By Dennis Crouch
Fort Properties, Inc. v. American Master Lease LLC, __ F.3d __ (Fed.Cir. 2012)(Judge Prost joined by Judges Schall and Moore.
American Master Lease (AML) owns a patent that covers a method of creating a tax-deferred real estate investment instrument. U.S. Patent No. 6,292,788. Claim 1 includes three primary steps: aggregating title to real property to form a real estate portfolio; encumbering the property in the real estate portfolio with a master agreement; and creating a plurality of deedshares by dividing title in the real estate portfolio into a set of tenant-in-common deeds with each of the deedshares subject to a reaggregation provision in the master agreement. This method is designed to take advantage of a federal income tax loophole that allows investment properties to be traded tax free in some circumstances.
This litigation arose after AML threatened Fort Properties with an infringement lawsuit and Fort Properties filed an action in the Central District of California asking for a declaratory judgment of invalidity. In a decision predating Bilski v. Kappos, the district court ruled the patent invalid for failing the machine-or-transformation test (MoT). On appeal, the Federal Circuit affirmed – finding the invention unpatentably abstract.
Unpatentably Abstract: Courts have long recognized patent claims as abstractions that tend to generalize and broaden the scope of a particular invention. That small level of abstraction is acceptable and encouraged. However, if a claim is too abstract then it becomes unpatentably abstract. At a conference this weekend, Chief Judge Rader, USPTO Solicitor Chen, and I held an interesting discussion on drawing that line. In my view, “preemption” is largely unhelpful because it falls into the same line drawing trap: A patent is only useful if it sufficiently preempts (i.e., excludes) others, but at some point too much preemption renders a claim unpatentably preemptive. I believe that all three of us see the current jurisprudence on abstract ideas as problematic. It leaves the courts and patent examiners without any real standards for determining an outcome other than asking whether the particularly claimed invention is “too much like Bilski, Benson, or Flook?”
Here, the appellate panel reviewed the tax strategy patent and decided that it counts as abstract because the invention is too much like Bilski.
We view the present case as similar to Bilski. Specifically, like the invention in Bilski, claims 1-31 of the ‘788 patent disclose an investment tool, particularly a real estate investment tool designed to enable tax-free exchanges of property. This is an abstract concept. Under Bilski, this abstract concept cannot be transformed into patentable subject matter merely because of connections to the physical world through deeds, contracts, and real property. . . . When viewing the claimed invention as a whole, the physical activities involving the deeds, contracts, and real property are insufficient to render these claims patentable.
Some of the claims included a computer limitation. However, the court held that limitation did not impose any meaningful limits on the claim scope for subject matter eligibility purposes. “AML simply added a computer limitation to claims covering an abstract concept—that is, the computer limitation is simply insignificant post-solution activity. Without more, claims 32-41 cannot qualify as patent-eligible.”
The problem with the court’s jurisprudence here is that “unpatentably abstract” is not defined. Rather, the court simply recited the core function of the invention and the conclusion that it is abstract.
Careful simple,
IANAE is merely defending his ally in the great “war.” He is doing it in his typical slanting fashion of portraying you as the party for actions that he is party to. After all, that is what “they” do.
IANAE, once again you are busted. Go back to your Tower!
“Everybody sees what they want to see.”
Yes, that’s why everyone else can see the stack of dead horses (some even in fetal postions) around your water trough and you cannot.
But even as you close your eyes, how do you not notice the smell of those rotting carcasses?
“we don’t have minds willing to understand.”
IANAE, your snideness in the “we” is seriously misplaced. I am actively seeking to understand how MaxDrei contemplates having incongruent views on a matter that he posts on quite often (and in open disregard for understanding of a key difference that has been shared many times).
What I am not willing to do is close my eyes and say “I cannot see.” That may work for “you” and whatever royal “we” you are contemplating, but please, do not make a misrepresentation that my exchange places me in the “not willing to understand” camp.
Max, you need to bear in mind one key difference between our local law and yours – we don’t have minds willing to understand.
MaxDrei,
I need not scroll up to read Paul Cole’s recantation.
I am asking for you to take a stand based on your posts. You are the one that “demands” no evolving on patent eligibility (your post at 3:21 AM).
Choosing not to take a stand (thinking you can have it your way) simply is closing your eyes and saying “I don’t see.” That’s why I point out to you that this is intellectually dishonest. You cannot maintain your 3:21 AM position and then turn around and say you agree that Paul Cole is right and patent eligible subject matter is always evolving. By definition, you cannot have something “absolute” and “always evolving.” You must choose one or the other.
Reread my post at 8:35. Think about it. Then give me your answer, not Paul Cole’s. If you decide that you agree with Paul Cole, then please recant your 3:21 AM answer and supply an answer that is congruent.
