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."
fixed?
fixed?
“You have imported a fallacy of a new requirement – the program in action.”
Ned and his bootstrap crrp.
So I invent a new set of tires and put them on a car.
But since the car sits in a garage, I really don’t have a new invention?
So I invent a new fuel injection system and put it into a car.
But since the car sits in a garage, I really don’t have a new invention?
So I invent a new braking system and put it into a car.
But since the car sits in a garage, I really don’t have a new invention?
B O O T S T R A P
C R R P
Too many data points being tracked on inconsequential matters while answers to consequential matters are going unheeded.
Step up Ned and address the points that matter.
Ned: “We are all paying attention to your posts, AI. You may not be the actual inventor you claim to be.”
AI: Who is we? I have not seen anyone on this blog take your side in any debate we have had. in fact many regular commenters have told you that you are losing in our debates. In fact you ducked my questions and conveniently cut and run rather than respond to the posts I made in this thread and the most recent one deny gene patents.
As far as as Anon, is concerned , just because I believe ( that person) anon, is getting the better of you in this exchange does not mean that suddenly anon is AI.
In fact I don’t believe “YOU” even believe such. You are just having fun being a facetious troll.
Where as commenters like anon truly respect the law and want to make sure it is not misrepresented on this blog you have demonstrated no such integrity.
This is all a game to you.
Perhaps one you are paid to play but a game no less.
AI, you know in depo's and in court, if a witness asks to have the question re-read to him, the answer uniformly is yes — and not some kind of psychopathic attack on the witness. But deranged thinking is becoming your trademark.
Moreover, the fact that you so quickly replied on behalf of Anon is a data point. Another is that you use the same form of expressions as does he. The data points mount.
We are all paying attention to your posts, AI. You may not be the actual inventor you claim to be.
In the time it took you to swype this tripe from your iphone you could have answered Anon’s question above.
Proof positive you are a mere troll, and have no real interest in discussing and debating the law.
Anon, I would be happy to answer your question 3 as best I can. Perhaps you could at least give me a pincite to a post of yours where you asked question 3?
Ned,
With all due respect, the only thing left, the only thing that can calm me down, is for you to answer as you have promised to do – without dodge, without restatement, and without (albeit polite) umbrage.
The ball is squarely in your court for you to provide full, complete and on point answers to the actual questions put to you. I need not – nor should not – re-ask questions that are in black and white on this thread, that have been responded directly to you as to be emailed to you.
Not to accuse you of this particular trick, but there have been others, less savory, that used the trick of constantly asking for restated questions merely to trip up the person asking the questions.
I have been polite and extremely patient, but I am beginning to feel that answers will not be forthcoming as promised.
There is only a single conclusion that can be drawn from such a lack of full, complete and on point answers. And keep in miind, I already know what the answers are – this is an exercise for you to reach those correct answers and educate yourself (think once more of your struggles with the “Dials”).
Godspeed.
You sir are a danger to civil society. You need to be locked up.
Sent from iPhone
Ned: “”You have failed….” is a very odd way of expressing one’s self. Since you seem to share this form of expression with others using different monikers, I tend to think you are all the same person.”
Oh let me guess. Everyone is AI? That’s your signal that having lost the debate, it’s time to grab your skirt and cut and run. Malcolm taught you well.
Anyhow, anon wiped the floor with you.
Anon, when you calm down, we can talk.
Ned,
Your responses have strained my patience.
I have done as asked and reformated qustions to make it easy for you. These are not new questions, having been asked by me and others before me. I have patiently explained why your answer to question 2 cannot stand. “Failed” is an apt term, and has nothing to do with a lack of civility. To paraphrase Forrest Gump, Failed is as Failed does.
Your post of 3:33 falls to more of the Umbrage game you play. “Civil” would be direct replies and no games. It is you that plays the lack of civility with your lack of acknowledgements, mistatements, restatements, strawmen, and not following the legitimate course laid before you because you don’t want to go where the logic leads. The questions have been asked. The ball is in your court. No more games, Ned. Just answers.
anon, could you please tone it down a bit?
I would be pleased to answer question 3 if I could remember what it was.
Also, as a matter of civility and manners, could you adopt a civil manner of discourse? For example, say something like "I said" or "I argued," instead of "You have been instructed," and the like. The way you speak is, to say the least, completely uncivil.
If you disagree with me, say so. "You have failed…." is a very odd way of expressing one's self. Since you seem to share this form of expression with others using different monikers, I tend to think you are all the same person.
Anyhow, what was question 3?
Ned,
You answered Question 1. On that we agreed. Although the ramificaiton of that answer is not yet apparent to you.
You attempted an answer to Questions 2. That answer was rejected as not folowing accepted understanding within the art. It was explained to you that you are not free to bastardize the answer to fit your philosophical ends and that the art definition is the true definition.
We are still waiting for you to accept this truth.
You have never answered question 3. You have (weakly) attempted to dodge and restate the question, but you have never provided the bootstrapping source of your importation into the laws of patent eligibility.
This is not a matter of my “not liking” your answers.
Such a statement by you is a falsehood.
We cannot agree or disagree when you have not provided the answer to question 3.
Your disagreement with the correct answer to question 2 is immaterial. You do not get to define the meaning as is known in the art. Period. Any such atempt only means that you are living in a fantasy land and any result of a train of logic leaving that land is a certain derailment.
You have NOT defended your positon well because you have violated the rules of legitimate answers laid out to you before you answered – before you promised to give full and complete answers. For you to say “there are no holes” only means that you have closed your eyes and refused to see the gaping holes that still are there.
Lastly, you engage in a non sequitur as if somehow that proves a point of how a “loading and executing” is done, which has absolutely nothing to do with the questions that I have asked you. And most defintiely have nothing to do with the aspect of “new machine.” which you have already committed to.
Once again. Answer my questions. To say that you have done so is a bold-face l-ie. Your honor is at stake. Your integrity is at stake. Answer the questions directly, completely and without dodge or restatements. You saying that you have answered my questions is not congruent with someone looking for a true dialouge. All you have done is evaded.
Anon, I have answered your questions. Your post here indicated that you do not like my answers. I think the reason you do not like my answers is because we disagree.
Let me to say that I stand by my position. I have defended it well. There are no holes.
In contrast, it is my view that you agree with me, while saying you do not. It comes out when you say that having soffware nearby a computer is a non sequitur. Sure it is, because it is quite obvious that that software, when loaded and executed, is being loaded an executed by a human, not by a machine.
Ned,
Your honor and integrity are at stake here. Respect is earned by living up to your promises.
You have promised to answer questions that I took the time to put to you directly tied to your email so that you did not have to scour this long thread.
You have yet to complete what you have promised to do. Specifically, question 3 remains completely unanswered. Question 2 needs to be answered correctly. Your previous answer to Question 2 was shown to be patently incorrect, and respectfully you cannot address matters of law with a known incorrect answer as the starting point just because the actual correct answer does not support your philosophical views. Only Question 1 you have answered, and the ramifications of that answer will only achieve their full significance if you do as you promised and complete the journey.
