Patentable Subject Matter: Supreme Court Challenges Chief Judge Rader’s Broad Notion of Software Patentability

by Dennis Crouch

WIldTangent v. Ultramercial (Supreme Court 2012) Docket No 11-962

The Supreme Court has rejected another Federal Circuit patentable subject matter decision with a GVR and has ordered the appellate court to review its patentability decision with further consideration of Mayo Collaborative Services v.Prometheus Laboratories, Inc., 566 U.S. ___ (2012). In its standard GVR language, the Supreme Court wrote:

The petition for a writ of certiorari is granted [G]. The judgment is vacated [V], and the case is remanded [R] to the United States Court of Appeals for the Federal Circuit for further consideration in light of Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. ___ (2012).

The patent at issue in this case claims a particular method for distributing copyrighted products over the Internet. Patent No. 7,346,545. The basic gist of the invention is that the consumer receives a copyrighted product in exchange for viewing an advertisement — and it all takes place over the internet and with a particular monetization scheme.

In its broadly written opinion, the Federal Circuit (Rader, C.J.) found the claimed invention patentable under Section 101 based upon the requirement that a computer be used to perform the method and the programming complexity required to carry out the claimed elements. The court wrote that while “the mere idea that advertising can be used as a form of currency is abstract, just as the vague, unapplied concept of hedging proved patent-ineligible in Bilski,…the ‘545 patent does not simply claim the age-old idea that advertising can serve as a currency. Instead, the ‘545 patent discloses a practical application of this idea.”

Following the Federal Circuit decision in Ultramercial, the Supreme Court decided Mayo v. Prometheus. In that case, the Supreme Court rejected the Prometheus patent as effectively encompassing an unpatentable law of nature. That revives the historic notion that the scope of knowledge held in the prior art is an important aspect of the Section 101 analysis.

The Supreme Court issued a parallel GVR in the gene-patent case of Myriad Genetics. Other pending 101 appeals include Fort Properties v. American Master Lease (en banc petition); Accenture Global v. Guidewire; Bancorp Services v. Sun Life; and others.

Claim one the ‘545 patent reads as follows:

1. A method for distribution of products over the Internet via a facilitator, said method comprising the steps of:

a first step of receiving, from a content provider, media products that are covered by intellectual-property rights protection and are available for purchase, wherein each said media product being comprised of at least one of text data, music data, and video data;

a second step of selecting a sponsor message to be associated with the media product, said sponsor message being selected from a plurality of sponsor messages, said second step including accessing an activity log to verify that the total number of times which the sponsor message has been previously presented is less than the number of transaction cycles contracted by the sponsor of the sponsor message;

a third step of providing the media product for sale at an Internet website;

a fourth step of restricting general public access to said media product;

a fifth step of offering to a consumer access to the media product without charge to the consumer on the precondition that the consumer views the sponsor message;

a sixth step of receiving from the consumer a request to view the sponsor message, wherein the consumer submits said request in response to being offered access to the media product;

a seventh step of, in response to receiving the request from the consumer, facilitating the display of a sponsor message to the consumer;

an eighth step of, if the sponsor message is not an interactive message, allowing said consumer access to said media product after said step of facilitating the display of said sponsor message;

a ninth step of, if the sponsor message is an interactive message, presenting at least one query to the consumer and allowing said consumer access to said media product after receiving a response to said at least one query;

a tenth step of recording the transaction event to the activity log, said tenth step including updating the total number of times the sponsor message has been presented; and

an eleventh step of receiving payment from the sponsor of the sponsor message displayed.

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

272 thoughts on “Patentable Subject Matter: Supreme Court Challenges Chief Judge Rader’s Broad Notion of Software Patentability

  1. There do seem to be a very odd crowd that want to end software patents. Just remember that in Diehr the SCOTUS recognized that software patents could be, but shouldn’t be, excluded using one of their exceptions. You know, all of this brings up a rather interesting point. If Congress amends the patent act to include software patent explicitly, then the SCOTUS would have to declare that unconstitutional under their current course.

    I think a lot of the madness on this blog are from PTO folks or people aligned with them that just don’t want to do their work. I think Ned may be Richard Stern. It is certainly possible.

  2. “It’s time for a little honesty. It’s time for those who don’t know the art to recognize that others who do see right through the falsehoods propagated in order to fulfill some agenda. It’s time to end that denial.”

    It’s time that everyone on this blog call Ned out for being the dishonest, shilling, agenda pushing POS that he shows himself to be.

  3. by claiming their use of old and conventional tools

    But this is exactly what Diehr did

    That’s exactly right. I tried to tell Mr. Heller this, that everything physical was old and conventional. He could not accept the fact that the only thing new in Diehr was basically the control programming. That such was the true focal point of novelty.

    Also, see the post by “Some Common Sense From The Manufacturing World,” who on May 22, 2012 at 07:27 AM said in reply to 101 Expert Clears Things Up:

    The chemical processes involved in rubber curing are well known, as are the monitoring of process variables, the use of arrhenius equation to compute cure time, the notion that variables be recomputed and readjusted, and the use of computers for ‘automatic process monitoring.’ ”

    THREE YEARS before Diehr, the above quote has been only superficially modified and shows the complete difference in the cases of Flook and Diehr was where Stevens speaks from.

    In one, he speaks from the majority, in the other he speaks from the dissent.

    If anyone tries to tell you that what is going on is anything else but a philosophical tug of war, they are being dishonest. Anyone with any background in manufacturing can see right through the crrp and see that there is no fundamental difference between Flook and Diehr. None.

    It’s time for a little honesty. It’s time for those who don’t know the art to recognize that others who do see right through the falsehoods propagated in order to fulfill some agenda. It’s time to end that denial.

  4. “Mathematical algorithms, abstract ideas, mental steps, and laws of nature cannot be made in the patentable subject matter simply by claiming their use of old and conventional tools.”

    But this is exactly what Diehr did. And you have YET to reconcile the Diehr case with Prometheus.

    Here is a hint, integration. Oh wait, you are afraid to broach that subject too.

  5. Ned, you dishonest POS, what is so hard to understand about ,

    WE DO NOT SO HOLD”?!?!?!?!?!????

  6. holding by the Supreme Court in Benson

    More of the crrp Ned? Last time you said this someone stuffed your piehole with a quote from Benson that emphatically said the opposite. WE DO NOT SO HOLD

    You L I E S have all been seen before. Your crusade is a tired repeat.

  7. patent litigation, what you say here is undoubtedly true — That the patent bar neither knows what an abstract idea is, and seems to think that calling for the execution of a nonpatentable abstract idea on an old and conventional computer somehow is sufficient. But that shows just how resistant the patent bar actually is do what should have been a very obvious and clear holding by the Supreme Court in Benson where the Supreme Court held that to be patentable, a process had to provide a new and useful result. Simply reciting in a claim its execution by generic general purpose computer, or by analogy, any old and conventional tool, such as the Internet, is not sufficient. That case was clear on this point, but has been resisted by the patent bar ever sense.

    First they tried to confine the scope of the holding in Benson to mathematical algorithms.

    Next they tried to confine the scope of the holding to process claims, believing that a claim to a programmed computer was per se patentable.

    When the Federal Circuit came down with its Bilski decision, confining process claims to subject matter that transformed an article into a different state or thing, or was limited to a particular machine, understandably the patent bar was beyond perturbed. They argued, and justifiably so, that the holding of the Federal Circuit threw into doubt claims to programmed computers, or processes claiming execution on a programmed computer or the Internet. They argued that while the Bilski claims were not to be consider patentable subject matter, they argued that the problem with the Bilski claims was that they were not limited to execution on a programmed computer.

    All this goes to show is that the patent bar has been existing in an alternative universe of their own making, all but denying that Benson ever existed. The Supreme Court now, in Bilski and in Prometheus, has reaffirmed in spades that not only does Benson still exist, it means what it says. Mathematical algorithms, abstract ideas, mental steps, and laws of nature cannot be made in the patentable subject matter simply by claiming their use of old and conventional tools.

  8. Certainly, it seems like this and similar patent cases are just begging to be shot down; while it doesn’t appear that any of us really knows what an “abstract idea” is exactly, it’s increasingly clear to numerous observers that tying a process to the internet should not necessarily transform an abstract process into a patentable invention.

  9. It’ll happen with software too.

    Wow, never knew that software was just like perpetual motion machines.

    They can’t refuse to hear a case

    Check again – they can refuse a case if they so choose. They do it quite a lot actually.

    IANAE, you are a yutz!

  10. There’s nothing in the statute about perpetual motion machines either

    Look again.

  11. And by the way, you have not answered my question.

    Get in line. Get in line.

  12. Oh look Anon, no answers yet!

    Don’t let any olive branches get in the way of those dodgeballs.

  13. The SCOTUS said in Diehr that computer programs should be decided by Congresss,

    That doesn’t mean they don’t all individually fall within the exception. It just means that they shouldn’t be making a technology-specific rule. Especially in Diehr, which was not a software case.

    There’s nothing in the statute about perpetual motion machines either, but the courts decided that they all have something in common that coincidentally happens to exclude them from patent eligibility. It’ll happen with software too.

    Believe me, when someone finally decides to challenge Beauregard claims, the Supremes will have no problem deciding. It’s not like they’ll have a choice. They can’t refuse to hear a case because Congress should have passed a more specific law about it.

    They’ll hear the defendant’s argument that the claim is to a description of an abstraction printed on a thing, and they’re not going to be any more impressed by the disk than they were by the “transformation” in Prometheus.

    you mean the narrow triple 20 that is now about 15% of GDP?

    Like I said, everybody is aiming for it.

    I suppose these are the same kind of statistics as the recent study claiming that “we owe 25% of our jobs to IP” because grocery stores have signs out front. Bill Gates became an ultrabillionaire without patents, and people will keep buying software as long as they keep buying hardware. Software doesn’t need patents to be 15% of GDP.

  14. IANAE, this is just absurd on your part. The SCOTUS said in Diehr that computer programs should be decided by Congresss, which means–guess what–that they don’t fall within the exception. That is what they said in Diehr.

    A narrow triple 20, golly, you mean the narrow triple 20 that is now about 15% of GDP? That narrow triple 20?

  15. 6, the SCOTUS said in Diehr that this swath that we are talking about should be decided by Congress. Guess what that means? It means that if they so held, then they are going against Diehr’s holding in now claiming it is all covered by an exception. Abstraction? Which must be the most finger on scale exception in the history of man kind. Basically, I don’t like you so you die.

  16. Ned, really.

    You obviously want to import european practice regarding 101 into the U.S. I can tell you from my practice that european practice is a mess. Terrible. Horrible. And, any set of rules that encourages attorneys not to claim the invention for what it is, is a bad set of rules.

    But, you know all this. Anyone that deals with europe konws how absurd the 101 jurisprudence is.

    And, any 101 test that takes you 20 minutes to explain and involves at several subjective judgements on the part of the fact finder is a bad test. Bad test. The SCOTUS has take MOT and TSM, both of which were basically good tests that would have enabled the USPTO to function properly and destroyed them for no apparent reason other than they seem to like to burn down the system. The conservatives on the court are now the black panthers of the 1960’s. Burn baby burn.

  17. Look, Rich’s main vice was that he thought he knew better than even the Supreme Court.

    Isn’t that the point that David Stein makes? The judges at that level do know more than the Supreme Court Justices. In fact, this particular judge intimately knew more, since he wrote the law.

    Your answer seems to only fan the flames of those posters who (apparently correctly) are wondering why you harbor such animosity towards one particular person.

    Your answers just are not adding up.

    And by the way, you have not answered my question.

  18. Wow, that’s some serious pedantic semantic game playing Ned.

    But you forgot your asterisk as once again you obfuscate the difference between patent eligibility as discussed in a single application subject matter context and the category group context. Once you keep this in mind (and appropriately note your comments with suitable asterisks) we can all have as many olive branches as you have tucked away.

  19. Night, not really.

    Consider a disk drive (an area where I have a great deal of experience) that has an electric motor that we want to spin at a particular RPM. If the prior art used an analog circuit to control the RPM, I consider the substitution of a general purpose digital computer for the analog circuit to be entirely patentable. Here, the general purpose of the computer would be hooked into the disk drive circuitry at one end with what we know as an analog-to-digital converter, and at the other end with a digital-to-analog converter. The sole novelty however could be in the algorithms implemented in the digital computer.

    Àlappat was just like this example to the extent that a digital computer hypothetically could have been substituted in for the special-purpose digital circuitry disclosed and claimed. There the digital computer would’ve had to accept digital data words output by other circuitry in the graphics display machine and would have to output digital data words in a format understandable by downstream circuitry in the graphics display. The hypothetical general purpose digital computer substitution would have then been tied to the specific machine disclosed and claimed.

    I fully support the application of computers to improving circuits, particular control circuits. There is nothing at all about this though that would justify the general notion that programmed digital computers are patentable subject matter when they are not tied into a specific use or a specific machine. I hope you can see the distinction.

  20. Anon should reply: “Ned, I accept your offer of defeat, but typically it is the victor that sets the terms.”

    Suggested terms:

    – Ned be the one that puts an asterisk in his arguments that clearly indicate when he is prevaricating or obfuscating or simply making things up whole cloth (might need multiple asterisk designations in order to keep track).

    – Ned openly admit defeat when bested iin legal and other discussions, so as to not give olive branches a bad name.

    – Ned actually learn the law of 101 and how to understand case law and address his changes to the law as what they are: changes to match his agenda.

    I would be supremely disaapointed if Anon accepts anything less.

  21. Ned is going down in flames and offers to give an olive branch?

    Must mean that he can give no answers.

    The next time Ned that you want an adult conversation, be prepared to give answers to the tough questions, not olive branches. Olive branches don’t explain your duplicity and only appear like you are trying to buy off the opposition.

  22. Look, Rich's main vice was that he thought he knew better than even the Supreme Court.  He wanted to rewrite patent law using his bully pulpit and his status as being a co-author of the '52 Act to shape patent law to his view of things.  He was not just pro-patent.

  23. Can't simple, as you should have noted, Dragon inserted "plane" for "plain" and I didn't catch it.

    But in general, machines are patent eligible by statute.  The question in a particular case is whether the claim is legitimately for a machine.

    The same is not true of a particular kind of machine (such as a programmed computer).  The statute does not mention programmed computers.

    Ditto methods or processes.  While these are patentable if certain requirements are met, not all processes are patent eligible.  Bilski emphatically decided that issue, as the argument on appeal was that the Bilski claims defined a process (a series of steps) and that should have been sufficient to move on to 102/103/112.

    But,  just like machines, specific kinds of processes are not mentioned in the statute and therefor are not anywhere near the kind of categorical inclusion as are machines or compositions of matter.

      

  24. anon, since we have had good conversations in the past, I will offer you an olive branch.  If, in the future you say

    "Business Methods are* eligible subject matter under 101."

    or the like, use an asterisk like the above to indicate that you do not mean "categorically" eligible.   I will be happy with this.

    OK?

  25. “And, if you built a phycisal machine to perform the information processing algorithms, they would have just as much structure.”

    The day you submit such an application is the day they will begin to be legitimately granted, if they pass 102/103. However, after a few hundred thousand are issued, then the art will start to dry up because we will know about these special structures.

    That is legitimate and I will condone it, just as the judges condoned it in Alappat where there was a means p f bringing actual structure into the claim.

    However, NWPA, you guys want to file apps on just the function, and not tell us about the special structure, then we end up with an art of functions, and no structures upon which we can base future rejections (and indeed, have a record of for posterity).

    And btw, the judges I think do understand it. Indeed, this is the very reason why many of these claims are going to start falling (like ultramercial). Randy thinks the claim requires an extensive (and we presume, special) computer interface and programming etc. but the applicant doesn’t tell us anything about these special structures. He just tells us about the function thereof, and that is an abstraction. As such it’ll get blown away.

