By Jason Rantanen
Dealertrack v. Huber (Fed. Cir. 2012) Download 09-1566
Panel: Linn (author), Plager (concurring in part and dissenting in part), and Dyk
The Federal Circuit's opinion in Dealertrack adds to the evolving law on subject matter patentablility of computer-related inventions. It should be read in connection with two other recent decisions in this area, Ultramercial v. Hulu, 657 F.3d 1323 (Fed. Cir. 2011) and CyberSource Corp. v. Retail Decisions, 654 F.3d 1366 (Fed. Cir. 2011).
At issue was the subject matter patentability of claims 1, 3, and 4 of Patent No. 7,181,427. Claim 1 is representative:
1. A computer aided method of managing a credit application, the method comprising the steps of:
[A] receiving credit application data from a remote application entry and display device;
[B] selectively forwarding the credit application data to remote funding source terminal devices;
[C] forwarding funding decision data from at least one of the remote funding source terminal devices to the remote application entry and display device;
[D] wherein the selectively forwarding the credit application data step further comprises:
[D1] sending at least a portion of a credit application to more than one of said remote funding sources substantially at the same time;
[D2] sending at least a portion of a credit application to more than one ofsaid remote funding sources sequen-tially until a finding [sic, funding] source returns a positive funding decision;
[D3] sending at least a portion of a credit application to a first one of said remote funding sources, and then, after a predetermined time, sending to at least one other remote funding source, until one of the finding [sic, funding] sources returns a positive funding deci-sion or until all funding sources have been exhausted; or,
[D4] sending the credit application from a first remote funding source to a second remote finding [sic, funding] source if the first funding source de-clines to approve the credit application.
On appeal, the CAFC agreed with the district court that these claims are "directed to an abstract idea preemptive of a fundamental concept or idea that would foreclose innovation in this area," and thus are invalid under 35 U.S.C. §101. In its simplest form, the court reasoned, the claimed process explains the basic concept of processing information through a clearinghouse. "Neither Dealertrack nor any other entity is entitled to wholly preempt the clearinghouse concept." Slip Op. at 35.
Nor was the link to a computer sufficient to limit the claims to an application of the idea. "The claims are silent as to how a computer aids the method, the extent to which a computer aids the method, or the significance of a computer to the performance of the method. The undefined phrase "computer aided" is no less abstract than the idea of a clearinghouse itself." Slip Op. at 35. "Simply adding a computer aided limitation to a claim covering an abstract concept, without more, is insufficient to render the claim patent eligible." Id. at 36. In essence, the claimed process was akin to the unpatentable binary-coded decimal to pure binary conversion in Gottschalk v. Benson, 409 U.S. 63 (1972), and covered a clearinghouse process "using any existing or future-devised machinery."
This opinion completes a trio of recent opinions dealing with the patentability of computer-related inventions, the others being Ultramercial and CyberSource. In Ultramercial, authored by Chief Judge Rader and joined by Judges Lourie and O'Malley, the court concluded that a process for monetizing copyrighted products using a computer fell on the patentable side of the abstract ideas versus patentable application divide. Reaching the opposite result on the issue of abstractness, the CyberSource panel of Judges Bryson, Dyk (author) and Prost concluded that a method of verifying a credit card transatction over the Internet constituted an unpatentable process. In Dealertrack, the court drew upon the reasoning in CyberSource while distinguishing Ultramercial.
The court also addressed issues of claim construction and indefiniteness. Particularly noteworthy was the court's conclusion that "i.e.:" in the context of a patent-in-suit could not be read definitionally. Slip Op. 17-20.
Towards a more efficient judicial process: Writing in partial dissent, Judge Plager disagreed with the majority's decision to address subject matter patentability:
[A]s a matter of efficient judicial process I object to and dissent from that part of hte opinion regarding the '427 patent and its validity under §101, the section of the Patent Act that describes what is patentable subject matter. I believe that this court should exercise its inherent power to control the processes of litigation, Chamberes v. NASCO, Inc., 501 U.S. 32, 43 (1991), and insist that litigants, and trial courts, initially address patent invalidity issues in infringement suits in terms of the defenses provided in the statute: "conditions of patentability," specifically §§102 and 103, and in addition §§112 and 251, and not foray into the jurisprudential morass of §101 unless absolutely necessary.
