By Dennis Crouch
Ex parte Mewherter (PTAB 2013)
The USPTO has recently designated Ex parte Mewherter as a precedential decision with regards to its treatment of rejections under 35 U.S.C. § 101. The opinion basically holds that standard Beauregard claims (computer readable storage media) are not patent eligible because they could encompass transitory signals that are unpatentable under the Federal Circuit’s Nuijten decision.
IBM’s Patent Application Serial No. 10/685,192 is directed to a “system for converting slide show presentations” that converts each slide into “raster imagery” and then extracts contextual data (such as titles) and places those “in proximity to the raster imagery.” The claim at issue here is claim 16, that is written as follows:
16. A machine readable storage medium having stored thereon a computer program for converting a slide show presentation for use with a non-presentation application, the computer program comprising a routine of set instructions for causing the machine to perform the steps of:
Extracting a slide title for a first slide in a slide show presentation produced by a slide show presentation application executing in memory of a computer;
Converting said first slide with said slide title into a raster image;
Disposing both said slide title and said raster image of said slide in a markup language document; and
Repeating said extracting, converting and disposing steps for a selected group of other slides in the slide show presentation.
The examiner rejected the claim under 35 U.S.C. § 101 as claiming non-statutory subject matter. In particular, the examiner indicated that the instructions could be imbedded in a signal or wave and are therefore unpatentable under In re Nuijten (Fed. Cir. 2007). In its appeal to the PTAB, IBM argued that its claimed “machine readable storage medium” is sufficiently fixed to avoid the transitory concerns expressed by the Federal Circuit in Nuijten. In the appeal, however, the PTAB affirmed the examiner’s rejection – finding that under the “broadest reasonable interpretation” a “machine readable storage medium” continues to encompass unpatentable transitory signals. Here, the specification does not particularly define the claim term and IBM did not offer any promise that the claim is limited to non-transitory signals.
In its 2012 examination training, the USPTO offered parallel guidance:
When the specification is silent (no special definition of a CRM provided in original disclosure):
– It is acceptable to amend the claims to exclude the signal embodiment by adding “non-transitory” to modify the computer readable media.
– See “Subject Matter Eligibility of Computer Readable Media” (Jan. ’10)
“Non-transitory” is not a requirement, but simply one option.
– Applicant can choose other ways to amend the claim in accordance with the original disclosure.
– Not acceptable to just add “physical” or “tangible”
– Nuijten’s ineligible signals were physical and tangible.
– Not acceptable to add “storage” absent support in original disclosure because the broadest reasonable interpretation of computer readable storage media based on common usage covers signals/carrier waves.
The bottom line here is that patent applicants must now specifically disclaim transitory waves or signals as their compositional carrier of any software claims.
6: “And one difference is that hindsight reconstruction is not a concern under 102 whereas it is under 103.”
I do believe you are wrong here 6. In an anticipation rejection please see, …”…the reference must ‘clearly and unequivocally disclose the claimed [invention] or direct those skilled in the art to the [invention] without any need for picking, choosing, and combining various disclosures not directly related to each other by the teachings of the cited reference.’ Id. (quoting In re Arkley, 455 F.2d 586, 587 (CCPA 1972)). Thus, while ‘[s]uch picking and choosing may be entirely proper in the making of a 103, obviousness rejection, . . . it has no place in the making of a 102, anticipation rejection.’ Arkley, 455 F.2d at 587-88.”
From the above case law I do believe we can conclude that your “hindsight reconstruction” is not allowed at 102 and is very much a concern. Therefore anon is right about time issues at 102. The references used at 102 for a process indeed must be have all the steps executed in the same order, and time.
anon: “….PTAB does not reference ANY Supreme Court cases in this decision.”
Nor do they reference the statute. But let’s be honest here. If we are talking about the statute of 101, and the Supreme Courts line of 101 cases, it matters not if the claim contains any storage mechanism, or any machine or apparatus whatsoever. Computers, software, and so called business methods are not Court created judicial exceptions for patent eligible subject matter. The claims must be considered as an “Integrated” inseparable whole, as required by the Court and the statute. The PTAB knows, as do the anti patent crowd, that if you follow the law and apply “Integration Analysis” software, and so called business methods will more likely than not, be found statutory subject matter. Therefore certain PTAB panels will simply ignore “Integration”, just like certain anti patent commenters on this blog.
“in what way is a “process” a physical thing?”
In the same way a “particle” is a physical thing. In fact , in that way, everything is a process, and every process is physical.
And Leopold, since you withdrew your apology, you still owe me answers to atone for your unwarranted smarminess.
Where are they? Crips, man, you asked twice within an hour and a half, and now you have had DAYS to reply.
What’s up with that?
Yes – but on 6.
And on you, as you (yet again) charge at the anon, while ignoring the asinine comments of 6.
Gee, that’s a surprise.
Not.
”Without more none of the CD’s that they will accuse infringers of making can do anything either.
LOL, big difference 6 – as you should be well aware – Think rivets, tires and bullets.
As opposed to what you are attempting to do with a REJECTION. Guess what that means, 6? You FAIL.
Congrats.
”They’re all coasters “without more”. Specifically they need a computer, either on that existed at time of filing, OR in the future.
LOL, still trying for the magic future thingie?
Good luck with that.
”Yes, I know, and I say it was prior art all along.
And we both know you are wrong – tell me what happens if your futuristic thingie is not magically made to happen? Guess what – your attempted 102 is bogus.
And THAT is true all along.
”Because I never assert that it happens [having the basis under law to do the magic future thingie]. I assert that the old composition was always prior art.
LOL – pay attention 6 – you NEED this magic thingie to happen – the assertion is implicit in your position.
That’s why you fail. Well, one of the many reasons.
”To be clear, just as an aside, and separate from the question of whether the old CD is prior art or not, I do assert that the old composition becomes INFRINGING when I make my machine. Infringement however is a distinct concept from whether or not something is prior art. Which you would know if you weren’t an amateur. But you are, so you didn’t, but hopefully you’ll learn now.
LOL – different concept – of course. Related logically – you bet. YOU should know that too 6.
Stop with your petty pedantic games. Try again to read what I actually wrote.
”And for the one millionth time, I change something which is not claimed, so what of it?
LOL, so the change which you readily admit to wrecks your 102 position, as it it THAT change that you need to be present in Britney, as THAT change is where you want to draw your ‘inherency’ from.
Too bad, so sad.
”Let me try this another way anon, in making a rejection of a claim including a functional limitation, or other inherent property of a product, does the office need to a. show that the inherent property/function of the product was known as of the effective date of the application before it or b. show merely that the inherent property/function of the product is present, regardless of the date of the evidence used to establish such? Note that the answer is very simple and straightforward law that is applied across the whole office on a daily basis and has been stated on numerous occasions by courts. I’ll give you a hint. The answer is b. And it always will be b. So then why is it that B claims should get a pass when other claims get routinely rejected because their functionality, or other inherent property, was inherent in the prior art? Be as specific as you can if you don’t mind.
LOL , 6 – we just got done showing that it was not an inherent property – pay attention.
Very simple and very straightforward – you added something – and that added something had what you are claiming is the ‘inherent’ portion.
Britney is still just Britney.
I don’t need to be more specific than that – after all, it is you that is trying to change the law.
”According to you. [well known maxim regarding anticipation and infringement]
LOL – that’s it? Of course according to me – I just said it. It also happens to be true. And you know it. Thus your lack of even a real attempt here.
