EFF: Limit Software Patents

Guest Post by Julie Samuels.  Samuels holds an endowed chair at EFF aptly named the Mark Cuban Chair to Elimiate Stupid Patents.  EFF's brief in the CLS Bank case is available here: /media/docs/2012/12/eff–iso-cls.pdf. 

Since the Supreme Court’s 2010 Bilski ruling, the Federal Circuit has been consistent on only one point in its § 101 jurisprudence—and that’s on being inconsistent. In the face of the Federal Circuit’s failure to provide a workable § 101 standard, the Supreme Court issued its unanimous ruling in Mayo v. Prometheus, essentially telling the Federal Circuit to take the patentable subject matter inquiry seriously. Yet the Federal Circuit paid no heed when it issued ruled in CLS Bank v. Alice, all but ignoring the Supreme Court (for many of us court watchers, the Federal Circuit’s failure to address Mayo was shocking; even Judge Prost, in her dissent, admonished the majority for “fail[ing] to follow the Supreme Court’s instructions—not just in its holding, but more importantly in its approach.”).

So it really was no surprise when the Federal Circuit agreed to take CLS en banc. We, along with many others, hope that this case would provide the Court an opportunity to head the Bilski Court’s warning that:

The Information Age empowers people with new capacities to perform statistical analyses and mathematical calculations with a speed and sophistication that enable the design of protocols for more efficient performance of a vast number of business tasks. If a high enough bar is not set when considering patent applications of this sort, patent examiners and courts could be flooded with claims that would put a chill on creative endeavor and dynamic change. (130 S. Ct. at 3229).

As currently interpreted, § 101 leaves parties unable to discern a patent’s metes and bounds or assess its validity, making inadvertent infringement an unfortunate cost of doing business. This has led to a dangerous and dramatic increase in patent litigation, particularly surrounding business method patents or those covering software. For better or worse (and I think worse), the major uptick in these cases involved non-practicing entities. Some data that we included in our amicus brief filed in CLS Bank:

  • From 200-2002, NPE litigation accounting for only about five percent of patent litigation;[1] in 2007 that figure was 22 percent and in 2011 it was 40 percent.[2]
  • Litigation surrounding software patents has also greatly increased:

6a00d8341c588553ef017c34cf3367970b-pi[1][3]

  • For the first time in 2011, spending by both Apple and Google on patents exceeded the firms’ spending on new product research and development.[4]
  • NPEs now disproportionately target small companies; at least 55% of unique defendants sued by NPEs make under $10 million a year.[5]

These statistics are a direct result of the legal instability surrounding § 101. One way to stem this problem is to create incentives for those facing litigation (or litigation threats) to pursue their meritorious defenses of noninfringement and invalidity. Section 101 could play that role, in fact, the Mayo Court seemed to state as much: “to shift the patent-eligibility inquiry entirely to these late sections [§§102, 103, 112] risks creating significantly greater legal uncertainty, while assuming that those sections can do work that they are not equipped to do.” 132 S. Ct. at 1304.

 Yet no version of recent § 101 jurisprudence offers much hope of settling the law. Instead, we recommended in our brief (filed along with Public Knowledge) that the Federal Circuit take another route and adopt a stricter construction of § 112(f), as recently proposed by Prof. Mark Lemley. Specifically, instead of attempting to figure out whether a broad, functional claim is abstract or not, a court may first use § 112(f) to narrow the claim to the structures and their equivalents recited in the patent and then, if questions remain, make a § 101 inquiry.  

 While § 112(f) has traditionally been applied to apparatus claims, it’s clear that Congress intended it to apply to method claims as well. Despite this, software patents often do not detail actual algorithms or explain how to actually carry out the methods they attempt to claim; as such they should be indefinite under cases like Aristocrat Techs. v. Int’l Game Tech. If the claims do specify the algorithms, then the § 101 inquiry will be limited to those algorithms and their equivalents. These questions—of whether §112(f) applies; if it does, how the claims should be limited; and then if § 101 permits that narrowed claim—could all be accomplished at early stages of litigation, before expensive discovery and motion practice.


[1] James Bessen, Jennifer Ford and Michael Meurer, The Private and Social Costs of Patent Trolls, Boston Univ. School of Law, Working Paper No. 11-45, 2011 (“Bessen 2011”), at 6.

[2] Sara Jeruss, Robin Feldman & Joshua Walker, The America Invents Act 500: Effects of Patent Monetization Entities on US Litigation (2012) at 5, 25.

[3] James Bessen, A Generation of Software Patents, Boston Univ. School of Law, Working Paper No. 11-31 (June 21, 2011), at 19

[4] Zak Islam, Smartphone Industry Spent $20 Billion on Patents in 2011, tom’s hardware (October 9, 2012), http://www.tomshardware.com/news/Patents-Smartphone-Apple-Google-Motorola,18231.html

[5] Colleen Chien, Startups and Patent Trolls, Santa Clara Univ. School of Law, Accepted Paper No. 09-12 (September 28, 2012)

169 thoughts on “EFF: Limit Software Patents

  1. 6, don’t be silly. You and I debate this topic all the time on this blog. I express my opinions and respond to criticism. Lemley, on the other hand, makes outrageous assertions and does not defend them in a forum that gives a voice to the rational majority.

    I note that Lemley’ites have not met the challenge. No suprize. His view are not defensible.

  2. Great question – and one that makes my case for me, as clearly (in law and in fact) the machine that is a computer is improved in both the factual and legal senses with software, and that components of a machine are separably patentable in their own right.

    The analogy of bullets and the gun shoots you with both barrels – that which is directly covered by the analogy (that components are patentable aside from the assemlbed (configured) item, and that which is not meant ot be covered by the anlaogy, that the configuration with software is a new and improved machine.

    I am sure that you did not realize that you acquiesced so much with your reply, but thank you anyway!

  3. Bullets and guns…
    Tires and vehicles…
    Piece parts and machines those piece parts go into…

    …and what about your “automatically executes” BS?

  4. Big companies would NEVER copy a little company’s product and put them out of business……

    Microsoft v. i4i

  5. Well said RS. Love the simplicity of the statute! And its just amazes me the complex and confusing theories/test the anti patent crowd continues to invent in order to try and eliminate software and business methods.

  6. assumes that the program is resident and automatically executes

    No Ned – not even close. You are caught (once again) trying to inject your baseless additions into the equation.

    I have repeatedly chastised you on this point and begged and pleaded for you to ground these additions into actual law and you have never NEVER complied with my simple request.

    How about it Ned – where is the legal foundation for your extraneous “resident and automatically executes” BS?

  7. Your argument assumes that the program is resident and automatically execute so that it creates a new machine.

    Do you agree with this limitation on claim construction?

    Sent from iPhone

  8. The only useful purpose of a computer is to execute a computer program. The computer is simply a useful medium. OOOSITA could, albeit inconveniently, implement the complete program using NAND gates or with analog circuits. Thus, if the program is new and non-obvious, it should be patentable just as the logic and analog circuits would be. Just as one can design a new and non-obvious amplifier or any ‘mouse trap’, a new and non-obvious computer program should be patentable. There is also now black letter law that states that a manual process implemented in a computer program is not patentable. However, this falsely assumes that implementation in a computer program is obvious. This is not always the case. So, why are we creating black letter law based on false assumptions? “Because it’s software”, which is a poor rationale. I have found no persuasive argument that software should be treated any differently than any other implementation medium. The comments regarding the “kit instructions” is ridiculous because it assumes that the output was known, which is not necessarily the case with software. Plus, a new, nonobvious, and useful manufacturing process is patentable.

  9. “From this perception, business method patents are rediculous, or North-Korean, to be friendly.”

    Actually, from that perception business method patents are essential to a free market economy. How else can an individual start up a business from scratch and compete against a corporate giant like Microsoft, Coke, or Disney that in effect has monopolies on the marketplace?

    What’s that?

    Did you say think of a better way to conduct business so you can out compete them?

    Okay, let’s think about this. So the individual invents some really cool, novel, non obvious innovative business system, process or method and opens up shop against a company like MS, Coke, or Disney, what do you think is going to happen?

    The big company is going to freely copy the method, steal without impunity, and squash the little guy like a cockroach.

    Then all the commoners will ever have will be MS and Apple, Coke and Pepsi, Disney and….well.. uh Disney.

    So much for your precious of freedom of competition in an anti business method, anti patent world.

  10. MM Wrote:”n your opinion, is the following claim eligible under 101:

    1. A method for treating a patient comprising,

    determining the 6-TG levels in said patient using any old, conventional method,

    wherein if the 6-TG levels are lower than 260 mg/L, a need for a medical contract of $521-$614 month is indicated, and wherein if the 6-TG levels are greater than 510 mg/L, a need for a medical contract of $721-$826 month is indicated.”

    Since it is apparent that you are not going to respond to actual case law and/or the statute perhaps it would be best if I replied in my own voice, while relying on the case law and statute? So, in light of the foregoing, if the claim is not directed to a bare Court created judicial exception, (derived implicitly from the Congressional Statute of 101) or — after taking all of the claim recitations into consideration—it is not manifestly evident that the claim is directed to a patent ineligible abstract idea, that claim must not be deemed for that reason to be inadequate under § 101. It would undermine the intent of Congress to extend a judicially-crafted exception to the unqualified statutory eligibility criteria of § 101 beyond that which is “implicitly” excluded as a “fundamental truth” that is “free to all men and reserved exclusively to none. This 101 Integration Expert, along with Actual Inventors, and pro innovation commenters have ‘more than once cautioned that anti business method, anti software, and anti patent commenters should not read into the patent laws limitations and conditions which the legislature has not expressed. Unless the single most reasonable understanding is that a claim is directed to nothing more than a fundamental truth or disembodied concept, with no limitations in the claim attaching that idea to a specific application, it is inappropriate to hold that the claim is directed to a patent ineligible “abstract idea”

    Any more questions?

    I am here to help.

  11. I can’t say more about the near-legendary dessert reception at tonight’s meeting of the Committee to Destroy Patent Rights. The quail was so delicious and the gravy was simply beyond description! More later. Tonight I must give my belly maximum attention.

