Another Means-Plus-Function Patent: Invalid as Indefinite

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.

295 thoughts on “Another Means-Plus-Function Patent: Invalid as Indefinite

  1. 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

  2. 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.

    1. 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.

      1. 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.

  3. 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.

  4. Again – this will be a long one, as I will be responding to Malcolm’s widespread CRP meltdown in one post.Malcolm has resorted to the trite bag of poor quality techniques that he always does. Top of the game for him: Accusing others of that which he does.He accusing me of 1ieing concerning his own volunteered admissions. Then he 1ies about making those admissions. Sorry Malcolm, but you volunteered the admissions and need to own them. And no 6, these were not admissions of the type of “say you were right…” – these were admissions against interest that Malcolm volunteered when he (finally) joined into a discussion on the merits. These are admissions against interest complete in there showing Malcolm’s duplicity. It is no wonder that he hardly ever joins in actual conversations on the merits.Malcolm (ironically) states that “ The insults aren’t necessary, by the way, nor are they helpful.”LOL – No one – and I do mean no one puts out more insults – and more undeserved and inappropriate insults than Malcolm does. He has AGAIN slunk back to the habit of not even using the proper moniker, instead inserting name-calling. Glass houses indeed.And vacuous replies like your famous *click* can be considered to be unhelpful insults. Especially when they are accompanied by name-calling or profanity – (unless of course the good professor wants me to re-run the profanity test again to see if that somehow passes a norm for conversation…) Malcolm also attempts to peddle simply untrue statements – or mischaracterize the truth of such statements.For example: “ Circuits and software are not “equivalent” unless you have some very special definition for “equivalent.”” – No special definition required. Just as Malcolm made a ‘game’ of not understanding the meaning of the word ‘effectively’ in the Myriad case discussion (LOL – even Leopold offered him a dictionary cite, and Malcolm, still haven’t seen those three little words from you: “anon was right.”), here he attempts a game with equivalents.’ Sorry Malcolm – the standard definition will do – think of equivalent functioning. Try bringing yourself up to speed with virtual machines (that is a term of art, mind you – so let’s keep the dissembling down regarding that term, OK pumpkin?) And Malcolm, exactness is not a requirement for equivalence – so the physicality difference between mailing you a circuit and configuring software is quite immaterial and quite the non-sequitur. By the way, it was not that you posted a 2nd Vote item for discussion – it was HOW you went about discussing it. This was not only explained to you, but the good professor even up-voted my explanation to you. You should pay attention instead of crabbing about my calling you out. Your expected response of “huh? What? Under your meme of feigned ignorance notwithstanding, we both know you understand this. More name calling in response to anthropomorphication instead of intellectual honesty in understanding the concept and why the mental steps doctrine simply does not fit the discussion on software patent eligibility….There is no way such vacuous name calling fits a norm for moving the conversation forward. Why don’t you integrate what that term means into your discussion points if you don’t like my using the term? It’s a great term with a great ring to it and it does in fact destroy the attempt at using the mental steps doctrine because in fact machine do not (and cannot) think. Let’s take a look at “ paranoid fantasies do not help your arguments”Not so paranoid, as no explanation has been forthcoming concerning the clearly special treatment you have on this board Malcolm. Sure, you have had more comments expunged for being inappropriate than anyone else, but still, there are rather peculiar facts that you have not bothered to address. Instead of addressing these items, you instead play the coy game of “beat your wife” – which is a rather odd response, as it does not help at all. That meme only exposes your game playing and your rather odd projected fantasies and deserves an additional comment to follow. But first, why do you not simply explain the oddities? Why the extra special secrecy of your posting and not being listed in the patently-o community stats? It is not as 6 suggests, that you do not belong in the DISQUS community – you do and you were listed initially (the name change is a giveaway, 6). It is also not likely that Leopold’s suggestion (that you have had too many of your comments removed for being inappropriate – as the change of the community status happened PRIOR to the onset of your comments being removed for their inappropriateness. So why the special treatment? In the prior software, only one person was able to provide a hyperlink to an internal thread comment – something that requires access within the websight. This was pointed out, and no explanation was forthcoming.It is not paranoia – it is the void of answers that is puzzling.As to my response to 6 and Ned – I am being on point to both. Asking them each to put a little effort into understanding Alappat is reminiscent of the Socratic Method – maybe you heard of that method. In fact, I have been more kind than most law school professors in providing clues and the Benson quote in Alappat should not be too hard to find and the context of that quote not too difficult to understand (of course, the contrast with third party interests may prevent a discussion on the merits – but again the silence from Ned and 6 on that point screams volumes). You cannot be serious about not understanding what ‘integrate into position’ means – can you? That is right there with your not understanding what ‘effectively ‘ meant in our Myriad discussions.Your “seem unwilling to defend” line is pure malarkey. There is no way such mischaracterization is meant for anything but an attempted (and failed) denigration of the positions I have put forth – positions more than aptly supported, as you have done nothing with the valid points that I have provided (other than either ignore them or attempt to spin them).As to Ned’s “field of use” – that is a complete and unsupported non-sequitur. “Field of use” has nothing to do with the point under discussion, so even if you think “ On its face, Ned’s analysis seems reasonable” you would be wrong – never mind the fact that there was no actual analysis even given – the non-sequitur was nakedly thrown out there. Double Fail.As to the “configured to” is structural language admission against interest. It is funny that you call such a 1ie, that you claim you never said that, and then turn around here and attempt some mighty massive spin with the ‘context’ insertion. LOL. I imagine that you realize that the archives may in fact one day be restored and that a search of the archives will show that the 1ie is fully your own. Sorry Malcolm, you did volunteer the admissions against interest that I post – and those admissions are clearly (and without spin) referenced by me. That your own words work against your philosophical leanings is simply something you have to deal with. You might try to be intellectually honest in your postings. That way, you will not have to cover up your 1ies with ever more 1ies.Which brings us back to the ‘game’ of projected fantasies you insist on playing – your fallacy is exposed (your gambit of accuse-others-of-that-which-you-do is quite obvious) as my pointing out what you say and your making things up are clearly different. The game playing clearly cannot rise to any ‘norm’ for a conversation. “You made a “valid counterpoint”? I must have missed that.” The “huh? What? Vinnie Barbarino meme does not rise to any ‘norm’ for conversation. As mentioned previously, this tactic of yours is old (“what the Sam Hill”) and trite. Try losing it and try to advance the conversation instead or merely soapboxing or accusing others of ‘insulting’ you when they point out your vapid techniques. “ Who are you referring to and what is their “vested interest”?” LOL – Still pretending that the patent system is not under attack by the Left and the Right? Are you going to lay out a choice line of expletives if I again provide a quote from other mainstream bloggers that reflect this observation? Or is the Vinnie Barbarino meme of your going to ‘advance the conversation?’Your answer to Patent_Guru’s post of “ Thus, there is no requirement to give something to somebody that they don’t need (or likely even want or care about).” is pure spin and prevarication. Try answering the actual point he made. You might find an intellectually honest conversation on that point ‘fascinating.’“ Computers are very versatile … and your point is?” The point has been explained before – even here by Leopold (and yes, Leopold, your explanation does in fact sound in Morse – it is OK to admit that you agree with me, really). Quite simply, the ability of a machine to be changed does not – and cannot – make those future changed obvious per se. Like Morse, you cannot claim those future improvements to a machine. The fallacy of the House argument – that the inventor of the first computer somehow invented all software that ‘that’ computer can be changed to be is well known. I suggest you leave that CANARD out of your discussion points. (you don’t like my style of using the word ‘canard’ – lol – too bad for you. )And no, your very weak spin of trying to redefine my use as merely something I disagree with or – even funnier – something that is a detriment to my position – fails on its face. I use the term appropriately. Do I need to hold your hand through each explanation (again)?“ without the disclosure of a single working embodiment.” – you ever hear of constructive reduction to practice? You want to provide a citation for your requirement of a working embodiment? Please, let’s move this discussion point forward. And let’s not forget your admission against interest: “configured to” is structural language. “ f no structures are necessary to practice the invention, then there is no relevant “skill in the art”… obvious or ineligible as a per se matter” – this is a nonsense statement, from beginning non sequitur to ending unfathomable jump to a conclusion. “It’s a statement of fact: the physical structure of media comprising digital information is not related in a predictable, definable way to the “functionality” of that medium.”LOL – Let’s advance this discussion point by having Malcolm (again) offer his volunteered admission against interest in his knowing the controlling law concerning the exceptions to the printed matter doctrine. Plainly speaking, the only thing required is that there be a functional relationship – the demand here for a predictable and definable way is both unnecessary and damming to Malcolm’s interests. And by the way, the relationship is in fact easily predictable and definable – does the claim work? Oh yeah, this might circle back to your wanting something that is NOT required – a working example. You might want to talk to your congressman about that.“ 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.” No, this is not a new one. Your feigned ignorance of what I posted notwithstanding, clearly more of something the system was designed to provide is a good thing. Your anti-patent streak is shining through.“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” – LOL thanks for proving my point. It is simply not that you disagree with me Malcolm, it is how you go about doing so. That is where the intellectual dishonesty is. “ 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.”LOL – quite simply LOL – gee, I heard of this before…You might try recognizing what an actual insult is. Hint: look at what you are accusing others of doing.“. He is the arbiter of such things and always has been.”Well you at least got that right – nice of you though to forego the religious insults. You are learning. Now if we can just get you to stop at the correct point here and NOT go off the deep end with your ensuing spin…“ 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.”This has potential. It appears that Malcolm thinks that some ADDITIONAL line drawing isrequired. Why?“ There is simply no way that the current system can continue in its present state,” Maybe you need to stop kicking up dust and misrepresenting what that present state is. Start with understanding that machines really do not think. There’s a great word for that, perhaps you have heard of it: anthropomorphication.“ Translation: “The problem is a lack of acknowledgement that I am always right and everyone else is wrong.” ” Nice spin. Try again, this time recognizing that I am in fact right about certain things that need to be integrated into the conversation and that cannot be ignored or spun away. “ Functional claiming at the point of novelty is the problem that concerns many patent attorneys, scholars of patent law, and people who write software and don’t appreciate being told that they have infringed a patent written by a person who simply sat down and dreamed up a nice “new” functionality for an old computer but never wrote a line of code.”Point of novelty – as being attempted to be used here – is a canard. Sorry Malcolm, but that is a fact, and one not simply because I say so, but because it is. That’s just reality. Just as Ned’s treatment of software is a fallacy – as I have shown with the Copyright discussions. But you and copyright law have shown to be strangers given the number of times you have butchered what copyright law is for.“Right, they are so “devastating” that I immediately responded to them and explained why they didn’t even amount to an “argument” about the points I made, and then you responded with insults and your usual pathological lies, like this one: Malcolm’s self-volunteered admissions against interest are”LOL – another double fail from you Malcolm. Your response to the electron/proton/neutron analogy (or previous big box of all the elements analogy) has never been successful for showing any point. There was no explanation in your response – merely your conclusion that my analogy does not fit. It does fit. Sorry Malcolm, but once again, in order to move the conversation forward, you will have to deal with the reality that I am correct.Returning again to the Accuse-others-of-that-which-you-do meme: “ The fact that you are lecturing anyone about this sort of behavior is exactly why you should have been banned a long time ago. ”LOL – the new software and just whose comments are being banned show that I was right and that you Malcolm – are the epitome of bad behavior. My lectures were, have been and will continue to be accurate. That is reality.Deal with it.

  5. 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.

    1. 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.

      1. 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.

        1. egeneration by obfuscation and re (or more properly mis) characterizing.*click*Oh boy, the blogtroll is back! I can hardly wait to see the “substance” it contributed to the conversation below.

      2. 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.

        1. >> 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.