The ground rules were simple: no dodging, no restating of the questions and no umbrage.
In failing to answer fully and directly questions 2 and 3, you have slipped back into dodging, restating and (albeit politely) umbrage and withdrawal from answering the questions you just have not yet answered.
I expect you to fully and completely answer as you have indicated that you would.
I explicitly stated at 2:01 PM on Feb 19 that “Your question of a disk in the same room is a non sequitur to the question put to you. You can take no admission from any answer or non-answer to that question. Do not read more into what was asked of you.” – And yet, you now interject a false statement of agreement in your 10:05 post of “Anon, software that is physically near a computer but which is not executed is not part of the machine. We have agreed on this point” – WE HAVE NOT as that point was expressly made clear that it was a non-sequitur and a distraction, which you attempt, once again, to restate the question put to you. You conflate “execution” and “presence” specifically when I have directed you not to engage in that dodge. Even after Simple Observations set you straight, you insist on an interjection that only amounts to being an evasion of the question – You still have not answered the questions!
I know that the questions are difficult for you. They are meant to be. The difficulty comes from the fact that honest, thorough and complete answers to these questions will lead you down a logical path that shows that your philosophy cannot stand next to the facts, law and reason that exist independent of philosophy, that your opponents on this topic have shown you, sometimes gruffly, sometimes rudely, but also sometimes patiently and politely.
You may have questions in return and that is fine. Those can be handled once you are forthcoming with answers to the questions put to you. Much as I answered your rebuttal questions to Question 1, the answers will sidestep any snares that you have. But you must first answer the questions put to you under the guidelines laid out. Otherwise, you have not done the work necessary for you to understand. You will continue to struggle in the dark. I have explained to you that the light switch is on the wall, but you are the one that must flick it on. You say you want a mature and civil dialogue, but you are the one not cooperating. Please cooperate and do as you have promised to do.
Anon, software that is physically near a computer but which is not executed is not part of the machine. We have agreed on this point. What difference in law that doesn't make if the software is located on a computer readable medium that is physically connected to the CPU, but which is not executable without some human intervention? You say that when I asked these questions that I avoid the issue. But I don't.
Ned,
I have appended a post by simple observations to your email notice (see below). I do not think simple observations knows of your statement that you will respond only to email notes on such a long thread.
However, before you embark on a comment to simple observations, I implore you to answer the questions that you committed to answering. You have not completed the task that you said you would complete.
I would further comment that your post of Feb 20, 2012 at 09:16 PM: “anon, you have drifted away from acceptable dialog and have begun lecturing. As a result, we will have to suspend this otherwise entertaining dialog.” is merely a polite version of your “I take umbrage” move and thus is merely a dodge from answering the question – again, a question you agreed to answer, given that I took the time to politely provide it to you on your email response.
My mere mentioning that you continue to dodge the question and berating you for so doing cannot give you reason to yet again dodge the question.
That is simply not an honest and respectable answer – and you have promised answers. I trust that you are a man of your word. That is why I very carefully laid the foundations of legitimate answers at the onset – no dodging, no restating and no umbrage.
I know these answers will cause you dissonance. I expect that. But I also expect you to be honest with yourself, and to not delude yourself when faced with the clear progression of logic that answering these questions will bring to you. In a sense, you have so tightly held onto your philosophy that it has become an addiction. That addiction will be broken by clear logic and reason – but you must take those steps of clear logic and reason. You cannot cling to mistaken notions that support a philosophy that you desire in the face of logic and reason that shows that philosophy to be false. I realize the enormity of what I am asking of you and trust that you see the reasonableness of my questions, the logic of the answers as they unfold, and the inevitable acceptance of what facts and law already have captured.
simple observations’ post:
“To change the machine, you must change its operation.‘
Why?
Surely a change can not change its operation. Machines can have lots of independent operations, and every change does not change every operation.
“Software which is not executed”
So what? Clearly a machine that is fully configured with software and a machine with zero software and that can only function as a paperweight are different machines just as much as when the electricity is turned off, even though at that time they both act as paperweights, as when the electricity is turned back on. You cannot seriously be arguing otherwise.
Programming, hence, is not the same as executing. To be sure, you cannot execute a computer that has not been programmed. But just as suredly, a computer that has been programmed, but is not executing that programming is a different machine than one that has not been programmed. [I would add that your affirmative answer to question 1 is in line with this thought]
Somehow you have further confused yourself on this topic. Perhaps Anon was correct and you should focus on the direct questions instead of jumping into the briar pit.
You have imported a fallacy of a new requirement – the program in action. Machines don’t care about such non sequiturs. This resolves back to the simple question, when you program a machine, do you change the machine, do you obtain a new machine when you program that machine? There is no need to add this “execution” requirement into the equation. This is mere bootstrapping.
As pointed out by others, your sense of “use” cannot include that use that changes the machine, not without acknowledging that you have changed the machine. It must chafe as you bump into the walls so much.
“To change the machine, you must change its operation.‘
Why?
Surely a change can not change its operation. Machines can have lots of independent operations, and every change does not change every operation.
“Software which is not executed”
So what? Clearly a machine that is fully configured with software and a machine with zero software and that can only function as a paperweight are different machines just as much as when the electricity is turned off, even though at that time they both act as paperweights, as when the electricity is turned back on. You cannot seriously be arguing otherwise.
Programming, hence, is not the same as executing. To be sure, you cannot execute a computer that has not been programmed. But just as suredly, a computer that has been programmed, but is not executing that programming is a different machine than one that has not been programmed.
Somehow you have further confused yourself on this topic. Perhaps Anon was correct and you should focus on the direct questions instead of jumping into the briar pit.
You have imported a fallacy of a new requirement – the program in action. Machines don’t care about such non sequiturs. This resolves back to the simple question, when you program a machine, do you change the machine, do you obtain a new machine when you program that machine? There is no need to add this “execution” requirement into the equation. This is mere bootstrapping.
As pointed out by others, your sense of “use” cannot include that use that changes the machine, not without acknowledging that you have changed the machine. It must chafe as you bump into the walls so much.
Simple:
“As to the automatic plank, I have no idea where Ned bootstrapped that from, as patent eligibility has never covered things that must be automatic. It is enough to be “fixed” to be patent eligible, and it is enough to be “fixed” and in the machine to create a new machine.”
A machine operates. It transition from one state to another.
To change the machine, you must change its operation.
Software which is not executed by the machine does not change the machine’s operation.
If one executes software, however, the machine’s operation is changed.
So, if one executes software is one using a machine or is there a new machine?
Regardless of your answer to this question, tell me whether one can use an old caluclator without making a new machine?
Anon,
The point here of “fixed” works against Ned’s view of software per se not being patent eligible.
