By Dennis Crouch
Alexsam, Inc. v. IDT Corp. (Fed. Cir. 2013)
I recently posted on Alexsam’s pending litigation in the Eastern District of Texas. In that case, the jury sided with the patentee Alexsam and rejected the defendants’ arguments that the patent was invalid. The appeal here involves the same patents directed to a system for activating gift cards at the time that they are purchased. See U.S. Patent No. 6,000,608. The most interesting aspect of the decision comes from Judge Mayer’s dissent where he argued that asserted patent claims “disclose nothing more than an abstract idea for making a business run more efficiently, thereby failing to meet the subject matter eligibility requirements set forth in 35 U.S.C. § 101.”
The claim issue (Claim 57) reads as follows:
A multifunction card system comprising:
a. at least one card having a unique identification number encoded on it, said identification number comprising a bank identification number approved by the American Banking Association for use in a banking network;
b. a transaction processor receiving card activation data from an unmodified existing standard retail point-of-sale device, said card activation data including said unique identification number;
c. a processing hub receiving directly or indirectly said activation data from said transaction processor; and
d. said processing hub activating an account corresponding to the unique identification number, thereby permitting later access to said account.
To reach his conclusion that the claim fails to disclose eligible subject matter, Judge Mayer first began by identifying the core inventive concept of the claim. Here, the idea behind the patent is that it allows a card to be activated by swiping it through the terminal used for processing credit card transactions rather than having a dedicated activation terminal. The benefit of that approach is that no special equipment is needed for activating gift cards and the patent application states that no new technology is required in order to allow standard point-of-sale devices to activate gift cards.
The way Judge Mayer describes this setup immediately raises novelty and obviousness concerns in my mind. Indeed, Judge Mayer writes that the case “presents the anomalous situation in which a patentee attempts to preserve the validity of his claims by arguing that they contain nothing new.” Ordinarily, when patent claims “contain nothing new,” they are found invalid for lacking novelty or nonobviousness. Indeed, millions of patent claims are rejected each year by the USPTO for this very reason. And, the primary thrust of the US patent examination system is to ensure that patents are only issued for inventions that are sufficiently new. In this case, the defendants argued that claims were obvious and anticipated as a matter of law. However, instead of addressing that issue that was actually appealed, Judge Mayer focused on the Subject Matter Eligibility that was not raised on appeal – seeing subject matter eligibility as a threshold issue that must be decided first:
Whether claims are directed to statutory subject matter is a “threshold” question, Bilski v. Kappos, 130 S. Ct. 3218, 3225 (2010), which must be addressed before this court can consider subordinate issues related to obviousness and infringement. See Parker v. Flook, 437 U.S. 584, 593 (1978) (“Flook”) (emphasizing that “[t]he obligation to determine what type of discovery is sought to be patented” so as to determine whether it falls within the ambit of section 101 “must precede the determination of whether that discovery is, in fact, new or obvious” (emphasis added)); In re Comiskey, 554 F.3d 967, 973 (Fed. Cir. 2009) (“Only if the requirements of § 101 are satisfied is the inventor allowed to pass through to the other requirements for patentability, such as novelty under § 102 and . . . non-obviousness under § 103.” (citations and internal quotation marks omitted)).
In our 2010 article, Professor Robert Merges and I argued that the law does not require the “threshold” question be decided in any particular order. See Dennis Crouch & Robert P. Merges, Operating Efficiently Post-Bilski by Ordering Patent Doctrine Decision-Making, 25 Berkeley Tech. L.J. 1673 (2010). Indeed, thresholds are crossed all throughout a journey. Judge Mayer is in the minority on this point of doctrinal ordering. Although rejecting some of our arguments, the CLS Bank plurality opinion agreed with Merges and myself that “district courts may exercise their discretion to begin elsewhere when they perceive that another section of the Patent Act might provide a clearer and more expeditious path to resolving a dispute.” (Citing Merges & Crouch).
The second major problem with Judge Mayer’s dissent is the implicit ruling that Subject Matter Eligibility is not waivable and instead should be raised sua sponte by an appellate court. Here, the §101 eligibility question was not raised by the defendant-appellants in the appeal, nor were they discussed in oral arguments. In the past, both Judges Mayer and Dyk have raised §101 issues sua sponte on appeal — essentially finding that subject matter eligibility questions are on par with the issue of a court’s subject matter jurisdiction.
Finally, Judge Mayer’s decision highlights the failure the CLS Bank decision – because there was no majority opinion in that case, Judge Mayer did not feel the need to even cite that recent pronouncement by the court that directly relates to the case at hand.
