By Dennis Crouch
Ibormeith IP v. Mercedes-Benz (Fed. Cir. 2013)
Ibormeith’s patent covers a “sleepiness monitor” intended to sense when a vehicle driver is getting sleepy. This is obviously an important topic that results in thousands of annual traffic accidents. Ibormeith’s solution is to monitor both the time-of-day (circadian rhythm inputs) and unusual steering movement (vehicle inputs) and then use an algorithm to determine the likelihood of sleepy driving. The result then could be to warn the driver by beeping or perhaps taking more automated control of the vehicle. The patent (No 6,313,749) was issued back in 2001 around the time when attorneys were coming-round to the notion that means-plus-function claims lead to trouble – either comedy or tragedy depending upon your point-of-view.
The patent statute allows for patent claims to be written as a “means for” accomplishing a particular function. 35 U.S.C. § 112(f). When written in claim form, a “means for” claim appears extremely broad because it suggests coverage of all possible means or mechanisms for accomplishing the stated goal. However, the statute says otherwise. Rather than covering all possible mechanisms, Section 112(f) requires that the limitation be construed to only cover the “corresponding structure … described in the specification and equivalents thereof.” Since 1994, the Federal Circuit has supported this narrow construction. See In re Donaldson, 29 USPQ2d 1845 (Fed. Cir.1994). As Judge Taranto writes in this case “The price of using this form of claim … is that the claim be tied to a structure defined with sufficient particularity in the specification.”
Taking all of this a step further, the courts have also repeatedly held that a patent is invalid as indefinite under Section 112(b) if a claimed “means” if no particular corresponding structure is disclosed in the specification. See, e.g., Function Media, LLC v. Google, Inc., 708 F.3d 1310, 1319 (Fed. Cir. 2013); Blackboard, Inc. v. Desire2Learn Inc., 574 F.3d 1371, 1382-83 (Fed. Cir. 2009).
Here, the patent claims at issue all include a “computational means” that figure out whether or not someone is sleepy. And, on summary judgment, the district court found the claims indefinite because the claimed computational means were not supported by structure in the specification. That decision has been affirmed in a unanimous opinion written by Judge Taranto. Oddly, adequate disclosure under § 112(b) is a question of law reviewed de novo on appeal. That lower standard still did not carry the day for the patentee.
As in so many cases, the claimed “means” is really an algorithm being run on a computer to accomplish some particular goal. The court has ruled that the algorithm needs to be one that is “sufficiently defined to render the bounds of the claim . . . understandable to the implementer.” Here, the specification defines a set of input variables and a “sleep propensity algorithm” that is the sum of those variables. The specification also indicates the potential for various warning thresholds associated with the sleep propensity algorithm. However, the specification does not include any real examples for how the algorithm would work.
For Judge Taranto, the decision is largely about litigation strategy. The patentee argued that the algorithm is very broadly defined by the specification. The point of that argument was to ensure broad claim scope. However, the results is a finding that the algorithm is not particularly defined and therefore that the claim is invalid.
With means-plus-function claiming, the narrower the disclosed structure in the specification, the narrower the claim coverage. To succeed in ultimately proving that the “computational means” elements cover the accused Mercedes products … Ibormeith’s [argued that the algorithm of] Table 10 … is broad enough to reach the accused products. With consequences of such importance, Ibormeith’s position as to Table 10’s breadth is fairly treated as a binding admission. . . . That position, however, fails in the necessary attempt to steer a course that permits proof of infringement yet avoids invalidity.
Judge Taranto’s analysis here makes sense within the context of litigation strategy and holding parties to their litigation admissions. The major problem with this approach, however, is that allows patentees to hold-in and maintain ambiguity until the point of litigation.
= = = = =
The patent at issue here is based upon the invention by Dr. Louise Reyner and Dr. Jim Horne who are both sleep researchers at Loughborough University in the UK and who won the Queen’s prize in 2007 for their work on road death reduction through their work on driver sleepiness research. In March 2010, the UK company Astid Ltd. recorded its ownership of the patent and that same day Ibomeith was formed that is one of Michael Connelly‘s companies.
