Interval Licensing LLC v. AOL, Apple, eBay, Facebook, Google, Netflix, Office Depot, OfficeMax, Staples, Yahoo!, and YouTube (W.D. Wash. 2010).
Microsoft co-founder Paul Allen started Interval Research in 1992. During the 1990’s, the company filed for several user-interface related patents that were primarily intended to improve a computer user's online experience. The patents focus on what I might call “lightweight” usability ideas such as a occupying the peripheral attention of a user; organizing audio/visual for display in a browser; and alerting users to items of current interest.
When Interval closed its doors, the patents were transferred to Vulcan Patents LLC (presumably another Paul Allen company) and then to Interval Licensing which remains a Paul Allen company.
The patents are well drafted. Of course, even excellent drafting cannot cure obviousness problems. I suspect that the litigation will focus primarily on whether these inventions were obvious back when the patents were filed? In addition to arguing in court, I expect that the defendants will also appeal to the US Patent Office — asking the agency to take a second look at the patents via reexamination.
Take claim 1 of asserted Patent No. 6,757,682 (filed in 2000) as an example.
1. A system for disseminating to a participant an indication that an item accessible by the participant via a network is of current interest, comprising:
a computer configured to
receive in real time from a source other than the participant an indication that the item is of current interest;
process the indication;
determine an intensity value to be associated with the indication and an intensity weight value, and adjusting the intensity value based on a characteristic for the item provided by the source; and
inform the participant that the item is of current interest; and
a database, associated with the computer, configured to store data relating to the item.
I don’t have any prior art on hand, but the claim sure feels obvious (in hindsight)…
Of course, the system embodied in claim 1 above represents an important core feature of services provided by all of the listed defendants. (A similar story can be told of the other asserted patents.) Thus, if the patents are valid, the damage award could be quite large.
It may be important to note that the complaint does not suggest that any of the defendants copied the invention from Paul Allen's company or that the defendants even knew about the patents before today. Of course, a patentee does not have to show copying in order to prove patent infringement and back-damages can still be available even when the infringement occurred without knowledge of the patent. (Additional punitive damages may be awarded if the infringement was willful).
It will be interesting to see how the Supreme Court’s foray into patent law over the past four-years will impact this case. I look to three important decisions:
- In KSR v. Teleflex, the Supreme Court raised the patentability standard of nonobviousness — making it more likely that these patents will be held invalid as obvious.
- In Bilski v. Kappos, the Supreme Court held that certain business method inventions are not patentable. Some of the claims in the patents-in-suit may be susceptible to a similar attack. However, most of the asserted claims appear to be tied closely to a technological implementation in a way that may avoid problems under Bilski.
- In EBay v. MercExchange, the Supreme Court made it more difficult for patent holding companies (such as the plaintiff here) to obtain an injunction to stop ongoing infringement. Of course, it is unlikely that Interval actually wants to stop infringement — rather, the company is looking for a large license fee.
Final point: The vast majority of patent cases settle. Here, however, all of the parties have large amounts of cash-on-hand. In addition, some of the defendants are repeat patent infringement defendants. Those factors tend to make settlement less likely.
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Posted by: 6 | Sep 07, 2010 at 01:49 PM: Also I note that there is a potential 101 issue with both of your claims that I just noticed. Controlling a robot to sing and juggle may very well be an abstract idea that will cause your claims problems. Like I said, my position dictates doing a rather lengthy analysis which includes looking to all the abstract ideas that might be being covered by your claims.
_______________________________________________________________________
WRONG!
If you use the Supreme Courts Bilksi decIsion as a template, a method or process for controlling a robot to sing and juggle is definitely not an abstract idea. Which makes your analysis an exercise in futility.
I understand your problem though. Basically you are claiming that because Bilksi’s hedging method can be applied to all hedging in the heating and oil industry it’s an abstract idea.
Bilski argued the opposite and said because his hedging method can only be applied to the heating and oil industry it’s not abstract idea.
The Supreme Court said you are both wrong. The Court in effect said Bilski’s hedging method can be applied to all use of economics and finance. And because it can be applied to all uses, which would mean beyond heating and oil, it’s an abstract idea.
Had Bilski’s application been able to convince the Court that the claims only covered uses in say calculating gas bills for the winter he would have had his patent and there would not have been a thing you could have done about it.
Same with this claim. If you invent a method or process for every possible way for controlling a robot to sing and juggle it’s not an abstract idea. Now if the method or process can be used for controlling every single device known to man, or even yet to be invented. Then you are going to have problems with the Court.
Understand now?
Yes, because everyone knows criticizing punctuation on a blog post is far more creditable and pertinent than citing Supreme Court case law, especially when making claims about what’s written in Supreme Court case law.
Hey, I was just giving out Free Advice. No need to get all Snippy about it.
