the government never did stuff like imprisoning people without due process or tapping phone lines or anything else it thought it could get away with?

    Well, if they did do anything of that it was to swarthy, Muslim types. Real Americans like RWA weren’t under attack like they are now. Heck, it’s still illegal in most states to carry an open firearm into a tavern!!! So much for Constitutional freedoms. It’s worse than Dachau.

  184. IANAE, you clearly do not understand why people are upset about Obamacare.

    I think most Republicans would have supported a narrowly focused bill to give the poor basic health insurance. But that is not what happened, was it?

  185. By the way, anyone that tries to have a logical debate by channelling Glenn Beck needs to have his head examined. There’s a very good reason why the man never graduated college.

  186. Both of those statements, taken together, and extended to their logical absurdity, eventually lead to a totalitarian state with infinitely expanded jurisdiction, and infinitessimally narrow rights.

    Yes, I imagine that when someone takes things to their logical absurdity, one can only imagine the logically absurd. Perhaps you should be more concerned with what would happen in practical reality.

  187. You are saying that government does whatever it can get away with with regard to individual rights and doesn’t even have to be a good citizen in society, but it DOES.

    Yes, I remember distinctly how the government never did stuff like imprisoning people without due process or tapping phone lines or anything else it thought it could get away with.

    But now that a “communist” is in charge and destroying the country by letting people see a doctor, aren’t you glad he’s not the one in charge of making sure you have your rights?

  188. “Your statement is like saying, Americans shouldn’t want to obey the law, but do because of the threat of getting caught.

    It’s not like that at all.”

    But it IS like that. And you’re the one who said it.

    You are saying that government does whatever it can get away with with regard to individual rights and doesn’t even have to be a good citizen in society, but it DOES. And it is exactly like saying that citizens can do whatever they can get away with until caught and punished by the state.

    Although some people live that way (and we call those people criminals), it is not the ideal. Not even close.

  189. BJA, the Supremes are effectively applying the 10th Amendment through “substantive due process” and its protection of liberty, which includes the so-called right to privacy. While at one time saying that the Lochner era was dead, that really only applied to the use of SDP in cases involving “freedom of contract.” If however an individual right long recognized by Western Civilization as fundamental is invaded by law, the Supremes will give it strict scrutiny.

    This is essentially the 10th Amendment in operation.

  190. And I’ll tell you the point of OUR government. It’s to create a society that RESPECTS and PROTECTS individual liberty and freedom. The point is to let individuals do whatever they please so long as their not trampling the rights of others. The job of the government is to provide a set system for redress when someone’s rights are trampled and for discouraging such trespasses. Else, you’re leaving it up to me, the individual, to protect my own rights. That’s a terrible, terrible choice if you infringe on any of my rights. Trust me, you’d much rather deal with the govn’t then me left to my own after you’ve wronged me. Of course, there wouldn’t be any long, drawn out court proceedings, so if you’re all about speed, then it may indeed be your preferred system.

  191. “Sorry, meant to say “within its powers”. Should have thought that would be obvious to you, and you could respond to my actual point. But thanks for the nitpick.”

    Posted by: IANAE | May 18, 2010 at 02:43 PM

    The only other point I see is that the only rights you have that the Federal govn’t cannot infringe are whatever the supreme court says they are, regardless of what the text of the Constitution says.

    Which, as I said, flies in the face of the 10th amendment and the rule of law (because if the law isn’t what’s written in the statutes, then can anyone really know the law).

  192. IANAE clearly does not understand the 10th amendment, as BJA points out.

    Rather than a no-holds-barred, scorched-earth, tug-of-war, death match between government and the people, which is the picture painted by INSANE, I believe the government has a duty not only to acknowledge and respect individual rights as the government of DC did with respect to individual gun ownership, but to create an environment where those rights will not be trampled, and if they are, then to deliver sanctions. All powers not specifically enumerated are reserved to the states and to the people.

