By Jason Rantanen
Classen Immunotherapies, Inc. v. Biogen Idec (Fed. Cir. 2011) Download 06-1634-1649
Panel: Rader (offering "additional views"), Newman (author), Moore (dissent)
There is no doubt that the Federal Circuit continues to struggle mightily with Section 101. If Myriad were not enough evidence of this, Classen Immunotherapies – and Judge Rader's additional views in particular – should remove all doubt.
Classen Immunotherapies holds three patents that it contends are infringed by virtually everyone: Patent Nos. 6,638,739; 6,420,139; and 5,723,283. According to the patents, their inventor, Dr. Classen, has discovered that "the schedule of infant immunization for infectious diseases can affect the later occurrence of chronic immune-mediated disorders…and that immunization should be conducted on the schedule that presents the lowest risk with respect to such disorders." Slip Op. at 5. Claim 1 of the '739 patent is illustrative of Classen's broad claim scope:
1. A method of immunizing a mammalian subject which comprises:
(I) screening a plurality of immunization schedules, by
(a) identifying a first group of mammals and at least a second group of mammals, said mammals being of the same species, the first group of mammals having been immunized with one or more doses of one or more infectious disease-causing organism-associated immunogens according to a first screened immunization schedule, and the second group of mammals having been immunized with one or more doses of one or more infectious disease-causing organism-associated immunogens according to a second screened im-munization schedule, each group of mammals having been immunized according to a different immunization schedule, and
(b) comparing the effectiveness of said first and second screened immunization schedules in pro-tecting against or inducing a chronic immune-mediated disorder in said first and second groups, as a result of which one of said screened immuni-zation schedules may be identified as a lower risk screened immunization schedule and the other of said screened schedules as a higher risk screened immunization schedule with regard to the risk of developing said chronic immune mediated disorder(s),
(II) immunizing said subject according to a subject immunization schedule, according to which at least one of said infectious disease-causing organism-associated immunogens of said lower risk schedule is administered in accordance with said lower risk screened immunization schedule, which administration is associated with a lower risk of development of said chronic immune-mediated disorder(s) than when said immunogen was administered according to said higher risk screened immunization schedule.
Classen asserts that the '139 and '739 patents are infringed "when a health care provider reads the relevant literature and selects and uses an immunization schedule that is of lower risk for development of a chronic immune-mediated disorder." Slip Op. at 7. According to Classen, this includes "the act of reviewing the published information, whether or not any change in the immunization schedule is made upon such review." Id. The '283 patent is similar, except that it does not include the subsequent step of selecting an immunization schedule. Classen asserts that the '283 patent is infringed "when a person reviews relevant information, whether the person is a producer of vaccines, a health care provider, or a concerned parent." Slip Op. at 8. The three patents list several hundred preexisting references relating to immunization schedules, the occurrence of immune-mediated disorders, and studies and reports from the field.
The district court granted summary judgment of invalidity of the asserted claims on the ground that they claimed an abstract idea. On initial appeal, the CAFC affirmed, with Judge Moore penning an extremely short affirmance. Following Bilski, the Supreme Court grant-vacate-remanded the case to the Federal Circuit, where it was assigned to the panel of Rader, Newman, and Moore.
The Majority: Writing for herself and Judge Rader, Judge Newman concluded that while the '283 patent failed to satisfy Section 101, the '139 and '739 patent did. Although the '139/'739 patents included a mental step, "precedent has recognized that the presence of a mental step is not of itself fatal to § 101 eligibility." Slip Op. at 15. Because the claims of these patents include the physical step of immunization, the majority held, they were directed to a "specific, tangible application." Slip Op. at 18. This was sufficient to assure the majority, which declined to offer any additional reasoning, of their subject matter patentablity. On the other hand, the majority held, the '283 patent attempted to claim an abstract idea unfettered to any physical steps. Thus, it was invalid under Section 101.
The Dissent: Judge Moore disagreed entirely. "While I confess the precise line to be drawn between patentable subject matter and abstract idea is quite elusive, at least for me, this case is not even close." Dissent at 6. All three claims simply constitute abstract subject matter: "Having discovered a principle – that changing the timing of immunization may change the incidence of chronic immune mediated disorders – Classen now seeks to keep it for himself." Dissent at 8. While Judge Moore reserves her harshest criticism for the '283 patent, her views on the '139/'739 reach the same conclusion. "The immunization step of the '739 patent, like updating the alarm limit in Parker v. Flook, 437 U.S. 584 (1978), is nothing more than post-solution activity." Id. at 9. That post-solution activity "does not transform the unpatentable principle – that a correlation exists between vacination schedules and incidence of chronic immune disease – into a patentable process.' Id. at 10.
Judge Rader's Additional Views: In an unusual move, Judge Rader, joined by Judge Newman, wrote separately to express frustration with the constant use of Section 101 challenges by accused infringers.
In the last several years, this court has confronted a rising number of challenges under 35 U.S.C. § 101. The language of § 101 is very broad. Nevertheless, litigants continue to urge this court to impose limitations not present in the statute.
For a variety of policy reasons, Judge Rader urges, "[t]his court should decline to accept invitations to restrict subject matter eligibility." Rader additional views at 2. Chief among these is the problem that "eligibility restrictions usually engender a health dose of claim-drafting ingenuity," evasions that "add to the cost and complexity of the patent system and may cause technology research to shift to countries where protection is not so difficult or expensive." Id. at 3.
Comments: I am troubled by several aspects of the court's opinions. Particularly concerning is the majority's apparent desire to abdicate the subject matter inquiry altogether, a desire expressed both implicitly, in the majority opinion's unwillingness to offer any substantive reasoning to support its ruling on the '139/'739 patents, and explicitly in Judge Rader's policy statement. This approach seems problematic on its own, but becomes even more so when coupled with the numerous Supreme Court opinions relating to the issue of subject matter patentability – an area of traditional significance in the patent sphere. While the Court may have repeatedly suggested that broad categorical rules may be inpermissible, it has nowhere suggested that subject matter arguments lack merit as a class, or that subject matter arguments must fail as a matter of course. In particular, I find it difficult to see how the '139/'739 patents possibly survive scrutiny under Parker v. Flook, 437 U.S. 584 (1978). The mental step itself is not a patentable subject, so how can combining it with an act (or the lack of an act) that has previously been done without the mental step make it patentable?
