Carnegie Mellon v. Marvell: Another $1b verdict.

By Dennis Crouch

Marvell's stock price plunged about 10% following news that a jury had awarded well over $1 billion patent infringement verdict to Carnegie Mellon University. Download MarvellVerdict.  The verdict is based upon finding of direct literal infringement of claim 4 of Patent No. 6,201,839 and claim 2 of Patent No. 6,438,180. The CMU hometown Pittsburgh jury also found that Marvell induced infringement by encouraging customers to use its chips. Regarding validity, the jury held that the asserted claims were neither anticipated nor obvious. One of the key pieces of evidence in the trial was an old email from a Seagate engineer noting that the CMU invention went well beyond the current state of the art. (Of course, that email was focused on advances found in the disclosure rather than the broad claims asserted by CMU.) Seagate was apparently happy to provide that document to be used against its market competitor. It is that same Seagate engineer's prior patent application that served as the core of Marvell unsuccessful invalidity argument.

An interesting element of the verdict involved particular willfulness questions. The jury particularly held that (1) Marvell knew of the asserted patent before the lawsuit; (2) had no reasonable defense for its actions; and (3) knew or should have known that its actions were infringing. The verdict did not, however, ask whether the action was "willful." CMU will ask the court to rely upon those answers to treble the damage award. If the damage award is trebled (tripled) and interest added, the award will be roughly equivalent to Marvell's $3.8b market valuation. (The award is larger than CMU's current endowment.) In the initial complaint, CMU also requested attorney fees and a permanent injunction.

This is the second billion dollar judgment against a Quinn Emanuel client awarded in the past few months.

Marvell has announced that it will prevail on appeal. In a pretrial ruling, district court judge Nora Fischer denied Marvell's motion for summary judgment of anticipation, but noted that it was a "close call" based upon her construction of the asserted claims. Marvell did not exercise its authority to seek a reexamination of the patent at the USPTO. Over the next six months, both parties will file and respond to post-verdict motions. Judge Fischer announced her intention to make a final ruling in the case in May 2013. If the verdict is confirmed by Judge Fischer, Marvell will then have an opportunity to appeal after posting a "supersedeas bond." If the damage award is roughly equivalent

The asserted patent claims are basically signal processing logic algorithms for determining the value of items coming from a computer memory signal. This is necessary because the "0" and "1" that we normally talk about for binary digital signals is not actually accurate. In particular, the invention indicates that you should apply a "signal dependent" function to calculate the value as a way to overcome noise in the signal. Apparently a key distinguishing factor from the prior art is that the decoding functions used are "selected from a set of signal-dependent functions." The asserted claims do not identify the particular functions used, only that functions are used.

The two infringing claims are as follows:

Claim 4 of US Patent 6,201,839:

A method of determining branch metric values for branches of a trellis for a Viterbi-like detector, comprising:

selecting a branch metric function for each of the branches at a certain time index from a set of signal-dependent branch metric functions; and applying each of said selected functions to a plurality of signal samples to determine the metric value corresponding to the branch for which the applied branch metric function was selected, wherein each sample corresponds to a different sampling time instant.

Claim 2 of US Patent 6,438,180 (Claim 2 is dependent from Claim 1 and I combined the two together):

A method of determining branch metric values in a detector, comprising:

receiving a plurality of time variant signal samples, the signal samples having one of signal-dependent noise, correlated noise, and both signal dependent and correlated noise associated therewith; selecting a branch metric function at a certain time index; and applying the selected function to the signal samples to determine the metric values, wherein the branch metric function is selected from a set of signal-dependent branch metric functions.

Folks focused on subject matter eligibility issues will notice the obvious problems raised by the asserted claims.

About Dennis Crouch

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

327 thoughts on “Carnegie Mellon v. Marvell: Another $1b verdict.

  1. 101, if you say that BMs are eligible, that is what you argue.  If you do not so argue, then stop saying it.
     
    Logic.
     
    "Republicans are teapartiers."
     
    The problem with this statement is that not all Republicans are teapartiers.  Get it?
     
     

     

  2. Ned, now you need to admit that business methods are patent eligible. And to never again say they are NOT patent eligible unless Congress changes the law to say such, or the Supreme Court so holds.

    Agree?

  3. They did hold the claims ineligible, but not because the claims were directed to a business method, but because the claims were abstract.  Still, that they were directed to a business method was well understood.
     
    So, it cannot be true that business method claims are categorically eligible.  They are, rather, not categorically inelible even thought they are business methods.  In most cases they are abstract.  But, if they are not abstract, they are potentially eligible.  But if they are not abstract, they are also not business methods, but claims that otherwise would pass the MOT.
     

     

  4. I have no trouble believing that all three of you had wonderful fathers – I envy you that. And I thought that EG’s column on the other blog was nicely done. But I think invoking the memory of anyone’s deceased father in the pursuance of attacking pseudonymous blog posters is in poor taste. That’s especially the case if the deceased was known for his professionalism and dignity.

  5. Ned: “business methods are categorically eligible for patenting.”

    That is simply stu pid. No one is arguing that.

    Business methods are simply one type of method that is eligible under the method category.

    You really need to top these semantic games because they prove nothing and get you no closer to banning business methods.

  6. The thing is, you see, nobody, not you, not EG, not anybody, had a more admirable father than mine. And there are surely any number of other contributers to this blog with recently deceased fathers who feel about their own fathers like I do about mine, you do about yours and EG does about his.

  7. Ned: “I bring up Bilski, where the Supreme Court held a business method not to be eligible .”

    The Supreme Court did NOT so hold.

    Can you prove me wrong by providing the exact quote of the holding?

    :: silence::

    Of course you can’t.

    You are a liar.

    The law establishes three categories that are NOT eligible for patents: laws of nature, physical phenomena, and abstract ideas.

    Business methods are NOT one of the categories.

    Stop saying they are.

    Stop lying.

    For the sake of the integrity of the blog It ought to be against the rules of Patently O!

  8. I do not need to deny it. The statement is true.

    But you must understand what that statement means. I have been careful and explicit in explaining that the statement applies to the business methods as a category – just like any other category. I have also explained that this still means that ALL individual examples, individual claims from individual applications must be evaluated.

    I have been rock solid steady in my views. My views accord with the law. My views do not play the semantic games you attempt to play and avoid the improper “categorically” nonsense you wish to employ – and as noted universally applies to ANY and ALL method claims of ANY category.

    It is quite clear to see that using such language is universally true, and thus the selective callingout of business methods to employ that language is a deceptive trick.

    Stop the attempts at deception.

  9. Ned: ” Supreme Court actually said that they held the claims ineligible because they were abstract.”

    Yes and why were they abstract?

    Because the claims were math.

    Conducting business had nothing to do with it.

    Conducting business is not abstract.

    It is you that is beyond ridiculous to insist otherwise.

    Ned: “Thus your contention that business methods are eligible for patenting as a category is ridiculous.”

    I never said there was a business method category. Section 101 lists four categories of subject matter that are patent-eligible: process, machine, manufacture, and composition of matter.

    Likewise the law establishes three categories that are not eligible for patents: laws of nature, physical phenomena, and abstract ideas.

    Business methods are NOT one of the categories.

    Stop saying they are.

    Anyone in the patent community, even a beginner that just read a patent it yourself book, would know you are being a willfully dishonest foool.

    STOP IT!

  10. Oh, stop it, Ned. Agree with anon that “as a category” and “categorically” have two different meanings, and move on.

  11. to again state that business methods are categorically eligible for patenting.

    I have never ever ever stated that.

    Never.

    In fact, I have consistently corrected you and will correct you yet again in the immediate case.

    Ned Heller, you are fallaciously using (in fact misusing) the word “categorically.”

    Quite plainly, “as a category” and “categorically” have two different meanings.

    I have discussed this in great detail and quite frankly your “ignore-what-I’ve-said-and-repeat-the-same-crrp” game is distasteful and extremely intellectually dishonest.

    Please stop.

  12. Once again Ned your fallacy is the one example in place of a category fallacy.

    Please stop.

    You are embarrassing yourself.

  13. Ned,

    I have explained ad infinitum that your use of “categorically” is fallacious.

    Quite simply, there is nothing at all that is categorically eligible. NOTHING. No kinds of methods. No kinds of machine. No kinds of manufacture. No kinds of composition of matter.

    It makes no sense to even speak so.

    All that is accomplished is kicking up dust.

    Please stop.

  14. 101, regardless of your thinking about why the claims in Bilski were held in eligible, the Supreme Court actually said that they held the claims ineligible because they were abstract.

    Furthermore, there was a broad consensus by everybody involved in that case that the claims involved in Bilski were directed to "business methods."  While there is no good definition of what constitutes a business method that everybody accepts, there is a broad agreement that the claims in Bilski were in fact directed to a business method.

    Thus your contention that business methods are eligible for patenting as a category is ridiculous.

  15. Anon, let's be clear here whose brain is malfunctioning.  You state that "business methods ARE eligible."  I bring up Bilski, where the Supreme Court held a business method not to be eligible – and then you accuse me of being disingenuous.

    Ridiculous.

  16. “And yet for some unknown reason (my guess would be at the urging of his third party benefactor), he has attempted to resurrect a stale and defeated argument in pushing his agenda.”

    I for one am finished with Ned and his shameful shilling tactics and total disregard for the truth and the law.

  17. MM: The claim from Prometheus was from a real case and you thought it was eligible. You were wrong. What changed?

    “Integration Analysis” Prometheus 9-0.

    While I do not recall making a prediction on Prometheus many did rightfully feel the claims should pass 101 for the same reason the dissents in In re Ferguson and Bilski felt those claims should pass 101. That reason being:

    ” a concept and an application is statutory subject matter under Diehr. ”

    The problem was although such processes were statutory under Diehr, those same processes it would not be under Flook. So what Prometheus sought to do was reconcile Diehr with Flook without having to overturn Flook. Which resulted in the Court stating the following:

    “In Diehr, the overall process was patent eligible because of the way the additional steps of the process “integrated” the equation into the process as a whole.” 450 U. S., at 187. These additional steps transformed the process into an inventive application of the formula. ) [MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC 566 U. S. (2012) 3 Syllabus] (Emphasis Added)

    What’s important to understand here is that the Court did not endorse “dissection” or overturn any part of Diehr. Remember “integration” is the antithesis of dissection. As the Court literally said Diehr remains the case “most on point ” for what “is” statutory subject matter.

    All the Court said was in effect that a bare Court created judicial exception, in the form of a math equation or law of nature, (derived implicitly from the Congressional Statute of 101) can’t be made patent eligible with additional steps to apply it, if the claims as a whole still pre-empt the judicial exception.