Wishful thinking there Simple. Scroll back up to the top of the thread to read Paul Cole’s recantation on eligibility. Nothing to do with the state of the art, it is just that his view of “technical character” or “statutory subject matter” or “eligibility” (like the EPO’s) never stops evolving. Eligibility is drawing the line somewhere between inventivity in the fine arts and inventivity in the useful arts, and nothing to do with the content of last year’s patent filings. I think the distinction between fine arts and useful arts will remain, as long as there are some sentient humans around.
So I think I can have it my way, and I still don’t see that I’m having it “both ways”.
A bit of intellectual dishonesty MaxDrie, as you set an equation with, at the same time, “no ‘technological arts’ filter” but define this as “what is meant by ‘technical character’ is always evolving.”
What happens if you drop the word “technical” from the equation? Your statement becomes meaningless.
What then is technical?
You seek to say (in essence) that this is undefined because the term is always evolving. But above, you have “demanded” that patent eligible subject matter must always be constant.
You cannot have it both ways. This is not a matter of you “seeing” things in an EP sort of way; rather, this is a matter of you taking a firm stand on an issue.
Does patent eligible subject matter evolve (as the understanding of “technical” evolves), or does patent eligible subject matter not evolve (as “You should not be sucking novelty and obviousness into the discussion of eligibility“)?
Which is it? You cannot be a little bit pregnant.
Difference from Monday to Tuesday rather overstates the situation and thus loses sight of the evolution of eligible subject matter.
This is a nuanced view which is quite apart from novelty and obviousness.
You see the trees fine, but cannot see the forest.
You have set for yourself a tautology as eligible subject matter being an absolute thing rather than answer why.
A note to Simon,
Just so you know as a general rule I have asked for Green cards and then brought them back filled out. So knowing you already received my mailing and I haven’t received my Card back… Add it up!
And Louwilda told me ohhhhhhhhhh it’s empty. but WIER sent it to me in the file that Larry Lynn opened when it was addressed to me!
I meant March 2, 1997 And trouble is that is what i wrote. … must be a mouse
AHAHHHAAAH So the March 2, 1997 Document that I signed that just had a name and date to sign the rest being empty… was never mailed back by Harry Moatz… just an empty sheet..That must be it. Something was added to it and it must have gone to the Trademark side destroy my Trademark. But if my only Trademark I filed was changed in December without my knowledge or consent… I suggest that your Dime has a hole in it. Sort of like a Japanese coin.
OFF TOPIC
If I sent proof to Harry Moatz as to who was My Atty. on March 3, 1997 Having just signed an almost empty sheet that only had a signature and date to fill out..And i was told to fill it out. And Harry sent me back an empty sheet when he sent me back ( by mail) the 10 pages I faxed to the OED. and the March 2, 1996 Document was not in the mailing. But a sheet with some black marks was included in thew mailing. and all the other pages went through. Do you think he did that for a reason? And the Trademark side being separate from the Patent side… Why would Harry Moatz send me back an empty page when the others were very readable? Do you think maybe it was empty because it was now on the Trademark side of the USPTO? And maybe their was something added to the March 2, 1997 Page I was told to sign and Date? Would that be a crime?
Why “wrong”?
1. The EPO grants business method patents every week
2. The EPC takes claims as a whole
3. There is no “technological arts” filter in the EPC.
4. There is no machine or transformation requirement in the EPC or in the jurisprudence under it.
5. Process is a separate and independent category in the EPC.
The EPO Boards of Appeal are using the mantra “technical character” as shorthand for the subject matter that Art 52 EPC reveals as “statutory”. The EPO has no Doctrine of Binding Precent, so what is meant by “technical character” is always evolving.
Not only could the Judges in the USA “learn something” from the EPC, but they are actually doing so. Just look at the content of the stream of decisions they are issuing, and tell me where their evolving jurisprudence contradicts that of the EPC.
But then I would see it that way wouldn’t I?
To all Actual Inventors and the Patent Professionals that serve them. I would like to offer these words of encouragement inspired by the late Mahatma Gandhi.
First they ignore you
Next they laugh at you.
Then they attack you.
That’s when you wipe the floor with them!
Wrong Maxie:
Time may change the law. But as it stands now there are laws that do exist and we must respect and follow here in the America.
1. Business Methods are Statutory Subject Matter.
2. Claims must be taken as a whole.
3. There is no technological arts requirement in the Constitution or the statute.
4. There is no machine or transformation requirement.
5. Process is a separate and independent category.
These are the clear, precise well established canons of statutory subject matter for patents in the USA. Indeed, the EPO, could learn something from our laws.
It is not just me and Ned. It’s also Paul Cole, whose assessments I respect.