          1. Again – this will be a long one, as I will be responding to Malcolm’s widespread CRP meltdown in one post.Malcolm has resorted to the trite bag of poor quality techniques that he always does. Top of the game for him: Accusing others of that which he does.He accusing me of 1ieing concerning his own volunteered admissions. Then he 1ies about making those admissions. Sorry Malcolm, but you volunteered the admissions and need to own them. And no 6, these were not admissions of the type of “say you were right…” – these were admissions against interest that Malcolm volunteered when he (finally) joined into a discussion on the merits. These are admissions against interest complete in there showing Malcolm’s duplicity. It is no wonder that he hardly ever joins in actual conversations on the merits.Malcolm (ironically) states that “ The insults aren’t necessary, by the way, nor are they helpful.”LOL – No one – and I do mean no one puts out more insults – and more undeserved and inappropriate insults than Malcolm does. He has AGAIN slunk back to the habit of not even using the proper moniker, instead inserting name-calling. Glass houses indeed.And vacuous replies like your famous *click* can be considered to be unhelpful insults. Especially when they are accompanied by name-calling or profanity – (unless of course the good professor wants me to re-run the profanity test again to see if that somehow passes a norm for conversation…)Malcolm also attempts to peddle simply untrue statements – or mischaracterize the truth of such statements.For example: “ Circuits and software are not “equivalent” unless you have some very special definition for “equivalent.”” – No special definition required. Just as Malcolm made a ‘game’ of not understanding the meaning of the word ‘effectively’ in the Myriad case discussion (LOL – even Leopold offered him a dictionary cite, and Malcolm, still haven’t seen those three little words from you: “anon was right.”), here he attempts a game with equivalents.’ Sorry Malcolm – the standard definition will do – think of equivalent functioning. Try bringing yourself up to speed with virtual machines (that is a term of art, mind you – so let’s keep the dissembling down regarding that term, OK pumpkin?) And Malcolm, exactness is not a requirement for equivalence – so the physicality difference between mailing you a circuit and configuring software is quite immaterial and quite the non-sequitur.By the way, it was not that you posted a 2nd Vote item for discussion – it was HOW you went about discussing it. This was not only explained to you, but the good professor even up-voted my explanation to you. You should pay attention instead of crabbing about my calling you out. Your expected response of “huh? What? Under your meme of feigned ignorance notwithstanding, we both know you understand this.More name calling in response to anthropomorphication instead of intellectual honesty in understanding the concept and why the mental steps doctrine simply does not fit the discussion on software patent eligibility….There is no way such vacuous name calling fits a norm for moving the conversation forward. Why don’t you integrate what that term means into your discussion points if you don’t like my using the term? It’s a great term with a great ring to it and it does in fact destroy the attempt at using the mental steps doctrine because in fact machine do not (and cannot) think. Let’s take a look at “ paranoid fantasies do not help your arguments”Not so paranoid, as no explanation has been forthcoming concerning the clearly special treatment you have on this board Malcolm. Sure, you have had more comments expunged for being inappropriate than anyone else, but still, there are rather peculiar facts that you have not bothered to address. Instead of addressing these items, you instead play the coy game of “beat your wife” – which is a rather odd response, as it does not help at all. That meme only exposes your game playing and your rather odd projected fantasies and deserves an additional comment to follow. But first, why do you not simply explain the oddities? Why the extra special secrecy of your posting and not being listed in the patently-o community stats? It is not as 6 suggests, that you do not belong in the DISQUS community – you do and you were listed initially (the name change is a giveaway, 6). It is also not likely that Leopold’s suggestion (that you have had too many of your comments removed for being inappropriate – as the change of the community status happened PRIOR to the onset of your comments being removed for their inappropriateness. So why the special treatment? In the prior software, only one person was able to provide a hyperlink to an internal thread comment – something that requires access within the websight. This was pointed out, and no explanation was forthcoming.It is not paranoia – it is the void of answers that is puzzling.As to my response to 6 and Ned – I am being on point to both. Asking them each to put a little effort into understanding Alappat is reminiscent of the Socratic Method – maybe you heard of that method. In fact, I have been more kind than most law school professors in providing clues and the Benson quote in Alappat should not be too hard to find and the context of that quote not too difficult to understand (of course, the contrast with third party interests may prevent a discussion on the merits – but again the silence from Ned and 6 on that point screams volumes). You cannot be serious about not understanding what ‘integrate into position’ means – can you? That is right there with your not understanding what ‘effectively ‘ meant in our Myriad discussions.Your “seem unwilling to defend” line is pure malarkey. There is no way such mischaracterization is meant for anything but an attempted (and failed) denigration of the positions I have put forth – positions more than aptly supported, as you have done nothing with the valid points that I have provided (other than either ignore them or attempt to spin them).As to Ned’s “field of use” – that is a complete and unsupported non-sequitur. “Field of use” has nothing to do with the point under discussion, so even if you think “ On its face, Ned’s analysis seems reasonable” you would be wrong – never mind the fact that there was no actual analysis even given – the non-sequitur was nakedly thrown out there. Double Fail.As to the “configured to” is structural language admission against interest. It is funny that you call such a 1ie, that you claim you never said that, and then turn around here and attempt some mighty massive spin with the ‘context’ insertion. LOL. I imagine that you realize that the archives may in fact one day be restored and that a search of the archives will show that the 1ie is fully your own. Sorry Malcolm, you did volunteer the admissions against interest that I post – and those admissions are clearly (and without spin) referenced by me. That your own words work against your philosophical leanings is simply something you have to deal with. You might try to be intellectually honest in your postings. That way, you will not have to cover up your 1ies with ever more 1ies.Which brings us back to the ‘game’ of projected fantasies you insist on playing – your fallacy is exposed (your gambit of accuse-others-of-that-which-you-do is quite obvious) as my pointing out what you say and your making things up are clearly different. The game playing clearly cannot rise to any ‘norm’ for a conversation.“You made a “valid counterpoint”? I must have missed that.” The “huh? What? Vinnie Barbarino meme does not rise to any ‘norm’ for conversation. As mentioned previously, this tactic of yours is old (“what the Sam Hill”) and trite. Try losing it and try to advance the conversation instead or merely soapboxing or accusing others of ‘insulting’ you when they point out your vapid techniques.“ Who are you referring to and what is their “vested interest”?” LOL – Still pretending that the patent system is not under attack by the Left and the Right? Are you going to lay out a choice line of expletives if I again provide a quote from other mainstream bloggers that reflect this observation? Or is the Vinnie Barbarino meme of your going to ‘advance the conversation?’Your answer to Patent_Guru’s post of “ Thus, there is no requirement to give something to somebody that they don’t need (or likely even want or care about).” is pure spin and prevarication. Try answering the actual point he made. You might find an intellectually honest conversation on that point ‘fascinating.’“ Computers are very versatile … and your point is?” The point has been explained before – even here by Leopold (and yes, Leopold, your explanation does in fact sound in Morse – it is OK to admit that you agree with me, really). Quite simply, the ability of a machine to be changed does not – and cannot – make those future changed obvious per se. Like Morse, you cannot claim those future improvements to a machine. The fallacy of the House argument – that the inventor of the first computer somehow invented all software that ‘that’ computer can be changed to be is well known. I suggest you leave that CANARD out of your discussion points.(you don’t like my style of using the word ‘canard’ – lol – too bad for you. )And no, your very weak spin of trying to redefine my use as merely something I disagree with or – even funnier – something that is a detriment to my position – fails on its face. I use the term appropriately. Do I need to hold your hand through each explanation (again)?“ without the disclosure of a single working embodiment.” – you ever hear of constructive reduction to practice? You want to provide a citation for your requirement of a working embodiment? Please, let’s move this discussion point forward. And let’s not forget your admission against interest: “configured to” is structural language.“ f no structures are necessary to practice the invention, then there is no relevant “skill in the art”… obvious or ineligible as a per se matter” – this is a nonsense statement, from beginning non sequitur to ending unfathomable jump to a conclusion.“It’s a statement of fact: the physical structure of media comprising digital information is not related in a predictable, definable way to the “functionality” of that medium.”LOL – Let’s advance this discussion point by having Malcolm (again) offer his volunteered admission against interest in his knowing the controlling law concerning the exceptions to the printed matter doctrine. Plainly speaking, the only thing required is that there be a functional relationship – the demand here for a predictable and definable way is both unnecessary and damming to Malcolm’s interests. And by the way, the relationship is in fact easily predictable and definable – does the claim work? Oh yeah, this might circle back to your wanting something that is NOT required – a working example. You might want to talk to your congressman about that.“ 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.” No, this is not a new one. Your feigned ignorance of what I posted notwithstanding, clearly more of something the system was designed to provide is a good thing. Your anti-patent streak is shining through.“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” – LOL thanks for proving my point. It is simply not that you disagree with me Malcolm, it is how you go about doing so. That is where the intellectual dishonesty is. “ 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.”LOL – quite simply LOL – gee, I heard of this before…You might try recognizing what an actual insult is. Hint: look at what you are accusing others of doing.“. He is the arbiter of such things and always has been.”Well you at least got that right – nice of you though to forego the religious insults. You are learning. Now if we can just get you to stop at the correct point here and NOT go off the deep end with your ensuing spin…“ 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.”This has potential. It appears that Malcolm thinks that some ADDITIONAL line drawing isrequired. Why?“ There is simply no way that the current system can continue in its present state,” Maybe you need to stop kicking up dust and misrepresenting what that present state is. Start with understanding that machines really do not think. There’s a great word for that, perhaps you have heard of it: anthropomorphication.“ Translation: “The problem is a lack of acknowledgement that I am always right and everyone else is wrong.” ” Nice spin. Try again, this time recognizing that I am in fact right about certain things that need to be integrated into the conversation and that cannot be ignored or spun away.“ Functional claiming at the point of novelty is the problem that concerns many patent attorneys, scholars of patent law, and people who write software and don’t appreciate being told that they have infringed a patent written by a person who simply sat down and dreamed up a nice “new” functionality for an old computer but never wrote a line of code.”Point of novelty – as being attempted to be used here – is a canard. Sorry Malcolm, but that is a fact, and one not simply because I say so, but because it is. That’s just reality. Just as Ned’s treatment of software is a fallacy – as I have shown with the Copyright discussions. But you and copyright law have shown to be strangers given the number of times you have butchered what copyright law is for.“Right, they are so “devastating” that I immediately responded to them and explained why they didn’t even amount to an “argument” about the points I made, and then you responded with insults and your usual pathological lies, like this one: Malcolm’s self-volunteered admissions against interest are”LOL – another double fail from you Malcolm. Your response to the electron/proton/neutron analogy (or previous big box of all the elements analogy) has never been successful for showing any point. There was no explanation in your response – merely your conclusion that my analogy does not fit. It does fit. Sorry Malcolm, but once again, in order to move the conversation forward, you will have to deal with the reality that I am correct.Returning again to the Accuse-others-of-that-which-you-do meme: “ The fact that you are lecturing anyone about this sort of behavior is exactly why you should have been banned a long time ago. ”LOL – the new software and just whose comments are being banned show that I was right and that you Malcolm – are the epitome of bad behavior. My lectures were, have been and will continue to be accurate. That is reality.Deal with it.

            1. 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.

            2. 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.

            3. Truth is the ultimate defense, 6.You sound like Leopold, telling hte wrong people to just shut up. You should be more incensed with those 1ying,As to any other ‘insults’, what was the phrase you used? lampooning? What was your advise to those whom you lampooned? LOL – why the double standard 6?Sorry (for you) that the truth seems to hurt you so much. I suggest that you – and those so hurt – clean up their act and post in a more responsible manner, and the ‘insults’ will disappear on their own accord.”Having your feelings hurt” is playing the Crybaby Veto. It just gets in the way of conversation, as not all conversation is made of roses and tea.I suggest you deal with it.

            4. 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.

  6. 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?

      1. 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.

  7. 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.

  8. 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.

    1. 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.

      1. The one word answer cuts through Malcolm dissembling here:ANTHROPOMORPHICATIONAnd there’s two words that cut through all of Trollboy’s comments: “crazy person.”

        1. 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)…

  9. 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.

    1. 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.)

      1. 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.

        1. 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.

          1. 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.

            1. 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.

            2. “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?

            3. 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.

            4. 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.

            5. 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.

            6. 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.

            7. 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.

            8. 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.

            9. 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.”

            10. He’s responded to that same “substance” a million times, just as I have. It’s boring.

            11. “just as I have”LOL – and that is the crux of the law quality blogging here.Thank you for proving my point again 6.

            12. 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.

            13. 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.