Nor does Section 101 seem to present such a unique problem that the Federal Circuit should adopt a policy of declining to address arguments relating to it. Even as Judge Rader criticizes the case law limiting subject matter patentablity because it encourages costly legal design-arounds, he joins with an opinion that does precisely that by drawing the line between the two sets of claims. Mental step claims are now clearly out; mental step plus claims are now in. And since every process is simply a link in a longer process, claim drafters need only look one step forward to avoid the effects of the majority's ruling. Nor should the effects of Judge Rader's parade of horribles be limited to Section 101 – they strike me as equally applicable to Section 102, Section 103, and especially Section 112.
Thanks AI’s Dear DIehrist! This is great! I am going to go read it all now.
Anti Patent Ned is Ded.
Ned: “Actual Inventor, you KNOW that the reason for my post is because YOU made the statement that Diehr had nothing to do with the MOT. ”
Ned, there is a big difference between an argument acknowledging there is a machine and transformation in Diehr, and that there is a machine and transformation test in Diehr of which his claims were required to pass, in order to be 101 statutory subject matter.
The latter is what you have argued for either directly, or thru implication for quite some time.
And rather than admit you lost this argument for a MOT Requirement in Diehr, on the law and facts, you simply chose to be inherently dishonest,
And now you mutate into further fallacious disease by arguing in circular evasion.
Congress and the Courts have created the modern legal medicine to wipe out this disease of yours Ned.
Article 273
Bilski 11
Bilksi 14
Research Corp
Classen
But very time a new vaccine is created that can save you with healing legal truth, a new strain of dishonesty emerges.
Which makes me wonder, is it you Ned Heller that is sick with this disease, or are you the disease itself?
“Or prepare to get you own reputation for running up the hill with your skirt, like Mooney did from NAL.”
Ah, good times, remembered well. Did you get the load from Malcolm on the Human Organisms thread? Malcolm complaining of others using sockpuppets. I literally fell out of my chair laughing. It is an old and tired trick to accuse others of the very actions you yourself do. The game is up.
And did you see on that same thread anon cutting to the quick and calling for Ned to recognize the law of 273 which is now a bunker because Congress chose not to eliminate the definition of a business method patent? How will Ned choke on that! There is a new rallying cry for Ned:
“! ! ! Bilski 11 ! ! !”
“A conclusion that business methods are not patentable in any circumstance would render [Section]273 meaningless.” So as a category business method patents are through the 101 gate. As individual claims, they still must be judged – just like every other type of method claim.
“! ! ! Bilski 11 ! ! !”
Of course, the greater aspect of Bilski is the affect on the ability to cite previous case law, at least to cite that previous case law honestly and correctly. That rallying cry has been heard for over a year and will continue to be heard any time history is attempted to be rewritten:
“! ! ! Bilski 14 ! ! !”
Actual Inventor, you KNOW that the reason for my post is because YOU made the statement that Diehr had nothing to do with the MOT. I tried for days, politely, to point out to you that it did. Then, in successive posts over the last couple of days you called ME a liar when I ONCE AGAIN copied and pasted the relevant text from Diehr. You called me a liar many times, and a goal shifter, and what not. But all this exchange shows anyone is who the real liar is, Actual Inventor, all this show to everyone on this blog who the real goal post shifter is, and all this shows, Actual Inventor, is who is so fricken stu—-pid as it makes one cringe to even try to engage in a conversation with him.
I really really regret ever having responded to
any post of yours.
Dear Actual Inventor.
Please calm down and resist the lure of descending into name calling and vulgarities.
A trap set by Mr. Heller to divert attention from the issues being discussed.
You have already won the day, as can be seen by the other commenters that have challenged Mr. Heller on the law and exposed his fallacies, and yes, dishonesty.
So you do not have to engage in such antics as it only distracts from the record of discussion and the considerable ground you have already gained.
“Analysis of the eligibility of a claim of patent protection for a “process” did not change with the addition of that term to 101. Recently, in Gottschalk v. Benson, 409 U.S. 63 (1972), we repeated the above definition recited in Cochrane v. Deener, adding: “Transformation and reduction of an article `to a different state or thing’ is the clue to the patentability of a process claim that does not include particular machines.” 409 U.S., at 70 . Analyzing respondents’ claims according to the above statements from our cases, we think that a physical and chemical process for molding precision synthetic rubber products falls within the 101 categories of possibly patentable subject matter. That respondents’ claims involve the transformation of an article, in this case raw, uncured synthetic rubber, into a different state or thing cannot be disputed.”
Everything you cut and pasted above was the basis for the CAFC interpretation of Diehr setting a strict and sole requirement for MOT test.
But the SCOTUS in Bilski smacked that sheet down and sent the clear message there is no such basis in Diehr or any of their precedents.
And Bilski 14 made sure you understood that went all the way back to Benson!
And Cochrane v. Deener was only a Clue for transformation as 101 eligibility for a process, NOT a “Requirement!
Of course you know all of this but just like to l-i-e for the h e double L of it.
You are the absolute worse.
“And just for the record, what I am trying to point out to you is that Diehr did involve the MOT, and, in fact, that is what a traditional process is.”
Yup move them Goal Post! Plus no one said Diehr did not “involve” a machine or transformation. That’s not, nor ever was the argument.
Nor is the argument about what a “traditional process” is. Thats more deflection and attempts to obfuscate on your part.
Where did the Supremes ever say a Machine or Transformation is required for Diehrs process, or ANY procees, to be 101 eligible?
Huh??
Where?
Show me now beach!
And don’t come back with that I already pasted it crapola copout.
I want you to find it and show me in your NEXT reply. EXACT WORDS, the REQUIREMENT!!!
