Federal Circuit To Announce Whether Software is Patentable?: En Banc Rehearing on Section 101 Issues

By Dennis Crouch

CLS Bank Int’l v. Alice Corp, App. No. 2011-1301 (Fed. Cir. 2012) (en banc order)

The Federal Circuit has refocused its attention on the question of patentable subject matter and has ordered an en banc rehearing of CLS Bank Int’l. v. Alice Corp. (Fed. Cir. 2012). In its initial panel opinion, the Federal Circuit held that, when considered as a whole, the claimed data processing invention was patent eligible. Judge Linn wrote the majority opinion suggesting that a court should only reach Section 101 issues when subject matter ineligibility is “manifestly evident”. Judge Prost wrote in dissent and argued that the majority improperly ignored the Supreme Court’s most recent statements on the topic found in Prometheus. The patentable subject matter question in CLS Bank is virtually indistinguishable from the parallel issue in Bancorp v. Sun Life. In that case, however, the Federal Circuit ruled the invention ineligible.

In its en banc order, the court reformulated the questions presented as follows:

a. What test should the court adopt to determine whether a computer-implemented invention is a patent ineligible “abstract idea”; and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea?

b. In assessing patent eligibility under 35 U.S.C. § 101 of a computer-implemented invention, should it matter whether the invention is claimed as a method, system, or storage medium; and should such claims at times be considered equivalent for § 101 purposes?

The Federal Circuit has asked for the USPTO to file a brief as amicus curiae. Further amicus briefs may be filed without consent of the parties or leave of the court but must otherwise follow Federal Circuit’s Rule 29.

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169 thoughts on “Federal Circuit To Announce Whether Software is Patentable?: En Banc Rehearing on Section 101 Issues

  1. Les, "Your reason for allowing my Hubble corrector was that it was operating on measurements of something physical".

    Not entirely.  I said and I will repeat that the reason it was patentable was that the calculation produced a better image.  The results were

    ta da

    USED

    to produce a new, physical result.

    This HAS BEEN THE LAW SINCE 1852 AND Le Roy v. Tatham.

  2. I’m not sure what you are replying to now Ned. Your reason for allowing my Hubble corrector was that it was operating on measurements of something physical.

    Are you now saying its allowable because its not abstract?

  3. “Les, the projectors that project the image are physical.

    Stop being ridiculous. ”

    What projectors? My focus adjuster process doesn’t include projecting and there is no projector in my claim. When it was working on Hubble image data it received pixel values, processed pixel values and output pixel values. You agreed it was patentable.

    When I change the work piece to computer generated abstract art images it still received pixel values, processed pixel values and output pixel values. However now you say it isn’t patentable. All I changed is the work piece.

    Patentability should not depend on the work piece.

    You arrived at these contradictory conclusions because you are trying to apply the hodgepodge of result based rulings that are based on egregious twistings of the law to suit the outcomes desired by judges in particularly bad cases.

    It should be ended. 101 includes no prohibitions against natural laws, mental steps or algorithms. Every process is an algorithm. The law says processes are patentable. What is there to discover but aspects of nature? The law says discoveries are patentable.

    Stop the madness. Lead us back through the looking glass!

  4. “You think Rader, Newman, and Linn will hold that any claim that begins ‘A computer-implemented method’ is 101 eligible.”
    First off, the claim is to a data processing system comprising a data storage unit and a computer – not a method. Try to actually understand what is being claimed before going hyperbolic.

    “What’s the rationale?”
    Because the use of a concrete machine is where I suspect they’ll draw the line between abstract and not-abstract.

    The “abstract idea” test is unworkable. It is extremely fact dependent. The Supreme Court’s distaste for a “bright line test” has made 101 in absolute morass. 101 was never intended to be a tricky test. Is it a process, machine, manufacture, composition of matter? Yes … then move to 102/103. Nearly 60 years after 35 USC 101 hit the books, and we know less about what it supposedly encompassed today than we did 60 years ago or 40 years ago or 20 years ago or 10 years ago.

    Your distaste for certain patents notwithstanding, your arguments against these types of patents are policy arguments – not arguments based upon the text of 35 USC 101. By trying to shoehorn your arguments into 35 USC 101, you are left arguing that a process is not a process and a machine is not a machine.

    Granted, some of those arguments have been persuasive on the process front. However, if they prevail on the machine front, there isn’t a patent to a machine out there that couldn’t be attacked as merely being the physical embodiment of some “abstract idea” – the reason being is that all patented machines start out as an abstract idea (i.e., the inventor’s inventive idea). Then we are left with figuring out how abstract is too abstract – no bright line test there.

    Also, if you can argue that a machine falls under the “abstract idea” exception, then it is short leap to argue that manufactures and compositions of matter can also fall under the “abstract idea” exception. Like you, the people who have an axe to grind against a particular technology will use that rational to argue that certain types of technology are too abstract. It is also too clear to me (and I think Rader, Newman, and Linn) that arguments based 101 are being used as surrogate for what should be policy arguments presented to Congress. I suspect that they want no part of it.

  5. NWPA: “I’ll say it again and again. How can a machine that is running in the corner and performing a useful task be an abstract idea? How is that possible?”

    As always your questions are a breath of fresh air on this topic. For once I would like to see someone answer them so that I can at least get a perspective of the other sides arguments.

    But as usual, all I ever hear from the anti patent and anti software crowd is silence.

  6. ” I do not think that the fact pattern in the case fully supports upholding patent-eligibility.”

    Mr. Cole:

    What facts would those be, exactly?

    If we are going by the law then I have not seen anyone present any facts as to why Alice claims are not patent eligible. And I am entirely open to the law being used to demonstrate the claims are invalid under 101 but to date it just has not happened.

    For example,

    Can Alice claims be reduced to an algorithm as in Benson?

    Does Alice merely add on a computer as extra solution activity as in Flook?

    And before you answer please reconcile that answer with the “Integration Analysis” used in Diehr and relied up on in Prometheus.

  7. “A breakthrough would be if MM himself was the first to highlight the 9-0 Prometheus lesson turned into the Official United States Patent and Trademark Office examination guidance that showed exactly how to handle such an integration analysis.”

    A delicIous irony that is still lost on MM.

    Now the instructions for “Integration” are included in the new MPEP as well.

  8. “Such selective choices reflects poorly on any theories that Mr. Heller advances.”