            14. The anti-patent arguments are far too nuanced to resonate with the masses, and that is what is important.LOL.

            15. 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.

            16. 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).

            17. 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.

            18. 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.

            19. 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.

            20. 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.

            21. 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.

            22. 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

            23. 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.

            24. 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.

            25. 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.

            26. 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.

            27. 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.

            28. 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.

            29. 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?

            30. 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.

            31. “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.

            32. 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.

            33. 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.

            34. 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.

            35. 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.

            36. 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.”No. What you are saying is akin to saying that my coffee cup is just as likely to light up when I screw it into a light socket as a light bulb. It doesn’t make sense.The meaning of the structure depends on how the computer has been programmed to interpret the information.The utility of many/most mechanical devices depends upon the context in which they are used. If I screw my light bulb into my coffee cup, odds are pretty good that it isn’t going to light up.A cylindrical object can very well be a pin, an axle, a roller bearing, a support, a piston, and I sure many others depending upon the context in which it is used.

            37. Malcolm already knows this and has volunteered an admission against interest that must be integrated into his position for him to be intellectually honest.Malcolm, please integrate your understanding about the controlling law of the exceptions to the printed matter doctrine. Pleas integrate the FACT that software is a man-made manufacture and machine component.

            38. No. What you are saying is akin to saying that my coffee cup is just as likely to light up when I screw it into a light socket as a light bulb. It doesn’t make sense.How is my statement “akin” to that? Please explain. What “doesn’t make sense” about what I wrote? It’s a statement of fact: the physical structure of media comprising digital information is not related in a predictable, definable way to the “functionality” of that medium. That’s because a computer will respond to such physical structures only in the manner in which it has been instructed to respond to such structures.The utility of many/most mechanical devices depends upon the context in which they are used. If I screw my light bulb into my coffee cup, odds are pretty good that it isn’t going to light up.Uh … sure. First, it’s a non-controversial fact that all valid enforceable claims to “new” light bulbs recite (or are limited to) specified structural features which distinguish them from old light bulbs. That gets us back to square one, again.Second, if your coffee cup has a light fixture built into it, the bulb will almost certainly light up. Applying this fact to your logic, then, I should be able to claim “a light bulb that lights up when I screw it into a green and purple Stetson hat on a Tuesday when the moon is full”, without every disclosing what makes that light bulb different from any other light bulb. Do you think such a claim is grantable and enforceable? If not, why not?Third, the present situation with functional claiming in the computer arts is that context can be completely ignored. The function is considered enabled for all operating systems, including operating systems that have never been invented, even where an actual working embodiment for any operating system is left undisclosed.

            39. Most people don’t know the actual “structure” of iron or gold.What? This is patent law. It doesn’t matter what “most people know”. It just matters that at least one person knew it and didn’t keep the information secret. And trust me there’s a lot of people out there who know the “actual structure” of iron and gold.Geezus.

            40. “This is patent law. It doesn’t matter what “most people know”. It just matters that at least one person knew it and didn’t keep the information secret.”Almost missed this admission against interests.See Alappat and the cases it rests on – Just because the changes are smaller than the eye can see does not mean the changes do not happen. The machine is a new machine – structurally with the programming, and “configured to” is the structural language.”Geezus” indeed.

            41. “No. 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.”Nah bro, check Ariad. Your old timer’s view was done away with.

            42. Ariad? The “written description” requirement is not particularly hard to meet. You need to do better than that.

            43. You assert that it is not particularly hard to meet, but I see no reason to believe you. Perhaps you could tell Ariad just how easy it is to meet, and then tell the federal circuit en banc court also. I also see no reason to believe that the description of a function shows possession of a structure. Especially since you just now admitted that the ordinary skilled artisan, where you implicitly meant an imaginary oridinary skilled artisan, doesn’t know or care what the structure is. If he doesn’t know, or care, and you haven’t’ bothered to show it, then there is no showing of possession. Period. Though I agree that it would be fairly simple to show possession by a. drawing a 1 or 0 and telling us all that such suffices or b. submitting a cd exhibit with whatever long long structure you feel is implied in the claim.

            44. I also see no reason to believe that the description of a function shows possession of a structure.The requirement is possession of the invention — not the structure.If he doesn’t know, or care, and you haven’t’ bothered to show it, then there is no showing of possession.You don’t need to possess minor details. The structure is a minor detail. Every mechanical patent application I have every seen (thousands of them) omits minor details as to some part of the structure.What you are asking for is akin to asking for a detailed manufacturing blueprint for a mechanical device. It just isn’t needed to show possession.

            45. “The requirement is possession of the invention — not the structure”According to you, and the attorneys on the actual official record in some of my instant cases, the invention, the claimed invention that is, IS a structure aka THE structure. “You don’t need to possess minor details.”Wait WUUUUUUUUTT? That’s the whole MO FIN point of the possession requirement. Literally, that is a great way of expressing what the possession requirement is. Man, if I could have an attorney like you arguing before the federal circuit you and I could create some wonderous caselaw brosef. It would sort the law out very very very quickly. You don’t just possess an abstract concept in ether and all of a sudden have possession of an invention. The details as to how to implement it (make and use) and how it would be when implemented (written desc) matter. You obviously don’t have to go into excrutiating detail on all of them, you just have to show enough details of what is being claimed to generally indicate that you possessed the entirety of the invention (in this case supposedly this is the structure) including those “details”. Which is why I’m willing to give people that forgot their drawings the benefit of the doubt if they’ve forgotten their drawings and allow them to submit such and tell us why one of ordinary skill would have appreciated that from the get go (though of course you yourself admit they wouldn’t, so that might be a problem for you in specific). “What you are asking for is akin to asking for a detailed manufacturing blueprint for a mechanical device.”Mmmmm, nah, just details on the level of those that are producing the functionality is all I require. “It just isn’t needed to show possession.”So you assert. And again, I’m willing to give you the benefit of the doubt.

            46. According to youAccording to case law. You should open up the MPEP from time to time.just details on the level of those that are producing the functionality is all I requireNo. I don’t have to provide details that one skilled in the art already knows.BTW … the written description requirement is pretty weak.

            47. “According to case law. You should open up the MPEP from time to time.”You cut off my reply in making up a straw man soundbyte. I agree that you must show the invention, and, furthermore, I note that you and other attorneys irl, state the invention is a structure. Therefore, to show the invention, you show the structure. “No. I don’t have to provide details that one skilled in the art already knows.”Right, which is why your admission that they don’t know or care wins the day for me. Thanks bro. “BTW … the written description requirement is pretty weak.”Ok, tell it to Ariad and the Fed. Circ.

            48. I note that you and other attorneys irl, state the invention is a structureThe invention can be embodied as a structure or as a method.Ok, tell it to Ariad and the Fed. Circ.Talk to the USPTO, who have probably issued hundreds of thousands of “software” patents. BTW — Ariad didn’t involve software.

            49. “The invention can be embodied as a structure or as a method.”I’m not sure why my prior response to this did not post but I will simply say that you need to go ahead and tell us just wtf you’re talking about. So far as I had been presuming we were talking about CRM or processor claims from the get go. if you’re talking about some nebulous abstraction that can be “embodied” in a non-corporeal method also then you need to go ahead and clarify what you’re talking about. “Talk to the USPTO, who have probably issued hundreds of thousands of “software” patents. “The PTO and the Federal circuit can only decide an issue that has been brought before them. If you insist I will talk to myself (the pto) about this issue briefly. I don’t have time to talk to every examiner issuing such claims. I can talk to a few though.

            50. I don’t have to provide details that one skilled in the art already knows.One skilled in the art already knows that computers can process any information that they are instructed to process. Given that fact, the “details” are rather important for showing that you possessed the “invention” you wish to claim.

            51. One skilled in the art already knows that computers can process any information that they are instructed to process.Computers are very versatile … and your point is?Given that fact, the “details” are rather important for showing that you possessed the “invention” you wish to claimBut the “details” you are looking for aren’t necessary to establish possession. One skilled in the art can conceive of the invention and PRACTICE the invention without the “structure” you are looking for. If you can practice the invention without identifying, with particularity the structure, then the structure isn’t needed to establish possession.The only apparent reason you are advocating for this disclosure of this “structure” is to make it more expensive to have an application prepared. However, the added benefit (to the extent there is any) does not even come close to justifying the cost.The patent law system has long looked at the issue as to how much disclosure is enough. The system wants a disclosure of the invention … not the minor details.

            52. “One skilled in the art can conceive of the invention and PRACTICE the invention without the “structure” you are looking for.”So then one of skill in the art can invent it on his own (aka concieve of it), and that is totally enabled, and that is totally relevant to your having WD how? SOunds like the art was at the same point the day before you filed your application as it was the day after you filed your application. One could concieve of the claimed invention, and it was enabled. That is the same the day before your application as it was the day after it publishes. Thus the useful arts stood still. “If you can practice the invention without identifying, with particularity the structure, then the structure isn’t needed to establish possession.”Dude you and me, we could make beautiful caselaw together. With your unwittingly playing my partner we could wipe out software patents from the US. Acording to you, so long as the invention is enabled one need not show posssession at all. Of course, that was the argument in Ariad, and it was rejected. If that is your position then I win, easily.

            53. Computers are very versatile … and your point is?I made my point (“One skilled in the art already knows that computers can process any information that they are instructed to process”). It appears that we agree on that point. Let me know if/when you feel compelled to backpedal away from that point.the “details” you are looking for aren’t necessary to establish possession.This is something we don’t agree on and which you can’t establish merely by repetition of your conclusion. I think it’s highly debatable that a new “function” for all types of computer operating systems is “possessed” merely by the recitation of the function without the disclosure of a single working embodiment. One skilled in the art can conceive of the invention and PRACTICE the invention without the “structure” you are looking for.That’s false. The structure is essential to practicing the invention. Even constructive reductions to practice of articles of manufacture require the distinguishing essential structures to be disclosed, even if the structures were never actually made by the inventor.Also, if no structures are necessary to practice the invention, then there is no relevant “skill in the art” and this, together with your admission regarding the well-known capabilities of computers to process any and all kinds of information, renders most junky computer-implemented claims (like the one at issue in this case) obvious or ineligible as a per se matter. Are you starting to see the problem with functional claiming now?

            54. One skilled in the art already knows that computers can process any information that they are instructed to processWhat you fail to realize is that the instruction part can be very hard. Take for example, facial recognition. Easy for a human to do. Much harder for a computer. Moreover, try instructing a computer to read the moods of a person by readying their face. Easy for many people, extremely hard for a computer.That’s false.You have no clue. Really, if you don’t have a basic understanding of the technology, you really shouldn’t be discussing it. The VAST MAJORITY of programmers NEVER know the underlying structure that result from the programs they create.if no structures are necessary to practice the inventionThe structure is there. However, it doesn’t need to be known. It is created by the computer and used by the computer.Acording to you, so long as the invention is enabled one need not show posssession at allLike 6, you confuse possession of the structure with possession of the invention. The law just requires possession of the invention.

            55. PG: What you fail to realize is that the instruction part can be very hard.Oh, so now programming a computer is “very hard”? Before you seemed to believe that it was so easy that you just needed to tell a “skilled person” what the computer needed to process and the rest was gravy. The claimed functionally is immediately instantly and fully enabled for all computer operating systems. Take for example, facial recognition. Easy for a human to do. Much harder for a computer.Whether or not it was or is “much harder” is completely irrelevant because in 2013 “face recognition” is anticipated whether it’s a human or a computer doing it. Why is always stepping into a weird time tunnel with the pro-software patenting people? You seem to believe that computers were invented yesterday. They weren’t. They were invented a long time ago and people have been aware for many decades now that the ability of computers to process information is limited by two things only: memory size and speed. That’s it.As for the “face recognition” obsession that you seem to share with NPWA, what makes you think that it’s so much “harder” for a computer than for a human? The computer is capable of using any information that a human can use to determine “the moods” of a person. Just tell the computer to do it and it will. If you can describe your own thought processes (extremely difficult for some people who lack good writing skills, but otherwise not “inventive” in any way) for making such a determination, then you can describe an algorithm for a computer to use. It may take longer to “teach” the computer to distinguish the “line of pixels” corresponding to a furrow in the brow from the “line of pixels” corresponding to a scar but conceptually (i.e., the level at which computer functionality is invariably claimed) it’s pretty straightforward and not worthy of a patent grant.And just a friendly reminder since you seem confused on this point: it’s actually impossible for any human (or any other information processing entity) to unambiguously determine someone’s actual mood by observing their features and movements. Have you heard of these people called “actors”? In addition, certain “moods” aren’t unambiguously expressed by facial features. Perhaps you’ve never seen a human face up close during a moment of intense emotion which is why you are confused about that.