(W)e (F)orgot (T)o (I)nclude (P)aranthesis.
It’s also critically important to be sure that “Concept” is always capitalized, while “invention” is not. That’s because the Concept is defined by the Actual Inventor.
Posted by: more advice for inventors | Sep 08, 2010 at 08:53 PM
Yes, because everyone knows criticizing punctuation on a blog post is far more creditable and pertinent than citing Supreme Court case law, especially when making claims about what’s written in Supreme Court case law.
AI: All that matters to me is you are at least publicly acknowledging the law as interpreted by the Supreme Court of the United States.
See how easy it is? Okay, now you try it.
It’s also critically important to be sure that “Concept” is always capitalized, while “invention” is not. That’s because the Concept is defined by the Actual Inventor.
AI: “Just be weary of pre-emption of “ALL” applications of the concept. That’s the lesson from Bilski SCOTUS 2010.”
6:Oh look, AI finally comes around to my point of view. How nice.
AI: I know you have to claim that in order to save face. And I am willing to allow you to have that mask. All that matters to me is you are at least publicly acknowledging the law as interpreted by the Supreme Court of the United States.
Now you need to be made aware that the “Concept” of the invention is always determined by the “Actual Inventor” as defined in the specification, and not by the Courts or an examiner.
This Concept is often derived from the “Marketing Concept” of the invention and included in the specification just for such purposes.
Of course if you have an incompetent Attorney like the kind played by IANANE on the internet, then such information is not only left out of your Spec, but deemed not even necessary to know. Which would leave the Actual Inventors 101 fate to the interpretation of the examiner and/or the Courts.
Bottom line for inventors is to know your Concept and define it well in your spec even if it means including trade secrets. Just make sure you keep your app private (non published) until your patent issues.
AI: Without a cite it’s old troll bait.
I’ve cited that passage from Diehr more than once. In direct response to your posts. I’m not going to hold your hand every single time.
As much as you rely on Diehr in support of your wacky theories, I’m surprised you haven’t taken the time to read the decision.
AI: Also in that world of MM and 6 the SCOTUS ruled Bilski stands for no more than, if a claim does not contain a machine or transformation, its abstract CR@P.
IANAE: Actually, that’s what Diehr said.
AI: Without a cite it’s old troll bait.
Sure Pook – ya sure ya wanna leave your message to the imaginative construing of those out here? Most would take a bit more responsibility for what they write.
Thanks for comments. Most interesting point raised I think is the idea that if a claim could only be infringed by a tangible “thing”, then it can’t be abstract, but I think there’s still room for argument about that.
Ping, if you don’t have the imagination to construe an expression like “Notional Invention”, when used in contradistinction to “Actual Invention”, then I think the problem is yours and not mine.
“…typing stuff into your existing ”
Aw geez, IANAE, you were just getting back to your game – now youse gonna chase down another rabbit hole where you don’t know what you speak about.
and just for lolz, 6, don’t forget that ya need the specification too so that you can read teh claims in light of the specification.
“6: I am having difficulty seeing how “A toy robot programmed to sing and juggle” is any less “abstract” than “A computer programmed to operate an all-singing all-juggling toy robot”. Apologies if I have misunderstood your position.”
I didn’t say that your example is less abstract than the other given example in your post. It may or may not be.
Above, pook has taken the trouble to provide quite a bit of structure to his robot such that it doesn’t come close to preempting, perhaps shall we say, the “abstract idea” of a “A toy robot programmed to sing and juggle” (if you want to go out on a limb and call that an abstract idea).
On the whole though, we see programmed computers being claimed that cover blatantly abstract ideas like in the Hulu case.
This is precisely why I said when Bilski came out that it was a good decision because it would rid us of the nonsense, but perhaps leave us with things that are less objectionable.
As is, perhaps your exemplary computer claim also passes 101. Perhaps not. As he did above, you seem to have drafted me up a couple of preambles and called them claims all while demanding to know how my position differentiates the two. My position dictates that there is a lot of things to be considered beyond the bare language of the claims, and that is considering the situation of having complete claims before me.
Also I note that there is a potential 101 issue with both of your claims that I just noticed. Controlling a robot to sing and juggle may very well be an abstract idea that will cause your claims problems. Like I said, my position dictates doing a rather lengthy analysis which includes looking to all the abstract ideas that might be being covered by your claims.
Max: I am having difficulty seeing how “A toy robot programmed to sing and juggle” is any less “abstract” than “A computer programmed to operate an all-singing all-juggling toy robot”.
Maybe it’s more instructive to focus on what you’d have to do to infringe either claim.
In the former case, you need a robot. In the latter case, you can infringe by merely typing stuff into your existing prior art desktop computer.
What is a “notional invention”?
sniffs shoe Who stepped in it?