NED: “So, when you say that Diehr involved a traditional process but did not involve the MOT, you come across as a complete …..”
I never said any such thing you dishonest POS.
And, AI, check my post just five or six above, at 08:42 AM, where I replied to you as follows:
“From Diehr:
“Analysis of the eligibility of a claim of patent protection for a “process” did not change with the addition of that term to 101. Recently, in Gottschalk v. Benson, 409 U.S.
63 (1972), we repeated the above definition recited in Cochrane v. Deener, adding: “Transformation and reduction of an article `to a different state or thing’ is the clue to the patentability of a process claim that does not include particular machines.” 409 U.S., at 70 .
Analyzing respondents’ claims according to the above statements from our cases, we think that a physical and chemical process for molding precision synthetic rubber products falls within the 101 categories of possibly patentable subject matter. That respondents’ claims involve the transformation of an article, in this case raw, uncured synthetic rubber, into a different state or thing
cannot be disputed. The respondents’ claims describe in detail a step-by-step method for accomplishing such, beginning with the loading of a mold with raw, uncured rubber and ending with the eventual opening of the press at the conclusion of the cure. Industrial processes such as this are the types which have historically been eligible to receive the protection of our patent laws.”
And just for the record, what I am trying to point out to you is that Diehr did involve the MOT, and, in fact, that is what a traditional process is.
So, when you say that Diehr involved a traditional process but did not involve the MOT, you come across as a complete …..
Which is why I said before that you do not know what you are talking about.
I copied and pasted the passage.
Why don't you just ask for it again or admit that you do not know what the not is if you do not want me to copy and paste it again.
Sent from iPhone
Ned Heller said in reply to Actual Inventor…
AI, I already copied and pasted the passage. All that shows is that you do not know what the MOT is.
_____
And once again you show your intellectual dishonesty. You never have to be responsible in a debate because you can always conveniently say, oh I have a different definition of what so and so is. And when you are backed into a corner like Um had you in up thread, you suddenly play d u m b and say ..I dont know what that means?
I made the argument that Diehr received his patent because it was an applied process, to a specific environment, in that case an industrial one. And that no machine or transformation was required.
You made the argument that Diehr received his patent only because it passed a strict machine or transformation “requirement”.
When challenged to specifically point out that “requirement” you have evaded, ducked, dodged, attacked, sulked, whined, complained, and done everything BUT point out the “requirement”
You are a true dishonest man Ned. Truly.
AI, I already copied and pasted the passage. All that shows is that you do not know what the MOT is.
Ned, I don’t care what names you call me. Just cut and paste the exact words of the Supreme Court of the United States saying in Diehr, that Diehrs claims required a machine or transformation. If you can’t find those exact words then admit there is no machine or transformation requirement in Diehr. Or prepare to get you own reputation for running up the hill with your skirt, like Mooney did from NAL.
Publius, sorry for overreacting. I thought you were one of the shape shifters who masquerade here among a fog of topical monikers. They all seem to be the same person in the end.
Regard the statement that I used about hiding behind monikers was for the purpose of lying, I know that statement was a just bit much. But I did it for a purpose, to tweak Um, no, or whoever was pestering me at the time.
Sorry about that.
And, thanks for your reply on Kappos.
Regarding Kappos, a public official's honesty is not subject to legal prosecution by members of the public. So his honesty or lack thereof is otherwise controlled by the requirements of his boss and the requirements to testify under oath before Congress. If a public official is caught in a lie, he will be an embarrassment and might be forced to resign.
In this case, Congress and the White House were on the same page regarding the Patent Bill. This almost gave Kappos carte blanche to stretch the truth as far as he wanted with the secure knowledge that neither his boss or the Congress would mind all that much.
But his lies will be remembered by his colleagues.
Thanks Ned,
Public officials have a heightened responsibility in all things legal. Just like others in the profession of law. There are both legal and moral aspects to this responsibility, varying, of course by the player, office, context, and situation (for example, a public official lying about a personal matter having nothing to do with his duties can have legal implications, but also, may not). The old adage of “It depends” applies.
Does that help?
But the topic I was addressing is self-contained on this thread, and deals with accountability and pseudonymity. You made a statement. I disagreed with that statement (from multiple angles). You (over?)reacted.
I stand by my points (anonymously, yet completely truthfully). Re-read our exchange, if you will.
Publius, you stepped into a long running battle between Um, no, and perhaps a few others, that started when I made a comment about another poster's statement that Kappos knowingly lied about something in his advocacy of the patent reform bill. The posters consistently tried to divert the conversation away from that topic into whether we here in Patently-O had an obligation to tell the truth. I made the distinction that Kappos had the legal obligation to tell the truth, but that we did not. This statement was twisted into a statement that we here on Patently-O should lie, and that I was advocating lying, etc.
And so it went, back and forth, for 100s of posts. Never in any of them did anyone make any comment on whether Kappos had a
legal, as opposed to moral, obligation to tell the truth. Instead, we got mired into irrelevancies.
If you would like to add a comment on the original topic on whether public officials have a legal, as opposed to moral, obligation to tell the truth in their public advocacy, I would like to hear it.
“The point I made was about Kappos and his legal obligation to tell the truth. You never have addressed this and continue to twist everything I say and take it out of context.”
Ned,
What are you talking about?
Reread my posts starting at 7:38 AM. I am asking specific questions on this thread related to your theory that somehow not using a pseudonym makes a poster more accountable.
Um, no. is correct in that you have answered only one of my questions before kicking up a roomful of dust with accusations and misdirections. Some of my other questions were how was I taking your words out of context and what names did I call you.seems It seems that you are uncomfortable in actually giving answers to anything but a short prepared script of beliefs that you want to talk about. Anything off of your agenda seems to quickly end up with you not understanding simple terms, replying only with questions, or you attempting to re (mis?) direct the conversation. For example, what does Kappos have to do with our discussion of pseudonymity and accountability?
See.
Um, no, your constant whining is wearing. Stop whimpering you weasel.
As a matter of fact, I did answer Publius's question.