Wile one claim of the patent may be indefinate others are not so they represent parent conception or conceptions and the patent should stand or the in question claim should be strickened or allowed to be improved on. I did something about lane changes and blind spots around this time
link to cbsnews.com…This defines robot as hardware or software. So, I guess Litigator Lemley is saying that hardware has no structure. Lemley you are so unethical. You are at Stanford Litigator Lemley. Why don’t you walk across the quad and speak to the AI professors there and ask them what they think of your “theories.” And, be sure to mock the Church-Turing thesis while you are there.Notice how the unethical policy pushers (i.e. those that do not respect the rule of law) will ignore this piece or grossly mis-characterize it. Yet it is directly counter to their assertions about the technology. That is why those that read this blog should recognize that this is not some relative issue where the haters’ positions should be respected. The haters hold opinions and are pushing an agenda that ignores the technology and is trying to make law based on absurd characterizations of the technology. There is NO factual basis for there assertions. Unethical policy pushers is a mild characterization of their position. And, be clear that someone like Lemley is breaking ethical rules by pushing his opinions without citing counter opinions and without making an effort to understand the technology, and continuing to publish in law journals. Lourie is worse.We are in the right. We should go after these people where they live at their universities. I don’t think the arts and sciences professors at Stanford and Villanova would think much of Lemley’s and Reich’s behavior if it were explained to them what these professors are up to.It is just amazing that this group of haters has been getting away with intentionally misrepresentations for 40 years. Benson started it by saying that information processing was new physical laws that were being created. They were so ridiculed by that position that they shifted to a new judicial exception of abstract. Now they just deny the simple reality that the claims do convey a very specific set of solutions to one skilled in the art and that these functional claims are structure. To people skilled in the art these are not one side to an argument but science. And, the other thing to notice is that this massive progress in information process has happened since State Street. That the patent system is responsible for a lot of this progress. That the patent system has enabled the funding and openness of the progress. The dark ages were when there were no patents for information processing and everything was a secret. Microsoft had levels of secrecy where termination was the punishment for discussing a project. Now post State Street they built a research lab and opened up all their inventions and let their researchers publish in journals and discuss the technology. And, the macro reality betrays the haters.
The quote: “Innovation, it is all in the algorithm.”Hmmm.”Watson, come here, I want to see you” – a different Watson ringing a different bell.
This piece ends any hope of the haters’ argument that they are ethical people. But, then we know they are not ethical.
Another big hit: Noam Chomsky says in an interview (search for “the singularity is science fiction”) that the device is worthless that it is all the program. That the device’s only use is to run the program. (at 20 minutes)Sheesh. How can you look yourselves in the mirror and deny the reality.
Silencing the child that points to the king and states “Mommy, that man is naked” is not solving the problem.Hint: you need to investigate the tailors.
The typical accusations of “crazy” are captured in this panel:link to news.yahoo.com…
The tone of some of these comments sounds like Dems and Reps in Congress. Can we keep it respectful? Seems to me that upping the 112 requirements for software patents will improve things. I once litigated a software case where the claims changed every time I found a new dead on reference. The problem in that case was, IMHO, that the invention was never clearly described.
Chad, you hit on the real problem. The discussion has degenerated to the point where there is no true attempt to understand the technology. At the core of the problem is haters refusal to understand the technology and intentionally try to mischaracterize. This has made it impossible to improve the examination process. But, you cannot just point fingers at both sides. You have to examine the facts. Facts: the haters tried to say that software is a law of nature. The haters say that software has no structure. The haters say that there is a pencil and paper test for information processing when the Church-Turing Thesis renders their test absurd. The haters will not admit that circuits/firmware/software are equivalent. Do not assume that the sides are equally culpable. They are not. The haters have a funding arm that is fueling this. This is not some joke but another part of our system that is being destroyed by big corporations that don’t want patents.Anon, MM must be someone from Dennis’s old law firm that still funds this board. I think he may be David. It makes sense. MM is probably a Ph.D. in some type of chemistry from Dennis’s old firm.
Degeneration by obfuscation and re (or more properly mis) characterizing – Standard Operating Procedure.That’s what happens when the intellectually dishonest refuse to incorporate valid points made and the reality of what happens with the man made manufacture and machine component of software gets in the way.Look at Ned recycling the fallacious “software is math” and 1’s and 0’s position. Look at 6 and Malcolm relishing the dustcloud.The only bright spot here is Leopold subtly calling out Malcolm and 6 for the preposterous positions that I have already identified: the House argument and the Morse analogy.
This meets some ‘norm?’name calling? de-personalization?Really?
MM must be someone from Dennis’s old law firm that still funds this boardYour paranoid fantasies do not help your arguments.The haters will not admit that circuits/firmware/software are equivalent.It’s not only “haters” that won’t accept your proposition. Circuits and software are not “equivalent” unless you have some very special definition for “equivalent.” Can you send me a circuit over the telephone? Nope. Do you know why? Think really hard before answering (pun intended).And while “firmware” might be “equivalent” to “software” (depending on how you define “firmware”), it’s not “equivalent” to “hardware”. Nice try, though.The insults aren’t necessary, by the way, nor are they helpful.