    In INSANE’s loopy world, the government tramples all your rights whenever possible and its up to the tension of “checks and balances” to clean up the mess after the fact.

    Not on my watch.

  193. Wait, I’m going to attempt to decipher your ridiculous ramblings:

    “It’s not like that at all. I don’t expect a Beckerhead like you to understand the distinction, or even admit it if you did. The government is not a society. It is a delicately balanced set of man-made institutions, designed in the noblest of American spirits to succeed through the constant selfish conflict between adverse interests. You know, like capitalism. You guys like capitalism, right? In capitalism nobody is ever expected to “do the right thing”.”

    Removing the rubbish:
    “I can’t stand Beck showing me what my idols said and how it conflicts with reality. The government is not a society. It is a set of institutions designed to succeed through conflicts of adverse interests. Just like capitalism. In the govn’t, no one is ever expected to “do the right thing.””

    Seriously? Did you ever read during school, or did you just take your re-education that well? That explanation was COMPLETELY meaningless and CERTAINLY nothing that someone would be willing to give up their fortune, family, and life to create like our founders were. It’s absurd.

  194. IANAE, since the govn’t doesn’t exist to look out for our individual rights, then why does it exist? What is its purpose?

    Really?

    If you haven’t read the constitution by now, I’m not going to type it out for you. Google it.

  195. The 10th amendment to the Constitution disagrees with you.

    Sorry, meant to say “within its powers”. Should have thought that would be obvious to you, and you could respond to my actual point. But thanks for the nitpick.

  196. IANAE, since the govn’t doesn’t exist to look out for our individual rights, then why does it exist? What is its purpose?

    This ought to be a VERY interesting answer.

  197. IANAE, always the reliable statist.

    The 10th amendment to the Constitution disagrees with you.

    Stick to patent law, you seem to know more about it than the law in general.

  198. Opressive government that “isn’t supposed to want to respect your rights” == just fine

    Nobody’s saying you don’t have rights, just that it’s not the government’s job to look out for them.

    If you went to a shoe store and tried to buy a car, would you conclude that cars don’t exist? That society has decided that it’s okay not to sell cars? Or that you’d gone to the wrong place for what you want?

    Maybe you’re confused because Republicans work so hard to appoint judges who will make/overturn the decisions they want, but if you read the constitution you’ll note that the branches of government are supposed to be separate and independent and have different powers.

    Pretty basic stuff, really.

  199. Night Writer, I don’t think they will have to decide the full scope of what comprises the “useful Arts” to decide that “methods of doing business” were not within the useful Arts in 1789.

  200. Figures we’d here from Monkey, er, Mooney (IANAE).

    Let me see if I have this right.

    people doing the right thing == boogey men out there with pointy hats and robes

    Opressive government that “isn’t supposed to want to respect your rights” == just fine

    You might want to open up some windows down there in mom’s basement. I think the Radon fumes are further rotting your crack-addled brain.

  201. you aren’t fit to lick the bottom of Glen Beck’s shoes.

    Heh. How ever did I know you were channeling him?

    I’m glad you don’t think I should lick him. I didn’t really want to.

    Your statement is like saying, Americans shouldn’t want to obey the law, but do because of the threat of getting caught.

    It’s not like that at all. I don’t expect a Beckerhead like you to understand the distinction, or even admit it if you did. The government is not a society. It is a delicately balanced set of man-made institutions, designed in the noblest of American spirits to succeed through the constant selfish conflict between adverse interests. You know, like capitalism. You guys like capitalism, right? In capitalism nobody is ever expected to “do the right thing”.

  202. Well, you boys and girls have had the discussion without me, and I think my point of view has been made. I do regret, however, the vitriol that crept into the discussion.

  203. RWA Maybe that’s the way it works in whatever filthy ghetto you live in, but in my neck of the woods, people actually try to do the right thing.

    LOL. And when they aren’t trying, they at least have the decency to put on a pointy hat and a white sheet so people aren’t confused.