= = = = =
Sanctions: The district court awarded sanctions to the patentee for the defendants’ litigation misconduct in failing to provide to satisfy the appropriate discovery requests regarding the accused systems. The sanction was quite harsh. In particular, the district court deemed several accused systems were infringing as a sanction for ITD’s failure to disclose the fact that its cards contain BINs in their card numbers. On appeal, the Federal Circuit affirmed the sanction. I suspect that the “Patent Abuse Reduction Act” would further embolden accused infringers to play discovery games by avoiding disclosing key information or admitting key facts that would greatly simplify the litigation.
= = = = =
Unpaid License Still a License: Some of IDTs systems use the MasterCard computer network. That is important because MasterCard has obtained a license from Alexsam to practice the invention. The agreement specifically states that other parties (such as IDT) that are using the MasterCard computer network will be “deemed sublicensed under an implied sublicense.” As part of the agreement, MasterCard is also required to report the total number of licensed transactions to Alexsam at the end of each month, and to pay a fee for each transaction. In this case, however, MasterCard never reported IDT as a sublicensee or paid the required royalties. On appeal, the Federal Circuit agreed with IDT that the MasterCard related sales were licensed and that IDT is therefore not liable for those. In reaching its conclusions, the court noted that the MasterCard agreement did not condition the sublicense on payment of the royalties. Further, the court the cited to its decision in Tessera, Inc. v. Int’l Trade Comm’n, No. 2010-1176, 2011 WL 1944067 (Fed. Cir. 2011) where it held that failure to pay royalties “did not convert authorized sales into unauthorized sales.”
= = = = =
Judge Posner says: anon, and 101 engineers naturally invent and do not need incentives. Most engineers do not concern themselves with monetary gain. They are motivated by curiosity and make small step-wise improvements.
He completely ignores reality in that large scale Big Corp can afford to compete with less efficient processes on sheer size and raw existing and established market power.
Patents naturally favor the small organization due to the power of game changing capability being captured in a single – and fully alienable property.
This is how the Left (Malcolm) sleeps with the Right (Big Corp)- and the cancer eats his soul the whole time.
MM: “Aren’t inefficient businesses supposed to be put out of business by more efficient businesses because the more efficient businesses provide better value to the consumer?”
Not if a new entrepreneur can’t go into business in the first place with its more efficient process because it can’t get the funding that a patent on the more efficient process would provide.
Any other bright ideas?
Crickets Chirping
Night: “101, I think you present the current law extremely well.”
101 Integration Expert: Thank you very much
Night: I do think that the law is outrageous.
101 Integration Expert: Agreed 100% !
Leopold Bloom: ” If claim 4 wasn’t there, how would we know whether Bilski’s claim 1 is patent eligible or not?”
By determining, with the Courts analysis, if the Intellectual Concept is “integrated” into the process as a whole.
To get a better understanding of how that analysis plays out please see my post at Jun 13, 2013 at 05:39 AM.
Ned: “you do not say “why” hedging is abstract.”
Because it exist only in the mind. Apply it, and integrate it, and you may have a patent eligible invention.
So Ned tell me how something can be so broad as to be abstract and yet you can’t find any prior art to invalidate it?
How can that be? Ned the paid boy says “conflating”. So, you think abstract and broad are different?
There just is no rhyme or reason dealing with you lot. No morals. No ethics. No conscious. Just get what you can, lie as you can, fabricate as you can. Welcome Wall Street Bankers to patent law.
But none the less, the Court deemed Bilsk’s method abstract because it was an attempt to claim a mathematical equation, as evidenced by claim 4.
If claim 4 wasn’t there, how would we know whether Bilski’s claim 1 is patent eligible or not?
And, Obama has proven himself to one of the ones dragging us into third world status. What has Obama done? He complained about patents and rather than trying to get legislation passed, he decided to side with the end justifies the means crowd (Lemley) and just put his stamp of approval on their lies. What does this do? It is another step to no laws and no rules. No constitution.
But my tiny brained friends here on this board probably won’t understand why this is so. Obama acting outside the rule of law.
Broad? Conflating are we?
Something ineligible cannot be preempted. But something eligible can.
In Bilski, the preemption was of hedging. Hedging was ineligible. But “why?”
Why is hedging abstract?
Buy you do not say “why” hedging is abstract.
Sent from Windows Mail
Of course the problem is that we have as a president Obama (who I voted for twice). But, he is really a bum.
And he has appointed two of the worst justices in modern history for patent law.
I agree anon. These are instructions to a machine after all. I think that you have to read Haliburton to understand how some of the legal basis that is being used got started. But, the public policy reason in Haliburton no longer is valid. The methods are themselves being invented with no machines. The methods are the machines in Haliburton.
