By Dennis Crouch
Patenting Software: Ex Parte Betts [Computer Associates], 2013 WL 3327142, Appeal 2010-004256, Application 11/132,649 (PTAB 2013) (“[W]e conclude claims 14-26 encompass software without physical embodiment, i.e., software per se, which is an abstract idea and not a “process, machine, manufacture, or composition of matter,” as required by § 101.”)
Patenting Software: Ex Parte Krause [HEWLETT-PACKARD], 2013 WL 3246398, Appeal 2010-012129, Application 10/442,401 (PTAB 2013) (Claims directed to an “end station” within a network having an “aggressive timer.” “Appellant contends that the Examiner erred in rejecting [the] claims … under 35 U.S.C §101 because the claims recite an “end station,” which is defined as hardware. Appellant’s argument does not cite evidence to rebut the Examiner’s interpretation that the claim encompasses either hardware or software. Accordingly, we decline to reverse the rejection.”)
Patenting Software: Ex Parte Barsness [IBM], 2013 WL 3362954, Appeal 2010-011009, Application 11/316,285 (PTAB 2013) (Claim directed to “computer-executable instructions tangibly recorded on a computer-readable media” construed to include “non-statutory, transitory embodiments.” “[W]e find the Specification states the invention is capable of being distributed in the form of a wireless signal when exchanged from one signal-bearing medium to another. This falls within a propagating electromagnetic signal per se and thus, is not directed to one of the statutory categories.”)
Patenting Software: Ex Parte Svendsen [Concert Tech], 2013 WL 3363110, Appeal 2011-001873, Application 11/837,876 (PTAB 2013) (Claimed media “control system” could be implemented as software. “As such, we are not persuaded by Appellants’ argument that the mere recitation of a “control system” (even if the Specification describes it as being associated with a memory) is sufficient to make the claims patent-eligible under 35 U.S.C. § 101 . . . as it does not play a significant part in the performance of the claimed steps.” In short, the broadest reasonable interpretation of the claim language leads us to construe the “control system” as being directed to a computer program per se, which, as drafted, renders the claimed subject matter not patentable under 35 U.S.C. § 101. See Gottschalk v. Benson, 409 U.S. 63, 72 (1972).”
Patenting Method that Could be Performed by a Human: Ex Parte Xu [HEWLETT-PACKARD], 213 WL 3363011, Appeal 2010-009107, Application 10/767,075 (PTAB 2013) (“[C]laim 1 as a whole is directed to a sequence of steps that can be performed by a person. Accordingly, claim 1 is drawn to patent-ineligible subject matter and invalid under § 101.”)
Patenting Device Attached to a Human is OK: Ex Parte Robert S. Bray, 2013 WL 3293616, Appeal 2011-013427, Application 11/686,054 (PTAB 2013) (“The claims recite a device positioned between two vertebrae not, for example, a human comprising a positioned device. The claims relate only to the correct placement of the device in the human patient, and as a whole, do not encompass a human organism. There is nothing in the statute, and we are unaware of any case, that categorically excludes such devices.”)
Quite in fact, he is taking another (worthless) page out of the Blog-Like-CRP Malcolm handbook and appears to be aiming for several thousand worthless words in his posts.
Such blatant shilling – as it is a well known fact that Ned posts for third party interests – is quite counter-productive to those interests.
C’est La Vie.
This 1ie is beyond belief.
Is that really you Ned posting such a falsehood?
“Ex Parte Robert S. Bray, 2013 WL 3293616, Appeal 2011-013427, Application 11/686,054 (PTAB 2013) (‘The claims recite a device positioned between two vertebrae not, for example, a human comprising a positioned device. The claims relate only to the correct placement of the device in the human patient, and as a whole, do not encompass a human organism. There is nothing in the statute, and we are unaware of any case, that categorically excludes such devices.’)”
This rejection is on page 5 of the examiner’s answer. It’s beyond laughable. Yet two SPE’s signed off on the answer.
Shouldn’t it be a requirement that SPE’s at least know something about the law? Anything?
Stop the music, Ned.
Literally.
Stop.
It is a canard to use something outside of the Useful Arts.
Your continued dependence on the use of canards only weakens your point. Obviously, if you cannot come up with a legitimate example to use, you have no point that you can make.
Ned – this is quite painfully obvious – why don’t you see this?
You claim I am ignoring what you are saying – at the same time that you are ignoring what was said in Bilski.
I repeat: didn’t my smackdown of you in Myriad – through the use of Chakrabarty and Funk teach you anything?
Ned, your statement of “anon, 99.9% of your posts about my positions are distortions. Let’s just leave it at that.” is a blatant and completely unsupportable 1ie.
We will NOT leave it at that.
Now if you meant that my statements catch 99.9% of YOUR distortions to what is actual law, THEN, we could ‘leave it at that.’