            56. Oh, so now programming a computer is “very hard”? Before you seemed to believe that it was so easy that you just needed to tell a “skilled person” what the computer needed to process and the rest was gravy.You confuse the programming part (some hard, some easy) with the identifying what needs to be programmed (some hard, some easy). Your cherry-picked examples typically involve simple concepts that can be simply implemented.And just a friendly reminder since you seem confused on this point: it’s actually impossible for any human (or any other information processing entity) to unambiguously determine someone’s actual mood by observing their features and movements.Did I use the word “unambiguously”? Methinks you are the one that seems to be confused (and moving the goal posts).Whether or not it was or is “much harder” is completely irrelevant because in 2013 “face recognition” is anticipated whether it’s a human or a computer doing it.Flying is anticipated by birds, but the Wright brothers got a patent on flying, didn’t they? Oh, they did it another way than what was disclosed? You mean computers recognize faces differently than humans? Who would have ever thought?You seem to believe that computers were invented yesterday. They weren’t. They were invented a long time ago and people have been aware for many decades now that the ability of computers to process information is limited by two things only: memory size and speed. That’s it.No. NOT EVEN CLOSE. What you don’t appreciate (or even care to) is that much of the information (albeit not all) that is being processed wasn’t available before and the manner in which that information is processed is different.Just tell the computer to do it and it will.As if it was so simple to do. I’ll give you the fastest computer in the world with unlimited memory, a video camera, and a book on programming. My guess is that it would take you at least your lifetime to program something that even does the most rudimentary of facial recognition — something a baby does rather young in life. NO COMPARISON WHATSOEVER.It may take longer to “teach” the computer to distinguish the “line of pixels” corresponding to a furrow in the brow from the “line of pixels” corresponding to a scar but conceptuallyI would imagine it would take you years just to identify something as a “line.”

            57. “What you fail to realize is that the instruction part can be very hard.”Nobody fails to realize that, we all realize that. We further realize, which you fail to, that it is completely irrelevant. “However, it doesn’t need to be known”If it doesn’t need to be known (and isn’t known by your admission) then it doesn’t need to be shown in the reference. The extent to which the structure in the reference must be laid out is, you guessed it, only to the extent the applicant laid it out. Yet another reason why you and me together would create some great caselaw. We agree on all the things that would throw the case directly to me and thus wouldn’t require the cout to decide such. “Like 6, you confuse possession of the structure with possession of the invention. The law just requires possession of the invention.”Of course, when 6 gets an admission on the record that the claimed invention is a structure, then of course everything changes. Supposedly anyway.

            58. “But the “details” you are looking for aren’t necessary to establish possession. ” I hear your assertion. “One skilled in the art can conceive of the invention and PRACTICE the invention without the “structure” you are looking for.” Ok, you further assert that one of skill in the art can “conceive of” the invention and it is enabled without you disclosing the structure we’re looking for. I will agree that one of skill in the art can “conceive of” the functionality and can “conceive of” making such a CRM or processor or whatever, and such is enabled. But neither of those are the “invention” according to you. According to you, “the invention” is a structure. Remember? The thing you and I both agree that one skilled in the art can’t, or doesn’t want to bother, conceive of. If you’d be so kind as to stop trying to play around with the word “invention” and focus on what it is you’re stating is the “invention” then we’d make real progress here. Try writing things out longhand they’ll make more sense in your brain. “If you can practice the invention without identifying, with particularity the structure, then the structure isn’t needed to establish possession” Oh, so if you can practice the invention without identifying, with particularity, the structure, then the structure isn’t needed to establish possession. Well for heaven’s sake, why didn’t someone INFORM ARIAD, and the FEDERAL CIRCUIT, that as long as it is enabled (aka you can practice the invention) then you don’t need to show possession. Seems like someone made that argument in oral arguments, that I heard in person, and the en banc court disagreed. “The only apparent reason you are advocating for this disclosure of this “structure” is to make it more expensive to have an application prepared” Absolutely not, no way, not at all. My intention is at least fivefold. A. To show the sillyness (absurdity really) of the arguments being presented to the courts and ultimately bring down the whole claiming paradigm. B. To promote the useful arts so that eventually this art becomes crowded and crowds out old CRMs by the structure having been disclosed. As is, we’ll never reach that since all we have is the functionality and no structure. In other words, I want it to be just like every other art. C. Allow for 103′s based on the structure rather than solely on the functionality/method being performed. Just like in other arts. D. Actually get the quid pro quo just like in other arts. E. Ensure that the scope of the claims is so clear that easy design arounds are easily seen from the claim language themselves rather than us issuing claims that appear by their language to cover all design arounds even though “implicit” limitations in the claims supposedly disclaim quite a lot. Apparently using a 1 or a 0 is disclaimed. There are likely many others that are disclaimed as well and are free for use. I think MM is mainly concerned with A though. Neither of us is particularly concerned one little bit about driving up or keeping low costs. “However, the added benefit (to the extent there is any) does not even come close to justifying the cost.” Wait wait wait, so providing the US with it’s quo isn’t justified? “The patent law system has long looked at the issue as to how much disclosure is enough. The system wants a disclosure of the invention … not the minor details.” Mayhap, but if you argue that the structure is meh, just minor details, then why does the prior art need to show them for anticipation? They’re just minor details. The sword must cut both ways, it cannot forever cut in only one direction. Eventually people will notice. And they are noticing.

            59. According to you, “the invention” is a structure.The invention can be embodied in a structure. The invention can also be embodied as a method.Well for heaven’s sake, why didn’t someone INFORM ARIAD, and the FEDERAL CIRCUIT, that as long as it is enabled (aka you can practice the invention) then you don’t need to show possessionAs I said before, the written description requirement is pretty weak. I suggest you read some case law as to what is required for written description before you peg your hopes on it.Mayhap, but if you argue that the structure is meh, just minor details, then why does the prior art need to show them for anticipation?Are you serious? Do you really believe that?

            60. “The invention can be embodied in a structure. The invention can also be embodied as a method.”Whoa, whoa, whoa, I’m not even sure what kind of a claim we’re talking about here. Are we talking a method claim, or a CRM claim, a processor claim or what? You want to get into details, that’s fine. But up until now I’ve presumed you’re talking about a CRM or a processor claim. “As I said before, the written description requirement is pretty weak. “You can keep on assertin’ it, and I’ll keep on not believin’ it. “I suggest you read some case law as to what is required for written description before you peg your hopes on it.”I’ve quite well read on the matter, thank you very much. I’m yet to read one that says that the WD req is “weak”. Perhaps you can cite one. “Are you serious? Do you really believe that?”Do I really believe what? Do I believe that you’re trying to make a big deal out of the structure to weasel around some requirements, then minimize the structure to weasel around others? Yes. I do believe that. Do I believe that you’re trying to minimize the importance of the most important part (allegedly) of the claimed invention so as to avoid having to submit drawings and show possession and then you’re thumping your chest when the prior art just don’t show that structure? Yes, I believe that as well. And I also wonder why, in this art, as opposed to all other arts, this sword doesn’t cut both ways. Because that sword cuts both ways in other arts.

            61. You can keep on assertin’ it, and I’ll keep on not believin’ it.Well, until I start seeing the written description requirement being applied more vigorously than it is, I’m going to keep believing what I’m believing.Do I believe that you’re trying to minimize the importance of the most important part (allegedly) of the claimed inventionMost important part? Hardly. Of course, if you find some programmers who think that knowing the 1s and 0s is important, please direct them to this blog. Its not important, it is just a fantasy requirement that you’ve dreamed up to make it harder on software applicants — nothing more, nothing less.If I can practice the invention, then I possess the invention. If I (or one skilled in the art) can possess the invention without knowing the specific structure, then the structure isn’t necessary to possess the invention. Possession of structure <> possession of invention.

            62. “Of course, if you find some programmers who think that knowing the 1s and 0s is important,”People of ofdinary skill in the art think that computer processes are abstractions that happen in a computer (I can quote that from a textbook btw). It’s attorneys that then com e in and assert that their recited computer process is in fact not an abstraction and they’re simply defining the structure of the computer functionally, but that ultimately it’s the structure that they’re really concerned with. That’s what they themselves assert. I would just agree with an ordinary skilled artisan and call it all an abstraction of what is happening in a computer. I simply give the attorneys the benefit of the doubt, at which point that structure is the most important part, accorfding to them, and which I’m willing to go along with. Now, I say, ok, you want to get delusional and tell me about structure, then ok, let’s go there, show me the structure. ” Its not important, it is just a fantasy requirement that you’ve dreamed up to make it harder on software applicants “Bro, I’m the one that says it isn’t important (and isn’t important to show in a reference) it’s you and other attorneys who made up the whole “structure is important” sphele to try to get around the limiitations on clamining apparatusses functionally and to justify Beauregard CRM claims supposedly actually being a structure instead of just being any old 1 or 0 that can perform x function when put into an appropriate computer.

            63. I sure hope your “quoting from a textbook” includes the part in which that text book talks about the abstraction concept applying to ALL engineering (in other words, the ladders of abstraction, which WRECKS your little ‘pet’ theory).That’s rather important, don’t you think?

            64. I see no reason for me to quote that part really. But if it happens in a proceeding against you, then you may feel free to quote that and tell us all about how “the abstraction concept” applying to all engineering is somehow relevant. Something which you’ve kept a closely guarded secrit on here.

            65. You see no reason to capitulate your petty “abstract” theory, but still want to cite a reference that says the ladders of abstraction are applied iin all engineering endeavors….Do you see why you have no credibility, 6?(and your reference of a “closely guarded secrit” is a bit odd, seeing as I gave Leopold two cited references in our discussion on the matter.You should pay closer attention.

            66. That’s true, I also see no reason to “capitulate my “petty” “abstract theory”, and I also may cite a reference that says abstraction (or if you prefer to call abstraction the “ladders of abstraction” then fine) is applied in all engineering endeavors. I do not see why I should capitulate simply because my “petty abstract theory” or whatever must be applied to all arts. I apply it in my art as well. So you cited two references? I don’t think I was able to read those references. Perhaps you can simply cut and paste the relevant portions since, iirc, they were offline references.

            67. It is not that it is applied to all arts,… no wait,……it IS because it is applied to all arts.As often stated, your petty ‘abstract theory’ means EVERYTHING is abstract, and NOTHING is patent eligible.As we know that such is simply not the case, the only logical recourse is that your petty ‘theory’ is DOA.Sorry 6 – even the first rung up the ladder is ‘abstract.’You lose.Again.Have a nice day.

            68. “As often stated, your petty ‘abstract theory’ means EVERYTHING is abstract, and NOTHING is patent eligible.”Um, no. For example, tables are not abstract. But, on the other hand, your are quite skilled in argumentum ad absurdum. I do wonder though if you are quite unaware that you are doing it as you do it.

            69. “Table” by itself – is abstract.Do you mean a caveman table? A table from the baroque period? A modern table? A table with a single pedestal support? A table with supporting legs that collapse? I do not know what you mean by “quite skilled in argumentum ad absurdum,” but if you mean that I know how to apply logic consistently, then , yes, I am quite skilled at that. That’s why your wanting to cite a textbook that wrecks your position is quite absurd. And I am very happy to point that out to you (again). Maybe this time, you will pay attention and learn something.

            70. “Do you mean a caveman table? A table from the baroque period? A modern table? A table with a single pedestal support? A table with supporting legs that collapse?”All of the above. “I do not know what you mean by “quite skilled in argumentum ad absurdum,” But of course. I should have realized that you don’t even know you’re doing it. Otherwise you probably wouldn’t do it I suppose. Meh, one day you’ll come round.