    The one thing the Court has made clear is that all paths to 101 go thru Diehr. Until Mr. Heller is able to reconcile his theories with Diehr’s claims as a whole and integration analysis, he won’t get much traction.

  9. A breakthrough would be if MM himself was the first to highlight the 9-0 Prometheus lesson turned into the Official United States Patent and Trademark Office examination guidance that showed exactly how to handle such an integration analysis.

    But that would be MIGHTY self-defeating wouldn’t it?

  10. “Can you tell us how to “integrate” a “new” mental step with a prior, old conventional step in such a way that it will pass 101?”

    Hello MM:

    I am happy to help you here, again. What you first must learn is that the law says we must take the claims as a whole.

    So if the claim is a process claim, and the process itself is old, such as Diehr’s process for curing rubber, that will not disqualify it at least at 101.

    Now if the process contains mental steps, new or otherwise, such as the programming of a computer with the Arrhenius equation as used in Diehr, we must still take the claims as a whole, and the answer would still be that the claims are not barred at 101.

    Even if the claim contained a pure thought, such as deciding the rubber has been cured, after looking at instruments, or hearing an alarm we must STILL take the claims as a whole, and the answer would STILL be that the claims are not barred at 101.

    Now I will grant you that if the process is a pure mental process such as solving a math equation such as the arrhenius equation, and that equation is claimed by itself, it will be ruled as non statutory subject matter because of a judicially created exception.

    And yes in that scenario the Arrhenius equation would be placed under the abstract idea umbrella even though there is nothing abstract about it.

    But a claim with a thinking steps, even as applied math, used in conjunction (integrated) with all the other steps ( non math) in the process is statutory subject matter.

    This, “Integration Analysis” was established in Diehr, upheld in Biski, buttressed in Prometheus, and applied by the USPTO, Official Guidelines.

    Understand now?

    Did we make a breakthrough

  11. “Where’s the new mental step in Diehr, anon?”

    Hello MM:

    The fallacy in your question is that there is such a thing as a “new” mental step. When in reality there is no such measurable, observable thing as a “new” mental step or thought. There are simply mental steps and physical steps, and combinations of both, which most are.

    Now, in Diehr, as in most process patents, there are steps that require conscious focused thought, such as decision making, calculation, and communication. Whether these steps are “new” or old are of no consequence to whether a claim is a patent eligible application.

    As long as the mental steps are integrated with the rest of the non mental steps into the process as a whole, the process is a patent eligible application, and passes muster at least at 101. This fact can’t be disputed, as usual.

  12. Nemesis,
    As post Benson lower courts have shown, you simply are not correct.

    Knowing the difference between a holding that must be followed and dicta which does not have to be followed (and yes, even Supreme Court dicta), makes all the difference in the world (the real one, not Ned Heller’s).

  13. Les, the projectors that project the image are physical.

    Stop being ridiculous.  

    A computer program that calculates a number…  No use for that number is claimed.  What do we have?  Do we have a practical application?  Hardly.  A new machine?  You have to be kidding.  You have nothing.

    Such are claims that produce numbers that might represent a correlation, odds, probability, risk, price, the amount of grace necessary to cure a venial sin.  And the beat goes on.

    The SC has made it clear for 160 years that patents are granted for practical applications of abstract principles.

  14. Funny thing is MM, it is “your side” that needs to make a compelling argument against patentability – and there is ZERO on the table for that position.

  15. Did I stutter?

    Yes the DICTA in Benson concerning the long anti-software rant that wa immediately and justifiably ignored by the lower courts – by those who knew the proper legal understanding of patent law because they helped draft that very SAME patent law.

  16. Thanks Nemesis, but your agreement (or lack thereof) changes neither fact nor (current) law which aligns with what I have stated.

  17. 1. A table that can drive a car.

    or better yet

    2. A tangible piece of concrete that can drive a car.

    ARE YOU GOING TO TELL THAT’S NOT CONCRETE?

    That’s pretty much the depth of the arguments we’re getting in support of the patent eligibility of computer-implemented jonk.

  18. MM: Can you tell us how to “integrate” a “new” mental step with a prior, old conventional step in such a way that it will pass 101?

    anon: In essence, just see Diehr.

    Where’s the new mental step in Diehr, anon? I seem to recall a computer being involved but I don’t recall any claim in Diehr being construed to require a step of thinking something new.

    Maybe the term “in essence” means that you simply get to make stuff up. Let me know.

  19. So its the nature of the work piece that’s important? If the image were computer generated abstract art the same process applied to that image should not be patentable because the image being processed is not necessarily a physical measurement?

    Please.

    Bad cases make bad law. The courts should undo all the harm they have done by reading limitations into the law that just are not there.

  20. Les, in the end, that "step," modifies something physical, an image. The step actually is the algorithm that accepts input data, produces output data where the input data is a physical measurement of something, and the output data is something physical, in the case Hubble, an image.

    This is exactly the same situation we had in Alappat.

  21. Where in the Supreme Court brief, anon, did the Supreme Court say that a putative step in a process that was not a physical act or which did not modify a something physical was a step in a process?

  22. I’ll say it again and again. How can a machine that is running in the corner and performing a useful task be an abstract idea? How is that possible?

    I will also say again and again: prove it! If it is an abstract idea in the claims, then you should be able to point to a computer that is infringing the claims and show how the computer was not enabled by the patent. That is patent law and not the voo doo of Lemless, Possey poo, Sternless, or the other dippy doobars.

  23. As to the twin tragedies, anon, you can turn your wax nose up as far as you like, but willing them out of the discussion won’t magic them away. They are too tragically and manifestly real for that.

    Still I appreciate your advice to watch out for the “tragedy of the Tragedies” when I stumble over it. I laughed at that.

  24. Note too that Ned left out Chakrabarty, which he also finds “inconvenient” for his views of how the patent world should be.

    Such selective choices reflects poorly on any theories that Mr. Heller advances.

  25. In essence, just see Diehr.

    If you can’t figure it out from that case, nothing I say would be capable of educating you.

  26. A computer program that computes the value of a commodity does not affect the computer it runs on,

    You couldn’t be more wrong. In order to “run on” the computer MUST be changed.

  27. ) I know that stripping out mental steps is not the law today because I know what the law today actually is.

    Can you tell us how to “integrate” a “new” mental step with a prior, old conventional step in such a way that it will pass 101?