Could – but won’t, since I enjoy highlighting the excessive liberties you take as you post here for your third party interests.
anon, the MOT is sufficient if the ineligible subject matter is integrated into a process that passes the MOT in a way that transforms it. See Prometheus’ discussion of Diehr that I have quoted here in this thread.
Stop ignoring what I say. I use the word “integration” to speak to the Prometheus clarification of Diehr.
anon, 99.9% of your posts about my positions are distortions. Let’s just leave it at that.
Sent from Windows Mail
anon, I have never asserted that Bilski held that Business Methods were verboten.
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101:
Ned: "101, the
integration/MOT test is the holding of Diehr."
Ned, let me give you a chance to clear
things up and perhaps save face. Are you claiming that the Machine and
Transformation test ( MoT) and Integration are the same?
Yes and no. The
Federal Circuit’s opinion in Prometheus illustrated the problem of
interpretation of the Diehr holding. In
the Prometheus claims, the old elements of the claim did in fact involve
transformations, but the new elements, the ineligible correlations themselves,
were not integrated into that old process but instead only used results of that
old process. The Supreme Court then
clarified that the basis of the holding in Diehr was that the ineligible
elements, the Math, there were integrated into that old process, the whole process
that passed MOT because it transformed matter into a new state, in a way that
transformed that old process into something new, i.e., it
produced properly cured molded rubber.
Because of the clarification, we now understand that the
underlying process to which the ineligible subject matter is applied must pass
MOT. Further, the ineligible subject
matter must be integrated into that process in a way that transforms it. In a sense we have a double transformation.
I hope you understand that the Federal Circuit seem to
deliberately misinterpret the MOT in Prometheus in a way that made a mockery of
it. In a sense, what the Federal Circuit
did was to say that if a claim was directed to a machine, a process that passed
MOT, an article manufacture, or composition of matter, then it passed 101
regardless that ineligible subject matter was simply tagged on. This is a similar to a claim to the player piano,
where the only thing new is music. The
music does not alter the player piano in any way. Rather, the player piano is being used to
play music. The claim is not to the
player piano, but to the music.
Try the link available at link to ipwatchdog.com
Malcolm has had to spend a great deal of his time toning down his writing and focusing his comments over at PatentDocs, where he thinks he will get a more favorable ear.
His latest personality there is “Friend of the Court.”
He was actually civil for a a bit, before Doctor Noonan point blank told him his theory was wrong.
You can tell it is our friend Malcolm from his goalpost moving and strawman building as well as the semi-cloaked [oldstep]+[newthought] pet theory being espoused. Malcolm remains the only person who actively espouses that (now crisped) ‘theory.’
It is actually quite funny that Malcolm throws such a hissy fit here at Patently-O over ‘svckpuppets,’ and yet maintains a revolving door of them at the other fine blog. I guess his real nom de plume should be: Hypocrite.
anon said: “Why, wasn’t it Malcolm that was the first to post that link?
101 Integration Expert: Why, yes I believe it was.
Anon: And doesn’t that link completely ignore the (now crisped) Malcolm pet theory?
101 Integration Expert: As a matter of fact it does. BTW, where is MM. I have not heard a peep out him about his theory since I reposted the link, debunked his theory in this thread.
anon said: “There is no honest way that you can re-import a requirement of MoT that the Supreme Court point blank said is not there. It simply does not matter that they did not give an alternative – the DID give you the directions that you are attempting to violate. YOU stop”
Well said but it appears lost on Ned. It seems he will never stop with the MoT
Les said : “PTAB has gone off the deep end. By that logic no process is patentable as any process invented by man, by definition, is performable by man. There may be tools involved, but the process is being performed by man.”
You are absolutely right Les. I really want to read the actual decision. Anyone have a link? I searched the PTAB data base but it does not show up. Ex Parte Xu [HEWLETT-PACKARD], 213 WL 3363011, Appeal 2010-009107, Application 10/767,075 (PTAB 2013)
Furthermore you did not justify your combining of the two different legal precepts of “Integration” and “Machine or Transformation Test” into the “integration/MOT” . Both Prometheus and Diehrs claims pass the transformation leg of the CAFC MoT test . And both Prometheus and Diehrs claims were “integrated.” The difference between Diehr and Prometheus is “Statutory Integration.” The LoN in Prometheus, standing alone, is “Integrated” according to the common and contemporary definition of the term. (See my post at Jul 12, 2013 at 05:28 PM). The “process” the LoN is used in is also “Integrated” according to the same definition. However the claims as a whole pre-empt the LoN, therefore the claims are non statutory. On the other hand, Diehr’s claims as a whole are “Statutorily Integrated” because the claims as a whole do not pre-empt the formula that represents a scientific truth.