            71. How do you have a non-abstract table that is “all of the above?”Aren’t you in the crowd screaming for “structure?” And yet you want multiple items with necessarily conflicting structure to be labeled under one heading and called non-abstract.Not sure what you mean by ‘come around’ but if that means abandoning reason and logic like you are doing yourself, then I will pass.Thanks but no thanks.

            72. “How do you have a non-abstract table that is “all of the above?”"I don’t have one. I might claim one, but I don’t have one. “Aren’t you in the crowd screaming for “structure?” And yet you want multiple items with necessarily conflicting structure to be labeled under one heading and called non-abstract.”Yes. And yes, though there is no “conflicting” in their structure.

            73. Is it in your character to ignore the logic that your position has just been decimated, 6?Your premise here was that ‘table’ was not abstract.I showed that you were wrong.This feeds back into the concept that universally applies: the ladders of abstraction.You need to do more than sit there on your thumb in this conversation.

            74. “You lose.”Well why not simply tell good old Myriad and Prometheus, along with Benson et al. about it instead of me?

            75. “If I can practice the invention, then I possess the invention. If I (or one skilled in the art) can possess the invention without knowing the specific structure, then the structure isn’t necessary to possess the invention. Possession of structure <> possession of invention.”I love how you continue to assert that Ariad was simply wrong as to the law and the WD requirement is not separate from the enablement req.

            76. The requirement is possession of the invention — not the structure.How do you possess a functionality?

            77. Sure. What is your point? Are you saying that 6 is correctly applying some “more than one holding” from Ariad to the current conversation?Really?

            78. A more full reply:”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. “Nah bro, check your Ariad. Your old timer’s view was done away with. Relegated to the dustbin of history. Sorry to be the one to break the news. “If a description of the function is enough for one skilled in the art to practice the invention, then no structure need be disclosed.”Oh, so long as a functional description is enough to practice the invention then you don’t need to go ahead and disclose the actual thing supposedly being claimed? Interesting viewpoint. Quo for nothing. Wait, I thought it was supposed to be quid pro quo. “Let me put it another way, the average computer programmer doesn’t even know the “structure” associated with the computer programs they create. “I quite agree, though NWPA heartily disagrees with you and claims infinite personal knowledge about all programs ever programmed. “It just isn’t necessary. “I hear your assertion. “That doesn’t mean that there isn’t structure — it just means that the structure doesn’t need to be identified.” I agree that it doesn’t mean there is no structure. Though your later assertion doesn’t seem well founded ivo Ariad and, oh, I don’t know, a little thing called the law. “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.”What structure, specifically will they know is there? Seems to me like they’re just going to see if the function is there. “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.”I agree that you can do this. I simply disagree that it is done by an invisible man of ordinary skill in the art. As you just admitted above, in fact. The imaginary ordinary skilled artisan doesn’t know or care what the structure is much less go through the trouble to “inferentially identify structure” in an given patent application, if that is even possible. He just sees function. Period. Thus, as MM has noted, the whole rigamarole about “essence of electronic structure” was born.

            79. I thought it was supposed to be quid pro quoYou are still describing the invention. Just because you invented an improvement to the crank shaft of an automobile engine doesn’t mean you have to describe the spark plugs and the type of oil used.The imaginary ordinary skilled artisan doesn’t know or care what the structure is much less go through the trouble to “inferentially identify structure” in an given patent application… and this goes to the important point as to why do we need to identify this structure in the patent application? It isn’t needed to practice the invention. It isn’t needed to put potential infringers on notice.

            80. “You are still describing the invention.”I’m willing to give you the benefit of the doubt just so long as you go ahead and describe the structure which you’re supposedly claiming for us since, as you admitted, one of ordinary skill neither knows nor cares about it. “Just because you invented an improvement to the crank shaft of an automobile engine doesn’t mean you have to describe the spark plugs and the type of oil used.”I quite agree, but if you invented an improvement to a crank shaft there better dam well be a picture of the improvement to the crankshaft in the drawings instead of a flow chart of the functionality produced thereby especially if all of your claims are distinguished from the prior art in terms of this functionality.

            81. “… and this goes to the important point as to why do we need to identify this structure in the patent application?”I’m not sure how this “goes to a point”, its simply a fact. Facts don’t really go to points. As to why you need to identify this structure in the patent application is because of this little thing called the quid pro quo and the advancement of the “useful art” (supposed anyway) of 1′s and 0′s on some medium. Oh, and the rules that were specifically implemented to ensure that we get the quid pro quo. Let’s not forget those important rules. ” It isn’t needed to practice the invention. It isn’t needed to put potential infringers on notice.”The first is certainly correct. The second perhaps less so. In fact the second is very debatable ivo the crazy supposedly implicit limitations some attorneys have been asserting to me are implicit in their claims lately. If you listen to them there are so many implicit limitations in the claim that the actual wording of the claim isn’t even the tip of the iceberg of the total limitations. If we had some drawings then this would be more apparent and put folks on notice of these supposedly hugely implicitly limited claims. Indeed, if all these implicit limitations were explicit, or shown well in the drawings a design around would become trivial.

            82. Oh, and the rules that were specifically implemented to ensure that we get the quid pro quo.Those skilled in the art don’t need the “0s and 1s.” Thus, there is no requirement to give something to somebody that they don’t need (or likely even want or care about).In fact the second is very debatableHardly.the crazy … a design around would become trivialTry to stay on point.

            83. Thus, there is no requirement to give something to somebody that they don’t need (or likely even want or care about).People don’t need software that actually works on their computer? People don’t want software that actually works on their computer? People don’t care about software that actually works on their computer?Accused infringers don’t care that a patentee simply described some desired functionality for a computer but never made or disclosed the detailed structure of an actual computer (or computer-readable medium) that possessed the recited functionality?Fascinating stuff. Doesn’t really accord with reality, but it’s still interesting.

            84. Fascinating stuff. Doesn’t really accord with reality, but it’s still interesting.Direct from the MPEP:However, to comply with 35 U.S.C. 112, first paragraph, it is not necessary to “enable one of ordinary skill in the art to make and use a perfected, commercially viable embodiment absent a claim limitation to that effect.” CFMT, Inc. v. Yieldup Int’l Corp., 349 F.3d 1333, 1338, 68 USPQ2d 1940, 1944 (Fed. Cir. 2003)Apply your requirements to mechanical devices and we would end up with 200 to 1000 page disclosures. NOT NEEDED.

            85. Nah bro, hardly so in most cases. And some cases already are 200 page disclosures so I don’t know what you’re getting so worked up about. We’re not talking about a necessarily ready for commerciailization embodiment.

            86. And some cases already are 200 page disclosuresNot my problem if some attorneys charge $30K for applications that could be written for less than 1/3 as much.A disclosure <> instruction manual.

            87. “Thus, there is no requirement to give something to somebody that they don’t need (or likely even want or care about).”You havn’t read the rules /facepalm.

            88. Just because you invented an improvement to the crank shaft of an automobile engine doesn’t mean you have to describe the spark plugs and the type of oil used.Nobody is arguing otherwise. You do have to describe the improvement, though, and you can’t simply recite the improved functionality that results from your alleged improvement. You need to describe the structure that doesn’t exist in the prior art which is responsible for that improved functionality.

            89. Nobody is arguing otherwise.Huh? Didn’t you just write “People don’t need software that actually works on their computer? People don’t want software that actually works on their computer? People don’t care about software that actually works on their computer?” You are asking for unneeded minor details.you can’t simply recite the improved functionality that results from your alleged improvementDon’t confuse what you want the law to be with the law as it actually is.

            90. All of those are going to be interpreted as MPF.No. Strong presumption of not MPF unless “means for” language is used.

            91. Not really. See CAFC, 2008-1169, Welker Bearing Company v. PHD, Inc., where “mechanism for rotating” and “mechanism for moving” were interpreted as MPF. And I could cite — not sure how many (I’ve lost count) — but at least 20 more cases where terms not in MPF format were considered to be MPF.

            92. You say there’s a strong presumption, but I can list (with not much problem, though more time than I have right now) at least 20 cases where claim terms not in MPF format were treated as such. The “strong” presumption to me seems not as “strong” as presumed. How do I stop getting emails when someone responds to my posts? I really don’t care to receive such emails.

            93. “Strong presumption” or not, absent a clear definition in the spec or a clear statement about what the intent of the claim language is, the construction of those funcitonal terms is going to be a hugely debateable and expensive issue should the patent ever be asserted against someone who isn’t directly copying a structure disclosed in the specification, and even then an alleged infringer might want to challenge the validity of the claims (e.g., for indefiniteness or written description issues). This is why the use of functional language to describe new aspects of a composition or article of manufacture is generally frowned upon and, in most cases in most other fields, is viewed as an alternative to drafting claims “the right way.”

            94. This is why the use of functional language to describe new aspects of a composition or article of manufacture is generally frowned upon No. Functional language is used ALL THE TIME. Moreover, there is a strong presumption that it isn’t MPF. Thus, it is to the benefit of the patent holder to use that type of language.Of course, if you want to draft a claim to a mechanical device with all structure, don’t be surprised if your client’s competitor finds an easy design around.

            95. “going to be hugely debateable”Especially when vested interests insist on kicking up dust and obfuscating things.Witness the fifty year old battle.(when will those archives be restored?)

            96. vested interests insist on kicking up dustWho are you referring to and what is their “vested interest”?

            97. While I know I’ll feel dirty afterwards for delving into a muck-fest that has been going on for a couple of years now, let me make a couple of brief points.1) Those skilled in the art don’t care what the ultimate “structure” is. The structure isn’t important .. what is important is what the structure does.2) Once one skilled in the art knows the “function,” identifying whether or not a particular structure meets that function is a fairly simple endeavor. Moreover, one the function has been identified, creating the structure (in most instances) is fairly routine. Hence, there is little need for the structure to be identified for enablement under 112, 1st paragraph.

            98. 1) Those skilled in the art don’t care what the ultimate “structure” is.Of course they do because it’s the ultimate “structure” (in quotes, of course) that determines exactly what happens and under what circumstances. You’ve heard of “bugs”, haven’t you? Computer glitches? Incompatibility issues? Everbody cares about the “ultimate ‘structure’”. It’s all that matters, really. Once one skilled in the art knows the “function,” Why did you put function in quotes? The functionality is all that is recited in the claim.identifying whether or not a particular structure meets that function is a fairly simple endeavorIn fact it’s a near impossible endeavor for you to tell me what function, if any, is represented by, e.g., some information on a compact disc or on a computer’s hard drive. That’s because the function, if any, depends on other factors. The same structure could function in one context to encode a burst of ear piercing noise; in another context it could be Beethoven; in another context, it could be a cookie recipe for a robot chef. one the function has been identified, creating the structure (in most instances) is fairly routine.That might be a persuasive argument if (1) we were talking about claims to methods of writing software or methods of programming a computer (we’re not – we’re talking about articles of manufacture); and if those methods were limited to writing the de-bugged software that actually worked in specified operating systems (also not the case).And your proposition has to cut both ways, which is something the pro-software patent folks seem to have great difficulty accepting. If “there are many many solutions” to implementing these generically described “new” functionalities, and the functionalities are trivial to implement the moment the functionalities are described to a skilled artisan, then the hurdle for overcoming obvious must be extraordinarily high for these claimed functionalities. But that doesn’t seem to be the case for these computer-implemented patents that have been flowing out of the office for years. The opposite seems to be true: whenever these patents are challenged, the PTO and everyone else is handed some completely contrary hogwash by the applicant, e.g., baloney like “determining what videos were not watched is totally different from determining what videos were watched” or “using a computer to process specific information for a certain process is totally different from using one’s brain to process the same information for the same purpose.” Do you see that you can’t have it both ways?