Regarding you, Um, no, what is the point of discussing Bilski if we cannot even agree on whether Bilski's claims were directed to a business method. Bilski is topic of discussion, and we need to agree on what we are talking about before we can discuss anything else.
Listen, Actual Inventor, I will stop calling you names if you agree to do the same with me. I am indeed POed with you, but I will offer truce if you will.
“But you will have to agree that if you wanted to smear someone, to falsely accuse, the use of a pseudonym is all but mandatory.”
There is no need for such agreement. Ned, your actions quite prove the opposite.
Publius was perfectly straight up with you and wanted to explore your own professed position, yet you turned to your usual bag of tricks: lies, deception, name-calling, accusations and NOT GIVING ANSWERS.
Truly pathetic. The degradation has NOTHING to do with the rise of anonymity – your own posts prove that. Your deceit is worse than any of the pseudonyms because no other psuedonym attempts to hide behide a false wall of righteous indignation.
AI Okay Mooney. Let’s get this straight. You believe every process claim with a known mental step should be patent ineligible under 101?
Nope. And once again we are faced with the age old question: is AI stxpxt? or dishonest?
It has to be one or the other. I’m going with stxpxt.
Ned, that rotting ego is yours. The only one not to notice it is you.
Ned,
Another classic game of yours: accuse the other of your own behavior: “I deferred discussion”
Guess what? – I declined to accept your deferment. The discussion can proceed along the lines of the joint questions. Oh, wait, you don’t know what is meant by a medical method…
The stench is from the CRRP you keep on trying to shovel.
As far as not answering questions, I notice that you still have not answered Publius’s questions, except one, then you disappear in a cloud of accusations (yet ANOTHER game). At least ping was forthright about not “doing answers” and didn’t try to make that a game like you so deceitfully do. His brusque manner actually smells like roses in comparision to you.
Since Ned has solely resorted to name calling now, is there anyone out there in the blog community that can cut and paste the exact words of the Supreme Court Justices of the United States saying…”Diehr’s process required either a machine or transformation.
And please no dissents or attempts at conflation or your interpretation or theory of what other passages meant. Just the exact words. if you can do it, I will send you a grand to your paypal acct.
BTW, that includes you too Nedo
AI, you sir, are a driveling mor–on.
Publius, you ask whether “pseudonyms have outlived their usefulness?”
Not entirely, no. But you will have to agree that if you wanted to smear someone, to falsely accuse, the use of a pseudonym is all but mandatory.
Just from my experience here, and over the last decade on a number of fora of public discussion, I have observed people routinely bashing each other in ways they would never do in face to face conversation. The rise of anonymity has degraded public discussion, and fora that allow it are generally filled with practitioners of name calling, and libel.
I am not Dennis Crouch, but I think he should tighten up considerably on just who can post here.
NED: “AI, I did cut an paste the exact words. Did you miss my post, or do you want me to use a yellow marker?”
In the time it took you to type THE above response you could have simply cut and paste the exact words of the Supreme Court Justices in Diehr saying his process required either a machine or transformation.
But you can’t and you won’t because they never did say such. Thus proving once again you are dishonest and a liar.
:CASE CLOSED
::BANGS GAVEL!::
Publius, I regret ever having tried to discuss this issue with you. You, seem to be the same person as AI, or any other number of similar monikers.
The point I made was about Kappos and his legal obligation to tell the truth. You never have addressed this and continue to twist everything I say and take it out of context.
Now, as to your “directive,” I dare you.
But, more than anything, it reveals just who you actually are. Publius is just you moniker de jure.
“Rich understood that the policy reason in Benson of making the algorithms available to everyone was wrong”
Lulz, in other words, Rich disagreed with a century of caselawl and so does NWPA.
UM, no,
Let’s recap. You made a point. I deferred further discussion until we agreed on the facts. I then asked whether could at least agree on whether the Bilski claims were a business method.
I can’t get you to agree to that simple proposition. Instead we are off wandering around in different case discussing different issues.
Um, no, it seems literally impossible to have any sort of rational discussion with you. Simply impossible.
Given the fact that you will not answer questions or even stipulate to any facts even for the sake of argument, you have to be ping, who was famous for never answering questions. That was his badge of honor, or his disrespect of others, depending on one’s point of view. You are the same in your disrespect for others — ping.
Idk brosky, if your tools are 50 yrs old I think u need some new tools. Especially if you’ve been rough housing with your tools.
“The panel in Cybersource should be facing impeachment proceeding.”
Well, either that, or NWPA has got a few screws loose… which we all knew beforehand and can safely presume is the cause for the current connundrum.
“Do you know? If you care about being an ethic person or a moral person or being intellectual honest, you would adopt this view. ”
To be sure, if you’re a moral person you will object to “a machine that does what people do” being subjected to being mere property. Slavery for machines that do what people do is what NWPA espouses.
AI, I agree there is a stench in this forum, alright. It comes from a rotting ego, and its noxious gases are all but making most of us wretch.
AI, I did cut an paste the exact words. Did you miss my post, or do you want me to use a yellow marker?
Really, AI, just where do you think the MOT came from? Benson and Diehr, with Diehr citing Benson.
I don't get you, AI. Really. I don't get you. I can lay a dead cat on a table in front of you and you will ask me to show you why you think that dead animal is a cat, or why you think that cat might be dead, or remark that the cat is yellow or some such, as if a yellow cat made any difference whatsoever.
I don't know if you are just playing games here, or whether you are re–tarded or whether you are mentally
ill.
Regardless, I feel very dirty after attempting any discussion with you, as if I were in close proximity to some street bum.
EXACTLY.
Ned – I am not divereting attention – I am merely not allowing you to divert attention from the ACTUAL game you are playing. I told you what the topic ACTUALLY is and you simply want to waive a magic wand and pretend you don’t see it (just like you don’t see ANYTHING that happens to crash your philosophical party).
Your appeal to the “average reader of this blog” is quite ironic, as you no doubt have NO idea of what perception you create by your shallow “I don’t know” stances and your false logic. You are a joke.