    Just curious, Mr. Legalknowitall. Otherwise, there isn’t much practical difference in the analysis proposed by the government and that conducted by the Supremes.

  28. The function needs to be related to the printed configuration. Measuring cup lines on a cup affect the function of the cup. A treatise on pharmacology printed on paper does not affect the function of the paper.

    A computer program that computes the value of a commodity does not affect the computer it runs on, so it is more like the pharmacology text than the measuring cup. A computer program that causes the allocated disk space to vary in the hardware it runs on does affect the function of the hardware, so it is more like the measuring cup.

  29. There is some good reasoning by the majority in Alice but, sadly, I do not think that the fact pattern in the case fully supports upholding patent-eligibility. So the likelihood is that the panel decision will be reversed and the Alice invention be deemed non patent-eligible. The only question IMHO is whether this will happen with restrained reasoning or damaging reasoning.

  30. I find it amazing that people still, to this day, do not get Benson and OVERREAD Benson and place any credence in its anti-software ranting DICTA.

  31. Beware too the Nose of Wax syndrome with 101. Such use by courts (or the Court) is a misappropriation of constitutional authority – in the US at least.

  32. Beware the tragedy of the Tragedies (both commons and anti-commons tend to be faulty rhetorical devices used solely for agenda seeking diatribes). Each has too many errors and caveats to be of much use in an objective discussion.

  33. Reiner,

    Your post is replete with factual (historical) and legal mischaracterizations.

    To wit: appropriation of valuable knowledge, patents as a but-for “reward” (your emphasis on “need” is simply incorrect) and the notion that software (as opposed to ANY other technology) is an “anti-commons” issue (notwithstanding that people want it to be so for their ideological agendas), to mention a few.

  34. Is the “tragedy of the Commons” a reality? I think so. Is the “Tragedy of the anti-Commons” a reality? Again, I think so.

    Given that, do we want a patent system that avoids both? Presumably Yes.

    Is such a system achievable? Presumably Yes.

    Has 35 USC 101 a role to play. I suppose so.

    Are these questions then important? Anybody think not?

  35. “Les, I was thinking more along the lines that a “step” in a process that is not a physical act, or which does not modify something physical, is not a step”

    I couldn’t disagree more. For example, a step that changes the pixel value in an image in a process that corrects original Hubble images to correct for the incorrect mirror polishing is a step, even though you appear to think the change in state in the associated bits is not a physical change (which by the way, it is).

  36. And the subject en banc review we are discussing could result is a ruling so outrageous as to cause the Supremes to take the opportunity to correct all their past mistakes. I thought that was what we were talking about.

  37. 101 is a central provision, sinc it is the only “absolute” test. 102 and 103 are both relative to the state of the art.

    Software is not a subject-matter category. “state Street” was right insofar that there is no reason for a separate mathematical algorithm exception. But it was wrong with its “useful, concrete and tangible” criterion.

    It is much more fundamental to recognize that patents were never intended to allow appropriation of any type of valuable knowledge. Patents are the exception to the rule of freedom of competition.

    Patents originate from “privilege” systems that were in use 200 years ago. But in essence they still are. Which becomes clear e.g. from the lack of an independent rediscovery defense: regardless of the effort of subsequent independent inventors, only one inventor gets te privilege.

    Yes, sometimes the exclusivity of a patent is needed. This is only the case if an invention is a complete solution that all competitors could copy straight away if there would be no patent protection. But this is a rare exception. Even with identical products there are various ways to “differentiate” from competitors.

    A corollary of this line of tought is that patents for parts of products that can not exist independently (e.g. interfaces) are not needed. Never. And swpats typically suffer from a “tragedy of the ANTI-commons” – which makes them very suitable for dreadful “strategic patenting” games.

  38. Therefor, software was held to be, in itself, to be abstract in Cybersource. Correct?

    No. That would be incorrect.

    That you do not realize this only reinforces my other comment this morning.

  39. 1) I am NOT Mr. Wheeler

    2) You “decide” nothing – you follow the direction of those who decide and you slavishly apply the law. You do not have the authority (nor skill) to make the law.

    3) I know that stripping out mental steps is not the law today because I know what the law today actually is.

  40. “What’s the rationale?

    “Integration”

    “In Diehr, the overall process was patent eligible because of the way the additional steps of the pro- cess integrated the equation into the process as a whole. 450 U. S., at 187. These additional steps transformed the process into an in- ventive application of the formula.” Prometheus Syllabus 566 U. S. ____ (2012) 3

    Just like Diehr started with a process for curing rubber, Alice starts with a data processing system then proceeds to integrate a computer and data storage unit with the process as a whole.

    Judge Linn was right on the money and in perfect concert with Prometheus, and Diehr.

  41. 6, the law is “Integration”, 9-0. Therefore if the enbanc court applies the law Alice claims will be upheld as patent eligible subject matter.

    The Court in Prometheus in reference to Diamond V Diehr, stated,

    “the basic mathematical equation, like a law of nature, was not patentable. But it found the overall process patent eligible because of the way the additional steps of the process integrated the equation into the process as a whole. Those steps included “installing rubber in a press, closing the mold, constantly determining the temperature of the mold, constantly re- calculating the appropriate cure time through the use of the formula and a digital computer, and automatically opening the press at the proper time.” Id., at 187. It nowhere suggested that all these steps, or at least the combination of those steps, were in context obvious, al­ ready in use, or purely conventional. And so the patentees did not “seek to pre-empt the use of [the] equation,” but sought “only to foreclose from others the use of that equa­ tion in conjunction with all of the other steps in their claimed process.” Ibid. These other steps apparently added to the formula something that in terms of patent law’s objectives had significance—they transformed the process into an inventive application of the formula. Prometheus. ( MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC. Referring to Diehr as precedent. (Emphasis added)

  42. “a. What test should the court adopt to determine whether a computer-implemented invention is a patent ineligible “abstract idea..”

    Integration

    “and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea?”

    When the technology of the claim is integrated within the process as a whole.

    Although “Integration” was explicitly described in Prometheus, a Law of Nature case, the Prometheus Court relied on Diehr, an algorithm used in conjunction with a computer case, for its Integration Analysis.

    Therefore Alice Corp can use the same Analysis from Prometheus to demonstrate it’s claims are a patent eligible application.