  204. For your beneifit, I have included what I see as the fatal flaw in your “reasoning.”

    The government isn’t supposed to want to respect your rights

    I would say that if we were living in Venezuela, you might be right. But here, I would say you are flat out wrong (no surprise there). What Cowboy is saying is that it is troublesome when the government fails to acknowledge its limitations and actually admits to want ever expanding jurisdiction coupled with a desire to have superior broad powers over your narrow rights.

    Your statement is like saying, Americans shouldn’t want to obey the law, but do because of the threat of getting caught. Maybe that’s the way it works in whatever filthy ghetto you live in, but in my neck of the woods, people actually try to do the right thing.

  205. IN(S)ANE, you aren’t fit to lick the bottom of Glen Beck’s shoes. He is just a convenient hobgoblin that is scary because he points out in great detail all that is wrong with your mindset and the severe flaws in the way your “reasoning” works.

    Glen Beck isn’t the problem. M0r0ns like you are.

  206. Both of those statements, taken together, and extended to their logical absurdity, eventually lead to a totalitarian state with infinitely expanded jurisdiction, and infinitessimally narrow rights.

    1. Thank you, Glenn Beck.

    2. What a surprise, statements extended to their logical absurdity result in an undesirable outcome.

    3. Maybe you didn’t read the part of my post (or the constitution) where it says that those constitutional rights exist precisely to prevent a totalitarian state. The government can legislate all the way up to the edge of your rights, and the court tells the government where to stop. If there’s no right standing in the way, the government can make any law it wants, subject to any individual legislator’s desire to be reelected. It’s always been that way.

  207. “and nearly 1.5 years of research directed to the need for patenting algorithms.”

    1.5 years of your life wasted :( I feel sorry for you man. Hope you at least got paid, because that sure as f isn’t rewarding work in other aspects now is it? There is nothing you could possibly learn from such research as there is no such need :(

  208. >>This is why I believe the MOT will not decide >>this case and why Stern’s approach will prove >>decisive.

    I do hope you are kidding. Figure out utility based on utility as it was understood in the 1700’s?

    Max, they are waiting for an audience with the Queen before writing the opinion.

  209. INANE, you miss the point (not surprisingly).

    Both of those statements, taken together, and extended to their logical absurdity, eventually lead to a totalitarian state with infinitely expanded jurisdiction, and infinitessimally narrow rights.

    Kind of like what we have been seeing in Amerika – where liberty used, to live.

  210. The advocacy of the good solicitor general leaves something to be desired. At one point during oral argument one of the Supremes commented that he followed the reasoning of the government that Bilski did not satisfy the MOT, but suddenly lost it when the government said the Bilski claim would satisfy the MOT test if the claim was directed to a programmed machine or an article of manufacture.

    This is why I believe the MOT will not decide this case and why Stern’s approach will prove decisive.

    As to when, Stern told me, June.

  211. IANAE,

    Some people operate under the mistaken impression that “doing what’s right” is a fundamental precept in law, rather than “gimmie gimmie gimmie – more power, more power, more power“.

    The naiveté is charming.

    Sort of like thinking that the checks and balances tri-part structure looks nice.

  212. Both of these statements are troubling.

    Why?

    Your constitutional rights are supposed to be a limit on government legislative power. Pretty much all of those rights are adverse to some kind of law you’d otherwise expect the government to want to enact for one reason or another. The government isn’t supposed to want to respect your rights, it’s supposed to have no choice because it’s in the rules (the constitution) that those rights override any inconsistent law.

    It’s the judges who are supposed to care about your constitutional rights, and enforce them against the legislative and executive branches. Branches of government, checks and balances, and so forth. Was this not covered in school?

  213. “Patent Amicus Briefs: What the Courts’ Friends Can Teach Us About the Patent System”

    That sounds so touchy-feely, I think I’m going to hurl. Just as soon as I get done singing Kum-bah-yah.

  214. ” the government as amicus has an interest in defending broad application of statutes to extend its jurisdiction. ”

    “In constitutional matters, the government would generally advocate for broad powers and narrow rights for the same reason. ”

    Both of these statements are troubling. To me that is self-evident; if I need to explain why, let me know.