NED: “I really don’t know what a medical method is.”
I call BS!
You don’t know what a medical method is because to define it, like you arbitrarily and illegally did for business methods, would expose the fallacy in your logic and put you face to face with the stench of your own intellectual dishonesty and deception.
Ned:
Where does it day that However Diehr’s process required a machine or transformation?
No BS, ( if thats even possible for you) just cut and paste the exact words from the case. I want to see the Supreme Court Justices in Diehr say his process required either a machine or transformation.
::WAITS BUT DOES NOT HOLD BREATHE::
Um, no, you divert attention and then accuse me of dodging the question by asking you to stay on topic and then get all in a huff because I asked! Um, no, you have no idea just how ridiculous you must appear to the average reader of this blog.
“Let’s not divert attention please”
and
“I really don’t know what a medical method is”
means sir, that you are still trying to play games.
The artful dodge of classifying the medical method claim as THE scientific method as applied to medicine is just another game.
CLEARLY, the parallel to be drawn by my asking a question to your question is the “syllogistic-get-back-to-later” portion that you are attempting to make a faulty logic jump from a particularly claimed (and failed) business method to the entire class of ALL business methods.
That sir, IS the issue on the table. It is the ONLY issue on the table worth discussing, because the exact particulars of the Bilski case stay with the Bilski case and it is only the rule of law that moves on to the next case and that next case’s set of facts.
I truly abhor your game playing. It is dishonest and steeped in deception.
Um, no, "Can we agree that the Classen claim (the one ruled not 101 eligible) was directed to a medical method?"
I really don't know what a medical method is. If
you mean the scientific method as applied to medicine, then we can agree.
Let's not divert attention please. I think the issue on the table was whether the Bilski claims were directed to a business method. Do we at least agree on that?
Can we agree that the Classen claim (the one ruled not 101 eligible) was directed to a medical method?
UM, no, we can contest syllogisms later. Until then can we agree that the Bilski claims were directed to a business method?
Still waiting for Ned to actually answer the questions in my posts of 7:38 and 11:53 AM, 1:19 PM and my directive at 11:59 AM.
These posts pile up quickly and all I have to see for it are excuses and accusations.
Empty words Ned, empty words.
“What was left it on said in this post is the following: that the Bilski claims were business method claims. They were held not to be patent eligible. They were, rather, deemed abstract. This would imply that as a general matter that business methods are abstract
and therefore are not patentable subject matter.”
The problem Ned is that this is a false implication and a use of poor logic to make the jump from a specific example to an entire category of material. There is no justification for this stretch of logic. This has been pointed out to you, yet you insist on not only depending on this fals logic, but you depend on it so much that it becomes implied in your stated positions.
WAKE UP.
“However they provided no basis, rationale, or reason why, if business methods were not categorically excluded”
FALSE – they included at least that Congress sanctioned them explicitly (and let’s not even go to Pennock which states that Congress has the right to so do). This too has been explained to you, and yet you continue to play the “I don’t know” game.
Your reliance on Cyborsource is problematic, given that Cyborsource is – AT BEST – an incomplete application of 101 jurisprudence, and is most likely simply bad law. Once again, you make the mistake of assuming that a categorical label implies all instances to pass a patent eligibility test (the fallacy of this logic should be immediately evident in consideration of the case for this thread (Classen), which, if to use your logic, would imply that medical methods are not patent eligible subject matter. STOP THE GAME PLAYING.
Finally, your use of “caveat” is not proper. You cannot put forth your improper logic and say I am right because of the way I define the situation. That is a dishonest and deceptive practice.
From Diehr:
"Analysis of the eligibility of a claim of patent protection for a "process" did not change with the addition of that term to 101. Recently, in Gottschalk v. Benson, 409 U.S.
63 (1972), we repeated the above definition recited in Cochrane v. Deener, adding: "Transformation and reduction of an article `to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines." 409 U.S., at 70 .
Analyzing respondents' claims according to the above statements from our cases, we think that a physical and chemical process for molding precision synthetic rubber products falls within the 101 categories of possibly patentable subject matter. That respondents' claims involve the transformation of an article, in this case raw, uncured synthetic rubber, into a different state or thing
cannot be disputed. The respondents' claims describe in detail a step-by-step method for accomplishing such, beginning with the loading of a mold with raw, uncured rubber and ending with the eventual opening of the press at the conclusion of the cure. Industrial processes such as this are the types which have historically been eligible to receive the protection of our patent laws."
Actual Inventor, it would be a pleasure to converse with you if you weren't such a jerk. However, your post does illustrate that I did not connect the dots completely in the very short post to you on August 27. That post said following,
<ul>Aug 27, 2011 at 07:24 PM
"You state that BMs are patent eligible, but Bilski was held not patent eligible. It matters not the test. It matters that the BMs are not patentable."</ul>
What was left it on said in this post is the following: that the Bilski claims were business method claims. They were held not to be patent eligible. They were, rather, deemed abstract. This would imply that as a general matter that business methods are abstract
and therefore are not patentable subject matter.
The problem with this conclusion is that the Supreme Court also said that they were not categorically excluding business methods from patent eligibility. However they provided no basis, rationale, or reason why, if business methods were not categorically excluded, the business method in this case were not patent eligible. We are simply left to speculate as to what it is that could rescue business methods from oblivion.
I therefore conclude that as a general matter business methods are not patent eligible, but I should explain further. As a general matter, business methods do not transform subject matter from one physical state to another physical state. They manipulate abstract concepts such as risk, price, quantity and quality and the like. Therefore, it is unlikely that a business method would ever pass what we now know to
be the "machine or transformation test." Further, the Federal Circuit recently addressed (in Cybersource) the issue of whether the business method claims before it were patentable nevermind that the claims in that case failed the machine or transformation test. Not surprisingly, they still could not find any basis for determining that the claims in that case were patent eligible.
It is important to note that the claims in CyberSource were business method claims. If business method claims were patent-eligible, those claims should have been patent-eligible. But they were determined, just as in Bilski, to be abstract.