    While at the same time nullifying Judge Prost dissent that the majority improperly ignored the Supreme Court’s most recent statements in Prometheus.

  43. “The claims aren’t directed to a process — but a machine with machine components. I’m sure there are different factions at the USPTO who want different things. ”

    Then the claims can’t by definition be abstract, and only need meet the following definition of the Supreme Court to pass 101.

    ii. Machine – a concrete thing, consisting of parts, or of certain devices and combination of devices. Burr v. Duryee, 68 U.S. (1 Wall.) 531, 570, 17 L. Ed. 650 (1863). This includes every mechanical device or combination of mechanical powers and devices to perform some function and produce a certain effect or result. Corning v. Burden, 56 U.S. 252, 267, 14 L. Ed. 683 (1854)

  44. “manifestly evident” means you can dispute it.

    For example a manifestly evident abstract concept is totally within the mind and thus is subject to much disagreement and dispute.

    However when you start with a process for curing rubber and include the use of a well known formula such as the Arrhenius equation, in conjunction
    ( integrated) with a digital computer then you have a patent eligible application. Of that there can be no dispute!

  45. I see that the court reformulated the questions. I wonder if Rader CJ had a hand in that, because RR is often over in Europe, debating exactly these issues with his peers.

    Somebody upthread offered the comment that there are plenty of software patents in Europe despite the ban (Art 52, EPC)on “computer programs as such”. The reformulated questions neatly reflect the eligibility debate in Europe, between the “contribution” approach of the English courts and the “technical character” approach laid down by the Enlarged Board of Appeal at the EPO.

    So the bare outcome of this en banc matter will be less interesting to European readers than the reasoning that supports it. I hope it will be cogent and unassailable, but I’m not holding my breath because I think these are really difficult questions. I have to say, I’m glad I don’t have to answer them.

  46. “Nowhere does the Court hold that software is “per se abstract.”"

    Software was the subject of that application. Was the software in that case per se (in itself) abstract? The answer is a very simple yes. Therefor, software was held to be, in itself, to be abstract in Cybersource. Correct?

    Would it be more to your liking if they spelled it out for you better?

    “software patents “in general.”"

    “per se” does not mean “in general”. It means “in itself”. And you have not asked for a statement of software being “in general” ineligible. Although we’ll have one of those shortly I think.

  47. The exclusion of software “per se” simply means that it is not a statutory class. That has been well-settled for a very long time – within the U.S. as well as outside.

  48. Well the issue is that some things need to be patentable and some things need to be restricted, The fact is as a whole a program really can not be patented most of the time because the same thing can be done in vastly different ways. However specific algorithms such as SHA and the like need to be patentable. But if I design a program to follow the stock market and alert me when a certain stock hits x amount, you really can not patent such a broad concept. But that does not mean that a competing company should be able to copy the algorithm I used to follow the stocks and decide when to buy or sell a stock.

  49. I read Cybersource just now; in its entirety. This case stands for a very limited holding: “A method that can be performed by human thought alone is merely an abstract idea and is not patent-eligible.” Nowhere does the Court hold that software is “per se abstract.” In fact, the Court only says the word software three times in the whole opinion; none of those statements says anything about software patents “in general.” The opinion is limited to things humans are capable of doing without the assistance of computers.

    You did not say which cases you include in “etc.,” so I will wait for you to elaborate on that.

  50. “No 6, it is not a good point because it is not correct. ”

    I will be the one to decide what is correct and what is not correct around these parts Mr. Wheeler. Remember, there is a rumor that I’m an authoritie.

    ” What this does is strip out all mental steps.”

    Straight on ol’ chap!

    “That is simply not what the law is today. ”

    And how would you know? Have you seen a bunch of claims with mental steps being upheld on the novelty/non-obviousness of their mental steps? Because I have not noted such a thing.

  51. The problem with not bothering is that a lot of folks inject an incorrect and often unstated premise that “all ideas are abstract” because they equate “ideas” with “eureka”-style thoughts.

    It’s not really being cute with words; folks who debate this stuff actually go down that route. It is important to first establish that “ideas” are not all abstract, although the colloquial meaning of the word abstract suggests they are.

  52. “I think you should start by defining an “idea;” i.e., “What is an idea?”"

    Or we could not bother and pretend that we did, or not even bother with pretending that we did.

  53. “Ok, so where have you seen a court of law hold in a case that software is per se abstract as the word abstract is used in the context of the common law exceptions; ”

    Why you changing the subject bro?

    After you wrestle with that for a while, really consider why you would want to change the subject, the answer is: Cybersource, etc.

    ” and that the only remaining issue is if attaching it to a computer renders it patentable?”

    I think that is CLS bank and Alice, but there was another iirc. I think Dennis mentioned it in the OP. Bancorp? Something like that maybe?

  54. “http://news.yahoo.com/worlds-big-wanted-sign-600-million-jobs-200153869–politics.html”

    “In other words, society itself – or how people “innovate” with each other – is needed far more than innovations in material technology”

    Truth^ But those innovations aren’t patent eligible :(

  55. We’re talking about divesting general purpose computer limitations of their eligiblity-rendering ability for a certain subset of ideas that we define as “abstract ideas.”

    Abstract ideas are as-yet undefined. That can change with this en banc. What’s at stake, most likely, is defining a slice of patents where the idea’s abstractness is defined by reference to the role played by the general-purpose-computer limitation.

    Some software patents will go away if they do define abstract ideas in relation to the role played by the computer. But not all. If Crouch insists on flashing the s-word in the post’s title, a more appropriate title would be “What kinds of software are patentable?”

    “Is software patentable” is plainly not the question before the Court. The answer to that question is not something the Federal Circuit is constitutionally authorized to address in this particular appeal (case/controversy).

  56. Those comments that omit the limitations on Benson and Flook as outlined in Diehr and emphasized in Bilski are every bit as “wistful.”

    That’s a lovely glass house you are throwing stones from Paul.

  57. No 6, it is not a good point because it is not correct. What this does is strip out all mental steps. Period. That is simply not what the law is today. That is a fallacy presented as law today.

    Ned please take better care to present your fantasy law as your desired changes in law rather than intimate that such represent current law.