And, in fact anon, one way to tell that not only is there no legal basis but that the arguments being used are absurd is the fact that you can apply the arguments to anything to exclude it from eligibility. The use of these collective abstract nouns is a good indication that a judge is up to no good.
I do think that Lourie, Stern, Lemley, are sociopaths. They obviously believe that the end justifies the means. They are in effect trying to act like a court of equity, but they are doing it based on their on judgments despite the Congressional intent and Congress recently passing the AIA. It is really the type of behavior you see in the third world that leads to the end of governments. Here, the action probably won’t have such severe consequences, but they are sociopaths.
The word ‘chair’ is an intellectual concept.
The word ‘[______]’ (fill in the blank with anything) is an intellectual concept.
Word.
The software is maths crowd converges with the software is like a novel crowd, but both miss the point that software is a man-made object, created for a functional purpose (utility), and it is precisely this aspect that is being sought protection under patent law, and it is precisely this aspect that patent law is meant to protect.
If you quell the billows of dust being kicked up, you will see that there is NO LEGAL BASIS for this crusade against software patents. Plenty of FUD by those behind the curtain, though.
101, I think you present the current law extremely well.
I do think that the law is outrageous. This whole business of linking math to natural laws and to this new catgory of “intellectual concept” is fundamentally flawed. The fact is these methods are information processing methods. And, consider hedging, for example. If you were the first person to come up with the idea of hedging and wrote a method of information processing to use hedging you should be able to patent it.
The fact is that “intellectual concept” is a worm word that can bloat to encapsulate anything. Abstract can bloat to encapsulate anything.
You know, the fact is that I could represent a chair with mathematical equations and say that the chair is nothing more than a application of my mathematical equations and an attempt to pre-empt all uses of the mathematical equations.
Oh well….no time for this.
D@mmit Jim, I’m a doctor, not a merry-go-round operator.
(said in the best Dr. McCoy tones)
101 said it well. I think that your proposition that there is an abstract idea that can’t be invalidated with 102 or 103 is most likely wrong, and with even a moment’s thought, absurd.
So, what you and Rader and the SCOTUS are saying is that somehow or another someone has claimed an abstract idea (massively broad) and you can’t find any prior art for it? Mind boggling that such an argument flies at the SCOTUS. Hello third world.
Ned: “If the novel subject matter is ineligible, and it is not integrated into the claim as a whole, then, even though it might be nonobvious, it nevertheless is not Eligible subject matter. ”
Ned, what you have written here is confusing, conflating, and conflicting with the law, [ especially regarding “integration” ] and simply has never been so held by any case before the Supreme Court of the United States of America.
If we go by Diehr, and the most recent interpretation of that case in Prometheus, then the correct view of “integration” is as follows:
If the LoN, Natural Phenomenon, or Intellectual Concept is “integrated” into the process as a whole, the process is transformed into an inventive application of the LoN, Natural Phenomenon, or Intellectual Concept described in the claims and/or specification, and thus passes 101.
The exception to this would be if the LoN, Natural Phenomenon, or Intellectual Concept is merely represented by a mathematical equation or formula, because such a claim would in effect be a claim on the LoN, Natural Phenomenon, or Intellectual Concept itself.
In such a special case, in addition to the mathematical equation or formula, the claim would need at least one additional step that limited the process so that the claims as a whole did not pre-empt the LoN, Natural Phenomenon, or Intellectual Concept. Furthermore, if the additional step(s) were added and the LoN, Natural Phenomenon, or Intellectual Concept itself were still pre-empted by the claim as a whole, the additional steps would be counted as extra-solution activity, and the claims would still fail 101.
Hey Night, I have an idea. Why don’t you tell us what an abstract idea is and why the claims in Bilksi were deemed abstract by Rader?
::sigh::
Raders views are irrelevant since the Supreme Court ultimately ruled and made it clear to everyone what the law is in this area. Some clearly choose not to see it because the outcome conflicts with their agenda. But none the less, the Court deemed Bilsk’s method abstract because it was an attempt to claim a mathematical equation, as evidenced by claim 4. The Court has ruled that a mathematical equation, or formula, that is representative of a law of nature, physical phenomenon, scientific truth, or intellectual concept can’t be the subject of a patent because such a claim would amount to a patent on the law of nature, physical phenomenon, scientific truth or intellectual concept itself, which are the basic tools of scientific and technological work.
See, Le Roy v. Tatham, 14 How. 156, 175, Funk Bros. Seed Co. v. Kalo Co., 333 U.S. 127, 130, Benson [409 U.S. 63, 68].
Bilski’s claim amounted to a claim on the scientific method and intellectual concept of Hedging, which is considered abstract even when reduced to math, or especially so.