  12. I give it a 101. I write a rejection stating what the abstract idea (I don’t get a lot of lawls of nature or phenom) which is preempt is and why the claim preempts it. I use the BFD framework.

    So far, only one person has gotten out of amending. And he only got out via hiring on an appeals guy to spout nonsense that me and my spe get a chuckle from to this day. That will not happen again. Bilski and Prom have ended that little line of “reasoninglol” that the appeals dude was trying to feed me.

    But, that guy got in before Bilski and Prom came down, and it wasn’t the worst of inventionlols the office ever allowed.

  13. Again, another major beatdown.

    As for “It is really simple. Just as there is an incredibly large and diverse way chemical elements can be arranged, there is probably an even larger and more diverse way, electronic circuits can be arranged.” that analogy was already offered up thread and MM was only too happy to jump on the self-defeat bandwagon with it.

    And let’s not forget that the electronic circuits are equivalent to software.

  14. “If that were the case, pharmaceutical composition claims would have collapsed under their stinking weight eons ago.”

    It is really simple. Just as there is an incredibly large and diverse way chemical elements can be arranged, there is probably an even larger and more diverse way, electronic circuits can be arranged.

    “The legal issue is that this new structure is never disclosed and never claimed.”
    Let me acquaint you with 35 USC 112.

    First paragraph: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.

    Note the part about “enable any person skilled in the art … to make and use the same.” I don’t have to describe the “new structure” to enable a person skilled in the art to make and use a software invention. I many instances, I don’t have to describe the computer, the microprocessor, or the particular circuitry necessary to operate the software – not necessary for enablement.

    Second paragraph: “The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.”

    The claims don’t need to describe the “new structure,” they just have to distinguish the claimed invention over the prior art.

    So, getting back to your “legal issue,” there is none. You are creating a requirement that doesn’t exist. Moreover, it has nothing to do with 35 USC 101.

    Again, really simple.

  15. The problem with Lemley is an “ivory tower professor” with a degree in economics and political science attempting to explain what type of disclosure is sufficient to enable a software-implemented invention.

    Without a basic understanding of the technology, his arguments are nonsense. A portion of the EFF brief (relying upon Lemley) is the following:
    “Crucially, these claim steps contain no explanation whatsoever of how to accomplish any of these functions.”

    What Lemley (and EFF) fail to appreciate is that the invention is in the functions — not how to accomplish the functions. The “how” can be accomplished by one having only routine skill in the art. There is no requirement to explain what would be known to those skilled in the art.

  16. “Do I want to spend more time arguing about the definition of ‘strawman’ with a guy who doesn’t understand how analogies work?”
    I thought you were done arguing … at least try to keep your word. BTW a movie script is not analogous to software. One is functional the other is an artistic expression – so much for your “anlogy.”

    “you seemed far more interested in name-calling and low-level trolling”
    My understanding is that you’ve got those locked up. I apologize if it appears that I was intruding upon your turf – that was never my intent. I’ll leave the name-calling and low-level trolling to you. BTW – software is an improvement to a machine. See 35 U.S.C. § 101.

    “you said yourself that an old computer method could not be made new and patentable merely by swapping one kind of information for another”
    No. I didn’t. Besides being a low-level troll, your reading comprehension needs some work. There is a difference between the content of data and the type of data. Since you don’t understand software, I assume you won’t appreciate that difference. Since I’m not getting paid to teach you, I’ll let you attempt to figure it out for yourself. Granted, I assume you won’t even try as it is easier to make your arguments out of ignrance.

    “Instead you started talking about XML and JPEG files as if they were somehow ‘special.’ But you weren’t able to explain why they were ‘special’ either.”
    See my comment above. If you were even remotely knowledgeable about software, such an explanation would not be necessary. As I said before, talking with you is like talking chemistry to somebody that doesn’t know the difference between a molecule and an electron.

    “But we’re talking about j–k patents that should never have been granted.”
    Cry me a river. Let me see those big fat tears come dribbling down your face. I don’t care whether or not you don’t like software. This is about the law – not your anti-software obsession. You remind me very much like the EFF crowd … your hatred for software is so great that you don’t even care what the law is, and you’ll make up anything to support your position. If you’ve got policy arguments as to why software patents should never have been granted, take it up with Congress. I’ll say the same thing to EFF. Your collective boohooing makes for lousy arguments.

    “Maybe you can provide an example of what you meant when you said earlier that an old computer-implemented method could not be made patentable merely by changing the information that is being manipulated by the method.”
    I’m sorry, I’ve already given the lesson. Unfortunately, because your knowledge of software is woeful, you weren’t able to understand it. When I see evidence that you actually know something about software, I’ll give that lesson again. Don’t worry, I won’t be holding my breath.

  17. “It’s not a strawman at atll”
    You’ve replaced the fact pattern (i.e., the patenting of software) with a superficially similar proposition (i.e., “patenting movie plots”), which you then attack. This perfectly fits the definition of a straw man.

    Let’s see. Do I want to spend more time arguing about the definition of “strawman” with a guy who doesn’t understand how analogies work?

    Nah.

    I understand why you don’t want to continue this conversation – your logic stinks and you know it stinks.

    My logic is just fine. It’s funny – early on in our “conversation” (LOL) you made one positive statement about “the law” and its restrictions on software patenting. When I asked you to clarify what you meant and/or provide a cite for “the law”, you suddenly changed gears and from that point on you seemed far more interested in name-calling and low-level trolling.

    To say that something is either an original or a copy is not strange at all.

    In certain contexts, yes. Of course, we’re talking about patents (or maybe you weren’t?). Specifically, we’re talking about inventing where it’s well-known that people come up with similar inventions independently all the time, especially when the inventions are described broadly and constructive reduction is all that is necessary.

    “It’s all the same.”
    There’s your problem right there.

    No, that’s your problem, RS. In fact, you said yourself that an old computer method could not be made new and patentable merely by swapping one kind of information for another. But you were never able to explain what you meant, were you? Why not? Instead you started talking about XML and JPEG files as if they were somehow “special.” But you weren’t able to explain why they were “special” either. You just spouted off about you understood what you were talking about and tough luck if nobody else did.

    you know when you are out of your league.

    Indeed. But we’re talking about j–k patents that should never have been granted. I’m not out of my league. Not at all. You seem to be having difficulty keeping up though.

    Maybe you can provide an example of what you meant when you said earlier that an old computer-implemented method could not be made patentable merely by changing the information that is being manipulated by the method. If you want to clarify what you said earlier, be my guest. I would suggest providing a specific example and, ideally, a case which supports what you’re asserting.

  18. I just read it, and I’m still not clear on what the step and function are that are in the claim. Although I can see from that comment that you are thinking in some sort of wacky euro style. If you’re going to comment on our cases, and our lawl, try to put yourself into an american frame of mind.

  19. “After all he thinks you are brilliant. But then again he also thinks 6 is a genius.”

    Well, I mean, I did kind of resurrect the BFD trilogy and set you into wringing your hands daily.

  20. PC So you need to show the bulb and its socket and the motion needed to insert the bulb in the socket

    LOL. Why can’t I just show a flowchart with a box that says “insert light bulb”?

  21. “Stick to real inventions. Real embodiments. None of this “idea” nonsense, none of this “abstract” nonsense.”

    That’s funny, because that is exactly what we’re telling you to do. If you and your kind would kindly stop claiming such, then there would be no issue.

  22. “. The only thing he could come up with was a fax machine.”

    Most people aren’t experts in the field of electromotive force printing in the late 18th and early 19th century. Did you give him some time to research it and a budget?

  23. In Prometheus the relevant step was determining the level of 6-thioguanine in a subject.

    Relevant to what, Paul? To the Prometheus Court? All that mattered is that the determination was an admitted old and conventional step. The invention in Prometheus had nothing to do with a new method of determining 6-TG levels. That’s why a specific method wasn’t recited in the claims. There’s an old case that is quite clear that one need not waste time recapitulating what is well-known in the art.

    So it was a complex multi-stage procedure nothing like putting a light bulb into a socket.

    In the sense that the 6-TG determining method was old and conventional, it’s exactly like putting a light bulb into a socket, at least as far as 101 is concerned. Do you want to talk about 101 or 112(f)?

    there have to be steps disclosed to support the functions, whether or not they are known. The way you do that in most cases is by flowcharts

    Ah yes! Flowcharts. Complicated stuff. Rocket science. The stuff of patents … “software patents” anyway. Or maybe we should call them “flowchart patents”. Or “logic patents”. Because there really isn’t any “software” disclosed in most of those patents, is there? It must have happened once or twice over the many years. But it’s probably fair to say “never”.

    If you are claiming a function you have adequately to disclose the structure or step to support that function.

    And what is “adequate” varies fantastically depending on whether the function being referred to is old/conventional or whether it’s a never before achieved function. If you all the steps in your flowchart patent are old except for one (e.g., “if the user’s name is Brybyx then output contract term B”), then you might as well just claim that one logical step. But wait! The Examiner might just reach for his oxygen tank and do the right thing in that case. Better to load the claim up with a lot of silly verbiage and recite a “computer”. And be sure to include a flowchart.

    Rocket science, man. Really really difficult stuff.

  24. NWPA, let’s go a debate irl. Your choice of forum, your choice of time/place. Suggested topic: should software be considered patent eligible? Why or why not?

  25. “It’s not a strawman at atll”
    You’ve replaced the fact pattern (i.e., the patenting of software) with a superficially similar proposition (i.e., “patenting movie plots”), which you then attack. This perfectly fits the definition of a straw man.

    “It’s all the same.”
    There’s your problem right there. You don’t understand the differences so you pretend that they aren’t there. Your positions would make sense … if they were based in reality. However, since you’ve distorted reality to fit your positions, there isn’t much I can suggest except go to a doctor and see if you can get a prescription for something like Clozaril, Geodon, or Risperdal,

    “That’s a strange definition of ‘copying.’”
    I don’t think so. To say that something is either an original or a copy is not strange at all.