    So, using the Courts line of 101 cases as the lens thru which to determine when claims are “integrated” it is apparent that a new and useful process claim in general has a clear presumption of “Integration” and the presumption remains valid, and requires no further analysis under 101 unless the claims as a whole recite;

    1. A bare Court created judicial exception, (derived implicitly from the Congressional Statute of 101) or

    The first element of the claim is a bare Court created judicial exception (derived implicitly from the Congressional Statute of 101) followed by additional steps or claims that apply the judicial exception. In the case of the latter, analysis for extra-solution activity, (pre or post ) occurs to determine if the claims are integrated or instead pre-empt the judicial exception.

    And that MM, is the way to proceed. All your whacky wet dreams for resurrecting Steven’s dissent in Diehr in order to establish a mental steps dissection test has been crushed by the Supreme Court in Prometheus, 9-0!

  18. MaxDrei:

    Shame on on. Your post is patronizing, disrespectful, and downright disgusting. Who the he ll are you to tell a son how to commemorate and speak of his dearly departed father?

    What right do you have?

    And that you “invoke” E.G’s. father as “your dad” in an attempt to be snarky at that, is downright disgraceful!

    Unless he was your actual father too, you have NO RIGHT to speak of the great man in that manner!!

    I too recently lost my dad and he was close to the age of E.G.’s father So I understand the grief and that comes with that.

    Speaking of your father and what he meant to you and accomplished in this world is one of the best ways to work through that grief and put it to good use. The humor is entirely appropriate when the “son” evokes it in memory of the brave and courageous acts his father once demonstrated. It’s healthy and all part if the grieving process.

    I understand what it means to have a tall legacy left by the one that taught you more than you can imagine and the enormous responsibility you now have to spend the rest of your life working to measure up to his legacy.

    Though you may never quite measure up, you know you will be a greater man than you could have ever been for the effort. And that is perhaps the greatest gift a father can leave his son. E.G. and myself in that regards are truly blessed.

  19. What’s worse 101 Integration Expert was the lesson was previously fully absorbed by Ned Heller and he expressly repeated the holding of Bilski – as you are indicating – and the lesson included the use of Ned’s own supplied article on the difference between a holding and dicta.

    He even thanked me for showing him exactly what the holding of Bilski was.

    And yet for some unknown reason (my guess would be at the urging of his third party benefactor), he has attempted to resurrect a stale and defeated argument in pushing his agenda.

    It is not possible to teach someone who refuses to learn (even if that person has actually learned the lesson previously).

    Without any forceful moderation we are doomed to repeat the merry-go-round of such travesties. And there is little hope that such will change (witness Prof. Crouch’s post on the fifty-year old letter).

  20. “You cannot really pretend that Bilski did not hold the claims before it ineligible.

    But—that does seem to be your position.”

    No, that is not my position. Now let’s get this. I have stated many times in this thread and others that the Court found Bilki’s process claims ineligible because they amounted to nothing more than math, a Court created judicial exception of an abstract idea. That Bilski’s claims were applicable and beneficial to business, specifically the field of hedging, was not a sufficient limitation to prevent the claims from preempting the judicial exception of the claimed math formula.

    Also that the Court in it’s discussions may have referred to Bilski’s invention as a business method was simply dicta and not the holding in the case, and equally irrelevant regarding to the question of patent eligibility under 101.

    I really do not know how to explain this any simpler to you. Perhaps anon can teach you about how to read a Court case. Anon is a good teacher.

  21. Ned: “Stop saying BMs are eligible.”

    Why?

    Did I miss something?

    Did the Supreme Court say stop?

    I know they were specifically asked to say so in Bilski.

    Did they say it?

    Did Congress say stop?

    Please provide an exact quote and the proper pin-cite.

    Also if the Court and/or Congress has made any other processes ineligible please let me know will ya?

    Ya know like medical methods, rubber curing methods, software methods and the like.

    And please don’t forget the citations!

    Thank You.

  22. They are not categorically eligible.

    This is farcical, as no one (except you) has ever said suich a thing. I have repeatedly attempted to disabuse you of your fallacious way of saying exactly what you just said (you continue to misrepresent this area of law, long after I make this clear to you – we both know why).

    Review my post at 7:33 once again (or any of the hundreds in which I have streadfastly and pateinetly explained how you are torturing the word “categorically” as opposed to treating things as “of a category.”

    Do you realize how bad you look in black and white when you attempt (and fail) at these semantic word games, Ned?

  23. This is farcical.  They are not categorically eligible.  No particular kind of method claim is.

     The SC simply held that they were not categorically excluded.

    Sent from iPhone

  24. mawk·ish
    /ˈmôkiSH/

    Adjective

    1.Sentimental in a feeble or sickly way: “a mawkish poem”.

    Wow – talk about a lack of awareness. MaxDrei, do you know how insulting your post is? How much common decency it lacks? It is your post that is grotesque.

    It’s easy to see you lining up shoulder to shoulder with MM. And yet, you B_itch and Moan when the “swagger” is turned on you.

    Hypocrite.

  25. By all accounts Dad was a person of some considerable dignity, with a strong presence. That being the case, I imagine he would be even more embarrassed than me, by the use of this blog to make grotesquely mawkish tributes to him. I’ll get no thanks for saying this but, for the sake of what remains of his dignity, can it stop now please?

  26. And MaxDrei has never been irritated with MM’s invective….

    Hmm, I guess the “swagger” is not so charming when it not you that is dishing it out…

    What’s the word for someone who can dish it out, but not take it?

    Oh yeah,

    Hypocrite.

    Ring a bell MaxDrei? Mind you, that’s not a third grade level word, so maybe MaxDrei doesn’t recognize it, so perhaps someone can explain it to him at the level or in a manner that will not lose his interest. Is Beavis or Bxtthead available? Any other third grade words you want to add to the banter?

  27. or you would have your head figuratively handed back to you.

    LOL – like I hand MM’s head to him?

    It does set him to eplectic fits of rage, especially when he tries to be substantive and self-defeats, destroying his own anti-patent “policy” positions with his admissions of “programmed to = structure” and the understanding of the critical exception to the printed matter doctrine. Mind you, that won’t stop him from blatant lying, but the fact that he has volunteered such admissions does make it impossible to advance his “policies” in any type of intellectual honesty (and delightfully, any attempt to actually improve this blog will necessitate the surrender of his favorite dogma).

  28. Outright lies, gross and deliberate misrepresentations of positions and retreads of fallacious logic that have been repeatedly shown to be fallacious.

    Leopold is right (and as typical, not in the way he thinks):

    Dennis isn’t it time?

  29. No Ned – I am using eligiblity appropriately in discussing a category level. It is you that is using the term inappropriately. I have explained this in great detail. You are purposefully conflating a single example and an entire category.

    This is a fallacy – one easily demonstrated by the example of medical methods and the Prometheus case. The simple example that you quite simply refuse to engage in any sense of intellectual honesty.

    My purpose is genuine and clear: to wash out all the dust you are trying to kick up on this issue. You can continue your crusade if you choose – but this path only leads to crystal clear expositions of your fallacious logic, and the continued display of your lack of intellectual honesty. It’s not a very good path for you and your third party interests, so I suggest you rethink your tactics.

  30. Are you up to 273 yet?

    Do you recognize the number?

    BMs are eligible – by law – and as a category. Just like any other category. Go back and read Bilski. Note that Stevens lost.

    Then try (once again) to understand what this means in regards to ANY single method claim of ANY single patent application that belongs to ANY category.

    And then please stop trying to kick up dust with your bogus arguments and fallacious logic, especially as you refuse to honestly engage my questions and comparisons to medical methods due to your third party interests.

  31. You’re also correct in another regard: Dad would have “torched” Malcolm mentally to ashes, and then wiped up those ashes. Play “nice” with Dad, and he would respect you, even if you were the adversary. Play “nasty” (like Malcolm does), and Dad would likely make you regret it (in spades); I saw that happen at least twice, once in the appealed interference case I noted in my article. The other was in a bruising contested reissue proceeding where the other side tried to kick improper “dirt” repeatedly on the patent invovled; Dad fielded each such “missile” hurled and turned it back against the other side. I learned early never, but never make the case personal with Dad or his client, or you would have your head figuratively handed back to you.

  32. “counterexample to their nonsensical thesis that all business method claims are inherently eligible.”

    Look how far you have sunk in defeat to stoop to outright lies. I don’t think anyone has held such a position when it comes to business methods. I for one have always said a business method is no different than any other method. And as such is equal to and subject to the same conditions and requirements of the other 3 categories.

  33. MM: Why does your analysis of a claim require that the claim be from a “real” patent?

    101 Integration Expert: Because like most of the people on the planet I live in the real world. You are invited to join us .

    Right. Just to be clear, the patent claim has to be granted or you won’t discuss it?

  34. Not the way I remember. I can remember getting into some serious disagreements with IANAE, MD, and LB over the years, although I’ve never lost respect for any of them.

    Forgot Nedler.

  35. You comment to make objections when others make even more objectionable posts (and yet you remain silent to those posters).

    Hmm. Not the way I remember. I can remember getting into some serious disagreements with IANAE, MD, and LB over the years, although I’ve never lost respect for any of them. They seem honest enough. Thet might have “agendas” but they always seem to present compelling arguments for them.

    I even remember agreeing with you once or twice over that same period of time, anon. And yet somehow since the sockpuppet days ended you’ve managed to garner a few other … skeptics, shall I say? I can’t say I’m surprised in the least. I can say that I’m surprised if anyone else was surprised. 😉

  36. Yeah, Dad was a “chess master” all the way. Trying to outthink him in an interference proceeding was an exercise in futility; Dad knew it all, and even Judge Rich couldn’t trip him up.

    What’s particularly sad is Dad has only one published article, in the JPTOS on the Hass-Henze doctrine, which holds that a compound in the prior art that is close enough to the claimed compound such that it would motivate a person skilled in the art to make the claimed compound (e.g., a homologue), then the claimed compound is assumed to be obvious unless evidence is provided which shows that the claimed compound possessed unexpected properties. Dad could have written volumes on what he knew, especially about interference practice.

  37. At least Dad “practiced what he preached” Malcolm which is fight hard (or even harder) for the “little guy,” and if you bothered to read the article I gave the link for, you would know why (101 IE now knows why).

  38. Thanks for the very kind words, 101 IE. I’ll always “honor” Dad, he was “one of kind” and I was truly blessed to be his son. As my article points out, Dad obtained several thousand patents for his clients (I’m not making that up), and was involved, he figured, in about 400 patent interferences (he also testified many times in litigation as an expert interference procedure). Whenever I or my patent attorney brother had an interference quesition, we went to Dad (the “fountain of knowledge”). I’ll truly miss him but his DNA (especially that related to chemistry and patent law) still resides in me.

  39. Ned,

    Ergo – your logic is still faulty.

    Try this: (as I have said many many many many times): As a category, BMs just like any other category of methods are eligible.