Everybody sees what they want to see. Time will tell.
Why an absolute thing? Because, otherwise, one finds oneself arguing eligibility relative to the state of the art, different on Tuesday from what it was on Monday. You should not be sucking novelty and obviousness into the discussion of eligibility.
Where are claims 33 and 36?
Where does this “put it into a box” requirement come from?
How “reasonable” is that?
“run tests, etc.,”
This can be done currently – with Nuijten’s work. And it can be done reasonably.
You have not “answered” the question of what is the dividing line between “transitory” and “nontransitory.” All you have said is that one should be reasonable. This says nothing about where that “reasonable” line is. My answer with Nuijten paints a very reasonable line. But you are standing on the wrong side of that line.
Why does Max keep saying EPO law is the same as US law? Maybe he listens to Ned too much.
::Shrugs::
Leo Bloom
On one of your links, Mr. Wheeler says:
“I think that allowing patents for software and business methods was a mistake; patents were historically not allowed to cover general algorithms and business methods for a reason.”
Leo it is my opinion that people that make such statements are ignorant of the fact that the very first patent was a business method.
They are ignorant of the fact that every patent ever issued at its’ core is a process and is essentially directed to a business method.
Methods of doing business, be they software, financial products or some other combination of the statutory categories are the very reason for the existence of patents!
As I said before, there is a reason the Patent Office is under the commerce department.
These applications/patents should have been rejected/invalidated under 102/103.
Good question. I think I just answered it elsewhere.
But WRT an article of manufacture, I think it needs to last for a time sufficient for the courts to determine whether the defendant made used or sold the article: run tests, etc., on the thing itself.
OK, but can you put them in a box?
"Are you really saying that anything "transitory" is not patentable?"
As an article of manufacture, sure.
Now, given that everything exists for a time and ceases to exist, I suggest that we have to reasonable in how long the thing has to exist. If it last less that an instant, though, clearly we are not talking about anything that can be physically packaged and sold.
What is the dividing line between “transitory” and “nontransitory”?
I am pretty sure that signals created and sent out from the very first radio broadcasts are still in their “fixed” forms, traveling through space…
“Signal are not patentable as articles because they are not fixed. They are transitory.”
Are you really saying that anything “transitory” is not patentable?
How long do you have before that computer in front of you becomes “transitory”?, that desk? that wall? that building? that anything?
Everything is “transitory.”
The display is a physical output and, IMHO, significant, just as the data coming from a physical source. As a whole, the process claimed in Abele claim 6 was just like the process claimed in Diehr: inputs, output and a novel algorithm in between.
It might be helpful to consider the claims themselves and the holding of the court:
“5. A method of displaying data in a field comprising the steps of
calculating the difference between the local value of the data at a data point in the field and the average value of the data in a region of the field which surrounds said point for each point in said field, and
displaying the value of said difference as a signed gray scale at a point in a picture which corresponds to said data point.
6. The method of claim 5 wherein said data is X-ray attenuation data produced in a two dimensional field by a computed tomography scanner.
We conclude that claim 5 is directed solely to the mathematical algorithm portion of appellants’ invention and is, thus, not statutory subject matter under § 101. We reach the opposite conclusion with respect to claim 6.
The method of claim 6, unlike that of claim 5, requires “X-ray attenuation data.” The specification indicates that such attenuation data is available only when an X-ray beam is produced by a CAT scanner, passed through an object, and detected upon its exit. Only after these steps have been completed is the algorithm performed,8 and the resultant modified data displayed in the required format.9
Were we to view the claim absent the algorithm, the production, detection and display steps would still be present and would result in a conventional CAT-scan process.”
“You have said as much in that your views of signals as not being “manufactures.””
I beg to differ. I beg strongly to differ.
I agree with the analysis of the Federal Circuit that the physicality of the signal is not an issue. It is the fact that the signals have no permanent presence and are transitory.
Now, you might think this wrong, but the rightness or wrongness does not depend on physicality but on the signal not being fixed, i.e., non transitory.
“The court said it was not insignificant post solution activity — contrasting the situation from Flook.”
I asked this for the contrast. Are you saying that you want mere display to be both significant and insignificant post solution activity? Choose a side and defend.
“The numbers themselves were not the invention.”
No one said this. This response has no point.
“There is a difference between the two cases.”
You are not making your case with your conclusory statements.
Are you saying he displayed numbers in Abele were not old?
The numbers themselves were not the invention. In Abele, it was the manipulation of the data from the Cat scan that was novel, and it produced a new result.
In Prometheus, everything was old but the meaning of the numbers on the report.
There is a difference between the two cases.
From a patentable subject matter point of view, the real question is whether information is patentable.