Judge Plager appears to be thinking in the same direction as suggested by Professors Crouch and Merges in their recent article Operating Efficiently Post-Bilski by Ordering Patent Doctrine Decision-Making, 25 Berkeley Tech. L.J. 1673 (2010), in which they proposed that "the § 101 issue of Bilski be considered only when doing so is absolutely necessary to determine the validity of a claim or claims in a patent. We believe any claim that can be invalidated under one of the less controversial and less complex requirements for patentability—§§ 102, 103, and 112, for instance—ought to be disposed of without considering subject matter patentability. In other words, the Bilski issue should be avoided wherever it is not strictly necessary."
Owning a software that is patented is not infringement.
Make, use, sell.
The quote from Ultramercial was to show that it was off topic.
We both now seem to agree that Ultramercial does not support the patening of software per se.
“which is completely irrelevant”
obviously not. (and it is clearly not merely a matter of the sequence; more smoke)
But perhaps so in your imaginary world…
It matters very much if the processing is beyond the capability of reasonable human action.
Of course, because adding a column of numbers is non-statutory, but adding a million columns of numbers is statutory because you’d like to have the answer in half an hour. That makes perfect sense, doesn’t it?
Computers don’t do anything we can’t do. They only do it faster, which is completely irrelevant to whether the actual sequence of steps they’re carrying out is statutory or inventive.
“In the imaginary world where…agree on everything, anyway.”
I’m pretty sure that paid advertising has nothing to do with whether or not the named parties “agree on everything”
“nobody cares (or should care, at any rate) whether the data processing is done on paper, in one’s head, or in a computer”
Doesn’t the (otherwise ill-begotten) Cyborsource case hold otherwise? It matters very much if the processing is beyond the capability of reasonable human action.
As to interfaces that go beyond retina or muscle twitches, see (for example):
link to computer.howstuffworks.com
link to csmonitor.com
link to gizmag.com
when computers track retina and muscle twitches as sources for instructions?
You mean, when a human being or part of a human being becomes a computer-readable medium? Won’t that be fun for Beauregard claims?
Of course, nobody cares where the instructions come from, just like nobody cares what the data represents, and nobody cares (or should care, at any rate) whether the data processing is done on paper, in one’s head, or in a computer.
Still, I’d be pretty impressed by the guy who manages to invent the interface that can track retina and muscle twitches and turn them into computer-executable instructions. Give that guy a patent for sure.
Sockie knows “lots” of “crazy people” who “might” pay MD, IANAE, Ned or me to post comments here.
Nobody could have predicted that he’d be oblivious to the implication that “lots” of rational people would be willing to pay a million different names to disagree with us.
In the imaginary world where Max, Ned, Malcolm and I agree on everything, anyway.
Ned, this nonsense of yours about a configured computer is absurd. One skilled in the art would recognize that a general purpose computer is configured to run the software by the software being loaded or readily available for a user to execute the software. Why in the world are you pushing this point? I can only think your motives are not good.
$$ money people: I notice that ole MM$$ didn’t say he doesn’t get money for posting, but merely said please list a person I may be getting the money from. Well, MM$$ as if the lobbying groups for the pharma industry don’t spend many millions each year for patent legislation that is favorable to the pharma industry and as if it is not well known that the pharma industry is hotile to electrical arts and in particular to information processing and has proposed that the laws be bifurcated for the two groups.
Make a blanket statement that you aren’t getting paid to post.
A patent is issued on a tire. The tire is put on a car. The car is stolen and rests in your garage. You do not drive the car. You do not use the tire.
Does your possession alone suffice to make you an “infringer”?
You have a computer with a partioned disk. One partition has firmware that operates and meets a patent claim. You do not use that partion.
Does your possession alone suffice to make you an “infringer”?