    YOU MUST STILL EVALUATE THE INDIVIDUAL CLAIMS.

    This is ALSO true for any other category of methods.

  40. their nonsensical thesis that all business method claims are inherently eligible.

    IANAE – this is a blatant lie. Do not mistate my position.

    I have fully explained and have never deviated from my position on how to approach the category of business methods (you approach them EXACTLY like you apporach any other patent eligible category).

  41. Bilski; that business methods were invoked; and that we’re held to be ineligible.

    Meet:

    Prometheus; that medical methods were invoked; and that we’re [sic] held to be ineligible.

    SO WHAT.

    The point, Ned, is that this logic of yours is a fallacy.

    This is not a new point. You did stop using this point when I put your nose in your own crrp with your own reference on the difference between holding and dicta. Why are you trying to resurrect an argument that never worked in the first place?

  42. MM: Does your analysis differ depending on whether the claim is from a “real patent” or not?

    101 Integration Expert: Yes.

    MM: Why does your analysis of a claim require that the claim be from a “real” patent?

    101 Integration Expert: Because like most of the people on the planet I live in the real world. You are invited to join us .

  43. Hell EG:

    This time the link worked. I truly enjoyed the article. Yes your dad was a great man. I particularly enjoyed the examples of your dads strategic thinking. He seemed to always be three or four steps ahead of his adversaries. And yes he would have wiped the floor with the likes of MM. But somehow I do not even think MM would have been worthy. Thank you for sharing.

    link to ipwatchdog.com

  44. The link has moved. None the less you have my condolences.

    Your father seems like a truly great man.

    Honor him in all you do.

  45. Why do you content the Bilski claims are not business method claims?

    Same reason AI does. Because it’s such a blatant (and Supreme Court-endorsed) counterexample to their nonsensical thesis that all business method claims are inherently eligible.

  46. You say that as if that is an answer – it is not. One does not implicate the entire category – else, that same logic infects all medical methods.

    Ned – your lack of intellectual honesty on this simple point is astounding.

  47. No. I meant what I said – regardless of my complying with Prof. Crouch’s request (which is much more than I can say that MM, Ned, or even yourslef have done).

    But thanks for drawing attention to those who have NOT complied with the good professor’s call for a better blog (still no smart in your smart @_$$ attempts).

  48. You, on the other hand, comment in what must be greater than 90% to a single name.

    Since you stopped posting under all the other names, you mean?

  49. What exactly Ned do you think I am ignoring, refusing to accept or denying?

    Then we can discuss motives and your refusal to actually engage adult conversations when those conversations take a turn against your third party interests.

    (have you reached 273 yet in your “1” counting?)

  50. so you can drop the Leopold-style obsession

    Right. The one who has posted over 300 comments in the first 10 days of the year (and likely over 9,000 last year) is calling other people “obsessed.”

  51. Ned,

    Do you realize the difference between “the” claims and the false projection you (habitually) do to “all” claims?

    Do you realize how many times I have attempted to correct this fallacy of yours? This attempt to falsely conflate a single example with an entire category? Do you not remember my attempts to explain to you the difference between “of a category” and “categorically?”

    Do you realize that your answering imperative of “Define medical methods” is likewise a fallacy?

    Q: Why is it that you refuse to engage my question to you based on your existing use of “logic” from the Bilksi case?

    A: Because you are not intellectually honest enough to see that if you were to do so, you would be forced to see the fallacy that you are (again) trying to foist in pursuit of your third party advocacy.

    It is plain and clear error for you to attempt to paint an entire category with the example of a single application. Yet, you persist. Please stop. I wish you would realize how badly this affects your credibility (and it really does not matter if it is I that points this out to you or not – so you can drop the Leopold-style obsession – such is but a smokescreen, and that dog don’t hunt).

  52. MM does have his usefulness. Unfortunately, such is by way of negative example.

    The amount of self-delusion that he carries with himself is impressive, as he continues to post as if he is anything other than a vacuous and foul-mouthed hyper-inflated egotistical windbag.

    btw, MM, still waiting for actual answers from you. You do remember what actual answers look like, right?

  53. As anon would say, “same old, same old,” Malcolm. All I can tell you is that you’re lucky your dealing with me. My former patent attorney Dad (a true legal titan and the Atticus Finch of patent prosecutors in terms of how he fought for the “little guys” who just passed away) would have verbally “scorched” you from head to toe for what you just said, and that’s no exaggeration. If you don’t believe me, go check out the article I posted on Dad’s professional career on IPWatchdog (link to ipwatchdog.com). Dad was well-respected by the patent bar for his legal prowess (especially in interferences) and that’s no exaggeration either. (Thanks too Malcolm for giving me the opportunity to let others know about my Dad’s professional career.)

  54. You’re not allowed to be ridiculous in doing and continue to have any credibility

    Ned – heed your own advice.

    Or not (your credibility is already lost anyway).

  55. “All my repeated citations to you”

    What citations?

    You have provided “ZERO” citations of the Supreme Court limiting process to the type in Diehr or tying processes to the other three enumerated categories of statutory subject matter.

    You have been bloodied up in this debate something awful and now it’s time for you to move on before you get totally Pacquiaoed.

  56. Ned: “You are welcome to try to define “business methods.”

    What for? The Court has already spoken on that issue. Business methods are methods, like any other method or process. No need to define them any further.

    Furthermore you are the one being ridiculous in ignoring the the Supreme Court’s holding in Bilski and lost your credibility in that regards long ago.

  57. “Given Bilski, if the patent office continues to issue claims that would fail the Supreme Court tests of Bilsky, the patent office is not following the Supreme Court. This As a cause for alarm. Not joy.”

    Ned, there is no Supreme Court Bilski test. The Court struck the MoT down as “the” test, remember?

    Diehrs “Integration Analysis” is controlling precedent and the case most on point for what “is” patent eligible subject matter.

    As long as the claims being issued pass “Integration Analysis” they are statutory subject matter.

  58. All my repeated citations to you without any appreciable effect indicates that it is a waste of time To record the words of Supreme Court verbatim,

    Sent from iPhone

  59. Given Bilski, if the patent office continues to issue claims that would fail the Supreme Court tests of Bilsky, the patent office is not following the Supreme Court.  This As a cause for alarm. Not joy.

    Sent from iPhone

  60. Please let me know, in your own words, exactly what sort of information would appear in the specification or drawings that would turn a process that merely assigns a value to an event or object, using math, from an ineligible method into an eligible method?

    Repeated for your convenience, 101E. I mean, you brought it up. You said that the specification or drawings would make a difference. I’m asking you to provide specifics. What’s the matter? When you made your statement, you must have been thinking of something. What were you thinking? Or maybe you were you just b.s.ing everybody as usual. Maybe anon would like to help you out here. Or EG. You know. Your buddies from that special planet where “everything under the sun” is shrinking but none of you can figure out why.

  61. MM self defeats:

    LOL. You’re not up to that task, MM. You’re the blog’s resident clown. Just entertain us, please. For once.

    With only minor edits, it is apparent that yet again MM accuses others of that which he does.

    WTG, QQ.

    btw – still waiting for actual answers from you. You do remember what actual answers are, right?

  62. But they trade in the same shtick. In their bizarro universe, Bilski and Prometheus were somehow the greatest decisions ever, in spite of their endless begging prior to the decision that we all needed to understand why those claims just had to be eligible.

    LOL – my endless beggin prior to Prometheus…?

    And you say I live in a fantasy world?

    Sad” is right – but not (yet again) in the way that you think.

  63. MD Who do you think you are, the self-appointed world’s expert on this issue?

    He’s the world’s expert on copying and pasting text and telling you to read it because “that’s all you need to know” and then accusing you of “running away” from his self-answering questions. Beyond that thin surface of slime lies only a very shallow and cloudy pool.

    I do recall that anon disagreed with him once, making it somewhat unlikely that he’s anon’s sockpuppet. But they trade in the same shtick. In their bizarro universe, Bilski and Prometheus were somehow the greatest decisions ever, in spite of their endless begging prior to the decision that we all needed to understand why those claims just had to be eligible. We can only imagine what makes them so nutty. My guess is that their sun is shrinking and so, too, everything under it. Sad.

  64. Pick any real claim from a real patent

    Does your analysis differ depending on whether the claim is from a “real patent” or not? The claim from Prometheus was from a real case and you thought it was eligible. You were wrong. What changed? Why does your analysis of a claim require that the claim be from a “real” patent?

    It seems your only skill (stretching the term there) lies in copying and pasting text from court cases and telling everyone “that is all you need to know.”

    let’s cut the games right now.

    LOL. You’re not up to that task, 101E. You’re the blog’s resident copy/paste clown. Just entertain us, please. For once.

  65. You insane hatred of Judge Rich and agenda to dispose of business methods and most software patents makes that impossible for you to do.

    Don’t forget the fact that Ned’s shilling for third party benefactors preempts any adult conversation, as he is unwilling to go where the conversation leads.

  66. Bilski was a business method to the extent that term is understood.

    On the contrary Ned, the court ruled differently in Bilski (Remember, Stevens lost).

  67. Phhffft.

    Another arrow into the ground at the feet of Leopold.

    Leopold, I advise you to seek counseling with your obsession. It’s OK that I consistently get the better of you – let it go.

  68. So the answer is evidently “no”,

    I gave no such answer. Although my invitation remains open to apply “integration analysis” to real claimsfrom any patent or patent case.

  69. ” may I suggest you drop the abstract concepts and hypotheticals and provide or cite some actual claims to analyze?”

    MM: I did that already.

    No, you have not. I have been inviting you do so ever since Prometheus issued.

    I suggested Ultramercial’s claims since the Supreme Court GVRed the case to the CAFC in view of Prometheus, but you, along with Ned, and 6, ducked and dodged the challenge.

    I then offered to let you pick the claims and use the USPTO Official Guidance on Integration as a basis for the analysis and discussion but again, you ran away.

    So let’s cut the games right now. Pick any real claim from a real patent or patent case and I will gladly perform “Integration Analysis” and discuss the results with you.

    ::Sound of Crickets Chirping::

  70. “I have given the quote to you numbers of times.”

    Sure you did. The same way 6, discussed and performed “Integration Analysis” on this board for the last 6 years. Only no one could find a single post.

    At this point you probably do not even know what quote I am asking you for.

  71. may I suggest you drop the abstract concepts and hypotheticals and provide or cite some actual claims to analyze?

    I did that already. You pulled one of your trollbro’s favorite tricks and referred me to some previous regurgitation/stageflooding without any attempt to analyze the specific claim I provided.

    Nice try. You try to pretend you’re an expert but anyone can copy and paste form paragraphs. What you keep forgetting is that (1) you’re consistently on the losing side of every Supreme Court case and (2) as soon as you are pressed to explain the regurgitated material you recycle here, your profound lack of understanding becomes crystal clear.