    “claims that the structure of a computer program is unrelated to its function, which is of course, a total and complete lie.”

    Idk about that man, I mean, it CAN be. In certain comps. But in other machines different parts might be arbitrarily arranged at a given time to perform a function. Those are known as “general purpose computers”. And people are all the time trying to claim these general purpose computers by relying on functional language that is “related” to the actual underlying structure which BTW they did not disclose and nobody knows what is.

    O and NWPA, don’t presume maliciousness when ignorance will explain Lemley’s actions.

  26. “Gosh, let’s just apply a narrow exception to wipe out patents for a large swarth of inventions because we don’t like them.”

    Well, to be sure, that “large swath” is actually just a very narrow swath of the whole of inventions.

    “Just bully and lie and life goes on.”

    Says the man that’s been bullying and lying about software for the past 30-40 years.

  27. “So, I guess the court is saying that one can get a patent for a physical machine with gears and paper cards that performs information processing methods, but if you figure out how to abstract the problem so that you can solve the problem without actually building the physical machine, then you get no patent.”

    Don’t be so sad, you can still get a patent if you abstract the problem so that you can solve the problem without actually building the physical machine as long as you go ahead and build the physical machine and claim that.

  28. Idk about that, the people submitting inventions before me the majority of the time I’m quite happy to have helped out. It’s just you fringe elements that need a stampin’.

  29. Obviously they are not on the same plane

    Why not? Are you saying that the categoty of “process” (i.e., “method”) is not on the same plane?

    Can you supply, as Anon notes, some legal authority for making a different plane for method patents from that of machine patents?

  30. anon, you do not disassociate yourself from the sock puppets who consistently used ad hominem attacks as a substitute for legal argument. As far as I know, you are a sock puppet.

    Same can be said for you Ned, especially with “MM” or “Malcolm” or “Hans Blix” or any other name that entity engages under. See my posts about you and your love affair with Malcolm, 6 and their “ilk” and their “swagger.” Your response to that whole pile of offensiveness is to “enjoy it.”

    You too consistently use ad hominem attacks as a substitute for legal arguments. Stop with the indignation game. Stop with the accusing others of that which you do game. Those things do not work for Malcolm. They do not work for you. They are petty attempts at not answering questions put to you.

    Stop the games and join the conversation.

    As for your instant accusation that I do not engage in particular case analysis, that is patently false. We have crossed swords on a number of particular cases including Alappat and my legal reasoning overwhelms your position time and again. The fact that you do not acquiesce to my analysis is a “you” problem which I cannot resolve.

    As for putting things “on the same plane” it is you againthat engages in sophistry. Show me the legal source of your authority to engage in category-level discrimination. You mouth an argument based on individual application claim level eligibility, and then retreat to a false “as a category” position. I call you out on this very thing and you supply only accusations and shallow indignation, but no answers and definitely no legal authority for your actual – and not pretend – actions.

    Sophistry indeed!

  31. A quite demonstration will illustrate

    If you have a point, make it. If you think you made a point, you have not. As I noted, the use of the word eligible has different subtle legal connotations when used in the singular instance of claims and whenused in the group instance of “as a category.” It is you that is playing the word games by obfuscating this. I am seeking clarity.

    You said “I remain your humble servant. What questions do you want to ask?

    I take the time to put the questions in context and address you directly so that you cannot claim you did not see them and to reduce the chance that you take things out of context.

    I receive indignation from you. I receive no answers from you.

    Ned, you can do better. If, as you claim, you want to have a meaningful discussion, you must do better.

    As I posted: what you don’t say speaks volumes; when you choose not to say anything speaks volumes. The ball is in your court. Answer my questions.

  32. anon, you do not disassociate yourself from the sock puppets who consistently used ad hominem attacks as a substitute for legal argument.  As far as I know, you are a sock puppet.

    But my rejoinder do you remains.  You criticize me for among other things misquoting cases.  You say that in general.  You will not however engage in an argument about a particular case.  Therefore your argument and your statement cannot be rebutted by counterdemonstration.  What you do is like demagoguery.  It is a form of ad hominem argument, but just a slight or polite.

    Regardless, the topic at hand is the statement that "business methods are patent eligible" or that "program computers are patent eligible."  You place these on the same plane as "machines" are patent eligible.  Obviously they are not on the same plane.  So your attempt to put them on the same plane is sophistry, plain and simple.

  33. What was the question again?  I think I was answering the observation that Benson did not hold that an old computer programmed to execute the claimed BCD-to-binary algorithm was not eligible for patenting.  I think it did.

  34. Put it to rest, anon.  It is you and your ilk that are playing word games and who have the agenda.    A quite demonstration will illustrate
     
    Machines are patent eligible.

    Compositions of matter are patent eligible.

    Articles of manufacture are patent eligible.

    Business methods are patent eligible.

    Program computers are patent eligible.

  35. Sock puppet, repeat after me:
     
    Business methods are patentable subject matter.
     
    Programmed computers are patentable subject matter.

    Machines are patentable subject matter.

    Compositions of matter are patentable subject matter.

    Do you see the problem yet?

  36. Regarding your last point that the CAFC may be more familiar with patent law then the Supreme Court, I would agree that this is true.  But when an issue gets to the Supreme Court, the judges on the whole, their clerks, the lawyers arguing the cases, the amicus briefs, flesh out a particular issue far beyond what happens at the Federal Circuit level.  There is an amazing boost in brainpower, research and overall skill level when an issue reaches the Supreme Court not only from the Federal Circuit, but from any circuit court.

    The alleged reason once upon a time for the duration of the Federal Circuit was to provide national uniformity the patent law.  Prior to 1980, some circuits were considered anti-patent and others pro-patent.  This led to forum wars.

    But I think the basic reason for the creation of the Federal Circuit was not this alone.  The powers that be at that time, including the CEOs of several major companies that depended on patents for their business life, wanted to get the country back onto a pro-patent track.  They viewed the CCPA as exceedingly pro-patent, but best of all that court had Judge Rich, who is the most pro-patent of any of the judges on that or any other circuit court.  He had a big reputation, and the patent bar was eager that all serious patent law issues be placed at his feet.
     
     

  37. Ned,

    I am on that list.

    Do you view my attempts to hold an intellectual conversation with you to be a case of “specialize in maligning [you]“?

    I have no need to apologize. What I malign are the positions in law that you have taken and the false positions that you have attempted to foist as law.

    Regardless, there is a major difference between saying a machine is patent eligible and a business method is patent eligible. A machine is a listed category, for starters. Your attempt at equating the two is farcical.

    What is farcical is your continued afferts to denigrate the valid category of methods. For starters, let’s look at the actual law:

    35 USC 101: 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.

    Process is right there next to machine. You cannot miss it. As to business methods as a category of methods, well, see my post earlier today.

  38. Gosh, let’s just apply a narrow exception to wipe out patents for a large swarth of inventions

    Oh, you’re back on the “narrow exception” thing? Still can’t understand why so many claims seem to run afoul of the “narrow” exception?

    Ever watch professionals play darts? The dart board is a smallish circle on a really big wall. The triple 20 is a tiny and narrow part of that smallish circle. How come so many darts hit the triple 20? Because they’re AIMING FOR IT.

    That’s what you’re doing when you draft a Beauregard or business method claim. You’re aiming for the narrow exception and hitting it.

  39. David, another excellent post and I largely agree with it.

    Indeed today there seems to be a balance in the court where in yesteryear there was quite a bit less balance.  I think you did correctly identified the judges on the court court today that remain expansionists.  I think the reason that the court in the 1990s and before was so radical in expanding the scope of patent rights without waiting for Congress to act had to be laid at the foot of one judge.  Rich.

  40. Gosh, you make everything just so clear, IANAE. Gosh, gosh, gosh, if only you had a brain. Gosh, let’s just apply a narrow exception to wipe out patents for a large swarth of inventions because we don’t like them. Gosh, let’s just lie about the invention. Gosh, let’s just pretend that we can’t understand a few simple concepts. Gosh, let’s just harass everyone that contributes a comment that takes more than 1 second to understand. Gosh. Gosh, I don’t care about the law or the truth. Gosh. Oh gosh. Who cares. Gosh. Just bully and lie and life goes on. Gosh, who cares. Gosh people will just work long hard hours on inventions for me because, gosh, they like me. Gosh.

    IANAE: you have and always will be an $diot.

  41. In my opinion anything new and marketable and valuable is in need of protetion from competition therefor grant the patent or your allowing the theft of the usage of it as long as its not stolen.

  42. Below, the folks you list specialize in maligning me.  Have you ever asked them to apologize? 
     
    Regardless, there is a major difference between saying a machine is patent eligible and a business method is patent eligible.  A machine is a listed category, for starters.  Your attempt at equating the two is farcical.
     
     
     

     

  43. So, I guess the court is saying that one can get a patent for a physical machine with gears and paper cards that performs information processing methods, but if you figure out how to abstract the problem so that you can solve the problem without actually building the physical machine, then you get no patent.

    If you invent a physical machine, you can patent it. But try patenting it without the actual machine, and you can’t anymore. Gosh, patent law sure is complicated.

    You just go to your local programmer or local boy that can invent and tell him what you want and the invention pops out.

    Pretty much, yeah. You don’t even need a programmer, since “instructions for doing what you want” generally ends up being the patent claim in its entirety.

  44. I don’t think your cut-n-paste argument is appropriate here.

    The quote from Benson is direct and straightforward, as is the given interpretation. Why do you not address this in an equally straightforward manner?

  45. Ned, let’s put this on the table in its entirety.

    One cannot say that any kind of methods are eligible subject matter without determining whether they are in fact claiming abstract ideas or laws of nature or natural phenomena. Every claim is subject to the exceptions. Every.

    Here’s where Ned Heller is playing word games and obfuscating:

    Ned is once again taking a specific singular instance and applying the Court’s rationale to a targeted, entire category.

    Note that Ned’s quote is dealing with subject matter, not as a category, but as an identified example. In Ned’s quote, it is in the specific instances, and thus singularly, that claims are determined to violate the judicial exceptions or not.

    Ned subtlely takes this quote out of that singular claim context and applies it at a doctrine level into a vendetta against an entire category of method claims in the first instance.

    That is a clear legal error. And it is deceptive to even attempt to paint the situation otherwise.

    Consider Ned’s misdirection:

    Thus, the term “eligible” has a specific meaning in patent law. It means that the claimed subject matter qualifies under Section 101 as patentable subject matter. The question still remain whether the claimed subject matter is patentable under 102/103/112.

    Thus further, when one states without qualification that a claim is eligible for patenting or that claimed subject matter is eligible for patenting, his meaning in that subject matter is patentable subject matter under 101, subject to disqualification under 102/103/112 for want of novelty and the like. The term is a legal term with a specific legal meaning.

    While it is true that the term has a specific legal meaning, it is Ned, not his opponents that then misuses that term. When Ned’s opponents talk about business methods, they clearly are talking about them not in a singular claimed matter, but as a category, a larger entity. Ned’s opponents are clear in which context the legal term is used – and used correctly.

    The ongoing discussion thus uses “eligibility” in a different sense than how Ned provides in his argument. The “trick” is that Ned, too, is using “eligibility” in this SAME larger group sense – and yet he is pretending NOT to. Ned is pretending that he is following the legal norms of the word in the sense of the singular instance. He is not.

    Cloaked is an attack on subject matter as a broad category and the legal term as applied against a singular instance of claimed subject matter. Ned would have everyone believe that those advocating for business methods to be deemed patent eligible are doing so recklessly. But it is Ned that is reckless. Ned twists a specific legal meaning and takes it from a singular instance context to apply it to an entire (and entirely targeted) specific category context. Clearly, it is the misuse and deliberate obfuscation of context that Ned uses in his arguments. The target of his agenda is clear and undeniable. He targets an entire category. Nowhere has he ever posted with such vim against any other category. It is Ned that is playing games with context.

    One can no more make a blanket statement that business methods are patent ineligible than one can make the statement about any other category of methods. That is the sole reason why the example of medical methods stings so much.

    Does Ned endlessly rail against medical methods? No. Why? And more importantly, why does Ned endlessly speak out against business methods?

    The question, Ned, is consistency.

    You throw out a quote from State Street, impliedly stating that business methods were errantly forced into the patent world. In doing so you confirm that you have an agenda, since not only do you not explain your inconsistency; you continue to seek to validate that inconsistency.

    One would have thought that the majority opinion in Bilski would have been enough. That the rationale accepted by the highest court behind Congress choice of enacting specific legislation would have been enough, but no – much like Stevens, who would rewrite law and directly countermand Congress from the bench, Ned continues his quest against an entire targeted category of methods.

    This, rather than some “colloquial usage,” has the debate been about.
    The “whole debate” has been about Ned’s improper usage and selective category targeting.

    The usage of the legal term of eligibility simply is different when discussing an entire category, precisely because a category is not a specific instance. It is telling that the quote Ned pulls from State Street is the court’s renunciation of a categorical approach of denying eligibility to an entire group of subject matter regardless of individual claimed subject matter, a categorical approach that is clearly the focus of Ned’s agenda.

    One can – and should – talk about the eligibility of A claim, ANY claim, ALL claims – in their singular instances. But that does not mean that one cannot also discuss eligibility on a larger scale, on the scale of “as a category.” This is expressly, legally correct when discussing a doctrine, such as the business method exception to patentability, that itself treats the entire category as eligible or ineligible.

    The duplicity, then, is that Ned points to his opponents and rests his case on an alleged misuse of a legal term when it is Ned and his agenda that is misusing the term, obfuscating the singularity and the group aspects to suit his agenda. It is no accident that Ned rails against Judge Rich, whom he sees as personally responsible for the group (as a category) eligibility of business method patents.

    But that is simply what the law actually is.

    As a group, business methods are patent eligible. No one has ever said or implied that any member of ANY group gets a free ride past the individual and specific analysis of eligibility. Ned’s dance between the distinct and equally valid legal meaning of the term in two different contexts – group first, then singular instance – is what the debate has been about.

    Thus, properly framed and in clear context, Ned, explain your inconsistent treatment of the group, as a category and not in any singular instance of particular claimed subject matter, of business methods. Your agenda of reinstalling the discredited business method exception is clearly aimed at the group level, the as a category level. Why do you single out as a topic business methods? Why do you target the category of business methods in your endless posts? I have commented previously about having a summer intern pound through the raw data of Ned’s posts by subject matter.

    But we both know what the result of that exercise would be, don’t we?
    Shall we stipulate your unhealthy bias?
    Shall we stipulate the fact that you do have a singular (category) target?
    Shall we stipulate that you have an agenda?

    Why the inconsistency Ned? Why the agenda?

  46. So, I guess the court is saying that one can get a patent for a physical machine with gears and paper cards that performs information processing methods, but if you figure out how to abstract the problem so that you can solve the problem without actually building the physical machine, then you get no patent.

    I think KSR is related to this. As they have decided that hind sight is just fine and that no invention is really worth much. You just go to your local programmer or local boy that can invent and tell him what you want and the invention pops out. That is why the whole world without patent systems does so well inventing (sarcasm if you didn’t figure it out).

  47. A key to these arguments is structure and where is the structure. It is hard to understand and you can’t “see” it with information processing algorithms, but it is there every bit as much as an oven.

    Consider making physical machines that can do the information processing. For example, consider card readers. They had physical structure and no one doubted that they were eligible for patentability. And, if you built a phycisal machine to perform the information processing algorithms, they would have just as much structure. And, a patent application would recite or refer to all the known structure for performing various subfunctions. In other words, there is every bit as much structure associated with an information processing algorithm as there is with any physical object. The judges just either do not understand it or do not want to understand it.