You have a device that has many features, some of which are patented. You use only those features that are not patented.
Does your possession alone suffice to make you an “infringer”?
Note: the last example can have in the alternative (and equally so), features based solely in mechanical physical items, features based solely in firmware, or features based solely in software.
Do you realize how empty your proposition is?
correction:
The en banc decision is pre Bilksi.
“No, the question then simply becomes “what is your definition of “reconfiguring”?” And that is all.”
Correct 6, but not in the manner that you are thinking of. It is not a matter of making up a definition we “like.” It is a matter of accepting what actually happens. The definition we “like” is harmonious with the rest of the Useful Arts. Why would you think otherwise?
As for your last question, (knowing jack about), you assume that no one does. This, of course is an errant assumption, driven, no doubt, by your desire not to understand what is entailed in the art.
Ned: Crusade, then what is the objective?
AI: Um… Your Crusade! It need no further point than to continue to repost the same old arguments that have been beaten with case law by numerous commenters.
You have a one man Holy War Ned. That’s your patently-O legacy.
Ned: Passing the MOT test is the clue
Ned, you do know the Court never held such, nor made any such ruling, right?
Now, do you even care?
Don’t get too exicted 6.
There is still a working majority on the Supreme Court that supports Diehr and thus Rader and company’s enforcement of the Diehr case.
Your only hope is if Obama wins and replaces Scalia or Thomas.
Until then do your job and start issuing patents for claims that pass the DCAT!
So stop “making shtt up already” I imagine would be the correct response to dreamer.
But seriously Ned, why can’t you simply admit what the law is today as opposed to making it up?
Are you really that much of a subversive?
Ah, so it is all explained by the prevalence here of “crazy people” and “insanity”, lots of it. How kind of you to remind me of that. Thanks for the tip, I’ll hold it in mind, from now on.
The en banc decision is post Bilski.
Think about it and report back when you recognize the siginificance (especially in light of your off comment at 2:37)
Like MM ever gives answers.
“The question then becomes, CAN you actually achieve the same result without reconfiguring the machine?”
No, the question then simply becomes “what is your definition of “reconfiguring”?” And that is all. Pro-software people make up a definition they like, and the rest of us simply use the definition that exists for the rest of the Useful Arts. The two definitions are somewhat different.
Oh, and I’m sorry, the question is also whether or not a reconfiguration which nobody knows jack about matters at all for the purposes of patent lawl.
The obvious answer MM is that any such action, such as tracking retina and muscle twitches, have nothing at all to do with a “purely mental” step.
I think that you would have a greater concern with advances in electromagnetic field detection and induced pattern creation.
As for the lame argument from the CAFC, I would be more concerned with your own lame arguments. Not to jump on the bandwagon, but your posts are pretty much useless on most every topic. I wish that you would realize that you actually incite the “sockie” mob and change your posting style.
Ned,
You also complain about strawmen, and yet your quote from Ultramercial has absolutely nothing to do with the topic under discussion.
Why? All you are doing is pursuing your own tangeant thought rather than focusing on the more pertinent facts of the case (at least pertinent to the immediate discussion).
There was a really good quote on what it means to employ a strawman a little while ago, and this type of manipulation fits that description.
controlled interaction with a consumer via an Internet website, something far removed from purely mental steps
How far will those “interactions” be removed from “purely mental steps” when computers track retina and muscle twitches as sources for instructions? Because that’s right around the corner, if not already here. Then what lame argument will the CAFC use to justify the patenting of computer-implemented “revenue collecting” bullshxt?
Ned,
Your answer to me is quite disingenuous.
You complain of “surface treatment,” yet do the same with my response. Ignoring the basic facts is no way to make a case.
Lots of crazy people out there that might pay you.
Sockie knows “lots” of “crazy people” who “might” pay MD, IANAE, Ned or me to post comments here.
Nobody could have predicted that sockie wouldn’t be able to actually name one of these “crazy people.”
Remote, at least you tend to agree that the software must be present all the time to be considered part of the machine.