    “I’ll be wrapping our conversation now.”
    A good man knows his limitations. I see you know when you are out of your league.

    “you are mostly interested in trolling.”
    I’ve discussed the law … you’ve discussed patenting movie scripts.

    “We’re not talking about what ‘most people prefer,’”
    That’s what I was talking about. If you’ve changed the scope of the conversation, your comments did not clearly indicate that change.

    “It seems we agree now that EFF does not, in fact, want ‘everything’ to be free. Rather, they would prefer that people don’t get sued for file sharing.”
    hahahahaha … that’s funny. I hope you don’t use that kind of logic in the real world … I understand why you don’t want to continue this conversation – your logic stinks and you know it stinks. I assume you know “file sharing” means allowing other people to copy, for FREE, your files. If EFF doesn’t want people to get sued, this means they want people to file share (i.e., freely distribute content) without repercussion. It either takes a lot of blls or plain stupdity to continue to fight a losing battle. I’m going with the later over the former.

  26. What does it have to do with the Alice majority panel following the Supreme Court in Prometheus? We have an actual court case here and claims. Perhaps if you wish to engage in and advance the discussion you would best focus on real case law as applied to the claims at hand. If on the other hand you want to engage in silly games and hypotheticals perhaps you should play with Ned. After all he thinks you are brilliant. But then again he also thinks 6 is a genius.

  27. I should have added in relation to the light bulb example that in the case of a feature in the mechanical arts you will routinely have a drawing. So you need to show the bulb and its socket and the motion needed to insert the bulb in the socket and if you are pedantic about that sort of thing a drawing also of the light bulb when inserted. If that is a feature of the claim, there has to be proper written description and drawings support, otherwise there is a risk of difficulty under 35 USC 112(f) and inporosecution yomay get an objection from the Examiner if you do not comply.

  28. In Prometheus the relevant step was determining the level of 6-thioguanine in a subject.

    US 6355623 includes a number of references to papers describing appropriate methods of measurement and also exemplifies one set of procedural steps needed. Here is what you do according to Example 1:

    [0070] The levels of the 6-MP metabolites 6-TG and 6-MMP were measured in IBD patients to whom 6-MP pro-drug was administered, and the relationship of 6-MP metabolites to clinical disease activity and drug toxicity was determined. Briefly, blood was sampled (n=89) prior to daily administration of 6-MP in 55 IBD patients (CD n=51, UC n=4) receiving 1-1.5 mg/kg/day over at least a 4 month period (>=4 mo.). When AZA was administered, a conversion factor of 2.07 was used to convert to the equivalent 6-MP dose. Twice as much AZA is administered relative to 6-MP to have an equivalent dose of 6-MP.

    [0071] Erythrocyte 6-TG, 6-MMP and 6-MP thiobases were measured (pmol/8*10<8 >RBC) using reverse phase HPLC. Briefly, blood samples were collected in EDTA (ethylene diamine tetraacetic acid) as anticoagulant. Cells were centrifuged and washed three times with an equal volume of 0.9% saline. Washed packed cells were stored at -70[deg.] C. until analysis was performed.

    [0072] For acid hydrolysis, 500 [mu]l deionized H2O, 50 [mu]l thawed red blood cells, 40 [mu]l of the appropriate standard or control, 500 [mu]l 3.0 N H2SO4, and 300 [mu]l 10 mM dithiothreitol (DTT) was added to an 8 ml glass screw cap tube. The capped tubes were placed in a heating block preheated to 100[deg.] C. and hydrolyzed. For 6-MMP, hydrolysis was carried out for 5 hours. For 6-MP and 6-TG, hydrolysis was carried out for 1 hour. After the incubation, tubes were cooled in a room temperature water bath. To tubes hydrolyzed for 5 hours (6-MMP), 400 [mu]l 3.4 N NaOH and 1.0 ml 2 M Tris buffer, pH 9.0 was added. To tubes hydrolyzed for 1 hour (6-MP/6-TG), 450 [mu]l 3.4 N NaOH and 500 [mu]l 2 M Tris base was added. A volume of 4 ml 0.03% phenylmercuric chloride in methylene chloride was added to each tube. The tubes were capped and lightly agitated on a bi-directional rotator (15 min for 6-MMP and 30 min for 6-MP/6-TG). The contents were transferred to a 15 ml polypropylene centrifuge tube and centrifuged at 3500 rpm for 3 min at 10[deg.] C. The aqueous phase (top layer) was discarded, and 3.0 ml of the organic phase (bottom layer) was transferred to a clean 15 ml polypropylene centrifuge tube. The analytes in the organic phase were back extracted by adding 225 [mu]l 0.1 N HCl and lightly mixing on an orbital rotator for 5 min. Following vortexing for 30 seconds, the tubes were centrifuged at 3500 rpm for 3 min at 10[deg.] C.

    [0073] For 6-MMP analysis, 50 [mu]l analyte was analyzed on a C18 reverse phase column with the mobile phase containing 1 mM DTT, 2.078% triethylamine and 4% methanol, adjusted to pH 3.2 with concentrated H3PO4. For 6-MP and 6-TG analysis, 100 [mu]l analyte was analyzed on a C18 reverse phase column using 0.1 M H3PO4 and 1 mM DTT in H2O as the mobile phase.

    So it was a complex multi-stage procedure nothing like putting a light bulb into a socket. Even in that case, it is handly to say that the bulb is inserted manually and in the case of a bayonnet fitting pushed and twisted into place and int he case of an Edison screw turned into place until fully home and end contact has been made.

    If you omit such detail you risk there being insufficient structure or steps to support the functional language. It is completely irrelevant to that analysis whether or not the structure or steps were known, as explained and blisteringly clear following Amtel. Anyone who doubts this is advised to re-read Amtel carefully and without preconceptions.

    And in the case of a computer, there have to be steps disclosed to support the functions, whether or not they are known. The way you do that in most cases is by flowcharts and there have been 6-7 CAFC decisions on this subject in recent years, all saying the same thing.

    It is worth thoroughly familiarizing ourselves with the provisions of 35 USC 112(f). If you are claiming a function you have adequately to disclose the structure or step to support that function. It is a DIFFERENT requirement from support or enablement, arising from a quite distinct provision of 35 USC. If we are aware of that and its implications, we can keep our professional malpractice premiums low.

  29. “If we opened the door to patenting movie plots, we’d see patent applications on movie plots.”
    Play with strawmen frequently?

    It’s not a strawman at atll. I’m just providing an easily recognized hypothetical to illustrate my point about patent applications going “where the money is.” Another example would be a patent attorney stating that he wanted to make “money off the Internet” back in the 90s so he tried to claim “new paradigms” involving the Internet.

    If you want to refresh yourself regarding the definition of “strawman”, you can find the definition online. I recommend you check it out. Or continue embarassing yourself. Either way.

    “Instead we open the door to patenting methods of distributing content … using a computer, where the content is different from the prior art content in some arbitrary hand-wavey fashion.”

    Show me that claim, and you’ll have something to gripe about.

    I had this cued up earlier but here’s a very typical example of that sort of c–p.

    The present disclosure relates to the generation and the use of digital contents on the basis of copyright information.

    8. A device for managing digital contents, the device comprising: a display unit configured to display various commands; a user input unit configured to receive a copyright application command to create a file; a creative commons license (CCL) generation unit configured to insert copyright information into head information of the file if the copyright application command is received; a storage unit in which an icon for the copyright information and the digital contents are saved; and a control unit configured to apply copyright to the file if a selection command to apply the copyright to the file is received while the file is created wherein the copyright information comprises an Attribution clause, which has a copyright holder, and at least one of a Noncommercial clause, a No Derivative Works clause and a Share Alike clause; wherein the header of the file comprises information for determining whether the copyright is applied, a copyright holder name, a copyright type, at least one of a copyright icon and an initial of the copyright clause to be applied, a site address to which the digital contents are uploaded, a CCL offset to display a position at which the CCL icon or the initial of the copyright clause, a copyright holder display file offset field assigned to indicate a position at which a copyright holder display file is displayed, and an encoded key value for digital right management.

    That’s a recent issue (8,336,104). Many, many, many more examples. And please don’t be confused by the “copyright” b.s. (that happened before — use your reading comprehension skills and try to remember the topic of the discussion). The “invention” could just as well be directed to “the use of digital content based on the day of the year the content was produced” or “the use of digital content based on how many cute kittens appear in the content.” It’s all the same.

    If they aren’t original inventors then they are copiers.

    That’s a strange definition of “copying.” I’ll be wrapping our conversation now as it appears you are mostly interested in trolling. No surprise there.

    From my personal experience, most people prefer free over paying for something

    That’s funny. We’re not talking about what “most people prefer,” RS. You can have that converstaion on some Yahoo comment board with the other mouthbreathers, if you like.

    We were talking about your exaggerated statements with respect to EFF. It seems we agree now that EFF does not, in fact, want “everything” to be free. Rather, they would prefer that people don’t get sued for file sharing. Maybe it would be helpful to you if it was put this way: “Most people would prefer not to be sued for file sharing.” There. Easier for you to process, RS? I hope so.

  30. software claims are really method claims

    Of course they are. Almost invariably, they are methods of receiving, storing, analyzing/processing and/or outputting information. That is what computers do. That is all they do.

    The fiction that is being played out on a daily basis by the thousands of applications is that one can distinguish oneself over thousands of years of non-virtual art and decades of computation merely by giving the information a new name.

    Thus, we are led to believe that “swiping a screen” to open or close a program is inventive in view of prior art disclosing (1) touch-sensitie screens; (2) the act of touching a screen to initiate a process in a computer and (3) reams of prior art disclosing devices which turn on and off in response to signals. Oh but wait! It’s on a “mobile device”!

    Heckuva job, Kappos.

  31. Interesting that my second post required me to pass the Captcha test. Let’s see if what happens this time.

  32. Fortunately they don’t seem to know what they don’t know, which makes them pretty easy targets, mostly. Fairly easy to bring them down with a little reality bird-shot, even if they aren’t able to grok what happened while they were blustering. Pull!