6: I am having difficulty seeing how “A toy robot programmed to sing and juggle” is any less “abstract” than “A computer programmed to operate an all-singing all-juggling toy robot”. Apologies if I have misunderstood your position.
While I sympathize with your position pook, I generally consider robots to be statutory subject matter. I understand how your argument goes, but I reject it as being unreasonable in the extreme. It is usually used as no more than an attempt to turn what the USSC has wisely determined is exempt from 101 into an absurdity in order to justify getting rid of the wise exemption. While it may well apply, I’m not personally seeing it.
An issue that is close to this of course is a computer programmed to do this or that. However, in those cases we usually find some clear indication of an abstract idea that is underlying the functioning of the device, where the claim may as well be “1. The abstract idea in my spec implemented in a computer” and it would have the same scope as what was actually in the claim. In such a case the claim is clearly being directed to the abstract idea with a bare field of use limitation. Even though the claim itself may go through pains to recite all manner of nonsense to avoid this, this usually remains the case.
I won’t say there isn’t room for you to argue your point, and it may well be correct. But on the whole I don’t see it taking you anywhere.
“Is claim 1 of 6,757,682 any more or less abstract or concrete?”
I can’t comment on a specific claim.
6, thanks for playing.
I Claim
1. A programmable humanoid robot adapted to tap-dance and juggle a plurality of spherical objects while whistling “Dixie”; comprising
at least two moveable upper limbs;
at least two moveable lower limbs;
at least one audio output transducer;
a first motion control module controlling upper limb motion for juggling operation of the upper limbs;
a second motion control module controlling lower limb motion for tap-dancing operation of the lower limbs;
a dynamic balance control module controlling robot balance during tap-dancing and juggling operation, respectively, of the lower and upper limbs; and
an audio signal generating module operatively connected to the audio output transducer for “Dixie” whistling operation of the audio output transducer.
Does this define an Actual Invention, or is it just an abstract wish-list of necessary features for a Notional Invention?
Is claim 1 of 6,757,682 any more or less abstract or concrete?
2. The programmable humanoid robot of claim 1, wherein the dynamic balance control module includes at least one tri-axial accelerometer and at least one gimbal-mounted gyro.
This at least approaches a concrete solution to one of the problems associated with implementing the Notional Invention specced-out in claim 1.
3. The programmable humanoid robot of claim 1, further comprising a sensor system for tracking the motion of the plurality of spherical objects, operatively coupled to the second motion control module.
This just adds another item to the wish-list of claim 1.
“Unfortunately, nobody wanted to play with this notion. Maybe some of Mr Allen’s targets will.”
Indeed there may be a 101 issue, but it is difficult to tell as your current claim is nothing but a preamble.
AI: Also in that world of MM and 6 the SCOTUS ruled Bilski stands for no more than, if a claim does not contain a machine or transformation, its abstract CR@P.
Actually, that’s what Diehr said.
You like the Diehr test, don’t you? I remember you mentioning it once.
LOL – sounds like a Mooney-ism
how about – “I call em like I smell em”?
Many thanks Ping – although some logical reasoning to support your scatological riposte would be welcome.
Ah Pook, the reason why nobody wanted to play with your notion is that most people are taught not to play with excrement.
Ya might be able to get 6 to play with your “abstract idea for a Potential Invention”, since it seems to support his nonsensical “abstract” test.
AI
To be sure, any Actual Robot is manifestly non-abstract.
My point was that it could be argued (in my own view not unreasonably) that a PATENT CLAIM which recites ONLY:
“A programmable humanoid robot adapted to tap-dance and juggle a plurality of spherical objects while whistling “Dixie”.”
does not actually define an Actual Invention, only the abstract idea for a Potential Invention.
Unfortunately, nobody wanted to play with this notion. Maybe some of Mr Allen’s targets will.
“Just be weary of pre-emption of “ALL” applications of the concept. That’s the lesson from Bilski SCOTUS 2010.”
Oh look, AI finally comes around to my point of view. How nice.
“Also in that world of MM and 6 the SCOTUS ruled Bilski stands for no more than, if a claim does not contain a machine or transformation, its abstract CR@P.”
Oh look, AI has misinterpreted my position on MOT. Wonder how that possibly could have happened?
Posted by: 7 | Aug 29, 2010 at 02:46 PM: “So, in what world is there a 101 issue with this claim? The world where the law is what MM and 6 *want* it to be?”
___________
Yes and in that world the section of Deihr that says:
“In determining the eligibility of respondents’ claimed process for patent protection under § 101, their claims must be considered as a whole. It is inappropriate to dissect the claims into old and new elements and then to ignore the presence of the old elements in the analysis. This is particularly true in a process claim because a new combination of steps in a process may be patentable even though all the constituents of the combination were well known and in common use before the combination was made. The “novelty” of any element or steps in a process, or even of the 189*189 process itself, is of no relevance in determining whether the subject matter of a claim falls within the § 101 categories of possibly patentable subject matter.[12]”
is total CR@P!!!!