MoT remains an important and useful clue and can help add to the evidence a claim is eligible. But claims can be statutorily integrated, even without passing the MoT. on this congress and the Supreme Court have been clear.
Ned: “As stated by Breyer in Bilski, the MOT is the gold standard”
I just read Bilksi and there is no such statement by Breyer: See: /media/docs/2010/09/08-964.pdf Did you just make that up?
Ned: “although not the exclusive test. It is more than a clue. ”
I also searched for that statement in Bilski, that MoT is “more than a clue” and guess what, it does not exist either. In fact, Breyer says Machine or transformation has always been a clue. See Breyer in Bilski: “….the Court has stated that “[t]ransformation and reduction of an article to a different state or thing is the clue to the patentability of a process claim that does not include particular machines.” and “……the machine-or-transformation test has always been a “useful and important clue,” …..” Page 3 Cite as: 561 U. S. ____ (2010) 3 BREYER, J., concurring in judgment at 589.
If you are not going to be truthful on such details how do you expect to have any credibility?
Ned: I use the shorthand “integration/MOT” to reference the Diehr holding. Don’t tell me that there is no Diehr holding.
I read Diehr as well and the fact that the claims used one or more machines, and it’s end result was that of a transformation of the type in Deener, was indeed “helpful” to the Court in determining the invention “a patentable ‘process.’ But that was hardly a bright line test of machine or transformation, as held in Bilski by the CAFC. The MoT “Test” as established by the CAFC has the machine performing all the method steps, or a transformation of chemicals/liquids into other chemicals or solids, as “the” requirement of 101 eligibility, and as “the” definition for process. But as we know the Supreme Court struck that definition down.
Ned: Now, tell me of any process that did pass the test used in Diehr, and described in Prometheus that was nevertheless held eligible.
The above sentence makes no sense contextually or legally. There was really no bright-line test used in Diehr. There was a claims as a whole approach that consisted of a concept, application, and integration analysis. In addition there was the recognition of various machines and a resulting transformation in the method steps, that served as clues to patent eligible subject matter, and helped the Court reach its decision. You have digressed to the point where you have no substance whatsoever in your arguments.
Specifically Ned, from the other thread:
What’s the point of your post Ned? Congress writes patent law. Whether or not a Surpeme court case exists on any particular pinpoint area of legislative law is completely irrelevant.
Point in fact: you are trying to write your own law and ignore the actual statutory law that Congress has written.
Sorry – no one died and made you the despotic king of the US and you simply don’t have that authority. It remains your ETHICAL duty to acknowledge controlling law.
. Law is not only Supreme Court law, Ned. In fact, with patent law (per the constitution), the Supremes should not be writing patent law at all.
Plain and simple Ned (again):
Bilski: MoT NOT REQUIRED
Prometheus: MoT not sufficient.
What part of this do you REALLY not understand?
“As stated by Breyer in Bilski, the MOT is the gold standard, although not the exclusive test. It is more than a clue. All nine justices would be highly credulous of any process that did not pass the integration/MOT test. It may not be exclusive. But the SC has never authorized any process that did no pass the test.”
That is some SERIOUS twisting of the actual holding in Bilski that reveresed the en banc CAFC decision requiring MoT.
And then using the minority view of Breyer to imply somethign that the whole Court would believe in is deceptive at best.
You really have no shame in peddling your agenda, do you Ned?
“I never said that. Never. That is YOUR strawman.
That said,”
LOL – W T F – back to back sentences showing the goalposts being moved.
See also, my post on what your ethical duty entails as to law (and NOT just law as heard by the Supreme Court, but legislated law as well).
Ned – coming as it is that I used your own supplied source on the difference between holding and dicta on the case of Bilski to break you of your repeated mantra that Bilski held that business method patents were verbotten, you hre saying that I constantly misstate the holding of Bilski is sublimely perverse.
Didn’t you learn anything from whay I taught you in the Myriad case?
Ned: “101, the integration/MOT test is the holding of Diehr.”
Ned, let me give you a chance to clear things up and perhaps save face. Are you claiming that the Machine and Transformation test ( MoT) and Integration are the same?
Yes or No
If yes, then citation please. Not your interpretation. Not your conflation. I need that exact quote, with that exact terminology, from Diehr so holding an, “integration/MOT test” .
: Usual Silence::
Now, on the other hand, I know there is a MOT test from the CAFC in Bilski II. I also know there is an “Integrated” analysis from the Supreme Court in Prometheus. In fact I can provide you the exact quote from both cases using that exact terminology.
101, the integration/MOT test is the holding of Diehr. Ineligible subject matter implemented or applied to a process the patent laws were designed to protect, e.g., the MOT, are eligible.
Prometheus described that the ineligible subject matter transformed the underlying process. This was called “integration.”
I use the shorthand “integration/MOT” to reference the Diehr holding. Don’t tell me that there is no Diehr holding.