But as the Court in Bilski told you, a process is an independent section in 101 and therefore is not of itself abstract. See the Court stating, “§100(b) already explicitly defines “process,” see Burgess v. United States, 553 U. S. 124, 130, and nothing about the section’s inclusion of those other categories suggests that a “process” must be tied to one of them.”
And a business method is simply a method or process under the statute in 101 and has not been made ineligible by congress.
Again, see the Court stating:, “Section 101 similarly precludes the broad contention that the term “process” categorically excludes business methods.”
Therefore you can’t call business methods abstract per se. Same applies to software.
This has been explained to you many times Ned. And of course you will ignore everything I said and continue to ask the question as if it has not been answered, because the answer conflicts with your agenda.
Bzzzzt.
Promote the progress.
Ring a bell?
This claptrap of yours at 7:08 falls to your (failed) mantra of ‘but for.’ and some type of compensation/incentivization crrpola.
Business methods have been amongst the useful arts throughout the history of the USPTO, and have only accelerated as the Deming et al approach took ahold of business in the 20th century.
What’s m0r0nic is thinking that your thinking is sufficient or even close to what the law really is.
the idea in question makes a business run more efficiently
I thought capitalism was our country’s answer to promoting “efficiency in business.” Aren’t inefficient businesses supposed to be put out of business by more efficient businesses because the more efficient businesses provide better value to the consumer? Why are rewarding businesses with patents merely for doing what businesses are supposed to be doing through competition with other businesses (i.e., running a more efficient business)?
What in the world is the point of giving a bank (or anyone else) a patent on an improved method of “providing greater returns to depositors”?
I see good reasons to give patents on new machines and compositions that consumers can decide to buy or not (and companies can compete with each other to improve) … but on methods of extracting money from consumers? Maximizing profit? That’s m0r0nic.
Hey Night, I have an idea. Why don’t you tell us what an abstract idea is and why the claims in Bilksi were deemed abstract by Rader? Check his dissent in In re Bilski to see if he made his views clear.
But what, in your view, is an ineligible abstract ideas and why were the Bilski claims abstract?
I was referring to Rader’s dissent in In re Bilski.
Yes, they relied on Rader's but really blew it didn't they?
Raider defined abstract idea as follows:
"Furthermore, abstract ideas can never qualify for patent protection because the act intense, as section 101 explains, to provide "useful" technology. An abstract idea must be applied to (transformed into) a practical use before qualifies for protection.
Sent from iPhone
“Les, your post illustrates the very reason the Supremes think 103 is inadequate to address 101 issues. ”
What? I wish. What rulings are you reading? I haven’t seen any Supreme Court “101” ruling that was not based on the bizarre reasoning such as the method is not a method because it is hedging and hedging is old.
anon: “1) perfectly eligible claims can be composed only of all old steps.”
101 Integration Expert: This is correct.
anon: Such a claim, then, cannot fail because of an additional (integrated) limitation of a new thought is added.
101 Integration Expert: This is correct.
anon: Malcolm’s ‘theory’ would hold otherwise on a purely per se basis.
101 Integration Expert: Then Malcom’s theory is in conflict with the law. Perhaps that is why no Court, no Judge, not even a guest commenter on Patently O has ever recognized or validated his theory.
anon: instead, he would twist controlling law and misrepresent that any such claim is simply looked at as if the mental step did not exist at all.
101 Integration Expert: That ( and please, moderators, don’t ban me for saying this) but that would be in-sane.
He has also failed repeatedly to provide answers or address two other situations:
1) perfectly eligible claims can be composed only of all old steps. Such a claim, then, cannot fail because of an additional (integrated) limitation of a new thought is added. Malcolm’s ‘theory’ would hold otherwise on a purely per se basis.
2) Malcolm has never acknowledged controlling law as pertains to the patent eligiblity of claims that have mental steps as elements – instead, he would twist controlling law and misrepresent that any such claim is simply looked at as if the mental step did not exist at all.
His ‘theory’ is imsply incongruent with these items.
Yet, on he runs his mouth…
C’est la Vie
AAA JJ: “As much as you love to think that Prometheus prevents “thinking a new thought about an old fact” that is not what the court ruled in the case.”
You are correct AAA JJ. Malcolm Mooney, AKA MM, will not respond any further now that you have debunked his often debunked mental steps theories. The one fact MM will never address regarding Prometheus is that the Court said:
“n Diehr, the overall process was patent eligible because of the way the additional steps of the process [integrated] the equation into the process as a whole. 450 U. S., at 187. These additional steps transformed the process into an inventive application of the formula. ) [MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC 566 U. S. (2012) 3 Syllabus] (Emphasis Added)
Mooney has failed time and time again to reconcile his various old step new thought dissection theories with the Courts “Integration Analysis”. Thats because even an element or step that is old, or in isolation ineligible, will not make the claims as a whole ineligible as long as the old, or ineligible step is ‘integrated” into the process as a whole.