  33. how can two machines that do not differ in structure perform different functions? How is that possible?

    Two machines that do not differ in structure are capable of performing identical functions. That’s the point.

    Outside of software and a few other ill-considered “exceptions”, applicants are not allowed to claim new compositions of matter based on a new function without providing novel structure. The argument that a composition “must be new” because it can do something new has never sufficed for patentability. If that were the case, pharmaceutical composition claims would have collapsed under their stinking weight eons ago, just as “computer readable media” claims are collapsing now.

    a wave of the hand and pronouncement that it has no structure.

    Look, we’ve had this discussion before. Why play d–b? You have two identical computers. You “change one” so that it can do something that the other can’t. Yes, somewhere there is some difference in the arrangement of atoms inside those computers. I don’t know anybody that disagrees with that.

    The legal issue is that this new structure is never disclosed and never claimed. Nothing remotely resembling any such structure is ever disclosed or claimed. This requirement which exists in all other arts (again, with a few other ill-considered exceptions) was simply papered over with pure horse hockey along the lines of how an “algorithm” “corresponds” to “electronic structure”. A method of informing my grandma that I bought one of her favorite DVDs online — what’s the “corresponding electronic structure”? That’s a rhetorical question. The law is a joke.

  34. Also, as to Ned being a shill, this in fact turns out to be true and accurate.

    Why would Prof. Crouch have a problem with my accurate assessment of Ned Heller?

  35. MM,

    I do not call every one whose comments or opinions I disagree with any of those names.

    Nice try at deflection.

    As to whether Prof. Crouch would be happy with an ideological battleground, I think (actually I know as he personally asked me) that he would be happier if that battleground were not conducted with lies and deceit, conducted with adults willing to actually acknowledge points of law and fact as they are. As to the insults, we have already covered this and you know you deserve any insult I give to you. Don’t like them? Then don’t post in a manner that earns them.

    Since you have made admissions and yet lie in the face of those admissions, I cannot see how Prof. Crouch would be happy with your posts. He has clearly come out and said no lying allowed, and yet you continue to blatantly and shamelessly do so.

    But it is his blog, and he can do (or not do) whatever he wants.

  36. Thanks TtLG.

    It actually does not take hours, as most of the anti-patent “arguments” presented are rather vacuous and poorly constructed. While they are persistent, they are shoddy and easily defeated, needing only a relatively modest understanding of the facts and law that apply.

    Plus, it does provide a certain amount of pleasure to see such get dismantled on these boards – especially when it is so very clear that their poor showing actually hurts their agendas.

    You would think that if they truly cared for their causes, they would try a little harder at actually making their cases instead of trying to stroke their own egos. I love it that it is their own egos that are their downfall.

  37. this forum will remain a battleground of ideological posts and counter-posts.

    I think Dennis is perfectly happy with that, anon.

    I’m pretty sure he’s not terribly thrilled by you calling every commenter whose opinion you disagree with a liar or a shill or worse. But maybe he likes that, too.

    [shrugs]

  38. PC Measuring thiopurine metabolites was not a simple matter like putting a light bulb into the socket.

    Measuring thiopurine metabolites was old and conventional in the art. All you need to know. You know that now, right, Paul? How many more times do you need to be told this fact before you acknowledge it?

    have a look at the 1999 CAFC opinion in Amtel v Information storage devices.

    That case suggests that only the thinnest of disclosure is sufficient to support the recitation of a conventional, old function. Now imagine that the recited function is something new that has never been disclosed before. What happens then? You think a “cross-reference with an informative title” is going to save the claim?

    Returning to the software issue, maybe you or someone else can give a compelling example of a computer executing a new step where that step isn’t distinguished from the prior art merely by the fact that the succession of ones and zeros being received, stored, processed, and/or transmitted by the computer have been given new name(s) by the applicant or by the fact that the identities of the transmitters/recipients of the information differ from the prior art. And then we can discuss what percentage of all applicants filed in this area are as compelling.

    Still waiting.

  39. Ned: “101: you seem to agree that the Supreme Court requires that the software or programed computer be applied to produce a new and useful result. ”

    In accord with the Prometheus Court’s interpretation of Diehr, as long as the software and computer is “integrated” in the process as a whole, this alone transforms the process into an inventive application of the software and the computer. So are you saying a new and useful result is analogous to an “inventive application” ?

  40. Ned :”What you seem to not fully understand is that simply reciting a programmed Computer is not sufficient.”

    Not sufficient for what? You need to be specific here Ned.

    Ned : “What you also seem to not understand is that a business method is not a useful application.”

    Oh? On what/whose authority do you base that assertion? And please provide an exact quote.

    Ned : “If it was, the Bilski claims would have been held to be eligible.”

    Bilski’s Claims as a whole are were ineligible because they were a bare Court created judicial exception of a mathematical formula. Business methods had nothing to do with it. See the Court explaining that Bilski’s claimed hedging method is in fact a plain math formula: ( “Claim 4 puts the concept articulated in claim 1 into a simple mathematical formula.”) BILSKI v. KAPPOS, 2, 2010,

  41. IMHO, When the novelty of apparatus Is claimed functionally, the claim is invalid under the prevailing Supreme Court cases going back to O’Reilly v. Morse.

    However, software claims are really method claims should be Treated as such. Method Claims must be applied to A useful end in order to be eligible. These principles are simple and should not be avoided by applying six 112 paragraph 6 in an unusual way to functional client

  42. Anon-
    I fear you are correct, but it seems to be waste of your intellect. If you are actually correct, it will probably invoke a blizzard of invective and insults, instead of reasoned discussions about the real issues. There is probably a very good reason for some to spend hours every day posting here, which you hinted at in one of your messages.

    I can’t help but wonder what they see, when they look into a mirror. S~

  43. Definitely. It is everywhere in our society. Burn baby burn. Get the money and build your doomsday palace in New Zealand.

  44. They don’t care about facts or the law.

    Their “not caring” extends far beyond this blog, far beyond the present day. And far beyond the posted rules of commenting on this blog.

    As such, you will not see any difference from them. Lies and deception are guaranteed to continue.

    I think I will just shut up (for now).

  45. The irony is rich, given as it is usually MM that descends into the political/religious aspersions on this blog, casting those that believe in patents in the “too religious” mode, all the while it is he that avoids the rational, it is he that is of the “intelligent design” mode.

    Can I hear an “Amen?”

  46. Reminds me:

    Did you miss the thread that Ned revealed that his posts are not of a personal nature, that they indeed belong to third party interests?

    I have told you before, a check exchanging hands is not the only way of improper influence, not the only way to ensure that an actual conversation is guaranteed not to happen.

    Reminds me:

    Your attempt at a joke reveals the joke that remains on these boards, for as long as you continue to lie and as long as posts are not of a personal nature, then conversation and an actual (intelligent) exchange is impossible and this forum will remain a battleground of ideological posts and counter-posts.

    And as I noted on Prof. Crouch’s 50-year old letter thread, that battle has shown no end in sight. See my posts on link to patentlyo.com (note too that this thread has at least one of MM’s volunteered admissions, that “configured to” is structure).

    Sorry Prof. Crouch, but you will have to take an active role in enforcing your terms of use and your no lying policy if you want any different results. MM and Ned simply do not respect your wishes.

  47. And, my final comment:

    I wonder about the morality of people like Lemley and his ilk. When I was a kid, there was a sense that being rational and trying to resolve conflicts in a ration way was honorable. That calling someone out for not being rational had some weight that they would at least address.

    Now, it seems, and not just in patent law, that there are just these dirty filthy people that will say and do anything to get their way. They will not even address a fair argument that they are not being rational or unfair. They will just launch into counter attacks rather than standing back and saying I am being fair and here’s why.

    I have also noticed another big change is that you get these people that attack you and then you disprove them and they do not receive any punishment to their reputation for their attack. When I was a kid, I remember that if, for example, you said well that kid said something bad about you, and you were lying, then it came back to you. Your reputation was harmed. Now, it is just washed over as if it was a mistake. In other words, there is no accountability.

    Lemley said software has no structure. The accountability should be no further discussion from him. Or a vanity press paper with an apology and his lame attempt to try to understand structure. But, instead, Lemley forges ahead with trying to come up with arguments judges cna use to invalidate all software patents. It’s a dirty filthy world of ideas we have.

  48. NWPA,

    You should know that there is no interest in an actual rational discussion on the merits from the likes posting against patents of this nature here.

    Have you seen any rational argument put forth? All that is presented is banal falsehoods and deceptions based on the twisting of law and fact. I notice that you notice MM’s twist of “patentable” structure, but even that does not save the discussion for him as he has voluntarily admitted that “programmed to” is structure. If he wants to engage in a rational discussion, he would stop lying, and he has shown no proclivity for doing so.

  49. One other aspect about this:

    The hot air going into the furnace. In modern thinking, we know what this is a partial design of the invention. How to put the hot air in is another aspect of the design. There will be immediately obvious many ways to put the hot air into the furnance and then there will be many follow on inventions.

    The fact is that putting hot air into a furnance is an invention as long as there is at least one way to do it. The ways to do it that are not enabled by the disclosure are new inventions.

    This is key to this entire discussion. I asked the architect of the Benson decision to name one invention that would have been covered by the invalidated claim for the telegraph. The only thing he could come up with was a fax machine. A machine that was invented over 100 years after the telegraph.

    You see Lemley’ites if we stick to the real physical world of inventions all of these arguments are seen as mystical nonsense. Stick to real inventions. Real embodiments. None of this “idea” nonsense, none of this “abstract” nonsense.

  50. >>The Information Age empowers people with new capacities to >>perform statistical analyses and mathematical calculations >>with a speed and sophistication that enable the design of >>protocols for more efficient performance of a vast number >>of business tasks

    This is reductionism. Try: information processing has proven itself capable of doing human task better and in different ways than humans. Information processing offers an unbounded future that is impossible to predict with methods and machines that are impossible to predict and that are more and more designed by intelligent machines because humans are incapble of grasping their complexity.