”Nah brother, I pay especial attention to the “functionally related material”, i.e. the little structures on the CRM. I simply have pointed out that we can make a new machine to interpret the old instructions on an old CRM in the manner claimed and thus use the old CRM as an anticipating reference. I most certainly rely especially on the “functionally related material” for my rejection, that is far from “ignoring it”.
You are ignoring that you have added something – remember that little part? Kind of difficult to honestly say you do not.
”I agree entirely that it matters. I pay special attention to the content in drafting the rejection.
And extra absentmindedness to the little part about the added stuff, I see. And major non-attention to your massive FAIL.
”I’m not sure how you dreamed this up [Morse and the first CRM invents all CRM’s per 6’s logic], but let’s agree to set it to the side for a second since it is not immediately pertinent to the instant discussion ok?
LOL – no comeback to this? Sooo disappointing. It is pertinent because it shows the fallacy that you are engaged in.
”The 103 “law” or the 101 “law”? Because if you’ll recall, we’re talking 102 here brosef.[6 attempting to ignore another provided reason why his scheme fails: the exceptions to the printed matter doctrine]
You have done nothing further in your understanding of the exceptions to the printed matter doctrine? Sorry 6, I cannot hold your hand on every little bit of patent law knowledge.
”What you say doesn’t trump squat for many reasons but mostly because you’re an amateur.
LOL, what does it say when a so-called ‘amateur’ (which I am not – but that’s a different fantasy of yours) owns you so completely? What’s that? You want to use your ‘bum’ excuse about now?
”I’ve stated this several times now, what I need to show is: I need to show a reference showing the old CRM. An old CRM is not “nothing” anon.
LOL, and you fail several times as I explained: a CRM without more does not do it for you. Enjoy your Barney show.
”Actually I say that quite often, on a daily basis. [6’s attempted obfuscation relating to 102 based solely on one part]
Y A W N, this is getting old 6 – parsing my comments and ignoring the context? Really? I thought you said you were paying especial attention to the content. And here, you have forgotten it already?
”I’m not “depending” on any “critical element” other than the old CRM. That’s it, that’s all.
LOL – WRONG – you said so yourself. You are either needing the critical element of the future machine or the critical element of the additional programming. Without it, all you have is your Barney show.
Sorry 6 – you lose.
”Again, I’m not changing the old “item”, aka the windows 95 CD, at all.
LOL – yes you are – you said so yourself. And you admitted that the old item, by itself was not good enough because you said you needed the additional part. JEEBUS 6 – stop trying to change your story.
”What specifically am I “adding” to the windows 95 CD anon?
Read what you wrote 6: the additional programming.
”Yeah, we do that all the time in functional/inherency cases like cases with B claims. Perfectly legit.
LOL – concerning the single reference? LOL – nice attempted spin. Except you needed more, remember? The critical portion, remember? The content portion, remember? And remember that fallacy about assuming the point you need to prove? Yes, you are doing that again.
LOL
”Though, we’re not really making an “argument”, we’re making “a rejection” and showing our technical reasoning regarding the functional/inherent property.
LOL – you don’t have the inherency, remember?
”To be clear, I 100% agree. I’m relying on some technical reasoning as to why the functionality is already present in britney and/or I rely on a brand new reference (which I’m not combining in a 103) detailing how some newly developed computers would interpret Britney. I agree entirely. Notably, that is the same thing I would do in any other application involving such a limitation. And it is perfectly legit. Which you would know if you weren’t an amateur. But again, you are, so you don’t know that, and so I grow bored.
“ And it is perfectly legit.” Except it is not – stop assuming what you need to prove, because your ‘proving it’ is massively failing. And the functionality was not there – remember you had to add programming.
”It is a function which is inherent to britney, just waiting for some future inventor to come along and set free!
LOL – set it free? WRONG. This repetition of yours is baseless gibberish. You have nothing with Britney. ZERO.
”I presume that you’re claiming the resistors, and so you can’t change the resistors. They claim the CRM, so I can’t change the windows 95 CD, so I leave it alone and change the unrecited computer.
LOL – this comment makes no sense and completely misses the point of the analogy. Um, you do know how to actually think through an analogy?
”I stand unpersuaded, tell it to the judge [6 now recognizing that I had in fact provided substantive explanations].
LOL – You first claimed I did not provide a substantive explanation. You now move the goal post to an explanation which persuades you? LOL sorry 6, persuading you simply is not a requirement. As I posted, you have this rather lemming-like pathological thing against software patents. That is a ‘you’ problem.
”Pretty sure you don’t know what that word [lemming]means. To what “group” headed towards destruction do I belong to here? To my knowledge both MM and LB aren’t fully onboard. Other than the people at the office, following me I might add, I know of no other people making such rejections or arguments in court or otherwise.
LOL – Malcolm and his cheerleader Leopold? Could you get any less credible people? I mean, seriously. The company you keep – way too funny and you don’t even realize why
”And I say such [adding another reference and trying to use a 102] is proper in just these kinds of circumstances. And then you hole up and decline to state why such would be. Three years of dancing around the basics anon. Good work not having figured it out yet.
“ just these kinds of circumstances” LOL, says who? Oh, that’s right – that is you yet again assuming the point you need to prove.
Too bad, so sad.
”Alright I’m willing to discuss this hypo [Star Trek replicator] and the difference that will lead to what you say being so and what I say being so at the same time.
Ok, so you have a machine, that takes multiple component chemicals and makes them into other chemicals/molecules, based, you believe, on “programming” of the object putting them together (though in star trek who knows if it’s programming or not). Nothing in the instant discussion is taking multiple components and making them into other things based on “programming” of another object that is putting them together. It is at least for that reason that your hypothetical is distinguished from the instant case on the facts. Likewise, there is no clear analogy that has been laid forth or any explanation as to why they are analogous.
“ takes multiple component chemicals” But no six, it is just one silly old prior art container full of molecules. Think of it as a Britney of molecules (or, more your speed, a Barney of molecules. There is no ‘multiple components,’ as there is only the single vat. It is for at least this reason you need to TRY AGAIN.
In other words 6 – every attempted retort by you is nothing but FAIL.
Try again.
Ouch. That’s going to leave a mark.
“Britney item – without more simply cannot do what you want it to do,”
Without more none of the CD’s that they will accuse infringers of making can do anything either. They’re all coasters “without more”. Specifically they need a computer, either on that existed at time of filing, OR in the future.
“No 6 – it is prior art or it is not prior art. It is not ‘not prior art one day, and then after a some later invention, magically becomes prior art.”
Yes, I know, and I say it was prior art all along.
“You provide no basis for how this happens under law,”
Because I never assert that it happens. I assert that the old composition was always prior art.
To be clear, just as an aside, and separate from the question of whether the old CD is prior art or not, I do assert that the old composition becomes INFRINGING when I make my machine. Infringement however is a distinct concept from whether or not something is prior art. Which you would know if you weren’t an amateur. But you are, so you didn’t, but hopefully you’ll learn now.
“your need to change what you have in order to reach your desired endpoint.”
And for the one millionth time, I change something which is not claimed, so what of it?
“You do not get to add more, be it another reference or some additional programming and get to maintain your 102 basis.”
Let me try this another way anon, in making a rejection of a claim including a functional limitation, or other inherent property of a product, does the office need to a. show that the inherent property/function of the product was known as of the effective date of the application before it or b. show merely that the inherent property/function of the product is present, regardless of the date of the evidence used to establish such? Note that the answer is very simple and straightforward law that is applied across the whole office on a daily basis and has been stated on numerous occasions by courts. I’ll give you a hint. The answer is b. And it always will be b. So then why is it that B claims should get a pass when other claims get routinely rejected because their functionality, or other inherent property, was inherent in the prior art? Be as specific as you can if you don’t mind.