    In the past I’d ask you to try harder. I gave up hope of that. Just keep trolling. Without you, anon would be the dullest pencil in the coffee mug.

  72. “Bilski was a business method to the extent that term is understood.”

    The Court understood the term to mean… a regular way or manner of doing anything; hence, a set form of procedure adopted in investigation or instruction”).

    Which of course covers all methods and process claims, so what’s your point again?

  73. “anon, would you like to endorse IE’s definition of business methods, which apparently includes any methods that might be infringed by a business?”

    Would you like to not put words in my mouth?

    A business method for patent law purposes is simply defined as a process or method. As the Supreme Court told you in Bilski.. See, e.g., Webster’s New International Dictionary 1548 (2d ed. 1954) (defining “method” as “[a]n orderly procedure or process … regular way or manner of doing anything; hence, a set form of procedure adopted in investigation or instruction”).

    The claims at issue in Research Corp V Microsoft meet this definition and thus are business methods. Which makes you and Ned wrong as usual.

    And just to pour some salt on your intellectual wounds Bilski also said…

    “The Court is unaware of any argument that the “‘ordinary, contemporary, common meaning,’” Diehr, supra, at 182, of “method” excludes business methods.) Bilski v Kappos 2010

  74. Bilski was a math equation.

    Now you’re dissecting. Bilski was a method of shuffling around actual securities and obligations, which is pretty obviously a way of doing business for profit. And it was abstract.

    “( “Claim 4 puts the concept articulated in claim 1 into a simple mathematical formula.”) BILSKI v. KAPPOS, 2, 2010,

    You are wrong and the Supreme Court is right.

    “How about we let you know the next time a concrete business infringes ineligibly abstract claims? That’s what happened in Prometheus.”

    Oh so now you are arguing Prometheus was a business method. Well, with that logic, every process at its core, indeed every patent is a business method. Hmm..now where have we heard that before??

    “But if you’re looking for “abstract business”, look no further than financial services. Pretty much nothing they do could be claimed in a patent in compliance with section 101. See, e.g., Bilski.”

    I saw Bilski, and no where in the case did the Supreme Court ever rule that ” financial services” was a Court created judicial exception of an abstract idea. But I did find this:

    ” (Section 101 similarly precludes the broad contention that the term “process” categorically excludes business methods. The term “method,” which is within §100(b)’s definition of “process,” at least as a textual matter and before consulting other limitations in the Patent Act and this Court’s precedents, may include at least some methods of doing business. See, e.g., Webster’s New International Dictionary 1548 (2d ed. 1954) (defining “method” as “[a]n orderly procedure or process … regular way or manner of doing anything; hence, a set form of procedure adopted in investigation or instruction”). The Court is unaware of any argument that the “‘ordinary, contemporary, common meaning,’” Diehr, supra, at 182, of “method” excludes business methods.) Bilski v Kappos 2010

  75. Ned: “Why doesn’t the PTO Count?

    If the PTO refused to grant business method patents, or the PTAB ruled that business methods were not patent eligible you would believe the PTO counted alright.

    Fact is the PTO is granting plenty of business methods.

    These patents have a strong presumption of validity.

    And there is not a thing you can do about.

    Rich wins.

    Ned loses.

  76. Is Microsoft not a business?

    Oh, now that is priceless.

    anon, would you like to endorse IE’s definition of business methods, which apparently includes any methods that might be infringed by a business?

  77. RESEARCH CORPORATION TECHNOLOGIES, INC.,
    v. MICROSOFT CORPORATION,

    “That case involved displays. Hardly a business method.”

    Really?

    Why? Are there no displays involved in conducting business?

    Is Microsoft not a business?

    What was the patent at issue in the case for if not business?

    Perhaps you think the claims were poetry, or an exercise in interpreting impressionist painting.

    Fact is the only thing abstract is your notion of business methods being abstract.

  78. From the number one user of Kleenex on the site, that IS funny.

    But (again), not in the way that MM intends. Again, that is not laughter with you, MM.

  79. MM: Wrote:”Is a process that merely assigns a value to an event or object an example of a process that sufficiently “integrates” the math relied on to calculate said value?”

    101 Integration Expert: Well, now that will depend on what additional the specification, and drawings disclose so that we can view the invention as it would be viewed by a person of ordinary skill in the art.

    So the answer is evidently “no”, unless there is something in the specification or drawings that would rescue the claim. Please let me know, in your own words, exactly what sort of information would appear in the specification or drawings that would turn a process that merely assigns a value to an event or object, using math, from an ineligible method into an eligible method?

    Thanks. I’m quite certain your ability to have anything remotely resembling a “substantive” discussion is going to dissolve pretty quickly now. But go ahead and suprise me.

  80. AI to Ned: “Let me know the next time you conduct “abstract” business.”

    AI to Ned: “abstractly, totally within your mind. You know, the way you conduct business.”

    Two posts, one minute apart. Come on, AI, now you’re not even trying.

  81. Is there a “point” to your “use” of “quotation marks”, EG? They seem somewhat “arbitrary”, not that your “argument” “is” “particuarly” persuasive” anyway.

    Also, you forgot to insult Breyer.

    I forgot to add 101 IE that Diamond v. Diehr finally put some “reality” into the patent-eligibility “equation” is stating that the claimed invention must be considered “as a whole” under 35 USC 101 (no “dissecting” allowed).

    How’s that “reality” holding up for you, EG? LOL. 9-0. Never going to be overturned. Have you figured out why yet or are you still busy pulling kleenex out of the box?

  82. Bilski was a math equation.

    Now you’re dissecting. Bilski was a method of shuffling around actual securities and obligations, which is pretty obviously a way of doing business for profit. And it was abstract.

    Let me know the next time you conduct “abstract” business.

    How about we let you know the next time a concrete business infringes ineligibly abstract claims? That’s what happened in Prometheus.

    But if you’re looking for “abstract business”, look no further than financial services. Pretty much nothing they do could be claimed in a patent in compliance with section 101. See, e.g., Bilski.

  83. Ned, I see your problem now. You do not know the difference between a “a field of use limitation ” and an “inventive application”. Even though the Court has defined both thru its line of 101 cases. However in order to understand the contemporary meaning and application of both legal concepts you have to view Flook and Benson thru the lens of Diehr. You insane hatred of Judge Rich and agenda to dispose of business methods and most software patents makes that impossible for you to do.

  84. What are you talking about?

    I just presented three business methods out of the 20 or so issued so far this year and cited the Research Corp case for a business method upheld by the court and you just ignore it all?

    What kind of rational thinking, honest person does such a thing?!?!?

  85. “Asked and answered.”

    What?
    I see no exact quote.

    Ohhhh.. wait maybe you answered abstractly, totally within your mind. You know, the way you conduct business.

  86. “No such thing as an abstract business method? Bilski.”

    Bilski was a math equation.

    Let me know the next time you conduct “abstract” business.

  87. Scalia almost joined with the dissent.

    Pure conjecture. Do you really think Scalia would have fomented open rebellion against Congress and the dismissal of the atual law as written by Congress?

    Think before you answer.

    And as to business method patents, there has been a long history of such (even if Stevens would ignore them in his rants – see link to patentlyo.com ).

  88. LOL

    Let me know when your “1’s” add up to 273 and then I will have a little chat with you about how Stevens lost his majority position in Bilski with his attempt to override the actions of Congress in his judicial activism.

  89. “I forgot to add 101 IE that Diamond v. Diehr finally put some “reality” into the patent-eligibility “equation” is stating that the claimed invention must be considered “as a whole” under 35 USC 101 (no “dissecting” allowed).”

    Hello EG:

    This point can never be made enough. Th grand bargain for not outright overturning the awful Flook and Benson was to cabin it with Diehr’s claims as a whole no dissection allowed mandate. It is the essence of “integration” and the primary reason why the anti patent crowd can’t gain any traction for banning business methods or software.

  90. Sorry if you feelings are wounded. I know you are a novice when it comes to US Patent Law, living in the UK and all and following the EPO rules so here is a primer on how the law works in the good ole USA .

    Our Constitution grants Congress the power to write patent law, not Ned Heller. And here is what Congress wrote for the definition of a process.

    35 U.S.C. (§100(b): The term ‘process’ means process, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.)

    The Supreme Court is granted the power to interpret those laws and here is how they interpret the definition of a process.

    (100(b) already explicitly defines “process,” see Burgess v. United States, 553 U. S. 124, 130, and nothing about the section’s inclusion of those other categories suggests that a “process” must be tied to one of them. ) Bilski V Kappos.

    So not only are you wrong but you are a foool if you simply believe Ned’s opinion that the category of process is limited the industrial age, or tied to the other categories in any way.

    Please let me know if you have any questions.

    I am here to help.

  91. Shall we wait for Medical Methods since Prometheus, Ned?

    Can you show me just one?

    Do you realize just how inane you are coming across?

    Even in the first instance, your games of “show me” are trite and boring (since overall, far less than 2% of patents even are litigated in the first place, you are basically asking for the tail of flea to wag an entire dog as some type of “proof” for you, proof, which – by your example of behavior on general discussion – you would simply ignore anyway as it would not fit into your agenda).

  92. “..the court did say what I said.”

    Then provide an exact quote and prove it!

    ::Usual Silence::

  93. ” It is clear that you believe that “math” + “abstract business method” is eligible.”

    Hello Ned:

    Don’t be silly. There is really no such thing as an “abstract” business method.

    But math integrated into a business method as a whole is statutory subject matter. The PTO issues them apparently on a regular basis. See my previous post at Jan 08, 2013 at 02:50 PM

    When it comes to business methods you have lost your so called GD War. Same goes for software. You just don’t know it yet.

  94. “Anon, PTO does not count. Court. District court, not overturned, counts.”

    Court approved? Sure, see …

    RESEARCH CORPORATION TECHNOLOGIES, INC.,
    v. MICROSOFT CORPORATION,

    /media/docs/2010/12/10-1037.pdf

    Business methods are manifestly evident baby.

    Any more challenges?

  95. Hello Ned:

    I did a quick search and apparently the PTO is issuing a ton of business methods on a regular basis. Here are a few methods that can be performed with or without machines, and by human beings. From the looks of things pure business methods are here to stay.

    Business models for immersive environments 8,346,61 January 1, 2013

    Business activity monitoring anomaly detection 8,326,680

    Business to business dynamic pricing system 8,332,258 December 11, 2012

  96. Lots of them have been “held” to be eligible since Bilski – take a look at the published patents since then. – (/off playing with “held”)

    And yet again Ned, you are disingenuously conflating the singular example of Bilski with the category of Business Method Patents. Shall we ride the merry-go-round and ask you to give us just one example of an eligible medical method. Just one? Held to be eligible since Prometheus?