"Why? Isn't "display" merely post solution activity?"
The court said it was not insignificant post solution activity — contrasting the situation from Flook.
“The problem with Prometheus is all this is old”
Are you saying he displayed numbers in Abele were not old?
“The claim did not simply end in a number, but the display of a number.
This is very important.”
Why? Isn’t “display” merely post solution activity?
“where the line falls to be drawn is pretty much the same in the USA and in Europe”
Except it is not. Our Supreme Court (and our Congress) has made this, well, obvious.
“within a “field of technology” aka “the useful arts”
Old canards that won’t go away.
Not really. I think Rader made a big point about the human interactivity in Ultramercial. Here, in Abele, a claim ends in the display of a number, a number produced from real measurements where the measurements were transformed into digital values, manipulated in a program, and then displayed for a human to see.
The claim did not simply end in a number, but the display of a number.
This is very important.
Circling back to Prometheus, it appears that the Prometheus claim may be patent eligible under this reasoning because it produces a report with numbers on it. The problem with Prometheus is all this is old, and the only difference between the claimed subject matter and the prior art is the particular values of the numbers.
The part in Abele footnote 9 about the claim simply ending in a number without any hint that the number be used for anyhting has to be wrong. This seems to fly in the face of Flook.
Nice circular logic there.
Here’s the conversation…. You have a WHAT? CALUNNNK… For those who don’t understand Calunnnk that is (Hang up.) And then he used someone elses Dime.
I probably don’t even have to mention this but I will because I mentioned it so many times before. Nine days before I even signed anything… Then Four days later, then then Five Count em five days after that… and then perish the thought. Now that is three things done to speed things along. And two of them were done on who’s Dime? It wasn’t yours.And the third was surely to Harm!
“And whether a crime or not, it’s just plain wrong.”
Hey bro I didn’t ask you to spread your nonsensical made up “beliefs” about quantum physics. Yet whether it is a crime or not, it’s just plain wrong.
“Well, that would up to an attorney to decide”
When he gets around to deciding that it is a big ol’ fat nothing do let me know, I need all the lulz I can get.
“Maybe identify theft, ”
Lulz.
“slander,”
“libel,”
“harassment”
“online stalking. ”
Lulz, lulz, lulz and o, lulz.
In any event, David, go ahead brosensky. Also, keep on confirming that I was right. Don’t forget tho:
link to google.com
“and his business, reputation and name”
You don’t have any business reputation or name bro. Sorry. But even if you did, I just made your business’s rep go up by about a point. From the 0 at which it rested.
“Worried yet?”
Nope. Lulz.
“If I were you I would leave Mr. Wheeler alone.”
I ain’t done jack to him yet old man, but if he, aka you, keeps up this ridiculousness then I may have to.
“Oh and do you wish to take the same challenge I offered to Ned?”
No ya tard, nobody wants to take your “challenge”. Or pingerdoodle’s “challenge” or NAL’s “challenge”. When will you tards learn?
” If so post your real name, and office number. I will call you and give you mine as well. ”
I already have yours ya ar se. Whois gave it to me. But if you want me to give you a call sometime I can do that, I have a practically untraceable number to use. Which belongs to a friend who will let me use it and knows I am to be kept secrit. SUPAR SECRIT!
“Or are you just a little toad hiding under a desk in the PTO?”
I’m actually just a homeless man who lives on the side of I-95.
Oh, you might be right, but it is dicta as the final step was a display, not just a calculation:
The FULL quote is this:
Indeed, the step of “measuring * * * line integrals of an incoherent propagation * * * through * * * a body” explicitly requires the same steps implicit in claim 6, viz., production of a beam and detection of the beam after it is attenuated by passing through a body. Moreover, while the display of claims 33 and 36 is only of a number, we have already disposed of the contention that the last step of a claim not be a number. See In re Taner,supra,overruling In re Christensen, 478 F.2d 1392, 178 USPQ 35 (CCPA 1973). See also n. 9, supra”
And note 9 says:
While we conclude that the resultant display is an important feature of the claimed invention, because it provides a more useful tool for a doctor’s diagnosis, for example, than would numbers alone, we do not rest our holding with respect to claim 6 on the “non-triviality” of post-solution activity. Even without the final step of displaying the data in a more usable form, “the fact that [the] equation is the final step is not determinative of the section 101 issue.” In re Richman,563 F.2d at 1030, 195 USPQ at 343 . Accord, In re Taner, No. 81-598 (CCPA June 10, 1982), overruling In re Christensen,478 F.2d 1392, 178 USPQ 35(CCPA 1973).”
But then if you actually read In re Taner, it says that a signal is physical, citing cases where traces are drawing with the signal.