Now, tell me of any process that did pass the test used in Diehr, and described in Prometheus that was nevertheless held eligible.
That’s right. None.
Nada.
As stated by Breyer in Bilski, the MOT is the gold standard, although not the exclusive test. It is more than a clue. All nine justices would be highly credulous of any process that did not pass the integration/MOT test. It may not be exclusive. But the SC has never authorized any process that did no pass the test.
Stop it. I never said requirement. Stop it with the strawmen.
Sent from Windows Mail
Ned:That said, give me one example of any process that does not pass the integration/MOT test that has ever been held eligible by the Supreme Court.
Just one.
101: Ummm… There is no such thing as an “integration/MOT test.” Challenging me to prove something that does not exist, and that I have never argued exist, is certainly a fallacious argument. Let’s see which fallacy would that be, a straw man or a red herring. Well, whatever the case, its plain whacky.
101 Integration Expert: MoT remains an important and useful clue. But not a requirement. Not even a test. And certainly not definitive of “Integration”.
Ned: 101, I don’t say that either Prometheus or Diehr held that all processes must pass the integration/MOT test. I never said that. Never. That is YOUR strawman.
101 Integration Expert: But you did just say “integration/MOT test.” Which in effect would make MoT and Integration the same thing. So I am correct in stating you argue MoT is definitive of Integration. Which of course you have failed to prove with ANY Court citation. Look, you have made it clear you have a fundamental belief in the righteous of the MoT test. So, why don’t you stop playing these silly games. The more intellectually dishonest you attempt to be the more credibility you lose as someone that has any expertise on patent law.
101, I don’t say that either Prometheus or Diehr held that all processes must pass the integration/MOT test.
I never said that. Never. That is YOUR strawman.
That said, give me one example of any process that does not pass the integration/MOT test that has ever been held eligible by the Supreme Court.
Just one.
And the holding of Bilski was that what? You constantly misstate it.
Sent from Windows Mail
query, of course anything that is functional in the physical world should be presumptively eligible. But generally, a piano is not a new piano because of the music it plays.
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“generally do the Arrhenius equation in my mind”
LOL – 6 steps towards ANTHROPOMORPHICATION.
(guess what DID do that 6? – that’s right, software and a GREAT COMPUTER BRAIN)
LOL – the more games you play with 101 on this topic 6, the more your overall position is buried.
Ok that’s cool, but I’m asking for a specific reference that shows that. In other words, I see your assertion as to the state of the art and I simply state I see no evidence of it.
Also, your f) is not the same f) as claimed. Note that your f) lacks constant determination, and it also lacks the determination of the temperature closely adjacent the mold. Indeed applicant stated in the case that they improved the ability to monitor the temperature from closer than anyone had been monitoring it from before (though 25 years later someone on the interwebs presented some art challenging this which was not present in the case when it was before the USSC).
So after noting the above noted differences do you still find them to be old steps? And again, which specific reference shows them to all be old steps (preferably all in one reference)?
I don’t think you have such a reference, at best you have an amalgamation of 3+ different references you’re peicemealing together. And at worst you have nothing. Frankly I think you have nothing, just like the examiner did in the case, and just like the USSC did in the case.
_____
Also that’s cool about what supposedly happens when “I” open a press, but the claim does not say do it when “I” open a press. It says open the press when a certain comparison is made right? And the comparison includes a calculated total required cure time according to a specific calculation set forth in the claim. I’m going to be honest, when “I” open a press I don’t generally do the Arrhenius equation in my mind and then do a comparison with the value that popped out of the Arrhenius equation. In fact the USSC specifically says that when “I” (aka a skilled operator) did the process in the past “I” did no such comparison with a calculated value. Indeed the specification said that and the USSC took it at its word since there was no evidence the contrary.
So my question still remains, though I’ll make it more specific for you. Which parts of that claimed step are, to you, an old step, and which parts are a new thought?
>
> Hello Ned:
>
> Now to deal with your gross negligence in ignoring Diehrs claims as a
> whole in your proposition. I have reposted below the passage from
> Prometheus describing Diehr’s “Integrated” Claims and put in caps
> those points you ignore.
>
> “The Court pointed out that the basic mathematical equation, like a
> law of nature, was not patentable. But it found the overall process
> patent eligible because of the way the ADDITIONAL STEPS of the process
> integrated the equation into the PROCESS AS A WHOLE. Those steps
> INCLUDED “installing rubber in a press, closing the mold, constantly
> 1299*1299 determining the temperature of the mold, constantly
> recalculating the appropriate cure time through the use of the formula
> and a digital computer, and automatically opening the press at the
> proper time.” Id., at 187, 101 S.Ct. 1048. It nowhere suggested that
> all these steps, or at least the combination of those steps, were in
> context obvious, already in use, or purely conventional. And so the
> patentees did not “seek to pre-empt the use of [the] equation,” but
> sought “only to foreclose from others the use of that equation in
> conjunction with ALL OF THE OTHER STEPS in their claimed process.”