  215. Predicting the outcome is not the point of primary interest for most practitioners. It is already clear that SCROTUS has become a group of political hacks that do whatever it takes to arrive at some outcome that has been deemed desirable. What is of great importance to the day-to-day practitioners and patent stakeholder, e.g. the people who REALLY matter in all of this, is what SCROTUS will say about what subject matter is eligible.

    My prediction is that they will, as usual, give us useless gobbledygook.

  216. The wait for the Bilski decision from SCOTUS reminds me of the “padding” at the end of the message Nimitz sent Halsey about where his 3rd Fleet was in the Battle of Leyte Gulf while Kinkaid and Taffy 3 of the 7th Fleet tried to stave off annihilation by Kurita’s battleships in the Center Force: “THE [PATENT] WORLD WONDERS.”

  217. If the rate is 50:50 for bankruptcy cases, criminal cases, and 1st amendment cases, then we might be looking at a judicial technophobia that the USSCt hides simply by re-packaging whatever the SG says.

    I don’t think that would necessarily be the implication. In pretty much any other area of law that is routinely before the Supreme Court, the government as amicus has an interest in defending broad application of statutes to extend its jurisdiction. In constitutional matters, the government would generally advocate for broad powers and narrow rights for the same reason. Also, whenever the Supremes decide a case on constitutional grounds, the government is nearly powerless to overcome that decision with legislation. When you take a side, you’re flipping a coin like all the other amici in patent cases who are not outcome-predictive.

    In patents, the government probably doesn’t really care whether a particular set of claims or class of technology is eligible for patent or issues to patent. The government doesn’t exert any real degree of control over issued patents, nor does it turn a significant profit from them. Even if it turns out that computers are not statutory subject matter, the question is just that – statutory. The government will defend the status quo and reserve the ability to legislate later as policy dictates.

  218. I disagree with the professor. Of course I base my opinion on a mere 20 years of experience in the field and nearly 1.5 years of research directed to the need for patenting algorithms. But hey, I could be wrong.

  219. There are some very interesting issues circling around the periphery of some of these comments. Bilski, per se, is not one of them.

    The first issue is whether the 19/20 rate of buying the government’s case is any different in patent cases than any other subject over the same period. If the rate is 50:50 for bankruptcy cases, criminal cases, and 1st amendment cases, then we might be looking at a judicial technophobia that the USSCt hides simply by re-packaging whatever the SG says. There are many of us who, after cases like Flook, seriously doubt that the Court has any technical abilities.

    The other unknown is whether the last 20 years are representative. This may be important because if it’s not, there may be a strong influence of conservative justices — maybe the conservatives are more freaked out by technology. Is there a lower rate of granting cert to patent cases during this period? This might also indicate a technophobia.

    Face it, for folks with 0 math, 0 programming, 0 science and 0 technical experience, technology has gotten pretty scary in the last 20 years. Bankruptcy is about the same — still scary, but no more so.

  220. Kagan’s brief basically says the MOT test should be upheld. Who really thinks they are going to author an opinion to uphold it? Wouldn’t they just dismiss cert as improvidently granted? Is that what Chien is saying we should expect?

  221. “Hopefully she’ll author the opinion which overturns Citizens United, which is easily one of the worst Supreme Court decisions …”

    Hmmm… maybe if the government in the person of your hero SG Kagan hadn’t said she thought she could ban book dissemination via the same statutes…

  222. Of course the SG argued against cert and against the patentability of the claim. The U.S. is basically one of the parties here. The SG’s personal views on the subject don’t really get to be expressed, do they? So why should we think those briefs reflect the personal views of the SG?

  223. When it becomes agreement in 19 out of 20 cases, one begins to wonder if the Supremes think for themselves.

    If you write a math test and get 19/20 of the same answers as someone else, is it because neither of you can think for yourself? Or is it because there isn’t a whole lot of wiggle room in the right answer, and the right answer isn’t suspicious just because someone else also arrived at it?