>> insults….MM you have been the king of insults. MM what basis do you discuss circuits/software/firmware? Do you have an understanding of the field? Please mock the Church-Turing Thesis and then answer the question.
Your post is flagged for calling people liars and other insults to boot. Deal with it.
Oh and also anon, I made my profile private. I guess that makes me a super secrit haxor like MM eh? Or that I just checked a box in the settings that I couldn’t care less about.
Not at all 6, as you (again) prove my point for me.While your profile is private, you are still listed in the Patently-O DISQUS community.Malcolm is not.Try again.
IT does prove that you are a douchebag like the other “private” setters, though. Congrats on that.
The problem anon is they don’t care. They know everything you wrote and don’t care.
NWPA, Getting them to care is a necessary step to having an actual conversation. If not directly about what is said, then about how what is said reflects on their propaganda game (kick the soapbox out from under them).Otherwise, all we have is the same old same old.CRP – Have CRP pointed out – Run away and CRP another day.
A new app called 2nd Vote is designed to allow conservative voters to see how companies score on five issues: gun rights, abortion, the environment, same-sex marriage and federal subsidies — though it’s even attracted some liberal fans. Giving each company a score from 1 to 10, the app rates everything from the airline industry to Internet businesses as actively liberal, passively liberal, passively conservative and actively conservative.link to politico.com…Anyone know if this “app” is patented? It’s probably infringing a few.How about an app that “rates” different companies (or perhaps rates blogs …) based on their “scores” regarding a set of pre-determined patent issues? Oh my, I just innovated a little bit right there. Can I haz patent now?
How does this in any objective sense meet any norm for conversation?
How does this in any objective sense meet any norm for conversation?I posted it because both the 2nd Vote “app” and my modification are quintessential examples of the kind of junk that is being routinely patented by “computer-implementers”. Maybe you can tell everyone what the “structure” of a “political rating” looks like.
Why are applications jumboing some people ask? Hmmm, I’m reading one right now that has 37 pages of spec, 4 1/2 of which are disclosure of the invention.
The patent at issue here is based upon the invention by Dr. Louise Reyner and Dr. Jim Horne who are both sleep researchers at Loughborough University in the UK and who won the Queen’s prize in 2007 for their work on road death reduction through their work on driver sleepiness research.Kudos to these guys for their research and contributions to human knowledge, but from a patent perspective this is the Lowest Form of Inventing. Before these guys ever put on their lab coats, the human race knew this much: people get tired in their cars and fall asleep sometimes for a wide variety of reasons. We also knew that any hypothetical scientific (i.e., “real world”) explanation for sleepiness in cars can be tested and evaluated. We also knew that different people tend to exhibit different levels of sleepiness depending on what time of day it is. We also knew that one sign of sleepy driving is sloppiness behind the wheel. We also knew that any observer of the sleepy driver can take various actions to correct or prevent the sleepy driver from falling asleep at the wheel.Given this, it’s absurd that one could generically describe a computer that gathers such information and uses it to determine a likelihood of sleepiness and issues corrective action. Now, if you’ve built a robot car that accomplishes all this in an unexpected manner to achieve some unexpected result, then you might have a claim. But that claim should be extremely narrow and limited to the specific working embodiment where these results are demonstrated. They shouldn’t cover all possible practical implementations of the algorithm and, legally, they can’t (because algorithms are ineligible subject matter). Would such a patent be “worthless” to the “inventor”? Maybe. But the lack of that patent certainly won’t dissuade people from trying to build and sell robot cars that detect your sleepiness. Broad, functionally claimed patents like the one at issue here, however, can be used to dissuade people from innovating, however, and they jack up the costs of “computerized” “innovation” for everybody.
in hindsight, it seems obvious
Generically describe? Is that what they did?
Speaking of sleepy drivers:link to wsbtv.com…
The one word answer cuts through Malcolm dissembling here:ANTHROPOMORPHICATIONMachines – it is absurd to rule them out of patent eligibility as you attempt to do by the robot car (or typically the robot chef) meme you take your script from.As to “for everybody,” once again your but-for game-for-kings mindset seeps out. Sorry, but the patent system that can be used by everybody was exactly what the founding fathers wanted. You should be celebrating the possibility of invention by everybody, instead of the dust that you are kicking up.
The one word answer cuts through Malcolm dissembling here:ANTHROPOMORPHICATIONAnd there’s two words that cut through all of Trollboy’s comments: “crazy person.”