So while the Bilski Supreme Court did not categorically exclude business methods from eligibility, they provided no basis or guidance as to any test or circumstance or any example as to when or if a business method could be eligible.
So with the
above caveat, I would say, given the proviso from the Bilski Supreme Court, that business methods are not patent eligible under any known test.
People who don’t hide behind anonymity can lie with impunity. History has shown this. There are reasons that have nothing to do with commenting on a blog that we have six amendment that allows one to confront his accusers. People who don’t hide behind anonymity here can, and obviously do, engage in excessive name-calling and ad hominem attacks. They lie with impunity. When confronted with their lies, they continue to lie. It is impossible, I have found to deal with such liars with any kind of civility, even though I have tried with extreme patience to get some of these folks behave with some kind of civility themselves. It simply is impossible. And the reason it is impossible is not because of their anonymity.
Anonymity has absolutely nothing to do with it. You yourself are proof that even those who are not anonymous engage in the behavior you decry.
NED
A C C O U N T A B I L I T Y
I am very interested in the tale to be woven by Ned as to how, by him using “his good name,” he is somehow more accountable. It’s pretty funny watching him squirm and accuse those who catch him of calling him names, twisting what he said (the exchange between Publius and Ned is indeed quite telling) and playing games when the real game player is quite clear.
Just not seeing you evading the truth on this Ned. Stop shoveling.
Ned: Diehr did apply the MOT to find the claims patentable.
WRONG! I already busted you for this willful intellectual dishonesty before and rather than face it you simply ignored it. And here you are lying again!!!
So here is the B Slapping again…. right in your FACE!!!
REPOST
_____
Reply
Aug 27, 2011 at 02:30 PM
Actual Inventor – Schools Ned said in reply to Ned Heller…
Ned, there was no mention of a MOT Test in Diehr. You have gone from being Intellectually Dishonest to Intellectually Delusional.
The Court said: “In contrast, the respondents here do not seek to patent a mathematical formula. Instead, they seek patent protection for a process of curing synthetic rubber. Their process admittedly employs a well-known mathematical equation, but they do not seek to pre-empt the use of that equation. Rather, they seek only to foreclose from others the use of that equation in conjunction with all of the other steps in their claimed process. These include installing rubber in a press, closing the mold, constantly determining the temperature of the mold, constantly recalculating the appropriate cure time through the use of the formula and a digital computer, and automatically opening the press at the proper time. ”
Ned, please note that the Court is NOT granting Diehr a patent for a machine, or a machine that implements a process, but for a process that just so happens to operate on a machine.
A process that requires a human operator, and mental steps, and is not to a machine working by itself, as the original CAFC MOT test requires.
Of course if you, Looney Mooney and IQ 6 had your way you would ignore and dissect all the so called machine and technology parts out of Diehr and declare the application of the process steps are mere mental steps or abstract ideas, and thus render Diehrs patent ineligible under 101.
6 would call it his phony pre-emption doctrine.
Mooney would just flat out dissect the old, or mental steps out of the process in contrary to the Courts directive in Diehr and call their ideas C.R.A.P.
Plus you ALL would do the same thing under 102 and 103 as well. Just like old Stevens taught you with his flawed Flookian idealology.
However Diehr received his patent because his invention is an applied process, period. It did not require, nor did the Court say it required a machine or transformation. The fact that he had a machine or transformation in his claims was inconsequential and could not be used to deny his patent.
SCOTUS made this clear in Diehr when they said :
“Obviously, one does not need a “computer” to cure natural or synthetic rubber, but if the computer use incorporated in the process patent significantly lessens the possibility of “overcuring” or “undercuring,” the process as a whole does not thereby become unpatentable subject matter.”
Deal with it!!!
Actual Inventor
Note: Your posting of this link to prove your innocence buries you in guilt!
EVIDENCE
Ned said :
Reply
Aug 27, 2011 at 07:24 PM
“You state that BMs are patent eligible, but Bilski was held not patent eligible. It matters not the test. It matters that the BMs are not patentable.”
THERE! YOU SAID IT YOU LYING BEACH!!!
You said Business Methods are not patentable! And I Beach Slapped you silly for it. Here is an instant replay of the B Slapping that followed:
AI Replied:
“Well, Ned using your logic, I can cite cases that held inventions of machines, articles of manufacture, and chemical compositions as not patentable. Then conclude that Machines, Manufactures, and Compositions are not patent eligible subject matter.
Bottom line is you can’t cite one case that says business methods as a category are not patent eligible subject matter, and thats a FACT.
Now deal with that Beach.
Actual Inventor”
You never did respond to the above did you Ned? Just run around crying..AI is picking on me..wah wah wah.. AI is making me look bad for catching me in lies..I am not talking to him no more. I am telling teacher….baaa waaa waaa…
Now go ahead and type some more BS as to why you did not really type exactly what was cut and pasted above. I dare you! I will be glad to B slap you down again,
BEACH!!!
Actual Inventor when he called me a liar for stating that he had contended that Bilski confirmed that business methods were patentable. I quoted his post and gave him a cite.”
Ned,
OMG! You are the most insidious liar ever! Worse than Mooney on his best day.You did not make any such statement. Nor did I deny such. Your tactic here is to obfuscate the record. So every time you post your lie you change a word here and there ever so slightly to try and wiggle your way out of your original lie to the point you are now lying about what you were even accused of lying about!
Okay, i am going to go back and find the orignal thread just to document you are a liar which we ALL know now. Of course you will try and wiggle and twist and/or rewrite what you said.
This has to be one of the most immature replies I have seen on this blog. And that is saying a lot when you have Mooney and 6 in the threads.
None the less, I still say ” Diehr could have received his patent even if his claims did not include a machine or transformation.”
And since Ned is about to report me to teacher, I welcome anyone that can demonstrate with “Diehr’s” own case law, why this could not have legally occurred.
“and just what does the MOT do?”
Ned, need I remind you that the MOT is not the sole test? In fact it’s not even a real test at all!
It’s just a Clue!