            99. Of course they do because it’s the ultimate “structure” (in quotes, of course) that determines exactly what happens and under what circumstances. You’ve heard of “bugs”, haven’t you? computer glitches? Incompatibility issues? Everbody cares about the “ultimate ‘structure’”. It’s all that matters, really.No. Those are minor details. If I claim a new automobile engine with hexagon shaped cylinder heads, while the types of spark plugs, gasoline, oil filter and probably a hundred (if not thousand) other details would probably be helpful to one skilled in the art, in most instances, they aren’t necessary to enable my invention under the first paragraph of 35 USC 112. I don’t even have to describe how to make hexagon shaped cylinder heads – a competent machinist can figure it out.In fact it’s a near impossible endeavor for you to tell me what function, if any, is represented by, e.g., some information on a compact disc or on a computer’s hard drive.Oh please. If it was “near impossible,” how do you prove infringement? Oh wait, the program can be loaded on a computer and determination made if the program performs the claimed function. Not particularly hard to one skilled in the art.The same structure could function in one context to encode a burst of ear piercing noiseYou can say that for many mechanical devices with interacting components. Replace the “engine” of an automobile with the engine of a 777 and you’ll get “a burst of ear piercing noise” and probably not much else. Besides music (e.g., Beethoven) is non-functional – you are mixing apples and oranges.That might be a persuasive argument if (1) we were talking about claims to methods of writing software or methods of programming a computer (we’re not – we’re talking about articles of manufacture); and if those methods were limited to writing the de-bugged software that actually worked in specified operating systems (also not the case).You are again getting caught up in minor details that aren’t necessary under the 1st paragraph of 35 USC 112. Analogous types of details aren’t necessary for mechanical inventions.then the hurdle for overcoming obvious must be extraordinarily high for these claimed functionalitiesNo. Ease of implementation is not a factor in determining obviousness. When it becomes a factor, then your arguments will have some teeth.”using a computer to process specific information for a certain process is totally different from using one’s brain to process the same information for the same purpose.”While you scoff at that notion, it is entirely true. Unless the human brain is performing nothing but pure math, It isn’t even remotely close to being the same and even then, how a human brain performs pure math is different than how a computer performs pure math.

          2. First, I’ve no idea who “David” is.Second, I have no idea why you are bringing up a “rabbit without structure” or a “machine without structure.” For the billionth time, nobody is asserting that a programmable computer does not have a structure, nor is anyone asserting that different computers can have different structures. Now, try addressing something I actually wrote instead of attacking strawmen.

            1. Actually I’m nearly 100% certain that he has simply asserted that the applicant hasn’t distinguished between two computers that are programmed to carry out different functions. Which is not absurd and is in fact quite so.

            2. I’m sorry I should have written that out long hand just to be clear. Actually I’m nearly 100% certain that he has simply asserted that the applicant hasn’t distinguished between two computers that are programmed to carry out different functions in terms of their structures upon which they intend to rely. Which is not absurd and is in fact quite so.

            3. I’m not disputing that one can identify whether two compositions or articles of manufactures are identical or structurally different (in at leat one respect) by testing their utility under controlled circumstances. But it’s a big leap from that fact to allowing applicants to distinguish their compositions/articles from the prior art soley by recitation of new functionality.I think the cases that say that functional claiming is a problem (in general) are well known. Halliburton (Supreme Court) leaps immediately to mind, as does more recent Federal Circuit cases such as Eli Lilly (1997) and Bayer Cropscience (2013). In the computer arts the problem was certainly recognized, which is why the courts and the PTO revert to the “essence of electronic structure” band-aid or engage in the fiction that they are “really” examining a method claim.

            4. MM, you keep saying the same thing over and over. But, functionality equals structure in circuits and software. Lots of solutions. So, that’s the way people write them out. Simple. Easy to understand for those who care to try to understand. No different than the mechanical cases I prosecute. Same thing.Mechanical, circuits, software===all the same. I do all three for some of the biggest and best corporations around the world. Functional claims are in all three types and in all cases they convey a set of solutions. I’d say functional claims convey 3-100 solutions in mechanical, but 3-1,000,000 in software, because software is all about ladders of abstraction so there are so many solutions.That is the way it is. And you may win in court, but that is reality and your propaganda cannot change that. If I had you in a room with 100 people to debate this, I’d humiliate you and all 100 people would see you as the agenda pushing unethical person that you are.Why don’t you mock the Church-Turing Thesis some more? It suits you well.

            5. Plain (and unassailable) fact: software is equivalent to firmware is equivalent to hardware.This is a truism that cannot be denied, and those that attempt to do so, simply are not partaking of reality.

            6. By “equivalent” you do seem to recognize that there is a difference.Please describe the difference.Next describe the structure of “1.”

            7. You seem to recognize the equivalence – Please describe why the equivalence is more important than any description that you ask of me for the legal discussion under way.Next, lose the fallacy of what you are attempting to do with software and “1.”

            8. lose the fallacy of what you are attempting to do with software and “1.I don’t see any fallacy with what Ned is “attempting to do.” What are you talking about?

            9. Hint: it involves the ladders of abstraction and the FACT that you are permitted more than just a picture claim.

            10. Hint: it involves the ladders of abstraction and the FACT that you are permitted more than just a picture claimWhy don’t you just respond directly to Ned?

            11. “I think the cases that say that functional claiming is a problem (in general) are well known.”I don’t think any of those cases say that functional claiming is a problem in general. Halliburton certainly doesn’t. Those cases do say that functional claiming can create problems with respect to definiteness or possession. That’s no surprise. Yes, functional claiming, used improperly, can cause validity problems. But so can many other claiming practices. It’s a big leap from that to saying that applicants are not allowed to distinguish their compositions/articles from the prior art solely by recitation of new functionality.To go back to Halliburton, the “three great ends” of the written description requirement are “(1.) That the Government may know what they have granted and what will become public property when the term of the monopoly expires. (2.) That licensed persons desiring to practice the invention may know, during the term, how to make, construct, and use the invention. (3.) That other inventors may know what part of the field of invention is unoccupied.” The Walker claim ran afoul of nos. 2 and 3. If you’re going to challenge a computer-implemented claim on the basis of Halliburton, I suggest that you need to articulate which of these three great ends are frustrated by the claim at issue.

            12. LB: Those cases do say that functional claiming can create problems with respect to definiteness or possession. That’s no surprise.Yes, among other issues, that’s the “general problem” I’m talking about. There’s also the general issue of enablement (closely related to written description), obviousness, and patents that effectively protect the functionality itself (“functionalities” are not eligible subject matter).Yes, functional claiming, used improperly, can cause validity problems. But so can many other claiming practices. It’s a big leap from that to saying that applicants are not allowed to distinguish their compositions/articles from the prior art solely by recitation of new functionality.Why a “big leap”? It seems like a very tiny, reasonable and inevitable baby step to me. Especially at this point in the history of “computer innovation.”

            13. Conflating baby steps and big leaps, driven by the policy blinders of a desired end result.Nothing new here from the Malcolm soapbox.

            14. Thanks. You must be talking about this part:– A patent applicant is free to recite features of an apparatus either structurally or functionally. See In re Swinehart, 58 C.C.P.A. 1027, 439 F.2d 210, 212, 169 USPQ 226, 228 (CCPA 1971) (“[T]here is nothing intrinsically wrong with [defining something by what it does rather than what it is] in drafting patent claims.”). –The problem in Schreiber, of course, was that the recited function could be met by the prior art structure. Schreiber doesn’t say that you can’t distinguish your invention with a functional limitation. Instead, it simply says that the applicant in that case didn’t.

            15. “The problem in Schreiber, of course, was that the recited function could be met by the prior art structure”Precisely as the recited function can be met by the prior art structure of at least one 1 or one zero in claims reciting instructions.

            16. “the prior art structure of at least one 1 or one zero”A prior art structure of “at least one 1 or one zero” anticipates all computer program instructions? Hmmm…

            17. That’s the structure it takes so far as I’ve been made aware. People swear up and down that it’s totally different, but they always decline to say specifically how. Sometimes they start to tell me why by referring to the method by which this structure is created, and then I ask them if they’re telling me that the claim includes an implicit product-by-process limitation. At which point they recant their entire explanation and go with 0 explanation.Recently I had one person tell me that they’re deliberately not putting the structure in the application due to it being impractical. Apparently they were of the belief that it would take many many pages to disclose the stucture. I’ve seen patents with hundreds of pages of drawings to disclose structure I see no problem with that. And we even have a way for people to submit CD’s as exhibits that would suffice I should say. Imagine that, not showing possession of the claimed structure, on purpose, and not complying with the drawings rules, as well as fundamentally not fullfilling the quid pro quo for that which they desire, a structural claim, all because it is “impractical”. I of course differ on claim construction with this particular person and to me it is rather easy to depict the implied structure. At least one 1 or one 0. It’s that simple and need be no more complex than that. In a simple embodiment the 1 or the 0 works in combination with surrounding circuitry such as wires etc to produce the result, just as the applicant always intends.

            18. Recently I had one person tell me that they’re deliberately not putting the structure in the application due to it being impractical. Apparently they were of the belief that it would take many many pages to disclose the stucture.LOL. There’s this field called “biotech” (heard of it?) where people around the world have been submitting voluminous files describing complicated structures for many years. Why? Because the law requires them to do so. I don’t recall any chicken little types complaining that the requirement was going to destroy the biotech industry. Then again, Kevin Noonan didn’t have his blog back then.

            19. There’s this field called “biotech” (heard of it?) where people around the world have been submitting voluminous files describing complicated structures for many years.It is because the structure matters.You ever hear of a Rube Goldberg machine? Ever see the game “Mouse Trap”? They are good examples of how easy it is to come up with multitudes of different structure (i.e., design arounds) to perform the same mechanical function. In many instances in the mechanical arts, once a desired function is known, one having ordinary skill in the art can easily come up with many different ways of achieving that function. By using functional language, you can prevent these types of easy design arounds.The same doesn’t hold true in the biotech world. If I describe a molecule solely by its functionality, it is much harder to identify molecules capable of performing that function.Whether or not functional language is OK is directly correlated to how easy it is for one skilled in the art to identify (or generate) the structure needed to perform that function, which brings us back to enablement. If I can describe a function and one skilled in the art can come up with a hundred different ways of performing that function, then the mere mention of that function is enough. However, if I describe a function and one skilled in the art doesn’t know how to achieve that function, then functional language is not OK.I understand that your patent worldview is colored by your background in biotech. However, from my experience, the practice of biotech (and some chemistry) patent law is very different from the other fields. This is why many of your positions just don’t make sense to those of us who practice in those other fields.

            20. Patent_Guru,This is why the analogy that I provided concerning electrons, protons and neutrons is so devastating to Malcolm’s vacuous arguments. This is also why Malcolm’s self-volunteered admissions against interest are also so devastating: we all know that Malcolm really does know better, that the facts and the law are not on his side, and that he ONLY has a policy position to push.He would simply be better off by being intellectually honest about the situation instead of playing the continuous games that he plays here. It would SO help the conversation move forward.But if the archives are ever restored, this point too was made way back on the 50 year old battle thread.

            21. that’s why the analogy that I provided concerning electrons, protons and neutrons is so devastating to Malcolm’s vacuous arguments.Right, they are so “devastating” that I immediately responded to them and explained why they didn’t even amount to an “argument” about the points I made, and then you responded with insults and your usual pathological lies, like this one:Malcolm’s self-volunteered admissions against interest areJust like your self-volunteered admissions that you are a borderline clinical sociopath. Fun game. You’ll start the next round, as usual?

            22. the facts and the law are not on his side, and that he ONLY has a policy position to push.Actually a lot of facts and quite a bit of the current law are on my side, and more of it is coming to my side all the time. We’ve discusssed many of those facts and cases already and we’ll continue to discuss them as the laws evolve and reflect the policy choices and arguments made by legislators who consider those same facts and the policy concerns of the citizens who elected them to office.Did you have some other point you were trying to make or were just attempting some weird insult?

            23. “By using functional language, you can prevent these types of easy design arounds.”See, you’re focusing on what you can “prevent” and why whereas we’re focusing on what is allowed/permitted and why.

            24. “If I describe a molecule solely by its functionality, it is much harder to identify molecules capable of performing that function.”That depends on what specific embodiments you’re talking about. “Whether or not functional language is OK is directly correlated to how easy it is for one skilled in the art to identify (or generate) the structure needed to perform that function,”Who on earth told you that? “Identification” has nothing to do with it. And neither does “generation”. What it does have to do with is something a bit different, perhaps you can find it in the caselaw. “If I can describe a function and one skilled in the art can come up with a hundred different ways of performing that function, then the mere mention of that function is enough.”Wait wait wait, if that’s true, then most of my applications I work on are being claimed incorrectly and the patent attorneys responsible for this tragedy are all guilty collectively of mass malpractice. Other than a few oddballs, who on earth would ever claim something structurally if what you just stated is so? Or at the very least who on earth would not at least include a claim that is distinguished in terms of functionality?