No abstract idea can make a business run more efficiently. However,
an application of an abstract idea most certainly can. So if it is
true, as Judge Mayer claims, that the idea in question makes a
business run more efficiently, than the idea has been applied and is
no longer abstract.
I like this part of “seeing” Benson (and yes, it is likewise something to which the absence of your comments screams loudly):
“It is said that the decision precludes a patent for any program servicing a computer. We do not so hold.”
409 U.S. 63; 71
Please Ned, please please please please – let’s engage in more than mere ‘platitudes.’
And please – as I have asked so many times – leave out the canard of music already. See my admonitions of INANE today.
“You say that, and you try to make an artificial distinction based thereupon”
I say that because the distinction is real.
“I simply don’t buy it for the purposes of the legal discussion”
LOL – you don’t buy the legal basics for ‘purposes of the legal discussion.’ Really? Then any discussion you (and INANE) insist on having are outside of the proper legal framework. Have fun in that alternative universe. Make sure you put a nice shine on your helmets.
“And yet it’s wholly inconceivable to you sophisticated thinkers that music… ”
No.
How many times must you be told? (sigh)
This purposeful self-ignorance is amazing.
Music? Full stop – don’t go further, as you do not NEED to go further.
It’s as simple as that.
Anon: a programmed computer is eligible. A CRM bearing computer instructions is eligible.
Only, a programmed computer out of context that does nothing technologically new is not eligible.
Thus, a computer programmed to calculate BCD to binary is not Eligible. See Benson.
A player piano programmed to play a new song is not eligible. The roll bearing the new music for the player piano is not eligible.
The art is sophisticated and beyond apparently iron age thinkers to comprehend how there could be thousands of embodiments and yet a definite structure.
And yet it’s wholly inconceivable to you sophisticated thinkers that music could ever be found stored on a computer-readable medium? Because it happens all the time, and computers process that kind of information all the time.
“I don’t even know what that’s supposed to mean, ”
It’s technical gobbldygook that ta rds make themselves think makes themselves look smart.
link to en.wikipedia.org
Pay the rabbit hole no mind unless you really really want to go down it.
“Except writing (fiction and non-fiction) is distinct from writing for a useful purpose (software).”
You say that, and you try to make an artificial distinction based thereupon. I simply don’t buy it for the purposes of the legal discussion. Sorry mah brosef. I don’t. And until the USSC does, I won’t. Since they never will I won’t ever be.
Besides, if writing for a useful purpose is supposed to be eligible for patenting then are technical manuals also now patent eligible/exempt from PMD? I mean, they are written for a useful purpose…
“The ‘for a useful purpose’ is exactly what the patent system was created to cover”
Not really, but even if it were so, then so what? Doesn’t mean it isn’t a fine art.
“meant to cover different things.”
Yeah, I know, patents for the useful arts (like traditional products etc.), and copyright for writing (like software). I’m wholly aware.
Just more silly nonsense from you IANAE. The broad basis of your argument is not valid. We are concerned about computer readable medium and not music.
There is just as much structure in an information processing claim as any other claim. One skilled in the art knows the scope of the claim. The art is sophisticated and beyond apparently iron age thinkers to comprehend how there could be thousands of embodiments and yet a definite structure.
How would you reject the claim to the ridiculous gear?
That depends, is the claim “a machine-rotatable gear, wherein the gear contains surfaces for causing the machine to produce an improved widget”? Or does the claim actually specify any of the structure of the gear?
They need to have a functional relationship with the computer to make the computer readable medium a component of a computer.
They need to have a functional relationship with the medium, actually. That’s the only way you get past the printed matter doctrine. But if you’re looking for a functional relationship with a computer, any and every bit sequence has that. A music CD gives the computer a function it didn’t have before.
1) music isn’t Turing complete.
I don’t even know what that’s supposed to mean, but we’re talking about data storage media, not computers (because the computer is not claimed). Maybe you can explain to me how any string of stored bits can be “Turing complete”.
2) Music is not instructions for the computer.
Of course it is. You put in a music CD, the computer does something with it. Might even play the music all by itself, I’ve seen that happen.
Actually, it is not. My definition definitely does not change the Arts of music – your attempted spin only has you spun around the wrong way.
I have invented no ‘other doctrine’ here. I am merely asking that you apply the doctrines (the existing doctrines) as they are meant to be applied, and to stop your vapid attempts at obfuscation. It is once more your smart-@$$ without the smart in pedanticly listing exceptions in a multitude, when I have only – and always – applied only that which is controlling law (which by the way – is one of the very few things that Malcolm has been correct about – you know, that volunteered admission that toasts his agenda).