When a comment persists that has been flagged repeatedly, and that comment consists only of vacuous name-calling, how can anyone make any reasonably objective guess of what is the ‘norm’ for conversation?It is this uneven handling that screams for application of self-help, Prof. Crouch.Unless of course, you view this type of post as meeting your ‘norm,’ and the ‘who’ of making the post (or to whom) is a factor in meeting that ‘norm’ (never mind the perception that that creates)…
I’m reminded by something Prof. Risch wrote earlier this year:link to uspto.gov…The rise of functional claiming – at least widespread acceptance of it –can be traced to In re Alappat, and its legal fiction that old hardware becomes new again if it is configured with different functionality. We live with this fiction because it allows for patenting of machines rather than methods, but functional claiming is the necessary by-product. The easiest way to solve the functional claiming problem is to reverse the rule of Alappat, and recognize reality: machines do not become new simply because new software is loaded onto them. Algorithms are not structure. Trying to fit algorithms into the framework of structure is problematic in that sense alone, because, as discussed below, we have little way of knowing when an algorithm is sufficiently defined as to be “structural,†nor do we know what its equivalents are.Indeed.
Must you bring up that rot again. Algorithms are not structure? That is such an intentionally misleading and ignorant statement that I do not know where to being.Wait. I do. How is it that circuits are claimed in exactly the same way and they convey structure to POSITA? How can that be? Because Risch is wrong–again. Do you people actually try to understand information processing? A machine that performed the method would have structure. It would be a series of circuits that performed the structure.>>nor do we know what its equivalents are. Who is we? The we that is me knows what the equivalents are since I am a person having skill in the art. If you mean, that a psychotic judge like Lourie wouldn’t be able to know based on his science fiction imagination test, then I agree. A fed. cir. judge sitting in his chair imagining science fiction stories won’t know what the equivalent will be.But, David, nice quote for your side. Concise and it captures the deceptiveness and incorrectness that is Risch. Of course, Risch was anointed by Lemley so what do you expect. Funny that Risch used to work for a patent litigation firm that was not top shelf to say the least and some would say was much worse (and I can say that from first hand experience.)
Algorithms are not structure? That is such an intentionally misleadingThere’s nothing at all misleading about it. If I see a rabbit in the road, I slow down. That’s an algorithm. What’s the physical structure of that algorithm? You seem to know what it is. Tell everyone what the structure is. Describe the struture for everyone.circuits are claimed in exactly the same wayTo the extent that is true, those “circuit” claims suffer from the same flaws as the software claims we are discussing. Are you now backing into the corner where hardware and software are “equivalent”?Regardless, the issue isn’t the proper way to claim “circuits.” We’re talking about claiming “old” computers functionally, based on their allegedy “new” “capabilities” of receiving specified information, wherein the information can be used, e.g., to calculate a likelihood of something, e.g., wherein said something is “you are sleepy” or “you are drunk.” That’s not a “circuit” claim, although circuits will certainly exist inside this wonderful functionally claimed computer. But the recited function is not a description of a “new circuit”. It’s a description of computer with a desired function, and it’s completely devoid of any recited structure that would distinguish the new computer manufacture from any other computer manufacture.
David, how could a machine identify and then slow down for a rabbit without structure? Simple test: build a machine that performs one of these methods and let’s look at it and see if it is structureless. Oh wait…reality again. Can’t have that can you and Risch.You spout simple nonsense as anyone that is skilled in the art knows.
Why do you always ask a rhetorical question that only has as its answer? You obviously can’t, and the question is meaningless from the get go. Why don’t you simply tell us what the structure is? I’ll tell you why. The same reason an attorney told me just the other day. Because it is too hard.
I could tell you the structure, but it is a very long post. And, 6, that is a good thing. That shows progress. Just as there are lots of door knobs now and hinges for doors.
“I could tell you the structure, but it is a very long post. “Right, just too hard. Why not just call it a 1 or a 0 and call it a day? “That shows progress.”How does it being too hard or too long or whatever show “progress”? What “progress” does it show? That you’re too lazy to promote the progress of the useful arts? Is that the “progress” that it shows?
It shows there are many solutions. Just as there are many types of hinges. That is progress. A technology that enables one to have many many solutions.Again, an unwillingness to understand the technology.
there are many types of hinges.Right, and here’s a bunch of pictures and text which describe how those hinges differ structurally.link to hardwaresource.com…Nobody was ever granted a valid enforceable claim to an allegedly new hinge where the claim failed to recite a structural feature that distinguished it from all the hinges in the prior art. It never happened and it never will.What happened in the computer field is that someone just pulled a rabbit out of a hat and declared that recited computer functionalities (e.g., computers capable of performing information processing task X) “are the essence of electronic structure.” I submit that little magic trick was a far more egregious example of “legislating from the bench” than any of the subsequent efforts by the Supreme Court to use 101 to reign in the kookiness that inevitably followed.