            25. the practice of biotech (and some chemistry) patent law is very different from the other fields.Right. Biotech is basically just a subfield of chemistry. And I agree that the “practice” is different from other fields, especially the computer-implemented fields. Biotech patent attorneys generally work for clients who are highly educted and who are in the process of investing (or have already invested) a great deal of money and time on their inventions. In contrast, any 12 year old can invent new “functions” for a computer and get a patent claim and that’s how many such claims look to people like me: like they were written by a 12 year old who just discovered Facebook or who just got his first iPhone or who just read about a robot car or a robot chef. That is definitely a big difference in the “practice”, to be sure.But the same patent laws apply to everybody, for the most part. many of your positions just don’t make sense to those of us who practice in those other fields.Well, I’ve practiced law and designed new articles of manufacture in all these “other fields” (mechanical and software) so my positions make sense to me in all these “other fields”. I’m not sure what else to tell you. I think the computer-implementer types are just used to being coddled and treated like baby royalty by the PTO and the courts. That’s going to change, though. It happened in biotech, too, as I’ve already explained. It’s not the end of the world. Well, it might be the end of the world for the lowest level of practitioner out there.

            26. You don’t like software. We got that. Your policy position on software patents is extremely well known.However, many of your positions on the law just don’t fly in the computer arts or the mechanical arts.Whether or not a 12 year old can invent something is of little concern to me or patent law. I think the computer-implementer types are just used to being coddled and treated like baby royalty by the PTO and the courts.Hardly. You’ll far more of a fair shake at the USPTO in the mechanical arts than the computer arts, and heaven forbid if your application goes into the 3600 tech center (i.e., business methods). Those examiners would make 6 look enlightened and reasonable.

            27. Can you point out this ‘law” that requires what you are implying? Can you contrast it with the quote provided by Leopold?Thank you so much.

            28. 6, you may want to start with the observation that “0′s” and “1′s” are abstractions and are not structure. A group of associated 1′s and 0′s also is an abstraction.Signals, modulated with 1′s and 0′s may have structure however.

            29. I could do that Ned, but little dips on a CD are structure and I will give them the benefit of the doubt that such is what they’re referring to when they say a 1 or a 0.

            30. But, 6, unless you have actually dealt in CD-ROM technology, you will not know that information content of physical representations is not 1-to-1. Bits are written in code, and must be decoded from partial signals to be detected. One cannot say that the disc in covered in 1′s and 0′s.

            31. I have dealt in CD-ROM technology. “Bits are written in code, and must be decoded from partial signals to be detected. “Not in all embodiments.

            32. “embodiments”B-b-b-ut that means that you are climbing a ladder of abstraction (at least one rung) and going beyond a picture claim.(a nod to Patent_Guru for recognizing the bias of Malcolm and which art unit he comes from where picture claims would be considered the ‘highest’ art form and the ‘only’ way of drafting claims ‘right.’)

            33. It’s not me climbing it. Supposedly they’ve already climbed it and I’m giving them the benefit of the doubt, for now, since at least one embodiment is fine and if I get led down every rabbit hole of invalidity then I’m unable to focus on a given one at a time.

            34. NedWhy don’t you ask Malcolm about his other rather famous admission against interest and have him discuss (in an intellectually honest manner) the controlling law regarding the exceptions to the printed matter doctrine.Then integrate into the discussion the fact that man made manufactures that are components are perfectly patent eligible under their own right (hint: think rivets, tires and bullets).

            35. Why don’t you ask Malcolm about his other rather famous admission against interestOr maybe Ned can ask you when you stopped beating your wife. Same difference.

            36. Methinks the perception is that some of the regular posters already do.(that’s not a good perception, by the way)

            37. I think you might be on to something, anon. And remember, you’re not paranoid if everyone is truly out to get you. That’s an unassailable truism.

            38. Methinks the perception is that some of the regular posters already do.I think I ate a sandwich once while posting a comment here. Does that count?

            39. When a comment is missing both in the thread and in the DISQUS community list of all comments per community member, it is more than just perception.Wait, you have chosen the privacy feature and may not be aware that the community list has that capability.

            40. Wiping out the reply to this comment (that merely warned of a perception) creates an even bigger perception problem.Nothing like over-aggressive editing of content that in NO WAY can be objectively deemed to be offensive (unless, of course, the perception is a uncomfortable reality…)

            41. anon, a lot of my posts are dropped as well, even original posts, not replies, on the merits. I think that posts are being dropped if they get no votes or no replies.

            42. Ned,My comment had both votes and a reply, so your explanation falls a bit short.Make no bones about it – the content on this blog is being shaped.

            43. It is a good thing then that software is not merely mathematical representations then.Thanks Ned for proving my point.

            44. I give them the benefit of the doubt that it is describing an actual physical structure Ned. Of course it isn’t and I could go on ad infinitum about how all this nonsense is really about abstractions but that is a much tougher fight.

            45. LOL – 6, talking about ‘abstractions’ again?Maybe Leopold is done with the two references I supplied him and you can read up on basic patent writing skills.You should take note of his posts on this thread – it appears that he has actually integrated the points that I have presented.Of course, doing so has set him outside the camp of the typical anti-software patent little circle.I am sure that he won’t go far.

            46. You should take note of his posts on this thread – it appears that he has actually integrated the points that I have presented.It’s also possible (far more likely, in fact) that you and LB may simply have reached similar conclusions about certain issues independently. But go ahead and take credit for LB’s insights. I’m sure he’ll appreciate that.

            47. the fallacy of NedThere’s no fallacy. Ned is making a valid point about the legal difference between information and physical structure.

            48. LB, I just saw your earlier post about Halliburton. Good post.Let me observe that 1) functionally claiming old elements is not a Halliburton problem;2) Functionally claiming what amounts to a multi-step process where the novelty is in the combination does not present a Halliburton problem. Cf., Faulkner v. Gibbs, Tarczy-Hornock.3) Adding explanatory matter to structure claimed where the novelty is in the structure and not in the explanation, is also OK.3) Where the novelty is in essentially one element and that essentially states a result as opposed to novel structure or materials or process, then we have a Halliburton problem.Rich’s opinion in Tarczy is a good read. I recommend it.

            49. the return of the canard of Point of Novelty.It’s not a “canard” at all. Functional claiming at the point of novelty is the problem that concerns many patent attorneys, scholars of patent law, and people who write software and don’t appreciate being told that they have infringed a patent written by a person who simply sat down and dreamed up a nice “new” functionality for an old computer but never wrote a line of code.You are free to believe that functional claiming at the point of novelty is a “canard”, of course. But screeching at everyone with your silly bold text is not persuasive on that point and it never will be.

            50. “A patent applicant is free to recite features of an apparatus either structurally or functionally. “Hmmm, not one of 6, Ned or Malcolm actually address this point.Will they?

            51. You guys are such worms. The fact is that the software and circuits are the same thing and both convey structure.6, now you are switching to this case rather than MM’s hypothetical.

            52. You guys are such worms.Personal insulting us doesn’t make your argument better.The fact is that the software and circuits are the same thingThat’s not a “fact”, nor is it relevant to the issue we’re discussing. Are you trying to argue that if functional claims describing instructions for computers are somehow eliminated that nobody will be able to patent a new, non-obvious structurally defined electrical circuit? That’s certainly not my position. I don’t think that’s anybody’s position. You’re arguing with a strawman again.

            53. NWPA is close, but Malcolm is only obfuscating with his ‘correction.’”the same thing” is not the correct phrase. Equivalence is the proper description.But equivalence is all that is needed for the legal discussion, and quite to the contrary of what Malcolm posts, it is very much relevant to the issue under discussion.That he once again indulges in accusing others of that which he does is no surprise.

            54. “the same thing” is not the correct phrase.That’s why I corrected NWPA.Equivalence is the proper description.Please tell everyone why a “circuit” is equivalent to “software”. When you provide your answer, please tell everyone (1) why “software” can be sent electronically embedded in a signal but a “circuit” can not be sent in that manner; (2) please explain to everyone why nobody refers to “software” as “a circuit” (or vice versa), in spite of the fact that they are “equivalent” (according to you); (3) please define exactly what you mean by “software”, “circut” and “equivalent.”Thanks.

            55. Night, you exist in a fantasy world where phantasms exist. A ’1′ does not have structure. A circuit does.

            56. You live in a fantasy world where information is processed magically and does not need space, time, and energy to process, where there is no conservation of information law or Church-Turing Thesis.

            57. There is a difference between a machine that process data and data. The is a difference between a circuit that processes data and data.Can you identify the differences in the two cases? Are they not similar?Likewise,can you distinguish between a rose and beauty?

            58. ARGH – the return of the obfuscation with examples from the CANARD of the non-useful arts.Ned – please stop the merry-go-round.

            59. Just because an argument undercuts or diminishes your position does not make the argument a “canard.” Similarly, putting the term “canard” in all caps and bold does not make your “argument” more persuasive. It does make you appear to be a bit crazy, however.

            60. Ned,Our past discussions which you left unanswered concerning copyright show that it is you that is attempting to portray software as some phantasm.The part of software being able to obtain copyright works in two distinct and complementary ways:1) Fixed in a tangible medium. Sorry Ned, but there is no fantasm at work with software. Software does not exist solely “of the mind” (remember anthropomorpohication – another point you refuse to integrate into the conversation). Software exists fixed in a tangible medium, and thus MUST have structure.2)Math is not copyrightable. Sorry Ned, but your understanding of basic set theory – or rather, lack of understanding, clearly impugns how you want to treat software as something that it is not. Just as Malcolm (incorrectly) wants to treat software as equalling mental thoughts (or in another of his vacuous memes as pure literary work), you want to denigrate software to be only pure math. It just is not so (factually or legally).You need to integrate these in a intellectually honest position in order to join the conversation. Anything less is mere soapboxing.

            61. 6, you know MM has argued for years there is NO structure. That is what Lemley wrote and Reich wrote. It is at the core of the pogrom.

            62. Yes, but you don’t understand what he’s saying when he says that. It’s like he’s talking above your head. When he says that there is no structure he means that no structure has been included in the claim’s LIMITING LANGUAGE. Everyone knows that there may, or may not, be a series of dips on a CD or whatever. Nobody cares, there is no structure included in the claims, or in fact in the specifications usually. If you guys were providing drawings of these structures and we had a massive database of such structures by now then nobody would say SHT. But since the PTO has let you off the hook on the actual quid of the quid pro quo everyone is starting to catch on to the fact that you haven’t actually disclosed any structure even though there may be some mysterious structure buried in the functional language somehow.

            63. Well, please be sure to put that on the record so that I can give you an easy 101 for having attempted to preempt solutions.

            64. Completely and massively wrong 66 is absolutely right, TB. He’s not the only one to recognize that your absence here was a profound improvement, pretty much universally appreciated (although I suppose NWPA missed sharing his weird speculations about my identify with you).I’m pretty sure that Dennis and Jason noticed the difference as well.

            65. “he means that no structure has been included in the claim’s LIMITING LANGUAGE. “LOL _ 6, you need to recognize Malcolm’s own volunteered admission against interest on this point: “configured to” is structural language.He volunteered that admission. He needs to integrate that into his position and drop the fallacy of putting out arguments that are false, merely given his own admission.Let’s move the conversation forward, shall we?

            66. I recognize that he was talking to you a long time ago in terms of presuming you were right and you’ve been obsessed with his taking your point of view on one aspect to still say your position overall is absurd ever since. I also recognize that the comments were quite cleaned up when you were removed via your work software (maybe your mom’s anti-porn software?) or whatever for awhile.

            67. you need to recognize Malcolm’s own volunteered admission against interest on this point: “configured to” is structural language.Nobody needs to recognize your made-up fantasies and lies, TB.But I will continue to point them out as often as you re-post them. We all know that you are a pathological liar with delusional paranoid tendencies. I can play your game if you like and I certainly will if you continue to post your fabrications about me and Dennis does not delete them.Go for it, TB. Make my day.