  58. The rule is, though, that even if the array of ink on the surface is novel and non-obvious but does not interact with the paper or affect its transformation to another state or thing

    That’s not the rule. The rule requires merely a “functional relationship”

    Put it this way: even MM (self defeats and) admits to the functional relationship. Without the functional relationship, the execution and configuration of machines into new machines would not happen, and no one would even be discussing this matter.

    Point of fact (and law), the functional relationship is there and rules the day.

  59. In the context of patent law jurisprudence, it is not helpful to define all ideas as abstract; and then search for non-abstract ideas. That’s a null set.

    You can’t shift the meaning of “abstract” midway into your analysis and say “well, all ideas are abstract; so now let’s try and define an ‘abstract’ idea.”

    Ideas are thoughts. All thoughts are “abstract” in the sense that they’re intangible, untouchable things in your mind. But that’s not what we’re talking about here.

  60. I think you should start by defining an “idea;” i.e., “What is an idea?”

    And you should also accept the premise that not all ideas are abstract. If all ideas are abstract, then it makes little sense to talk in terms of “abstract ideas.”

    So you tell me; what’s an idea? Once you answer that, we can collaborate on the metes and bounds of the term “abstract.”

  61. Ok, so where have you seen a court of law hold in a case that software is per se abstract as the word abstract is used in the context of the common law exceptions; and that the only remaining issue is if attaching it to a computer renders it patentable?

  62. “That does NOT mean that ALL SOFTWARE resides in that domain.”

    I have never seen software claimed as something other than something that resides in that domain. If you have an exemplary patent that claims it such that it is not, I and many others would like to see it.

  63. “Then th court itself can try to obtain a license before enjoining itself.”

    Lulz lulz lulz. I had wondered though, in all honesty, why patent trolls haven’t started suing the courts by now.

  64. I believe that Linn will participate regardless of senior status because he was on the original panel.

  65. I don’t know what an abstract idea is. The Federal Circuit has an opportunity to define it.

    They asked Mark Lemley that question point blank at a recent oral argument. And he admitted to not having an answer.

    No Court has ever held that software code is, per se, an abstract idea; and that adding a computer makes it patentable. That is not any Court’s position. So the issue teed up is NOT software patentability. It is whether a computer by itself can remove an idea from the domain of abstractness. That does NOT mean that ALL SOFTWARE resides in that domain.

    That is a false assumption; which is why the title of this blog is wrong.

  66. “Les, I was thinking more along the lines that a “step” in a process that is not a physical act, or which does not modify something physical, is not a step. ”

    A good point Ned.

  67. I’m all for it. These “questions” have been on the table for the last 30 years+ and nobody has successfully been able to get the courts to address them head on.

  68. Les, did you forget to include 112, or do you believe 112 does not include issues of scope or breadth?

  69. “It has been made a “101 issue” by absurd, through-the-looking-glass, outcome and judicial activism based rulings”

    Then it has been so made and is thus now.

  70. Mr Heller:

    Since Bilski told you Benson and Flook stood for no more than the Principles in Diehr. And Prometheus, while buidling a case on Diehrs use of “Integration” told you that Diehr remains the case most on point for what IS patent eligible subject matter, why, why why, would you leave “Diehr” out of your cases you want the CAFC to follow???????

  71. “All claims read on all uses of the thing claimed. What of it? ”

    In the Benson case that is an algorithm, aka some shizzle that judges said no wai hosay to patenting on. That’s “what of it”.

  72. “The laws of nature, physical phenomena, and abstract ideas have been held not patentable. ”

    Mr. Morgan:

    Only “manifestly evident” laws of nature, physical phenomena, and abstract ideas have been held not patentable by the Court.

    This fact cannot be disputed.

  73. “What is a process?”

    That question has already been answered.

    i. Process – an act, or a series of acts or steps. (2106 Patent Subject Matter Eligibility [R-9])

  74. The above comments from all those still wistfully thinking that anything that falls under the broad literal language of 35 USC 101 should thereby be patentable subject matter are not just ignoring the reality of the recent controlling Sup. Ct. decisions in Bilksi and Prometheus. They are ignoring the fact that Supreme Court in Diamond v. Chakrabarty itself specifically stated that:
    “This is not to suggest that § 101 has no limits or that it embraces every discovery. The laws of nature, physical phenomena, and abstract ideas have been held not patentable. See Parker v. Flook, 437 U.S. 584, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978); Gottschalk v. Benson, 409 U.S. 63, 67, 93 S.Ct. 253, 255, 34 L.Ed.2d 273 (1972); Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130, 68 S.Ct. 440, 441, 92 L.Ed. 588 (1948); O’Reilly v. Morse, 15 How. 62, 112-121, 14 L.Ed. 601 (1854); Le Roy v. Tatham, 14 How. 156, 175, 14 L.Ed. 367 (1853).”

  75. “Does anyone actually expect the Federal Circuit to rule that software isn’t patentable?”

    If the Supreme Court expressly refused to rule business methods as un patentable, I see even less chance of the Federal Circuit doing so for software.

  76. Even if you extract the following question out of part a: “Does the presence of a computer in a patent claim ever lend patent eligibility to an otherwise patent-ineligible idea?”

    Answering “No” to that question does not mean that software is ineligible subject matter. It only means that an abstract idea doesn’t become patent eligible by the presence of a computer. An abstract idea is not synonymous with software. If it was, we wouldn’t be having this debate in the first place because abstract ideas are unpatentable.

    As the law stands today, software patents enjoy a presumption of validity which implicitly carries with a presumption that they are not directed to abstract ideas. This might be a tenuous presumption for hundreds of thousands of software patents; but that’s a PTO problem, not a jurisprudential problem. So, you see, your blog title is wrong.

  77. Dennis,
    This blog entry’s title is misleading. The Federal Circuit is not going to approach the question from the angle your title hints at, i.e., is “software” patentable? The Federal Circuit is not going to decide, one way or another, if “software” is patentable.

    The Federal Circuit is going to address:

    a. What test should the court adopt to determine whether a computer-implemented invention is a patent ineligible “abstract idea”; and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea?

    b. In assessing patent eligibility under 35 U.S.C. § 101 of a computer-implemented invention, should it matter whether the invention is claimed as a method, system, or storage medium; and should such claims at times be considered equivalent for § 101 purposes?

  78. I don’t know where you’ve seen this before, but it is neither factually nor legally accurate.

    You might also want to include the Court’s response to the government brief in Prometheus (that is, that brief was REJECTED).