    You little reductionism is the same as Stevens you just go hire someone to program the computer comment in the dissent of Bilski.

    By the way, Ms. Samuels, I note you are not engaging us here. Try to engage me in this discussion. I double dog dare you or Lemley to such a challenge–even in a debate in public. You intelligent designers are hiding behind your vanity press “articles” to push your psychotic beliefs. Come back to the rational world.

  51. Just ask yourself Lemley’ites what is the emperical evidence for abstract and no structure?

    Let us just ask this (and Lemley I would double dog dare you to ever engage in a discussio with me. I will promise to be civil as I humilitate you):

    So, how can two machines that do not differ in structure perform different functions? How is that possible? That is what Lemley would have us believe. MM: by the way, has introduced the word “patentable” in front of structure in a pure intelligent design maneuver. But, MM that is just another fudge word like abstract isn’t it? No emperical embodiments to discuss. No method to apply. Just a wave of the hand and pronouncement that it has no structure. No weighing two structures together of actual embodiments and saying one is obvious over the other–nope just a wave of the hand. You are a joke MM.

    And, don’t miss it: intelligent design — we don’t care what is in the physical world we just know. Lemley’ite– we don’t care about embodiments of an invention we just know.

    You boys are nailed as the mystical medieval rabble that you are.

  52. I just watched an NPR account of the Intelligent Design trial. There is no doubt that Lemley is the Phillip E. Johnson of information processing.

    These words abstract, no structure, etc. simply are not reflective of patent law. The words of a claim should represent the scope of enablement of the invention. If too broad, find examples that are not enabled, and you can invalidate the claims. That is the science of patent law. What you can see in the real world. A real process that relies on actual embodiments of the invention. A real process that can be rationally considered.

    Lemley’ites rely on words that do not relate in any meaningful way to embodiements of the invention.

    Lemley’s attacks are also just plan irrational. They do not employ sciencetific methods. They do not employ ration processes. The Lemley’ites are the intelligent designers.

    I also think that this biased against information processing is part religeous. The people that are against information processing patents, have this palpable distain for information processing. There are numerous examples in the court record of comments the justices and judges have made that makes it clear they see information processing as a challenge to their seats of power. For example, Stevens comment that you just go hire someone to get some information processing task done; the comment made in the Federal Circuit of what are they going to patent next a program for writing briefs. There are many more examples that make it clear that there is something beyond rationale thought behind this behavior (and not just Lemley’s wallet.)

    MM: what you wrote is a representation of an invention — of a machine or method– just as your series of letters represents chemcial compounds. So, you have a machine sitting there diagnosing cancer from x-rays. How do you claim it? MM: you are an intelligent designer.

  53. A big problem with Lemley’s suggestion is that it creates incentives to hide the ball and create shorter disclosures, especially now that the best mode requirement is much reduced in significance (if not altogether gone). If I have to worry that every element will be construed under 122(f), there is a strong incentive to include only the minimal amount of technical information that will let me satisfy enablement/written description. Under the current system, including more information doesn’t usually hurt, and may help with enablement and fallback positions, among others. When in doubt, the current incentives are generally to include more. Under a new system as proposed by Lemley, disclosures would become shorter and harder to read, which goes against one of the main purposes of patents.

    As an aside, EFF likes measures that kill existing patents, not just limit or improve future ones. It seems that as a result, their main focus is on weakening patents during litigation, and what happens in the USPTO is of secondary significance in their calculus.

  54. Measuring thiopurine metabolites was not a simple matter like putting a light bulb into the socket.

    But have a look at the 1999 CAFC opinion in Amtel v Information storage devices. The claimed feature in an IC device was “high voltage generating means”. Voltage multiplier circuits were well known and were within the common general knowledge of a skilled person. But all that was shown was a simple black box without any description of specific structure in the box, and the CAFC held that this did not suffice. The patentees were saved because they had included a cross-reference with an informative title, but they had a very narrow escape.

  55. “If we opened the door to patenting movie plots, we’d see patent applications on movie plots.”
    Play with strawmen frequently?

    “Instead we open the door to patenting methods of distributing content … using a computer, where the content is different from the prior art content in some arbitrary hand-wavey fashion.”
    Show me that claim, and you’ll have something to gripe about. Until then, what’s spewing out of you is what is commonly found in a baby’s diaper.

    “Is there a source for your claim that there most infringement of software claims is ‘copying’?”
    If they aren’t original inventors then they are copiers. The software industry is known for its copying. Why create a 10000 line module from scratch when you can copy it from your past project/job/etc.? Copying is so prevalent in software becase it is easy to do. That is why the FOSS people get up in arms over patents … it prevents them from doing exactly what they want to do — which is copy code.

    “Who’s ‘you’?”
    From my personal experience, most people prefer free over paying for something. Maybe things are different over in your mom’s basement.

    “What else does EFF want to be ‘free’ of charge?”
    My guess is content.

    “Is there some manifesto you can cite to for the proposition that EFF wants “everything” to be free of charge?”
    link to eff.org

    I like the title of one paper … “How Not to Get Sued for File Sharing” or “Digital Rights Management: A failure in the developed world, a danger to the developing world.” Filing sharing??? Nothing untowards going on there. DRM … I wonder what that is used for??? It wouldn’t be for protecting content, would it? Why would EFF be against something that prevents people from getting content for free?????

  56. claimed in a fashion that distinguishes it structurally from a prior art manufacture

    Another blatant lie, given MM’s admission that ‘programmed to’ equals structure.

    It’s absolutely brilliant how he has conned Ned into thinking that he is brilliant (not really, as all that it takes is to agree with Ned’s agenda and you are automatically “brilliant.”)

  57. MM is simply having his @_$$ handed to him and you are simply too blind to see. What is so “brilliant” about blatant lying and getting pounded on all substantive points? As to the SC agreeing with him, you couldn’t be more off as even with the inane Prometheus aligning with his predicted result, MM is dead wrong on the legal reasoning and keeps on self-defeating; snatching defeat from the jaws of victory as it were.

  58. Almost anything you can implement in hardware, I can implement in software

    That’s nice.

    The issue is claims that merely recite “implementing” abstract transformations (e.g., converting digital “data” from one arbitrarily defined “type” into another arbitrarily defined “type”) without reciting a single novel structure necessary for that transformation to take place. I don’t care if you call such a claim “hardware” or “software” or “vaporware” or “grxbshlffware”, it’s a claim to an abstraction.

    And, yes, abstractions can be useful (e.g., a contractual relationship or a ranking of movie popularity) and people like to pay for them. It doesn’t make them any less abstract or any more worthy of patent protection.

    I’m not aware of ANYONE suggesting that a bona fide new computer, claimed in a fashion that distinguishes it structurally from a prior art manufacture, should be ineligible for patent protection. But if a new machine claim is distinguished from a prior art machine merely functionally, e.g., on the basis of what it does with information, then it belongs in the trash can, along with any other similarly defective claim.

  59. Almost anything you can implement in hardware, I can implement in software, and vice versa. This attempt to distinguish between hardware and software is kind of silly. It’s like claiming silicon layers are not patentable because a cut-across listing of the elements is hard to read, and doesn’t provide structure.

    The most notable feature of the anti-software camp is that they cling to the idea that you can distinguish software from hardware on any realistic basis. But they can’t specify the how.

  60. the big money anti business method/anti software, anti patent crowd!

    Reminds me: did you get your bonus check from the EFF, Ned? I had no idea it would be that huge. I can’t wait for the look on Gene’s face when he sees the awesome rims on my new beamer.

  61. Ned,

    Is it throwback and forget everything day?

    You are now returning to the Bilski and business method line of argument? Wasn’t it enough that I used the very article you presented on the difference between a holding and dicta to finally make you see what the actual holding was in Bilski, and that Stevens pathetic anti-business method screed was just ill-placed dicta?

    Why the return to agendas’ past?

  62. 101: you seem to agree that the Supreme Court requires that the software or programed computer be applied to produce a new and useful result. What you seem to not fully understand is that simply reciting a programmed Computer is not sufficient. What you also seem to not understand is that a business method is not a useful application. If it was, the Bilski claims would have been held to be eligible.

  63. LOL

    On the other thread I mentioned Ned’s propensity to diss the SC when misaligned and overly praise when aligned.

    Here, MM is being smoked and Ned thinks he is ‘on fire.’

    Ned – just not in the way you think; those blinders you wear make it seem like you are off again in a dreamworld as you surely are not in touch with this one.

  64. Leo, agreed.

    The problem with scope indefiniteness is not truly a functional claiming problem. It is also not a 101 problem. It is s 112 indefiniteness problem.

  65. Paul, I agree fully with Malcolm’s point. 112(f) is not a solution to a claim that When considered as a whole is not being applied to produce a new and useful result.

  66. KC, they are equivalent in an application. One tends to lose sight of the bigger picture.

    Considered this way, the issue was decided in Diehr where the application if a programmed computer to a conventional process was approved.

    But the Sophists start with this proposition and then extend it to any programmed computer for any application. This Is made possible if the claims are eligible because they recite a computer, not Because a computer is applied to useful application. This seems to be the position taken by Judge Rich long ago in Benson. It was rejected by the Supreme Court. But its advocates will simply not give up.

  67. Since you didn’t answer my question (no surprise there), let me rephrase it: in your opinion, is the following claim eligible under 101:

    1. A method for treating a patient comprising,

    determining the 6-TG levels in said patient using any old, conventional method,

    wherein if the 6-TG levels are lower than 260 mg/L, a need for a medical contract of $521-$614 month is indicated, and wherein if the 6-TG levels are greater than 510 mg/L, a need for a medical contract of $721-$826 month is indicated.

    Thanks.

  68. “It is inappropriate to dissect the claim into old and new elements and then to ignore the presence of the old elements in the analysis. This is particularly true in a process claim because a new combination of steps in a process may be patentable even though all the constituents of the combination were well known and in common use before the combination was made. The ‘novelty’ of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject matter of a claim falls within the § 101 categories of possibly patentable subject matter.”