The cases do not hold that the production of a number without more is patentable. That fact pattern was not before it.
Together, I submit, the claim as a whole must still produce a physical result, even if it is only the the display of a number.
“For me it is clear that patent-eligibility is an absolute thing”
Why?
Signal are not patentable as articles because they are not fixed. They are transitory. There is nothing in this to suggest that signals are not physical and that machines that produce signals are not patent eligible.
Who kidnapped the regular posters and substituted this stuff?
I thought I knew what I would be getting when I see postings from these consistent monikers? But this? This is not what I expected.
Paul–
The “meat” in your above post is the following passage:
“It seems to me that there is a test, and that the test is the extent to which the claimed subject matter is tied to the physical world.”
This passage contains two independent ideas:
1) There is a test. This concept is not precedential–of course in any decision there exists a test, which effects the statutorily-articulated principles.
2) The test is the extent to which the claimed subject matter is tied to the physical world. Without more, this is not precedential. Is it an exclusive test? Is it the MOT test? What kind of “tying” is required, and when? What is the required “extent” of the “tying”? This amounts to nothing more than a vague suggestion that there should be such a test, and that whatever that test actually is, the court feels that the claimed invention in this particular case wouldn’t pass it, if they knew or articulated exactly what that test was. A vague suggestion does not bind future tribunals in any meaningful way.
Plus, we’re straying too far afield. Now we’re talking about your translation of the opinion, rather than about the opinion itself. Sticking to the opinion, it states that “…abstract concept cannot be transformed into patentable subject matter merely because of connections to the physical world through deeds, contracts, and real property.”
In the first instance, every single patented invention is the “transformation of an abstract concept into patentable subject matter merely because of connections to the physical world”.
That leaves deeds, contracts, and real property as somehow suggested to be patent-inadequate “ties to the real world”, in this particular case. But WHY are they inadequate? The court presents no analysis or explanation, and merely refers to Bilski. Are they all independently inadequate? Are they all equally inadequate? Are they always inadequate? What is it about them that makes them inadequate? What IS abstract? Where do you draw the line between the “abstract”, and the “tie”?
This opinion affords no clues, nothing that can be specifically binding upon the consideration of a different set of facts. Sure, if asked, I could write a brief that could show that this holding should be applied in another instance–but it would be “weak sauce”, as they say. The ultimate reliance would be not on this opinion, but on Bilski.
This opinion is simply business-as-usual, and independently contributes nothing to the general patent firmament.
See also
link to patentlyo.com
for Prof. Duffy’s careful contextual analysis.
You have said as much in that your views of signals as not being “manufactures.”
If signals are physical, and signals are constructed “by man,” how are they not manufactures? The notion of “tranistory” simply does not logically wash as a distinguishing point.
The number, please provide a cite to your quote
Section D of the Abele case you provided.
Nice one Paul. Social engineering. I need some time to digest that. What straightaway comes to my mind though is that the West had the Enlightenment and the rest of the world didn’t. So the West can debate and criticise those who run society, and propose innovations in Government, while elsewhere that isn’t permitted. If the patent system could promote the progress of the Enlightenment to these unfortunate still unenlightened parts of the world, that help to the pursuit of happiness would be such a vindication of the value of a functioning patent system as to see off all those who want it abolished.
This is a belated comment on later posts, and a confession that to a considerable extent I have changed my view.
What caused the change? I will confess that when I wrote the various postings that I have made I had looked only at the decision, which seemed straightforward and understandable on its face. Just now I downloaded and looked at the patent in issue and have to confess that writing about a case without seeing the patent in issue is always a bad mistake. I am also influenced by other postings on this subject.
When you look at the patent in issue you find that it is a well thought out and detailed document, not something that should too easily be dismissed as a mere triviality. Should people with such detailed and well thought-out proposals be driven entirely from the patent system?
If you go back to the US constitution you find reference to the useful arts. In the days of the Founding Fathers I am not sure that the organization of society would have been numbered amongst the “useful arts”, even though the proper organization of the infant Republic was a matter of deep concern to them. But in the more than two centuries since that time economics and other social sciences have moved towards being genuine sciences although their results admittedly do not have the certainty and clarity of results in physics. But the wider question clearly arises: is it in the interests of society to drive those who make innovations in the social sciences from the patent system?
Consider the infant automotive industry as an example. It was made possible by advances in internal combustion engine design, metallurgy and improved machine tools e.g. centreless grinding machines. But equally would automotive manufacturers ever have achieved the success that they did without the social institution of hire purchase which made it possible for customers to purchase the products of their mechanical ingenuity and attractive for them to do so? The answer plainly is not, and it must be acknowledged that our social institutions and our technology go hand in hand.