    ===what I have said above is core and key to understanding everything to do with 101==============================

    One interesting fact is that Lemley who is a product of Silicon Valley which in many ways is far more an exploitor of inventions than a creator of invetions, claims that the structure of a computer program is unrelated to its function, which is of course, a total and complete lie. This is simply wrong which anyone that has a mind to read alittle of the literature would quickly come to understand. So, this is a a Lemley. An intentional lie that strikes at the heart of patentability.

    Imagine taking any of these information processing algorithms and building a physical machine that represents information and then carries out the information processing method. A complex card reader for example that can write cards would work. Do you really think that the information processing algorithm would not affect the structure of the physcial machine? Outrageous lies in outrageous times with shameful amoral people.

    And yes I would welcome a challenge by Lemley to try to defend his outrageous statements that the structure of an information processing method is unrelated to the function of the information processing method. The only thing I can figure is that the great unwashed is just unable to see through people like Lemley.

  48. For the rest of the story and in context, State Street Bank continues with:

    The business method exception has never been invoked by this court, or the CCPA, to deem an invention unpatentable. 11 Application of this particular exception has always been preceded by a ruling based on some clearer concept of Title 35 or, more commonly, application of the abstract idea exception based on finding a mathematical algorithm. Illustrative is the CCPA’s analysis in In re Howard, wherein the court affirmed the Board of Appeals’ rejection of the claims for lack of novelty and found it unnecessary to reach the Board’s section 101 ground that a method of doing business is ‘inherently unpatentable.’” (citations removed)

  49. The reason why Rich was able to toss the SC Benson decision aside as he did was because everyone at that level knew that Stevens was wrong and Rich was right. Stevens’ dicta, full of the anti-patent philosophy would wither if put to the test. Stevens applied excpetions based reasoning because he knew the SC does not have the consitutional authority to write patent law from scratch and thus had to finagle an exception to what otherwise passes the congressional (read that as real and constitutionally authorized) law.

    Stevens, not Rich is the judicial scoundrel, the activist stepping outside the bounds of law. Bend the nose of wax? Stevens took a sledgehammer to it.

  50. The only one doing the misleading is Ned Heller.

    Imagine, trying to apply the exception as if it were an exemption.

    Silly Ned, exceptions only apply to things that pass the first gate. No first gate, no exception. That’s why things can be patent eligible and still fail 101. That’s why your little word games with eligibility are a crock of shht. That’s why you keep getting pummeled in these 101 threads.

  51. So since Bilski was denied a patent under the EXCEPTION of being abstract, his business method had to first pass and be eligible under the law, right?

    Boy, that puts a bit of a damper on Ned’s Crusade.

  52. You have shown Ned Heller an inconvenient truth.

    Let’s see if a) he answers, and b) he answers honestly.

  53. Open your eyes and answer the questions.

    Sorry AE, the line for Ned to answer questions begins way, way, way over there. He will ignore your questions just like he ignores anyone else who asks him questions on things he does not want to address.

  54. Ned is in denial.

    He cannot see what he refuses to see.
    He refuses to know that he doesn’t know.

    There is something seriously wrong with the dude upstairs.

    And on another note, has anyone else observed the subtle drift in language used to describe the judicial exceptions? Re-reading A New Light’s view on ppower grabbing by the Court, one has to wonder why the intelligensia have not picked up on the fact that the three Court additions are called exceptions. That is, they are exceptions to what the legislators have decided what the law is.

    As A New Light has pointed out, they have placed a gate before the gate. This is also how Ned looks at this. He has posted that you have to treat the exception first. This of course is wrong. Everyone knows that the way to treat legal exceptions is to first treat the condition and only if the conidtion is met then you apply the exception to see if it falls out. In a very real sense then, eligible is indeed a very large set.

    Once you figure out eligible, then and only then do you apply the exceptions.

    So, according to the constitutional design of appropriate power, it is perfectly correct to say that business methods are eligible. In a nod to Anon, they are eligible just like any other method (and yes, Ned, Anon has been consistent in his views and in his application of law, unlike you). It is only after the rule of eligibility as designed by the legislative branch does the question of exceptions created by the judicial branch get to be asked.

    The point is clear. All law is applied to methods, regardless of category equally. No wonder why so many people like to yank Ned’s chain with the medical methods logic. The Prometheus case is a perfect foil for shinging a light, a giant spotlight on Ned’s inconsistency.

  55. “So, how can this claim be seen as allowable regardless of any 101 question?”

    Because courts overlook what amounts to an objectionable matter all the time.

  56. > The whole country notices how the Federal Circuit historically seemed bent on expanding patentable subject matter into new areas (bacteria, plants, mice, DNA, business methods and software, to name a few), lowering the standard of invention, and otherwise being a tool of the patent bar.

    I don’t buy it.

    First: The clear trend in CAFC decisions over the last decade is a constriction of patent owners’ rights. Consider the rising requisite standards of the disclosure; the reasons by which a patent can be invalidated or limited (e.g., estoppel and inequitable conduct); and the restriction and negation of claim styles like means-plus-function and signal claims.

    Many of those changes were imposed by the CAFC. As but one example, consider Bilski – arguably the most important section 101 case since State Street Bank. The CAFC’s Bilski machine-or-transformation test was arguably more rigorous than the standard set by SCOTUS in abandoning this test.

    Second: “The patent bar,” if it can be considered as a unit, is one of the most disorganized and feckless entities in existence.

    I can name exactly one instance where “the patent bar” united to argue a coherent position: Tafas v. Dudas, the case against the PTO’s intention to throttle its incoming docket by restricting RCEs. That’s it. In every other case, you have some patent owners arguing one way, and other patent owners arguing the other way, and the rest of the “patent bar” (e.g., AIPLA) refraining from comment. Indeed, even in issues where “the patent bar” should be a coherent and central player – e.g., the competing reform bills that culminated in the America Invents Act – AIPLA was largely helpless (because the competition was largely a dispute between various sets of large companies).

    As for the judges: I once saw a chart indicating the percentages of CAFC judges’ pro-patentee and anti-patentee decisions. Wish I could find it again, but I can’t. Anyway, it illustrated that the CAFC has judges who typically lean toward expansion, like Rader and Newman, and judges who typically lean toward restriction, like Michel, Dyk, and Mayer. It’s a gradient – as it should be.

    Again, my central problem is that the CAFC = experts in patent law who spend 90% of their time on patent law, while SCOTUS = general law experts who spend less than 2% of their time on patent law. Do you contest these facts?

  57. Ned, if you think your response is making a point in my call for you to apply the law consistently, you have missed – and missed badly.

    business methods have been, and should have been, subject to the same legal requirements for patentability as applied to any other process or method.

    This legal truth remains in place regardless of what the Supreme Court did in Bilski. The plain fact of the matter is the the claim in Bilski failed because it was abstract, not because of what category the claim would be classified under.

    You are guilty of at least three logical fallacies:
    1) the Supreme Court does not recite every tennent of law in every case. Just because it was not used in Bilski, does not mean that it is no longer a legal truth.
    2) the legal truth calls for equal and consistent treatment. Forever and a day this has been my position and quite frankly, the antithesis of yours. You are he with an Agenda and the attempted unequal treatment under the law based solely on category of method. You offer no defense to this damming charge other than unbelievable – and patently false – denials. You still have not addressed that issue of consistency of legal treatment, playing dodgeball.
    3) In no way do you address the false position advanced by Stevens and apparently subscribed to by you as current law – in that the animosity toward business methods is untethered in any law passed by congress or in the constitution. You have zero basis for your bias. Zero legal basis, that is – I know, in fact it is plainly evident, that you have a philosophical basis. It is plainly evident that that is what your agenda is.

    Your penchant for getting case law so horribly wrong and so often on this topic is clearly driven by your zeal for your agenda, as you are clearly running blind.

  58. Ned: “Actually, at one time AI did contend exactly that business methods were eligible, move on to 102/103/112.”

    There is nothing wrong in saying that.

    That’s the same as saying processes, machines, articles of manufacture, and compositions are eligible, move on to 102/103/112.

    Yes, we all know about the judicial exceptions. And no one has ever said business methods are exempt from those exceptions either

    So the above is a fact and it’s the law.

    And now you owe an apology to anon, AI, and anyone else you have accused, misquoted, maligned and insulted on this issue.

  59. > Please say it ain’t this bad.

    Signs point to regrettable:

    link to inventivestep.net

    > What happens to your patent term during this seven years?

    According to the PTO, the application is entitled to a patent term extension… but only for successful appeals. If you lose at appeal, yes, seven years of your patent term are flushed.

    This issue deserves more visibility in our community.

  60. David, no.

    We can and do get judges on the Federal Circuit with pro-patent agendas.  The whole country notices how the Federal Circuit historically seemed bent on expanding patentable subject matter into new areas (bacteria, plants, mice, DNA, business methods and software, to name a few), lowering the standard of invention, and otherwise being a tool of the patent bar.  The members of the court are, after all, wined and dined by the patent bar and by patent law firms.

    Not so with the Supreme Court who keep the big picture in view, and who are not creatures of the patent bar.  Better, the Supreme Court Justices and their clerks are uniformly the best judges in the land, and among the best this planet has to offer.  They normally will get the policy right, leaving the minutiae to the Federal Circuit.

    Would you trust a military whose commander in chief was appointed for life like a judge and who answered to no one?  If not, why not?  After all, leaving military affairs to the military seems to be the most efficient.

    But there are larger issues, not so?

  61. That’s right: If you appeal a case, it will vanish for seven years.

    :: Mouth Drops Open::

    O M G! Seven years???

    Please say you are just trying to scare us.

    Please say it ain’t this bad.

    I always heard in was 2 years tops for appeals to be heard.

    What happens to your patent term during this seven years? Especially if it took 3-4 years just to get to the appeals stage.

    That’s 11 years gone from your patent’s life.

    And even worse, what if everyone is now infringing your patent claims, while your application is still pending?

    That’s 11 years of losing money and allowing others to get rich by stealing your invention.

    That has to be a better way than this.

    There has to be a brighter future.

    Anyone else have a rosier outlook?

  62. > The bottom line, the Supreme Court is pretty good at getting things right. The collective wisdom and brainpower at the court is the best in the US, and perhaps the best in the world. Give them some respect.

    They are the best general-purpose judges in the United States. They are experts in general principles of law – especially the Constitution. They are not well-trained in the minutiae of every area of law.

    Why does patent law get the distinction of being the only topic in federal law with its own appellate court, populated with experts from the specific field of patent law? Because patent law is the most esoteric, specialized, and difficult area in the entire body of federal law. Even the tax code doesn’t have a specialized court.

    We have selected the brightest minds in the country on the specific topic of patent law, and asked them to spend 90% of their time adjudicating patent law issues. And over them, we have placed a body of 12 extremely bright generalists who spend about 1% of their time on patent law issues. Do you see a problem with that strategy?

  63. Actually, at one time AI did contend exactly that business methods were eligible, move on to 102/103/112.

    Further, the statement that "business methods ARE eligible" subject matter under 101 means exactly that to the ordinary observer.  I know you know this to be the case as well. So the statement is intended to mislead and is misleading.

  64. > Do Examiners get productivity counts when you file an appeal? If no then why not just skip the RCE and file the appeal?

    Here’s the key fact about BPAI appeals, from David Kappos’s blog:

    “As of March 2012 (half way through FY2012), the board had disposed of 4,310 ex parte appeals from patent applications. That’s a pretty good pace of 718 per month. Unfortunately, 6,722 appeals were filed during that same time frame, an average of 1,120 per month. So, a net 402ex parte appeals from patent applications are being added to the board’s docket each month. The backlog of 23,963 appeals at the end of FY2011 has grown to 26,375 as of March. The pendency from filing to board decision for these applications is 83.8 months or nearly 7 years.

    That’s right: If you appeal a case, it will vanish for seven years. By that time, the examiner will have moved on to SPE or left the PTO – and a finding against the Examiner’s position will be Someone Else’s Problem.

    In other words: Filing an appeal causes the case to essentially vanish, and never bother the Examiner again (aside from the Examiner’s answer to the appeal brief… about which, see below).

    The Board is effectively unavailable, and this situation will persist for a long, long time.

    > Also, in your experience is it true that Examiners often allow the case when appeals are filed, partly because they don’t want to take the time to write a response?

    “Writing a response” = “cutting and pasting the last office action into an Examiner’s Answer.” I doubt the examiners even read the appeal brief. It can’t take more than a few minutes, start to finish.

    I’ve appealed five cases. Four went through the appeals filing process without additional substantive comment from the examiner, and will be adjudicated on the briefs in the indefinite future. For the fifth, the examiner simply withdrew the case from appeal and presented the same rejection citing different references that, in truth, aren’t any better than the earlier rejections.

  65. David, your post here needs to be cast in Bronze and placed in the forum of every PTO building for all to read.

    "Eventually, we'll reach the point where the office action will simply state one word – YES or NO – and a bunch of boilerplate."

    When I first started practicing, they simply checked a box for the statutory grounds and listed the references as A v. B (referencing the list of references cited.)  The trend towards a long-winded explanation is very modern, an artifact of modern word processors, PDF technology, and the internet.

  66. Ned,

    AI, anon, nor anyone EVER in the history of Patently O has ever said, business methods are NOT subject to the same conditions and requirements of 102 103 and 112 as any other method. For you to imply such is just below the belt dishonesty. Why, it’s lower than a slugs anus.

  67. anon, I asked the reader to reference State Street Bank.  You should too.  It says, in part, 

    "As an alternative ground for invalidating the '056 patent under § 101, the court relied on the judicially-created, so-called "business method" exception to statutory subject matter. We take this opportunity to lay this ill-conceived exception to rest. Since its inception, the "business method" exception has merely represented the application of some general, but no longer applicable legal principle, perhaps arising out of the "requirement for invention" — which was eliminated by § 103. Since the 1952 Patent Act, business methods have been, and should have been, subject to the same legal requirements for patentability as applied to any other process or method.[10]"

    Rich believed Section 103 overturned the exception.  Really?  In the end, the SC held in Bilski that Congress had not categorically excluded BMs, but did not rely on Section 103! 

  68. David, I have a couple of questions.

    Do Examiners get productivity counts when you file an appeal?

    If no then why not just skip the RCE and file the appeal?

    Also, in your experience is it true that Examiners often allow the case when appeals are filed, partly because they don’t want to take the time to write a response?

  69. Thank you again. Not does this show what the CAFC actually held, it demonstrates that Ned does not understand the difference between dicta and the holding in a case.

  70. Quite the opposite Colin, as patents allow the small to compete with the big established players, you know, the ones that doing that moving offshores bit.

    But by all means, continue to drink the kool-aid anti-software patent muck those same big established players feed you.

    You are right about one thing. You are extremely unqualified to comment on the legalaspects involved.

  71. > david, I have not had any serious KSR problems, ever. KSR is indeed cited, but the examiners are still persuaded by logic and at times evidence.

    A year ago, I moved to Alexandria in order to conduct most of my interviews with examiners in person (and in the presence of their SPEs, when necessary). I’ve conducted probably 60 in-person interviews in the past year.

    Based on these experiences, I’ve concluded that there are two kinds of examiners: those who understand and care about the technology, and those who don’t.

    In the first case, you can talk to the examiners about the subject matter of the case and the references. They will respond accordingly: if their references aren’t valid or can’t be combined, they will find new references or allow the case. (However, these examiners are less likely to have presented irrelevant or uncombinable references in the first place.)

    In the second case, the examiners care about exactly one thing: the length of your independent claims. If your claims are long, the examiner will allow them; if not, they will be rejected.