  79. It has been made a “101 issue” by absurd, through-the-looking-glass, outcome and judicial activism based rulings.

    Right. Because the last thing we’d want any court to do is make a ruling that takes into account the logical “outcome” of the ruling.

  80. find prior art where a new business method resulting in a better price was performed by a computer prior

    Why would a business method have to be “performed by a computer” to be considered prior art? Is there something non-obvious about using a computer to do a calculation, store data, or output any such data to any party to whom the computer is made accessible? Since when? And what is the non-obviousness argument exactly? Please make me laugh.

  81. Fed. Cir. Rule 29 seems to say that at least the consent of the parties is required. Am I misreading the rule, Dennis?

  82. Les, I was  thinking more along the lines that a "step" in a process that is not a physical act, or which does not modify something physical, is not a step.  

    A computer program comprising a series of non physical acts is not a process.  That a programmed computer executes them is insubstantial.  They still can be ignored for 102 purposes.

    A computer programmed to execute such a process is not a new machine.  It is an old machine that is being used for its intended purpose.  

    All of this is self-evident.

    Read the Goverment's brief in Prometheus.

    Then a real process that does something real.  Implement part of that process using a computer….  well it is still a patentable process.

    Now where did I see that before?  Hmmmm…..

  83. Rich’s acolytes, and we know who they are, remain on the bench. Rich’s acolytes, and we know who they are, remain on the bench. Hopefully, they no longer command a majority.

    I don’t think there is a majority that will buy into the “just because” arguments that will need to be put to paper and sent up to the Supreme Court. Most of the Federal Circuit judges have to understand they are just wasting everybody’s time with that nonsense and, for better or worse, there are no other arguments.

    Prometheus had to have left a big mark. The losing judges at the CAFC wanted to wave it all away in a big cloud of incomprehensible dust and misrepresentation of the facts. The Supremes simply turned on the fan and issued the smackdown.

    As we’ve discussed ad nauseum here for years, there is a great, unmissable and irrefutable distinction to be made between novel chemical compositions defined by their objective, unambiguous structural features (which are certainly eligible subject matter) and novel machines that are defined purely the basis of their “capabilities” with no attempt whatsoever to distinguish them structurally from the prior art. The latter are nothing more than transparent attempts to claim abstractions, e.g., information processing (receive information X, categorize into information Y1 and Y2, spit out information Z), of one attempt or another. There is “progress” promoted by these patents, unless you believe that the creation of ever-lower classes of patent prosecutors is “progress.”

    Remind me again why a technical background is needed to prosecute or examine a claim such as the one at issue in this case. Is contract writing one of the “useful arts”? What about writing court opinions? Do the CAFC or their clerks use computers? Maybe should promote progress in their “art” by filing 200 applications drawn to various computer-implemented methods of editing/storing/formatting information in a court opinion about, oh, the subject matter eligibility of a computer-implemented method of editing/storing/formatting information in a court opinion. Maybe toss in a dependent claim where the owner of the patent is a patent attorney. Then th court itself can try to obtain a license before enjoining itself.

    That’s just a tiny taste of the world of stooopid that we’re neck deep in already, no thanks to the CAFC, not to mention Kappos and his incompetent gutless predecessors at the USPTO.

  84. I’m not sure what your point is Ned. But, if your point is that claim 1 is too broad or vague to be patentable, then find prior art where a new business method resulting in a better price was performed by a computer prior to the date of invention of the application and reject it under 102.

  85. Price is tangible?

    Risk is tangible?

    A number is tangible?

    What about hope, happiness, God’s grace, time in purgatory, the estimation of others (as in clothes makes the man). What is tangible about these?

    A computer that calculates the time reduced in purgatory depending on the value of the property contributed to Mother Church is patentable simply because it involves a computer, or a program?

    I find it amazing that people still, even today, do not get Benson.

  86. NO. It has been made a “101 issue” by absurd, through-the-looking-glass, outcome and judicial activism based rulings. 101 has no prohibition against mental steps. That’s just judicial nonsense.

  87. You know, Malcolm, if they really intended to follow Benson, Flook, Bilski and Prometheus, I would be ever so heartened. Ever so.

    But Rich’s acolytes, and we know who they are, remain on the bench. Hopefully, they no longer command a majority.

  88. Whether a claim is too broad or not has to do with 102 and 103, not 101.

    Not true. If the scope of the claim is such that ineligible subject matter is protected by the claim, it’s a 101 issue.

    See, e.g., Prometheus, where the claim at issue was asserted in such a manner as to turn people who performed non-patented tests and thought about the unpatentable results of those tests in “new ways” into infringers. That claim was found ineligible under 101. It was a short, tight decision. 9-0.

  89. All claims read on all uses of the thing claimed. What of it? Whether a claim is too broad or not has to do with 102 and 103, not 101.

  90. I’m a little leery of courts, even en banc courts, deciding broad questions of law on a very small canvas.

    It’s actually a pretty huge canvas. None of these judges are confused about the vast number of pure unadulterated computer-implemented cee ar ay pee patents that are out there. It’s not like this some “emerging trend” that nobody could have predicted. It’s a giant, fairly rapidly exploding bolus of parasites whose origin and effects were pretty easy to predict fifteen-twenty years ago and which the CAFC has done it’s darndest to ignore and wave away.

    Those days are ending.

    Reap the whirlwind.

  91. “One of the claims wasn’t directed to only an algorithm.”

    I know all about the case thx. So tell me, this “one” of the claims, could it still effectively read upon all uses of the algorithm?

    “It referred to a shift register”

    So? The algorithm involves a shift operation. You’re going to need a shift register no matter what to use the algorithm. Which, again, is the whole point of Benson. He was looking to shut down all uses of the algorithm, no matter how the claim was worded or if it has a shift register or not.

    The question, for Anne, is whether or not Benson should have been allowed to patent on his algorithm, either by hook, or by crook?

  92. Computer implemented inventions = patentable subject matter
    Definite: Rader, Newman, Linn

    Let’s try to be clear. You think Rader, Newman, and Linn will hold that any claim that begins “A computer-implemented method” is 101 eligible, regardless of what follows?

    What’s the rationale? Because computers are “great”? Because the claim recites a “machine”?

    Or will such methods only be eligible where the claim recites a “machine” wherein the machine is (gulp) a “new machine” (and these three “know” that the machine is “new” because the claim says that it “does something” “new”)?