The proper organization of corporations and business has been a bone of contention between left and right on the political spectrum for centuries. If a person devises a scheme for improved organization of a corporation which better balances the interests of staff, managers and shareholders so that the organization works better as a whole, is that person not deserving of a reward? Some of our social institutions are notoriously conservative (the small c is deliberate) and innovation leading to objectively better performance is to be encouraged.
So there is a question that is fit to go to the Supremes: are the social sciences and the organization of society now to be numbered amongst the useful arts so that inventions in these fields should in appropriate circumstances not be dismissed as mere abstract ideas?
It may be considered that the number of instances of this kind is likely to be few (but in the early days, it was thought that the World needed only one or two computers). It is to be hoped that if a case of this kind goes back to the Supremes, it will be a deserving case.
For me it is clear that patent-eligibility is an absolute thing, unaffected by day to day expansion in the state of knowledge, the state of the art.
We can delight in the thought that there are an infinite number of ways that something is inventive” or “obvious”. That planet Earth spins on an axis inclined to the plane of orbit around the sun was for a long time not obvious. People instead ascribed the seasons of the year to Demeter or Freya. There is however only one kind of inventive activity that is relevant to patentability namely inventiveness within a “field of technology” aka “the useful arts”. Cunning ways of drawing up legal documents are not patentably inventive, and nor is a novel way of trading in them. Call it “not tied to the physical world” if you like, but I agree with Paul Cole, that the background thinking where the line falls to be drawn is pretty much the same in the USA and in Europe
Here is the earlier posting referred to:
“The ratio decidendi, so far as I can see, is that the claimed subject matter is insufficiently tied to the physical world, as in Bilski. It seems that the test is a matter of degree where it is impossible to define precise boundaries.
It was pointed out in Bilski that commodities and money were insufficient ties to the physical world, and the same was held to be true in the present case for deeds, contracts and real property.
If we look at the recent cases, however, there are instances demonstrating a common pattern:
Bilski – risk hedging
Cominski – mandatory arbitration resolution
Schrader – bidding at an auction
Dealertrack – applying for credit
It appears that if the claimed subject matter is entirely in the field of business administration, then the claim is likely to be held unpatentable. At the risk of provoking the more excitable amongst the contributors to this blog, the position in Europe is the same, and it appears from current US jurisprudence that our prohibition is not wholly irrational.”
It seems to me that there is a test, and that the test is the extent to which the claimed subject matter is tied to the physical world. As is apparent, it is a somewhat subjective test, but that seems to be the key issue in the case.
I will confess that I looked less closely into post-solution activity because that interested me less.
As you probably know, in Europe we have an “any hardware” approach. So if what is claimed is being done on a computer or is recorded in a ROM, then it is ipso facto patentable subject matter. That does not help an applicant as much as might be supposed, because anything in the claim which is of an excluded nature e.g. a business method is not taken into account when assessing inventive step.
defamation lawyer : “Just curious, AI, but why would Mr. Wheeler’s business, reputation, and name be harmed if patent professionals believed that he was the poster known as AI?”
Well, thats why I said we would need to ask an attorney. But let’s say 6 and Ned Heller were able to repeat the lie enough that people reading the blog actually believed for a fact Mr. Wheeler was Actual Inventor on Patently O.
Let’s say they then go on to defame Actual Inventor to the point that any association with that name is considered harmful. That certainly could hurt Mr. Wheeler’s business, reputation, and name
Then let’s say that someone using the name Actual Inventor did something illegal or harmful on this blog or elsewhere, again it might very well in the mind of the public be perceived that it was Mr. Wheeler when indeed it was not.
I don’t know if any of that is a legal case against 6 or Ned but it certainly is unethical for them to orchestrate, to say the least.
Especially when 6 and Ned are only trying to divert attention from their losing positions on the law.
6 can’t cite any Supreme Court precedent or a single case for his preemption doctrine.
Ned can’t find a legal for basis or cite a single case for claiming that:
The MOT is still the sole test or even the controlling test for 101.
Business methods are not statutory subject matter.
Claim dissection in any form is allowed at 101, 102, or 103.
Or that useful arts, as used in the Constitution only applies to machines and transformation from the 1800’s.
Ned, 6, and the like are frustrated beyond belief and angry because they have been beaten in the Courts and on this blog for many years now.
So they are desperate to try anything to gain some traction for their causes and pet legal theories. Even at the risk of harming an innocent person’s reputation.
And whether a crime or not, it’s just plain wrong.
…if he can prove you made some of the 30,000 patent professionals that read this blog believe your false statements and his business, reputation and name has been harmed as a result.
Just curious, AI, but why would Mr. Wheeler’s business, reputation, and name be harmed if patent professionals believed that he was the poster known as AI?