Ned,
STILL waiting for you to recognize controlling law – as you are ethically required to do! (you might also check ot ABA MCPR 8.4(c), as well as California Business and Professions Code Section 6106 and 6128 for knowingly presenting as true law, that which you know not to be true). At the very least, you need to couch your posts in more subjective opinions of how you want to change the law to be.
a distinctly different reason
It’s the exact same reason, actually. If software is useful because the bits are stored structurally, or because it makes a computer do a new thing, then your own definition brings digitally stored music within the useful arts.
Looks like Mal was right about you having to invent another doctrine to hold all this nonsense together. There’s an exception to the printed matter doctrine, then an exception to the exception for computer-readable printed matter, and now an exception to the exception to the exception for “non-useful” computer-readable printed matter. Epicycles upon epicycles. It only ends once you accept that you’re not the center of the universe.
I am not blue. IANAE: would you try to make the same arguments for an iron age device? So, someone has a gear for a car. The gear is ridiculous. How would you reject the claim to the ridiculous gear?
And, frankly, what? I honestly am not sure what your last paragraph is asking. “without a care in the wrold for what the actual bits are”–this is not true. I care what the bits are. They need to have a functional relationship with the computer to make the computer readable medium a component of a computer.
But, really, IANAE, I think these questions framed as requiring a resolution of other types of things in the world are unfair. The computer readable medium has structure that is defined by the instructions encoded thereon. Those instructions and the computer readable medium (indirectly) have a functional relationship with the computer. That makes it a component if there ever was a component of a machine.
This business of trying to resolve how music is different is odd. 1) music isn’t Turing complete. 2) Music is not instructions for the computer.
You know there is magic that happens when you go from something that isn’t Turing complete to something that is Turing complete. Suddenly you have a machine that compute any function that can be computed and thus must be able to compute the same functions we are.
Stop getting lost in the desert of non-useful arts INANE.
Once you realize that you are there in music, the analysis is over for a distinctly different reason – stop trying to obfuscate.
Except writing (fiction and non-fiction) is distinct from writing for a useful purpose (software). The ‘for a useful purpose’ is exactly what the patent system was created to cover.
Now don’t get me wrong. Writing software may ALSO involve some level of creativity and expression – that part of software earns copyright protection.
But you should be aware (LOL, check with Malcolm), that patent and copyright protection have always been meant to cover different things.
“you’re the one who refuses to apply it”
False. I apply it as the controlling law dictates.
Ask Malcolm what that controlling law is. It’s one of the few answers that he has volunteered that has any meaning.
The rest of your rant is also simply wrong. You are STILL trying to confuse the forest for the trees in the desert. It’s not even close to what the law provides.
We need to understand computers and not music.
This isn’t just music. It’s a computer component that makes a computer do something it couldn’t do before. That’s useful, right? You’ve been shouting yourself blue in the face about that for months now.
You’re always saying that computer-readable bits on a physical medium are structural and useful, without a care in the world for what the actual bits are. Do you stand by that, or is it suddenly the case that the “structural” recitation of a “computer-readable medium” is irrelevant to patent eligibility?
IANAE: the form of your argument is simply wrong. We need to understand computers and not music. If our understanding of computers creates puzzlers with music, then that probably means that our understanding of music needs some updating. Being able to process information is amazing and creates lots of new puzzlers.
You asked about why so.meone needs to understand science, well, the computer can perform any function that can be performed, the music cannot. The music is not information processing. And, if you want to introduce our brains and its affects on our brains, then that certainly is a puzzler. There is no doubt that computers have radically changed our views of ourselves and information processing. But, guess what? The controlling force should be understanding the new technology. The puzzlers mean that some of our old ways of thinking need to be updated.
“And I would fully let go of all software within the fine arts”
Software is a fine art :/ It’s called writing.
First, you need to stop at the Useful Arts filter.
There is no separate “useful arts filter”. Well, that’s not exactly true. The printed matter doctrine is a useful arts filter, and you’re the one who refuses to apply it to printed bits the way it applies to printed words.
A list of steps to be performed is no more within the useful arts than a song, no matter how useful it would be to actually perform those steps. Either computer-readable instruction is inherently statutory (i.e., useful), or not. If it is, then computer-readable songs are statutory. If it isn’t, then printing it on a “machine component” doesn’t save it.
If you claim that a disk is a useful “machine component” when it changes what a computer can do, that makes a song on a disk a useful machine component. If you don’t agree with that result, you need to accept that your “disk = machine component” rule must be wrong. As well as the rule that a computer that does a different thing is a new computer.
Nice (and old) strawman Ned.