“If you were to allow that, then the maxim “That which infringes if later, anticipates if earlier” would be equated to “Any CRM, since earlier and anticipating (by your ‘logic’), makes all later CRM infringing”, which is patently false.”
According to you.
“Your logic has been shown to be false because you are relying only on the fact that the CRM is a medium, and you are ignoring the functionally related material of what is on that medium”
Nah brother, I pay especial attention to the “functionally related material”, i.e. the little structures on the CRM. I simply have pointed out that we can make a new machine to interpret the old instructions on an old CRM in the manner claimed and thus use the old CRM as an anticipating reference. I most certainly rely especially on the “functionally related material” for my rejection, that is far from “ignoring it”.
“Content very much matters, and you simply cannot – as you attempt – say “whatever” to the content portion”
I agree entirely that it matters. I pay special attention to the content in drafting the rejection.
” You would be very much ignoring the law, and would in fact be sanctioning that old Morse claim because you would be holding that all later CRMs were invented with the first CRM.”
I’m not sure how you dreamed this up, but let’s agree to set it to the side for a second since it is not immediately pertinent to the instant discussion ok?
” You would also be violating the law pertaining to the exceptions to the printed matter doctrine.”
The 103 “law” or the 101 “law”? Because if you’ll recall, we’re talking 102 here brosef.
“- LOL – why?”
What you say doesn’t trump squat for many reasons but mostly because you’re an amateur.
“you agreed that you showed what I said you showed: nothing”
I’ve stated this several times now, what I need to show is: I need to show a reference showing the old CRM. An old CRM is not “nothing” anon.
“You don’t get to say, “this part here is old, thus 102” ”
Actually I say that quite often, on a daily basis.
“Especially when the critical element that you are depending on”
I’m not “depending” on any “critical element” other than the old CRM. That’s it, that’s all.
“is required to CHANGE the old item be what you want it to be”
Again, I’m not changing the old “item”, aka the windows 95 CD, at all.
” (change with the addition of the thing you are trying to magically wave a wand about)”
What specifically am I “adding” to the windows 95 CD anon?
“some element more than the single reference is required to make your argument concerning the single reference you want to use”
Yeah, we do that all the time in functional/inherency cases like cases with B claims. Perfectly legit. Though, we’re not really making an “argument”, we’re making “a rejection” and showing our technical reasoning regarding the functional/inherent property.
“You are no longer relying strictly on the one Britney item.”
To be clear, I 100% agree. I’m relying on some technical reasoning as to why the functionality is already present in britney and/or I rely on a brand new reference (which I’m not combining in a 103) detailing how some newly developed computers would interpret Britney. I agree entirely. Notably, that is the same thing I would do in any other application involving such a limitation. And it is perfectly legit. Which you would know if you weren’t an amateur. But again, you are, so you don’t know that, and so I grow bored.
“That is not inherency. ”
It is a function which is inherent to britney, just waiting for some future inventor to come along and set free!
“It is the same ‘inherency’ in a set of individual resistors that you can later decide to configure the individual resistors in series or you can decide to configure the individual resistors in parallel. ”
I presume that you’re claiming the resistors, and so you can’t change the resistors. They claim the CRM, so I can’t change the windows 95 CD, so I leave it alone and change the unrecited computer.
“That’s just it 6 – I have provide the substantive explanation”
I stand unpersuaded, tell it to the judge.
“It is your lemming”
Pretty sure you don’t know what that word means. To what “group” headed towards destruction do I belong to here? To my knowledge both MM and LB aren’t fully onboard. Other than the people at the office, following me I might add, I know of no other people making such rejections or arguments in court or otherwise.
“You insist on adding more to the single reference and ignoring that fact. ”
And I say such is proper in just these kinds of circumstances. And then you hole up and decline to state why such would be. Three years of dancing around the basics anon. Good work not having figured it out yet.
“Look on the bright side, even after a Star Trek style replicator is invented – which would be a machine that fits my chemical example – patents will still be allowed and the vat of input chemicals will not serve as a 102 under your broken logic.”
Alright I’m willing to discuss this hypo and the difference that will lead to what you say being so and what I say being so at the same time.
Ok, so you have a machine, that takes multiple component chemicals and makes them into other chemicals/molecules, based, you believe, on “programming” of the object putting them together (though in star trek who knows if it’s programming or not). Nothing in the instant discussion is taking multiple components and making them into other things based on “programming” of another object that is putting them together. It is at least for that reason that your hypothetical is distinguished from the instant case on the facts. Likewise, there is no clear analogy that has been laid forth or any explanation as to why they are analogous.
Leopold, for your sitcom, maybe you can get 6 and Michael R Thomas to give you permission to use them as the main comic relief.
They both seem to think that time travel and pure future conjecture are adequate under the law.
You want me to do more than your nothingness. Thing is 6 – and something you still have not grasped – you are the one advancing a novel theory of law and it is up to you to justify that novel theory. That is why my ‘anon says’ trumps your ‘6 says’.
You have shown nothing.
You have banked on nothing.
You have confirmed that you have nothing.
Nothing real, that is. You have some future magical machine, or some future hindsight driven, reverse engineered ADDITIONAL programming that is required. You want to use 102, but simply don’t grasp that you cannot because your Britney item – without more simply cannot do what you want it to do, what is required under law to do. You somehow think that it magically becomes prior art at a later date based on actions and developments at a later date. No 6 – it is prior art or it is not prior art. It is not ‘not prior art one day, and then after a some later invention, magically becomes prior art. You provide no basis for how this happens under law, and you simply miss the fact that you require more than Britney in your lame example.
Your statement of Britney or “[whatever random thing you choose] is preposterous and my choice for you: Barney merely fits how preposterous you are. You say that you have not said such preposterous nonsense, then you repeat he very same preposterous nonsense: “, I would use any of them for a random more modern B claim” – doesn’t matter which you choose 6 (Britney, Microsoft, or Barney), as with any ‘random’ choice, your need to change what you have in order to reach your desired endpoint.
You have admitted as much when you said ‘a little programming.’
Reviewing your failed answer to the Grand Hall experiment, this flaw in your ‘reasoning’ was pointed out to you. You do not get to add more, be it another reference or some additional programming and get to maintain your 102 basis.
For a variety of reasons.
If you were to allow that, then the maxim “That which infringes if later, anticipates if earlier” would be equated to “Any CRM, since earlier and anticipating (by your ‘logic’), makes all later CRM infringing”, which is patently false. As I said, this is merely the vacuous ‘House’ argument which has been shown to be pure fallacy.
Your logic has been shown to be false because you are relying only on the fact that the CRM is a medium, and you are ignoring the functionally related material of what is on that medium. Content very much matters, and you simply cannot – as you attempt – say “whatever” to the content portion. You would be very much ignoring the law, and would in fact be sanctioning that old Morse claim because you would be holding that all later CRMs were invented with the first CRM. You would also be violating the law pertaining to the exceptions to the printed matter doctrine. You are wrong in more than one way, and in more than one way, more than one avenue, you are displaying your lack of understanding.
“What you say doesn’t trump jack squat.” – LOL – why? Because you say so? You have provided no basis for what you say.
“ Pretty sure I didn’t say that.” – You did: to my statement of “And you have shown nothing” you replied “that such is all I need to ‘show’.“ Not contesting my statement that you showed nothing – you agreed that you showed what I said you showed: nothing.