Clearly software fixed on a disc meets his “permanence requirement.” and as he skirts the component question entirely, with no mention of the cases for tires, or molecules, or any other subcomponent that is patent eligible in its own right and no recognition of the Ultramercial case that clearly equates software (“fixed” software – be it on a disk or on a machine), as a perfectly viable component in its own right.
As to the automatic plank, I have no idea where Ned bootstrapped that from, as patent eligibility has never covered things that must be automatic. It is enough to be “fixed” to be patent eligible, and it is enough to be “fixed” and in the machine to create a new machine.
I find his questions about whether or not the new machine was ever used for that program to attempt to call into doubt whether the program is present to be a very weak strawman. He conflates “use” and presence. He needs to go back to the Grand Hall and revisit “use” and presence.
Simple Questions,
I think you mant well, but your question may have derailed Ned’s focus.
Be that as it may, I am curious to Ned’s answer her of “fixed.” This seems a clear and full affirmance of beauregard claims, as programs in such claims are indeed fixed to a tangible medium.
I am not sure that this admission to “fixed’ can be separated from the full support of beauregard claims. But if Ned withdraws from teh answers he promised me prios to delivering, I don’t know if further questions to him are worthwhile.
The lecturing was necessary Ned, as you drifted from answering the questions as directed.
I explicitly asked you to stay on task at the onset and not to dodge or restate the questions.
You stepped up and answered the first question, even though you needed an assist of rebuttal questions (which I feel I answered directly, even as I avoided the snares of those questions). I was thrilled to receive a straight answer from you. And even though you do not realize the extent of that answer, I believe that a part of you realizes the connection with Alappat and perhaps over time, and at your own pace, you will realize the new machine beauty as unveiled in the nuanced Grand Hall results, and how your affirmative answer binds you down a path that will not be in equillibrium with your current philosophies.
However, hopeful I was after question 1, you then faltered with an incorrect answer to question 2, and then really fell on your face with question 3.
Question 2 was a mere matter of setting you straight as to what the art definitions actually are. These are not up for debate. They are what they are. And you need to accept and understand them. Else, further building of logic on such quicksand yields no supportable structure. Your efforts are doomed. There is no logical reason for your reticence. It is only the deep seated philosophy that spins answers and denies reality.
Question 3; however, saw you completely derail. Was it really that difficult to express where in law you derived these concepts? Instead, you merely, once again, proclaimed them to be – just as you had ignored the original poster Not So Fast. You declared an answer without support. To do so, you dodged and restated, twisting and corrupting the direct question, refusing to answer that direct question.
There is no hiding from what you have done.
Clearly, your extra legal treatment is a sensitive area for you. I identified that your incorrect definition to question 2 is wrapped up in your errant qustion 3 non-answer, identifying the extra legal philosophical source of your world view.
You can delude yourself to your heart’s content, but until you face reality in these two questions, your position will never be able to overcome the scrutiny of fact and law, and you will be doomed to live forever in the policy land of paper tables.
Had you followed the directions, I would not have to remind you of those directions. If you don’t like being lectured, then act in a manner that does not call for being lectured. I find no joy in treating you like a child, but acting like a child you have done. I still have hopes that you can face your dissonance. You are very close to grasping that same type of breakthrough as your “dials” breakthrough.
As it is your choice to continue or not, any suspension of dialogue, then falls to your failure to adhere to the guidelines that provided the civility to discuss this emotion-laden and heavily philosophically imbued ground.
It is a disappointment that my efforts to keep you on the straight and narrow have met with you being chafed from running into the side gates. AI said you liked to dance in circles, and hoping that you could stay straight until you provided the answers you said you would provide was my earnest hope.
If you truly withdraw, this will end up as yet another avoidance by you to answer questions directly on point and highly devastating to your philosophy – for the only available grounds that you have once again choosen to disengage without providing answers you had promised to provide.
If this is so, then I fully expect to never see you attempt to take the high road of honor and respect for the law again. That road is barred from the likes of those that do not keep their word. That say they will answer direct questions with direct answers, fully and compltely, without subterfuge.
1 down.
2 to go. Still. The choice remains yours.
anon, you have drifted away from acceptable dialog and have begun lecturing. As a result, we will have to suspend this otherwise entertaining dialog.
Ned,
This is an easy point to address – and I will do so when you have completed your answers. Until then I need you to focus. At this point you don’t yet realize the size of the first hurdle you have overcome, but the hurdles of questions 2 and 3 need to be overcome before we can celebrate the dawn of comprehension of your affirmation of question 1.
Focus now on 2 and 3, and remember – no dodging and no restatements.
BTW, “dodging” includes your attemtps to reflect this conversation back to me (e.g. your personalization of what a PHOSITA understands, as well as your attempt to portray me having any type of “block” at this point. Clearly we are not to the point to explore whatever “blocks” I may have as you have not yet completed the answers).
Ned,
Respectfully, you are all over the map, fragmenting your responses yet again and coumpounding errors that have been previously addressed.
You need to return to order and answer questions 2 and 3.
Your answer to 2 was incorrect. Until you understand that – and understand why – you will not be able to move forward (and you will not be able to understand the impliations of your affirmative answer to question 1 – and importantly, how that affirmative answer belies anything you say about Alappat).
You have not even answered question 3 yet.
Do you remember back as to your “dials” counter question? Do you remember your struggles with accepting what to you was so counter-intuitive? You are merely reliving that exact same struggle, only masked by your philosophical holdings. Those philosophical holdings are what are cropping up in your attempted dodging and restatements of the straight forward questions I put to you. The three questions. You have taken one enormous step with question one – the enormity will only dawn on you when you complete the other steps. Do not falter. Do not slip into illegitimate answers. Do not succumb to your philosophical blinders.
Answer those three questions fully and accurately, and then we can move onto the substantive points that you may still have.
I will allow one distraction: the holding in Alappat. You do realize that a decision can have more than one holding, do you not? You do realize that a case can offer multiple avenues of attack and that EACH answer to an avenue of attack is itself a holding, do you not? Suffice to say (for now – until you come forward with answers to questions 2 and 3 – that “Yes” answers to my questions here of “do you not” will be revisited. I only entertain this distraction because your admission to Question 1 already resolves the Alappat tie-in – you just don’t realize it yet. But like the “dials,” once you understand the impact of “new machine,” you will not understand how you ever fought software.
Godspeed and courage to you in confronting the answers to questitions 2 and 3.
simple, "fixed."
That is my argument in a nutshell.
Fixed.
Add that thought to "configured" and we avoid "transitory."
So, if "configured" means or is construed to mean "fixed" we are fine. If it not, we need to add that term to our claims to programmed computers.
Anon, you're misunderstanding of Alappat continues. The holding Alappat was that the claim construction of the patent office was incorrect and that the means plus function claims there claimed covered the corresponding structure in the specification, namely, circuits.