Ned: “Let’s see if AI begins to complain about re tarded examiners.”
Excuse me but that is 6, insulting language. I never say such. But since you still want to engage in this outing of commenters craaap, why not just take my challenge to debate the law under our real names?
This is what you brag about right?
This is why you say you are more credible than the other attorneys right?
So come on, take the challenge Ned.
You Gutless Wonder.
I’ll get you started, Paul:
Is it that “deeds, contracts and real property are insufficient ties to the physical world [to impart patentability]”, and if so, what precisely do you understand that to mean?
Hey Ned, since you still want to harp on this outing of commenters, and posting under your real name non sense, are you going to take up my challenge to debate patent law cases under our real names?
We can start with Bilski and Business Methods. Come on. I will wipe the floor with you again! Only this time in our real names.
::waiting::
Paul–
I’m disappointed in your response.
Here I did your earlier post the greatest hono(u)r by responding in a thoughtful and detailed manner, and doing much legwork deconstructing the opinion, and what do you offer in return?
A vague reference to what is likely a yet more vague post.
I ask you once again: precisely WHAT do you believe in this decision is to be considered as binding upon future panels or courts?
As another matter, I acknowledge and accept your own, as yet unstated, acknowledgement of your errors concerning the informational content of my earlier post, and that the post should not have been made.
Actually, according to PAIR, the application was just forwarded for examination. Let’s see if AI begins to complain about re tarded examiners.
Hey, anon, the last time you posted a response to me asking about question 3, I said I would be happy to respond.
Then I got bombarded by people who demanded that I respond without even knowing what the question was. So, I simply stop reading the posts for a time in disgust.
If I deleted a post from you where you included question 3, I apologize.
I reiterate that I look forward to discussing patentable subject matter with you, or its 102/103/112 variations, regarding computers and the like. Simply fire away.
Ned: “AI, I find it hard to believe that think that your interpretation of Bilski was what Bilski actually said. This is where you constantly go off the rails and into the weeds.”
No, Ned this is where you demonstrate to the world that you are a notorious intellectual dishonest beach. You know I did not post any interpretation of Bilski or even express an opinion on the abstractness and math issue, yet you continue to lie and say I did.
So F you on that.
Oh and how about the challenge to debate case law here under our real names?
Why so called quiet on that?
Oh and why did you cut and run on the DCAT posts up thread?
No response to that eh?
Until you straighten up and show some honest and integrity I am finished with you.
Besides there are plenty of good attorneys here to kick you butt every time you get out of line.
Publius, I will back that up. You and I have indeed has some very respectful conversations. This tells me you are not AI.
AI, I have no idea of which of the sock puppets is you. However, I have had some reasonable and rational discussions with Publius. This alone tends to suggest that he cannot be you.
6: , and precisely what is it he’s going to sue me for .
Well, that would up to an attorney to decide. But I would think defamation for starters. Maybe identify theft, slander, libel, harassment, online stalking. I think some new bullying laws have been passed in the states he could get you on. Maybe he can get some good damages if he can prove you made some of the 30,000 patent professionals that read this blog believe your false statements and his business, reputation and name has been harmed as a result. Why Ned could be deposed and forced to testify against you. There might be issues with the PTO too. Worried yet? If I were you I would leave Mr. Wheeler alone.
Oh and do you wish to take the same challenge I offered to Ned? If so post your real name, and office number. I will call you and give you mine as well. Then we can post under our real names and debate the law on this blog.
Well, up for the challenge? Or are you just a little toad hiding under a desk in the PTO?
And here, NWPA, let me just give you something to cheer you up a bit. This is the filthiest dubstep of ever.
link to youtube.com
Enjoy it bro.
AI, I find it hard to believe that think that your interpretation of Bilski was what Bilski actually said. This is where you constantly go off the rails and into the weeds.
Everyone, including Dennis in the OP, and Stevens in the dissent, and it appears Rader and the rest of the Federal Circuit, recognize that the Supreme Court did not clearly explain why the claims in Bilski were abstract. Simply using math is not enough. That was not the point at all about claim 1. In fact, they mentioned that the concept of hedging described by claim 1 was notoriously old. Now, I ask you AI, why did they say that? What does novelty have to do with patentable subject matter?
“But, 6, come on. You at least pretend to be a reasonable person. Does trying to exclude a massive group of patents from 101 based on a judicial exception when Congress has clearly had many chances to act make any sense?”
Here’s the thing NWPA, I don’t really see it as excluding a massive group of “patents” from 101. I see it as excluding a massive area of “subject matter” from 101. And that I have no problem with. I’m sorry bro, I just really don’t. I feel like there are some things which are better off to leave unpatented so that we may enjoy innumerable different machines all performing that subject matter.