Also in that world of MM and 6 the SCOTUS ruled Bilski stands for no more than, if a claim does not contain a machine or transformation, its abstract CR@P.
And since according to 6 ordinary people won’t be able to understand why this is true, then only extraordinary people must exist in their world.
Which makes me wonder can 6 see the Emperors new clothes??
My guess – and this is just a hunch – is that the minute you have implemented the idea, it is no longer abstract.
Just a hunch.
Posted by: ping | Aug 30, 2010 at 07:32 AM
_____________
More than a hunch. It’s a fact. DCAT! Just be weary of pre-emption of “ALL” applications of the concept. That’s the lesson from Bilski SCOTUS 2010.
Posted by: Ah Pook | Aug 30, 2010 at 10:27 AM: I claim:
A programmable humanoid robot adapted to tap-dance and juggle a plurality of spherical objects while whistling “Dixie”.
That, I submit, is a claim to an abstract idea, in the absence of any concrete features that enable the robot to perform as defined.
_____________
Ah Pook, a programmable, tap dancing, juggling whistling musical robot is not an abstract idea. This is something we can see, touch, and hear and engage with with all 5 senses.
If I as an Actual Inventor presented this concept to a potential licensee they are going to want to see this robot for sure. Whether we agree or not to become partners and sell the thing its still a thing we both agree exists. Thus it’s not abstract.
Now of course I might not be able to actually build such a robot. A fact which may be proven by a specification that is not fully enabled.
In that case I have a patent eligible 101 invention that is not enabled and thus has a first paragraph 112 issue.
But for certain, its not an abstract idea.
“I am not having any trouble whatsoever. The law is precise, clear and I accept and follow it as written.”
You wish buddy boy. And I wish as well, but that’s another matter.
“Ya might want to be careful with the “spank” line – word is that 6 likes to be spanked by hiz wimmen.”
No, not my wimmen, only my high priced who res. My wimmen are another matter.
“I highly doubt that 6 is the bad a z z rogue examiner he plays on the internet.”
I have to tell you, I’m not. I’m three times over the bad azz rogue examiner I play on the internet.
Posted by: IANAE | Sep 03, 2010 at 02:49 PM :I highly doubt that 6 is the bad a z z rogue examiner he plays on the internet.
Says the bad a z z rogue inventor-on-the-internet to the bad a z z rogue patent attorney-on-the-internet in a self-congratulatory manner.
Tell me, does a black pot render obvious a black kettle?
______________
Even a 7th grader could see how fallacious your analogy is.
Am I or any Actual Inventor claiming to violate or disregard the law?
Or do anything above and beyond the rules of the PTO?
Either you are a bored/retired old troll looking for some amusement on the internet or you truly do have an IQ lower than 6. In either case I am bored with you. Now its an endless summer beach weekend so good day.
Posted by: IANAE | Sep 03, 2010 at 03:02 PM: I’m saying “show me one that isn’t”.
________
Are you still talking? YOU ducked MY challenge like the dishonest intellectual coward that you are. BTW, I still dare you to answer it see below the original post.
_______________________________
Posted by: Actual Inventor | Aug 30, 2010 at 04:43 PM: Okay, let’s end this. I challenge you or 6 to cite one section, one paragraph or even one sentence in Diehr or SCOTUS Bilski that limits statutory subject matter to Machines or Transformations.
::SILENCE::
“‘m not saying it automatically is”
Translation: “At least not directly – I’m only purposely misunderstanding the difference between a test and a test result”
Gettin back to your high levels, my man.
AI: “anything not a MOT is an automatic abstraction.”
I’m not saying it automatically is, I’m saying “show me one that isn’t”.
You’ve been hilariously unable to do so, which suggests to me that you think MOT is the sole test – you just don’t know it yet.
I highly doubt that 6 is the bad a z z rogue examiner he plays on the internet.
Says the bad a z z rogue inventor-on-the-internet to the bad a z z rogue patent attorney-on-the-internet in a self-congratulatory manner.
Tell me, does a black pot render obvious a black kettle?
6, you sound like one of those examiners that I have to spank with appeals.
Posted by: Night Writer Patent Attorney | Sep 03, 2010 at 11:49 AM
____________
I highly doubt that 6 is the bad a z z rogue examiner he plays on the internet. In fact I would be willing to bet 10 k his SPE has never let one of his cases even go to the board. With 6 you probably would not even need to call the SPE, you could just call his mommy.
In fact, I’ve seen more than one that noted the potential for misunderstanding directly at the spot you’re having trouble.
I am not having any trouble whatsoever. The law is precise, clear and I accept and follow it as written.