The majority also, in dicta, discussed whether a programmed computer, which could be an equivalent of the disclosed circuits, was patentable in the context of the claimed graphics system. Judge Rich, writing for the majority, suggested that the use of a programmed computer in the context of a claim the rasterizer, which was a component of a graphics display, was patentable in context.
There was nothing revolutionary about this holding given Diehr, which similarly held that a programmed computer that was claimed as part of a process was patentable. Diehr do not have anything to do with holding a programmed computer by itself was patentable. However in context, where it was an integral component of a system, it was.
anon, if an allegedly programmed computer actually doesn't do anything when you press a button, it is not in fact programmed. Imagine yourself the judge listening to evidence that so-and-so computer was programmed, and the defendant proves that the program is never in fact executed, what are you to believe? Is the computer programmed or is it not?
anon, while computers have evolved, the essence of a programmed computer has not changed from my description. A programmed computer has a stored program and accesses and executes instructions from the stored program.
Regarding the equivalents of program computers in circuits and in systems, where programmed computers can substitute for hardware or software almost as a design choice, we are in fundamental agreement. That is why I say that when a programmed computer is claimed as part of a larger system, or as a component of a circuit which almost by definition is part of a larger system regardless that that larger system may not be disclosed, the program computer is not being claimed per se, but it's "use" in the larger system is being claimed.
Such arguments, about programmed computers being equivalent to circuits and other hardware implementations proves nothing at all about whether a programmed computer by itself is patentable subject matter. Rather, is an argument that diverts attention from the real issue.
Now I would agree and have agreed that if the programming is claimed in a way such that it becomes an integral part of the machine, then we do have in fact a claim to a new machine. But in contrast, if the programming is not part of the machine, but rather the machine is used to run the program, then we have an entirely different situation.
You and I have been talking about this topic a for a very long time without ever coming to grips with the essential issue. Rather I sense that you want to avoid the issue rather than discuss it. In the end you seem to have a significant problem with the issue of when programming becomes part of the machine and when a machine is used to run a program. There is a difference, but you do not seem to understand that there is a difference.
anon, regardless of whether the Nuitjen decision was decided properly, it is the law; and its principle is extendable from articles to machines.
“I think the Federal Circuit addressed this issue to some degree when it addressed the issue of whether a signal was an article of manufacture”
Didn’t that very same Federal Circuit state (more or less) that software in a fixed form (not a signal) was an article of manufacture?
Isn’t this an affirmation of the Beauregard claim style?
Isn’t there a difference between the idea of a software package and the reduction to a tangible medium of that idea?
To borrow from the sister IP field of copyright, once committed to tangible form, the expression is protected (by copyright), and once committed to tangible form, the patent eligibility is also protected (by patent, if otherwise a patent is granted).
Doesn’t this speak directly to the patentability of software per se (as long as it is software that has been committed to tangible form)?
Wouldn’t it be fair to characterize the notion of permanence as the committing to tangible form?
How then is software on a disk, even a disk in the same room, not patent eligible?
Are tires patentable while not attached to a car?
Are molecules created for a medical benefit patentable while not attached to a delivery system?
Is not any sub-component patentable in and of itself outside of the fully realized end-product combination?
Isn’t this yet another admission that works against the interests of Ned Heller?
Facts.
Law.
Your very admissions.
All that awaits is your understanding and acceptance.”
Nice job Anon at holding Neds feet to the fire and making him dance. Unfortunately he dances in circles.
“[We] are trying to find out what “you” mean by programmed machine and by configured. We can only do that by exploring examples.”
No Ned, this is incorrect. Your attempt to personalize this is misguided, because my meaning is exactly what the ordinary and standard meaning by a person having ordinary skill in the art would have. We can find this out, not by exploring exampples, but rather by looking at facts and looking at law.
On this note, we return full circle to question 1 (and your affrimative answer to that question) and the simple and yet nuanced beauty of the Grand Hall experiment, coupled with what the holding in In re Alappat, as recently confirmed in Ultramercial.
Facts.
Law.
Your very admissions.
All that awaits is your understanding and acceptance. Think deeply my friend.
“Anon, If the programmed machine is intended to do anything when one presses a button, and it does not do that thing, whatever that may be, when one presses the button, the machine is not programmed, it is not configured. The fact that you cannot get past this point is the problem.”
This is not a problem. This is a smokescreen, a non sequitur. For the quick reasons already listed, this has been gotten beyond already.
You achieve nothing with this line of thought. Abandon it now.
As for the real problem, before we once again get too sidetracked, is that you have not yet answered the questions 2 (correctly) and 3 (answered at all).
No restatements or dodging. You have simply not explained your ultra vires insertion of something into the notion of patent eligibility.
“whether my definition accepted or not is quite beside the point.”
No Ned – quite the opposite.
It is the point.
You are operating under a misunderstanding. You are not at liberty to purposefully operate under such a misunderstanding when discussing this matter as a matter of law. Your bringing up how computers were originally composed solidifies my correctness, as obviously computers have evolved – they have changed. How you want to look at the picture, and how the picture actually is is a critical difference. You are not at liberty to ignore the fact that software is every bit as analagous to firmware or to hardware as componets to machines as machines have evolved. You are not free to disregard that nature because it does not fit within your philosophy. As you realize just what your acceptance to question 1 entails, you will realize that you have accepted facts (and law) that defeat your philosophy. I recognize the dissonance this will cause you. You need to recognize the inevitable position your agreement to question 1 brings you.
Do you remember my comment about respecting the law? That respect demands that you not hold a bastadized and known incorrect understanding in order to support your philosophical viewpoint.
Ned, this is the second admission on this thread that highlights the inevitability of the downfall of your philosophy. It has already happened in facts. It has already happened in law.
“I think the Federal Circuit addressed this issue to some degree when it addressed the issue of whether a signal was an article of manufacture. In holding that a signal was not an article of manufacture, even though it was created by man, it looked the whether the signal was more than temporary. A signal’s existence was transitory at best. For this reason, the Federal Circuit held that it was not probably claimable as an article of manufacture.”
Show me ANYTHING made by man and I will show you a transitory item. There is NOTHING fixed forever. Such is an quite literally an impossibility.
Time is a relative scale. While it is current law, I think the Nuitjen decision is fundamentally flawed. Certainly, it is not a decision that I would base other decisions on. Further, you are not permitted to restate the questions as you are attempting to do with the intorduction of “transitory,” as discussing “transitory” is NOT the same as discussing “permanence.”
Your acceptance of the “dials,” while laudable, still fails logic – and for the very same reason that the “dials” question can be thought of as a trick question. The analogy with software per se is just too strong! The setting of the dials is no more permanent then the settings created by the configuration with software.
Anon, "accepted."
Whe are trying to find out what "you" mean by programmed machine and by configured. We can only do that by exploring examples.
Anon, If the programmed machine is intended to do anything when one presses a button, and it does not do that thing, whatever that may be, when one presses the button, the machine is not programmed, it is not configured.