    Do I need to remind you (yet again) that you provided the source discussing the difference between “holding’ and “dicta” that resulted in your capitulation of what Bilski held? Don’t you remember that self-defeat? I do.

    Your games are old and stale. Please stop.

  97. It is clear that you believe that “math” + “abstract business method” is eligible

    LOL, Ned, how do you feel about the elgibility of just “math” + “business method” (otherwise known as applied math and a Congressionally sanctioned patent eligible category)?

    It is equally clear that you falsely believe that ALL Business Methods must be abstract.

    Hence your repeated dissembling of categorically treating them as de facto outside of 101. Such is the way of Stevens and such is clearly not in accord with the law.

    Stop your dissembling Ned. We know why you do it and the combination not only makes your arguments obvious, the combination makes them distasteful.

  98. As usual, you are deliberately misconstruing what I said.
    Regarding Diehr, the court did say what I said. The underlying process passed he MOT. Prometheus did say that the fact that conventional elements passed the M0T was not sufficient.

  99. What bothers me is that the way you discuss real cases. It is clear that you believe that "math" + "abstract business method" is eligible. This is like adding 0 to 0 and getting "1."

  100. MM: Wrote:”Is a process that merely assigns a value to an event or object an example of a process that sufficiently “integrates” the math relied on to calculate said value?”

    101 Integration Expert: Well, now that will depend on what additional the specification, and drawings disclose so that we can view the invention as it would be viewed by a person of ordinary skill in the art.

    As the Court in Diehr explained: “Parker v. Flook, supra, presented a similar situation. The claims were drawn to a method for computing an “alarm limit.” An “alarm limit” is simply a number, and the Court concluded that the application sought to protect a formula for computing this number. Using this formula, the updated alarm limit could be calculated if several other variables were known. The application, however, did not purport to explain how these other variables were to be determined, nor did it purport “to contain any disclosure relating to the chemical processes at work, the monitoring of process variables, or the means of setting off an alarm or adjusting an alarm system. All that it provides is a formula for computing an updated alarm limit.”

    BTW, if you are serious about a substantive discussion on “Integration Analysis” may I suggest you drop the abstract concepts and hypotheticals and provide or cite some actual claims to analyze?

    Let me know if you have actual claims.

    I am here to help.

  101. Ned: “As a further reply, they noted the Diehr process passed the mot and was s traditional process.”

    Who are “they” ? Surely “they” are not the majority in Diehr because no where within the four corners of the Diehr case does the majority ever describe, declare, or characterize the Diehr invention as a “traditional” process. There are processes and judicial exceptions. Processes, traditional or otherwise, are patent eligible subject matter. Judicial exceptions are not.

    Ned: “What we learned from Prometheus was that passing the mot was not sufficient. Integration into such a process is. Diehr.”

    This statement is a lie. Subtle yes, but a lie no less. The Prometheus Court never held that a LoN, or any judicial exception needs to be “integrated” in a process that is of the historical type of the 1877 case of Cochrane v. Deener in order to pass 101. Which just so happened to be the type of process that was at issue in Diehr. The fact is neither Prometheus, Diehr or any Supreme Court case has ever limited patent eligible processes to the type from the industrial age.

    What we learned from the Prometheus Court, 9-0, is simply that a judicial exception, integrated into a process as a whole transforms the process into an inventive application of the judicial exception.

  102. “How many times do I have to repeat this? The Ineligible subject matter must be integrated into a process that itself passes 101.”

    You can repeat it until you turn blue in the face or until 6 passes the LSAT, it still will not be the law.

    The correct way to write what you said is as follows:

    The judicial exception must be integrated into a process as a whole to pass 101.

    I already explained the legal reasoning in depth to Max Drei at Jan 06, 2013 at 12:47 AM.

    Please go read it before making this statement again.

  103. I think Lizardtech may be the closest case on point for this issue. Iirc, in that case, the claim covered all ways of achieving a novel result, and the specification disclosed all ways of achieving that result that were known at the time the application was filed. Iirc, the claim was held invalid under 112 because the alleged infringing device achieved that result in a different way that was nit a functional equivalent of the ways disclosed in the specification. If we are to apply this case law to your analysis, I think we need to ask whether the accused device used the same functions as disclosed in the specification, or equivalents thereof. If not, then it may also stand to reason that the logic for selecting such non-equivalent functions would also be different than that disclosed in the specification. If so, then invalidating the claim under 112 would seem to be inappropriate, as there is no evidence that the specification fails to disclose all of the signal dependent functions.

  104. as I recall, it was fairly earned.

    Except it wasn’t.

    phffft – another arrow into the ground at Leopold’s feet.

    And I am sure that MaxDrei earns his slurs – here being in “Ned’s camp” on an issue that Ned refuses to fully discuss (for obvious – and admitted – third party interest reasons).

    Don’t you get tired of being wrong all the time Leopold?

  105. Where do you find the gall

    I pick up after you.

    You have some gall lecturing others on the law when you obfuscate it on purpose – and then take umbrage and get all “high and mighty” about it.

  106. the same person only too willing to throw slurs at others (plonker anyone?).

    That was a

      non

    -gratuitous slur; as I recall, it was fairly earned.

    What a plonker.

  107. I did not like the gratuitous slur “of all people”. There is no need for it. It is not appreciated and not funny

    LOL – what is funny is to hear you complain, the same person only too willing to throw slurs at others (plonker anyone?).

    What a hypocrite.

  108. I would love to talk law.

    You have proven yourself unwilling. Time and again I bring you to the brink of understanding and then watch you retreat or obfuscate.

    Then we found out why. Motives cannot be dismissed because motives is the reason why you refuse to fully join a conversation, the reason why you refuse to acknowledge actual facts and holdings of law, the reason you do not complete my discussion on the three steps of software patentabililty and the reason you try so hard to hide the fact that you post in a crusade for third party interests.

    You have no desire to have an open and intellectually honest conversation, as you know where the conversation will go and what the result would be.

    In the meantime, please stop peddling the obvious canards.

  109. I forgot to add 101 IE that Diamond v. Diehr finally put some “reality” into the patent-eligibility “equation” is stating that the claimed invention must be considered “as a whole” under 35 USC 101 (no “dissecting” allowed).

  110. How very true 101 IE because the “reality” doesn’t support the “narrative.” Benson and Flook are “travesties,” written by the most anti-patent of Justices (Douglas and Stevens). Read Stevens concurring opinion in Bilski which says 35 USC 273 is a “red herring” that can be ignored, and you get a real sense of how disingenuous SCOTUS generally can be when it comes to patent law.

  111. As a further reply, they noted the Diehr process passed the mot and was s traditional process.

    What we learned from Prometheus was that passing the mot was not sufficient.  Integration into such a process is.  Diehr.

    Sent from iPhone

  112. Sorry 101, hard though it is to discern everybody’s position here, I think I’m in Ned’s camp here, so that your statement:

    “Even Max Drei, of all people seems to get it.”

    is self-delusional, and wrong.

    Go back and read my posting again. I think you will find in it nothing that confirms I am in your camp on this one.

    BTW, I did not like the gratuitous slur “of all people”. There is no need for it. It is not appreciated and not funny. Who do you think you are, the self-appointed world’s expert on this issue?

  113. Ned,

    “which itself” calls for a dissection of the claim. There is only one claim to be evaluated, not a portion of the actual claim “itself” and other portions of the claim otherwise.

    One claim to be evaluated.

    101 Integration Expert and Prof. Crouch,

    101 – you are correct. As I have mentioned, it is impossible to have a rational conversation with someone who has acknowledged having his posts begin made for a third party benefit. There simply is no desire to actually discuss real law from such – only a desire to peddle a viewpoint that is not in accord with law. Not only is such virtually a “paid advertisement,” it is a paid dissembling of what the law actually is. There is no interest in discussion and quite the contrary, the interest is in conflating and confusing the actual law that runs counter to the desired propaganda.

    Want a better blog? Really? Start with enforcing the rules you have.

  114. Ned,

    Quite simply my beef is with your predilection for misconstruing the law regarding 101 and MOT.

    MOT is neither sufficient, nor necessary. ANY post of yours that intimates otherwise is not in accord with law and should be properly presented as your opinion and desired change to the current law.

    Why is this so difficult for you? Approached in this manner, your crusade can continue and you can achieve a modicum of intellectual honesty.

  115. “What is your beef?”

    That you imply that in order for a process to be patent eligible it is required to be tied to a machine which implements the process steps, or transforming materials from one state into a different state, such as smelting ore into iron. A.K.A. the MoT. This not a requirement for a process under U.S.C. 35 101. That Diehrs claimed process happened to be of that type did not prevent it from being patent eligible, nor was it the reason it was found to be patent eligible. PERIOD. Diehrs claims were patent eligible because the claims as a whole were “integrated”, not just the math equation.

  116. Ned, a process is a process and stands alone as a category of statutory subject matter. There are only 3 very narrow and limited exceptions which I always include. I skip nothing. Diehr claims were statutory subject matter because they were “integrated”. The MoT was not the reason.The Supreme Court is explicitly clear on this in Prometheus.

    Dennis Crouch acknowledged it.

    Even Max Drei, of all people seems to get it.

    Why can’t you?

    I dont know what to make of you Ned. You simply deny or ignore existing case law right in front of the entire patent community. It would be one thing to say you don’t agree with the law, or think it should be changed, but to just flat out misstate it? Makes having a rational conversation with you about the law all but impossible.

  117. “No dissection.

    Take the claim as a whole – if the the elements of the claim are integrated, you DO NOT (and cannot) use dissection to eviscerate patent law.”

    Well, said anon.

    Ned does not acknowledge the Supreme Court’s use of “integration”.

    Just like he does not ever address claims as a whole, or the fact the MoT as the exclusive test to reject claims, was overruled by the Supreme Court in Bilski.

    It never ceases to amaze me how he will regress back to these defeated positions over, and over again.

  118. The math must be “integrated” into a process that it is not in effect a claim on the math itself.

    Is a process that merely assigns a value to an event or object an example of a process that sufficiently “integrates” the math relied on to calculate said value?

  119. You do realize the circular argument you want to push in violation of the Diehr “as a whole” commandment, right?

    The process “that itself” passes 101 must be the entire process claimed, as a whole. It appears that you want to engage in dissection and removal of part of that process, set that part aside and look at the rest of the process as if the rest of the process is first determined patent eligible or not under 101.

    No dissection.

    Take the claim as a whole – if the the elements of the claim are integrated, you DO NOT (and cannot) use dissection to eviscerate patent law.

  120. Also, as you have been told, the fourth statutory category is “process,” not “process-tied-to-producing-one-of-the-other-statutory-categories.”

    You keep on trying to denigrate one of the statutory categories and seek to make that category a subset category, lesser than the other categories. Such is notnot inconsistent with [the Patent Act’s] text.” See Bilski, Slip Op. No. 08–964 at 16.