It’s you and the likes of IANAE/MM that can’t accept it and thus are straining to reinterpret the words to mean…”MOT is still the sole test for 101 and anything not a MOT is an automatic abstraction.”
You claim there are attorneys that have published articles online that say this?
Oh please post links to their pages so I can put them on my DNH list (DO NOT HIRE)
Now you claim to have an SPE that needs you, a Junior Examiner that can’t pass the LSAT to interpret Supreme Court cases for him/her?
If that is true all it proves is that the Peter Principle is still alive and well in the public sector.
NWPA,
Ya might want to be careful with the “spank” line – word is that 6 likes to be spanked by hiz wimmen.
at 10k$ a pop I’m not entirely sure who is getting spanked there bucko.
More likely the client than his attorney.
“6, you sound like one of those examiners that I have to spank with appeals.”
LOL, at 10k$ a pop I’m not entirely sure who is getting spanked there bucko. And that’s considering that you win.
6, you sound like one of those examiners that I have to spank with appeals.
“Okay 6 so let’s say you really are smarter than everyone else”
I didn’t say everyone else, plenty of lawyer’s write ups note the exact same thing as I have here. I just said that your ordinary reader wouldn’t pick up on it. In fact, I’ve seen more than one that noted the potential for misunderstanding directly at the spot you’re having trouble. You can find in depth lawyer write ups online quite easily, I’ve cited you some in the past.
“So you have no authority whatsoever to interpret any law, let alone Supreme Court cases.”
MUAHAHAHAHA. One does not need authority if one has influence. And my spe is very, very, open to suggestions. So, in effect, you may as well say I do. Plus, I have that mumu.
“But until that day you best just follow instructions and do what you are told.”
Lol, you mean the “instructions” that say, for all intents and purposes to do exactly what my interpretation suggests? Sure. I’ll be sure to follow them.
Associates of the USA unite! You have nothing to lose but your diapers!
AI: So you [6] have no authority whatsoever to interpret any law, let alone Supreme Court cases.
Unlike, say, an inventor.
Malcolm: I read recently about a firm where they had increased the minimum hours for patent prosecutors and one of the associates started wearing a diaper to the office so she could “save time.”
I’m surprised by the implication that they don’t all have wi-fi in the bathrooms by now. Or at least something billable to do on their blackberries.
According to you, you are just a junior examiner working in the basement of the PTO that can’t go the bath room without the permission of your SPE.
Funny you mention that. I read recently about a firm where they had increased the minimum hours for patent prosecutors and one of the associates started wearing a diaper to the office so she could “save time.”
Posted by: 6 | Sep 02, 2010 at 05:42 PM: Species and genus relationships…,,,
_____
Wrong, your use of the terminology is not supportive nor in proper context for the argument being debated. But go ahead and cling to that if you must.
Posted by: 6 | Sep 02, 2010 at 05:42 PM : “The USSC’s words were all correct, but they weren’t very precise. Specifically, they weren’t precise enough to lead ordinary people casually reading to exactly what they were saying.”
Okay 6 so let’s say you really are smarter than everyone else, even Supreme Court Justices and no one but you could possibly understand the interpretation of the decision.
You still have one problem. According to you, you are just a junior examiner working in the basement of the PTO that can’t go the bath room without the permission of your SPE.
So you have no authority whatsoever to interpret any law, let alone Supreme Court cases.
So dream on mighty little one. You just may one day get on the Court and be able to act on all your fantasies.
But until that day you best just follow instructions and do what you are told.
The rest of us Actual Inventors, will simple follow the law as its written and interpreted by the Supreme Court of the United States.
::BANGS GAVEL::
Posted by: 6 | Sep 02, 2010 at 05:43 PM: “Look guys, the courts are going to go my way..”
Maybe one day. But today is not that day.
The technology has been widely used, and so if it was proprietary, the thinking goes, why would Mr. Allen not have sued years ago?
Recommending a purchase is “technology”?
I think that was an AI train that ran over 6 and his tercel – abstractly, of course.
Dennis is quoted by the WSJ that Allen may be late in making his claims.
link to online.wsj.com
“The technology has been widely used, and so if it was proprietary, the thinking goes, why would Mr. Allen not have sued years ago?
“If the patent holder just sat on their rights for a long time… the patent might become unenforceable,” said Dennis Crouch, a law professor at the University of Missouri. Timeliness is often raised as a defense in patent suits, but that strategy has had mixed results, legal experts said.
David Postman, a spokesman for Mr. Allen, declined to comment and said Mr. Allen and his attorneys weren’t available.”
“A locomotive running over 6’s car” can still be abstract ideas. ”
A locomotive running over my car is not abstract. Sorry bucko. That is, as the DC said the other day, simply too preposterous.