Nobody was ever granted a valid enforceable claim to an allegedly new hinge where the claim failed to recite a structural feature that distinguished it from all the hinges in the prior art. It never happened and it never will.USP 8,533,914:1. A hinge, comprising: a first box-shaped body for fixing to a frame; a second box-shaped body for fixing to a door; a connecting mechanism between the box -shaped bodies, for rendering the door movable with a tilting action relative to the frame between a closed position and at least one open position; a damping mechanism, supported by the first body, for applying a damping force on the second body damping movement of the second body towards the first body, when the closed position is almost reached; and a mechanism for controlling operation of the damping mechanism …Did you notice all those structural limitations that were little more than mechanisms having a particular function.Claims to structural inventions (e.g., machines) are rife with functional limitations. For example, a “connector” is something that connects. The function is built into the name of the structural thing of a connector. I guess I could refine the connector to a “screw,” but that itself is a description of what it does (i.e., screw into something).As such, nobody “just pulled a rabbit out of a hat.” This type of claim language has long been accepted in the mechanical arts.I understand that a claim to a “compound that cures prostrate cancer in humans” doesn’t cut it in the biotech arts, but that is an enablement issue that usually doesn’t apply to either the mechanical or computer arts.
Patent_Guru, if you keep arguing with MM you will realize that he has no interest in understanding. He is pushing an agenda and types in the same stuff year after year.
Patent_Guru, if you keep arguing with MM you will realize that he has no interest in understanding.If he wants to have a civil conversation, I’m up for it. However, if the tone of the conversation turns, I’ll just ignore him.
One problem Patent_Guru, is that your choice of ignoring him does not advance the conversation.Malcolm will STILL CRP over every thread even remotely related to software patents (and a a few not even remotely related). Malcolm will STILL soapbox. Malcolm will STILL press on with his agenda. The problem is a lack of integration of valid points raised. Until a discussion is actually treated wtth a modicum of intellectual honesty, the same “CRP-point out the CRP -runaway-CRP again” scenarios will play out, and the conversation will never advance.C’est La Vie.
anon: The problem is a lack of integration of valid points raised.Translation: “The problem is a lack of acknowledgement that I am always right and everyone else is wrong.”Seriously, TB: try to remember Dennis’ comment to you about acting like a “crazy person.”
Well, MM, please respond to the substance of this post.
He’s responded to that same “substance” a million times, just as I have. It’s boring.
“just as I have”LOL – and that is the crux of the law quality blogging here.Thank you for proving my point again 6.
I was more than willing to have a civil conversation about this particular issue.I think we did have one. We just don’t agree and we explained why.when you start going into the same rant I’ve seen a hundred times from you before, I see no point going onMy advice to you is to recognize that those who favor patenting software and related “computer-implemented” inventions are going to need to consider where they would like the lines to be drawn between what is patentable (or patent-eligible) and what is not. There is simply no way that the current system can continue in its present state, where information about, e.g., “available real estate” is treated like a non-obvious species in the genus of “information that a computer can process”. I can make this point in numerous ways under current patent law, and others can (and have, and will) make the identical point in terms that are at least as persuasive. The curtain is certainly closing. The question for you to consider is: is there a reasonable place where the curtain may be kept open, and why? I’m pretty sure that “because people have already invested time and money” is not going to qualify as a sufficient reason.
where information about, e.g., “available real estate” is treated like a non-obvious species in the genus of “information that a computer can process”.Just like mixing compound A with compound B and applying heat to form compound C is a non-obviousness species in the genus of simple chemical reactions?Just like machining a block of aluminum to create widget A is treated as a non-obviousness species in the genus of manufacturing widgets?The curtain is certainly closing.You’ve been saying this for how long? I’ll be long retired and software patents will still be valid. Do you know why? The reason is that the vast majority of people just don’t care if business have to pay money — it isn’t coming out of their pockets.The only people who care are software geeks and technology companies that don’t like to pay for using technology that somebody else invented. Do you really think the average person cares if Google is sued for $50M for infringing some patents? Do you really think the average person cares if some no-name software company gets sued or receives a demand letter for $50K? However, the average person can identify with the lone inventor who is taking on a huge company that is using technology patented from the inventor. When it is David versus Goliath, people like to root for David. As such, if this issue of patentable subject ever goes to Congress (the only place where something can be done), the pro-patent side is going to be able to trot out far more Davids than the other side.While a lot of dust gets kicked up over “trolls,” trying to explain what is a troll and why some inventors are trolls and others are not will just bore people. The anti-patent arguments are far too nuanced to resonate with the masses, and that is what is important. The masses like inventors a lot.Also, as I’ve noted before, the average person has a very low threshold as to what they think is patentable. As such, railing on the “low quality” of certain patents isn’t going to get much traction either.