I don't think Rich ever gave up his original position that a programmed computer was patentable regardless of whether it was applied to a physical end use. Allowing claims to computers programmed for business purposes as in State Street Bank proves this.
“Stevens never really seemed to understand that Douglas had confused the issue with this digression”
But Rich did.
That is why Rich, at a lower court level could – and did – rule as he did without overturning a higher level court holding.
Stevens was powerless to stop the logic of Rich. This is why noting that Stevens wrote in dissent in Diehr and wrote what was equivalent to a dissent in Bilski is of critical importance in understanding §101 Jurisprudence.
Put simply, Rich got it right.
Please stop addressing posts to me.
In psychology that’s called “projection”.
“Diehr obviously was the best case of the four because it explained in some detail what we now know to be the machine or transformation test.”
Diehr did not receive his patent because it passed the MOT Test.
No such test was used in Diehr.
Diehr could have received his patent even if his claims did not include a machine or transformation.
Okay Mooney. Let’s get this straight. You believe every process claim with a known mental step should be patent ineligible under 101?
And you believe this should be law because you believe, “the claim turns practitioners of the prior art who acquire KNOWLEDGE about the patentee’s “discovery” into infringers. ”
Hmm,,,okay let’s go along with that. So if I discover or invent an applied process, even a new use of a known process, why shouldn’t I be able to sue people that use that process without my permission and/or paying me a royalty?
I wonder what your reasons could..Hmmmm…Is it….
Because I am making money?
Because I am spending money so other people can make money?
Because all that spending of money will create more jobs?
Because more people working means a stronger economy?
Because a stronger economy means a stronger America and our way of life and freedoms will be more secure?.
Wow Mooney you just converted me! I am giving up all my patents, abandoning my pending applications and moving to China!
Publius, I said you twisted what I said.
People who hide behind anonymity can lie with impunity. History has shown this. There are reasons we have six amendment that allows one to confront his accusers. People who hide behind anonymity here can, and obviously do, engage in excessive name-calling and ad hominem attacks. They lie with impunity. When confronted with their lies, they continue to lie. It is impossible, I have found to deal with such liars with any kind of civility, even though I have tried with extreme patience to get some of these folks behave with some kind of civility themselves. It simply is impossible. And the reason it is impossible is because of their anonymity.
I am sorry P, but you too are twisting my remarks and you know it.
Ned,
It is more than telling that I ask you a question directly on point – how are you held accountable – and all you have to say is that I am simply name calling.
Which name did I actually call you?
You really don’t like having to live by the edicts you put forth for others, do you? The spotlight is a bit too bright for you.
Publius, I bent over backwards with AI to no avail. He would not stop his antics. Refused. I simply gave up with him. So, from now on, I treat him like he treats me.
I don't know who you are, but this is the last post to you as well, as you really do not want to discuss anything, but simply just name call, etc.
The “accuse others of what you do” game:
“your problem is that you don’t know what you’re talking about, you act like a baby, and your opinions are worthless” from the same person who said “if you think personal attacks and whines are polite conversation, well… perhaps they are for you.”
Ned, tell me how you are held accountable.
Explain why the “missing’ caveat changes everything?
Or do you think that pseudonyms have outlived their usefulness?
Then explain how you think that I have misread you and the context of the discussion on this (and any – or many – other threads).
I think that you overplay the reliance on your “good name” as some type of innoculation against lying and deception. You clearly have shown no accountability for your lies and deceit, throwing up a smokescreen of Kantian Imperative, and then being nailed by Um, no. on your flaunting of Kantian basics.
Plain reading of the many twists and turns of your posts, your (mis)application of case law and your tactics of discussion (the games as identified by Um, no.) clearly show that even using your “good name” is no such innoculation.
Then explain how time and again I just “don’t get it.”
Ned, your games really do not fool anyone.
Spend some time thinking about the stated public policy in Cybersource and Benson. This is the sort of thing that is not patentable because it is a tool? So, improvements of microscopes shouldn’t be eligible for patentability?
What is going on here? Well, these information processing methods are for machines. They are improvements of machines. The fact is that the public policy stated in Cybersource makes absolutely no sense. Under that public policy almost anything that is useful to an inventor should not be eligible for patentability.
The panel in Cybersource should be facing impeachment proceeding.
MM–
“I am identifying a type of claim” – No, you are not.
“Upthread you agreed with me that such claims exist” – No, I did not.
See my comment above at 10:42 am on Sept. 6
MM, I’m not saying that it is impossible to do what you are claiming to have done, all I’m saying is that you have not in fact succeeded.
And I do NOT concede that it IS in fact possible to do, without having seen it done.
I would be willing to go through it again, as it is an interesting exercise, if you were to definitively “identify a type of claim” for discussion.
But even IF your formulation were to be workable, it would be often unnecessary, and, in a way, actually inefficient.
It would be often unnecessary if the courts knew what they were doing with respect to 112, 101, 102, and 103. Granted they do not, but the solution to that is to educate the courts on those matters, not to gloss over their failures and give them what initially appears to be an “easy out”, but which is just one more poorly-positioned toothpick in the purportedly self-supporting toothpick sculpture that is patent law. Only so many toothpicks can be thus poorly positioned before the structure becomes unbalanced and fails, even if that toothpick successfully carries the individual loads placed upon it; it also has the effect of adding load to other toothpicks in a manner that is difficult to predict, and does nothing to enhance or develop the visual navigability of the sculpture.
And because it would have such a narrow range of application, it would be less efficient to develop as a specialized tool than would a general tool, and ultimately be less useful.
And the point is that the general tools are already in the shop, it’s just that the woodworkers haven’t used them properly, and they are now compromised, chipped, bent. The existing tools are what is required for the job, and must be refurbished. The essential job of patent law is no different than it was, say, 50 years ago. We do not need new tools, we need to re-learn how to use the ones we have, after the end of the currently dark juridical period.
In short, even IF workable (which you haven’t yet even come close to having proven), your formulation would represent the problem, not the solution.
But I could be wrong. Give us another hypo or actual claim, with an associated statement of utility, and we’ll see what happens.