    Don’t bother talking to them about the contents of the specification or their cited references. Literally, they do not care, and nothing you say will make them change their positions. Their argument is not *based on* their references, but simply *nominally cites them*. If their SPE or the Board says their arguments aren’t sufficient, they will present the same rejection with other references (which often aren’t any more relevant).

    Examiners know two things:

    (1) Your client’s budget is limited, and if you don’t change position, you will eventually abandon the case.

    (2) Every time you file an RCE, they get additional productivity counts.

    Based on these constraints, examiners have no incentive to allow your case unless they’re actually forced to.

    KSR is part of a trend of reducing the requirements for Examiners’ office actions. I suppose that this reduces Examiners’ backlog (at the expense of higher appeals, but that problem is self-limiting: despite the diminishing quality of office actions, applicants are less open to filing appeals *because* the BPAI is so backlogged).

    Eventually, we’ll reach the point where the office action will simply state one word – YES or NO – and a bunch of boilerplate.

  72. Nobody has mentioned –

    This claim does not pass 112/2 for three reasons:

    1 – “the number of transaction cycles” lacks antecedent basis (and note, transaction cycles is not an inherent property);

    2 – “the transaction event” lacks antecedent basis;

    3 – “transaction cycles” does not provide antecedent basis for “the transaction event”;

    So, how can this claim be seen as allowable regardless of any 101 question?

  73. Business methods were historically thought to be ineligible.

    I’m not sure this statement has any traction, as the thought that accompanies it, via Bilski, is that that historical thought was held to be incorrect.

    Review the “dissenting” concurrence by Stevens and what he would have done outright to busines methods. His minority view is expressly not the law, and yet that is exactly how Ned reads the law.

    Clearly, Ned is incorrect.

    If it were the law, Stevene would have prevailed. He did not. Likewise, Ned does not.

    Ned,

    Your dissertation on “eligibility” is false. Like much of the “tricks” you have relied on in our discussions, (notably the categorically versus as a category twisting), you do not get to define the field to suit your agenda. I am (painfully) reminded that you have stopped short of actually engaging me in conversations when they conveniently no longer suit your purposes. Be that as it may. What you don’t say – and when you don’t say it – speaks volumes.

  74. I am extremely unqualified to comment on the above: I have worked in the software industry for over 40 years.

    I think it is right to distinguish what is useful to convert technology leadership to commercial leadership. In most cases, innovative companies have had to display strong commercial awareness, and have been able to outclass their competitors (better execute). Patents, or rather licensing, has had a major impact in my field: specifically, the restraints have applied to set standards across this field, and the impact of those standards have been truly beneficial.

    Nowadays, these standards are set predominantly by committee, and many require the standards not to be encumbered by patents, or to be licensed in a largely non-discriminatory manner.

    But this is what WAS, not will be.

    What will be? Innovation has moving offshore. The thirst for education, the collapse of the barriers to entry, and the wholesale outsourcing of skill have moved the new centres of innovation off-shore.

    So by all means continue with your “patent laws must follow”: it’s the last gasp of a dying industry. It will freeze the developed world out of innovation for the next century.

  75. anon, if you fully intend "not categorically excluded" then say so.  Until you do, I will not accept your explanation of what you "actually mean" with any credulity.

  76. Integration, what are you smoking?

    Business methods were historically thought to be ineligible.  Read, e.g., State Street Bank for more on that.

    The second statement is correct to the extent is goes.  The underlying process itself must also be patent eligible.  It wasn't in Flook.

  77. The Wares,

    Yes I did. He was unable – or unwilling – to explain the legal basis for his added conditions. Ned’s selective memory, and selective participation in discussions, must be on purpose and for a reason.

    His abrupt departure from our conversation speaks volumes.

  78. When Anon and others state that business methods are eligible for patenting, they are fully intending to imply that business methods are eligible for patenting in the legal sense, meaning that we should move on to 102/103/112

    Ned, this simply is not true.

    I have explained this thoroughly, repeatedly and consistently.

    Your mistatement of my position is what must be being done intentionally. As a reader today queried, why have you not answered my questions on consistency?

  79. Ned: Shouldn’t the novelty of the method of doing business be irrelevant?

    No, because methods of doing business are statutory subject matter. The Supreme Court explicitly refuse to over rule law this long held interpretation of the law. See Bilski.

    Ned:if the method of doing business is manipulating abstract concepts such as consideration, it seems to me that all uses of old and well known apparatus to carry out the method should not be enough move the ineligible into the eligible.

    Wrong. Claims are patent eligible subject matter because of the way the technology of the claim is integrated into the process as a whole.
    See Prometheus

  80. Ned, Alappat holding is very clear. There is nothing inconsistent with any Supreme Court precedent prior to that case.

    Most important, Alappat is consistent with Prometheus use of claims are patent eligible subject matter because of the way the technology of the claim is integrated into the process as a whole.

    Since Breyer went out of his way to tie this to the BFD cases, and overrule any precedent you are going to have an uphill battle now trying to justify any scheme to invalidate business methods, software, or computer related inventions.

    Guess you and MM got a little prematurely excited before truly reading an understanding the implications of the Prometheus decision.

  81. That’s like Ned reading and bringing up the Steven’s dissent when talking about about Diehr, or Bilski.

    What point is there to giving dissents any weight when the cases the dissent is from were not overruled?

    We now know from Prometheus that “Claims are patent eligible subject matter because of the way the technology of the claim is integrated into the process as a whole.”

    That has been tied in with Diehr, the case most on point.

    That’s the argument that has to be overcome by anyone declaring claims patent ineligible.

  82. Perhaps today, after 20 years of commercial internet use, most claims of this type will be well known at 102 and obvious at 103.

    But if it was 1993 and the .com domain revolution was coinciding with Mosaic and Netscape browsers bringing the WWW to the masses, such claims would definitely be patentable.

    The problem I have is when people, mostly those with an anti patent agenda, flat out say business methods, software, and anything being on or done by a computer is non statutory and fails 101, when that is not, and never was the law.

    It is imperative that we follow the law and encourage innovation in business methods, software, and computer technology because someone just might have an invention that is truly novel and non obvious that is useful to others.

  83. Very Dark,

    Let us make this clear.  The SC in both Benson and Bilksi refused to categorically exclude programmed computer in the case of Benson and business methods in the case of Bilksi from patent eligibility under 101.  

    Over the last few years, we have adopted the lingo that "eligibilty" means eligible under 101, while patentable means patentable under 102/103/112.  The Supreme Court has not adopted this distinction in its cases, as far as I know.

    Thus, the term "eligible" has a specific meaning in patent law.  It means that the claimed subject matter qualifies under Section 101 as patentable subject matter.  The question still remain whether the claimed subject matter is patentable under 102/103/112.

    Thus further, when one states without qualification that a claim is eligible for patenting or that claimed subject matter is eligible for patenting, his meaning in that subject matter is patentable subject matter under 101, subject to disqualification under 102/103/112 for want of novelty and the like.  The term is a legal term with a specific legal meaning.

    If one states that some subject matter is eligible, but only means that it is not categorically excluded, he is using the term eligible in a more colloquial usage, and confuses his meaning.  He is not using the term precisely.  Further, the confusing use must be intentional and for a reason.

    The whole debate with AI and with Anon has been about this and this alone.  When Anon and others state that business methods are eligible for patenting, they are fully intending to imply that business methods are eligible for patenting in the legal sense, meaning that we should move on to 102/103/112.  The do not intend to mean that business methods are not categorically excluded, because if that was their meaning, they would say so and use the language of the Supreme Court.

    The debate now extends to Benson and programmed computers.  The SC did not categorically exclude them.  The anti-Supreme Court advocates now state that programmed computers ARE (without qualification as to the use to which they are put, for example) eligible for patenting.  They mean it the same why Judge Rich did in the overruled In re Benson case when Rich stated,

    "Realistically, the process of claim 13 has no practical use other than the more effective operation and utilization of a machine known as a digital computer. It seems beyond question that the machines — the computers — are in the technological field, are a part of one of our best-known technologies, and are in the "useful arts" rather than the "liberal arts," as are all other types of "business machines," regardless of the uses to which their users may put them. How can it be said that a process having no practical value other than enhancing the internal operation of those machines is not likewise in the technological or useful arts? We conclude that the Patent Office has put forth no sound reason why the claims in this case should be held to be non-statutory."

    They are and have been wrong in their usage of the English language, and their meaning is clear and contrary to law.

  84. From Benson:

    "The patent sought is on a method of programming a general-purpose digital computer to convert signals from binary-coded decimal form into pure binary form.

    "It is said that we have before us a program for a digital computer but extend our holding to programs for analog computers. We have, however, made clear from the start that we deal with a program only for digital computers.

    " 'He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of thlaw of nature to a new and useful end.' We dealt there with a "product" claim, while the 
    68*68 present case deals with a "process" claim. But we think the same principle applies.

    "Here the "process" claim is so abstract and sweeping as to cover both known and unknown uses of the BCD to pure binary conversion. The end use may (1) vary from the operation of a train to verification of drivers' licenses to researching the law books for precedents and (2) be performed through any existing machinery or future-devised machinery or without any apparatus.

    "Transformation and reduction of an article "to a different state or thing" is the clue to the patentability of a process claim that does not include particular machines. 

    "It is conceded that one may not patent an idea. But in practical effect that would be the result if the formula for converting BCD numerals to pure binary numerals were patented in this case. 

    Reversed

     

  85. The highlight:

    Thus, ineligible = categorically out is NOT the same as eligible = categorically in.

  86. New machines are (categorically) eligible

    Once more into the Ned-breach of “categorically”…

    You should try reading the post by A New Light at
    link to patentlyo.com at May 17, 2012 at 05:08 PM. He explains why your word game is one giant fail.

    Be forewarned: this post is long.

    As I wonder about the war of words and philosophies evident not just her on Patently-O, but in the courts (and Court), my mind keeps returning to one word: eligible.

    I think it comes down to an understanding of patent eligible versus patentable.

    From Merriam’s:
    Eligible: (adj) 1a: qualified to participate or be chosen

    To make matters less clear, eligible means “able” to participate in the patent process. But do not confuse “able” and “patentable.”

    What started me down this path is when I realized that the use of the word “categorically” by Ned Heller is such a strong word, while the word “eligible” by Anon is not definitive of obtaining a patent. I was thinking that if something is ineligible it is indeed categorically outside of the ability to obtain a patent. But if something IS eligible, it may still be outside the possibility of getting a patent.

    Thus, ineligible = categorically out is NOT the same as eligible = categorically in.

    Being eligible only gets you so far. It only means that you are qualified to participate.

    This does not mean a patent will ensue. There are many reasons why a patent may not ensue.

    But what, or who in the following example, gets to participate? Who is invited?

    Let’s say that patenting is like a track race (an analogy I think works well). The invitation to the race is meant to be wide open. It is a passé clause included by the Court in every decision, no matter if the Court is limiting patents or strengthening them. Indeed, at times the Court appears to use the phrase as a throw-away, saying it but ignoring it. The more runners in the race the better. The more participation, the better. Thus in this sense, “eligible” should be a very large set and “ineligible” should be a very small set.

    Given that there are certain categories EXPRESSLY INVITED to the race in 101, does anyone deny that anything in these categories are defined as eligible?

    Let’s take a closer look at the definition of “eligible.” There are two different factors at work: qualified and participate.

    PARTICIPATE

    There is (or rather, there should be) no doubt that participation in the patent system is a good and highly desired thing. There is a reason why the patent clause ranks a constitutional place, and one higher than many other things (including the Amendments e.g., free speech). Participation is the ground floor for promotion, as there can be no promotion by the patent system without participation. This distinguishes the argument (a false one) by many anti-patentists that advances and promotion can happen without the patent system. Such is a false argument, a literal non-sequitur because the true argument has a ground floor the fact that we do have a patent system, and it is the rules of playing within that patent system that we are concerned about.

    So to be clear, the law and policy is to have as broad a participation base as possible.

    QUALIFIED

    This is where the real issue is. The rule of law laid out in the Constitution is for Congress to set out the patent system. And only Congress. Yet we have the Court making judicial law by choosing to “interpret” 101 where not only such interpretation is not required (there have been no actual cases and controversies demanding such), but that the result of such “interpretation” is actually the creation of controversy, ambiguity, and uncertainty.

    But if the Golan v. Holder case is any indication (and that case too dealt with the constitutional IP clause), the Court recognizes that Congress, not itself, is the arbiter of rules, the setter of boundaries. If, as in Golan, Congress determines that it can take things out of the public domain (long a critical no-no per the Court for patent matters), and the Court has blessed this power of Congress, then the Court cannot have an interpretation issue with the rules of Congress (the actual as written law of 101).

    So why the dichotomy?

    What the Court is doing with its treatment of 101 is actually setting up a gate before the gate. It is not enough to be eligible by being in one of the enunciated categories as explicitly provided for by Congress. There is a seemingly (if not literal) ultra vires eligibility that the Court has written above 101, because, as the Court notes, there is no legislative foundation for this judicial distinction of eligibility (see Bilski). This is why the Court’s writings on 101 leave such a bitter distaste in so many people’s mouths. The Court is not actually writing about 101. Congress gets to write 101. Congress has written 101. Rather, the Court has nowhere to peg its writing of patent law and merely chooses 101. An argument could be made that 100 would actually be a better place, defining, rather than applying law.

    The only other place (and the slender reed by which the Court might hang its legitimacy) is in the constitutional grant itself.

    Herein then, is what the Court is actually deciding, and specifically NOT deciding, that is, the Court is specifically NOT deciding 101 issues. A lazy Court calling such by the wrong name is one reason why matters remain unsettled when the law of 101 remains (largely) constant.

    So let us ask, what is eligible from a constitutional standpoint? IS eligibility a constitutional question?

    I have posted my thoughts on this on previous occasions. I cannot find the link and fear that it is a post on one of the longer threads with broken “See More Comments” javascripts.

    But to be brief (as I fear I have been too long already, and thanks to all those still reading) much of the argument turns on “useful arts.” I am unabashed as to applying a modern meaning to this term, as I feel that the subject matter itself (innovation) demands no less. But what are “useful arts’? Must they be synonymous with “technical arts?” Music, for example, is not able to be patented. It is not eligible. Contrast (especially for the immediate discussion) Business Methods, which are able to be patented. They are eligibile (as an enumerated category, they are expressly so). Consider too that the courts have ruled on the technical arts question and have determined that useful arts is broader than technical arts.

    At least that is, according to how Congress has written the law. But I would put it to you that the trouble, confusion and dilemmas evident in any of the so-called 101 cases arises because the Court has acted above Congress and have written into the law something that Congress simply has not included. The Court has basically written an asterisk into 101 to exclude some (theoretically uncertain and on a case by case non-brightline basis) items that otherwise are permitted by Congress. The Court states this as a 101 matter, but that is false. If a 101 matter, it would be a patentable matter. It is clear, however, that this is a patent eligible matter. This is a matter above 101. It is a matter of who even gets to show up at the track race. If a patentable matter, eligibility would not, could not be questioned. But since eligibility is questioned, and 101 is unambiguous (ruling out the NEED for the Court to provide an interpretation, it is clear that the Court has breached the Constitution and taken power from Congress in order to write patent law.

    It comes down to this: who sets the rules, any rules, all rules, for the patent game? The Constitution is clear on that. It is not the Court. By setting law of eligibility, the Court plays a dangerous game. Alas, who plays the watchdog over the Court when it oversteps its bounds?

  87. In re Alappat has a dissent by Chief Judge Archer that is similar to Prometheus. It is worth reading that when thinking about any of these issues. 33 F.3d 1526, 1551-68.

  88. Yep, that’s what they keep on trying to tell i4i.

    i4i didn’t actually make anything, from what I recall. MSFT did. All the patent did was shuffle around some money that was already in the software industry, and had been collected by the company that didn’t have the patent.