  121. he end use was a process that passed the MOT

    Still at he disingenuous plugging, aren’t we Ned? MOT is neither necessary, nor sufficient, and yet, here, again you post as if it were otherwise.

    Please stop.

  122. 101, "integrated in to a process" that itself passes 101.  You seem to skip this part.
     
    In Flook, the underlyinging process was too abstract.  Why?  In Diehr it was not.  Why?
     
    In the former, the end use was a field of use.  In the latter, the end use was a process that passed the MOT, a "traditional" process.
     

     

  123. MaxDrei said: “To “integrate” in a process that’s patent-eligible, you need to add a downstream step to the claimed process, don’t you?”

    Interesting question Max. Sorry I missed it earlier. First things first, in US patent law, a process by itself is patent eligible, with just limited exceptions. If the invention at issue is claimed to be a “process,” §100(b) defines a process as a “process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.”

    Also see Bilksi V. Kappos stating: “§100(b) already explicitly defines “process,” see Burgess v. United States, 553 U. S. 124, 130, and nothing about the section’s inclusion of those other categories suggests that a “process” must be tied to one of them.”

    Now as for as the exceptions go, the Supreme Court has explained that only “laws of nature ( LoN), physical phenomena, and abstract ideas” fall outside the scope of § 101, and are reserved to the public domain. ( CLS BANK V. Alice Corp).

    So unless a bare math equation, which falls under abstract idea, is integrated into another math equation, e.g an addition problem into an algebra equation, or bare math is integrated into a bare chemistry formulae, which can fall under LoN/physical phenomena, there really can’t be such a thing as “integrate” in a process that’s patent-ineligible, as your question seems to suggest. For example, in practice you can’t ( legally) declare a bare math equation “integrated” into a so called business method or software running on a computer, as integrating an ineligible process into another ineligible process, because software running on a computer, and business methods are not Court created Judicial Exceptions ( derived implicitly from the Congressional Statute of 101), like math and chemistry equations are.

    Now, with that being said, if the process claim is one of the above bare Court created Judicial Exceptions (JE) (derived implicitly from the Congressional Statute of 101), or at least begins with one, then the answer to your question is yes. There needs to be at least one additional step, that will integrate the JE into the process as a whole, so that the claim does not amount to a claim to the JE itself. Please see the USPTO Guidance on Integration, in view of the Supreme Court’s Prometheus ruling stating: “It is not necessary that every recited element or step integrate or relate to the natural principle as long as it is applied in some practical manner. However, there must be at least one additional element or step that applies, relies on or uses the natural principle so that the claim amounts to significantly more than the natural principle itself. Elements or steps that do not integrate the natural principle and are merely appended to it would not be sufficient. In other words, the additional elements or steps must not simply amount to insignificant extra-solution activity that imposes no meaningful limit on the performance of the claimed invention. See id. at 1966” ( link to uspto.gov )

    Also see my post at Dec 30, 2012 at 06:36 PM, and let me know if you have further questions. I am here to help.

  124. anon “Benson” was an ideological travesty, and it, like Flook was cabined by Diehr.”

    Agreed but the anti patent crowd refuses to accept this reality.

  125. 6: “Idk about that, Benson used the ineligible subject matter for something, converting numbers.”

    The ineligible subject matter in Benson was math. Doing math (converting numbers) does not make math eligible. The math must be “integrated” into a process that it is not in effect a claim on the math itself. This applies to all Judicial Exceptions.

  126. Oh, and one last point Ned. Please stop implying questions like is the end-use specific enough? Such notions are no longer relevant after Diehr and Prometheus use of “integration”. If the JE is “integrated” it’s enough.

  127. INANE Said: “The facts matter.”

    The fact is Flook was cabined by Diehr and that fact was reaffirmed by the Supreme Court in Bilski. And the Prometheus Court reconciled the entire line of 101 cases since Benson, with Diehr’s use of “integration”. But of course you are still bitterly clinging to the idea the MoT is still the exclusive test. So perhaps it is best you stick with Calvin Ball.

  128. Ned: “Clearly, A field of use limitation is not enough. Yet the math was applied to a measured signal. This Signals that the end-use was not specific enough.”

    Okay Ned, one last time ( I hope). It is true that a , “prohibition against patenting abstract ideas ‘cannot be circumvented by attempting to limit the use of the formula to a particular technological environment.’” Bilski, supra, at ___ (slip op., at 14) (quoting Diehr, 450 U. S., at 191– 192).

    Also see Prometheus “[pre]-solution activity” is normally not sufficient to transform an unpatentable law of nature into a patent-eligible application of such a law. Flook, 437 U. S., at 590; see also Bilski, 561 U. S., at ___ (slip op., at 14) (“[T]he prohibition against patenting ab­ stract ideas ‘cannot be circumvented by’ . . . adding ‘insig­ nificant post-solution activity’” (quoting Diehr, supra, at 191–192)).

    However, if the Judicial Exception is “integrated” in the process as a whole, the claims are statutory subject matter. No extra solution activity occurs and field of use limitations do not apply. By “integrated” the Court simply means do the claims as a whole, and as an ordered combination offer something more than the judicial exception itself? Using this ( integration) analysis the Court concluded….

    Diehr’s claims were “integrated”. ( Cured rubber)

    Flooks claims were not integrated ( A calculation )

    Prometheus claims were not integrated. ( A natural correlation )

    See Prometheus “In Diehr, the overall process was patent eligible because of the way the additional steps of the process “integrated” the equation into the process as a whole. 450 U. S., at 187. These additional steps transformed the process into an inventive application of the formula.”

    Let me know if you have any questions. I truly do not know how to make it any more simple than this.

  129. “Both stopped short of actually using the ineligible subject matter for something specific.”

    Idk about that, Benson used the ineligible subject matter for something, converting numbers. So far as I understand the detector in this case, that is precisely what the detector is doing.

  130. The facts do matter, but there is no “desperate searching.”

    Quite the opposite, as the anti-patent crowd either hid for months or tried for months (and some are still trying) to obfuscate those very facts that matter.

    Care for another Calvinball face spike IANAE (while you ply the tired “declare victory no matter what” facade)?

  131. Indeed this is the primary tactic of the anti patent crowd.

    It’s hilarious, as usual, to see the “pro patent crowd” desperately searching for a pro-patent “holding” in a case the applicant/patentee lost so definitively.

    The facts matter.

  132. “knowingly omitted critical developments that run counter to his agenda.”

    Yes, you hit the nail on the Ned!

    They have never even acknowledged Bilski 14, let alone “integration’.

    Indeed this is the primary tactic of the anti patent crowd.

  133. Ned has (purposefully) neglected to account for the cabining of Flook by Diehr as explained in Bilski.

    This is not a surprise given his acknowledged vested interests.

    It is, however, a bit disingenuous for Ned to be lecturing anyone on the meaning of the law when he has knowingly omitted critical developments that run counter to his agenda.

  134. ” The facts Of a case are very important to understanding what the holding actually is. ”

    Yes, and the holding itself is very telling. But lets cut to the chase Ned.

    Rich was right in Flook and Stevens was wrong.

    Which was affirmed in Diehr.

    Then later reconciled in Prometheus.

    Until you view Flook thru the lens of Diehr, as the Court has done you will never understanding the holding of that case as it applies to today’s law of patent eligible subject matter

  135. Clearly, A field of use limitation is not enough.  Yet the math was applied to a measured signal.  This Signals that the end-use was not specific enough.

    The facts Of a case are very important to understanding what the holding actually is.

    Sent from iPhone

  136. 1. Your questions have been asked, answered, and are therefore redundant.

    2. Your argument has already been vitiated by your good friend, and admirer Mr. Ned Heller.

    3. Your entire theory for isolating and ignoring steps of ineligible subject matter to invalidate claims at 101 has been eviscerated by the Supreme Court’s claims as a whole ruling(s) ( See Prometheus on “Integration” for the latest affirming of Diehr. )

  137. Ned Heller Wrote: “Just a note: Flook and Prometheus areindistinguishable.
    
Both stopped short of actually using the ineligible subject matter for something specific. 
(What was disclosed was not relevant because the claim itself was not limited to a specific use.).  Cf, Morse.) ”

    Hello Ned:

    The Court in Flook said, “Very simply, our holding today is that a claim for an improved method of calculation, even when tied to a “specific end use”, is unpatentable subject matter under § 101. [Footnote 18] ( Note the added emphasis on “Specific End Use”.) So on your point of Flook not “using the ineligible subject matter for something specific” you are factually incorrect. And your citation of Morse is irrelevant to your argument at hand.

    Of course as we all know the minority dissenting in the Flook case reasoned that the claims should issue because when evaluated as a whole, the claims did not wholly preempt the mathematical formula. Later that same panel would use the reverse of the Flook Court’s analysis to hold Diehr, a case nearly identical to Flook, patent eligible.

    And as I have explained to you many times the Prometheus Court reconciled the two cases and all the Courts 101 cases since Benson , with “Integration Analysis”. Which from a practical standpoint, especially in regards to prosecution, requires you to proceed as I described at Jan 02, 2013 at 04:13 PM.

    Please let me know if you have any questions.

    I am here to help.

  138. LOL at IANAE thinking this needs to be explained to me.

    Wise up son and understand what’s going on before you attempt to be a smart@_$$.

    Oh that’s right, you enjoy those Calvinball spikes to the face.

  139. But consider what happens if there is an injunction?

    If there’s an injunction, Seagate (and everybody else) will continue buying licensed chips from Marvell. Because business realities are bigger than the patent system.

    Also, I highly doubt Seagate would have helped CMU win the case if it put their own supply chain at risk.

    When you understand all this, try explaining it to anon. Probably a losing battle, but at least it’s something to do.

  140. Not if Marvell pays.

    But consider what happens if there is an injunction?  Seagate may need a license so they can get a second source.

    Seagate should have intervened in support of Marvell instead of working against them.

    Sent from iPhone

  141. Don’t tell me this is yet another instance…

    Your comments are off-point and senseless. You are trying too hard to be too funny and failing miserably. A smart@_$$ without the smart.

    Please try less.

  142. LOL – already jumping to your pro-infringer complusory license assumptions IANAE?

    Don’t tell me this is yet another instance where the facts have a pro-infringer bias? Because this decision is so very pro-infringer, isn’t it?

    “In the initial complaint, CMU also requested attorney fees and a permanent injunction.”

    So?

    Even if CMU gets an injunction, which they won’t, I’ll still wind up being right.

  143. Marvell will be paying CMU for the right to sell?

    LOL – already jumping to your pro-infringer complusory license assumptions IANAE?

    Above in Prof. Crouch’s writeup: “In the initial complaint, CMU also requested attorney fees and a permanent injunction.