“ There are several other ways to show when the CRM was offered for sale etc.”
Nice strawman – no one is questioning that the old CRM is old. But merely being old is not enough. Think of the chemical example. All elements are old. All bonding mechanisms are old. You don’t get to say, “this part here is old, thus 102” Especially when the critical element that you are depending on – some element that had yet to be created until after the invention and with hindsight of the invention is required to CHANGE the old item be what you want it to be (change with the addition of the thing you are trying to magically wave a wand about), some element more than the single reference is required to make your argument concerning the single reference you want to use
“OR A COMPUTER TO BE INVENTED IN THE FUTURE”
This ‘whatever in the future’ magic dependency is what you have failed to show. You are attempting to make the Britney item have inherent characteristics and you are neglecting to note that you have added some future invention – be it additional programming or some additional, not yet invented machine – in order to reach the claim. You are no longer relying strictly on the one Britney item. You are no longer relying on what existed at the time of that one item.
Mirroring the Grand Hall experiment, you are not allowed to perform further invention and then attempt to go back in time with that later invention. That is not inherency. And, in the chemical analogy, it is exactly the same ‘inherency’ as what existed in the vat of elements. Or to use a different analogy – it is the same ‘inherency’ in the box of tinkertoys. It is the same ‘inherency’ in a set of individual resistors that you can later decide to configure the individual resistors in series or you can decide to configure the individual resistors in parallel. You continue to neglect that ‘configured to’ is structural, and Britney simply is not configure to – without more.
“ decline to note any substantive explanation”
That’s just it 6 – I have provide the substantive explanation. I have shown you that it is your blindness that is getting in the way of your understanding. It is your lemming behavior that you insist on marching up the cliff that prevents you from understanding what is plainly evident. I have attempted to hold your hand. You insist on adding more to the single reference and ignoring that fact. There is ignorance afoot – but that ignorance is not mine.
“Look on the bright side, even though you’re”
Look on the bright side, even after a Star Trek style replicator is invented – which would be a machine that fits my chemical example – patents will still be allowed and the vat of input chemicals will not serve as a 102 under your broken logic.
“You seriously think Britney (or perhaps something earlier for you like maybe Barney the purple dinosaur) is a 102 for Microsoft.”
I never said such preposterous nonsense. I said britney OR MS windows 95 OR Excel 98 is a 102 reference for my use in rejections. You haven’t asked yet, but to be specific for you, I would use any of them for a random more modern B claim, let’s say, one filed today, or in the last 3 years. Your choice on both categories. I know this is seriously taxing your brain, but I figure it’s simple enough for you to follow along with.
“Not just ‘something’ 6 – go back and read again”
What you say doesn’t trump jack squat.
“Look at what you just said: all you have to show is nothing.”
Pretty sure I didn’t say that. I’m pretty sure that I said I need to show a reference showing the old CRM, for example, I could enter an old CD of mine into evidence with an affidavit that I bought it previous to x year. Or I could find a publication detailing when that CRM was published/released. There are several other ways to show when the CRM was offered for sale etc.
Finally, and just to reiterate straightforwardly, the other thing I need to “show” is that I have a good reason to believe that the CRM in the reference has the appropriate configuration to perform the recited functionality ON A COMPUTER THAT EXISTED AT THE TIME OF FILING OR A COMPUTER TO BE INVENTED IN THE FUTURE. That is literally all we ever need to make a showing on functionality or any other inherent characteristic of a product. Which, I know, is probably news to you, but which you can certainly look up in your precious lawl and confirm on your own time.
This is 6, signing off since you decline to note any substantive explanation of why in response to just why it is that my machine must come before the filing date or why the “controlling date” (your term) will be behind the filing date if I make the machine after the filing date. Thus having held your hand through yet another concept that you are, after many years, finally showing signs of understanding I’m pretty much done for this thread. Even if you still think you’re simply superior based upon, I’m guessing, your invincible ignorance and ability to ape that which has been posted by other posters or something you read in an article somewhere.
Look on the bright side, even though you’re at a loss for anything to say as to why other than an “argument from the authority of an amateur”, LB might clue you and me both in to why my after arising machine will not suffice for a 102 unless I actually make one (or several hundred thousand).
“Lest anyone’s britches get too balled up, let me be clear that I’m talking about how a court might rule, not how a court has ruled.”
LOL
Translation: no court has entertained any type of such lunacy, so this is like an opinion – unprovable and worth no more than an opinion that the moon really is made out of cheese.
Now why would that get anyone’s britches too balled up, Leopold?
It’s actually quite humorous – perhaps even can pass a plot for a sitcom.
Not just ‘something’ 6 – go back and read again.
My just say something trumps your just say something.
Look at what you just said: all you have to show is nothing. That’s right – that’s what you said.
You seriously think Britney (or perhaps something earlier for you like maybe Barney the purple dinosaur) is a 102 for Microsoft.
LOL – your magic wand future thingie – maybe Leopold would like to see you being the ‘star’ witness in such a trial.
That laughter you here won’t be laughter with you.
Close tag.
Chuckle away, as it is the laws of logic and reason that you are breaking.
It is the alchemists’ wand that you are waving – being able to ‘magically’ transmute anything into something else, while attempting to do so with a straight face and say “we are following patent law in holding that Britney 102’s all CRM.
That which anticipates if before, infringes if later – all you have done is move the fallacious ‘House’ argument to a carrier, while ignoring the fact that the carrier is not the total focus.
But please, keep chuckling. Never mind the real world.
Exactly wrong 6, as I don’t recall anyone ever brushing up to your insanity about a Britney Spears disc being a 102 item for all CRM.
You ask me to hold your hand while you are still so delusional.
LOL – sorry, but no hand holding can help you. You are too invested in your delusions. I tried to put it in a different light for you with the chemical example, since it is obvious that you are pathologically set against software. You almost grasp the lunacy, but fail at the cusp, and claim that chemistry cannot be ‘programming’ – showing yet again both your ignorance of the purpose of the analogy and the fact that programming is inventive, and the stuff of patents.
You fail to see that Britney simply is only Britney. Anything more that you do – the additional programming or the wave of your magic wand with a future computer does not change Britney, and Britney will never be a 102 for being merely a carrier, as being merely a carrier was never the claim.
You defeat yourself – and simply do not know it.
“Yes, I was talking about 112. I don think your 102 works until you actually build your illegal computer.”
You don’t think the invention of such a machine will do? I don’t see why I would need to build the thing. Like the softiewafties always like to say, it’s totally enabled. The construction will take considerable time and money on a per claim basis. If I only needed to make one, that’s doable. But I can’t do them all.
Any particular reason why you think it would need to be constructed first rather than simply invented?
“Because anon said so” always trumps “because 6 said so”
I see. Well, that explains why we’ve been having the disagreement for many years. Because you think what you say simply trumps something. Hilarious.
“And you have shown nothing but “because 6 said so” – the opposite of a very fine rejection.”
The thing that you don’t understand is that such is all I need to “show”. A reference that shows an item which predates the claim and which would be encompassed by the claim. Windows 95 CD bro. Showing the use of the CD is immaterial to making a rejection of a product claim. All I need is a reason to think that the product is properly “configured” to function in the way recited AT THE TIME OF FILING OR IN THE FUTURE. And I have put that forward, in spades, and which you’re well aware of.
If that’s all you’re willing to say on the matter then I suppose we’re done here. Perhaps we can have another year in between chats on the topic? Thanks in advance.