The ‘per se’ part of your statement is a dead give away.
Line up for another ride on the disingenuous Merry Go Round, Ned.
As to considering them methods, I have to do nothing of the sort – or shall we (once again) visit the reference that you yourself presented on the difference between holding and dicta that you once presented in a discussion on Bilski that I used to rip apart your anti-Business Method crusade? Take special note of how Rader addresses the precedential takeaway of the Alice decision (just don’t wait for Malcolm to explain this, as he does not do answers with his poor burnt fingers).
The holding of Alappat Is that the substitution of a programmed computer for the circuits claimed in the context of a graphics display unit for a display was eligible. There was no programmed computer out of context issue in that case. Anything else is pure dicta.
Thus you cannot bootstrap that program instructions on a CRM are eligible because they are a machine component. A Programmed computer and a CRM are neither per se eligible.
Moreover, the one thing the Federal Circuit seems unanimous is that claims to program computers and methods and CRM’s are all to be considered to be claims the same essential subject matter Thus you have to consider them as claims to a method.
You are still in the desert, trying to mistake trees for a forest, neither of which are there.
First, you need to stop at the Useful Arts filter. Do not pass Go. Do not collect $200. You are still trying to apply a doctrine that is not to be applied to your example, as it simply is not applicable based on the Useful Arts filter.
Come out of the weeds, out of the briar patch, into the promised land…
…(for at least a few moments of lucidity)
Just as rivets, tires, and bullets are patent eligible, so too are machine components such as software.
A song recorded on a CD is computer-readable software. A machine component. Therefore, statutory by your reasoning. Do you concede the point, or would you like to meet me in the Great Hall first?
INANE,
Just as rivets, tires, and bullets are patent eligible, so too are machine components such as software.
You appear almost ready to grasp the exclusion of the non-useful arts.
And I would fully let go of all software within the fine arts – of course, TOOLS to make more attractive images, much like a new and improved paint brush, remain fully within the useful arts. The creativity employed with the tool, the individual pretty picture – as art – is easy enough to let go, because such has never been within the Useful Arts to begin with.
I have been steadfastly consistent in my views on this. Nice to see some finally catching up.
That straw is burned at the Useful Arts requirement
It’s true, a song is not within the useful arts. But neither is a set of instructions. It’s not a machine, manufacture, or composition of matter. It’s not even a method – a method would be the process of executing the instructions, claimed as such.
What supposedly brings either of them within the useful arts is that they are structurally encoded on an article of manufacture, a machine component if you will, and a computer behaves differently with it than without it.
If you’re going to say that a computer-readable medium with data on it is statutory without even considering whether what’s written on it is useful/abstract/whatever, you can’t take issue with the content of the software now. Unless you’re willing to let go of all software that is within the fine arts, e.g. making more attractive images on a display screen.
Les, your post illustrates the very reason the Supremes think 103 is inadequate to address 101 issues. If the novel subject matter is ineligible, and it is not integrated into the claim as a whole, then, even though it might be nonobvious, it nevertheless is not Eligible subject matter. Thus asking whether the subject matter as a whole is obvious or unobvious is really asking the wrong question.
And please – like I have asked like a bajizillion times, stop with the strawman of music – That straw is burned at the Useful Arts requirement and you do not get to go further in attempting to conflate that with the HOLDING of Alappat.
Ned,
Why are you purposefully misconstruing the U.S. jurisprudence of the Useful Arts?
You are under an ethical obligation to acknowledge controlling law which differentiates the Useful Arts from technology.
This is not the EP you are talking about.
Let’s see some intellectual honesty here, OK?
Ned,
You continue to ignore the fact that machines do not think.
Your absence on commenting on this point screams so loud that nothing else you try to say can be heard.
AAA, I I think the underlying principle is that the new use of old technology itself has to be Technological. The question is not whether the old technology becomes non-technological, it is that the use of it to be eligible. A new use itself has to be Technological.
If the above is not true then Benson stands for nothing and one could patent the player piano with a new song.
A method of operating an engine is different from a method of thinking about an engine. If the question is whether a method for operating engine is patent eligible, I would think the answer is yes because the question assumes that the claim does something Physical that is new.
Reinier Bakels said: >>Patent protection is for losers!
Like Google? Reinier, you have a ph.d., big deal. You want to claim you understand the marketplace, but what experience have you in the economic marketplace?
RB,
Do you wonder why the “101 test” seems more complicated than ever?
Do you wonder why the ‘atom bomb’ is being sought at the gate?
Do you recognize the anti-patent arguments used by those pushing this agenda?
Do you recognize the strange bedfellows of the Right aligned with the Left?