    In light of the foregoing, this court holds that when— 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. It would undermine the intent of Congress to extend a judicially-crafted exception to the unqualified statutory eligibility criteria of § 101 beyond that which is “implicitly” excluded as a “fundamental truth” that is “free to all men and reserved exclusively to none.” Bilski II, 130 S. Ct. at 3225, 3230 (citations omitted); see also id. at 3226 (“This Court has ‘more than once cautioned that courts should not read into the patent laws limitations and conditions which the legislature has not expressed.’” (quoting Diehr, 450 U.S. 175, 182 (citation omitted))). Unless the single most reasonable understanding is that a claim is directed to nothing more than a fundamental truth or disembodied concept, with no limitations in the claim attaching that idea to a specific application, it is inappropriate to hold that the claim is directed to a patent ineligible “abstract idea” under 35 U.S.C. § 101. (CLS BANK v. ALICE CORPORATION 20 Id. at 188-89.2)

    And that my good friend MM, is ALL you need to know!

  69. you are attempting to quarantine

    Uh, no. There was no “attempt”. My 2:35 comments were and are, in fact, “quarantined”, quite plainly, to the points made by James Daily regarding the vast amount of money spent on patent acquisition by Apple and Google and James’ characterization of a statement of simple fact as “misleading”.

    Maybe you can dig up some data showing where, e.g., Genentech or Monsanto recently spent more of their annual budget purchasing patents than they did on R&D. That would strengthen your position.

    Or maybe you can find some data showing that Genentech spent more money on candy bars in its vending machines relative to potato chips. You’d probably be able to make some serious hay out of that. I’ve seen worse, that’s for sure.

  70. “As the Supreme Court has recently acknowledged, “too broad an interpretation of [the exceptions to § 101] could eviscerate patent law. For all inventions at some level embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Prometheus, 132 S. Ct. at 1293. Any claim can be stripped down, or simplified, removing all of its concrete limitations, until at its core, something that could be characterized as an abstract idea is revealed. But nothing in the Supreme Court’s precedent, nor in ours, allows a court to go hunting for abstractions by ignoring the concrete, palpable, tangible, and otherwise not abstract invention the patentee actually claims. It is fundamentally improper to paraphrase a claim in overly simplistic generalities in assessing whether the claim falls under the limited “abstract ideas” exception to patent eligibility under 35 U.S.C. § 101. Patent eligibility must be evaluated based on what the claims recite, not merely on the ideas upon which they are premised. In assessing patent eligibility, a court must consider the asserted claim as a whole. Diehr, 540 U.S. at 188.”

    Again, the Alice Panel is following the Prometheus Court and the Supreme Court to the letter of the law!

    I hope and pray the panel majority does not back down and Acquiesce to the big money anti business method/anti software, anti patent crowd!

    Let this case go the Supremes if need be!!

    It’s time to end the so called GD war!!!

    Right Ned?

  71. “The Diehr Court held that the claims were “not barred at the threshold by § 101” because they were “an application of a law of nature or mathematical formula to a known structure or process,” which “incorporate[d] in it a more efficient solution of the equation.” Id. at 187, 188.”

    Are the Alice claims not an application to a known structure and process!?!?!?!?!

    Is the Alice panel not following Diehr?!?!?!?!?!?

    Did the Prometheus Court not say Diehr was the case most on point for “is” patent eligible subject matter?!?!?!?!?!?

    Enough with this EFFn nonsense!

  72. (“[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.”).

    This can’t be stated enough. And it amounts to the core of every anti software and anti business method argument ever submitted to the courts.

  73. Lies such as

    How about your openly blatant lies, MM? How about those? Clearly, given your volunteered admissions, your agenda-peddling posts here are nothing but outright lies. What are thoughtful educated people going to do with your admissions and your outright lies?

  74. Oh yes, RS has intellectually B slapped MM silly. Reminds me of the NAL days!
    One thing for sure MM can’t blame this latest series of beating on AI or anon. Time to bring back Hans B., eh Mooney? :)

  75. if you repeat a lie enough it will become the truth

    Lies such as “logic is structure” for the purposes of meeting the requirements of 112P6 and other patent statutes have been repeated for quite a while now. Oddly enough, they have not quite yet reached the status of “truth” for many thoughtful, educated people. I wonder why.

  76. This is so true. In Prometheus the Court did look to see if the claims pre-empted the Law of Nature . But that was only because the claims were directed to a bare Court created judicial exception, in that case a law of nature.

    Please explain why the result would have been different if the step of thinking about a “law of nature” in Prometheus’ claims was replaced by a step of (1) “determining whether a contract for medical treatment should be signed” or (2) a step of “signing a contract for medical treatment.”

    Thanks.

  77. Do you realize that I’m talking specifically about patents to software and computer-implemented j–k and not patents generally?

    LOL – and you want me to keep up? The “pretty clueless mewling dolt” part fits because you don’t really get that the argument you are attempting to quarantine to “and computer-implemented j–k” applies to all IP.

    The insult fits – don’t like it? Stop the inane posts.

  78. kit instructions… Equally compelling.

    Yet another blatant lie. You have already admitted to understanding the difference in the printed matter doctrine exception – your posts to the contrary are thus inexcusable lies.

    Stop the lies.

  79. “[n]either the Supreme Court nor this [c]ourt has ever suggested that ‘preemption’ of a method or idea that is not a fundamental principle renders a patent claim invalid under section 101, nor that preemption is a separate step of the section 101 analysis if a claim has been determined not to be abstract,” id. 35-36.

    This is so true. In Prometheus the Court did look to see if the claims pre-empted the Law of Nature . But that was only because the claims were directed to a bare Court created judicial exception, in that case a law of nature.

    However, Alice’s claims do not begin with a bare Court created judicial exception, (derived implicitly from the Congressional Statute of 101) or the first element of the claim is not 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.

    Therefore post solution activity did no exist. And while it is a fact that the Prometheus Court performed “integration analysis” in view of Diehr, Alice was not required to do this because again, the Alice claims did not begin with nor were directed to a bare Court created judicial exception (derived implicitly from the Congressional Statute of 101) . Or as the Alice refers to it, manifestly evident. The claims begin with a strong presumption of Integration! Their EFFn brief is an EFFn lie!

  80. “Yet the Federal Circuit paid no heed when it issued ruled in CLS Bank v. Alice, all but ignoring the Supreme Court (for many of us court watchers, the Federal Circuit’s failure to address Mayo was shocking; even Judge Prost, in her dissent, admonished the majority for “fail[ing] to follow the Supreme Court’s instructions—not just in its holding, but more importantly in its approach.”)”

    Are Alice claims not “ limited to a particular practical and technological implementation,” which requires a particular series of concrete steps performed by an intermediary, id. 48-50; ?!?!?!?!?

    (see Research Corp. v. Microsoft Corp., 627 F.3d 859, 868-69 (Fed. Cir. 2010).

    With respect to its computer system and media claims, Alice argues that “computer systems are concrete machines, not abstract ideas,”

    Does anyone dare say differently? And if so by what scientific object evidence?!?!?!?!?!?

    Appellant Br. 23, and “[n]either this [c]ourt nor the Supreme Court has ever invalidated a claim to a computer system under 35 U.S.C. § 101,” id. 2.

    Is this not a fact? So how could the Federal Circuit in Alice not be following the Supreme Court?!?!?!?!?

    This EFF brief is a case of if you repeat a lie enough it will become the truth

  81. When properly understood, kit instructions are simply a medium for innovation just as circuits, gears, nuts, and bolts. To treat kit instructions differently is logically absurd.”

    Equally compelling.

  82. “The question is: is it a business strategy that “we” want to continue to encourage blindly? ”

    Do you realize what an inane question this is and how off your basic premise is?

    Do you realize that I’m talking specifically about patents to software and computer-implemented j–k and not patents generally? Try to keep up, anon.

    maybe … you are just plain anti-IP

    Nope. Nice try, though.

    you are just a pretty clueless mewling dolt?

    And there it is, like clockwork.

  83. RS: The explosion in litigation is really simple to explain. Lawsuits follow the money.

    Indeed. So do patent application filings. If we opened the door to patenting movie plots, we’d see patent applications on movie plots. Instead we open the door to patenting methods of distributing content … using a computer, where the content is different from the prior art content in some arbitrary hand-wavey fashion.

    There is an incredible amount of innovation followed by a considerable amount of infringement by copiers.

    Define “considerable”. Is there a source for your claim that there most infringement of software claims is “copying”? I’m just curious as to how you arrived at your belief.

    You want everything for free

    Who’s “you”? The EFF? What else does EFF want to be “free” of charge? Is there some manifesto you can cite to for the proposition that EFF wants “everything” to be free of charge?

  84. I am so looking forward to MM’s inane reply and [exquisite] beatdown on this thread too. I just wish he would remember the popcorn.

    I do hope that Really simple becomes a regular!

  85. Well, it certainly made it extremely difficult to discuss much of anything for a year or so

    LOL right back atcha.

    We still dont have real discussion – and much more so for the reasons I have pointed out, including outright blatant lies and people so vested with third party interests that no discussion on a rational basis is possible.

    So that’s the “new” major driver of “insipid” comments here.

    Wrong again – my witty banter is in response to the ever present insipid comments.

    I notice you didn’t answer my question: When will you stop with the blatant lies?

  86. The question is: is it a business strategy that “we” want to continue to encourage blindly?

    Do you realize what an inane question this is and how off your basic premise is?

    Then do you realize that this “adverse” business strategy is how all IP plays out – or maybe you do and you are just plain anti-IP….

    …or maybe you are just a pretty clueless mewling dolt?

  87. PC It does not matter under section 112(f) whether the relevant step is old or conventional or new

    Okay. I’m not sure why you are responding to me with a comment about 112(f) as 112(f) had nothing to do with the Supreme Court’s holding in Prometheus.

    But moving right along:

    It does not matter under section 112(f) whether the relevant step is old or conventional or new. If the step is specified in functional terms as here there must be acts in the description that supports the functional language

    Let’s be perfectly clear: are you suggesting, Paul, that if I claim a new method of wiring a room for an electric light and the method includes (1) a step enabling new function X and (2) an old step of “operatively inserting a light bulb into said socket” that my claim is equally defective under 112(f) if I don’t include “acts in the description” that “support” the step (1) OR step (2)? You really believe that, Paul?