To a tiny mind like yours IANAE, perhaps. To anyone that respects science and the law–no.
By the way, tiny mind Ned, do you think the public policy stated in Benson is correct? Guess what, no it is not. The information processing methods described in Benson are tied to machines. Not the way people work, but the way machines wrok and processing of information. That means–guess what tiny brained Ned–that the public policy stated in Benson is WRONG.
I know this is the right way to view it because of the all arguments fall apart when view with the lens of infomration processing.
I know this is the right way to view it because viewing it this way validates my preconceived opinion and that of my clients.
Read Deener Ned. The SCOTUS got that a method may be for a type of something. Like grain. And that a method could be a method for a machine. And, that a method should apply to corn or wheat.
The only thing missing tiny brain boy is that information is the grain. Information is being transformed. Put that in your tiny brain and you will notice that all of these arguments become very simple to analyze and understand because–why?—why small brianed boy—it is because that is what is really going on.
“Diehr obviously was the best case of the four”
Who knew that Ned was a closet Diehrbot?
Ned, do you know why I know the reason that information processing is the correct way to view cs and ee inventions?
Do you know? If you care about being an ethic person or a moral person or being intellectual honest, you would adopt this view.
I know this is the right way to view it because of the all arguments fall apart when view with the lens of infomration processing.
The entire issue becomes easy to understand. Just remember, Ned, that information takes time, space, and energy to transform, and your little ole brain may be able to figure this out. If you are a decent person. If not, then you can gon on about your miserable mean petty thoughts and have a beer with MM, 6, and his ilk. The type of person that no doubt burned people at the stake.
MM why is that every slimey human being in the U.S.A. does exactly what you do? That is you accuse people of what you do. I suspect MM that you are Richard Stern.
Ned: You sound like you know a little about patent law, but you obviously don’t understand information processing or electrical engineering.
The fact is that transforming information takes time, space, and energy. The laws of physics include laws regarding the conservation of information. Your iron age hat doesn’t seem to get that information processing is the great innovation of the 20 century and continues on into the 21st century.
Benson is an infamous opinion among patent intellecturals as one of the most twisted bizarre opinions in SCOTUS history. This is for many reasons. One can get a hint at the stupidity of Benson by the statments in Beson stating that computers were just a little market that was not so important.
Another aspect of the stupidity of Benson is not recognizing that EE is really not much different than computer science and that almost any device can be reduced to a/d converters and sensors with informatino processing performing all the functions of the circuits. What this means is not recognizing that information processing is transforming represented information is simple not recognizing the underlying reality of the innnovation. And, it leads to capricious ruling of what is eligible for 101 and what is not eligile for 101.
Rich understood that information is what was being transformed. Rich understood that the policy reason in Benson of making the algorithms available to everyone was wrong. That the algorithms were being developed specifically for machine processing not people processing. The intellect behind Benson was an iron age man that should have retired long ago rather than continuing to try and push Benson in the 21st century.
Why, by the way, Ned is it that a process that can be performed by a person’s body is eligible for 101 but if it can be performed by the person’s brain then it is not eligble for 101?
But, I realize that this is rather disorganized. If one simple accepts (rightly) that information transformation are elible for 101, then the entire 101 issues fall apart and it is become very simple.
Publius, you do forget the caveat, which changes everything. I see you really need some lessons in how to read in context. It must drive your clients nuts when time and again you just don't get it.
But it certainly wasn’t to protect their identities because they intended to lie
Yes. That is exactly my point – and exactly the opposite of your statement at 6:06 PM.
Thank you for contradicting yourself.
Next.
Publius, the problem one has if he lies to another person is what happens when the other person finds out, and they will find out.
Also, if one lies, one typically has to keep track of one's lies and to keep lying in order to maintain the lie. This is almost impossible to do.
But if one is anonymous, one can lie with impunity because one can change his identity the next day and not be held accountable.
As to why our founding fathers wrote under pseudonyms, I don't know. But it certainly wasn't to protect their identities because they intended to lie. It probably was because they intended to express their opinions publicly in a time when people who disagreed, and perhaps strongly so, knew where one
lived in could do something about it.
Um, no, if you think personal attacks and whines are polite conversation, well… perhaps they are for you.
You refer in your post of prior discussion about inchoate rights, probably from a discussion about Pennock v. Dialogue. For the life of me I cannot remember discussing that case with you, or that you made any points at all that I missed. I have repeatedly apologized to you if I did not understand your points, or failed to address them.
I will ask you again, if you could, please find the post that has the point you say I did not address. I will consider it and give you a reply.
Actual Inventor, your problem is that you don’t know what you’re talking about, you act like a baby, and your opinions are worthless.
AI’s? best Friend, I think part of problem here was that Douglas said something in Benson that confused everybody: that was his statement that the only practical use for the BCD to binary algorithm of Benson was for use in a computer, thereby wholly primping algorithm. This actually made no sense whatsoever. Let me explain.
Processes as we know transforms things from one state to another. It uses the powers of nature applied through machines, articles of manufacture (tools) and compositions, mental steps and human agency. The recital of any one of these things in such a claim is not the practical end use the earlier part of the Benson opinion said was required to make patentable a process, something that would, for example, pass what we now know to be the “machine or transformation” test. Thus the suggestion that the recital of the computer could be such a use is a complete non sequitur.
Stevens never really seemed to understand that Douglas had confused the issue with this digression. His opinion in Flook seemed amplify it, in very confusing ways, by talking about the practical end uses required by the MOT in the same sense that a computer in Benson was described by Douglas to be an end use, when the computer was only “used” as a tool.
In the end, Stevens confused lead the his being shunted aside eventually into the monitory in both Diehr and in Bilski.
That said, the confusion sown by Douglas in Benson and Stevens in Flook have had a long legacy. Diehr obviously was the best case of the four because it explained in some detail what we now know to be the machine or transformation test. Benson would’ve been an excellent opinion but for the dicta about programmed computers and the sole digression about computers being an end use. Flook, was nigh on incomprehensible.