“Anything held in the “mind’s eye” is an abstraction”
The difference is that some things that are “in the mind’s eye” are also quite not abstract, such as a locomotive running over my car. Or truck as the case actually would be.
Look guys, the courts are going to go my way, your blustering about it isn’t going to change it. Good luck to you.
And AI, I hope that what happened to Bilski doesn’t happen to you (even though you’re a greedy tar d looking to do nothing but bilk people out of money), you’re a quintessential example of the common man who doesn’t understand wt f is going on and is a great reason for our patent laws to be simplified. The laws do not serve the people, they are too complicated for them. That situation should be that the laws serve the people and are understandable. Regardless, it will happen to you, and you will be yet another poster child for simplification of the law.
I don’t have time to discuss this with you guys further today. I have stuff to do.
“But first of all 6, your use of “species” concept and “genus” concept is totally non analogous to the case because of the simple fact the Court is talking about finance concepts and not a biology concept. ”
Species and genus relationships exist across all arts, as any patent practicioner knows and routinely exploits. Dollar bills are a species of the genus money. Bicycles are a species of the genus transportation device. Bilski’s method of hedging was a species of the genus hedging. The genus/species relationship pervades all of patents not just bio tar d.
AI, look dood, I’m sorry they worded what they were saying in an unclear manner, I noticed that it would probably be misinterpreted precisely the way you have when I first read it. I had to go back and read it again, and then look at the claim to realize what they were saying. They were loosey goosey with their language There’s nothing more I can help you with this, if you refuse to do the work required to understand what they’re saying, then you refuse.
“there is room to interpret the application or use of the invention in all areas of commerce and finance. ”
Yes, but there is no room to interpret the application/claims as BEING the textbook disclosures of hedging or even covering that whole general concept. The claims cover a species concept within that whole general concept. The USSC’s words were all correct, but they weren’t very precise. Specifically, they weren’t precise enough to lead ordinary people casually reading to exactly what they were saying.
“In a very real sense, every legitimate patent preempts the abstract idea which is laid forth in the application. Go ahead and show my one that does not.”
I’m working on one right now. They are not hard to spot, simply find any manufacturing method reciting forming structures. The “idea” behind the method I’m looking at is not abstract, it is very much so tied to a machine and the real world, indeed, it involves a transformation as well. There is no “abstract idea” that is preempt by the claim I’m working on now. Nor could you realistically concoct one.
Lundgren earned his patent for passing the DCAT.
So I’ll put you down for “did not do the research” yet again?
Posted by: IANAE | Sep 02, 2010 at 05:20 PM: And those are the same reasons “it” didn’t happen to Lundgren?
________
In addition to 112, 102, 103 Lundgren earned his patent for passing the DCAT. See my earlier post(s) for a primer on DCAT if ya don’t know what that is.
Now I have not been to the beach today so gotta go.
And those are the same reasons “it” didn’t happen to Lundgren?
Because it’s well established that a) and d) don’t confer 101 eligibility, your entire premise was that b) and c) were not the case for Lundgren, you left out e), and you wouldn’t recognize an examiner who followed the law to the letter if he bit you on the behind.
Thank God!
It’s customary to also thank the Academy. Regardless of how bad your acting actually was.
AI: What happened to Bilski will not happen to me for the same reason in did not happen to Lundgren.
Because the examiners on your cases are inept and don’t raise coherent 101 rejections?
Posted by: IANAE | Sep 02, 2010 at 05:04 PM
_____________
Because my patents for processes in addition to meeting 112, 102, and 103, are either…
a) applications of a concept to a specific market
b) tied to a particular machine
c) tied to a particular transformation
d) pioneering
f) or all of the above.
Oh and for the record, my examiners are the best and the brightest and follow the law to the letter.
Thank God!
AI: What happened to Bilski will not happen to me for the same reason in did not happen to Lundgren.
Because the examiners on your cases are inept and don’t raise coherent 101 rejections?
Seems risky to rely on that, but best of luck to you all the same.
In the meantime, keep that positive attitude. Remember, it might be bad if the Federal Circuit invalidates your patent, but if the Supreme Court invalidates your patent it’s a victory for inventors everywhere.
What happened to Bilski will not happen to me for the same reason in did not happen to Lundgren.
That would be Mr. Rufus Lundgren of Topeka, Kansas, who never invented anything in his short sad life.
AI: Nor will it erase the clear victory of proponents of the patent system and Actual Inventors everywhere.
Posted by: IANAE | Sep 02, 2010 at 03:02 PM: May all your patents someday enjoy a similar victory.
What happened to Bilski will not happen to me for the same reason in did not happen to Lundgren.
“as the term is used here, because it preempts all uses of the specific abstract idea which is laid forth in the app”
That’s just what I am talking about. It appears that you, not AI are the one in confusion with your preemption doctrine as it pertains to “abstract”.