  144. They use Marvelle chips in their disk drives.

    You think CMU will sue Seagate for using the same Marvell chips that Marvell will be paying CMU for the right to sell?

  145. “…Pieces of evidence in the trial was an old email from a Seagate engineer noting that the CMU invention went well beyond the current state of the art. (Of course, that email was focused on advances found in the disclosure rather than the broad claims asserted by CMU.) Seagate was apparently happy to provide that document to be used against its market competitor. It is that same Seagate engineer’s prior patent application that served as the core of Marvell unsuccessful invalidity argument.”

    This would also seem to implicate Seagate as a willful infringer.

  146. Any more questions?

    Sure. Are any of the following claims eligible in your opinion? Why or why not?

    1. A method of determining the likelihood that an acoustic signal comprises information about curing rubber, wherein said method comprises: receiving a signal, applying a Viterbi-like algorithm to said signal, wherein said algorithm can be visualized by means of a trellis diagram comprising a plurality of paths wherein at least one path corresponds to an acoustic signal comprising information about curing rubber, and wherein applying the algorithm yields information about the likelihood that said acoustic signal comprises information about curing rubber.

    2. The method of claim 1, wherein a processor is used to apply the algorithm.

    3. The method of claim 2, wherein the processor is called a Viterbi decoder.

  147. Just a note: Flook and Prometheus areindistinguishable.

    Both stopped short of actually using the ineligible subject matter for something specific.

    (What was disclosed was not relevant because the claim itself was not limited to a specific use.).  Cf, Morse.)
     

    Sent from iPhone

  148. Hello Ned:

    Ned: “The problem with Flook was the underlying process itself was abstract. ”

    That was not “the” problem. Yes it is true math equations, (your so called underlying process) are considered abstract when standing alone. But once the math is applied it’s no longer abstract.

    Ned: “The math was applied to a process that said nothing more than measure something, use this algorithm to calculate an alarm limit and then use it. Not being tied to a specific use was the problem.”

    As you perhaps inadvertently confess, the math equation had a specific use, so that was not the problem either.

    The real reason Flook did not get his patent and Diehr, which was essentially the same did, was because Flooks claim and/or specification did not provide any disclosure relating to chemical processes at work or the means of setting off an alarm or adjusting the alarm limit.” Diehr, supra, at 192, n. 14; see also Flook, 437 U. S., at 586.

    This made it quite easy for someone like Stevens to in effect say the claim was to the math equation itself, despite the additional steps for computing an alarm limit. Later the Prometheus Court would say the claim was not “integrated” into the process as a whole, and then use the same analysis to invalidate Prometheus claims as well.

    The take away is this, if you are including a bare Court created judicial exception ( JE) derived implicitly from the Congressional statute of 101, in your claims and indeed you begin the claims by reciting the JE, then you better have a detailed specification, preferably with different embodiments, so that when the claims are read in light of the specification ( as they MUST) it can be demonstrated that the claims are doing more then simply claiming the JE itself.
    Then when you present your arguments for “integration” you have substance from the specification to back you up, as a person of ordinary skill in the art when reading the specification in light of the claims would interpret it.

  149. Anon, good summary of my argument.

    I Think Difference is here is that the claim requires the action to be taken on the machine.  It transforms the machine.

    Sent from iPhone

  150. I will grant you that the claim improves an old machine with improved math. But, the machine is improved.

    The fallacy exposed.

    Nowhere is there any “executes automatically” nonsense.

    Further, this post exposes Ned’s other typical deceptive posting on the subject: the difference between “using” a computer and a computer that has been augmented with software that configures a machine. One cannot “use” a computer with software unless that computer has been changed with the configuration of that software into the computer, thus changing the computer into a new machine. “The machine is improved” is a factual and legal consequence of the nature of the art.

    Configured to is structure. The machine is necessarily improved.

    Configured to is a legal (and factual) change to a machine. So holds Alappat. So too has both MM and Ned now made admissions to that effect.

    Intellectual honesty forbids either from blatant lying in making arguments to the contrary of these admissions.

    Perhaps the New Year will bring forth a modicum of intellectual honesty.

  151. The problem with Flook was the underlying process itself was abstract.  The math was applied to a process that said nothing more than measure something, use this algorithm to calculate an alarm limit and then use it.  Not being tied to a specific use was the problem.

    Sent from iPhone

  152. “101 IE, Thank you much for reminding all of us about the important 101 portions of Research Corp. v. Microsoft Corp. and Diamond v. Diehr.”

    You are welcome EG. I truly hope the majority panels in Alice, Ultramercial and other coming cases up this year remain committed to their principles and follow the law as it was held in Diehr.

    Happy New Years!

  153. Ned: “Practical application does not include the abstract.”

    An application is not abstract although such an application could “pre-empt” the abstract idea it has applied.

    A pre-emption that is not possible if the abstract idea is “integrated” into the process as a whole.

    Any questions?

    I am here to help.

  154. 101 IE,

    Thank you much for reminding all of us about the important 101 portions of Research Corp. v. Microsoft Corp. and Diamond v. Diehr.

  155. “is there a difference in patent law between a method of (1) actually curing rubber and (2) using math to determine the probability that someone is talking about curing rubber?”

    Hello MM:

    First, there is no “difference” in patent law for methods. All methods are analyzed under the “same” patent law. See 35 U.S.C. 100(b). Now, for some guidance on “integration” for method/process claims we can look to the Official USPTO Guidance in view of Prometheus.

    link to uspto.gov

    1. Is the claimed invention directed to a process, defined as an act, or a series of acts or steps? If no, the claim is not a process and this analysis is not applicable. If yes, proceed to Inquiry 2.

    2. Does the claim focus on use of a “bare” law of nature, a natural phenomenon, or abstract idea?

    If no, this analysis is complete, If yes, proceed to Inquiry 3.

    3. Does the claim include additional elements/steps or a combination of elements/steps that “integrate” the law of nature, natural phenomenon, or abstract idea into the claimed invention such that the law of nature, natural phenomenon, or abstract idea is practically applied, and is sufficient to ensure that the claim amounts to significantly more than the law of nature, natural phenomenon, or abstract idea itself?

    If no, the claim is not patent-eligible and should be rejected.

    If yes, the claim is patent- eligible, and the analysis is complete.

    Any more questions?

    I am here to help.

  156. LOL – I didn’t answer because I could not believe that you seriously asked any question at all.

    In addition, your question indicates the opposite of you saying that you understand the difference. Kindly refrain from guessing as to why I did not provide an answer (hint: you are wrong yet again).

    So unless you are purposefully being a douchebag, your question at 3:23 does not deserve an answer – and even then, it still does not deserve an answer, because you would not understand the answer.

  157. ““In Diehr, the overall process was patent eligible because of the way the additional steps of the process “integrated” the equation into the process as a whole. 450 U. S., at 187. These additional steps transformed the process into an inventive application of the formula.”

    Any questions?

    Yes: is there a difference in patent law between a method of (1) actually curing rubber and (2) using math to determnie the probability that someone is talking about curing rubber?

    Rhetorical question.

  158. please tell me you understand the difference between math and applied math.

    I do understand the difference, anon. That’s why I asked you the question in my 3:23 pm comment. And that’s why you didn’t answer.


  159. Yeah but the output of the claim is an input to a trellis node of a Viterbi detector.

    Regardless of what you do with the output, the output of the claim is a “value.” Information goes into the algorithm, math is applied and (SHOCKING!) a value (or multiple values, in this case) come out.

    In other words: here’s a very slightly modified Viterbi algorithm, broadly described. Now apply it.

    I mean, the “invention” in Diehr was a total piece of cr-p but Diehr didn’t claim every method of using an “Arrhenius processor” to apply the equation. Or maybe he did and those claims didn’t make it to the Supreme Court?

  160. Yeah but the output of the claim is an input to a trellis node of a Viterbi detector.  That is the same as Alappat And also needs to requirements of Diehr.

    Sent from iPhone

  161. Here is an exemplary detector. link to google.com

    Note that the claim does not limit itself to any particular viterbi decoder. It simply encompasses them all. That is a problem.

    I’m going to explain the case to you, very slowly ned, in such a way as for you to understand why the recitation of a viterbi detector will not avail them.

    The applicant has invented a new algorithm, and he claims applying that algorithm to viterbi detectors (under the claim construction most generous to your point of view Ned, under the proper claim construction, the veterbi device in the preamble is not even limiting and thus you don’t even have an argument to make in the first place). The algorithm at issue in this case appears to be solely applicable to viterbi detectors just as the algorithm in Benson was solely applicable to digital computers. It is for that reason that the claim IN EFFECT will preempt the use of the algorithm itself. This is because limiting the claim to use on the viterbi detector does not actually shrink the scope of the claim in terms of what it would actually cover irl, since nobody will be using such an algorithm outside the setting of viterbi detectors.

    I hope that helps you understand a bit about why the claim will be going down the 101 garbage shute shortly in an appeals court near you.

  162. A Viterbi decoder is a known apparatus that operates on analogue signals. The output is a noise free signal.

    That’s nice. The “output” of the claimed method is a “metric value.”

    It’s math.

    If such is not eligible, the nothing should be.

    If math is eligible, then everything should be.

  163. there is a huge difference between “among the useful arts” and a naked assertion of “just apply it.”

    That’s nice. I never said otherwise.

    Is the “huge difference” you refer to above mor or less “huge” than the difference between “mathematics” and “applied mathematics”?

  164. Way to misrepresent what I said – there is a huge difference between “among the useful arts” and a naked assertion of “just apply it.”

    Try to stay on point MM.

  165. Applied math has always been among the legally relevant “useful arts”

    Right. You could always get an eligible claim if you describe a new algorithm and provide an instruction to “apply it.”

    I seem to recall that sort of claim being disparaged in a recent Supreme Court case.

  166. Ned: It takes a physical input and provides a physical output.

    It’s a statistical method which assigns values to various possible causes of a received signal and determines the most likely cause.

    There is no “physical ouput” recited in the claims posted upthread. The claims are a transparent attempt to cover a fantastically broad application of an apparently modified but (as claimed) likely obvious conventional statistical method.

    A Viterbi detector is a known apparatus.

    More accurately, it’s a processor that implements a known algorithm. There’s an outline for a 2003 Viterbi decoder design project here:

    bwrc.eecs.berkeley.edu/icbook/Projects/Viterbi%20Decoder.pdf

    and an interesting simulation here:

    link to alantro.com

  167. A Viterbi decoder is a known apparatus that operates on analogue signals.

    The output is a noise free signal.  

    If such is not eligible, the nothing should be.