    The industry didn’t need the help, and wasn’t helped. i4i’s patent was purely a redistribution of existing wealth. Not that the good people at i4i didn’t deserve it if they had a good invention (anybody remember what it was?), but the software industry was insanely profitable already.

    And that’s even ignoring the implication that i4i’s “invention” was, more likely than not (but not clearly and convincingly), already in the public domain, and therefore i4i’s patent didn’t even advance the state of the art.

  89. Maybe they can pick up some of the “researchers” from i4i who have retired due to the recent settlement from a certain unnamed company.

    I suppose they were doing lots of “research” right up until the day they won the case? If that’s true, then you’re correct that i4i’s patent cost us some jobs. I wonder if Actual Inventor is paying attention.

  90. Software patents are, for the most part, a layer of expensive overhead in an industry that doesn’t need the help.

    Yep, that’s what they keep on trying to tell i4i.

  91. Whatever they’re doing for a living, MSFT won’t stop needing it done even if the entire patent system is repealed.

    Maybe they can pick up some of the “researchers” from i4i who have retired due to the recent settlement from a certain unnamed company.

  92. Ned, you have still not answered the questions put to you by myself at 12:08 PM and by NQFLF at 10:33 AM.

    Open your eyes and answer the questions.

    At that point, you will probably want to shut your mouth. That is, if you have any sense of pride, let alone decency.

  93. MSFT makes software so they have to employ researchers? Wrong.

    I don’t know who MSFT employs. You said the researchers at MSFT are going to lose their jobs. That means they have jobs now, researching something or other, on which point I’m taking you at your word. Whatever they’re doing for a living, MSFT won’t stop needing it done even if the entire patent system is repealed.

    Bill didn’t need patents to become a huge success in the software business. Companies that make and sell hardware don’t need software patent incentives to write code to support their hardware. Software patents are, for the most part, a layer of expensive overhead in an industry that doesn’t need the help.

  94. Informatoin processing methods have structure. Ideas have structure. Even your comments have structure.

  95. MSFT makes software so they have to employ researchers? Wrong.

    IBM was successful with hardware mainframes so software patents mean nothing to IBM now. Wrong.

  96. Benson which held that programming a computer to calculate a mathematical algorithm is not eligible” (emphasis added)

    Cite please to this holding.

    Then consolidate your cite with the offered (but still not commented upon) cite from Benson that proves the opposite of what you say.

  97. Ignorance in action Ned.

    Didn’t Anon dispose of your extra-legal inclusion of “always present” and “executed automatically?”

    You clearly do not understand Alappat with your false distinction of “simply using a computer to execute the software rather than the software becoming an integral part of the computer.”

    What do you think “executing the software” really means?

    Sooner or later you will realize that hardware is equivalent to firmware is equivalent to software. It’s amazing how hard you fight this simple notion, and for the life of me I cannot figure out why you are so vested in a false idea that it is anything else.

  98. Sock puppet, which you seem to not understand is that subject matter described in the specification but unclaimed is irrelevant to the patentability of the claim.  Even if the specification described in detail the programming for controlling the mold, that control software was not claimed.  That control software, even if novel in some fashion, is irrelevant to the patentability of a claim that does not claim it.

  99. To clarify.

    I agreed in principle that a programmed computer might be a new machine if the programming was always present and executed automatically. Otherwise the software may be loaded by a person for execution and that is simply using a computer to execute the software rather than the software becoming an integral part of the computer.

  100. Ned must have lost his cut and paste skills before getting down to responding to actual law.

    Either that or he realized how foolish his position is in the face of actual law.

    My bet’s on the former. He’s too thick for the latter.

  101. Ned, your ignorance is showing. It had everything to do with the programming. Do you think a real live person was doing each of these novel things? Do you think a real live person was managing each of these novel things? What (and explicitly not who) was doing these things as claimed?

    When you don’t know what the claim means and yet feel the need to pontificate, you end up looking very foolish.

  102. Sock Puppet Declares:

    “Alappat is the law. That law states that a computer that is programmed becomes a new machine.

    It’s as simple as that.”

    Gotta love this logic:

    Benson: programmed computers are not categorically ineligible.

    Alappat: programmed computers are new machines. New machines are (categorically) eligible.

    Ultramercial: the claims can only be performed by programmed computer, therefore they are eligible, citing Rader’s concurrence in Alappat.

    Sock puppets: Alappat is the law.

    Heller to sock puppets: Alappat (to the extent it is interpreted as holding that a programmed computer is patent eligible) is inconsistent with Benson which held that programming a computer to calculate a mathematical algorithm is not eligible.

    Sock puppets to Heller: You disrespect the law. You have an agenda.

    Supreme Court to Federal Circuit regarding Ultramercial: GVR.

    Supreme Court to sock puppets: You disrespect the law. You have an agenda.

  103. Sock puppet, I did respond Autoclave.  I pointed out to him that the "control" programming of the computer in the Diehr apparatus was irrelevant to the patentability of the claim because the claim did not claim anything about a control program. Claim one, as opposed claim 11, contained a number of elements requiring the use of a computer to perform the method steps along the lines of the following:

    "repetitively calculating in the computer, at frequent intervals during each cure, the Arrhenius equation for reaction time during the cure, which is
    "ln v=CZ+x
    "where v is the total required cure time,"

    But, as the description of the facts of the case make clear, the use of computer to do all this was old.  What was new was the costly monitoring of the temperature, recalculating the mold open time, and then automatically open the mold.  That was novelty.  It had nothing to do with the programming.

  104. Substitute Bilski for Benson and business methods for programmed computer in the following and you get the idea.
     
    Sock Puppet Declares:

    "Alappat is the law. That law states that a computer that is programmed becomes a new machine.
    It's as simple as that."

    Gotta love this logic:

    Benson: programmed computers are not categorically ineligible.

    Alappat: programmed computers are new machines. New machines are (categorically) eligible.

    Ultramercial: the claims can only be performed by programmed computer, therefore they are eligible, citing Rader's concurrence in Alappat.

    Sock puppets: Alappat is the law.

    Heller to sock puppets: Alappat (to the extent it is interpreted as holding that a programmed computer is patent eligible) is inconsistent with Benson which held that programming a computer to calculate a mathematical algorithm is not eligible.

    Sock puppets to Heller: You disrespect the law. You have an agenda.

    Supreme Court to Federal Circuit regarding Ultramercial: GVR.

    Supreme Court to sock puppets: You disrespect the law. You have an agenda.

  105. Sock Puppet Declares:

    "Alappat is the law. That law states that a computer that is programmed becomes a new machine.
    It's as simple as that."

    Gotta love this logic:

    Benson: programmed computers are not categorically ineligible.

    Alappat: programmed computers are new machines. New machines are (categorically) eligible.

    Ultramercial: the claims can only be performed by programmed computer, therefore they are eligible, citing Rader's concurrence in Alappat.

    Sock puppets: Alappat is the law.

    Heller to sock puppets: Alappat (to the extent it is interpreted as holding that a programmed computer is patent eligible) is inconsistent with Benson which held that programming a computer to calculate a mathematical algorithm is not eligible.

    Sock puppets to Heller: You disrespect the law. You have an agenda.

    Supreme Court to Federal Circuit regarding Ultramercial: GVR.

    Supreme Court to sock puppets: You disrespect the law. You have an agenda.

  106. Sock Puppet Declares:

    "Alappat is the law. That law states that a computer that is programmed becomes a new machine.
    It's as simple as that."

    Gotta love this logic:

    Benson: programmed computers are not categorically ineligible.

    Alappat: programmed computers are new machines. New machines are (categorically) eligible.

    Ultramercial: the claims can only be performed by programmed computer, therefore they are eligible, citing Rader's concurrence in Alappat.

    Sock puppets: Alappat is the law.

    Heller to sock puppets: Alappat (to the extent it is interpreted as holding that a programmed computer is patent eligible) is inconsistent with Benson which held that programming a computer to calculate a mathematical algorithm is not eligible.

    Sock puppets to Heller: You disrespect the law. You have an agenda.

    Supreme Court to Federal Circuit regarding Ultramercial: GVR.

    Supreme Court to sock puppets: You disrespect the law. You have an agenda.

  107. Imagine all the researchers at IBM and Microsoft etc. that are going to lose their jobs.

    Never mind that IBM and MSFT were both monumentally successful long before software was considered patentable. Also, since MSFT pretty much only makes software, they don’t really have much choice but to continue employing software “researchers” for as long as they exist.

    Here, let me help you out. The sky is falling! The sky is falling!

  108. I don’t know about that. Moore and the Cybersource 3 seem quite willing to do the dirty work and they have just been handed the knife.

    Actually, we are living in radical times. If they do what they may do and invalidate software patents, it will be unprecedented in human history to have such a large amount of property wiped out and such large amounts of capital investments rendered useless. Imagine all the researchers at IBM and Microsoft etc. that are going to lose their jobs.

  109. The bottom line, the Supreme Court is pretty good at getting things right.

    They would have gotten the 101 issue right a long time ago but for the Douglas anti-patent induced Stevens-philosophy-over-law judicial-activist meddling.

  110. As much as it might surprise you, I do not gloat when Ned is so clearly lost in the weeds.

    I feel compassion. Why do you think I spent all that effort on the previous software thread trying to hold Ned’s hand through a simple three step process?

    Ned has shown that he can change his mind (witness the change of heart after the products of nature thrashing). This is admittedly a very difficult area for Ned as he has invested quite a considerable amount of effort defending a particular viewpoint. I still believe that if given enough time on his own to reflect on what the law really is – and if he can put aside his animosity towards the writer of that law, Judge Rich – Ned may one day realize that his position is not in accord with patent law. He may never embrace the notion that software is patent eligible, and still believe that patent law should be something other than what it is, but he may admit its actual state. He may come to recognize that his attempts to deny reality only hurt his credibility and thus his “agenda.”

  111. No, I haven’t discussed with Japanese counsel, but perhaps i should, given the number of JPO Actions I have read in English translation, which assert that the PHOSITA “could easily” have combined the prior art references and which thereby cause me much distress.

    EPO-PSA does not itself resort to could/would language. It is just that some folks find could/would a helpful shorthand to explain to outsiders the TSM aspect of EPO-PSA (which strikes me as missing from the JPO approach.

  112. People (including Dennis Crouch) are acting as if GVR is equivalent to the Supreme Court actually taking the case and ruling against what the CAFC had done.

    It is not. It is merely a standard procedure properly followed when an interceding case has been decided that is affected with the same body of law. It is not like a directed verdict. Challenge? Rejected? Prof. Crouch, please stop pandering to the anti-software patent crowd.

    Yellow journalism and fanning the flames of an agenda are two phrases that come to mind.

    There is nothing wrong with making objective and reasoned comments supporting a change in the law, but that is completely absent from this discussion.

  113. We have HELD that such programming creates a new machine, because a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software.

  114. It’s rather pathetic that the only counter to Autoclave’s position is that Ned proclaims irrelevancy.

    Ignoring the art field is a sure way to highlight irrelevancy, just not the identification that Ned Heller thinks he has made.

  115. “the technical aspects are integrated into the claim (and cannot easily be dismissed as “extra” solutional (pre, post or whatever)).”

    Yes, that will do the trick. All Rader has to say is in effect,

    ” The claims are patent eligible subject matter because of the way the technology of the claim is integrated into the process as a whole.”

    And Bingo, Breyer has to deal with his own words.

  116. Ned: “Shouldn’t the novelty of the method of doing business be irrelevant? ”

    “Irrelevant? Why? Would you treat the question of the novelty of a method of doing something medical as irrelevant?”

    Ned, this is a legitimate question. Are you going to duck it like you did when you pretended not to know the definition of a medical method?

    You are in trouble again and daddy MM is not here to save you.

  117. WOW!

    Ned you have been annihilated, destroyed utterly; obliterated!!!!

    Brought down by your own words and record.

    Too bad AI’s Diehrs Dierist, Ping, NAL, and Actual Inventor are not here to see it. But at least anon and the Shilling can gloat!

  118. I stand corrected.

    Thank you for explaining and citing the Alappat case.

    I read it for the first time and can clearly see the opinions of Ned Heller and MM are simply wrong according to this case law.

    “Alappat admits that claim 15 would read on a general purpose computer programmed to carry out the claimed invention, but argues that this alone also does not justify holding claim 15 unpatentable as directed to nonstatutory subject matter. We agree. We have held that such programming creates a new machine, because a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software.” In re Freeman, 573 F.2d 1237, 1247 n.11, 197 USPQ 464, 472 n.11 (CCPA 1978); In re Noll, 545 F.2d 141, 148, 191 USPQ 721, 726 (CCPA 1976); In re Prater, 415 F.2d at 1403 n.29, 162 USPQ at 549 n.29.”

    Nuff said.

  119. “Under the Board majority’s reasoning, a programmed general purpose computer could never be viewed as patentable subject matter under Section 101. This reasoning is without basis in the law. The Supreme Court has never held that a programmed computer may never be entitled to patent protection. Indeed, the Benson court specifically stated that its decision therein did not preclude “a patent for any program servicing a computer.” Benson, 409 U.S. at 71. Consequently, a computer operating pursuant to software may represent patentable subject matter, provided, of course, that the claimed subject matter meets all of the other requirements of Title 35. In any case, a computer, like a rasterizer, is apparatus not mathematics.”

    link to digital-law-online.info

  120. ” Do you know what the case law of Alappat says about your “new mechanical parts and a new computer fallacy?”

    No I do not.

    Care to educate me?

    Seriously.

  121. “That is an excellent comment. Congress hopefully can be moved to intervene in this arrant nonsense by amending section 101 to expressly grant patent eligible status to software”

    Or… to ban it outright.

  122. “Ned, that is an abstraction”

    Sticking a thermometer in a rubber curing mold is an abstraction? Or are you thinking that the monitoring is done by softwarelol? See, this is where you guys get all turned around, you think about this 1980’s inventionlol as if it were some newly minted software package that we have today. They were not monitoring the temp with the program, the only thing the program was doing was recalculating the time to cook based on the temps being constantly fed to it by the monitoring system, i.e. a thermometer.

  123. “Tell me, exactly what it is that controls the performance of the artificially personalized actions of constantly measuring, monitoring, determining, recalculating or any other verb that the machine (not a person) actually does in the method.”

    A thermometer? A thermometer handles the monitoring, and the computer handled the recalculating.

    See, here’s the thing, you’re thinking that this 1980’s invention is using some sort of sophisticated software package like we would use to monitor things today. This sht is basic son. This is not the plus package.

    “Once you recognize that a person is not a machine and that it is the programming (software) that makes the difference, You will have your eyes opened.”

    Ned knows that it made a difference. It was what enabled them to be able to use a thermometer and some opening mechanism to auto-open right at the correct time. It is a part of the invention as a whole, like we’ve been telling you. You seem to give it over-importance as if it alone is the “point of novelty” when in fact there are plenty of novel things in the claim of which the recalculating is merely one.

  124. My thinking is that yes, the only reason they took it to the supreme court is because they did not understand Flook and/or Flook hadn’t quite come out yet when the decision was working its way up. Remember, they were only 3 years apart, I don’t know how long the BPAI backlog was back then, but you sure as f couldn’t make it to the supremes in 3 years today.

    The wiki says some things about the proceedings before the office that say the examiner actually probably just didn’t understand Benson. That makes more sense considering the timeline.

    link to en.wikipedia.org

    What is amazing is that the CCPA actually got this 101 case right.

  125. “How cute when you personalize the machine that is “auto-opening.””

    Personalize the machine? No you tard, I’m “personalizing” the PEOPLE who needed to know when to open the machine.