“Try again to see the similarity of what you propose and the chemical analogy I provide.”
There may be some “similarity” buried deep in there, but I don’t immediately see it. Perhaps you can shed some light on the “similarity” for me? Just as an aside, most “old and known elements, put together by old and known forces)” aren’t programmable at all, so I’m not sure how “adding a little programming” to them will come up with ANY new composition at all. You cannot, for instance, take a couple of benzene rings held together by a nitrogen atom, “add some programming” and pop out a three molecule benzene rings held together by a nitrogen atom and I’m not sure why you would assert such a ludicrous proposition.
All I see is your avoiding very simple questions as you always accuse me and some others of doing. I mean seriously, if the situation is so cut and dry, simply hold my hand through your thinking as to the answers to the “why” questions I posed above. We’ve been discussing it for years, you could spend a whole five minutes to go ahead and set me straight. Lord knows I’ve held your hand through a ton of simplistic matters, that I think you finally got a handle on after I helped you, over the last few years, so you owe me one.
What I suspect is that you’re just amateurishly aping what pingerdoodle, NWPA, and NAL, all lawlyers, told us years ago without understanding any of it. And that isn’t to imply that they did either, because this was precisely the point at which they became quite at a loss to explain things as well.
Yes, I was talking about 112. I don think your 102 works until you actually build your illegal computer. The fact that you could makes the claim indefinite, at least according to my mindless theory.
Lest anyone’s britches get too balled up, let me be clear that I’m talking about how a court might rule, not how a court has ruled.
“Because anon said so” always trumps “because 6 said so”
Always.
And you have shown nothing but “because 6 said so” – the opposite of a very fine rejection.
“Orthokinetics, Inc. v. Safety Travel Chairs, ”
I just read the synopsis, and I’m not sure what relevance this 112 case would have to a 102. Might be relevant to your 112 proposed rejection.
“The good news is that you’re OK unless you try to sell the CD to your neighbor, or make copies. ”
Or listen to it.
“The point here (at least from my perspective) is not that 6 should reject your CRM over a Britney Spear’s CD, but that there’s something wrong with a claim that defines the physical characteristics of the device solely by reference to unspecified external apparatus.”
That’s pretty much the point. But the only way to drive it into the system is for me to make the rejection, since, apparently, people with millions of dollars on the line cannot be bothered to make such a machine and tell a court about it. I guess these cases are few and far between with ta rds on the legal teams. Or else, the teams with smart people on them avoid going to court at all. I’ve never had anyone argue against the rejection stringently enough that I could see them risking going to court. Much better to preserve the validity of their B claims and harass ta rds.
“The timing of your additional hindsight or additional programming or whatever semantic term you want to use is very much a problem for you 6. ”
Ok, I’m listening. WHY?
“That would be the controlling date for you – and you simply lose.”
Setting aside for a moment what a “controlling date” is, go ahead and tell me: WHY IS THAT ANON? PLEASE LAY THAT OUT FOR ME! Why is the “controlling date” of the publication/release of the windows 95 CD later than when it was published? Since we’ve been discussing this for years now and you never tell me why, I’m going to presume it is “just because anon says so”. Or, “anon thinks that you need to have a disclosure of the special computer to anticipate a claim that covers, literally, CD by itself, where the claim was drafted specifically to cover the CD by itself” so neyeh! If those are your only “arguments” against this very valid rejection, fine, tell them to the board.
6,
Try again to see the similarity of what you propose and the chemical analogy I provide.
Clearly, it is you that simply does not understand what is going on and why your idea is dead on arrival.
“But watch yourself, 6, anon says your future hindsight machine is illegal – ohs noes!!!”
I know, I caught on to that, and I’ve been chuckling about it to myself all of yesterday night. It’s an “illegal” machine. Lol. I wonder if it is breaking criminal laws, civil laws, or just laws in anon’s own mind?
Gl with that, I certainly don’t need it for the B claims I’m having to reject, but you’re welcome to try.
“then you are not using either the old CRM”
/facepalm. Sure I’m using the old CRM.
“or the computer (as is)”
And so WHAT? For the millionth time anon, you seem to think that the computer must have been modified previous to the filing date. Why do you think that? Do you think the computer is included in the B claim, or do you think that the computer is not included in the B claim? To be clear, the only thing claimed, and which I cannot modify, because it is “the claimed invention”, is the old windows 95 CD. Everything else is fair game to modify to show that an old product/composition/apparatus possessed the claimed functionality/functional “relation” to an unclaimed computer IN THE FUTURE, just like pretty much all the things which will infringe the claims are. Which I know goes over your head, but which is fairly simple.
“and are you doing this ‘programming’ on the fly? ”
I might, or I might plan it out. What of it?
“You realize of course that with this additional programming all you have done is alter your starting CRM”
Um no, I didn’t alter the windows 95 CD at all. I programmed the computer, I didn’t mess with the CD at all. How do you think I’m altering my CRM?
” you are infringing”
Nah, I avoid infringing with my new computer in one of three ways. 1. by making the computer’s instructions specifically to NOT perform the function to do the functions save when the windows 95 CD is inserted and provides the “go word” instructions to perform the function. Or 2. literally make the computer programmed such that it will respond to the instructions literally on the CD in the way recited, but in such a way that the instructions just on the computer would never perform the functionality saving only interaction with the instructions on the CD. Or 3. I make my computer, physically (as compared to by programming), such that it responds to the instructions on the CD in the manner claimed, but such that it literally has no function by itself.
And finally, even if I did infringe, that is irrelevant to whether or not the claim is invalid. Invalidity and infringement are two separate analysis. Not to mention that I don’t actually have to build the new computer, all I need do is “invent” it, at most. A thought experiment should suffice for a simple district court summary judgement procedure.
“you have not ‘proven your case’ that B claims are in any way impermissible ”
Of course I haven’t “proven any case” that B claims are in any way impermissible. I have however made valid 102 rejections of various B claims. And also noted that I’ve never seen a B claim that couldn’t be 102b ed in the same manner. This is not me “proving a case”, for the millionth time. It is an observation.
“Your grasp of logic and what you are doing”
Um, I know good and well what I’m doing. You’re the one that doesn’t seem to understand what I’m saying, as it is fairly simple. You apparently thought that I was making a 103 instead of a 102 for years. Either you don’t understand, or you’re insisting that I do something differently than my proposal, like modifying the CRM (the windows 95 CD). Or you’re pretending that what I’m doing is in some what “impermissible”, either through “hindsight” or through “infringing”, neither of which are valid grounds to argue against a 102 rejection. Which is something you would know if you had any experience in the field. But since you don’t, it all makes such simplistic sense to you how your arguments are super persuasive even when they are entirely spurious. You should look that word up, because knowing it might help you reevaluate 99% of what you post on PO.
Leopold,
Why the play (again) at the Crybaby Veto?
There is nothing gratuitous about the (accurate) comments I have made.
If you don’t want your comments labeled as mindlessly tagging along 6’s trainwreck, then don’t make comments that mindlessly tag along on 6’s trainwreck.
It’s that easy.
More gratuitous insults? What a surprise.
“If you folks were on your game,…It would be interesting to see this litigated, in any event.”
LOL – as interesting as a trainwreck – which is what we have here with 6’s fantasy and Leopold’s mindless tag-along.
Let me know if this is a suit that you would actually file, Leopold. I may want to have you file my follow-on chemical equivalent of 6’s future hindsight/to-be-programmed/lol machine. Just think, pretty much any vat of hydrocarbons plus minor stuff will 102 pretty much the entire pharma industry.