    What’s the logic?

  93. Actually, I’m a little leery of courts, even en banc courts, deciding broad questions of law on a very small canvas. These questions are all interesting, but if they are not necessary to the decision in this case, they still are dicta and should be treated as such — non binding on future panels that have real cases to decide.

  94. Hence, the “non-functional” language refers to something other than being descriptive.

    What is the function of information if not to describe something?

  95. 1. Apparatus comprising:

    computer means for performing new business method where the output is an improved price.

    Do you realize, Ned, that by publishing this apparatus description you just prevented a million patents for computer-implemented pricing methods from issuing?

    The art of pricing merchandise will take several generations to recover, at least. This is terrible news for small business owners, who create 99.999999% of the jobs in this country, and who rely on the merchandise pricing industry to price the products that must be sold (or better yet, licensed to a foreign company) to pay for the salaries of all those freshly-created jobs.

  96. How about software that produces a result that is novel, unobvious, useful, and tangible?

    (And CAFC screwed up when they decided that signals are not tangible.)

  97. We are so used to handling these issues under 101. If we were to handle them under 102/103/112, what would be the form of a rejection. Take these as examples.

    1. Apparatus comprising:

    computer means for performing new business method where the output is an improved price.

    2. Article comprising, non transient computer readable medium encoded with a computer program, wherein the computer program does the new business method that outputs an improved price.

    3. Process comprising:

    the business method, implemented on a computer, that outputs an improved price.

    The new business method in not obvious over existing methods.

    In a more concrete example, take Bilski, assume novelty of the algorithm, and add computer limitations per claim 1-3.

  98. “Reyna”

    I know ol’ Jimmie. He plays HALO, therefor, software is not patent eligible to him. If you’re a player you know software patents have no place in the world.

    Ol’ Jimmie’s always got a card to play.

    link to youtube.com

  99. “Benson should have been allowed to patent on his algorithm”

    You should read the brief. One of the claims wasn’t directed to only an algorithm. It referred to a shift register — i.e., a part of a machine. Under MOT, that claim would have passed muster as being tied to a machine.

  100. “printed matter can change a cup to a measuring cup”

    Yes, that was the case that fed the whole shebang up. Had that one simple case gone to the supremes we would have saved ourselves untold amounts of headache.

  101. “All descriptive matter serves the function of describing stuff.”

    The describing stuff is encompassed within the “descriptive” part of the “non-functional descriptive material.” Hence, the “non-functional” language refers to something other than being descriptive.

    FYI — your superdooper Les logic is broken.

  102. OK … let’s play a fun game.

    Let’s predict who is going to come down on what side. I’ll start it off with some of the easy ones.

    Computer implemented inventions = patentable subject matter
    Definite: Rader, Newman, Linn
    Possible: Lourie (Ultramercial), O’Malley (Ultramercial, CLS Bank)

    Computer implemented inventions = not patentable subject matter (or at least not “computer implemented being determinative” of being patentable subject matter)
    Definite: Dyk, Moore, Prost (Cybersource, Fort Properties)
    Possible: Bryson (Cybersource, Myriad)

    Based upon my the information I have, that leaves: Reyna and Wallach as unknowns. However, both Reyna and Wallach are new so not much to go on there.

    I have Mayer, Clevenger, Plager, and Schall on senior status – so I assume they won’t be taking part of the decision. Linn is supposedly taking senior status on November 1, 2012, so I don’t know if he’ll be part of the en banc decision. Anybody know how that works?

    Am I missing anybody?

    Based upon the numbers, it looks like it could come down to the new members: Reyna & Wallach.

  103. Does anyone know how long courts have been re-writing the Questions Presented to suit their own doctrinal purposes? It seems to me that our centuries-old common law system allowed law to evolve slowly and carefully by parties asking courts very specific questions in the face of specific facts. The courts would answer those specific questions based on the facts (i.e. HOLDING) and provide commentary on the benefits and consequences (i.e. DICTA) to guide future questions and answers.

    However, re-formulating questions, as the CAFC has done here, seems to invite judicial policy-making and general activism (which I’m told are bad things).

  104. printed matter can change a cup to a measuring cup

    Or a measuring cup into a dual-action measuring cup and easy-access classic baseball statistics reference guide!!!!!!!

  105. “Programmed computers are now, some 60-70 years after their invention, as old and everyday as printed matter.”

    Except they work ENTIRELY differently

    Right. Computers are nothing at all like player pianos. No resemblance whatsoever.

  106. I am just so frustrated with this whole line of law.

    If your understanding of this “whole line of law” is as misguided as your understanding of the issues in Prometheus v. Mayo, then it’s not suprising that you are “frustrated.”

  107. If something is a process, it is definitely a process.

    Obviously, since “process” is part of the statutory definition of a process.

  108. I never saw your brief on Bilski — too many briefs to read at the time so I had to cherry pick them. However, I just read it, and it is very good. Your comments on Benson are things I’ve pointed out many time. Douglas was a legal hack that didn’t understand/like patents and didn’t understand the underlying technology.

    I’m curious where you stand on the argument that 101 is not a conditional for patentability?

  109. You can’t even make that argument with printed matter. For example, printed matter can change a cup to a measuring cup or a shirt from a shirt to a billboard.

  110. Do you know what you are talking about? I don’t think you understand printed matter jurisprudence.

    Printed matter doctrine applies to non-functional descriptive material (i.e., non-functional descriptive material isn’t given patentable weight). No one I know of argues that software is non-functional. If you have a different point to make, you need to make it clearer.

  111. You need to read In re Lowry.

    link to digital-law-online.info

    Data structures are not analogous to printed matter. You need to understand why the printed matter cases came about — merely adding printed matter (i.e., printed words) to something doesn’t change what was invented (look at In re Ngai for the policy rational). You cannot make that argument with software.

    “Programmed computers are now, some 60-70 years after their invention, as old and everyday as printed matter.”
    Except they work ENTIRELY differently — based upon their software.

  112. Hardly. With an en banc decision, the Supreme Court may be more inclined to weigh in on the matter.

    What will be interesting to see is how the USPTO weighs in on it. The claims aren’t directed to a process — but a machine with machine components. I’m sure there are different factions at the USPTO who want different things. It’ll be fun to see who wins out at the USPTO.