    That seems to be what you are suggesting when you say it doesn’t matter if the functionally described step is old or new.

    Returning to the software issue, maybe you or someone else can give a compelling example of a computer executing a new step where that step isn’t distinguished from the prior art merely by the fact that the succession of ones and zeros being received, stored, processed, and/or transmitted by the computer have been given new name(s) by the applicant or by the fact that the identities of the transmitters/recipients of the information differ from the prior art. And then we can discuss what percentage of all applicants filed in this area are as compelling.

  88. For the first time in 2011, spending by both Apple and Google on patents exceeded the firms’ spending on new product research and development.

    This is misleading. The vast majority of that spending was on patent acquisition, not on litigation. The billions Apple and Google spent on acquiring patents from other companies effectively funded (directly or indirectly) research and development conducted by those other companies.

    There’s nothing at all “misleading” about the statement. The data reflects a change in the companies’ spending habits (a temporary change? we’ll have to wait and see).

    As for the alleged “indirect” “effective” funding of “R&D conducted by other companies”, that makes little sense and if, anything, is more misleading than the statement being objected to. The R&D was previously paid for by those “other companies”. The purchased patent applications were already filed (or granted). The researchers and developers had already been paid.

    Apple and Google bought intellectual property for their army of lawyer soldiers to conduct offensive/defensive maneuvers rather than, e.g., employ Americans to create new products or improve their old ones. It’s a business strategy. The question is: is it a business strategy that “we” want to continue to encourage blindly? Note that “we” includes more than the microscopic (and invariably well-off) portion of society who directly benefits from the existence of the Software Patent Casino.

    By the way, what percent of the money from those transactions went into the hands of “actual inventors” versus, say, the pockets of CEOs or Big Finance? Just for laughs, we might randomly select one of those patents and see how awesomely inventive the claims are and guess how much money went into the “development” of the “invention” (as opposed to the “development” of the patent application). Where is the list?

  89. Some select quotes from EFF’s brief:

    “Despite two recent Supreme Court cases on point, and at least eight recent cases before this Court, such guidance does not exist, particularly with regard to software or business method patents. This failure has helped foster a dangerous and dramatic increase in patent litigation over the last several years, especially involving those types of patents.”
    Wrong. The two SCOTUS cases were not on point – neither of them involved software. The explosion in litigation is really simple to explain. Lawsuits follow the money. Software and hardware that implements software is a booming industry (despite so-called evil patents). There is an incredible amount of innovation followed by a considerable amount of infringement by copiers. The lawsuits have nothing to do with uncertainty over 101.

    “Many of these software or business method patents are drafted in broad, purely functional language—often sounding abstract, with few if any non-functional claim terms (other than perhaps a ‘general purpose computer’)”
    An issue to be addressed under 35 USC 112, not 35 USC 101.

    “The recent increase in litigation over such patents has burdened the district courts, this Court, and litigants alike.”
    Infringers don’t like to pay license fees and don’t like to be sued. You want everything for free. … yeah we get it. Don’t we all.

    “These lawsuits burden innovators large and small: large companies such as Apple and Google now spend more money on patents than they do on research and development, and small innovators are often driven out of business by litigation costs.”
    As already mentioned above, very misleading. Apple and Google are BUYING technology via the patent suites they have obtained. Also, I would like to see a number placed on the number of “small innovators” that are drive out of business by litigation costs. Regardless, this is a policy argument that is not particular to software patents.

    “Simply put, the patent system is too often serving as a tax on innovation, when it should be spurring innovation.”
    The patent system is a tax on copiers. True innovators don’t need to pay that tax.

    “It has been estimated, for example, that a modern smartphone might implicate up to 250,000 patents—which could mean, in turn, the potential for 250,000 patent infringement claims, too many for even a well-resourced
    company to defend.”
    The same could be said about a modern computer microprocessor. However, I don’t see Intel, AMD and the like whining about it. Regardless, the evidence is that these 250,000 lawsuits have not happened or will ever happen. Sophisticated parties will do what they’ve done in other industries – create cross-licensing licenses (or similar vehicles) that greatly diminish the potential for litigation.

    “One crucial way to stem abuse by NPEs is to create incentives for those facing litigation (or litigation threats) to pursue their meritorious defenses of noninfringement and invalidity.”
    Reexamination has been available to invalidate patents for a few decades. Shop around and you can get a reexamination request out the door for under $20K.

  90. @ Ms Samuels

    Sadly your brief is largely, if not wholly irrelevant.

    The question before the CAFC is whether the subject matter claimed by Alice qualifies under 35 USC 101.

    The volume of software and business method litigation, the disproportionate burden on certain types of entity, the role of NPE’s and over-broad claiming, the need for prompt disposal and the 112(f) issue are all interesting background but are not relevant to the issue before the court.

    There may be widespread abuse going on (I express no view one way or another) That is, however, of no relevance to the determination of a just outcome in this particular case.

  91. “Manifestly this is a step + function feature”

    Really? What is the step and what is the function? Go ahead and write them out separately.

  92. @MM

    It does not matter under section 112(f) whether the relevant step is old or conventional or new. If the step is specified in functional terms as here there must be acts in the description that supports the functional language. If not then the disclosure is fatally deficient. There has been a succession of decisions of this type on software, and the identical reasoning applies to process steps.

  93. When will you stop with the blatant lies?

    If Dennis thinks I’m habitually posting “blatant lies” he’s free to discuss that with me … exactly like he discussed the fact that you abused sockpuppets for years to complain about a “vocal minority” while at the same time you were this blog’s most prolific commenter. Remember that?

    I do.

    “sockpuppetry” is not the driver for the insipidly low quality conversations on this blog and never has been

    Well, it certainly made it extremely difficult to discuss much of anything for a year or so (coincidentally, the same period of time that Prometheus was decided as I predicted it would be, 9-0, much to your chagrin). Other than you, I don’t think anyone would like to see the return of your sockpuppets.

    Now, instead of using sockpuppets to drive-by and unleash your nonsensical insults of me, Ned, and LB, you simply do so under your “anon” pseudoynm. So that’s the “new” major driver of “insipid” comments here. Congratulations!

    I’ve upheld my end

    LOL.

  94. “When properly understood, software is simply a medium for innovation just as circuits, gears, nuts, and bolts. To treat software differently is logically absurd.”

    Makes sense to me,

  95. Oh I do post in insults that’s for sure – but mainly I save them for those who deserve them. As opposed to say, oh, cancer survivors or first time posters, or anyone who disagreees with MM’s vapid views.

    As I have mentioned before, “sockpuppetry” is not the driver for the insipidly low quality conversations on this blog and never has been. Speaking of changes – I’ve upheld my end, how about you? When will you stop with the blatant lies?

  96. your actual intellect.

    LOL. I really don’t want to spoil your fun, anon, but you do realize that since your relentless sockpuppetry was curtailed by Dennis it’s pretty easy for everyone to see which commenter here “posts mainly in insults.”

    It’s you. Do you need hard numbers? I’m pretty sure the rest of us don’t need any further convincing.

  97. Hello MM:

    Why did you cut and run away from the discussion on “Integration Analysis?

    Especially after I answered your question.

  98. Software has no structure according to you Lemley. Right?

    It’s not just Lemley who argues that software lacks patentable “structure”. A lot of patent attorneys and a lot of computer programmers/scientists agree with him.

    Check this out:

    18388101001483ANBffD82801001034EDffDW828342834823472DggFE27427248281000104khj283482

    Patent-worthy structure? What if I tell you it “encodes” “useful” instructions for computer capable of reading them? Patent-worthy? What if I tell you specifically what those instructions are? Patent-worthy?

    The idea that software does not comprises patentable “structure” is hardly a radical proposition. Most honest people would agree that there is no more “structure” to software than there is for a “method of arguing a point” or a “method for developing a plot in a movie”. Or should such “structures” also be patentable in your ideal world?

    The most notable features of the pro-software lobbyists are extreme paranoia, an excess of hot air, a tendency towards dishonesty and “looking the other way” when it comes to discussing patents and patent law, and (of course) inevitable cluelessness about how silly they look trying to defend the worst aspects of a failed patent system. The pro-software lobbyists remind me a lot of the NRA, except the NRA tends to be a bit more grounded in reality, more transparent and more liberal. But they both have a friend in the reknowned deep-thinker Dana Rohrabacher (R-CA).

  99. Oh, I think we agree on a lot more than that – but you are not intellectually honest enough to deal with the law and facts as they are (to wit, we agree on both your understanding of current law in relation to the critical exceptions to the printed matter doctrine as well as the fact that “configured to” is structural language).

    We also seem to agree on your lack of content generally, as you are perfectly fine with acquiescing that point and only want to discuss editing.

    I think we also agree that it svcks to be you.

  100. LOL – more self defeat, as clearly an editor might be nice, but totally unnecessary for blog posts – and you don’t come close to the substantive content that I deliver.

    As they say, svcks to be you.

  101. LOL that’s some serious QQ there MM. Still feeling slighted and wanting to be an elitist, aren’t you?

    Your ego just doesn’t match your actual intellect. No wonder you are so bitter and vacuous and post mainly in insults and avoid the (burning) substantive comments. Last time you ventured there you volunteered some great admissions that shoot the crrp out of your own “policy” positions.

    Do treat us to some more, please.

  102. they will come for you if they get software.

    Assuming you’re referring to chem/bio practitioners, “they” came for “me” many, many years ago already.

    As noted many times before, this is why I can very easily invent, draft, prosecute and obtain grants to new computer-implemented inventions with only a few (completely unnecessary) years experience in high school programming computers.

    I would suggest you consider the likelihood that someone like you could invent and obtain a patent on, e.g., a new recombinant protein. Our patent system (and every other grown-up patent system in the world) is set up to prevent you from doing that. The opposite is true is computer-implemented inventions.