At least for the ‘game’ you and 6 are playing.
Those skilled in the art would know whether or not they are infringing.
Huh? 6 makes his machine in DC, and suddenly the Britney CD in your mom’s basement in Wichita is infringing. How are you supposed to know that? The good news is that you’re OK unless you try to sell the CD to your neighbor, or make copies. Both of which are immoral acts, in this particular example.
The point here (at least from my perspective) is not that 6 should reject your CRM over a Britney Spear’s CD, but that there’s something wrong with a claim that defines the physical characteristics of the device solely by reference to unspecified external apparatus.
If you folks were on your game, you would cite Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565 (Fed. Cir. 1986). That would be a good comeback, but I’m not sure you win – there are a number of distinctions that can be drawn.
It would be interesting to see this litigated, in any event.
Special purpose future machine? Sounds like undue experimentation to me — not enabled.
The special purpose future machine is not the prior art. The prior art 6 is talking about is the old Britney Spears CD – the skilled artisan already knows how to make it, and already has (unfortunately, in this particular case). I’m pretty sure the skilled artisan knows how to put it into the CD drive of a computer.
But watch yourself, 6, anon says your future hindsight machine is illegal – ohs noes!!!
6,
I have a great chemical equivalent of your future hindsight/to-be-programmed/lol machine.
It’s great. You can take any composition (made up of all old and known elements, put together by old and known forces), add a little ‘programming,’ and come up with ANY new composition at all.
ANY.
LOL
The timing of your additional hindsight or additional programming or whatever semantic term you want to use is very much a problem for you 6. That would be the controlling date for you – and you simply lose.
Thanks for proving the case for B-claim patentability.
“all I’m doing is programming”
LOL – 6, then you are not using either the old CRM or the computer (as is) – and are you doing this ‘programming’ on the fly? Are you using some medium that captured this programming? You realize of course that with this additional programming all you have done is alter your starting CRM into an equivalent of the B claim – you are infringing (and being a real doofus and time waster about it), you have not ‘proven your case’ that B claims are in any way impermissible – you have proven the opposite.
Your grasp of logic and what you are doing has not changed since you failed the Grand Hall experiment.
“Is your “hindsight” prior art?”
Um, no. The old CD or whatever other medium I’m using is. My “hindsight” is, most definitely not “prior art” and it doesn’t need to be.
Nah brosef, all I’m doing is programming my “special purpose future” compooter to respond to the instructions on the old CD (or whatever other thing I’m using as the medium in the rejection) in whatever manner is recited in the claims. It isn’t rocket scientry. A small dedicated team should be able to manage it in under a month, probably a week for a simplistic claim, a year tops for more complex ones. For a really simplistic claim of course myself or even a dedicated 12 year old could pop it out in a day. Say, oh, I don’t know, the B claim equivalent of the method in Wildtangent I should probably be able to pop out in a day or two, a week tops.
defending claims that aren’t even mine
Because you’d never waste you time doing that, right?
Though I will use a specially built future machine.
Prior Art Must Enable a Skilled Artisan to Make the Invention without Undue Experimentation. link to patentlyo.com
Special purpose future machine? Sounds like undue experimentation to me — not enabled.
Yes, he needs hindsight to do it. But where does hindsight come in with respect to the law of infringement, anticipation, and indefiniteness?
102 is based upon prior art, public disclosure, or offer to sale. 103 is based upon prior art at the time of the invention. Is your “hindsight” prior art? No. Case closed.
As for indefiniteness, what makes the claim ambiguous? The scope of the claim is not ambiguous. Those skilled in the art would know whether or not they are infringing.
Is the term “reasonable” ever uttered at the USPTO? Honestly, I’m not sure. However, flights of fancy must be the “phrase of the day” every Thursday.
“I look forward to ANY examiner trying to 102 ANY application with a Britney Spear CD.”
I actually use slightly better references than britney’s CD irl but I could do a special one just for you 🙂
“is not – and cannot be used by itself – you need your illegal future/hindsight machine.”
And why is that? Are you familiar with what all is required to infringe?
“For that 102 rejection, I am most sure you are NOT past “attempts” and I am most sure that you are still in fantasy land.”
K.
LOL
I look forward to ANY examiner trying to 102 ANY application with a Britney Spear CD.
And you quite miss the point 6 – your old CRM
(which a music CD does not qualify, by the way – not in the patent sense – see my lectures to Ned about the Useful Arts requirement)
is not – and cannot be used by itself – you need your illegal future/hindsight machine.
For that 102 rejection, I am most sure you are NOT past “attempts” and I am most sure that you are still in fantasy land.
“your CRM (as a single reference) does not exist without the future/hindsight machine you had to build.”
Your brit spears CD from 1998 doesn’t exist? My old excel CD doesn’t exist? My old windows 95 CD doesn’t exist? All of those things “exist”.
Come on anon. All of those CRMs totally exist.
Do you mind telling me how you’ve arrived at this conclusion that they “do not exist”? Because I’m looking at my old windows 95 CD right at this minute. It appears to exist.
“you are going to attempt to use 102”
I wouldn’t really say I’m going to attempt it, I’ve already done it several times irl. So I’m kind of past “attempts” and into “making routine rejections”.
LOL – you are going to attempt to use 102..?
Think for a second – your CRM (as a single reference) does not exist without the future/hindsight machine you had to build.
Come 6 – you “live” this stuff and you are going to self-destruct so quickly?
LOL
Great, now that you can say it (step one), can you figure out why it devastates your postion?
“based as it is in the not-allowed hindsight ”
You do know that “hindsight reconstruction” is only disallowed in a rejection under 103 correct? Any rejection I shall be making under this section (setting aside LB’s 112 theoretical rejection) is a 102. 102 vs 103 bro. There’s a difference. And one difference is that hindsight reconstruction is not a concern under 102 whereas it is under 103.
“both the different CRM and a specially built, future machine?”
It isn’t a “different CRM”, I’ll use your old brit spears cd if you prefer. Or I can use a PS3 game CD. Or, a windows 95 CD. Or an Excel CD. All old versions of course.
Though I will use a specially built future machine. That’s the plan. 😉
“Has it been done or is this all speculation?”
Nah brosef, it’s my invention. It’s only as “speculative” as any other invention.
“Regardless, if you think it is possible, then you really don’t know anything about computers.”
Give me a million dollars and I’ll have one to you in less than a month. It’s totally enabled.
Yep, I can.
“I suppose this is based on some doctrine you made up”
No. It comes from reading the law and the background to that law and understanding the policy drivers.
Too clever by half you are IANAE – another Calvinball face sp1ke for you.
But please, feel free to charge at the red cape of ‘anon said’ like your circle mates.
Thanks for allowing me the opportunity to emphasize something that I have repeatedly distinguished: a 101 argument is timeless (not time dependent), while a 102/103/112 argument is time dependent.
I suppose this is based on some doctrine you made up, that can’t be found in any books on the subject, but is obliquely referred to in an unspecified Supreme Court case from sometime in the past century.
Go on, tell us the name of the doctrine. I bet it’s really catchy.
Thanks for allowing me the opportunity to emphasize something that I have repeatedly distinguished: a 101 argument is timeless (not time dependent), while a 102/103/112 argument is time dependent.
Yet another Calvinball face sp1ke for you IANAE.
That’s going to leave a mark.
Your action, based as it is in the not-allowed hindsight doesn’t actually changed the first item and you are conflating 6’s bogus action with some future event to attempt to drive some odd indefiniteness, which is still unclear how you are making that leap.