The anti-patent arguments are far too nuanced to resonate with the masses, and that is what is important.LOL.
LOL.That is the best you can do? Then again, I’ve read most of the anti-software and even anti-patent arguments. It is a sad state of affairs when they don’t know either the law or the technology (and oftentimes both).Your side needs much better advocates.
You’ve been saying this for how long?Five or six years now, during which time the wind has been blowing consistently in one direction: at my back.I’ll be long retired and software patents will still be valid.News flash: a lot of those patents are already invalid and many many more will be invalidated in the next few years. But you do sound like you are close to retirement. That’s another interesting trend that I’ve noted before in terms of who vociferously supports patents on software “functionality” (white conservative people who self-identify as Republican or, more laughably, as libertarians) and who doesn’t (most educated people).
News flash: a lot of those patents are already invalid and many many more will be invalidated in the next few years.If that is what keeps you going through the day, keep believing it.
You may well be correct that people just don’t care if businesses have to pay money and that might be a concern for congrss, less so for the USSC should a case ever get there that isn’t summarily executed on 101. As to who cares about google, it’s shareholders sure do. And I’m not sure that there are far more davids in software, if I had to guess the software giants file more. And you’re certainly right that people like inventors a lot, but then again, if you explain that they aren’t really inventing, they’re just abusing the patent system making up abstract “functionalities” and extorting people with the legal system through “innovations in the legal field” people are a lot less sympathetic.
6 already responded to PatentGuru and addressed the substance of PatentGuru’s comment quite well. In a nutshell, the problem with functional limitations in manufacture claims is not the presence of those limitations per se. I do not (and have not) denied that there are functional limitations in many claims in many different art units (whether they are, in fact, “limitations” can be and often is a subject of dispute). The problem with functional claiming arises where the only distinction between the prior art manufacture and the new manufacture is the recitation of a “new” functionality where there is no described or discernable (i.e., definable) “new” physical structure(s) responsible for that functionality. Sometimes we refer to this as “functional claiming at the point of novelty.”PatentGuru states: I understand that a claim to a “compound that cures prostrate cancer in humans” doesn’t cut it in the biotech arts, but that is an enablement issue that usually doesn’t apply to either the mechanical or computer arts.It’s more than just enablement issue. But even from an enablement perspective, the problem is certainly applicable to both the mechanical and computer arts. The reason the computer arts get all the attention is because the computer arts is all about information processing and, completely unlike designing and manufacturing a new hinge or designing and manufacturing a new chemical, information processing is something that everybody does, all the time. We are all “innovators” in information processing, every day, because every day we encounter information processing problems that are unique to us (or at least seem so) but which could certainly be described in a “new” way to be “automated” with a computer. And that’s what we’re seeing flowing into and (sadly) out of the PTO every week in historically unmatched rates. This is not a reflection of some huge burst of technological innovation (although there is certainly some of that occurring on the fringes). Most of that innovation occurred a long time ago. What we’ve been seeing now for years is a sausage being divided into an infinite number of infinitely thin slices (or shall I say “increments”) because right now this sausage is soft enough for anyone to slice. A twelve year old can do it with his/her finger. It didn’t have to be the case that claims to new recombinant biotech molecules were limited by the courts to the structure(s) that were actually disclosed and shown to work. The Courts could have granted broad functional claims to anyone who “guessed right” or who simply disclosed one working embodiment. The Courts could have held that two years of research and trouble-shooting required to identify one of the other structures out there with the recited function was not “undue experimentation.” The Courts could have said that the patent system was designed to award those who were first and broad functional claims to new biomolecules were completely fine. But they didn’t do that. They recognized that opening that door would not lead to more “progress” but rather, quite plainly, it would lead simply to more patents.
OK … whatever.I was more than willing to have a civil conversation about this particular issue. However, when you start going into the same rant I’ve seen a hundred times from you before, I see no point going on.
Let’s leave the jerking circle out of this: you referencing 6 and 6 referencing you while both of you are still intellectually dishonest and have not integrated valid points into the conversation.