> Ibid. These OTHER STEPS apparently added to the formula something that
> in terms of patent law’s objectives had significance—they transformed
> the process into an inventive application of the formula.”
>
> The “OTHER STEPS, or ADDITIONAL STEPS were ALL old but they did not
> ALL pass the MoT, as you so assert, and as that test was defined by
> the CAFC and PTO, Which completely destroys your premise that
> “integration” in Diehr was limited to integrating underlying subject
> matter into steps that passed the MoT.
>
> “The Court pointed out that the basic mathematical equation, like a
> law of nature, was not patentable. But it found the overall process
> patent eligible because of the way the additional steps of the process
> integrated the equation into the process AS A WHOLE. ” Prometheus (
> Cap Emphasis Added )
>
> FACT: Note, the Court did NOT say “Integrated into the elements that
> PASSED THE MOT.”
> FACT: Some elements PASSED THE SO CALLED MOT.
> FACT: Some elements DID NOT PASS THE SO CALLED MOT.
> FACT: Prometheus said Diehr’s claims were “Integrated” into the
> process as a WHOLE.
>
>
> Ned: “To suggest that the MOT is to be ignored or discarded is a
> suggestion that really has to be ignored.”
>
> No one has suggested that. MoT remains an important and useful clue.
> But not a requirement. Not even a test. And certainly not definitive
> of “Integration”. So stop the straw man statements and stop accusing
> me of doing what you just did.
Ned: “Thus, Diehr did hold the claims eligible because the math was
> integrated into the molding process in a way that “transformed” the
> process per Prometheus. The underlyng process must be eligible and
> the ineligible addition must transform the underlying process, e.g.,
> pass the MOT. Transformation must be the result of integration.
> Integration is the key.”
>
> There is no support in the passage from Prometheus you quoted for the
> conclusory statements, you make above. Let’s set aside for the moment
> your gross legal error of ignoring Diehr”s holding of “CLAIMS AS A
> WHOLE” in your analysis, and just focus on the logic of your argument.
> What you have been arguing in very guises is that “integration” in
> Diehr, as described in Prometheus, is integrating the Arrheniius
> equation into an iron age transformation, and this is the “sole”
> reason Diehr’s claims are eligible. You then conclude all process
> claims “must” integrate some mysterious underlying subject matter in
> an iron age machine or transformation to be eligible. You cite
> Prometheus at 1298-99 as your only evidence. If this was true then
> Prometheus claims would have been eligible because the claims
> “integrated” a law of nature in the form of a naturally occurring
> correlation, into a transformation of the type that passed the so
> called MoT test. Yet we know Prometheus claims failed to be patent
> eligible, even though they passed the MoT exactly like you described.
> Why is that Ned? This fact alone exposes the folly of your argument
> and the faultiness of your logic.
“To suggest that the MOT is to be ignored or discarded is a suggestion that really has to be ignored.
After the beatdown I gave you in the Myriad case by asking you to consider ALL of the Supreme Court 101 jurisprudence, AND the repeated beatdowns that I have given you on the HOLDING from Bilksi, you violate your ETHICAL responsibility for acknowledging controlling law (yet again) Ned.
Please stop.
Ned,
Look at the CRP you instigate from those who don’t even know the basics.
Plain and simple so ANYONE can understand: music is not in the useful arts. Full STOP do not pass GO – do not apply any other doctrines or rationales.
The use of sonics for utility (process patents) IS NOT MUSIC.
Query — if a certain sequence of notes (music) has an unexpected result, e.g., shrinks tumors, puts wild animals in a coma, causes rain, whatever — patentable?
If no unexpected results, then maybe obvious?
anon, I use Music only because we all seem to agree that Music is abstract.
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101, The holding of Diehr I quoted was “described” in Prometheus to be “integration.” The mathematical equation “transformed” the underlying process into an inventive application of the formula:
From Prometheus describing, at 1298-99, the holding in Diehr:
“The Court pointed out that the basic mathematical equation, like a law of nature, was not patentable. But it found the overall process patent eligible because of the way the additional steps of the process integrated the equation into the process as a whole. Those steps included "installing rubber in a press, closing the mold, constantly 1299*1299 determining the temperature of the mold, constantly recalculating the appropriate cure time through the use of the formula and a digital computer, and automatically opening the press at the proper time." Id., at 187, 101 S.Ct. 1048. It nowhere suggested that all these steps, or at least the combination of those steps, were in context obvious, already in use, or purely conventional. And so the patentees did not "seek to pre-empt the use of [the] equation," but sought "only to foreclose from others the use of that equation in conjunction with all of the other steps in their claimed process." Ibid. These other steps apparently added to the formula something that in terms of patent law's objectives had significance—they transformed the process into an inventive application of the formula.”