Next we will discuss automatic execution if you choose to. Otherwise, who is the infinger?, the person who owns the computer but who never calls for the execution of the software. Suppose he bought the computer from the store with the software preloaded, but he never in fact uses it. How is he an infringer?
Can you be a copyright infringer simply by owning a copy?
Can you be a infringer of a performance right if you never perform.
Can you be an infringer of a distribution right if you never distribute.
Can you be infringer of a software patent if you never use the software, never make the software and never sell the software?
Just, OK, the proposition is that Ultramercial supports the patentability of programmed computers. I said, I thought Ultramercial had a lot of interaction with user. I was hit a rejoinder to which I made the observation that Ultramerical facts is what I was talking about.
Now you want more. Then here it is direct quote from Ultramercial,
“Finally, the ‘545 patent does not claim a mathematical algorithm, a series of purely mental steps, or any similarly abstract concept. It claims a particular method for collecting revenue from the distribution of media products over the Internet. In a recent case, this court discerned that an invention claimed an “unpatentable mental process.” CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1370 (Fed.Cir. 2011). The eligibility exclusion for purely 1330*1330 mental steps is particularly narrow. See Prometheus Labs., 628 F.3d at 1358 (noting that claims must be considered as a whole and that “the presence of mental steps [in a claim] does not detract from the patentability of [other] steps”). Unlike the claims in CyberSource, the claims here require, among other things, controlled interaction with a consumer via an Internet website, something far removed from purely mental steps.”
“pass the flook inquiry”
You do understand that Flook has been modified?
A panel relying on an en banc decision? SAY IT ISN’T SO! So far as I’m aware they’ll need to begin the dismantling at the en banc level if they even can there, and appropriate arguments will likely need to be made to force the issue in a suitable vehicle. Otherwise it’ll fall to the USSC to do their job for them … as always.
“They think this is looney question”
That’s because it IS a looney question.
What part of “just like any other component” do you not get?
What part of “performs exactly like firmware” do you not get?
Someone points out to you that the software IS loaded on a machine and not typed from scratch everytime you want to use it and off you go into some incomprehensible accusation of strawman. You want a strawman? How about your insistence on automatic execution? Why is that even being discussed? That has NOTHING to do with patentability or whether something is a new machine or not – NOTHING.
More like Rain man for you.
The computer sitting there experiment was put forth long ago (by Ping I think). Funny you failed to address that at that time. I would love to see you with two computers, identical pre-software-loaded and then have you attempt to USE the non-loaded machine in the same manner as the loaded machine. It wont work, even though you can sit there pounding your head onthe keyboard in frustration and repeating your magic word mantra endlessly, mindlessly as if the words themselves had clearly understood meaning “software does not change the machine” and “I don’t think so. No. Definitely not.”
You missed the punch line.
“They also had the opportunity to overrule Diehr and its forebears a long time ago. And they have not.”
Much to Malcolm’s chagrin, no doubt. Must be that c_onspiracy thing.
D_amm sockies.
“Until the Feds or the USSC get through dismantling Allappat.‘
You mean like they did in Ultramercial, which resets Alappat as THEE guiding case law on the subject?
Sort of like that dismantling?
Lots of crazy people out there that might pay you. No one ever said it would a worthwhile use of good money to do so. In fact, given the calibre of your posts, it might make for a colorable defense of insanity to pay you say anything.
Dollars pray tell. Who can you think of, that might think it a worthwhile use of good money, to pay me to write my stuff. Just one name will suffice. Who might it be? Come on, reveal your fantasy. Give me a laugh, do.
“and yet is abstract by supposedly precluding all uses of intermediaries. ”
That isn’t really what the judge meant if you take his comments in the context of this case. He’s talking about the use of intermediaries in the context of a case about clearinghouses being used to process loan apps.
“So, make sure that you fall under Allappat.”
Until the Feds or the USSC get through dismantling Allappat.
“This is nothing but a back door to try to exclude software from eligibility.”
Which is what people said it was bad when Benson came out. Remember? They were totally right.