How does this in any objective sense meet any norm for conversation?
All comments from “anon” meet the norms for all conversations, from every objective sense. He is the arbiter of such things and always has been. That’s why only “anon” can ask such questions without ever appearing to be hypocritical (another term that never applies to “anon” but always can be applied to anyone who disagrees with “anon” about anything, just as soon as “anon” fabricates some “admission” that the person made in some comment that “anon” remembers but will never, ever reproduce). What else can we say about “anon”? He’s beloved by all who appreciate honesty and substance.Thank you,Committee for Anon Worship, LLC
both of you are still intellectually dishonestNo, we’re not. Just because we disagree with you about debatable issues of law and policy does not mean we are “intellectually dishonest.” Sorry but that’s not how it works.both of you … have not integrated valid points into the conversation.Gosh, maybe it’s possible we do not recognize these mysterious “points” you refer to as “valid.” That happens sometimes, you know. But anyone who reads this thread can see quite plainly that both 6 and I have tried to respond to all of the points raised by Patent Guru (and others, including you). Speaking for myself, I believe I kept that conversation pretty grounded and didn’t resort to personal insults unless someone (e.g., you) was behaving like an absolute pr*ck and personally insulting me first.
CANARD ALERT: “because the computer arts is all about information processing and, completely unlike designing and manufacturing a new hinge or designing and manufacturing a new chemical, information processing is something that everybody does, all the time.”Everybody does? LOL – but people are not being claimed. Machines and machine components are being claimed.You have kicked up the dust cloud of anthropomorphication again. You dissemble by implying that machines are people or that software is a purely mental thing.Talks about your strawmen….Or perhaps you are saying that ‘everybody does’ is a bad thing? Funny that, prize winning journalism (provided surprisingly by 6’s mancrush Dudas) says the very opposite. That journalism says that the US patent system was expressly built so that ‘everybody’ can innovate (gasp, even twelve year olds).And yes, more patents (valid patents) is most definitely a good thing. That too was the purpose of the patent system: hint: promote does not only mean advance, but also means make more widespread, it means more of them. After all, they have their exclusive power for a mere limited time and after that they fully belong to the warehouse of men.
people are not being claimed.Not intentionally, although there are plenty of granted claims out there that prevent people from processing patent-ineligible information. That’s not what I was referring to, though.What I’m referring to is the fact that people process information by receiving information X, processing that information (e.g., sorting it, rating it, evaluating it, applying algorithms and logic to it), and then perform an act (or not) based on the results of that processing. That fact is relevant to any and every attempt to claim the use of computer to “speed up” or “increase the accuracy” of any information-processing method because that is the entire point of computers.
yes, more patents (valid patents) is most definitely a good thing. That too was the purpose of the patent system: hint: promote does not only mean advance, but also means make more widespread, it means more of them.The purpose of the patent system is to promote more patents? Golly, that is a new one. I’m not really surprised that you came up with it, though.
Patent guru starts from step 1 apparently in this discusion. As you will note guru, for claims that are directed to hinges of that sort that the functionally related structures are all old well known structures in the art. As has been pointed out by the supremes as being a “problem”, the claim types under discussion purport to be a new structure which has that function. Not an old one as will be present routinely in mechanical claims. And if someone tries to DISTINGUISH their hinge with a completely new function that is accomplished by a structure, then they must at the very least, set that structure forth in the spec and tell us about what properties will be shared amongst the set of structures which will be covered by the claims that give them that functionality. And to be clear, I’m sure MM would have much less of a problem if that were being done. Though he may still have a small problem. I certainly would have a very small problem with it as the art of 1’s and 0’s would become crowded very quickly.
then they must at the very least, set that structure forth in the spec and tell us about what properties will be shared amongst the set of structures which will be covered by the claims that give them that functionalityNo. They only need to describe the invention in such detail as to enable one skilled in the art to make and use the invention, as defined in the claims, without undue experimentation. If a description of the function is enough for one skilled in the art to practice the invention, then no structure need be disclosed.Let me put it another way, the average computer programmer doesn’t even know the “structure” associated with the computer programs they create. It just isn’t necessary. That doesn’t mean that there isn’t structure — it just means that the structure doesn’t need to be identified. Moreover, as I discussed earlier (although one thread I had with MM seems to have gone missing), one skilled in the art would easily know whether or not the structure is there by running the program and seeing what it does. Similarly, I don’t need to inspect the nucleus and electron shell of all the atoms in a wire to determine whether or not the wire is made of iron or gold. One can inferentially identify structure.