    You seem to be reading into this very simple invention some kind of advanced “control” or “software control”. There is no “control”, it is just calculating a number and sending one signal saying “time”, and then parts other than the computer open the machine. There is no sophisticated “control” going on.

    Either that, or you’re mischaracterizing the calculation of a number as “control” when even the applicant did not do that.

    But even granting you that you had a “point”, although you failed to make that “point” above, of what relevance is software control being auto-control? I would believe: none.

    Why? Because it being “auto-control” doesn’t do jack to open the mold, you need some sort of device outside of a computer to open the mold.

  126. Ned Heller said in reply to Drinking with NAL, AI, and Ping… Reply May 16, 2012 at 07:52 PM

    [That’s right – not even a week ago.]

    Drinking, there may be a million posts that say this, but none from me. No one backed me into any corner about medical methods. You guys are living in some kind of fantasy land.

    And further on May 16, 2012 at 07:49 PM:

    simple, why don’t you guy just stop this c r a p? One cannot say that any kind of methods are eligible subject matter without determining whether they are in fact claiming abstract ideas or laws of nature or natural phenomena. Every claim is subject to the exceptions. Every.

    And here and now we have Ned once again singling out business methods; and busted immediately for doing so.

    Oh the shame of being caught in a lie.

    I also notice that you failed to engage Anon in a conversation about your past agenda-driven exploits when he asked why you were so inconsistent in your treatment of method patents Reply May 17, 2012 at 03:54 PM:

    So ask yourself, who is consistent, me or you?

    Well Ned, explain your inconsistency or do you in fact have an agenda?

  127. Any more questions?

    Have you ever heard of case law? Do you know what it is? Do you know what the case law of Alappat says about your “new mechanical parts and a new computer fallacy?

    And one last question: Do you enjoy having the living legal snot beat out of you?

  128. If the machine functions differently that is a form of expression as well.

    Back to techdirt with you. You obviously have no clue as to patent law.

  129. Stop discussing? You haven’t even started discussing the actual law and the doctrine of printed matter (with its key exceptions).

    Come to think of it, I have never seen Ned even acknowledge the exceptions to the Printed Matter Doctrine.

    Why is that?

  130. Are you laughing your way out of Alappat? Anytime you want to get involved with real law Ned, by all means go for it.

    And by the way, you have not actually addressing the particular HOLDING from Benson on this thread yet. Now why is that?

  131. simply because

    Wrong Ned. Simply because it is the law. Try ALAPPAT.

    Now if you want to spin your little agenda, it is you that will have toobfuscate what the law is now and today.

    Alappat is the law. That law states that a computer that is programmed becomes a new machine.

    It’s as simple as that.

  132. If you write it down thats a form of expression.

    If the machine functions differently that is a form of expression as well.

    But written instruction whether for a machine or person does not change a machine into a new machine. You need new mechanical parts for that and written instructions are not mechanical parts.

    Any more questions?

  133. I have no intention of discussing anything with folks such as you who as adopt such laughable interpretations of Supreme Court opinions as to make any serious discussion simply impossible.

  134. Yes, you guys are way, way over the top once again.  Programmed computers are eligible for patenting without more simply because the SC did not categorically exclude them.  This is the kind of thinking I so adore from you guys.  I really have to compliment your ability to make such jokes with a straight face.

  135. Simple, drop the tape machine on your foot and if it’s not any heavier than before you recorded information, it’s still the same old machine right?

  136. not the subject matter of the claims

    More LIES from Ned Heller.

    Ned, why haven’t you answered the question put forth by Autoclave Expert?

    Specifically, “Do you want to try to actually tell me exactly what it is that controls the performance of the artificially personalized actions of constantly measuring, monitoring, determining, recalculating or any other verb that the machine (not a person) actually does in the method?

    Cat got your tongue? Lacing up the running shoes?

  137. Another Techdirt type commiserating with Ned Heller.

    Both of you please (find and) review the exceptions to the Printed Matter Doctrine and existing (and post-Bilski re-affirmed) case law (that would be Alappat for the uninitiated) to understand what it takes to be a new machine and leave the red herrings, and deceitful misrepresentations in their proper place (the g_arbage can).

    TiscTiiAQ, also, please investigate and try to understand the difference between what copyright covers (expression) and what patents cover (function).

  138. 3) Any differences between the well known method and the prior art are well known adaptations to account for the computerized medium.

    That’s a bit of an assumption there Ned.

    Shouldn’t the novelty of the method of doing business be irrelevant?

    Irrelevant? Why? Would you treat the question of the novelty of a method of doing something medical as irrelevant?

    I thought you just got done saying that you treat all categories of method patents equally and once again your posts indicate otherwise.

    Why the agenda Ned Heller? Why the LIES?

  139. Once more into the Ned-breach of “categorically“…

    This still ignores the post of what constitutes a new machine.

    Legally.

    Factually.

    This creates a strawman that the OLD computer is merely executing mathematical algorithms (no one is saying that).

  140. How were you interpreting Benson?

    LOLZ, how about as posted directly above?

    We do not hold that no process patent could ever qualify if it did not meet the requirements of our prior precedents. It is said that the decision precludes a patent for any program servicing a computer. We do not so hold.

    It’s pretty straight forward that a program servicing a computer is not precluded.

    And this is Benson even!

  141. Malcolm, “obvious?’

    Lets break this down.

    1) The claim is to a well known method of doing business.

    2) The claim calls for the well known method of doing business to be implemented on a computer.

    3) Any differences between the well known method and the prior art are well known adaptations to account for the computerized medium.

    Why do we have to handle this under 103? Shouldn’t the novelty of the method of doing business be irrelevant? The if the method of doing business is manipulating abstract concepts such as consideration, it seems to me that all uses of old and well known apparatus to carry out the method should not be enough move the ineligible into the eligible.

  142. Hey this, how did you determine that the claim to a tape machine with a tape having certain information on it was not a claim to a new tape machine?

  143. While the SC did not categorically exclude the possibility that a programmed computer could be patentable, they certainly held that the use of a OLD computer to execute mathematical algorithms was not.

    As I suggested before in this thread, if the computer is doing more than just calculating an algorithm, such as interacting heavily with the end user, I think the claims just well might pass muster. In such a case, the programmed computer is doing something physical, and not just producing numbers from the calculation of ineligible subject matter.

    But the claims are not, in my view, patentable simply by reciting the generic use of an old computer without more.

  144. “Don’t Let the Door Hit You on the Way Out”

    I’m pretty sure you take everything literally. Need to tune up the algorithm to catch certain human characteristics.

  145. Look, let’s look at it his way. Let’s say I am the first person to invent a tape recorder. I can get a patent on that because it is a machine. Now lets say I come up with all kinds of how to information and start recording lectures on the tape recorder. Is the tape recorder suddenly a new machine? No, it is still the same old machine with a bunch of new information recorded on it. The new information may be protected under copyright law but not under patent law. And the once new machine is now old and remains old until some new part is added to it, other than new information. Software is simply new information. Instructions of any kind is simply new information. If you want a patent, you need to make something. If you want a copyright, write something. But you can’t have both.

  146. Your statement that computers are machines do not acknowledge the fundamentals of the law.

    Ned, and you ignore the fundamentals of the law that a machine is a new machine once programmed with new software.

    Claims with these new machines pass Benson. See the quote herein regarding the HOLDING of Benson that permits this decision to be made by the lower court judges. Stevens dicta could not be made to outlaw this advance. I am sure that deep down in your heart you know why, even if you will not admit so.

  147. Yes, but MM thinks software is cra p.

    thinks business methods are cra p.

    thinks making money is cra p.

    thinks capitalism is cra p.

    thinks America is…..

    He ll let’s just all go to N Korea and
    give up this GD war.

  148. House, Benson said that identifying particular, but old and well known, machines to carry out the mathematics was irrelevant to patentability. When laws of nature or their equivalent, mathematics, are involved, per Benson, the law requires that the law of nature or mathematics be applied to a new and useful end…, a new result. This has been the law since at least 1852. Cf., Le Roy v. Tatham.

    Your statement that computers are machines do not acknowledge the fundamentals of the law. It is irrelevant that they are machines, or might be used to execute the math. The mathematics still must be applied to an end use.

    For the longest time there have been a handful of judges on the Federal Circuit who have the view that a programmed computer should be patentable without more. They think that this is the law, citing old CCPA cases, cases that themselves decided prior to Benson. Ultramerical represents a culmination of this brand of reasoning. The Supreme Court has now, once again, expressed its disagreement with such simplistic evasion of the law.

    We should expect the Federal Circuit to now get the message, because the handwriting has long been on the wall. The revolt, started long ago by Rich, should not be laid to rest once and for all.

  149. Expressly stated?

    In any number of ways the court said the claims at issue were not applied to produce a new end use, which is a requirement of the law.  They then went on to also hold that the use on an computer was not included an end use.

    How were you interpreting Benson?

  150. Autoclave, your discussion of the specification or how the computer works is irrelevant.  It is what is claimed that is important, and the details of the computer or any control software other than the Arrhenius equation is not the subject matter of the claims.  

  151. Is there anything more ignorant than a person who uses the term “mouthbreathers?”

    Absolutely: sockpuppets like you who endlessly troll here with dumbazz pseudonyms.

  152. Is there anything more ignorant than a person who uses the term “mouthbreathers?”

    Not likely.

  153. Max —

    Just curious, have you discussed this with Japanese counsel? I’m curious if there is more to the language translation that you are missing. I don’t know Japanse, but in other East Asian languages, the English words for “would” and “could” can be translated to the same word.

  154. Computerizing and old method of delivering information and/or “monetizing” such delivery and/or charging people money for anything is no more of a patentable improvement than adding “wherein someone carrying out any of the recited steps is freshly caffeinated” to an old method.

    Only the incompetent mouthbreathers at the USPTO who examine computer-implemented cr-p seem incapable of recognizing that generalized computerization and data manipulation is now per se obvious ancient history and has been for many years. Computerized method of identifying bird species anyone? Oh wait, that’s been done. How about a computerized method of identifying bear species? That’s totally different. Plus my method presents an ad that suggests a gift for your grandma based on what baby pictures she views the most on Fartbook.

  155. In pertinent part, 35 U.S.C. 101:

    or any new and useful improvement thereof

  156. adds no patentable weight to the claimed method

    Because everyone knows that computers are not machines so adding additional components are per se patent ineligible…

    No wait, huh?

  157. adds no patentable weight to the claimed method

    What next? Cookbook examples?

    Somebody needs a serious @_sskicking.

  158. Not according to Stevens and his views expressed in the famous Diehr dissent about “how difficult” evaluating software inventions would be, or how other forms of protection would suffice (but in reality would not).

    As if difficulty for a federal agency is ever reason enough to short-change a whole new field of innovation. What an unbelievable crock of sheep-dip.

    MaxDrei, have you had a chance to review the case provided?

  159. the court and attorneys should use 103 and do it the right way

    The “right way” would be to recognize that the addition of a computer to any old or obvious method, or to any step in an old or obvious method, adds no patentable weight to the claimed method, i.e., such methods are obvious or ineligible regardless of the fact that the prior art does not teach the use of a computer in such a step.

    Likewise, methods of delivering information or “monetizing” activities are per se obvious or ineligible when the only distinction between the allegedly new methods and the prior art is (1) the content of the information being delivered or (2) the monetization of the claimed activity.

  160. That is an excellent comment. Congress hopefully can be moved to intervene in this arrant nonsense by amending section 101 to expressly grant patent eligible status to software. Wherever technological innovation of any kind leads, the patent laws must follow.

  161. So?

    So Ned decides to ignore the expressly stated holding in Benson in order to further his agenda.

    The man just has to shill, does he not?

  162. david, I have not had any serious KSR problems, ever. KSR is indeed cited, but the examiners are still persuaded by logic and at times evidence.

    Further, what you say about Prometheus is an opinion hardly shared by all. There are some, including me, who think the decision is simple and straightforward.

    The bottom line, the Supreme Court is pretty good at getting things right. The collective wisdom and brainpower at the court is the best in the US, and perhaps the best in the world. Give them some respect.

  163. “Ergo, the point of novelty can only be one thing, and one thing only.”

    Did you read what I wrote at all? Or the claims of the patent that issued? Seriously? I just got through hand delivering you 3 “points of novelty” that are in all claims besides any software or, rather, the Arrhenius equation.

  164. 6, as you say, autoopen in response to a recomputed time was new. But that depended upon monitoring the temperature inside the mold. If, as you say, that was not done because of lack of an appropriate thermometer, well that thermometer too could be another invention.

    Regardless, you and I do agree that the inclusion of the Arrhenius equation in the claim appears to have been completely unnecessary to patentability.

    It is a wonder why the PTO took this case to the Supreme Court? It could only be because they claims were much like the claims in Flook and they really didn’t understand Flook.

    Your thinking on this last point?

  165. “Seems like every system we have now that once worked needs to completely fall apart and be rebuilt. Finance, medicene, education, housing, election financing, etc.”

    Amen

  166. Obviously, neither have you.

    Great. We traded insults. Glad to get that out of our way.

    Now we are still at the point that you don’t know what you don’t know because you don’t know the subject matter.

    Do you want to try to actually tell me exactly what it is that controls the performance of the artificially personalized actions of constantly measuring, monitoring, determining, recalculating or any other verb that the machine (not a person) actually does in the method?

    Any time you want to open your eyes is fine with me.

  167. As you say, there are indeed “frequent questions” about hindsight in EPO-PSA. Could not agree more.

    These questions come from people who know about patent law, know how difficult obviousness is, but do not yet have a working knowledge and experience of EPO-PSA.

    There are very many patent attorneys around the world, and only a minority of them have any direct experience of how EPO-PSA works.

  168. If Only, MaxDrei, if only…

    …our wonderful Court in KSR did not make it virtually impossible to take the step to PSA. That water is under the bridge as they say.

    (and by the way, from what I understand, there are frequent questions as to hindsight in the PSA approach, but that’s not even reached in the current discussion)

  169. eligible despite Benson

    Perhaps because of this quote from Benson:

    We do not hold that no process patent could ever qualify if it did not meet the requirements of our prior precedents. It is said that the decision precludes a patent for any program servicing a computer. We do not so hold.

    Read that quote slowly and try, try, try to understand.

    Recall then, the dance of the GVR post Benson/Flook in the cases of In re Bergy/Chakrabarty and how the Supremes in those cases gave the law its widest patent scope pronouncements ever.

  170. Whatever you mean by that, it wasn’t even claimed.

    That’s what you think and once again your thinking is in error. Your error comes from not understanding the subject matter. You read, but do not comprehend. You don’t even begin to realize that you don’t realize what is going on. You don’t know that you don’t know.

    Tell me, exactly what it is that controls the performance of the artificially personalized actions of constantly measuring, monitoring, determining, recalculating or any other verb that the machine (not a person) actually does in the method.

    Once you recognize that a person is not a machine and that it is the programming (software) that makes the difference, You will have your eyes opened.

    Yes, Ned and 6, it is a Great Computer Brain, that is the object of the personification going on here. And yes, the computer itself was admittedly old. Ergo, the point of novelty can only be one thing, and one thing only. If you had any real world experience, this point would be plainly evident. Everything in the process is admittedly old except the abstraction and the implementation of the abstraction in the (admitted) old computer.

  171. Well thanks for that thought, Elim. I guess the 30 ever more successful years of EPO application of its could/would Problem and Solution Approach is no answer to your assertions then.

    If your assertions stand up though, there ought by now, after 30 years, to be serious complaints from corporate users (patent owners and opponents) and serious academic studies which show that the 1000+ decisions a year from the highest level of appeal at the EPO are all tainted with hindsight. And are there? No.

    EPO Problem and Solution Approach is i) objective and ii) free from ex post facto reasoning. OK?