“This panel seems to be saying if a wanker can come up with a way of summarizing your method in a sentence then you are abstract and fall under Bilski. The wanker test is what we should call it.”
I like your test sir. But I’m not sure if it is 100% in accordance with the lawl.
“”Concept of using the computer to assist the process.”
“Transformation off the table.”
“Machine doesn’t add anything, so fails the machine test.”
“What the computer imparts to patentability.”
”
It was a rather good oral arg wasn’t it? Kind of bizarre but still, really good.
“One is placed against a wall with a gun to your head and told to come up without why you are not an abstract idea.”
And then summarily shot. I love it. Soon this will filter down to the PTO and we can get on with business as usual without the “policy based BS” that pervades.
“The methods are being developed only on computers.”
So… what exactly?
Anonymous, of course.
The problem I have with trying to converse with these folks here is that they will not delve deeper than the surface. They want to repeat, endlessly, mindless words as if the words themselves had clearly understood meaning.
When a computer is executing software, it is THEN configured with the software. But this is a temporary phenomena only. One cannot with any reliability say that a new machine is created. It depends. It depends on whether the software is permanently present. It depends on whether the software is automatically executed when needed.
As to the first requirement. The folks here will not answer the question of whether a computer is configured if the software is in the same room as the computer, e.g., on a CD. They think this is looney question. But it is not, because it goes to the heart of the matter.
Is a computer that downloads and executes software from the cloud configured? I think not, at least not until the software is actually downloaded. But then, is this a configured machine or is it an old machine doing something new because it first must go get the novel software from the cloud?
If a computer does not load and execute software until commanded to do so by a human configured? This is itself and interesting question. Imagine a court proceeding where the suspect computer is sitting there. The patent owner’s attorney attempts to prove infringement by loading and executing the software on the computer. Who infringed, if anybody? I would argue the attorney who loaded and executed software. Not the owner of the computer.
So when I say that the software has to be present and must be automatically executed, I think I am getting to the essence of the difference between defining a new machine and using an old machine.
“Ned, the claims are to a method on a computer. ”
Methods are on computers now? Someone better tell Rader quick! He still thinks they’re intangible!
“It is, in fact, really not appropriate to apply it ever in these cases given that Congress has repeatedly had the opportunity to exclude this subject matter and has not. ”
They also had the opportunity to overrule Diehr and its forebears a long time ago. And they have not.
“he Fed. Cir. cannot (but apparently the Cybersource 3 are trying to) take the attitude that Congress is dysfunctional so we are going to do their job for them. ”
That’s the best attitude to have. I have to do their jobs for them some too 🙁
“There really isn’t a valid argument on the other side of this. ”
Except the one that is the law 🙂
“But, that motiation no longer exists for software implemented on a general purpose computer. ”
If we accept Benson as “the beginning” where the judicial exceptions were first applied in this context then GP computers already existed.
But even so, I’m quite curious how you figure that this motivation “no longer exists”? How so? Do we not still want “other machines” according to yours an Allappat’s view of “new machine” that is implementing the algorithm or equations or however the peabrains of the world want to characterize it? Because so far as I’m aware I still want “other machines” according to yours and Allappat’s view of “other machines” that implement disclosed algorithms etc. In fact, I want LOTS OF THEM.
“How does one advice clients on anything that has any software component? It is nearly impossible under case law like this. I put in interaction in the last application I wrote just to get under Ultramercial.”
Well hopefully you get yourself a 101 and we can watch that one go down in flames too!
” If the courts should mess things up more so that the Supremes will get involved, then the Office should really mess things up so the courts could have more shots to begin with.”
You’re welcome!
You’re asking a really simple question 6’s bane.
“So … if I add a processor (i.e., a machine) to one of the steps, then no preemption?”
All you have to do is consider whether the abstraction is has useful applications that do not require a processor. Then you do not have preemption.
That said, you then have to pass the flook inquiry into whether or not the preemption was avoided by simply adding on post solution activity or limiting the claim to a single field. In your case you seem to simply be limiting it to the field of computers. So you’ll probably lose at that stage either way.