What is so unreasonable about wanting a lot of different machines all performing that subject matter? I don’t see that there is anything unreasonable about it.
And if we’re talking B claims, well they’re abominations in every single way you can imagine, so meh, I certainly don’t weep for them. Authors already have enough protection and if they need more then they need to go to congress not the PTO.
” I can tell you it is outrageous.”
Here’s the thing NWPA, I agree with you in so far as the situation is unreasonable or outrageous. But the opinions are most certainly not outrageous, indeed they are too conservative. But like I say the situation is unreasonable. People have been patenting this stuff for years. I blame the courts, the PTO and the congress for the mess a thousand times more than I blame any applicant that tried to avail himself of the situation. On the other hand, this is what happens when your government screws up. And I’m not a huge fan of government, so I’m always kind of glad when their screw ups eventually get fixed.
“Just read Diehr. The SCOTUS had a momeny of sanity and put into perspective what their judicial created exclusions were and why they should not be applied. They also said they could make it up and do it, but they would rather not be criminals ( I added that.) Obviously, the Cybersource 3 and Moore would rather be criminal like.”
I’m going to have to disagree with you on your rendition of Diehr. It was a fairly simple case and they really didn’t say anything close to what you are putting in their mouths.
But in any event, I’m sure Cybersource will work its way down into the examinertard training at the PTO soon enough. Gl with your litigation, I hope you get to appeal a lot and send up some cases for my lols.
I am curious though NWPA, have you not considered simply going back to work in the useful arts and just say f it to this controversial stuff? I mean, really, there are plenty of useful arts to work in where 101 isn’t constantly threatening to kill all your work. Why not just work there?
I lulzed, and precisely what is it he’s going to sue me for AI tard?
Ned: “the Supreme Court did not say what you said it said. That was your interpretation of what they said. ”
AI: WTH?
What did I say the Supreme Court said?
What is my so called interpretation of what the Supreme Court said?
All I have done is cite “exactly” what the Supreme Court said in Bilski about his claims being math and abstract.
I also reminded you of the FACT that you play the f ool and pretend you do not know what the Supreme Court said about why Bilski’s claims were abstract, when indeed you do. Thus you are a liar Ned.
Ned: “What you are missing is the difference between Diehr and Bilski. In Diehr, the math was applied to change a physical result. That was not the case in Bilski.”
AI: Excuse me but I am not arguing that point one way or the other. What I want you to do right now is admit that the Supreme Court did give a reason for finding Bilski’s claims abstract, regardless of what you think about the reason.
Basically; there is no there, there.
But no one’s going to define, “there.”
Investment real estate exchanges are not actually tax-free; they are tax-deferred.
Tax liability on any gains remain; but they don’t have to be paid at the time of exchange.
And one could fairly argue that such transfers are no more tax “loopholes” anymore than any other tax deferral and tax write off laws are.
Ned,
First, please stop calling me David. I am not this person. You and 6 show no integrity to go to a real persons web site, hijack their name and proceed to defame them this way.
Second, If real names are so important to you then post a link to your real web site and law firm. I will then call you up and confirm. And follow up by posting my real name and web site. And you and anyone can call my office and confirm. The numbers should be public anyway.
We can then proceed to debate any law case you want on the merits on this blog under our real names.
So how about it? Up to the challenge?
I have an earlier posting on the subject on this blog
However, David, the Supreme Court did not say what you said it said. That was your interpretation of what they said.
What you are missing is the difference between Diehr and Bilski. In Diehr, the math was applied to change a physical result. That was not the case in Bilski.
Consistency, have I ever said that signals are not physical?
Correction of Above: own wishful views of what he thinks the “Law” should be, with actual Supreme Court holding. In doing so he shows he has no respect for the commenters here and no respect for the law, as cited below.
Leopold Bloom : “I think that allowing patents for software and business methods was a mistake; patents were historically not allowed to cover general algorithms and business methods for a reason.”
Does that really sound like AI?”
LOL What would be ironic is if Mr. Wheeler gets wind of this and decides to sue 6, and in the process 6’s identity gets exposed.
That might even be grounds for being terminated from the PTO, if such thing can even happen to a Patent Examiner.
anon: “It is sad to see that Ned indulges in the 6 outing party, while still neglecting to address the points I carefully laid out, following his request to set them as an email to him and that he promised he would answer.”
Sorry to say but this is what one gets when you treat a dishonest person with integrity and respect.
If Ned lies, I am going to call the SOB a li ar, not talk to him about spitting on the sidewalk.
I Ned dares post any of his Bilski BS, I am going to cite the case and kick his butt up and down this blog.
You can never be too hard on an unethical commenter like Ned.