In a very real sense, every legitimate patent preempts the abstract idea which is laid forth in the application. Go ahead and show my one that does not.
Further, something can be very real and at the same time be an abstract idea. “A locomotive” running over your car stuck on the tracks is a very real thing, just as “A locomotive” and even “A locomotive running over 6’s car” can still be abstract ideas.
Anything held in the “mind’s eye” is an abstraction. Just as anything legitimately holding the rights of a patent preempts all uses…laid forth in the app (and defined by the claims).
Posted by: 6 | Sep 02, 2010 at 03:08 PM: “How does a species concept (not a whole genus concept) have anything to do with “abstract”?”
It doesn’t. They’re both abstract. AI wanted it to matter.
The difference between interpretations of the sentence he quotes from Bilski shows that your claim doesn’t have to be as AI suggested to get the ol’ invalidation.
He suggested:
“On the contrary Lundgrens financial compensation method, even though pioneering does not cover all uses of financial compensation in all fields and therefore is not abstract.”
It doesn’t have to cover all uses of financial compensation in all fields to be considered abstract. The hypothetical claim is “abstract”, as the term is used here, because it preempts all uses of the specific abstract idea which is laid forth in the app. Just like in Bilski.
AI wished to think that the USSC only called Bilski’s method abstract because it covered all of hedging across all fields. He is mistaken.
________
Please excuse me for being blunt, but everything you wrote above you just pulled out your a z z. Let’s skip what you think, or what you claim I said or thought and go strictly by the words of the Supreme Court.
“The Court held in Bilski, at *29-30: “’Hedging is a fundamental economic practice long prevalent in our system of commerce and taught in any introductory finance class.’ The concept of hedging, described in claim 1 and reduced to a mathematical formula in claim 4, is an unpatentable abstract idea, just like the algorithms at issue in Benson and Flook. Allowing petitioners to patent risk hedging would pre-empt use of this approach in all fields, and would effectively grant a monopoly over an abstract idea.”
Now let’s use the Courts words as the authority to see exactly what would have been pre-empted and in what fields.
But first of all 6, your use of “species” concept and “genus” concept is totally non analogous to the case because of the simple fact the Court is talking about finance concepts and not a biology concept. “The Court held in Bilski, at *29-30: “’Hedging is a fundamental economic practice long prevalent in our system of commerce and taught in any introductory FINANCE class.’ (emphasis added)
Next, the Court said at *29-30:
“The concept of hedging, described in claim 1 and reduced to a mathematical formula in claim 4, is an unpatentable abstract idea, just like the algorithms at issue in Benson and Flook. ”
What was Bilski’s concept of hedging? If you read his application Bilski uses examples of heating bills during winter. But his application nor his claims specifically limit using hedging just for this one market area. When the claims are read in light of the specification there is room to interpret the application or use of the invention in all areas of commerce and finance. The Court concured and said at at *29-30:
“Allowing petitioners to patent risk hedging would pre-empt use of this approach in “ALL FIELDS”, { emphasis added} and would effectively grant a monopoly over an abstract idea.”
And last, specifically what did the Court mean when it said “ALL FIELDS” ? Simply every field where you can apply hedging. The Court decided those fields were, economics, commerce, and finance.
Again using the Courts own words it said at *29-30….
’Hedging is a fundamental economic practice long prevalent in our system of commerce and taught in any introductory finance class.”
And there you have it. A text book demonstration of Diehrs Concept and Application Test, (DCAT) by the nations most high authorities.
According to the Supremes Bilski failed the DCAT and thats why he did not get his patent.
And yes, I still say Dr Lundrens patent passes the same analysis. But for certain you, MM and INANE, must accept that for 101 there is …..
NO MACHINE REQUIREMENT
NO TRANSFORMATION REQUIREMENT
NO TECHNOLOGICAL ARTS REQUIREMENT
Class Dismissed
“How does a species concept (not a whole genus concept) have anything to do with “abstract”?”
It doesn’t. They’re both abstract. AI wanted it to matter.
The difference between interpretations of the sentence he quotes from Bilski shows that your claim doesn’t have to be as AI suggested to get the ol’ invalidation.
He suggested:
“On the contrary Lundgrens financial compensation method, even though pioneering does not cover all uses of financial compensation in all fields and therefore is not abstract.”
It doesn’t have to cover all uses of financial compensation in all fields to be considered abstract. The hypothetical claim is “abstract”, as the term is used here, because it preempts all uses of the specific abstract idea which is laid forth in the app. Just like in Bilski.
AI wished to think that the USSC only called Bilski’s method abstract because it covered all of hedging across all fields. He is mistaken.
AI: Nor will it erase the clear victory of proponents of the patent system and Actual Inventors everywhere.
May all your patents someday enjoy a similar victory.
” If so please cite the case(s) from the District Court that have disagreed with the Supreme Courts Bilski decision since that case was ruled on in July.”