The fact that you cannot get past this point is the problem.
Anon, whether my definition accepted or not is quite beside the point.
You should know that the original computer did not have a stored program, but had to be configured manually using switches for every calculation. The invention of the stored program computer shortly after World War II was a major invention. It included a memory that held the stored program, means by which the CPU could access the stored program by loading instructions into an instruction register, decoding the instructions, and then executing them by essentially using the decoded instruction set the switches and then clock the execution apparatus.
So in every sense of the term, the stored program has to be held in memory in a state whereby it can be accessed by the CPU. How it gets into the portion of memory that can be accessed is not exactly relevant to the discussion. However I can see that memory in a sense has stages. It can be local memory that is accessed by the CPU, but the contents of the local memory may be refreshed or loaded from other memory, which in turn may be refreshed or loaded from even other memory. The memory closest to the CPU is today known as cache memory. But there are levels of cache. And there are levels of memory. But in the end, all that is required is that, when called for, the program instructions are available to the CPU.
Anon,
"For the machine that has dials that affect what it does, this is much more of a trick question. As "dials" can easily be of the sort that the inputs very well can be a creative and inventive change depending on how those "dials" are configured. The shallow reflection of this question mirrors the "House" computer argumetn which has been shown to be pure fallacy. In other words, you set a slipery slope to the Bell "any way at a distance" "invention" that is not an invention in its own right since that would simply be "too much." Just as in the "House" argument, the first inventor of a machine that can transform has not invented every machine that can result from the transforming machine, the question of the "machine that has dials" has the similar result."
I actually had a case one time where the inventor discovered that configuring the "dials" of a welding machine in a certain fashion produced an unexpectedly superior weld for a particular application. The claims in the case included a claim to the machine with the specific configuration, the process of welding, and the product of the welding process.
It took me a while to accept the possibility that the old welding machine with a specific configuration actually was a new machine. In a sense, every machine has different states when it operates. The machine changes as it moves one state to another. But whether the change in state is claimable as a new machine or as a process of using the machine is the question we have to address. Clearly there is a change. But in the law, is the change the kind of change claimable as a new machine?
I think the Federal Circuit addressed this issue to some degree when it addressed the issue of whether a signal was an article of manufacture. In holding that a signal was not an article of manufacture, even though it was created by man, it looked the whether the signal was more than temporary. A signal's existence was transitory at best. For this reason, the Federal Circuit held that it was not probably claimable as an article of manufacture.
In the same sense, the operation of machine where it moves from one state to another is simply a temporary state of the machine. However, when the dials are configured to a specific state, and a machine in that state operates differently, I can agree that the machine so configured is a new machine. And the reason I agreed to that is because the state of the machine is not temporary. It is fixed.
Fix broken italics tag.
Lastly Ned, here too you fail.
You attempt – once more – to restate what configures means from the accepted term of art. this falls to your false answer to question three.
The Grand Hall experiment provides a clear and simple, albeit nuanced, answer that you are not free to either disregard or to redefine.
You are expressly forbidden to define use as loading software and executing it because that is the accepted (factual as in the art, and legal, as in Alappat) definition of a new machine. You attempt to define not a new machine as something that is a new machine. Your further clouding of comparing wether a human does the loading, or a machine automatically does the loading is not only lies as false in the answer you gave to question three, it is a complete non sequitur to the simplicity of the Grand Hall experiment. Quite simply, how the machine was changed (which change is a fact as you have admitted to with the answer to question one) has no bearing to the fact that that changed machine is different from the unchanged machine and thus is a new machine. By fact. By law. By your own admission to question one.
Here you fail as well.
Re: automatic execution – Plese reread the question and address the question without restatement or dodging. You do not answer the question.
You ask what the problem is and restate with a suggestion. Your “I press a button” is obviously an interaction and a strawman to the “automatic execution” notion you have been asked to address. Clearly, somethign you do with interaction is a meaningless distraction to the immediate question. You are not allowed to engage in meaningless distractions while not answering the question. Likewise, your suggestion of restating what configuration means is not an answer to the question and violates the rule given to you of no restatements. Just answer the question that you have here failed (completely) to answer.
You have simply not explained your ultra vires insertion of something into the notion of patent eligibility.
As is apparent, you have merely answered the first of the three questions, which while damming your overall position, still leaves you to answer questions two and three.
I applaud your start and implore you to deep thinker on these questions and answer them fully.
Here you fail as well.
Re: permanent residency – Please reread the question and address the question without restatement or dodging. You are once again importing the notion of fixed and permanence where the art does not require it. You have engaged in circular reasoning and have not explained your ultra vires insertion of something into the notion of patent eligibility.
Your question of a disk in the same room is a non sequitur to the question put to you. You can take no admission from any answer or non-answer to that question. Do not read more into what was asked of you.
Ned,
Your answer here is false. A fixed memory is not required for the definition of software, and neither is it required to be accessed without human intervention.
You have merely avoided the reasonable non-inclusion of your false added steps to the third presented question.
Here you fail. Your definition of software on a computer does not match the accepted definition as is known in the art.
Thank you Ned for your answers.
It’s a start.
By agreeing to the simple Yes/No question in the affirmative, much of your larger position is eviscerated.
I do hope you realize this.
Now your questions:
Is a machine powered by electricity changed when powered?
It depends.
Is a sail boat powered by sails changed when there is wind?
It depends.
Is a machine that has dials that affect what it does changed when the dials are reconfigured?
It depends.
Nice lawyerly answers, but your questions are too vague and global to give more. I can tell you likely answers, but these require qualifications.
For the machine powered by electricity, most likely having electricity is necessary for a machine to operate in its normal designed state (other than as a paperweight). Your question then takes on a a different twist if you are trying to make any distinction with the addition of electricity.
For the sailboat powered by sails, the presence or absnece of the wind is not likely to change the sail boat. This is because the sails typically do not have any additional interactions except the singular interaction with the wind. Thi sis not to say that a sail may be configured to have intricate other actions that would then change the answer to the question.
For the machine that has dials that affect what it does, this is much more of a trick question. As “dials” can easily be of the sort that the inputs very well can be a creative and inventive change depending on how those “dials” are configured. The shallow reflection of this question mirrors the “House” computer argumetn which has been shown to be pure fallacy. In other words, you set a slipery slope to the Bell “any way at a distance” “invention” that is not an invention in its own right since that would simply be “too much.” Just as in the “House” argument, the first inventor of a machine that can transform has not invented every machine that can result from the transforming machine, the question of the “machine that has dials” has the similar result.
I trust that your snares are left empty with these proper answers to your questions.
anon,
Regarding pings Grand Hall experiment were to computers are executing different software, you say this proves that a computer configured with different software makes the machine a different machine. I will agree to the extent that you agree that "configured" means "executing."