PatentGuru: I don’t need to inspect the nucleus and electron shell of all the atoms in a wire to determine whether or not the wire is made of iron or gold. One can inferentially identify structure.Absolutely. But in your example the structure is nevertheless identified. Not just the existence of some “lack of identity” between the two structures, but the structure itself. the average computer programmer doesn’t even know the “structure” associated with the computer programs they create.That’s because it’s not predictable and there’s no correlation between the function and the structure. It is, effectively, the “new functionality” of an old programmable device (or an old medium comprising instructions for said device) that is being claimed. Last time I checked, “functionalities” were not eligible subject matter, for good reasons.By way of reference to the “hinge argument”, imagine if the courts and PTO, by introducing some tweak into the patent laws, suddenly made it profitable to sue people for using old hinges to join new components. In other words, every time a new material capable of being attached to an old hinge showed up on the market (or was believed to be likely to show up in the future) swarms of applicants filed and received “new hinge functionality” claims that turned people who attached old hinges to those components into infringers. Some of those “hinge functionality” applicants became rich because the material manufacturers licensed the patents rather than fight the courts or the PTO. Other applicants sold their “hinge functionality” to aggregators of such patents who would use the leverage of multiple patents to extract money from the material manufacturers. Would you call that the promotion of technological progress or is it the promotion of something else entirely?
Last time I checked, “functionalities” were not eligible subject matter, for good reasons.Last time I checked, improvements thereof are patentable. An old computer with a new program is an improved computer. Saying otherwise is not a winning argument.That’s because it’s not predictable and there’s no correlation between the function and the structure.What do you mean by that?But in your example the structure is nevertheless identifiedNo. Most people don’t know the actual “structure” of iron or gold.You are looking for a description to the nth degree — it just isn’t necessary for computer-related inventions or mechanical inventions.
“An old computer with a new program is an improved computer”If so then you should claim it as such. See 112 2nd. And when you do, do please be a doll and compare and contrast the new structure to the old structure in the drawings as is proper for improvement patents. “What do you mean by that?”/facepalm. Now we begin to see why this is going over your head. I’ll let MM explain. “No. Most people don’t know the actual “structure” of iron or gold.”BS. Here: http://www.chemicalelements.co…Took 5 seconds, even an imaginary man can do a quick google, besides he knows everything that is old.
If so then you should claim it as such. See 112 2nd. And when you do, do please be a doll and compare and contrast the new structure to the old structure in the drawings as is proper for improvement patents.Start producing case cites please.BTW … the description of the new function is a description of the improvement.BS. Here:Apparently you do not know what the meaning of “know” is. There is a difference between knowing something and being able to look it up.
Patent_Guru.I chuckle at 6 asking for drawings, when drawings for this art that are merely labelled boxes on a flow chart are legally sufficient.6 – I suggest you try to have a stronger point for your position – this one is ridiculously weak for you.
“legally sufficient.”Legally sufficient to whom?
Why on earth would I start “producing case cites”, the law is quite sufficient to ensure that you claim that which you subjectively believe to be your invention, if you believe your invention to be an improvement, then you are required to claim such. Heck a case where the patent aws invalidtated for failing to claim that which applicant subjectively belived to be his invention was literally just posted on PO not 5 threads before this. link to patentlyo.com…””Apparently you do not know what the meaning of “know” is. There is a difference between knowing something and being able to look it up.”Imaginary men of ordinary skill “know” everyting that can be looked up.”BTW … the description of the new function is a description of the improvement”Hahahahah, k, all good and well for you to have WD support for a claim to that improvement. Now go ahead and claim it. Like I’ve said elsewhere, the supposedly implicit limitations on these kinds of claims apparently span 2-3 pages and are all invisibe in ordinaryly drafted claims.
6,Think rivets, tires and bullets.Then stop riding Ned’s merry-go-round.
That’s because it’s not predictable and there’s no correlation between the function and the structure.What do mean by that?I mean that to the extent that, e.g., “computer executable instructions”, have any physical structure, that physical structure is not predictably relatable to the functions that are recited in computer implemented claims.A sequence of 10 million pits on a disc, e.g., is just as likely to “instruct” a computer to display a picture of the Mona Lisa as it is to “instruct” the computer to “sort Grandma’s CD database according to the political tendencies of the recording artists.” The meaning of the structure depends on how the computer has been programmed to interpret the information.This is a universal problem with functional claiming where there isn’t an unambiguous (or nearly unambiguous) correspondence between the recited “new” function and the structure that intended to perform the function.