In Diehr, the molding process steps were described to be old.
The “e.g.” portion of the Diehr holding clearly is the MOT.
Thus, Diehr did hold the claims eligible because the math was integrated into the molding process in a way that “transformed” the process per Prometheus. The underlyng process must be eligible and the ineligible addition must transform the underlying process, e.g., pass the MOT.
Transformation must be the result of integration. Integration is the key.
There is no ambiguity in either case that the reason the claims were allowed was because the integration transformed the underlying process. None whatsoever.
To suggest that the MOT is to be ignored or discarded is a suggestion that really has to be ignored.
If you google “History of Rubber Molding” in about 0.36 seconds you will get about 2,300,000 results. Then if you spend about 15 minutes reading on the history of molding rubber, particularly in google books, and viewing various pictures from the books you will learn that the process has always included:
d) closing a press and keeping track of the time, ( many of presses have clocks/timers on them)
e) heating the mold for a limited amount of time.
f) and checking on the temperature during the process.
Now whether all the steps as a whole, have been performed in the same order and time as Diehr’s process, and therefore novel, I do not know. But novelty is a separate issue from 101.
6: Also, how is opening said press at a certain time an “oldstep+newthought”?
Without getting into the intricacies of complex neuroscience let me simply say, each time you open the press you make a mental determination, and this requires a new thought process at the both the cognitive and neurological levels.
Any more questions?
ARRRRGHHHHH – Ned – the useful arts canard you are trying to pull is disingenuous and insulting to say the least.
Plus your attempt at moving the goalpost FAILS as the question you should be asking is if the music CD (that physical thing of manufacture) is abstract.
Two strikes with your single post. C’mon Ned – you HAVE GOT TO do better than that.
Ned: “(e. g., transforming or reducing an article to a different state or thing),”
e.g. means “an example”. This passage from Diehr is holding that an iron age transformation is “one example” of a statutory process. That is all. And that’s a far cry from your implications and various canards that machines or iron age transformations are:
1. “The” test for 101 statutory subject matter.
2. “A” test 101 statutory subject matter.
3. “The” reason Diehr’s claims are 101 statutory subject matter.
And the above passage from Diehr certainly does not hold or say, “integrated into … (old elements) that passed the MOT.” as you argued at Jul 15, 2013 at 07:19 AM. That’s your point of novelty fallacy. And perhaps most important to your entire carnard, you have failed to cite ANY holding that the “Integration” referenced in Prometheus requires integrating a process into elements that pass MoT. As the Court told you, MoT, is an important and useful clue. That is all. You do not collect $1000.00 .
Ned: “(e. g., transforming or reducing an article to a different state or thing),”
e.g. means “an example”. This passage from Diehr is holding that an iron age transformation is “one example” of a statutory process. That is all. And that’s a far cry from your implications and various canards that machines or iron age transformations are:
1. “The” test for 101 statutory subject matter.
2. “A” test 101 statutory subject matter.
3. The reason Diehr’s claims are 101 statutory subject matter.
And the above passage from Diehr certainly does not hold or say, “integrated into … (old elements) that passed the MOT.” as you argued at Jul 15, 2013 at 07:19 AM. That’s your point of novelty fallacy. And perhaps most important to your entire carnard, you have failed to cite ANY holding that the “Integration” referenced in Prometheus requires integrating a process into elements that pass MoT. As the Court told you, MoT, is an important and useful clue. That is all. You do not collect $1000.00 .
One has a CD ROM, readable by computer, that varies from other CD ROMs in that it contains music that, when loaded into a computer, plays.
The music is copyrightable. Does that fact make the music CD patenable?
What is a source code listing?
101, just in case, I will post the holding of Diehr once again:
“[W]hen a claim containing a mathematical formula implements or applies that formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect (e. g., transforming or reducing an article to a different state or thing), then the claim satisfies the requirements of § 101.”
101, but it is, particularly in Diehr. I have repeatedly quoted it to you.
Here, let me try again:
From Diehr at 192:
“[W}hen a claim containing a mathematical formula implements or applies that formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect (e. g., transforming or reducing an article to a different state or thing), then the claim satisfies the requirements of § 101.”
You will recognize the holding I quote you so often, and again, and again, and again, and again, and again.
No matter how many time I quote it to you, you absolutely refuse to accept it.
Ned: MoT is simply not the “holding” of either case. That is the argument we are having, and you are losing, very badly. Please present a Court citation that says otherwise and I will not only prove I can read, I will admit I was wrong, and send $1000.00 to your Paypal account.
I am responding to your comment above at 7:11 – there is no conflation in my response.