“Unfortunately, Radar, Newman, et al. are also producing case law that makes it harder.”
Listen to this guy finally getting on board the 6 train. You’re absolutely right 6’s Bane, that is unfortunate. But, you’re not looking on the bright side. Without those like Rader etc. doing what they’re doing there is a chance that this issue would never make it to the USSC. With the circuit so obviously split the chances of it getting to the USSC are much greater.
Accusing someone of a strawman might be more effective if a strawman even had a whiff of being present.
As it is, this is just a lame and empty retort.
C’mon $$Ned, you can do better. At least pretend you don’t know what is going on (that’s much more plausible).
Haven’t seen the “What the Sam Hill” ploy in awhile.
Thanks $$Ned.
$$Ned has an offer for you, a really nice bill of goods.
No.
You are quite wrong. Clearly you have no clue as to the facts nor the law.
Night Wiper The methods/processes that are being developed are unique to the information age.
Because information was valueless prior to 1985.
Worst. Script. Ever.
Passing the MOT test is the clue.
"A old computer reconfigure to run new software" is…. an old computer …runing new software.
No, the facts in Ultramercial itself, no the facts in your strawman.
So?
6's bane, "So … if I add a processor (i.e., a machine) to one of the steps, then no preemption?"
Machine?
Preemption?
What are you talking about?
I like the designation, but only suggest a small change to reflect priority:
$$MM
$$IANAE
$$Ned Heller
$$MaxDrie
One of their other filthy little games is try and say that the computer is “just” a calculator so it addes nothing. Yes, a person could theoretically do any computation the computer does. So what. The methods/processes that are being developed are unique to the information age. They are sophisticated machines that are performing methods that have never been performed before and revolutionizing commerce and every aspect of our society.
The computer is a tool that has enabled the development of these inventions. The inventions are machines. Period.
Can’t wait for the $$ people (dollar people are the ones that get paid to sit and comment on these boards). MM$$, IANAE$$, etc.
Using 36 to hike 22 is all I need. A picture is worth a thousand Register able words.
Endless Geek:
This business of an old machine and new software is one of the games the criminal minds are playing. They want to circumvent Allappat and the slightest reason will get their tiny brains zooming. They don’t mind unfairly characterizing information processing inventions.
Just imagine what a horrible senseless mind would hold an invention ineligible for patentability under 101 using a judicial excpetion and include in the holding that the invention was well known. So, rather than saying to accused infringer that if what you say is true, it should be easy to invalidate this under 102 and 103, the criminal minds say inelgible under 101. Just shameless human beings.
And their attempt to circumvent Allappat is just as shameless. And their attempt to circumvent Diehr by trying to split up the invention into old and new components rather than consider the invention as a whole is another shameless act of a criminal type mind.
I had to take a shower after listening to the oral arguments. What filth.
I think they threw the wrong one away. GHA GHA GHA GHA!
There was young Cowboy who lived on the range.. (Or is it cooked in a Range?) His horse and Seasaddle were his only companion. He then parked his horse and he broke many Canons, waiting for Seasaddle to die on the range.
So goodnight you dirty doggie, rockabye sweet baby Roy.
Only deep blues are the colors I choose. Won’t you let me go down in my Dreams… And rockabye all College Teams.
“as opposed to a merely using the old computer to run new software”
Basic misunderstanding here.
One does not use an old computer to run new software. To say this is to indulge in a colloquialism that misrepresents what is actually physically happening.
One may reconfigure an old computer to be a special purpose new computer with the addition of software, which reconfigures the old computer.
What the newly reconfigured (new) computer does once it has the new software component integrated, then, is a different question (whether it merely manipulates data).
What I believe that Ned Heller is trying to get at is whether or not the computer actually needs to be reconfigured with software (period) to be able to manipulate data.
That’s a more fair question.
But that is definitely a different question than “does software change a machine?”
If you could achieve the same result without reconfiguring the machine, then the software really wasn’t necessary and really is not important to the new machine. The machine is still new, it is just also still equivalent.