    These are government amicus briefs. They’re essentially a statement of what the government thinks the law is, and it turns out they usually get the right answer. They probably also produce the only amicus brief in most cases that doesn’t take a side to defend the author’s interest. If the Supremes sided with the government 95% of the time when the government was a party, then you’d have good reason to complain.

  224. BJA said “just because they agree doesn’t mean there’s a problem with separation of powers.”

    When it becomes agreement in 19 out of 20 cases, one begins to wonder if the Supremes think for themselves. Then again, you read KSR and you wonder if they think at all.

  225. Malcolm, well you will agree that the Citizen’s United case saw a fundamental change in Supreme Court case law. They overruled prior constitutional cases. Now that is very unusual.

    You can see in reading the majority opinion that they were struggling to avoid the “big” issue and decided the case on narrow statutory grounds. But the good solicitor general gave them no choice. This is where her brief was the weakest. She gave them no reading of the statute that was acceptable, saying at one point that a “suggested” interpretation was not sufficient. They wondered at the government position here, saying that they had never seen such a position before where an interpretation was “suggested” but not clearly endorsed as right.

    There is no doubt in my mind that the reason the government lost the case had a lot to do with the poor advocacy of the good solicitor general.

  226. MaxDrei, dittos on Stern. The more I think on it, the more I think that they will 1) affirm the MOT test, but agree as they did in Benson that it is not exclusive; and 2) but in this case hold that the real problem with Bilski’s claims is the “kind” of utility. Business methods do not fall within “useful Arts.”

  227. Because, otherwise, the cutting edge research will be taking place in other countries,

    Why would patent law dictate where research is conducted? People who spend big bucks on research usually want patents all over the world, and by and large their patent protection in a particular country has nothing to do with whether they invented the technology in that country.

    Research will go where it is cheapest to do the research.

  228. On this blog one learns something new every day. I am so naive. I had no idea that the way the USA became great was:

    “….refuse to grant foreign filing licenses and issue secrecy orders on the really good inventions, the same way we used to do it.”

    Not sure I believe it though. Is it a joke? Are you being serious, TINLA IANYL? Are you sure that would still work, in today’s globalised world. I thought that nothing makes all those foreign demons more happy than when US industry neglects to file foreign.

  229. especially when the “particular machine” requirement includes pretty much any computer that will ever be built.

    Fixed that for ya pal.

    The thought crosses my mind, mischievously, that the Justices want to digest G3/08

    Maxie,

    The Justices have no interest in the legal thoughts on your side of the pond. None.

  230. “I think they’ll carve out some room for computer implementations that relate to making computers work better, and possibly for useful applications of math such as cryptography that in a practical sense are only ever done on computers and without physical structure.”

    You think they’ll go with the EPO’s “technical effect” then…

  231. The thought crosses my mind, mischievously, that the Justices want to digest G3/08 (you can download it from the EPO website since last week) before they issue their opinions.

    Suppose the outside cylindrical surface of a coffee mug, old in all respects but one, namely that it is engraved with a new (and decidedly non-obvious) poem (or aphorism) is what is claimed, as object or as method. Does either claim pass through the 101 filter and does it then pass through the 103 filter. I imagine SCOTUS will want this case to be useful guidance to the USPTO in such circumstances.

    My money’s on Stern.

  232. In trying to ascertain what Congress intended when authoring the Patent Act, I think it would be best not to get too close to the trees, and focus instead on whatever rule will get people performing R&D in the U.S. again. I’m sure that if we could ask the 1952 Congress what they meant, they would say that’s what they meant.
    Because, otherwise, the cutting edge research will be taking place in other countries, who will then refuse to grant foreign filing licenses and issue secrecy orders on the really good inventions, the same way we used to do it. You know, back when the U.S. was the place to be.

    Now, the problem is figuring out a rule that will accomplish that end. Good luck with that.