If you do not agree that configured means executing, then the Grand Hall experiment proves nothing regarding the issue of whether the machine is new or whether machine is not new. If it is possible to use a computer by loading software and executing it, then simply seeing a program executing the software without knowing knowing just how the software was loaded and executed does not exclude the possibility that a human being loaded the software and executed it as opposed to the machine itself executing the software automatically.
anon,
"'automatic execution' : where did this extraneous distinction come from? How did this get bootstrapped into the legal notion of patentability? You state this as it must be assumed to be true. It is not.
"
If a computer is purportedly configured to launch a missile, and I press the button but nothing happens, I would suggest that the computer is not configured launch a missile.
So what is the problem? I would suggest that even if the software is physically present it is not configuring the CPU unless it executes when called for.
anon:
"
"permanent residency" : any hardware piece or firmware instruction set is no more permanent than software configured by loading. Circuit boards are changed out manually, firmware is updated – this is a meaningless smokescreen of an argument."
Software loaded by a human from a disk located in the same room is no different from loading software from a permanently attached storage unless there is some concept of fixed and permanance required.
When I have asked you and others whether the computer infringes when the program is on a disk in the same room as the computer, you said that my question was ludicrous. I take this as an admission that some form of permanent residency is required, some form that does not require a human to load the program when that human wants to use the program.
anon:
"
What does "software on a computer" mean?
ReplyFeb 10, 2012 at 09:21 AM"
Stored in a fixed memory physically fixed to a CPU such that it can be accessed without human intervention.
anon:
"
Here's a perfect chance for you to be honest and to act with respect. Answer this simple question with a "Yes" or a "No": Does configuring a machine change the machine?
You do not get to insidiously (and implicitly) get to "use" the machine as a form of changing the machine and then deny that the machine was changed.
ReplyFeb 09, 2012 at 08:03 PM"
Yes.
But, now you answer these:
Is a machine powered by electricity changed when powered?
Is a sail boat powered by sails changed when there is wind?
Is a machine that has dials that affect what it does changed when the dials are reconfigured?
Ned,
Complying with your special request, I have compiled a few of the previous posts on this thread into one post directed to your email. Although I do hesitate to do this, as you miss the other comments in the thread by such a selective parsing, and you really should pay attention to the other comments as they discuss and buttress the points of our dialogue.
Note too that your previous 3:45 post on Feb 10 was not an answer! Accusing me of playing “metaphysics’ is simply a diversionary tactic and has no place in our discussion. Although I think we have come closest to an answer with your 7:08 post on Feb 10: “anon, I cannot prove my ideas because, anon, they are yet to be adopted by the courts.” At least there you seem to acknowledge that the basis of your beliefs lay outside the current legal system – the closest you have come to acknowledging that you are indeed engaging in a philosophical rather than legal discussion.
I am looking for legitimate answers.
Let’s begin with my simple Yes/No question:
anon said in reply to Ned Heller…
“The conversation involves a programmed computer and when it becomes a new machine vs. when the old computer is simply used to run software.”
Ned, here too – a classic strawman and mistatement.
A programmed computer is a new machine. Period. To program a computer you must change that machine. Period. An unchanged machine cannot be used to be the same as a changed machine. Period.
The whole point of Ping’s (sorry, 6’s) Grand Hall experiment was to show a very simple and subtle fact. Two machines are identical before one of those machines is changed with the configuring of that machine with software. Using each machine after one is configured with software clearly – and unequivocally – demonstrates that the software loading has changed the machine.
Use of both machines reflects that. 6 had attempted previously to skirt the issue by broadening use to programming (and thus configuring and thus changing) the machine that was the one given to him.
Can you follow this logic?
Your attempt to restate the difference, if any between a new machine and using an old machine purposely ignores the prior state of two identical old machines and the incontrovertible change in the one machine that was reconfigured. You claim to be trying to get at the meaning of the words used, but you ignore what is directly in front of you, instead, restating that which does not need to be restated.
Here’s a perfect chance for you to be honest and to act with respect. Answer this simple question with a “Yes” or a “No”: Does configuring a machine change the machine?
You do not get to insidiously (and implicitly) get to “use” the machine as a form of changing the machine and then deny that the machine was changed.
ReplyFeb 09, 2012 at 08:03 PM
And while I have your attention, let’s also see a real answer to the post by simple questions:
simple questions said in reply to Ned Heller…
What does “software on a computer” mean?
ReplyFeb 10, 2012 at 09:21 AM
Let’s also see an answer to the post by Not So Fast:
Not So Fast said in reply to Ned Heller…
“I suggest that a programmed computer is patentable in the context of a larger machine”
The programmed computer IS the larger machine.
The additional requirements of “permanent residency” and “automatic execution” are ultra vires. Those additions are not grounded in patent law. Those additions are arbitrary and thus legally meaningless.
“permanent residency” : any hardware piece or firmware instruction set is no more permanent than software configured by loading. Circuit boards are changed out manually, firmware is updated – this is a meaningless smokescreen of an argument.
“automatic execution” : where did this extraneous distinction come from? How did this get bootstrapped into the legal notion of patentability? You state this as it must be assumed to be true. It is not.
So you tell me and the entire country who are reading this post, just what you are trying to do by such legal misrepresentations.
ReplyFeb 09, 2012 at 08:03 AM
As to a legitimate answer, I include further dialogue from this thread as an example of what is NOT a legitimate answer:
anon said in reply to Ned Heller…
Ned,
How would you classify your response to Not So Fast?
He raises two valid points on your position – permanent residency and automatic execution. You merely repeat your previous reply completely ignoring what was said.
Is this any way to have a serious discussion? Choosing to reply only to that which you want to and avoiding any inconveinent post by every one else?
Seriously?
Where does this idea that automatic execution is necessary come from?
I will listen respecfully as you actually answer the post by Not So Fast.
ReplyFeb 09, 2012 at 08:16 PM
Ned Heller said in reply to anon…
I just replied, linking him to my 03:45 post to you.
ReplyFeb 10, 2012 at 04:44 PM
anon said in reply to Ned Heller…
Ned, I want a real answer. One in which you clearly address his points. This is now the second time you have evaded the permanaent residency and automatice execution points. These are straight forward questions that demand straight forward answers.
The fact that you struggle so is very telling.
ReplyFeb 10, 2012 at 05:53 PM
That is enough for now. I will hold off on re-posting Anonymous Geek’s conversation with you and your lack of answers with him for another day (let’s see you take some initial steps first).
anon, as I said, the thread is too long for me to read it. I am responding to e-mails. If you have something you would like to discuss, please include your question or statement in your post.
reply to Ned Heller…
That “excellent question” Ned has been asked and answered – (just not by you). I am still waiting on your simple one word answer. How long will I have to wait?
Reply Feb 10, 2012 at 05:50 PM
“Zero accountability.
Zero respectability.”
…But but but he posts in his own name.