  172. Night, Rader appears to have been an acolyte of Rich who was, as we know, a creature of the NYPLA and the AIPLA.  The patent bar have long struggled to have software and programmed computers be considered patentable as new machines, and processes reciting their use also eligible despite Benson.  It does indeed look like the Supreme Court will have none of it despite the remonstrations of IBM and the like that patenting software is good for America and especially good for companies, like IBM, whose business is primarily related to development of software.
     
    Indeed, Night, the long struggle might be seeing its Waterloo.
     
     
     

     

  173. I am not, as those who follow this blog will be aware, a fan of the Mayo v Prometheus decision.

    But if a paradigm case of a standard business method + apply it using the Internet were required, the claim in issue here is it.

    Should it really take a trip to the Supreme Court to declare this claim unpatnetable?

  174. Wow,

    This statement is imbecilic. This would be like saying “You developed a wrking teleporter, well Gene Roddenberry (among others) beat you to it. It does not matter that they did not have an actually working system.”

    And this comes from a guy who defends straight up gene patents – the biggest and costliest joke patents.

  175. The purpose of the patent system is *not* to allow the appropriation of whatever idea, and to prevent competition. I you are really keen on “protecting” against competition, leave capitalist society and move to North Korea!

  176. Autoclave, "control software?"
     
    Control software?
     
    The point of novelty?
     
    Really?
     
    Whatever you mean by that, it wasn't even claimed.

  177. A lot of researchers are likely to be given pink slips over this decision.

    I wonder if Rader won’t throw in the towel. He might just do what Rich did after Benson and say I guess none of this is patent eligible and let the system fall apart. Seems like every system we have now that once worked needs to completely fall apart and be rebuilt. Finance, medicene, education, housing, election financing, etc.

    I guess the SCOTUS just wants to put everyting into the trash heap.

  178. I’m pretty sure everyone knows that the Supremes cannot and will not ‘vacate’ that part of the constitution.

    You may return to tech dirt now.

  179. Its about time the Sups. vacated Article I, Section 8, Clause 8 of the United States Constitution. I don’t know why they’re draggging their feet so much on this, just come out and say it.

  180. The difference between “would” and “could” is superficial at best.

    The M of TSM is just too easily reconstructed in hindsight. An invention must be worth something in order to be pursued in the first place and this something is the motivation. The only thing that can escape this wild M is the accidental invention, the oops-what-have-I-done? invention. Any purposeful endeavor is eliminated because the very purpose for beginning the effort is the motivation that knocks the invention out.

  181. “The chemical processes involved in rubber curing are well known, as are the monitoring of process variables, the use of arrhenius equation to compute cure time, the notion that variables be recomputed and readjusted, and the use of computers for ‘automatic process monitoring.’ ”

    THREE YEARS before Diehr, the above quote has been only superficially modified and shows the complete difference in the cases of Flook and Diehr was where Stevens speaks from.

    In one, he speaks from the majority, in the other he speaks from the dissent.

    If anyone tries to tell you that what is going on is anything else but a philosophical tug of war, they are being dishonest. Anyone with any background in manufacturing can see right through the crrp and see that there is no fundamental difference between Flook and Diehr. None.

  182. You should have seen the thread where Anon was leading Ned through the software and hardware understanding. Ned actually took a step in the right direction (before realizing where his steps lead and bolting the conversation).

  183. Les,

    I’m sure you recognize that the line of “we all pay” sounds in general taxes which is not what pays 6. It is innovators that pay 6. The same innovators that the self-destructive m0r0n would see shuttered with his anti-patent nonsense.

  184. “No it was not. The constant monitoring of temperature was the PON, ”

    Ned, that is an abstraction and if the Diehr Court so chose they could have easily did what was done in Benson, Flook, Bilski and Prometheus and dissected that out of the claim and found the invention non statutory.

    But the fact is processes are not abstractions when applied.

    We are not talking about expressing opinions, feeling and emotions here.

    A process is a series of objective steps that when executed produces a concrete guaranteed result.

    A process by itself is statutory subject matter.

    Rich understood this.

    Congress understood this and still does.

    In fact anyone with a 21st century mindset that is pro innovation and likewise pro patent understands this.

    However, there are people like you that don’t give a d am and want to fight a GD war no matter what the cost.

    There are Patent Bigots like MM that are as worse as the baptist preacher on CNN preaching how he wants to put all Gays in an electric fence and let them die.

    You people are fundamentalists n ut jobs with some like minded empathizers on the bench.

    And if you win we all suffer.

  185. Benson, Flook, Diehr, Bilski, Prometheus, and Ultramercial are all 101 statutory inventions. The only reason Diehr received his patent and the others did not was that Diehr had a pro patent majority on the Supreme Court, at the time.

    All processes have at their core an abstract ideas that can be dissected from the claim and repeated as the definition of the invention.

    The Diehr Court majority chose not to do this and instead focused on how the abstract ideas were integrated in the claims as a whole. When a claim is integrated in is applied and you pass 101,

    And that is the choice we are faced with today and will always be faced with as long as the statute includes processes as statutory subject matter.

    The Courts can either dissect the abstract idea using whatever new world, phrase, or rationalization they wish, or they can focus on the integration of that idea in the process as a whole.

    The first approach retards the progress of the useful arts.

    The latter approach promotes the progress of the useful arts,

    And that’s all there is to say about that.

  186. The problem with this claim is not that it is abstract, it’s that it’s not new.

    I’m having a really hard time conceptualizing an advantage from claiming a “advertising shown on a computer monitor, stored on a memory in a server.” By focusing on the “tangibility” of the elements, we elevate form over substance. And in a way that no one has usefully distinguished for me yet. What’s the differentiating factor between hardware and software? What you can implement in hardware, I can implement in software, and vice versa.

  187. There’s hope yet then David, if those USPTO Office Actions really do state:

    “One of ordinary skill would have combined these references.”

    I say that because in Japan they write:

    “one of ordinary skill could easily have combined these references”

    and because, at the EPO, the “would, not could” mantra is that nothing is obvious except that which:

    “one of ordinary skill would (NOT merely could) have combined”.

    At the EPO, “would”, until it is underpinned by persuasive logic and reasoning, is mere hand-waving, unsupported assertion, worth nothing, an insult to the intelligent and informed reader and to the dignity of civilised debate between specialised professionals, about issues of patentability over the art.

    Do you not think then, that from now on, the way to prevail at the USPTO is to raise the tone by taking a leaf out of the EPO playbook, and holding examiners to their word (“would”), bringing it home to them what that implies, namely TSM?

  188. SCOTUS’s attitude toward the patent system resembles George W. Bush’s attitude toward Iraq: Let’s disassemble it for fun, and tell someone else to put it back together.

    Wasn’t KSR enough indication of the damage caused by this nonsense? SCOTUS’s KSR holding was: “We don’t like KSR, but we refuse to propose any replacement. We’re going to instruct the PTO to come up with some new tests.” So the new test conceived by the PTO was no test at all: just let examiners use the smell test or personal judgment to decide when references can be combined. And examiners have taken full advantage of that: in the 150+ OAs that I’ve reviewed since KSR, NONE of them make any attempt to justify a 103 combination. They all just state: “One of ordinary skill would have combined these references.”

    I don’t think that SCOTUS appreciates the boost in subjectivity, inconsistency, and unpredictability caused by that change – as evidenced, e.g., by the multi-year BPAI backlog – but I don’t think they really care about the consequences of their decisions.

  189. The only technological element is the step: “a third step of providing the media product for sale at an Internet website;’ since is the only mention of internet website. All the rest of it can be done in your head.

    Why not specify in each step that is is being done at the Internet website? That takes away from the 101 arguments.

  190. “them”???

    How cute when you personalize the machine that is “auto-opening.”

    Think just for a second and realize that you have just “auto-proved” my point!

    Software control IS auto-control.

  191. Ned doesn’t think anything was new to the (old) computer that supplied all this wonderous novelty to everything else in the process for curing rubber that was already old. He thinks the MONITORING as opposed to the DETERMINING OR RECALCULATING was novel. And I would guess that the monitoring was done by some sort of thermometer, in conjunction with the old computer. In case you didn’t catch it, the decision seems to be telling us that a thermometer in the rubber curing chamber was not enabled, that is, nobody could figure out how to monitor the temp inside, probably because the thermometer would melt.

    Although I myself think that the “inventive contribution” was in the auto-opening in response to the monitoring. Reading the full Diehr decision supports this, as does the first sentence of the patent and every issued claim in the issued patent 4344142. The use of the equation at issue in Diehr simply enabled them to know when to auto-open at the right time, because otherwise they wouldn’t have known when to auto-open. Fact is, they didn’t have auto-opening rubber curing machines at that point because they didn’t know when to auto-open and that requires knowing the temp inside all throughout the curing process.

    But you would know that had you been playing along. Ned doesn’t know it because he is too unsophisticated technically.

    “According to the respondents, the continuous measuring of the temperature inside the mold cavity, the feeding of this information to a digital computer which constantly recalculates the cure time, and the signaling by the computer to open the press, are all new in the art”

    Just fyi it still appears that all those things were novel even from our 20/20 hindsight viewpoint 30 years later.

    The only thing which is at all puzzling about Diehr is why on earth the prosecutor would have bothered to put the Arrhenius equation in the claims at all. But, perhaps they took the enablement req a little more seriously back then and didn’t claim overmuch past what they specifically enabled. Or perhaps he thought that taking the temperature of rubber was old, though not being done during curing and feared a 103 of that feature, as well as the auto-opening feature if those were all he included in the claims.

  192. The claim does not say that the information is ‘copyrighted’. What it says is that the media products are ‘covered by intellectual-property rights protection’. I understand this as a technical limitation, i.e. reference to a technological protection measure, such as DRM.

    You can apply TPMs to things that are not actually subject to copyright. One should beware of reading into the claims interpretations that actually come from commentary intended to clarify the practical application of the invention, rather than the limitations actually present.

    The technical point here is that the consumer

      cannot

    view the protected content unless authorised to do so by the ‘facilitator’, and thus cannot circumvent the requirement to receive the embedded advertisement.

    Now, I am not suggesting for one moment that this is enough to get the ‘invention’ past 103, but where is the 101 issue here?

  193. You’ve gone and quoted it again, the point that proves you wrong Ned.

    Exactly what do you think was new to the (old) computer that supplied all this wonderous novelty to everything else in the process for curing rubber that was already old?

    Point in fact, the entirety of the point of novelty was the control software, as it was the control software that did the constantly determining and recalculating.

  194. The claim as a whole must still do something physical that is new and useful.

    But what does the Patent Office have to say about patents that merely distribute something?

    Results of Search in US Patent Collection db for:
    TTL/(distribute OR (distribution AND method)): 3434 patents.

    Includea an early favorite: 3393 4,103,599 Method and means for improved air distribution. I’m pretty sure the air fails MOT in the way you are thinking of it.

    Last I checked, distribution patents generally do not do something physical that is new and useful in any way different than the instant claim.

  195. Rader rushed this thing out the door in the wake of CyberSource, the same way he did with Research Corp after Bilski. No surprise it was vacated, it’s not a masterpiece to say the least. If he tries to follow Prometheus slavishly, he’ll have to remand the case to district court for development of claim construction and prior art impact on the analysis. But more likely, he’ll rewrite, keeping it a reversal, betting that the Supremes have tired of toying with the CAFC on this issue. Not a bad bet.

  196. No it was not.  The constant monitoring of temperature was the PON, which makes the fact that the case got to the SC as a 101 case at all amazing.

    From Diehr:

    "It is possible using well-known time, temperature, and cure relationships to calculate by means of the Arrhenius equation[2] when to open the press 178*178 and remove the cured product. Nonetheless, according to the respondents, the industry has not been able to obtain uniformly accurate cures because the temperature of the molding press could not be precisely measured, thus making it difficult to do the necessary computations to determine cure time.[3] Because the temperature insidethe press has heretofore been viewed as an uncontrollable variable, the conventional industry practice has been to calculate the cure time as the shortest time in which all parts of the product will definitely be cured, assuming a reasonable amount of mold-opening time during loading and unloading. But the shortcoming of this practice is that operating with an uncontrollable variable inevitably led in some instances to overestimating the mold-opening time and overcuring the rubber, and in other instances to underestimating that time and undercuring the product.[4]Respondents characterize their contribution to the art to reside in the process of constantly measuring the actual temperature inside the mold. These temperature measurements are then automatically fed into a computer which repeatedly recalculates the cure time by use of the Arrhenius equation. 179*179 When the recalculated time equals the actual time that has elapsed since the press was closed, the computer signals a device to open the press. According to the respondents, the continuous measuring of the temperature inside the mold cavity, the feeding of this information to a digital computer which constantly recalculates the cure time, and the signaling by the computer to open the press, are all new in the art.

    "Analyzing respondents' claims according to the above statements from our cases, we think that a physical and chemical process for molding precision synthetic rubber products falls within the § 101 categories of possibly patentable subject matter. That respondents' claims involve the transformation of an article, in this case raw, uncured synthetic rubber, into a different state or thing cannot be disputed. The respondents' claims describe in detail a step-by-step method for accomplishing such, beginning with the loading of a mold with raw, uncured rubber and ending with the eventual opening of the press at the conclusion of the cure. Industrial processes such as this are the types which have historically been eligible to receive the protection of our patent laws.

    Our conclusion regarding respondents' claims is not altered by the fact that in several steps of the process a mathematical equation and a programmed digital computer are used. 

    "In contrast, the respondents here do not seek to patent a mathematical formula. Instead, they seek patent protection for a process of curing synthetic rubber. Their process admittedly employs a well-known mathematical equation, but they do not seek to pre-empt the use of that equation. Rather, they seek only to foreclose from others the use of that equation in conjunction with all of the other steps in their claimed process. These include installing rubber in a press, closing the mold, constantly determining the temperature of the mold, constantly recalculating the appropriate cure time through the use of the formula and a digital computer, and automatically opening the press at the proper time. Obviously, one does not need a "computer" to cure natural or synthetic rubber, but if the computer use incorporated in the process patent significantly lessens the possibility of "overcuring" or "undercuring," the process as a whole does not thereby become unpatentable subject matter."

  197. The GVR dance reminds me of the Bergy/Chakrabarty aftermath to Benson/Flook.

    Perhaps a similar sea-change is in the works.

  198. But, Diehr was all about the MOT….   The claim modified by the Math was a traditional process that as a whole produced a transformation.  

    The problem in Prometheus was that the process steps that did pass the MOT added nothing to the correlations because the correlations were not integrated into those steps to modify them.

    Stevens in Flook was clear that the underlying process itself was not inventive and too generalized.  The limitations to a field were not enough, emphasizing that  Benson's "wholly preempt" was not to be taken literally.    The point of Benson was, as was repeatedly stated in Benson, that the use of machines to calculate was not an end use within the meaning of Le Roy v. Tatham and O'Reilly v. Morse and other such historical Supreme Court cases.

  199. Ned needs, quite literally, an anvil dropped on his head.

    He also needs to re read Benson, especially about the part where Stevens admits what his holding does not cover (and needs to understand that Bilski and Prometheus have all but relegated MOT to the trashbin of history as a definitive test. It is only a clue and the answer to that clue is simply not dispositive one way or the other.

  200. which would not be covered save for field of use limitations, and added on nonsense about computers etc. and other drafting shinanigans

    All patent law is verboten per 6, as he classifies all patents as falling under “and other drafting shinanigans.”

    Close the doors and shut off the lights on your way out 6.

  201. (or at least lacks a physical structure that is capable of being described in structural terms)

    LOLZ, like the shorthand notations that were recently dicussed?