Try again.
I also note that you remain silent to all of the points I present to you.
LOL – we both know why.
Ned,
The accuse-others-of-that-which-you-do trick does not work for Malcolm, why do you think it will work for you?
You are the one attempting to introduce MoT as some type of legal lynchpin into the conversation. That is the strawman. You are attempting to introduce something that has no place.
All I am doing is lighting your strawman ablaze and burning it down to the ground.
“Software is independent of being fixed. ”
LOL – so you think ‘software’ exists in the mind alone?
You ARE confused as to what software is.
Software is copyrightable when fixed. That says it all. Software is independent of being fixed.
Sent from Windows Mail
anon, you are conflating a claim to a process with a claim to a composition. Water as a solvent is relevant to a process.
anon, it is you who are erecting a MoT strawman.
The difference between Diehr and Prometheus, as I have repeatedly pointed out, again and again and again, is
Integration.
I have a few questions integration expert. Specifically my question is which art renders all those steps old, as in, which specific references show:
“(d) initiating an interval timer upon the closure of said
> press for monitoring the elapsed time of said closure,”
> OLD STEP: “(e) heating said mold during said closure to maintain the
> temperature thereof within said range approximating said rubber curing
> temperature,”
OLD STEP: “(f) constantly determining the temperature of said mold at
> a location closely adjacent said cavity thereof throughout closure of
”
Also, how is opening said press at a certain time an “oldstep+newthought”?
One of ordinary skill in the art would have understood that the claim language implied the use of a processor of some sort to execute the code, even if you did not.
Please also note the suggestion that claim 1 be rewritten as a non-transitory computer readable medium claim.
“the relation of copyright law applicable to something that is NOT abstract”
Ned – would the software mentioned be copyrightable?
It’s an easy question.
It also has an easy (and direct) relation to an object of man created – manufactured – for a utility and as a component of a machine.
(I forgot to add above one of the other points that I routinely make and that you do not bother to acknowledge: Patent eligibility of components – think rivets, tires and bullets).
Your (continued) silence is my gold.
Ned,
It is you here that is erecting the strawman of MoT.
How often must you be lectured on MoT? And how long will you attempt to insert/resurrect your talisman?
This slinking down to the level of Malcolm and the accuse-others-of-that-which-you-do tactic is plainly visible to any and all readers. It is abject desperation.
Just like you (AGAIN) shy away from the points I make regarding software:
anthropomorphication and restriction of the mental steps doctrine,
the controlling law of the exceptions to the printed matter doctrine,
software as being equivalent to firmware and equivalent to hardware as a manufacture and component of a machine, and
the relation of copyright law applicable to something that is NOT abstract
Your silence speaks volumes. When you choose to be silent screams so loud I cannot hear your attempts to save your agenda.
We both know why you do not address the points I make, don’t we? You still evade your ethical responsibilities both of acknowledging controlling law and obeying the rules of the blog about posts being of personal views only.
C’est La Vie.
Ned,
Do you?
But please, at least try to make a comment that has a point so that we can move the conversation forward.
Pure name calling – that does not do it.
101, are you trying to prove that you cannot read?
1. Diehr held the claims there eligible because they were integrated into a process (the old elements) that passed the MOT.
2. Prometheus held the claim there ineligible even though old elements passed the MOT. No integration.
In both cases, the old process elements passed the MOT. In one case, there was integration. In the other there was not.
Now stop it, please. Address the facts and holdings of the two cases and stop erecting strawmen.
anon, do you pretend to be a lune?
Entirely abstract.
First, describe the structure of a value.
Thank you anon for that explanation, and all the excellent contributions you make to this blog.
>
> Ned: “The court did what I said they did and held what I said they held.”
>
> Not the Supreme Court. You believe “process” as a category is per se
> abstract. And therefore a process must be subjugated to the other
> classes of machines, manufacture or composition to be statutory. This
> is your way of cabining software and business methods as eligible
> subject matter, and effectively preventing such inventions from
> receiving patents. But the flaw in your logic, as well as your legal
> reasoning is that the Supreme Court never said such. In fact the Court
> said the opposite. See Bilski: “Respondent Patent Director urges the
> Court to read §101’s other three patentable categories as confining
> “process” to a machine or transformation. However, the doctrine of
> noscitur a sociis is inapplicable here, for §100(b) already explicitly
> defines “process,” see Burgess v. United States, 553 U. S. 124, 130,
> and nothing about the section’s inclusion of those other categories
> suggests that a “process” must be tied to one of them.” (Bilski 2010)
> The reason why a process is not tied to the other categories is that a
> process is physical. A process stands alone and is presumptively
> “integrated”. A process is therefore not abstract. Like wise business
> methods and software processes are not per se abstract. And as long as
> business methods and software are not pre-empting a law of nature,
> natural phenomenon, or other scientific truth, they are patent
> eligible, period.