    Anybody can write a new “algorithm” for converting information X into information Y that’s useful for (you guessed it!) converting information X into informtion Y. As it’s set up now, the system allows you to simply invent new names for the information going and coming out and voila! here’s your patent. Or worse, the Examiners forget to breathe through their nose and they swallow ridiculous b–c–p like “monitoring what shows aren’t watched is completely different from monitoring what shows are watched” and similar nonsense.

  103. Better editing, please.

    LOL.

    It is very telling to your typical lack of content to think that this is an “editing” problem.

  104. Feeling safe and distant right now, MM? But, they will come for you if they get software. You are on the list. But, do continue to be a good German.

  105. I hope EFF’s brief is better than this.

    I have to agree with that, LB, for the exact reasons you pointed out. Better editing, please.

  106. Paul Cole continues his endless dissembling on Prometheus:

    Manifestly this is a step + function feature and should be construed to cover the acts described in the specification and equivalents thereof.

    Manifestly it’s an old conventional step, as admitted in the specification.

    the opinion of Breyer J which includes no explicit section dealing with the construction of the claim.

    There was no dispute between the parties that (1) the determining step was old and conventional and (2) the claim was infringed by the act of determining 6-TG levels then merely thinking about the relationship between the TG levels and the “new correlation” published in the application.

    No further “construction” was needed at that point, as a claim that is infringed by practicing a prior art step and thinking about a “new natural phenomenon” is effectively a claim to the “new natural phenomenon” itself. This is an extremely straightforward result, entirely predictable, and entirely just. Also 9-0 — it’s not just Breyer.

    the omnishambles that in my opinion it is.

    The only omnishambles is your sad record commenting on Prometheus, Paul. Maybe take a vacation and think it through for a while.

  107. we can apply the (bio)chem analogy that all chemical compositions are per se obvious, given that there is no real innovative chemical bonding going on, and the individual atoms are all “conventional.”

    PLEASE RUN WITH THIS BRILLIANT IDEA!!!

  108. Well, that is just it anon. The reality is that the problems with grapple with in software are the same in mechanical and biotech patents.

    I think the problem is that there are people like Lemley around that get money to put forward these arguments. Rather than someone like Lemley coming out with a policy based argument and sticking to an honest argument with integrity, we get the Lemley’ites telling us that software has no structure, and other such rot.

  109. When properly understood, software is simply a medium for innovation just as circuits, gears, nuts, and bolts. To treat software differently is logically absurd.

    Or we can apply the (bio)chem analogy that all chemical compositions are per se obvious, given that there is no real innovative chemical bonding going on, and the individual atoms are all “conventional.”

  110. What is lacking is the awareness that in a free market economy patent “protection” is the exception to the rule of freedom of competition, thus should be provided only if and when needed

    An offshoot of the canard of “but only.”

    But d_mm-it-all-to-h311, the constitution provides the power and Congress has already spoken.

    Well, you are always allowed to have a policy discussion about it…

  111. I hope EFF’s brief is better than this. Some of this commentary is awfully conclusory. For example, “As currently interpreted, § 101 leaves parties unable to discern a patent’s metes and bounds or assess its validity, making inadvertent infringement an unfortunate cost of doing business.“. What does 101 have to do with the patent’s “metes and bounds”?

    And I’d like to know what supports this: “These statistics are a direct result of the legal instability surrounding § 101.”

    The 112(f) discussion is interesting, though – there’s not much in patent law that makes me lose sleep, but the prospect of the Federal Circuit someday declaring a “processor configured to” claim as a means-plus-function has bothered me for years. The problem (as I see it) is that this will simply shift the battleground to an argument about how much structure/algorithm is enough.

  112. James, if you are going to bring real empirical facts into this discussion then the Lemley’ites will have nothing to talk about.

    They don’t care about facts or the law.

    (just remember that the core of this is from the SCOTUS remark about pre-heating air before putting it into a furnance. Lemley is right on it and puts out vaniety press writings hoping the SCOTUS will pick up on it.)

  113. There is nothing novel about the application of 35 USC 112(f) [as it now is] to process claims.

    In Prometheus the following language appeared in the claim in issue

    “determining the level of 6-thioguanine in said subject having said immune-mediated gastrointestinal disorder”

    Manifestly this is a step + function feature and should be construed to cover the acts described in the specification and equivalents thereof. Reference to the Prometheus specification reveals that the acts involved in determining the level of 6-thioguanine are technical and are set out in considerable detail. However, this is not considered in the opinion of Breyer J which includes no explicit section dealing with the construction of the claim. Without proper construction, how can any tribunal determine whether it defines patentable subject-matter or not? The omission of proper claim construction is another reason for regarding the Prometheus decision as the omnishambles that in my opinion it is.

    [For the benefit of US readers, the word "omnishambles" has been coined by the UK press to describe our Government's 2012 budget, and if it has not yet crossed the Pond, it clearly deserves to as it is so apt in relation to certain actions of government and other bodies].

  114. When properly understood, software is simply a medium for innovation just as circuits, gears, nuts, and bolts. To treat software differently is logically absurd.

    The reason the number of software patents and related law suits have increased has nothing to do with 101 uncertainty and all to do with the fact that software did not become a significant medium of innovative choice until the mid- to late 1990′s when processing speed, cheap memory, and new high level languages made innovation using the software medium more practical and accessible.

    Those who oppose software related patents are simply opposed to patents in general, most likely have never worked for an innovative for-profit company, and, thus, most likely do not understand the economics of R&D and innovative businesses in general.

  115. For the first time in 2011, spending by both Apple and Google on patents exceeded the firms’ spending on new product research and development.

    This is misleading. The vast majority of that spending was on patent acquisition, not on litigation. The billions Apple and Google spent on acquiring patents from other companies effectively funded (directly or indirectly) research and development conducted by those other companies.

    The true problem of (“pure”) software patents is the “complex product problem” a.k.a. the “tragedy of the anticommons” that makes them useless and even detrimental to innovation

    The problem is that, empirically, this simply hasn’t happened. Case in point: smartphones. Despite being covered by thousands of patents on hardware and software owned by dozens of different companies, you can buy an unlocked smartphone for a few hundred dollars just like any other product off the shelf. And there are several major varieties to choose from offered by a dozen or so manufacturers. And the development of smartphone technology has continued at a blistering pace for a decade or more.

    The same is true of regular computers, biotech, and really any other industry you care to name. The “complex product problem” simply isn’t a significant issue in practice.

  116. You know, I am one skilled in the art of computer science. I have taught classes at the university level.

    This is nonsense. What this type of behavior is going to do is make it much more expensive to write a software application and put it out of reach of all but the wealthy corporations.

    Just ask yourself what is enabled to one of ordinary skill in the art. What structures? It is very hard to read anything by Lemley or a Lemley’ite as they are obviously misrepresenting software intentionally.

    What you are also doing is launching these attacks that make it harder to find a real solution to some real problems. You are the problem–Lemley. You and your ilk by blowing smoke and launching attacks that intentionally play on the ignorance of the judges.

    Software has no structure according to you Lemley. Right? So, I think you are not worthy of having an opinion. Your writings in the vanity press mean nothing. (What a joke to call it a law journal article. Call it what it is. A vanity press published ramblings by a person paid to kill software patents.)

  117. There speaks a man who is not dependent for his living on the paid work of writing, filing prosecuting or asserting software patents, and is not dreaming of hitting the jackpot when deep pockets are caught performing within the scope of his “duly issued” claims.

    But manifestly he’s got an axe to grind, all the same.

  118. The problem with their suggestion is that the Fed. Cir. is disinclined to apply 112, paragraph 6, unless clearly invoked. See FLO HEALTHCARE SOLUTIONS, LLC v. Kappos, (decided October 23, 2012). So basically, if the claims do not recite “means” the Fed. Cir. places a strong presumption that 112, paragraph 6, does not apply. The Board, however, is more inclined to find the presumption against mean-plus-function treatment overcome. See Ex parte Rodriguez, Appeal 2008-000693 (Precedential Opinion from the BPAI). Interesting, the invention at issue in Ex parte Rodriguez was a software-ish patent.

  119. CLS Bank v. Alice and Bilski are not really software patent cases but business method patent cases.

    What is lacking is the awareness that in a free market economy patent “protection” is the exception to the rule of freedom of competition, thus should be provided only if and when needed. Patents are no reward for brain work in general. Patents stem from age-old privilege systems and still show signs of those systems.

    From this perception, business method patents are rediculous, or North-Korean, to be friendly.

    The true problem of (“pure”) software patents is the “complex product problem” a.k.a. the “tragedy of the anticommons” that makes them useless and even detrimental to innovation, and lends them to “strategic” patenting and “patent wars”.

  120. Now Julie Samuels, where does a person of ordinary skill fit into this? How about that thing called enablement?

    Or, is what you are saying is the following: (1) look at the patent disclosure, (2) pick out the parts that appear to be relevant, and (3) then have a judge narrow the patent down without regard to a person having ordinary skilled in the art just because we don’t like you.

    You Lemley’ites kill me in your never ending ability to dream up new ways to circumvent the law to get your way.

    Just focus Lemley’ite on enablement. What does the disclosure enable? Are the scope of the claims beyond what is enabled?

    This bizarre attempt at hamstrining all software patents is just—well—obviously nothing more than an amoral attempt to hamstring software patents.

  121. shhhh! You’re not supposed to point that out. You’ll ruin the whole “patents are bad” mantra.

  122. “From 200-2002, NPE litigation accounting for only about five percent of patent litigation;[1] in 2007 that figure was 22 percent and in 2011 it was 40 percent.[2]”

    Why is this a problem? It is often the only way for an inventor to cover the millions needed to enforce a patent.

  123. So as software becomes more and more important to our economy and innovation, the number of software patents and software patent based lawsuits has increased. No way!

    So they’re against innovation or against a growing economy? Either way, I think I’m on the other side of that.

  124. Consider the sources: both Bessen and Chien have been shown to have anti-patent bias. And Lemley is about as anti-patent shlock as they come.

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