  113. 1. A computer and a data storage unit, wherein said data storage unit stores executable [novel, non-obvious series of displayed text images], wherein said [novel, non-obvious series of displayed text images], when viewed, promote sleep.

    And here’s the question again, revised to assist those who are inclined to pretend to not understand what is being discussed:

    “What policy result is achieved when this composition is analyzed under 103, as opposed to being analyzed under the Supreme Court’s current 101 jurisprudence to determine if it effectively claims ineligible subject matter?”

    And if you want to invoke the “printed matter exception”, please (1) cite the statute or Supreme Court precedent supporting that doctrine or (2) if you cannot perform (1), then cite the relevant Supreme Court case law which justifies the “printed matter exception.”

  114. The issue of whether or not the process is so broadly described as to be characterized by some as abstract is a question to be dealt with under 102 and 103.

    The world has moved on, Les. Where were you?

  115. At this point it is just “spin” and nothing more.

    It’s certainly more than that, anon.

    As you know, the wind has been blowing in one direction for quite a while. And that’s not sea salt your tasting.

  116. If its a process directed toward mental steps, its a process and meets the test under 101. If its a process carried out by a computer, then its a process and meets the test under 101. If its a process directed toward a law of nature, then it is a process and meets the test under 101.

    If something is a process, it is definitely a process.

  117. In related news:

    link to cnn.com

    Our clever cousins at CNNMoney recommend that viewers turn the show into a drinking game in which they do a shot every time a “business development session” is held poolside and “swill the whole bottle when someone actually writes a line of code.”

    Silly CNN. Everybody knows that you don’t need to write any code to make million$ off your super awesome computer-implemented “invention.”

  118. How about an analysis of computer-related inventions that is analogous to printed matter inventions?

    If you think about it, printed matter (i.e. paper with an array of ink on one surface) is an article of manufacture. The rule is, though, that even if the array of ink on the surface is novel and non-obvious but does not interact with the paper or affect its transformation to another state or thing, then that novel and non-obvious ink array is given no weight and the claim is rejected as not new.

    Similarly, the software in a memory (i.e. an array of ones and zeroes) is an article of manufacture. If the array of ones and zeroes is novel and non-obvious but does not interact with the computer or affect its transformation to another state or thing, or otherwise affect hardware, then that novel and non-obvious array of ones and zeroes is given no weight and the claim is rejected as not new.

    We get to this point because printed matter is Notoriously old. Programmed computers are now, some 60-70 years after their invention, as old and everyday as printed matter.

    If the invention were, for example, a computer memory of ones and zeroes that are arrayed so that when read and acted on by a computer with a monitor, the result is a new and non-obvious short story, the printed matter analogy holds perfectly.

    If the invention is a memory of ones and zeroes that are arrayed that when read and acted on by a computer, the result is a new and non-obvious method of doing business that does not interact in the claim with any hardware, the printed matter analogy holds just as well.

    It saves the untold argument spawned by Scotus’s spasms of analysis.

  119. I think the en banc court is likely to find a way to narrowly exclude the claims in this case.

    There is no way to “narrowly” exclude the claims in that case without taking down thousands of other similarly b—–t claims.

    This is good news, by the way.

  120. There may be a difference between what the Federal Circuit will do and what the Federal Circuit should do.

  121. I am just so frustrated with this whole line of law. Basically, Gottshalk v. Benson was wrongly decided in the first place and used flawed reasoning. It should be overturned. It comes back at us like a zombie all the time.

  122. These are ridiculous questions:

    a. What test should the court adopt to determine whether a computer-implemented invention is a patent ineligible “abstract idea”; and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea?

    35 USC 101 is the simplest and clearest law I have ever read. It is only the courts ridiculous result driven rulings that has made 101 a difficult issue.

    The only test that need be applied is: Is the claim directed to a process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.

    If its a process directed toward mental steps, its a process and meets the test under 101. If its a process carried out by a computer, then its a process and meets the test under 101. If its a process directed toward a law of nature, then it is a process and meets the test under 101.

    The issue of whether or not the process is so broadly described as to be characterized by some as abstract is a question to be dealt with under 102 and 103. In every recent 101 ruling, the courts have come to the ridiculous conclusion that the claim is not a process because it is known. AAAAaargh!

    No No No. If it is known, then it can be rejected under 102.

    Please stop these through the looking glass rulings that say something isn’t a process because it is known. Making bourbon through fermentation, distillation and aging is known, but it is still a process and passes the 101 hurdle.

    b. In assessing patent eligibility under 35 U.S.C. § 101 of a computer-implemented invention, should it matter whether the invention is claimed as a method, system, or storage medium; and should such claims at times be considered equivalent for § 101 purposes?

    OF COURSE they are not equivalent! They are however, all things that might be patentable. That is if the particular method or system meets the requirements of 102, 103 et al. they are patentable because they are: a process, machine, manufacture, or composition of matter, or a new and useful improvement thereof.

  123. “There is no chance that the Federal Circuit will hold that software per se is not patentable.”

    Sure they may. It is, after all, well known that software “per se” is ineligible.

    “However, I think the en banc court is likely to find a way to narrowly exclude the claims in this case.”

    Such as, oh, I don’t know, applying the law instead of trying to make up their own?

  124. There is no chance that the Federal Circuit will hold that software per se is not patentable. However, I think the en banc court is likely to find a way to narrowly exclude the claims in this case.

  125. “In its initial panel opinion, the Federal Circuit held that, when considered as a whole, the claimed data processing invention was patent eligible.”

    And I lulzed too.

    I’m glad to see them take this en banc before the supremes wreck their grill.

  126. Those are actually pretty good questions, for a change.

    At this point it is just “spin” and nothing more.

    Act like you’ve been in the endzone before MM.

  127. Does anyone actually expect the Federal Circuit to rule that software isn’t patentable? I could see this getting appealed to the Supreme Court and having them rule that, but I have never seen any indications that the Federal Circuit will support reducing the scope of patentability.

  128. a. What test should the court adopt to determine whether a computer-implemented invention is a patent ineligible “abstract idea”; and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea?

    b. In assessing patent eligibility under 35 U.S.C. § 101 of a computer-implemented invention, should it matter whether the invention is claimed as a method, system, or storage medium; and should such claims at times be considered equivalent for § 101 purposes?

    Those are actually pretty good questions, for a change.

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