Ned: “101, had the LoN been integrated in the process that passed the MOT, per Diehr, it would have been eligible.”
101 Integration Expert: “Ned, in Prometheus, the LoN was “integrated” into a process that passed the MoT. Yet, the claim was ineligible because the process as a whole still still pre-empted the LoN. Proving that the Prometheus Court did not hold the MoT as required or sufficient, as anon has told you . In Diehr the formula was “integrated” into the process as well and the claim as a whole did not pre-empt the formula, therefore Diehr’s claims were statutory. Again, passing the MoT was not required or sufficient in either case. The Court will not let anyone pre-empt one of their implicit exceptions.”
Ned,
Water is a product of nature and is an ineligible element. Water as a solvent is not functionally different with anything it dissolves. Integration of water and chemicals A,B, and C (based on water’s functionality in dissolving) and integration of water with chemicals r,s and t – with no functional difference – IS STILL INTEGRATION in both cases.
You are making things up whole cloth with your odd attempts at constructing a law of 101 to fit your agenda.
Your reliance on MoT is unjustified.
You neglect the second half of my paired statement:
Bilski: MoT not required
Prometheus: MoT not sufficient.
As to readings of Supreme Court cases, well, let’s be accurate and simply say that I own you on the proper reading of Supreme Court cases.
101, had the LoN been integrated in the process that passed the MOT, per Diehr, it would have been eligible. The LoN in Prometheus was not integrated.
Sent from Windows Mail
Functionally different? Not necessary? Are you joking?
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anon, please stop it.
The court did what I said they did and held what I said they held. Your rejoinder addresses a slightly different point and is in truth a strawman. I never said that the court held that passing the MOT was required. I said that if the ineligible subject matter is integrated into a process that passed the MOT the claim as a whole was eligible. That is not the same thing.
Anon: “Integration does not necessarily mean functionally different Ned. You are making things up out of whole cloth.”
Yes, he is just throwing any stuff against the wall now to see if it sticks. No research. No Pin Cites. Just plain on BS.
Ned: “Prometheus failed because of lack of integration. Stop misstating what I am telling you.”
CORRECTIONS:
There, you just proved you know not what you speak of. Prometheus claims failed because they claimed a manifest LoN. Had Prometheus process been integrated into a larger process that limited the claim, so that the claim as a whole did not pre-empt the LoN, the claim may very well have been eligible. Keep on spinning. Sooner or later you are bound to get dizzy and fall off, I hope.
Ned: “Prometheus failed because of lack of integration. Stop misstating what I am telling you.”
There, you just proved you know not what you speak of. Prometheus claims failed because they claimed a manifest LoN. Had Prometheus claims been integrated into a process that limited the claim so that the claim did not pre-empt the LoN, the claim may very well have been eligible. Keep on spinning. Sooner or later you are bound to get dizzy and fall off, I hope.
“Stop misstating what I am telling you.”
Ned – are you or are you not attempting to ignore the words that I am telling you from the Supreme Court in Bilski?
Once again: Bilski: MoT not required.
What part of this do you not understand?
Integration does not necessarily mean functionally different Ned.
You are making things up out of whole cloth.
Ned, Why do you ask me to stop it when you are the one ignoring the words of the Supreme Court.
Point blank: Bilski: Mot not required.
There is no honest way that you can re-import a requirement of MoT that the Supreme Court point blank said is not there. It simply does not matter that they did not give an alternative – the DID give you the directions that you are attempting to violate.
YOU stop.
Ned: “101, the only claims that have passed 101 have integrated the ineligible subject matter into a process that passed the MOT.”
So you have read every issued process patent and reached this conclusion ? Okay, lets see the citation to your research, or ANY research that proves the above assertion.
::Silence::
Followed by more excuses, and another round on the merry go round!
Ned: “Integration requires the ineligible subject matter to modify the operation or the functionality of the eligible subject matter so that it functionally different. This is simple.”
Providing a proper pin cite would be simple. So where is your citation for such a requirement?
:: Silence::
Integration requires the ineligible subject matter to modify the operation or the functionality of the eligible subject matter so that it functionally different. This is simple.
Sent from Windows Mail
101, the only claims that have passed 101 have integrated the ineligible subject matter into a process that passed the MOT.
Prometheus failed because of lack of integration.
Stop misstating what I am telling you.
anon, stop it.
The SC has never approved of any claim under 101 except in one case: Diehr. They held there that the claim passed 101 because the math was integrated into a process that passed the MOT.
The Supreme clarified in Prometheus that it is not sufficient that the some elements pass the MOT. What is required is that the ineligible subject matter be integrated into the elements that pass the MOT.
They also said that the MOT was not the exclusive test, but they have provided no other.