The question then becomes, CAN you actually achieve the same result without reconfiguring the machine?
You will note that this reconfiguring can be done in a number of comparable ways, including:
reconfiguring by actual hardware change,
reconfiguring by actual firmware change, or
reconfiguring by actual software change.
Anyone trying to tell you different is trying to sell you a bill of goods.
Are there any more insincere words than “Regardless, it seems” ?
That’s like saying “You are right, but let’s not talk about that.”
I think “pass the MOT” should also be banned. MOT is not a test that you pass, it is a clue you review.
So, the panel pretty much said that Allappat was good law and yet didn’t apply it. Diehr was also said to stand for you can’t strip out the method from the computer and ask what does the computer add.
Criminal type minds is what we are dealing with.
I wonder what the paid commercials on the board will say? MM$$?
You, what just should strike any decent human being in the face is that if this is an abstract idea then 102 and 103 are not only the tools to use, but should be able to be used in summary judgement. And if they can’t be used in sj, then it is not an abstract idea. That should be the test.
A machine that processes (transforms) information with a method that would not be used or discovered without our new tool the computer, and yet is abstract by supposedly precluding all uses of intermediaries. What a joke. Simply outrageously ridiculous reasoning. And, Allappat was skirted.
Allappat: seems to be saying in the oral argument that a programmed computer is a particular computer. So, make sure that you fall under Allappat.
Witch hunt in general.
What a joke the federal circuit judges are. Near criminals. This is nothing but a back door to try to exclude software from eligibility. Odd, how they seemingly approved of Allapat and yet one can’t avoid Allappat by the district court claim construction.
This panel seems to be saying if a wanker can come up with a way of summarizing your method in a sentence then you are abstract and fall under Bilski. The wanker test is what we should call it.
Oh my, these judges need to be removed. I listened to the oral arguments.
“Concept of using the computer to assist the process.”
“Transformation off the table.”
“Machine doesn’t add anything, so fails the machine test.”
“What the computer imparts to patentability.”
Non judge “The district court construed … that the computer carries out each step of the method.”
“There is an abstract idea in this claim. If you want to deal with multiple parties do it with intermediaries.”
“Abstract idea underlying this.”
lawyer : ”
This is a machine that is implementing
One is placed against a wall with a gun to your head and told to come up without why you are not an abstract idea.
“First read without computer, then ask if computer adds anything significant.”
Me: The methods are being developed only on computers.
“merely using the old computer to run new software that”
An old computer re-configured with new software is no longer the same old computer.
That’s a fact.
Add that to your list.
“I think that fits the fact pattern in Utlramercial”
I think you need to explicate a little more on the fact pattern in Ultramercial; as in, the fact that software is to be considered a mere component of a computer (just like a piece of hardware of a “piece” of firmware).
You still have not addressed the fact as well that firmware and software operate in a basically identical manner (at that component level).
“failed the MOT clue.”
Fixed. It’s only a clue. And an inconclusive one at that (tending to show patent eligibility when passed, i.e. it’s a one-sided clue).
“That would be a permissible interpretation of the cases, I believe.”
Do you get paid to make this shtt up?
For you I will make an exception – I will slam the door on your a@@ on the way out.
“Thus abstraction may be permissible under the court’s reasoning only with method claims that fail the MOT as a first step.”
So … if I add a processor (i.e., a machine) to one of the steps, then no preemption?
If done according to the law, there is no going “kookoobananas.”
You wish, sockie. One thing we can all agree on: the law does not say that a “computer-implemented” method is automatically patentable just because the method hasn’t been “computer-implemented” before. But if you pay attention to the Kookoo McSockpuppet & Friends, that is exactly what the seem to believe. Either that, or they pretend that it’s somehow uncouth to call a p.o.s. patent a p.o.s. patent, as if only judges are allowed to do that. You know what I’m talking about, sockie. You’re part of the problem, which is to say that more and more members of the judiciary are growing tired of the pure shxt that is wasting everybody’s time and money.