  202. Serious, I think the underlying Diehr process was a conventional process in that it passed the MOT as was noted by the Court itself. It also had a novel step independent of the math, meaning that the 101 issue was not really there. The Prometheus Court said as much when it opined (as Malcolm has said numbers of times) that had the metabolite blood test (a claim element) been inventive (less conventional) the Prometheus claim may have been patentable regardless of the correlations. But even assuming the only thing new was the math, and this was NOT the case in Diehr, the Diehr court held that the integration of the math into the process was enough for 101 purposes.

    Contrast Flook were the underlying process was generalized from inputs to outputs, from end to end, and did not involve a transformation. The modification of such a generalized process of purely conventional elements common to all such processes was not enough.

    Prometheus was the same as Flook here. Everything in the claim was old and conventional, and the correlations did not change any of the claimed process steps into anything new. The correlations were applicable to an unclaimed “adjustment” step, not to the initial administration step or to the blood test step.

    Here, what is transformed? Money? Value? What? The use of tools such as computers, the internet, phones or the like is not sufficient to make patentable subject matter that only manipulates abstract concepts.

  203. It is data being sent back and forth (i.e., a message). Moreover, it is interactive

    News flash: just because you say something has structure if it meets conditions X and Y doesn’t mean that it actually has structure. To put it another way, if you can’t claim Z as a composition of matter, then Z very likely has no patent-relevant structure (or at least lacks a physical structure that is capable of being described in structural terms).

  204. “Somehow I doubt that an interactive message is a data structure.”

    You are dumber than most people give you credit for. What do you think a message is in the context of the invention? It is data being sent back and forth (i.e., a message). Moreover, it is interactive (i.e., a data structure that includes some type of functionality).

  205. I humbly suggest that another way of looking at it is to ask: what problem is purported to be solved by this invention and (the key question) what is the nature of the allegedly new solution to that problem?

    If the novel solution boils down to “use a computer”, then one correct result would per se obvious and another correct result could be ineligible for claiming a computer-implemented invention too abstractly. Yet another correct result could be per se lack of written description support (functional claiming in the absence of recited structure which would distinguish the computer utilized in the method from any other computer).

    Does it really matter? We now know for sure that it doesn’t, at least not as far as the Mayo Nays and Diehrbots are concerned. They will howl and cry no matter how these p.o.s. claims are tanked.

  206. “The identification of the “abstract idea” does not matter. Give me an hour, a bottle of booze, and a patent claim and I’ll identify a dozen of “abstract” ideas for most patent claims (the booze helps with the ‘abstractization’ process).”

    Gl with that. Although you’re right about the booze.

    “Perhaps they can give some guidance as to what constitutes a practical application of an abstract idea.”

    There was a practical application of an abstract idea/lawl of nature in Mayo. Of course, that is largely irrelevant as to whether or not the claim in fact is directed to an abstract idea which of course the claimed practical application of an judicial exception. Of course, it turned out that the USSC was able to suss out that the claim in Mayo was such a claim.

  207. Thanks. ECJ not yet involved in substantive law of validity of patents, so had not appreciated the relevance of this decision.

  208. First off, let me just say that there are probably very few human beings alive who “follow Benson” as closely as I do, both in understanding and in practice. Just to be clear, I’ve read the entirety of it many many many times and I follow it to the letter even as those around me do not. Indeed, the only reason we’re discussing this case is because a lawltard somewhere did not follow that case as closely as I do when he filed the application.

    “Benson expressly found that the claim covered all uses”

    I agree. And in the instant case which uses are not covered? Once you have determined that, and written them down in a first list, make a second list of uses which would not be covered save for field of use limitations, and added on nonsense about computers etc. and other drafting shinanigans. Now subtract the uses on your second list from the uses listed on your first list. This final list is a list I would be very much so interested in seeing.

    If you would be so kind as to show me this final list, and if it contains a substantial number of things, I shall withdraw anything I would otherwise say on the subject of this case.

    “The rest of your comments indicate that you do not know what the case is about. I recommend you reading and understanding the case before making your ignorance so pronounced.”

    I know what both cases are about, Benson and Wild. Benson I know much better though, due to having read it time and again. What, specifically, do you feel like I don’t know about Benson or Wild?

  209. 6,

    Under that reasoning then Benson turns out the other way

    No, not to the extent of the actual reasoning given in Benson. You need to follow that case a bit more closely. Benson expressly found that the claim covered all uses. The instant claim expressly are limited.

    The rest of your comments indicate that you do not know what the case is about. I recommend you reading and understanding the case before making your ignorance so pronounced.

    Ned,

    I do not understand why you think I am depending on CCPA and Federal Circuit cases to the exclusion of Supreme Court cases. I am not. Perhaps you missed It’s All About The Stevens post above, but withstanding that miss, I reiterate that the instant case claims avoid the Supreme Court case issues (including integration of the concerned element into the claim as a whole).

    And I do note that you have left open points very much on topic concerning Diehr on other threads. I don’t care to sidetrack onto that conversation (you can continue it there and answer the points raised against you), but here, on this thread, again, what more do you want?

  210. Question 1: Is there any dispute (i.e., has it been admitted) that the entire claim as written (i.e., each element, in the order presented) is old and conventional except for the “IP-protected” nature of the information being presented? If so, the claim is dead in the water under 101 or 102, in much the same way as the claim at issue in Prometheus was dead in the water.

    Question 2: Is there any dispute (i.e., has it been admitted) that the entire claim as written (i.e., each element, in the order presented) is old and conventional except for the generalized computer implementation of ancient, conventional business methods applied to the delivery of data electronically rather than physically? In other words, given that computers and data delivery on demand were old as of the filing date, how is this “invention” different from someone trying to patent a method of charging for a magazine ad, where the ad is for a book that can be obtained by a “user” calling the publisher of the magazine and saying “I’d like that book,” wherein the book is mailed to the user along with an ad and people all round are charged and the accounts are updated.

    It defies belief that the USPTO could issue this p.o.s. and any court could find it valid under 103, much less 101. We all know that an entirely different universe of (exceedingly friendly) rules has been applied for years by the USPTO whenever a POWERFUL COMPUTER BRAIN is referred to in the claims, but this is ridiculous.

  211. Message from the SCOTUS to Federal Circuit: clean up your mess or we’ll do it for you (oh, and you’re probably not going to like how we clean it up if you don’t).

    The Ultramercial decision is a horrible decision. You know it’s going to get ugly when they start justifying the patent-eligibility by stating, “Many of these steps are likely to require intricate and complex computer programming” and that “the invention involves an extensive computer interface.” Of course the claims gloss over both both those considerations and shoot squarely for the “I invented every possible combination of said high level steps.”

    Even as a patent attorney, it’s hard to justify how claims like those in the Ultramercial case are anything more than a mere set of requirements and that they articulate a the four corners of a particular invention. Take that compared to the ordinary claims of the more tangible classes.

    The SCOTUS is likely viewing just that same way.

  212. An interactive message is one of these?

    computer data structure

    link to en.wikipedia.org

    I do have to wonder why they didn’t just say “In computer science, a data structure is a particular way of storing and organizing data in a computer so that it can be used efficiently, I.E. AN INTERACTIVE MESSAGE.” Somehow I doubt that an interactive message is a data structure.

  213. “In other words, it is a question within a specific condition. In this case, the claim makes it so that the “tools of execution” must be relevant and cannot be irrelevant.”

    Under that reasoning then Benson turns out the other way. Newsflash bucko, nothing in a claim will necessarily make it so that a “tool of execution” must be relevant and cannot be irrelevant.

    “Instead, the calling for a lot of human interactivity becomes the irrelevant issue, as any such human actions outside the claim are, well, outside the claim.”

    I could not agree more.

    “So again, how much more do you want?”

    It really isn’t that hard brosensky. We want more in a patent claim than: this here abstract idear that I just thunk up placed on your interwebs/a CD/a computer. If that’s all you software people come up with, then guess what? Maybe you don’t get patents.

    Another way of viewing this for attorneys is: stop appending things to the claim to try to make it patentable, as you would do to get around a 102/103. Instead change your entire outlook about the SUBJECT MATTER at issue in the claim which you are trying to cover so that you are no longer trying to patent judicially excepted subject matter by appending things to the claim. Then, claim something else if you have WD for it. If not, kiss your app/patent goodbye.

  214. Simple, I think you have to stop considering CCPA and Federal Circuit decisions on this topic.  The Supreme Court has reaffirmed Benson, Flook, Diehr, and made clear, I believe, that simply implementing an unpatentable algorithm on a programmed computer is not the end use the Benson court had in mind.  

  215. lays to rest the idea that the only thing wrong with Bilski was the failure to implement the abstract risk balancing algorithm on a computer.

    Nice strawman.

  216. But you are missing the distinction. It is not so much an issue of “such tools,” as it is exactly how the method is carried out.

    In other words, it is a question within a specific condition. In this case, the claim makes it so that the “tools of execution” must be relevant and cannot be irrelevant.

    Instead, the calling for a lot of human interactivity becomes the irrelevant issue, as any such human actions outside the claim are, well, outside the claim.

    Very much on point is that the claimed implementation differentiates from the Benson-Flook-Prometheus issues as It’s All About The Stevens points out. Regardless of the putdown from MM, even the anti-internet CAFC case Cyborsource made the distinction for computation systems outside the normal breadth of human intellect.

    So again, how much more do you want?

  217. Malcolm, I think this remand lays to rest the idea that the only thing wrong with Bilski was the failure to implement the abstract risk balancing algorithm on a computer.

    I think the IBMs of the world are going to be officially apoplectic about this remand. Recall, they went ballistic over the MOT, implying in their briefing to the Supremes that the only thing wrong with the Bilski claims was their failure to tie the claim to technology, meaning a programmed computer.

    Rader obviously read IBMs brief and gave us Ultramercial and Ultramercial is now vacated.

    IBM will be displeased by this CVR. Big time.

  218. Serious, but the implementation on a computer or using the internet, or using a phone or pencil and paper or other such tools, is irrelevant. This lesson should have been learned way back when Benson was decided when the Supreme Court made this exact point.  The tools of execution of the algorithm are legally irrelevant.  The claim as a whole must still do something physical that is new and useful.

    This is why I suggested the claims still might pass muster because it does call for a lot of human interactivity.  I am not sure, though, whether this is enough to save the claim given that the claim as a whole simply implements an abstract concept that if one watches an advertisement, the advertiser will pay for the cost of the proprietary content. 

  219. It has been established that the process cannot be completed in one’s mind,

    Right. The invention relies on a POWERFUL COMPUTER BRAIN instead of a human brain to accomplish the ancient task of presenting information to one party and “monetizing” the service.

    Oh but wait! — the information in these claims is copyrighted information. Somehow I forgot that critical fact which changes everything.

    LOL.

  220. will have to do more with the human interactions than with a tie into computer hardware and the like

    How much more do you want?

    The claimed system cannot exist outside of the computer hardware.

  221. We wondered after Bilski whether the problem with the claims at issue there weres that failed to claim an implementation on a computer or the internet or such — some tie to a physical implementation — otherwise the problem with Bilski was not that, but that it manipulated an abstract concept: risk, i.e., balancing risk did not produce a new and useful physical result. No amount of reciting of the internet or of computer, or telephones or pen and paper or abacuses or other tools, would save the Bilski claim if that were the problem.

    Now we seen in the CVR that the Supreme Court does not believe that the simple tie-in to computers or the internet or the phone system or some other physical tools is sufficient when an abstract concept such as “value” is being manipulated.

    Perhaps the Ultramercial claims are patent eligible still. But the theory, I suggest, will have to do more with the human interactions than with a tie into computer hardware and the like.

  222. Iirc from other cases like this they did. But that might have been random or determined on a case by case basis Idk.

  223. It’s true that they may lose a bit in lost infringement of their patents, but on the other hand they stand to lose less in terms of patents they infringe. Who knows? Maybe they’re quaking, and mabye they kinda hope the long nightmare will be over. Keep in mind that they do have patents on other things.

  224. Shoudnt companies like Apple (software), Oracle, Microsoft, Google, etc. be very afraid of what the Supremes are doing to software patents? I can’t see how a slide-unlock gui patent, a table row reduction / optimization, graphics patent, or even a search optimization patent could now pass 101!

  225. Both the Eighth and Ninth steps refer to an “interactive message,” which appears to be a particular type of computer data structure, which futher ties the limitations to a machine.

  226. The identification of the “abstract idea” does not matter. Give me an hour, a bottle of booze, and a patent claim and I’ll identify a dozen of “abstract” ideas for most patent claims (the booze helps with the ‘abstractization’ process).

    SCOTUS has been little help in identifying when a claim covers just an abstract idea beyond (“I know one when I see one”). Perhaps they can give some guidance as to what constitutes a practical application of an abstract idea.

  227. Stevens et al are gonna kill this one. The only technological element is the step: “a third step of providing the media product for sale at an Internet website;’ since is the only mention of internet website. All the rest of it can be done in your head.

    Why not specify in each step that is is being done at the Internet website? That takes away from the 101 arguments. Unless of course we think that patents ought to be allowed on transactions between people that to not have a technological component.

  228. You are assuming what you are trying to prove, which is whether or not this is a practical application of an abstract idea. Defining the “abstract idea” determines the outcome. Is it tying media distribution with advertising? Is it tying media distribution with advertising using a computer? It is getting paid for distributing media in conjunction with advertising?

    Unfortunately for the public, there is no clear way to parse claims into the “idea.”

  229. MaxDrei,

    European Court of Justice ruling May 2 – (SAS Institute Inc. v. World Programming Ltd., E.C.J., No. C-406/10, May 2, 2012)

    This is one of two very shaky pinnacles underlying some of Stevens’ dicta that is high time corrected.

  230. About Stevens writes: the recent ongoings in Europe that are throwing some serious cold water on the notion that copyright is enough protection for software

    What are these “ongoings”, please? I feel I should know, being my baileywick and all.

  231. It will be interesting as the application of the idea does seem to avoid some of the Benson-Flook-Prometheus-like pitfalls. It is particularized and closed-ended. It has been established that the process cannot be completed in one’s mind, and that the technical aspects are integrated into the claim (and cannot easily be dismissed as “extra” solutional (pre, post or whatever)). One can even tack on a “settled-expectations” argument, although that would seem to be superfluous.

    If I were counsel, I would also find a way to add in comments on the recent ongoings in Europe that are throwing some serious cold water on the notion that copyright is enough protection for software. I am sure that Rader is aware of these developments, and could perhaps weave in some of the Court’s Stevens lore (but correct the purpose and coverage differences that Stevens mangled).

  232. “Radar et al. will hold the same thing on remand (while using the gobblygook language of Mayo v. Prometheus).”

    I certainly hope so! Yummy yummy yummy CAFC reversal by the USSC!

  233. pure philosophy that refuses to acknowledge the veracity of opposing points of view

    The Mayo Nays, in a nutshell. Thank you.

  234. Radar et al. will hold the same thing on remand (while using the gobblygook language of Mayo v. Prometheus).

    No natural process + practical application of abstract idea = patentable subject matter.

    If SCOTUS wants to invalidate software-related patents, they are going to have to do the dirty work themselves.

  235. Being “paid” is not required to shill, or apparently, to act like imbeciles.

    An agenda to be pushed based on pure philosophy that refuses to acknowledge the veracity of opposing points of view is just as culpable as the prostitution that comes from being “paid.”

  236. This is officially getting ridiculous.

    Okay, so gut the 545 patent of it’s “abstract idea”, and see if there are any elements left, then apply 103, and gee, I wonder what the outcome has to be….

    Why is the supreme court trying to destroy a workable system that drives our economy (i.e., software and chembio)?

  237. the consumer receives a copyrighted product in exchange for viewing an advertisement — and it all takes place over the internet

    If we stop issuing patents on this technology, we’ll never know what to buy grandma for Christmas!!!!!!!!!

Comments are closed.