You do realize that the bogus 6 action requires both the different CRM and a specially built, future machine? You do realize that needing both likely means that any attempt to ‘logically’ attack just the CRM necessarily fails, right?
What a load of nonsense. At least you make the claim look definite by comparison.
Tell us again the hilarious story about how a later-produced “product of nature” can invalidate an otherwise perfectly good claim. It’ll save me going through the archives.
Your action, based as it is in the not-allowed hindsight doesn’t actually changed the first item and you are conflating 6’s bogus action with some future event to attempt to drive some odd indefiniteness, which is still unclear how you are making that leap.
You do realize that the bogus 6 action requires both the different CRM and a specially built, future machine? You do realize that needing both likely means that any attempt to ‘logically’ attack just the CRM necessarily fails, right?
How do you figure that? (that’s a real question without snark).
To be definite, a claim must allow you to tell whether a particular item infringes or not. I think it’s safe to say that so long as the item itself doesn’t change, that determination ought to remain constant from one day to next. If 6 can make a previously non-infringing computer-readable medium suddenly infringe, without touching it, then the claim doesn’t do a very good job setting out the metes and bounds of infringement, and is indefinite.
Now, how does the fact that 6 used hindsight to build his new computer help your case?
“That’s certainly true.” and “Yes, he needs hindsight to do it.”
‘Nuf said – stop while you are ahead.
“ I think this makes the claim indefinite”
How do you figure that? (that’s a real question without snark).
I missed your comment, 6. Thanks for the tutorial on rasterization. However, my concern was that the elements of the claim are:
(1) a computing system,
(2) a slide show
(3) a process executing in memory …
The first one is definitely a structural limitation. The second one I don’t care for, but I can see an argument that it is structural, if it’s interpreted as a data structure stored in a physical memory. The third one, though – what is that? First of all, do processes execute “in memory”? Second, in what way is a “process” a physical thing? Third, does this apparatus only infringe when it’s turned on and the process is executing?
That claim is a mess.
…the only way to do this would be through hindsight…
That’s certainly true. But the argument is that 6 can make an old computer-readable medium infringe a new computer-readable medium claim, and thus apparently anticipate it, simply by creating a new computer. I think this makes the claim indefinite. Yes, he needs hindsight to do it. But where does hindsight come in with respect to the law of infringement, anticipation, and indefiniteness?
An observer,
You ask “Has it been done or is this all speculation?”
Good question – but I would add that even if this was not mere speculation and in fact had been done, the only way to do this would be through hindsight, since you would necessarily have to match the new computer to the invention and work backwards to make sure the ‘old medium’ maps to the invention.
And yes, it is obvious that 6 is merely being a lemming in the anti-software march up the cliff. I wonder if he is still trying to make friends over at slash-dot.
Nailed it.
Indeed, I, and others rely on this fact for my allegation that all B claims are invalid because they all cover old mediums since all one need do is make a new computer that uses one of the old mediums to perform the recited functionality, and wallah, the old medium anticipates
Has it been done or is this all speculation?
Regardless, if you think it is possible, then you really don’t know anything about computers.
This is bogus on many levels. First, the PTAB is stating unequivocally that laywer boiler plate language in a patent, and not the dictionary definition, is evidence of “the ordinary and customary meaning . . . to a person of ordinary skill in the art.” I don’t know too many engineers that would base their ordinary and customary understanding of claim terms on boiler plate legalese. Second, according to caselaw, Phillips v. AWH Corp. (another portion of which was cited in this same PTAB decision) states that “intrinsic evidence, the context, the specification, and prosecution history, should be first looked to for the definition of claim terms, then extrinsic evidence” (emphasis added). In this case, if nothing else, the prosecution history is clear: the Applicant made clear his intention that the term, “storage” be limiting. The PTAB ignored the prosecution history just like they ignored the plain ordinary meaning of the term –- in fact even refused to give the word “storage” any meaning whatsoever – a definite no-no in claim construction. The bottom line is, this is yet another case of a bad decision making at the Board, for which the PTAB should be ashamed, that will be struck down by the Federal Circuit if it gets appealed or at the court’s first opportunity.
How does one define the so called transitory?-a microsecond, a millisecond, a second, a minute or even a year? The very word “transitory” does not a have a clear meaning in that all it connotes is that it is ephemeral without clearly defined life span. Hence even defining a signal as “non-transitory” does not in any way clearly distinguish it from transitory signal except that it satisfies some bureaucrats.
“You need to make your case.”
I’ve not been “making a case” for this entire thread. Which is something you fundamentally do not understand. And I’m not going to start now. I rather dislike arguing, and if I start “building a case” then that is just me arguing that there are good reasons that this or that “should be” one way or the other. I’m not a fan of that anon, and I decline to participate. Sorry.
I’m also sorry that my declining to participate in an argument with you is not “weaseling away”. It’s just declining to argue. I know this infuriates many people that like to argue, and I apologize for your infuriation that will no doubt likely follow.
“It should not be that difficult – you ran a search, right? ”
My search report gave so many thousands of hits that I had to limit it by date so I could get a managable number to display (max is set for 5000 results in my settings), thus the older ones were in the search after date limiting and I forget how to do a data limitation in East between two dates instead of simple before or after a date. I could jimmy with it, but why? Why do you care about the pros. history anyway?
If I let you demand 5 more now what’s to stop you from demanding another 5, and another 5 and another 5. I’m not your secretary bro.
“In the latter case, you VERY MUCH better be attempting to make a case, and thus, to rest on the case that you make.”
See this is a fundamental sticking point between us anon. You want to argue, if for no other reason than to argue. That’s why you like to “make a case” aka “give good reasons why something should be done”. I avoid arguing and I also avoid “giving good reasons as to why something should be done” save when absolutely needed. I simply say my piece or take the relevant action. I may explain parts of of my piece or aspects of the relevant action to others so that they may convince themselves why it “should have been done” but always my explanation is directed to why i did it in the first place. It is rarely directed to why it “should be done”. I do not go out of my way to directly convince them often of what “should” be done, and I do not argue for the sake of arguing.
And to be really honest anon, in prosecution, my manner of bringing attorneys around works wonders. I don’t sit all day “arguing” this or that. I do what needs doing, and I’ll explain it if they wish, but I’m not going to bother telling them why it “should” have been done unless they absolutely insist on knowing. The reason is simple, matters of policy, aka the “should” are quite irrelevant to 99%, if not 100%, of what I do.
All this carries over to our discussions. You want an argument, I simply seek to inform to the point that you will come around to my position by yourself.
“yet desire power over others.”
Desire it? Lol I was handed it while I didn’t even know what was being handed to me. Trust me when I say I never had any intention of getting into a government job at all, much less sticking with it, and much less a job that involves things like this one does (i.e. having some power).
Although yes, I do desire power. But I desire real power, not this little tiddlywinks power that comes from being an examiner, or even the director of the PTO. What of it? I don’t desire power just for giggles, or for the sake of power. I desire power to end the nonsense that people who will otherwise have power will execute. Be clear, I’m anti-state intervention where possible, that is I would use my power to restrict the exercise of power for the most part (it’s funny, I even do that in prosecution). If I were the other way around I’d be all for software patents, business method patents, etc.
The complaints about quality are in fact directly correlated to the office’s failure to require drawings just like I’m saying we should be doing. If we’d have been requiring them, the absurdity of such patents would long ago have been revealed to ignorant courts, and the whole practice would have been abolished by now, thus quality in that area springs to 100%.