I didn’t say that they disagreed with the USSC, I said they disagreed with pingerdoodle’s interpretationlol.
You can see the decision over at the 271 blog. I’ve posted the link to that case too many times.
“It aint a matter of it being “the test”, it be how the Office can use it. “the test” can show patent eligibility. “the test” cannot show patent ineligibility.”
You say that but DC’s disagree with you. LOL@u.
Posted by: 6 | Sep 02, 2010 at 01:04 PM
_____________
Are you referring to the District Courts? If so please cite the case(s) from the District Court that have disagreed with the Supreme Courts Bilski decision since that case was ruled on in July.
::silence::
How does a species concept (not a whole genus concept) have anything to do with “abstract”?
“As opposed to a particular type of hedging?”
Specific, particular, whatever you want to say. The bottom line is that bilski’s claims were directed to a species hedging concept, not the whole genus.
“The most you can say is that if something passes MOT it is most likely 101-eligible, but not necessarily, and if something fails MOT it is most likely 101-ineligible, but not necessarily.”
___________
Ah Pook,
If you are going by the words of the Supreme Court, the letter of the Law of the Land, then you have two clear analysis. A concept and application analysis which will also determine pre, post, and extra solution activity, and a machine or transformation analysis.
There is also room for the CAFC to create other tests as long as they do not run afoul of Diehr and the Court sanctioned analysis options described above.
Only the anti patent crowd and those with an obvious political agenda pretend that MOT is the sole test, only test, “the” test, or whatever word shenanigans they choose at the moment.
And only these losers will ignore the clear and consistent language and use of the concept and application analysis ( DCAT) used by the Court in Diehr and reaffirmed in Bilski to determine 101 patent eligibility.
They can if they wish continue to be deliberately obtuse and say that black is white, up is down, la la la , and lol.
But it won’t change what is written and is now the law of the land.
Nor will it erase the clear victory of proponents of the patent system and Actual Inventors everywhere.
God Bless America!
“insignificant postsolution activity”
That aint PC.
Try:
“insignificant extrasolution activity”
6,
I saw that when you posted the chuckles. I don’t put much stock in district judges getting much right (unless it be an action by Tafas against the Office).
6: “the claim in question did not cover the whole concept of hedging and … the USSC recognized that it was a specific type of hedging when they made reference to the claim itself.”
As opposed to a particular type of hedging?
“It aint a matter of it being “the test”, it be how the Office can use it. “the test” can show patent eligibility. “the test” cannot show patent ineligibility.”
You say that but DC’s disagree with you. LOL@u.
“That’s the point you, MM and IANAE all lost.”
Dude I never said that it was, even after bilski cafc. I don’t know why you even care about that.
“Corrected on what exactly?”
Corrected on that the USSC was referring to a specific type of hedging as opposed to the entire concept of hedging. Idk, you might still be st upid enough to not realize that the claim in question did not cover the whole concept of hedging and that the USSC recognized that it was a specific type of hedging when they made reference to the claim itself.
“and Scalia’s thumb was in front of the lens.”
At first I was like wut?!? Then I was like lolololol.
You didn’t miss anything, Ah Pook. Given the facts, it seems to me that the Bilski result is about as good as it could have been.
Unless I missed something, Bilski did not define any new 101 test. It said the Bilski claim failed because it was abstract. It said that MOT, while useful, was not wholly determinative.
The most you can say is that if something passes MOT it is most likely 101-eligible, but not necessarily, and if something fails MOT it is most likely 101-ineligible, but not necessarily.
As far as MOT goes, it leaves open what constitutes a particular machine and what constitutes an article/state/thing as regards transformation.
Is it not still the case that “insignificant postsolution activity will not transform an unpatentable principle into a patentable process”?
I would maintain that “bare computerization” of an otherwise ineligible process is “insignificant postsolution activity”
But ping, I thought we had discussed that, which is why I chose my “considers itself justified” formulation. What else is the poor boy Kappos supposed to do, for goodness’ sake, after having done his level best to divine from Bilski what’s expected of him.
Any other course he adopts in the light of the SCOTUS guidance from Bilski will incur even more wrath, from those sitting in judgement on him.
Awww, why pick on Scalia? Any (and all) the Justices are out there making judgments on perdonal bias and political philosophy – especially Stevens.
Oh wait – you be a big Stevens fan, silly me I forgot about that.
Maxie – yous forget some important parts on “due process” – like the PTO cannot consider itself justified to apply the law in contradiction to how the law has been determined to be. That be lawlessness, and be deeply frowned upon.
Is this not how the law should develop,
In principle, yes.
In practice, we don’t always get such good cases on appeal, and after the law gets developed you see that it’s out of focus, taken from too far away, and Scalia’s thumb was in front of the lens.