            68. LOL – Even Leopold is making a post that reflects the wisdom of the Grand Hall experiment.Prof. Crouch – when will the archives be restored?

            69. Structure is the core of understanding inventions. That is a foundation premise by which patent law was built.Now, you are saying there is structure. And the structure is different. Then the delta structure is going to be at the core of the invention, so let’s talk about that delta structure.

            70. the delta structure is going to be at the core of the invention, so let’s talk about that delta structure.Yes, let’s require the “delta structure” — “the core of the invention” — to be part of the claims which describe that invention, as is required in every other field.

            71. Well ok, I’m sure you won’t mind re-phrasing it just so the rest of us see what you see.

            72. And let’s discuss how claims must be presented – to those in the particular field of invention.Oh wait, Patent_Guru already has, and you look at the dust-kicking response as somehow enlightening when all that that response does is wreck your position.Same old same old.

            73. “Nobody is asserting that a programmable computer does not have a structure, nor is anyone asserting that different computers can have different structures.”So close. And then you ruin it by accusing others of that which you do with a strawman accusation while it is you that is strawmaning and ignoring how anthropomorphication fits into the discussion.It is you that continuously employs the fallacious ‘House’ argument – that the first programmable computer makes all inventions with that programmable computer per se obvious. You STILL have not integrated into the conversation the valid counterpoints based on the Morse analogy or the law (you know, 101: or any improvement thereof, of Alappat – that you have a new machine with the new machine component of software).The fact that I have to continuously repost things the you need to integrate highlights the lack of intellectual honesty. My pointing this out is no attack. It is no ‘name-calling.’ It is merely pointing out the obvious truth that you STILL are not attempting to have a conversation , but rather are engaged in your policy-driven dust-clicking soapboxing.

            74. accusing others of that which you do with a strawman accusation while it is you that is strawmaning and ignoring how anthropomorphication fits into the discussion.Golly, that’s a difficult insult to parse. But please tell everybody: how does “anthropomorphication” fit into the discussion, in your opinion? You STILL have not integrated into the conversation the valid counterpointsYou made a “valid counterpoint”? I must have missed that. Let me know next time you make a “valid counterpoint”. It would help, maybe, if you prefaced your “valid counterpoint” with a statement that you are about to make a “valid counterpoint”, followed by an actual “valid counterpoint” (as opposed to simply insulting people who failed to make your “valid counterpoint” for you).I know this has been very difficult for you in the past. But maybe you grew up a little over the past couple weeks while you were fighting with the IT guy at your alleged firm over access to this blog. LOL. Just kidding. I know you’ll never stop trolling this blog until you’re banned.

          3. Any machine that implements a particular algorithm will have structure, but there is no physical structure common to all such machines.Thus, you’re not patenting a definite structure, but a whole class of structures.It’s like the difference between sets of three objects, and the number three. You can point to the sets – three ducks, three cars, three lawsuits – but not to the number three. It’s an abstraction, the property those sets share, not a physical entity.

            1. I also agree with Robert that the “structures” you seem to be referring to, NWPA, are more correctly abstractions. In other words, it’s functionality that is being claimed, all the way down.

            2. Except that isn’t what Robert said. And, except that a machine that is running and performing useful work cannot be an abstract (all the way down.)

            3. a machine that is running and performing useful work cannot be an abstractNo, but a patent claim to a machine can effectively be claiming the abstraction when the claim distinguishes the machine from the prior art machine only by reciting its allegedly “new” functionality.That’s one of the reasons why the kindergarten test for patent eligibility (“I can touch the computer therefore a claim that covers the computer can’t be an abstraction”) will never really get off the ground.

            4. OK. To your new point. Yes a patent claim can be abstract. Functionality maps to a set of solutions that are known to those skilled in the art. The set of solutions define structure.Now try to digest that.

            5. Which would bring the discussion back around to the ladders of abstraction.This is a point that 6 reneged on his promise.This is a point that Leopold attacked, retreated, and STILL has not provided answers that he owes me.And yes NWPA, this is a point that Lemley would ban any rung “too high” without defining what that means.

        2. We are talking about machine components and manufactures created by man.”Configured to” is structural – you keep on leaving out your own volunteered admission that needs to be incorporated into the discussion.

          1. “Configured to” is structural – you keep on leaving out your own volunteered admission I never admitted that “configured to” was structural in the context of articles of manufacture that were “configured to” perform new functions, where there is no disclosed relationship between those functions and the structures responsible for achieving those functions.I’ve told you this before many times. But because you are a pathological liar you keep pretending that I “admitted” something that was never admitted. I’ll ask you once again to stop behaving like a sociopath. If you don’t stop, I’ll simply resort to playing your game in response, i.e., making up various “facts” and painting you personally with those made-up “facts”.That’s a fun game for you, right?

    2. The perception of Alappat is a problem. But the holding of Alappat is not what people attribute it to be. The claims were directed to disclosed hardware, and they had a field of use limitation that the court gave weight.The case that really sent the cart off the proverbial cliff was State Street Bank where a programmed computer that calculated improved price was found eligible as a new machine.Now, what did the Supreme Court say about State Street Bank?

      1. Now, what did the Supreme Court say about State Street Bank?Nothing more than the “useful, concrete and tangible result” test is dead.The Supreme Court also stated “Section 273 thus clarifies the understanding that a business method is simply one kind of ‘method’ that is, at least in some circumstances, eligible for patenting under §101.”Your point is?

        1. Upon closer inspection, Ned’s ‘point’ is the same old gambit: repeat the CRP that has been defeated without taking into account the valid counterpoints repeatedly raised.Repeat often enough so that it sounds to be true – that is Ned’s modus operandi.

          1. Ned’s ‘point’ is the same old gambit: repeat the CRP that has been defeatedWhen was it “defeated” and by whom? Was it televised? Was it an ordinary defeat or was it a “devastating” defeat?

      2. “The perception of Alappat is a problem”Oh dear J yes. But at least the influence of it is waning. Notice that even the patentee didn’t go on and on about the supposed structure in his method claim due to the super complicated programming required. CJ Rader has his work cut out for him if he ultimately wants to hold on to that guy. Chen is coming, and the compoisition of the court is much different than it was back in the medieval times of Alappat.

      3. We’ve been through this many many many times Ned.You refuse to accept that there can be more than one holding per case, and that a holding exists if an argument would otherwise change the decision (for example, in Alappat, the argument by the government would have denied the patent – thus because the government attempted more than one line of reasoning, there is more than one holding).

        1. I still do not think you understand the concept of dicta. In Alappat there was a jurisdictional issue because of what happened at the Board. There was a claim construction issue because of MPF – the Board’s construction was overturned and the claim were held to read on disclosed hardware. This was sufficient for 101. Alternatively, if the claims were construed to include a programmed computer equivalent for the disclosed hardware, the field of use limitation was given weight for 101 purposes.Anything beyond that was dicta.

          1. I still KNOW that my understanding of the Alappat case is vastly superior to yours, Ned.The attempt at limiting the holding we are discussing to “field of use” is pure fallacy.That is what happens when you are locked into a position by your third party interests.

            1. The attempt at limiting the holding we are discussing to “field of use” is pure fallacy.Is it false or is Ned reaching a conclusion that you simply don’t agree with for some reason that you are unwilling to provide us? On its face, Ned’s analysis seems reasonable. More reasonable than your response, certainly, by a long shot.

        2. “in Alappat, the argument by the government would have denied the patent “Wasn’t the PTO’s argument simply that it went down under 101? Remind me what the argument was again from your POV please.

          1. Here’s a hint 6: the equivalency of software to firmware to hardware – as a legitimate component – and check out the quote to Benson in the Alappat case. It should ring a bell as it is the same Benson quote that Ned Heller refuses to integrate into his position.

            1. Why not simply answer 6′s question? Your “hint” seems completely unresponsive and also assumes your “point” about “equivalency” which you have never explained and seem unwilling to defend.the same Benson quote that Ned Heller refuses to integrate into his position.What do you mean by “integrate into his position”?

    3. With all due respect to Prof. Risch, he does not know the basics of the art field and is plainly wrong about the facts.If he wants to overrule Alappat he needs to do more than simply say “I wish it were so” – he would have to address the decision on the factual and legal fronts.That STILL remains to be done.

      1. With all due respect to Prof. Risch, he does not know the basics of the art field and is plainly wrong about the facts.With all due respect to the blogtroll, he does not know the basics of the art field and is plainly wrong about the facts.Fun game, Trollboy. You’ll start the next round?

    1. This was a PCT out of GB, which meant that the foreign associate wrote the claims and the US associate likely filed everything “as is.”A couple of lessons to be learned here. First (and this has been standard advice for nearly a decade), never put “means for” in your claim language. Little good (and mostly bad) comes from it.Second, if you think you may litigate (or otherwise monetize) your patent, always have a continuation pending. With the exception of killer prior art, most issues raised by alleged infringers can be cured with a continuation application.

      1. It should be pointed out that, for computer-based apparatus claims, most limitations are being interpreted (at least at the PTO) under 112(f), regardless of whether the magic words “means for” are used.The only way I’ve seen so far that consistently avoids this trap looks a lot like a Beauregard-style claim of a memory with software that performs the various functions/steps, except that it also expressly includes the processor (and sometimes any necessary I/O devices) as well.

        1. It should be pointed out that, for computer-based apparatus claims, most limitations are being interpreted (at least at the PTO) under 112(f), regardless of whether the magic words “means for” are used.The USPTO also has a propensity to ignore the Federal Circuit. See Inventio (strong presumption that when ‘means for’ language not used 112, 6th not invoked). Tecsec v. IBM also describes instances in which language that even uses the term “means” does not invoke 112, 6th. Also, for language expressed in means-plus-function limitations “We allow a patentee to express an algorithm ‘in any understandable terms including as a mathematical formula, in prose, or as a flow chart, or in any other manner that provides sufficient structure.’”The USPTO’s “quality initiative” notwithstanding, they don’t make law — they follow it.

          1. Actually, the PTO understands the law. :”By contrast, a claim limitation that does not use the phrase “means for” or “step for” will trigger the rebuttable presumption that § 112, ¶6 does not apply.[67] This presumption is a strong one that is not readily overcome. [68]“https://www.federalregister.go…Its the Examiners and their “supervisors” that seem to have trouble with it.

            1. Hey, if you guys can get the Federal Circuit to say that a unit or module that does some sort of computation doesn’t invoke 112 6th, I’m sure we’d be happy to start doling out the 101 rejections for apparatus claims again.

            2. Read Inventio v. ThyssenKrup.I’m sure we’d be happy to start doling out the 101 rejections for apparatus claims again.Good luck with that. I’ll be looking forward to your explanation to the PTAB as to how an apparatus is not a machine.

        1. The reason you received my down vote was precisely because you did not agree with someone.You need to rethink a basic rule of etiquette when you are trying to have a conversation with someone. You are quite incorrect to think that re(or more properly mis)characterizing what people say is an intellectually honest and acceptable part of conversation.It is not.Pure and simple.

          1. You know anon while I hear and understand your protestations to re-characterizing someone’s statement I think that you are over thinking what I’m doing. I’m simply giving feedback to others to how I perceive the person to have been talking in the first place. It’s much less of a problem than it is a solution to mis-communication as it puts the original speaker on notice that perhaps there is a better way for them to say what they said to better inform their audience.

            1. In kindness returned 6, here is a to the heart reply: when people tell you that you are mischaracterizing someone else (and that you do so repeatedly) and when you first make it like it is some joke or lampooning and then turn around and try to state that you are not mischaracterizing and that the person needs to recognize that they are not saying what they are (clearly) saying, you have no credibility.Your come across here as patronizing and completely insincere.

          2. You are quite incorrect to think that re(or more properly mis)characterizing what people say is an intellectually honest and acceptable part of conversation.The fact that you are lecturing anyone about this sort of behavior is exactly why you should have been banned a long time ago.

        2. The post explaining downvotes is expunged?Really?That is pathetic!How about expunging the offensive post itself, if you are going to those lengths?

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