  233. The Bilski claims just don’t pass the machine or transformation test

    Clearly. The Bilski claims don’t even pass the laugh test.

    I will be very surprised if the Supremes uphold “machine or transformation”. Processes are separately patentable subject matter, and it doesn’t make sense to tie them to machines or compositions of matter, especially when the “particular machine” requirement excludes pretty much any computer that will ever be built.

    I think they’ll carve out some room for computer implementations that relate to making computers work better, and possibly for useful applications of math such as cryptography that in a practical sense are only ever done on computers and without physical structure.

    Bilski’s claims aren’t really close enough to the 101 boundary to make the boundary clear. It’s like trying to map America’s coastline from Iowa – you know it’s there somewhere, but you don’t have a very good view of it, and it’s easy to get the details wrong, and it’s potentially a big problem for the first guy who uses your map.

  234. I believe very strongly in “software” and computer implemented inventions being patentable, but even I think Bilski’s claim language was bad enough to knock it out via 101.

    I am more interested in how they treat the specific machine and transformation aspects of the rule.

  235. American Cowboy, you have a point, but if the govn’t gets it right (which is rare indeed) then they get it right, and there’s no reason not to rubber stamp their brief/opinion. Just because they agree doesn’t mean there’s a problem with separation of powers.

  236. IANAE, for once we’re in agreement. It’s like McKesson and the other case on the front of this blog. It’s not that they decided that they wanted to whack an individual…. it’s that they got diarrhea of the pen and couldn’t just stop with “we can’t stand this guy and his patent is therefore invalid.” They had to go on and talk about how much they loathed him and say each and every act he’s ever taken, whether related to his patent or not, constitutes inequitable conduct by itself.

    The Bilski claims just don’t pass the machine or transformation test in my OPINION. So the question isn’t whether to uphold Bilski’s claims, but how much damage a bunch of people with only a passing understanding of patents and business are going to do to the industry and economy.

  237. “in the last 20 years, every single amicus brief authored by the US Government in a Supreme Court patent case except one predicted the case outcome.” Chien writes “If history is any indication, the Supreme Court will almost certainly follow the US Government’s lead”

    For the Supremes to merely rubber stamp what the Solicitor General says undercuts the vaunted judicial independence and separation of powers.

  238. This article seems a bit light. I found the amicus briefs interesting in that some of them gave many facts about the importance of information processing patents. See Nevada’s for example. I saw no brief that offered any evidence of “the great damage” being done by business method patents. Stern’s utitlity argument (which is very similar to the right of jury method) is so anti-innovation that I can’t imagine any justice adopting it.

    If Stevens writes the opinion, then it is likely going to be bad. But, his thinking is so muddled that the opinion will likely have so many holes that the fed. cir. can do whatever they want to do.

  239. This prediction does not seem to be certain, in light of the justices’ comments at oral argument.

    At least four justices seem to favor an outcome that would provide at least some patent rights (Alito, Roberts, Scalia, and Sotomayer).

    Here’s hoping for a fifth vote from somewhere!

  240. It really doesn’t matter what happens to Bilski’s claims. What matters is what the rule ends up being for the rest of us.

    I don’t think the Supremes would have an easy time crafting a coherent rule that would save Bilski’s claims, even if they wanted to.

  241. I didn’t see that prediction in the article, though I might just have missed it. More importantly, while I agree with the bottom line (Bilski is dead meat), I don’t think the prediction is justified by the empirical study being discussed. There is a large difference between the government as an amicus and the government as a party. The government could well be so influential as an amicus because it is perceived as a neutral expert. That neutrality is of course compromised when the government is a party.

  242. Well the good solicitor general’s arguments supporting the ban on political speech by corporations was not followed by the Supremes. Perhaps her arguments were weak, illogical and unsupported for a reason: she intended to lose.

    Hopefully she’ll author the opinion which overturns Citizens United, which is easily one of the worst Supreme Court decisions since Bush v. Gore.