This recognition is growing. Even as the man behind the curtain spinning the dials tries to shoo a little girl and her three friends away, the girl’s dog has a firm grip on the curtain and is pulling it back for all to see what really is going on.
Have you opened your eyes to this yet?
They are doing it for a bad motive Reiner. Their purpose is to try and find a way to twist the law to exclude all information processing method and business methods. In Benson, they held that all information processing methods are laws of nature (yes all applied math is a law of nature), and that if something can only be useful in a computer that it is abstract.
You are dealing with criminal minds. They have no regard for the law. They would be the ones bombing and burning and killing in other circumstances.
Perhaps one is used to follow the 101-102-103(-112) sequence. Still it seems odd to make a cumbersome “101” investigation if the substance of a patent application is obviously not novel, which is basically a simpler decision, especially now that the “101 test” seems more complicated than ever.
If subject matter Eligibility is always an issue, and has to be resolved, then I would think it has to be pled.
Agreed.
SJ on obviousness is rarely available.
OMG the inmates are running the asylum!
A SYSTEM claim clearly reciting 4 (four), count’ em 4 (four)pieces of hardware is not a system because it is old!
Moreover, it’s not old, it has new functions (account initialization).
Maybe its obvious… BUT, gift cards have been around for what, 40 years… and no one has suggested activating them this way before…so… you know…. everything is obvious in impermissible hindsight, especially after impermissibly distilling it down to a gist.
and Dennis thinks the issue is whether or not 101 has to be considered first….
AAAAaaaargh!
(btw: still waiting for you to address both the exception to the printed matter doctrine and anthropomorphication – why are you so quiet?)
Not an answer.
Naturally.
(gasp) yet another volunteered admission that toasts his agenda.
Oooooh, Ned is going to be so mad at Malcolm…
Prof. Crouch can do whatever he likes – it is his blog, after all.
He has, though, stated that 1ying is not allowed on this blog. Are you now denying that you have blatantly 1ied?
Now whether or not Prof. Crouch does anything about it… well, C’est la vie. He is welcome to respond to any of my critiques in any way he wants to – as I said, it is his blog, after all.
You on the other hand, have made it clear that you are not Prof. Crouch, and I owe you no deference. When you ask me to hand you your head – I can gladly do so.
As to ‘imputing’ and ‘conflation,’ are you still struggling with those two words? Do you need me to post definitions (like I have in the past) to show how off you are? Maybe Leopold can find his definition of the word ‘effectively’ again for you.
I do (in case you haven’t noticed).
And I do note that you do not refute anything that I stated. Which of course, you could only do by (more) blatant 1ying.
Nice non-answer Malcolm.
And a rather vacuous post – even by your low, low standards.
“but I don’t remember you “rubbing my nose” in anything‘
LOL – that ranks right up there with the famous “What the Sam Hill” line – wasn’t that realted to you beign busted for s–ckp-ppets? Rather like your s–ckp-ppets of Francis and Keeping It Real? The kind of thing that you swore you did not do?
psychotic breakdowns – LOL – like your own eplectic rants of rage?
You need a new shtick Malcolm, this accuse others of what you do line is really really old and lame.
I only insulted those deserving of being insulted
TELL IT TO THE PEOPLE, H-MPTY!!!
communism is too idealized and does not take into account true human nature
That’s sweet, Hu mpty.
don’t you remember when I rubbed your nose in Prof. Crouch’s statement that 1ying is not allowed
No, I don’t. I remember you having numerous psychotic breakdowns but I don’t remember you “rubbing my nose” in anything. After all, I’m not the one who pretended not to be using scores of s–ckp-ppets for years. That was you. Until you were busted.
That was a great day. You still miss your little friends, don’t you?
I only insulted those deserving of being insulted because of the misrepresentations, purposeful obfuscations, deliberate misstatements of spin as fact and many other factors that I have long catalouged as the site’s biggest problem of poor quality blogging.
On the other hand, we have you who has insulted complete strangers, first time posters who are cancer survivors, Gene Quinn, who doesn’t even post here, presidents, grieving sons, and anyone else in or out of your little circle. And you have lavished these insults without rhyme, reason or justification.
And you have been doing this that you accuse others only worse for far far far longer.
C’est la vie.
I just did, right Francis = Keeping It Real = Malcolm = Hypocrite.
you have no even halfway intelligent thing to say
It’s pretty hard to top “the conflation comes from the imputing”, H-mpty! Have some pity for we mortals who lack your awesome rhetorical skils.
I’m sure Dennis is just as “devastated” by your withering critique as I am.
“claim is obvious as a matter of law. That really is a 101 issue.”
Read that slowly Ned. Obvious (as a matter if law or not) is not a 101 issue.
Ever.
Put. The. Shovel. Down.