As the lament goes. How can he not be accountable? His peers see his posts. His peers can read his (strawman) arguments. His peers can read his answers (if he ever gave answers). And his peers can post comments indicating when Ned is off and should be brought to task.
Oh wait, they already do.
“Put bluntly (like for the millionth time) there is NO category of patent eligible subject matter that is categorically included under 101. None. Zero. Nada. Zilch. ”
Well said indeed. But Ned will not stop saying such.
He won’t even acknowledge your post and admit that he is wrong.
Ned will wait like a snake for the next 101 post and run up a 300 hundred count thread, then right on cue just slither away, under the pretense the thread has grown too big to follow.
Zero accountability.
Zero respectability.
100 % Ned Heller ( The Fake One)
“Why are you running away Ned?”
That’s what Ned does when he loses the debate on the facts and the law.
Ned is an intellectual coward.
He may not even be the real Ned Heller like he claims.
The only sophistry here is Ned Heller trying to peddle that holding of the Supreme Court of “business methods were not categorically excluded” is the same thing as that “business methods were categorically included.”
NO ONE HAS EVER SAID SUCH A THING.
This is the same old “categorically” versus “category” misrepresentation. And Ned proclaimed that he did not use strawmen.
Put bluntly (like for the millionth time) there is NO category of patent eligible subject matter that is categorically included under 101. None. Zero. Nada. Zilch.
Chemical processing methods? No.
Bicycle manufacturing methods? No.
Methods of manufacturing medical devices? No.
The trick is the word “categorically” which means without exception. ALL claims in ALL categories must be judged under 101. There is no such categorically included as Ned deceiptfully manipulates. FOR ANYTHING.
Worth repeating: There is no such categorically included as Ned deceiptfully manipulates. FOR ANYTHING.
On the other hand, as a category (discussing category as a broad class, no single claim), business methods are STRICTLY eligible for patenting. Just like chemical processing methods (discussing category as a broad class, no single claim). Just like bicycle manufacturing methods (discussing category as a broad class, no single claim). Just like methods of manufacturing medical devices (discussing category as a broad class, no single claim).
Ned, STOP misrepresenting what people are saying in your efforts to apply some broad brush of ineligibility to the category of Business Method Patents. You are misrepresenting the law. You have been told this time and again, and the only conclusion possible; no matter how defamatory you think it is and squawk, is that you are knowingly and purposefully misrepresenting what people are saying and misrepresenting what the law says.
Ned “The Fake” Heller : Consider that Al Capone file a patent application on his “method of doing business.” His application discloses and claims systematic corruption of officials, judges, juries and rubbing out of competition. Aside from the fact that these methods are notoriously old, would you seriously consider that they are patentable subject matter at all?
AI: Ned, if you were a real attorney, you would know the answer is no, because the examples you present above are not methods/processes.
A method or process requires an application. Otherwise it’s just a concept.
Your example is just a mental concept even if systematic in thought.
Mental concepts are not statutory subject no matter how useful.
It is only when the concept is applied that it becomes a process, and thus statutory.
Now if Mr. Capone were to reduce his concept of doing business to an application he would have a method or process and thus a statutory invention. And then yes he could move on to 102/103/112, providing he did not run into any Court created judicial exceptions or Congress declared illegal subject matter.
Ned “The Fake” Heller: “What the Supreme Court said in Bilski was that business methods were not categorically excluded. That is what they said. That is what they held. ”
AI: Ned if you were a real attorney you could the understand the following analysis. Here is what the Court actually said:
“Section 101 similarly precludes the broad contention that the term “process” categorically excludes business methods.” Bilski.
Now the the words “broad contention” are particularly important to note because it was contended before the Court that business methods were not statutory subject matter. Not “some” business methods. But ALL business methods. That’s why the Court used the word “broad”.
In rejecting the argument, and thus in effect upholding business methods as statutory subject matter, the Court did NOT exclude ANY particular method.
So yes, as a matter of “Actual Law”, cooking methods, software methods, financial methods, medical methods, and even your bane, coffin making methods are ALL statutory subject matter.
Now, consider your fake azz schooled by an Actual Inventor. And BTW, if you really have stolen the identity of a real patent attorney named Edward Heller, as the links posted in this thread indicate, then Dennis should ban you from this blog.
Listen, turnaround, I know the sophistry you peddle. You cannot claim that all methods of doing business are patent eligible. That is a ridiculous statement and you know it. I just gave you the example of Al Capone to illustrate just how ridiculous.
The Bilski court held, mind you, "held" that business methods were not categorically excluded. This is not the same thing as suggesting that (all) business methods are patent eligible as you stated and have repeatedly stated.
No resistance. I quoted directly from the law as the law is written.
Once again, it is your turn to show those words that are kept out of 100 and 101. Yet another question to add to NEd’s impressive list of questions he does not answer.
Don’t crab because the sm@rt@ss comment you thought would prove you rpoint proves the opposite, just think before you post next time.
I'm sorry, but it doesn't say what you said it says. What you seem to suggest that all processes are patentable subject matter, so that if one claims a process, one moves straight onto 102/103/112. Really?
Consider that Al Capone file a patent application on his "method of doing business." His application discloses and claims systematic corruption of officials, judges, juries and rubbing out of competition. Aside from the fact that these methods are notoriously old, would you seriously consider that they are patentable subject matter at all?
Could Al uses patent to sue rival mob bosses throughout the country, thereby monopolizing through his patent organized crime? You have to be joking.
What the Supreme Court said in Bilski was that business methods were not categorically excluded. That is what they said. That is what they held. They did not hold that simply because a claim was directed to a business method that it was patentable subject matter, move on to 102/103/112, as you in your sock puppets consistently contend and INTEND by they phraseology you choose.
So stop it!!!!!
Quote the holding the way it was written. The fact that you resist speaks volumes.
35 U.S.C. 100 Definitions.
When used in this title unless the context otherwise indicates –
(a)The term “invention” means invention or discovery.
(b)The term “process” means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.
(c)The terms “United States” and “this country” mean the United States of America, its territories and possessions.
(d)The word “patentee” includes not only the patentee to whom the patent was issued but also the successors in title to the patentee.
(e)The term “third-party requester” means a person requesting ex parte reexamination under section 302 or inter partes reexamination under section 311 who is not the patent owner.
(Subsection (e) added Nov. 29, 1999, Public Law 106-113, sec. 1000(a)(9), 113 Stat. 1501A-567 (S. 1948
sec. 4603).)
35 U.S.C. 101 Inventions patentable.
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
The words you seek are in 101 – “any process,” combined with the definition of process in 100 yields “any process, art, or method.”
Your turn. Show me where those words are kept out of 100 or 101?
"Business, medical, software, cooking, and many more different methods are all statutory subject matter."
I'm game.
Show me those words in 100 or 101?
Well Ned? Is this you? Or did you just steal the identity of some innocent person and trash their name on this board? If it’s the latter you are lower than a snakes belly and scu m of the earth. Funny how you are silent now after making such a big stink about posting under your real name and how that made you better and more accountable than the other attorneys here that post anonymously.