  243. anonymous, but, if Kagan’s track record holds, she will lose because she is representing the government as a party, not as an amicus. This is an appeal from the USPTO to the Federal Circuit.

    Also, it appears Stevens will be writing the majority opinion. Wouldn’t it be odd if she is reversed once again by the Justice she will replace (assuming confirmation, of course.)

  244. Ned Heller, I doubt that Elena Kagan intended to lose Citizens United.

    But that aside, the government is in a different position when it’s a party instead of an amicus. In a case like Citizens United, the government is charged with defending the constitutionality of a law or (usually but not always) with defending the decision below.

    In cases like Bilski, where the government isn’t a party and the constitutionality of a law isn’t under attack, as an *amicus* the government can offer–as you put it well–“a good summary of the law and can be relied upon as generally being neutral between contending interest groups.”

  245. Yeah, well the government had gotten somewhat silly over the past six to seven years. Their machine-transformation test is too strict. But I do agree that Bilski’s claims will likely be found unpatentable.

    Thanks professor. I was experiencing SC anticipation panic earlier today and needed a fix.

  246. “Professor Chien reminded me that as Solicitor General, Elena Kagan authored both the US government’s merits brief in Bilski case arguing that Bilski’s claim is unpatentable and the US government’s amicus brief opposing cert. ”

    THAT, sir, is information. I’ve seen the future of your USSC, and it is anti-biz method.

  247. “It is (1) my opinion (2,3) that (see Table 1) SCOTUS will find (see Figure 2; ref. 3) Bilski’s claims (4) unpatentable (cf. Fig. 3; ref 3).”

    That’s information?

  248. I’d be more interested in an educated prediction as to WHEN the opinion will finally come out.

  249. Is there anyone out there who really and truly believes that Bilski is going to win this one? Also, is there any point in predicting how SCOTUS will rule when in just a few weeks we shall all find out?

  250. In recent years, amicus brief advocacy has arguably been much more effective and cost- effective than lobbying Congress. While the industries most interested in patent reform spend millions of dollars per year on political donations, preparing an amicus brief typically costs no more than $10,000 -$20,000.

    This argument is very questionable. The political donations are not all about patent issues. In the case of pharma, for example, I’m sure donations have much more to do with FDA regulation, health care reform, etc than the patent system. The author is comparing apples and oranges.

    On balance, however, it’s a good paper. If the primary point of the paper is to believed, however, then I would question the Court’s wisdom in taking too many cues from the Solicitor’s Office. Patent policy should be based on the purposes of the statute as enacted, not as determined by whoever happens to be occupying the White House when a case comes up to the Supreme Court.

  251. Well the good solicitor general’s arguments supporting the ban on political speech by corporations was not followed by the Supremes. Perhaps her arguments were weak, illogical and unsupported for a reason: she intended to lose.

    But, generally, the governments briefs are conservative, provide a good summary of the law and can be relied upon as generally being neutral between contending interest groups.

    So, I would agree that the Bilski claims are doomed.

    But I would still like to call attention to Stern’s brief. It is the most interesting of all briefs filed, IMO. Stern was the original author of the MOT in Benson in the government brief filed there. His views there expressed are now the presumptive test of the Fed. Cir., and the position that the government once again supports in Bilski. But his current brief argues that the real problem in Bilski is its “utility.” He argues that business methods were not the kind of utility the framers had in mind when they used the term “useful Arts” in the Constitution.

  252. With all due respect, no one needs an overly verbose law review article to tell me that the Supreme Court will find the Bilski claim not patentable.

    A more helpful analysis would have been to what extent the SCt follows the govt brief in close cases.

  253. Bilski’s claim will be upheld as unpatentable, not because the SG says it should be, but because the overwhelming majority of precedent says it should. The SG tends to take a nondisruptive approach to precedent, as does the SC, so it makes sense the two coincide so often. On the other hand, amicus that seek to serve a particular interest group are more likely to offer an approach that may be too disruptive of precedent, which the SG and SC tend to steer clear of.

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