    Sent from iPhone

  168. Whatever

    Oh wait, the SC Justices dealt with that line of reasoning in Prometheus. Maybe we can conjure up some argument that will meet a different fate than the government’s brief that was explicitly rejected and not make a dead letter out of the SC’s judicially created exceptions (created out of the implicit reading of Congress words of 101 – not 102/103/112)

  169. Ned I accept that what you write is right but I’m just looking at the method claims included in the posting at the head of this thread and I don’t see any recitation of PRML or outputting. We must work on what is in the claim, which is not the same as what is set forth in the Detailed Description.

    Perhaps the step of outputting is implicit but, even so, I’m still sceptical about 101 Diehl integrated eligibility of the two specimen claims, as they stand.

  170. Good point.  If nothing more Is added but the simple use of the algorithm, then it's implementation for disk drive signals should be considered obvious. But apparently providing functions, selectable functions from a set of predetermined functions at each node was considered inventive. That is what is covered by the Carnegie Mellon patents.

    Sent from iPhone

  171. A Viterbi detector is a know apparatus.  It outputs digital signals from analog signals that have indeterminate states — not clearly one, not clearly zero.

    Another industry term is PRML, Which stands for partial response, most likely.

    Sent from iPhone

  172. Yeah, but a Viterbi decoder receives signals from a disk drive and outputs signals with much less noise. It takes a physical input and provides a physical output. The mathematics lies in the middle. But that is okay under Diehr.

    Sent from iPhone

  173. Your ignorance on US patent law is already known to be profound. Do you really want to show your world wide ignorance, 6?

    Besides, this point was recently addressed on another thread.

  174. 6, your comment reveals that you still don’t understand the very basic premise of the system in which you are employed.

    No wonder you amount to no more than a small sideshow attraction.

  175. It’s just math, folks.

    LOL – “just math” – another useless anti-software patent canard. And yet another self-defeat from MM.

    How exquisite.

    Is math now among the legally relevant “useful arts”?

    obviously, the difference between “just math” and “applied math” is not understood by MM, or perhaps he is engaged in more blatant lying in order to support his anti-patent crusade. Applied math has always been among the legally relevant “useful arts” (not sure what emphasis MM is attempting with “useful arts” in quotes, perhaps he is preparing to dive (yet again) into the non-useful arts as a (typically preposterous) example in one of his (typically inartful) 101 arguments).

  176. ’cause universities have juice on Capitol Hill. All those Capitol Hill workers want their sons and daughters to get into CMU.

  177. Just on the side: Why again does Carnegie Mellon qualify for a 75% fee reduction under the new micro entity status?

    Somewhat strange that a patent which may lead to income of more than $1,000,000,000 qualifies for a 75% reduced maintenance fee…

  178. “Marvell’s stock price plunged about 10% following news that a jury had awarded well over $1 billion patent infringement verdict to Carnegie Mellon University.”

    Just another way that the patent system helps ensure a healthy economy!

    Lulz.

  179. David: “Pretty much every commercial quality modem >2400 Baud uses Viterbi.”

    Then you need to dispose of the claim under 102/103. 101 requires entirely different questions. See Prometheus on that.

  180. David: “Ok, so we take an established signal processing method like the Viterbi algorithm and, what a novel idea, apply it to process a signal. And that is eligible for patent protection?”

    In combination it very well may be.

    See Diehr.

    Then see Prometheus for “integration”.

  181. Ok, so we take an established signal processing method like the Viterbi algorithm and, what a novel idea, apply it to process a signal.

    And that is eligible for patent protection? Where is the inventiveness in applying a published, well-known standard and tried method for its intended purpose? Pretty much every commercial quality modem >2400 Baud uses Viterbi.

  182. Yes, the claim recites applying functions to signals. But is that enough, if the claim fails to recite what you do after that? Are not these claims reciting no more than “Take some signals and perform a specific mathematical process on them”.

    Even a bit like Prometheus (take some data and think about it) perhaps?

    To “integrate” in a process that’s patent-eligible, you need to add a downstream step to the claimed process, don’t you?

  183. MM: “Viterbi decoding was developed by Andrew J. Viterbi, a founder of Qualcomm Corporation. His seminal paper on the technique is “Error Bounds for Convolutional Codes and an Asymptotically Optimum Decoding Algorithm,” published in IEEE Transactions on Information Theory, Volume IT-13, pages 260-269, in April, 1967.”

    CHECK:

    “The Arrhenius equation is a simple, but remarkably accurate, formula for the temperature dependence of reaction rates. The equation was first proposed by Svante Arrhenius in 1884; five years later in 1889, Dutch chemist J. H. van ‘t Hoff provided a physical justification and interpretation for it. Currently, it is best seen as an empirical relationship.[1] It can be used to model the temperature-variance of diffusion coefficients, population of crystal vacancies, creep rates, and many other thermally-induced processes/reactions”

    and MATE:

    (c) When a claim containing a “mathematical formula” (e.g. Arrhenius equation ) implements or applies the formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect …, then the claim satisfies § 101’s requirements. Diehr Pp. 450 U. S. 191-193.602 F.2d 982, affirmed. Emphasis added.

  184. MM said: “I can patent that algorithm now? ”

    Yes, if the algorithm is integrated in the process as a whole. First see Diehr:

    “n 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 preempt the use of that equation. Rather, they seek only to foreclose from others the use of that equation in conjunction ( Read as Integrated ) with all of the other steps in their claimed process.) Diamond v. Diehr – 450 U.S. at 437 U. S. 586. Emphasis added.”

    Next see Prometheus for authority to interpret Diehrs claim as integrated.

    ““In Diehr, the overall process was patent eligible because of the way the additional steps of the process “integrated” the equation into the process as a whole. 450 U. S., at 187. These additional steps transformed the process into an inventive application of the formula.”

    Any questions?

    I am here to help.

  185. the use in a Viterbi detector is claimed

    [eye roll]

    It’s just math, folks. Useful math, to be sure. But still … just math. Is math now among the legally relevant “useful arts”? I have a new algorithm for correlating information about hair growth rate with the likelihood of cancer. I can patent that algorithm now? Maybe if I call it an “MM decoder”?

    link to en.wikipedia.org
    link to en.wikipedia.org
    link to 1-core.com
    link to home.netcom.com

    Viterbi decoding was developed by Andrew J. Viterbi, a founder of Qualcomm Corporation. His seminal paper on the technique is “Error Bounds for Convolutional Codes and an Asymptotically Optimum Decoding Algorithm,” published in IEEE Transactions on Information Theory, Volume IT-13, pages 260-269, in April, 1967.

  186. Ned : “Actually, the method is tied to a Viterbi detector.”

    This may be correct and if so it is an important and useful clue but please never forget what Bilski told you…never!

    (The Court is unaware of any ordinary, contemporary, common meaning of “process” that would require it to be tied to a machine or the transformation of an article. Respondent Patent Director urges the Court to read §101’s other three patentable categories as confining “process” to a machine or transformation. However, the doctrine of noscitur a sociis is inapplicable here, for §100(b) already explicitly defines “process,” see Burgess v. United States, 553 U. S. 124, 130, and nothing about the section’s inclusion of those other categories suggests that a “process” must be tied to one of them. Finally, the Federal Circuit incorrectly concluded that this Court has endorsed the machine-or-transformation test as the exclusive test. Recent authorities show that the test was never intended to be exhaustive or exclusive.) BILSKI v. KAPPOS, 2, 2010, 561 U. S. (2010) 3 Syllabus

  187. “How did these claims pass muster in today’s 101 climate? ”

    Well, if you are going by the CAFC to judge the climate you might conclude:

    ” ….after taking all of the claim recitations into consideration—it is not manifestly evident that a claim is directed to a patent ineligible abstract idea, that claim must not be deemed for that reason to be inadequate under § 101.”

    And then if it is manifestly evident, A.K.A a bare Court created judicial exception, (derived implicitly from the Congressional Statute of 101), you might do as the Supreme Court did in Prometheus and look to Diehr and Flook, as the cases most directly on point, and hold that..

    “both addressed processes using mathematical formulas that, like laws of nature, are not themselves patentable. In Diehr, the overall process was patent eligible because of the way the additional steps of the process “integrated” the equation into the process as a whole. 450 U. S., at 187. These additional steps transformed the process into an inventive application of the formula.” A.K.A Integration Analysis.

    And that my friend is how claims pass 101.

    Any more questions?

    I am here to help.

  188. MM said…
    A method for determining “a value” by selecting a function, and “applying the function” to a “plurality of signal samples.”

    Truly the stff of patents!”

    Remember what the Alice court told you…..”[S]ection 101 does not permit a court to reject subject matter categorically because it finds that a claim is not worthy of a patent.”

    Learn it. Learn it well.

  189. Actually, the method is tied to a Viterbi detector. What this does in a read channel is to reduce noise, big time. It’s one of the most important parts of a disk drive. Entirely eligible under Diehr and Alappat.

  190. A method for determining “a value” by selecting a function, and “applying the function” to a “plurality of signal samples.”

    Truly the stff of patents!

    a key distinguishing factor from the prior art is that the decoding functions used are “selected from a set of signal-dependent functions.” The asserted claims do not identify the particular functions used, only that functions are used.

    LOL.

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  192. The 112 issue is this: even if the spec does gives more than enabling example of “signal-dependent branch metric functions,” does that adequatelly support a generic claim so broad as to encompass ANY and ALL “signal-dependent branch metric functions?” [Because “selecting from a set” of them is not any limitation.]
    Obviously if a defendant is using anything like what is described in the specification they would be infringing narrower claims to that, not just one broadest generic claim of a patent.

    This issue has been kicking around in conflicting case law for a long time, at least since the old Sup. Ct. Morse telegraph patent decision’s distinction between over-broad vs acceptable breadth claims. The CAFC would seem to be far better off deciding cases like this as a 112 issue rather than risking another Sup. Ct. expansion of what the Sup. Ct. thinks 101 should prevent ab initio.

  193. However, you can get pretty far by reading the claims. 

    On Sun, Dec 30, 2012 at 11:13 AM, Dennis Crouch <dcrouch@gmail.com> wrote:

    I agree that a thorough validity analysis requires full consideration of the patent specification, the prosecution history, and the level of skill in the art. 

  194. A bit more information would be nice before setting out the chum of “I smell the claims alone and by themselves without reference to the specification or to the art to which the claims pertain.”

  195. Folks focused on subject matter eligibility issues will notice the obvious problems raised by the asserted claims.

    Aside from the obvious trolling nature of this comment, was subject matter raised as a defense against infringement in this case? In the prosecution of the patents as a rejection?

  196. How did these claims pass muster in today’s 101 climate? And how can the damage be $1b+? Does CMU license this technology to anyone?

  197. Re: “Apparently a key distinguishing factor from the prior art is that the decoding functions used are “selected from a set of signal-dependent functions.” The asserted claims do not identify the particular functions used, only that functions are used.”
    Would not an appeal based on 112 for overly broadly generic claiming thus be even more likely to succeed than a 103 argument in the face of a jury verdict?

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