Ned, once again you have ducked, dodged and evaded the questions asked of you, and failed to address the points expressed in the discussion.
You run up the count on these multi hundred threads and leave without ever fully answering the questions put to you.
Typical Ned,
Typical Troll,
Typical Shill.
Typical Ned the troll. He comes in these threads making outlandish statements about patent law knowing full well it will inflame the legal patent community. And when he is challenged and questioned he just walks away laughing, probably all the way to the bank. He has no back bone, no integrity , no ethics and zero accountability.
Excuse me but what point do your believe you have proven ?
Business, medical, software, cooking, and many more different methods are all statutory subject matter. I do believe the only methods that are not statutory are tax, math, and pure mental methods. Are there others?
Ned, All you have, yet again, is smoke.
AI:
Quoting Ned: “…for thousands of posts I tried to pin down people on the other side from their bold statements that all business methods were eligible for patenting. The statements were made time and again by Actual Inventor and by others.”
AI: “You are a l IAR Ned and that is no joke.
What has been pointed out to you by myself and others is that business methods were upheld by the Supreme Court as statutory subject matter.”
QED
6, I am not paid to comment on this board. I am convinced that some of the people on this board are paid to comment and that their comments are governed by policies that the lobbyist groups they work for set.
You, on the hand, are a nutty examiner that varies between being fun to argue with to being an annoying wannabe willing to sell your soul to become one of them. Follow the light not the darkness. The criminal like minds are not the way, my young 6.
Things just keep getting more and more strange on this Ned Heller.
There is a Linked In hit listing a Edward Heller as Senior Patent COunsel with The TPL Group.
There is a Martindale.com listing the address of a Edward P Heller III as 350 Cambridge Avenue, Suite 250, Palo Alto, California – Googling this address leads one to believe that this is the address for Stanford University’s Office of Technology Licensing.
link to linkedin.com
link to martindale.com
link to stanford.edu
One gets the impression that a poor old man is being used as a dupe.
A little further digging reveals a link to The TPL Group.
What is disturbing from a reading between the lines is a notion that the Ned Heller posting persona may be purposefully daft and over the top (or alternatively, allowed and even promoted to be so). A peverse strawman as a strawman as a discredited spokeman for a cause that plays both sides of the fence and wins either way – discrediting the very causes that “Ned Heller” seems to advocate – as if it is known that Ned’s rants will cause discredit.
See link to tplgroup.net:8080
Sorry about the wait there NWPA, didn’t notice the response.
“If it is “nonsense” why do people pay so much for it ”
Why do people pay so much for instruments to crack a safe? Because they hope their investment will pay off is my guess.
“why does it take people so long to design and build it”
Because it is complex? Or they’re slow?
Is this like classic misdirection day?
“And even more importantly, why is it that some designs do so well why other designs do so poorly?”
Because some designs are poor and others are not?
“And, why is it that we see a pattern of long felt need and then someone creating a new invention that is wildly successful.”
Because there is a lot of need?
I don’t understand why you’re asking stu pid questions.
“People who do such things have a bad purpose.”
Less scamming people into paying for licenses, bad court cases and less exclusion of software authors from authoring new software is a bad purpose? Hmmmm. Idk bro. I really, I just don’t know about that being a bad purpose. It seems more like a “good” purpose to me.
“Their minds are like a criminal’s mind. They seek not to fairly characterize inventions, but obfuscate and create an artifice for judges such as the Cybersource 3 to use to overturn Allappat.”
I like how their minds work 🙂
“Mr. Stern have you ever considered that you are the problem? That you are actually an ill purposed man?”
Why don’t you go talk to this guy man to man?
“Congress has decided by not acting.”
Really? :/ Idk bro.
“But, here we sit with the money people trying to exclude business method patents through artifice.”
Says the money person.
In any event NWPA, you really should look into reconciling with the scamming you’ve been up to for the last few decades. It cannot be helpful to the human heart to bear the guilt of such a scheme over such a long time.
Sadly, AI, there is an Edward P Heller III (Ned being a shortened common name for Edward). Reg. No. 29075. The USPTO list shows an association with Alliacense Limited LLC.
See link to oedci.uspto.gov
Also see link to alliacense.com wherein the site appears to be an IP licensing type of organization (i.e. “Troll”).
Note too, that the bias against software is evident from the types of portfolios held (If software were held NOT to be equivalent to hardware (or even firmware), the value of the portfolios would increase).
I do not locate Ned Heller on the website, but do note that an Andrew Heller is on the ClearCube STRATA team biography page. Not sure if there is a familial relationship.
Ned: everybody else here?
I do not see ANYONE else coming to your aid and/or taking your position in this debate Ned. All is see is a gang of regular commenters and patent attorneys kicking the living sn ot out you with the law.
It was particularly satisfying to see Annie Mouse return to give you some well deserved whacks upside the head after the way you treated that respected commenter in past threads.
You have earned everyones ire and wrath with you condescending, patronizing attitude and flagrant disrespect for the law.
And quite frankly, deserve what you get.
Ned: “What a joke. You suggest that I was trying to avoid the merits of other people’s arguments when for thousands of posts I tried to pin down people on the other side from their bold statements that all business methods were eligible for patenting. The statements were made time and again by Actual Inventor and by others.”
You are a l IAR Ned and that is no joke.
What has been pointed out to you by myself and others is that business methods were upheld by the Supreme Court as statutory subject matter.
What has been pointed out to you by myself and others is that business methods are processes and methods same as any other process and method and subject to the same conditions and requirements under U.S.C. Title 35 as any of the other enumerated categories.
What has been pointed out to you by myself and others is that the Supreme Court never sanctioned passing a machine or transformation test as a requirement for patent eligibility.
What has been pointed out to you by myself and others is that the machines and transformations have always been held by the supreme as a clue to patent eligibility, and that a “clue” is not the same a test.
You Ned do not discuss the law, You obfuscate and conflate the law. When backed into a corner with case law and fact you attack and slander people while claiming to be slandered yourself.
Go ahead post your law firm, I will tell you to your face that you are a disgrace!
Where is the straw man in my post Ned?
Fact is you just posted up thread that :
Business methods are NOT trivial.
Business methods are NOT harmful.
Then you turn around and call ME delusional for saying what you just said?!?!?!?
I know you like to brag you are a real patent attorney posting under your real name and all. And I admit I have never bothered to check that out. But now I am curious. So where is your web site, or what is the name of your law firm?
I want to check out the great Ned Heller that acts like a total jack azz and id iot on this blog and see if it is indeed all an act.
that can be programmed however you want.
This
This is asinine.
So if I understand “this” correctly, the very first programmable computer is due one whole h_ell of a lot of ees from oh_ell of a lot of people.
Take one giant Morse-invent-anything-that-follows pill and call me after you wake up from your lunacy.