Yes, in that case it would greatly enhance the understanding of the invention. Thus he required it, and this is the important part coming up anon pay attention, he required the feature be shown even though it wasn’t in the claims. Note the “denied” at the end. That means that the petition (put this into english for you: request in writing) for him (the commissioner) to overrule the examiner is denied.
So now 101 is a “primary effect” and, like music, 102/103 discussions do not matter. I didn’t even know 101 was an effect, much less a primary one. I also didn’t know that music “didn’t matter”. My music matters to me.
Come on bro, learn to speak english.
“Ask why the exception exists.”
I don’t have to ask, unlike you I’m well read and I already know why.
“If you quit now you are just like Ned”
Bored talking to a nobody on the interwebs about a subject he has no stake in and on which I’m well read about the differing perspectives? Yeah, I’m bored.
“Why not let it rest? ”
I’d be happy to. On these interwebs. Irl I have cases to reject. And the attorneys who recieve them aren’t so convinced that I haven’t shown any backing “in law or in fact”. The backing is 35 U.S.C 101, 112, 102 or 103 and the facts are as they present themselves in the instant case before me. Which I know is somewhat beyond your comprehension since this whole debate is nothing but an abstraction going on in your mind to you, not an irl thing that you must deal with. In such abstract debates all you need do is stake out some ground, and assert that you’re right forever. Irl, you must take actual action and risk looking a fool if you take your nonsensical positions and losing your appeal money/patent term.
False choice. No such thing as an “old signal containing new information.” If a carrier wave is modulated with new information, that means it has been modulated to assume different physical characteristics than any other carrier wave in history. Otherwise, radios wouldn’t work. A broadcast rap song would sound just like a pulsar. OK, bad example…
You must have attended the same Physics 101 course as Judges Gajarsa and Moore.
“when will you learn? I make rejections and objections, I do not “rest a case”.”
LOL – the truth of your statement is not what you think it is. Consider two very different circumstances: you performing office actions, and you having a discussion on the law and the rules that govern your actions. In the latter case, you VERY MUCH better be attempting to make a case, and thus, to rest on the case that you make.
The only one ‘hanging themselves’ is you as you don’t even understand the dialogue we are having.
anon: “You lost me there, 101.”
Liberal arts can be abstract. For example, there is abstract paintings and abstract poetry. But even if these arts were not abstract they would still not qualify for a patent. Your ladders of abstraction is very useful and an excellent part of 101 analysis. I notice how Ned, and 6, among others from the anti patent crowd avoid discussing it, just like they have avoided “Integration Analysis”. Still, the Court does say a principle in the abstract “is” “a fundamental truth; an original cause; a motive” , and these cannot be patented. The point is if Versatas claim as a whole was only a recitation of any of the foregoing principles, the claims would not be eligible for patenting under the abstract idea exception. On this there can be no debate. However, Ned can’t prove the claims as a whole are “a fundamental truth; an original cause; a motive” and therefore he has no legal basis from the Court to declare the claims abstract. That’s a fact.
Ned “101, that hardly is a “legal” definition of abstract and you know it. ”
101 Integration Expert: Tell it to the Supreme Court of the United States.
Ned: “All it states is that one cannot claim a principle in the abstract, but it does not tell you what abstract is”
101 Integration Expert: Once again, the SCOTUS states, “A principle, in the abstract, “IS” a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right.” Benson citing Rubber-Tip Pencil Co. v. Howard, 20 Wall. 498, 507. ” [ My emphasis on the word “is” ]
Seriously Ned, your repeated denial of the definition, which is indicated by the identifying verb “is” will not erase the fact the definition does exist. So, can you please explain why, Versata’s claim as a whole is a legally abstract intellectual concept in the form of a a fundamental truth; an original cause; or motive?
:: Sound of more excuses, denial and circular BS, but no answer ::
Oh and just to point out how hypocritical and dishonest you are, you know if the Court said business methods or software was abstract you would be citing that 10 ways to sunday and have no problem understanding ANY of the words.
Jes us chri st man, I did you some legwork, if you’re that interested in seeing file wrappers that likely consist of nothing more than b s 103’s then you can run a search yourself bro. It isn’t that terribly hard to pick a few CRM -> instructions cases at random. Pick your own until your heart is content there are a hundred thousand at least.
“Is this the particularity that you are resting your case on”
I’m not “resting” any case. Jes us chri st on sale, when will you learn? I make rejections and objections, I do not “rest a case”.
“I want to be sure that that is what you think needs to be added”
That’s the starting point, from there we’ll see what happens 😉 What matters is getting us started off on the right foot for you to eventually manage to hang yourself.
“Do you care as to what form this drawing requirement is to be provided? ”
Sure I care, I’d like to see a CRM comprising instructions, you know, the thing you claimed. I mean, that is the missing features right?
“Will a flow chart do?”
If a flow chart is a CRM comprising instructions then sure it’ll suffice (to hang yourself substantively lol). So tell me, is a flow chart a CRM comprising instructions as recited?
“Why or why not?”
We’ll see. You could try it 😉 Live a little, let’s see where your application goes 😉 Maybe it’ll be straight down the toilet 😉
“Continue reading 6”
Oh, do point out for me where it became a 101 “issue”. Because I read the whole thing.
If this:
“Printed matter alone and by itself does not constitute a ‘manufacture’ and is not within the statutory classes of patentable subject matter. However, as an exception to this rule, printed matter may constitute an element of a patentable claim if the claim involves a new and useful feature of physical structure or a new and useful relation between the printed matter and the physical structure.”
Is what you’re referring to, who cares? I’ve never said anything about people not being allowed to put such limitations in a claim if they so please. Neither has MM. So what if they can put PMD in a claim? Again, as I’ve notified you, and as other people have notified you, there is no “new and useful relation between the printed matter and the [CRM]”. Which you acknowledge I do believe. The part that you don’t understand, because you are ignorant of it, is that in B claims, a special little case was relied on during their creation. The case was decided shortly before the creation of the first B claim, and it involves some desktop clamps and some add-on for them and the functional relationship between the structure of the add-on and the clamp. And so, what they attempted to do in the creation of B claims was use the principle from that case of designating the function of of the instructions IN TERMS OF the function of some other object (a computer) as was done in that desktop clamp case. Ingenious, except for one small problem. The whole PMD exception relies, as per your quote, on there being a new and useful relation between the instructions and the CRM, not the instructions and a computer. If you’d really like to read about how B claims came to be and look that case up I have the law article detailing the history faved and can pull it up tomorrow.
Regardless, for millionth time, regardless of whether or not people are allowed to put such limitations in a claim, and regardless of whether or not there is an “exception” and regardless of whether or not there is a relation between the CRM and the instructions, IF we disregard the formalism, aka the draftsman’s art, you’re left with nothing but noting the naked attempt to make instructions patent eligible.
I’m not discussing this matter with you any further, the history of what happened is clearly documented, and while you’re busy screaming about an exception, I and others will be busy getting them invalidated. So, live and let invalidate ok?
6,
Give me 5 that I can access the image file wrapper in public PAIR please.
Worth the price of admission (free).
The pre-ordained view is in regards to what is necessary for the PHOSITA in the software arts to achieve that ‘greatly enhanced’ level.
Pay attention.
6,
Is this the particularity that you are resting your case on:
“Therefore, the computer-readable medium comprising instructions must be shown or the feature(s) canceled from the claim(s)“?
I want to be sure that that is what you think needs to be added. Do you care as to what form this drawing requirement is to be provided? Will a flow chart do? Why or why not?