Correct me there anon, I will look it up if necessary, but Ultramercial had a lot of interaction with the user.
anon, my apologies there anon. I really do not know who I am talking to at times given that so many people here seem to use the moniker portion of the post to provide commentary.
However, iirc, the Ultramerical case was about a system and about software on a system, just as much as was the case in Alappat. When a programmed computer interfaces with other apparatus or with users, I think the software is implicitly required to be present and part of the system as opposed to a merely using the old computer to run new software that does not do anything other than manipulate data.
As to holdings and dicta, didn't we also cross swords on whether certain passages from the rules packages decision was dicta?
Ned,
Further, your comment of “Once more, you should recall that I have also agreed that “system” claims where the computer interacts with other machines or components of a machine, where the novelty is in the novel software, are also patentable.” does not help your case; rather, it is an admission that your logic is faulty. As per Ultramercial, software quite frankly is a component of a machine that interacts with other components of a machine.
The “system” is merely a computer programed with software. You have admitted defeat of your own argument. If you think about how silly your position is once you realize what you have admitted, you may be genuinely shocked.
Ned,
It was I that cited the holding in Alappat that you are attributing to OMITB.
That’s a different discussion than a pure attribution to what Rader discusses in Ultramercial, and one that I am quite convinced that you are dead wrong on. We covered this in the discussion after Ultramercial was released. I prevailed on that day, just as I still prevail on that point. You do not get to redefine a case’s holding just because you don’t like that holding.
Remember that the government pushed the line of thought that results in a holding to defeat that line of thought. You need to re-read Alappat, as well as our discussion of that case.
You might want to refresh your understanding of Holding versus Dicta – which I notice is a sub-topic on one of the current threads here at Patently-O. The court’s decision was directly on point to an argument, that had it succeeded, would have defeated the patent. Such a decision is defined as a holding. It is you that somehow only want it to be dicta, but your desire simply fails.
6’s Bane, “”I see it takes the method claim, reduces it to its essential steps and states that the abstracted essentials are old.”
A gas turbine engine is a practical application of the Brayton Cycle. However, if I were to claim a specific version of a gas turbine engine, would it be appropriate to reduce the engine to its essential steps (i.e., the Brayton cycle) and then assert that this is not 101 eligible because it “wholly prempts” the Brayton cycle?”
I think there is a difference between the claim to a machine and the method claims at issue here. You will note the abstraction method used by the court here and in Bilski were with respect to method claims that had already failed the MOT test.
Thus abstraction may be permissible under the court’s reasoning only with method claims that fail the MOT as a first step.
That would be a permissible interpretation of the cases, I believe.
Once more, you should recall that I have also agreed that "system" claims where the computer interacts with other machines or components of a machine, where the novelty is in the novel software, are also patentable.
I think that fits the fact pattern in Utlramercial and is consistent with the Allappat majority opinion, but not necessarily to Rader's Alappat concurring opinion which you have cited as the holding in Allappat.
“everytime anyone points out why so many of these computer-implemented claims are obvious gxrbage”
If done according to the law, there is no going “kookoobananas.”
If attempted to skirt what the law actually is, then you can join Renee Marie Jones and Chris and leave and don’t let the door hit you on the way out.
The usual complainers are insisting that 103 is so much better. Of course, those same complainers are the ones who go kookoobananas everytime anyone points out why so many of these computer-implemented claims are obvious gxrbage.
Regardless, Throwback, it does seem that if the claimed subject matter is directed to and limited to disclosed software and that the claimed machines interact with another machine or a user, that the claims will pass 101 muster.
If however, as in Bilski, the claims are not limited to software/interaction, but simply cover steps that could be performed by a human, but which do not involve any physical transformation, that the claims will not be approved.
But the way the court gets to the result is interesting. There appears to be two different approaches. One to extend the mental steps doctrine to steps that can be performed by a human where the claims do not pass the MOT.
The second is to “abstract” the claims (that do not pass the MOT) into their essential elements, determine that they are old and well known, and then declare the claims invalid. I see the approach to be more consistent with Section 102 than the mental steps approach.