Bits & Bytes from Jonathan Hummel

RECENTLY

#1. Twitter’s Puny Patent Portfolio May Prove A Positive

Leading up Twitter’s IPO, market analysts are pointing to the relatively small number of patents held by the company as weakness. Jeff John Roberts, writing for GigaOM explains why Twitter’s slim patent portfolio might not be a weakness, but instead a sign of strength.

            -read Bloomberg’s countervailing story here.

 #2. Apple Touchscreen Patent Upheld in Reexamination

Steven Musil, writing for C|Net, reports that “after invalidating US Patent No. 7,479,949 last December, the USPTO issued a re-examination certificate (see article & examination certificate here) reaffirming all 20 claims included in the patent, according to a filing last month spotted by Foss Patents.”

#3. Jorge Contreras on Patent Pledges Outside Standards-Setting Organizations

Dan O'Connor, writing at Patent Progress, interviewed Jorge Contreras to discuss his new paper, “Patent Pledges,” covering FRAND commitments and a call for a new paradigm in standards-setting. Mr. Contreras is a professor at the Washington College of Law at American University and a contributor at Patent Progress. His research focuses primarily on the effects of intellectual property structures on the dissemination and production of technological innovation, with a focus on basic scientific research and technical standards development.

#4. Goodlatte’s Innovation Act

Both Dennis Crouch here at Patently-O, and our friend Andrew Williams  at PatentDocs, wrote about legislation proposed by Rep. Bob Goodlatte (R-Va), namely the “Innovation Act.” The bill is squarely aimed at Patent Trolls and allows for parties to discover who the ultimate owner of the patent or exclusive right actually is, rather than a shell corporation.

            -Read Dennis’ article here.

            -Read Andrew’s article here.

PENDING

#1. Samsung Files Patent on Competitor to Google Glass

Alex Colon, writing at GigaOM, reports that Samsung has filed a design patent in Korea that looks suspiciously similar to Google Glass. Apparently, the Samsung patent focuses more on the “sportiness” of the spectacles. “The patent shows that the glasses could come with built-in earphones, which would allow you to listen to music and answer calls while you’re wearing it.”

 

COOL TECH

#1. Unbreakable Chemical Locks

Lisa Zyga’s story at Phys.org explains how research performed by Professor Abraham Shanzer and his group at the Weizmann Institute of Science in Rehovot, Israel could lead to the first chemical lock that responds to multiple “passwords.”

            -read the article here.

 

UPCOMING

Whittier Law School IP Symposium

  • The Global Medicine Challenge: The Fine Line Between Incentivizing Innovation and Protecting Human Rights
    • The Keynote Speaker will be James Love, director of Knowledge Ecology International, and NGO dealing with issues involving Intellectual Property.
    • This event has been approved for 5.5 hours of CLE
    • View the Program Flyer here.

 

WIPO Events

 

JOBS

#1. Patent Associate – Law Firm – Rockford, Ill.

            -Reinhart Boerner Van Deuren s.c., is a full-service business-oriented law firm with offices in Chicago, Rockford, Denver, Phoenix, Milwaukee, Madison, and Waukesha with a national and international client base.

 

#2. Patent Attorney – Law Firm – Washington, D.C.

            -Morris & Kamlay LLP, an IP specialty firm in DC with a relaxed and flexible work environment, is looking for an experienced patent prosecutor.

 

#3. Patent Attorney – Law Firm – Melbourne, Australia

            -Phillips Ormonde Fitzpatrick is seeking a Patent Attorney to work in its Melbourne, Australia, offices.

209 thoughts on “Bits & Bytes from Jonathan Hummel

  1. Below I discuss why I believe that the Apple claim that Malcolm quotes to be abstract: it calculates a location and does nothing with it let alone perform the automation tasks promised by the story. Such has long been ineligible. So, why is the PTO still issuing such patents? I really do not get it. This HAS to be a failure of leadership.

  2. #2. Intellectual Ventures Faces Novel Attack on Business ModelSymantec and Trend Micro are fighting back against Intellectual Ventures. IV is asking for a combined $310 million from the companies for licensing a patent that cost IV $750,000 seven years ago. Symantec and Trend Micro are advancing a novel attack that basically says they shouldn’t have to pay such a large amount of money for a patent bought so “cheaply.” The two companies are asking a federal judge to bar IV from seeking such large licensing fees on the grounds that a patent acquired for so little couldn’t possibly be worth so much.Ok, sounds like a good set of facts to horn into your Georgia-Pacific arguments counselor. Legal damages in a patent case are protected under the 7th amendment. Stipulate to infringement and validity and let’s impanel a jury.

    1. When the lawyers at Intellectroll Ventures aren’t combing through their portfolio of 80,000 junky patents figuring out which ones to assert next, I assume they are combing the Internet looking for poorly designed lotteries that they can win by buying most of the tickets.You know: fighting the good fight.

        1. It’s a perfectly accurate description of Intellectroll Ventures’ “business model.”Did they try to patent that business model, by the way? Surely it wasn’t too obvious to be patented …

  3. U.S. Patent No. 7,072,849: Method for presenting advertising in an interactive service; and U.S. Patent No. 7,099,862: Programmatic discovery of common contacts.Oh, I bet those are some real winners.

  4. Apple has been granted a patent covering technology thatmonitors your location and then performs automation tasks. It is U.S. Patent No. 8,577,392.Functionally claimed obvious junk, per the usual Apple practice.1. A device for relaying location information, the device comprising: a) A receiver to receive first signals from a plurality of first devices associated with a person, each of the first signals comprising first data, the first data being indicative of an estimated location of the person, wherein, for at least one of the first devices, the first data is indicative of a real-time user-input activity; b) A location estimator to estimate a location of the person associated with the plurality of first devices, the location estimator comprising a data aggregator to aggregate at least some of the first data in the first signals; and c) a weight assigner to assign one or more weights to the first data in the first signals, wherein the estimated location of the person is based at least in part on the assigned weights; d) A signal generator to generate one or more second signals based on the estimated location of the person, each of the one or more second signals comprising second data; and e) A transmitter that transmit the one or more second signals to a plurality of second devices.Everybody got that? It’s a “location information relayer” that (wait for it!) receives signals from a user (using a “receiver”!!! it receives signals … from devices that send them!!!), estimates the location of the user based on those signals (using a “location estimator”! WOW!) and then generates signals (using a signal generator!!! OMG!) with the estimated location information and transmits them to other devices (using a transmitter!!! can you believe it?? How do they figure this stuff out????).Gosh, I wonder how those “plurality of second devices” receive the signal? What fantastic technology has been developed that would allow that? Have we come so far that a second device can receive a signal from a first device and actually do something in response to that signal? This should be headline news.

    1. Obviousness under 35 USC 103 is based upon the claimed invention as a whole not based upon the obviousness of the individual elements.When reading your rants, I wonder what audience(s) you are writing to. It is certainly your prerogative to attack a patent. However, when you do so based upon reasons that have nothing to do with patent law, you undermine your own credibility.To that end, I don’t understand your writing style — I never have. There are far better ways to make the points you are attempting to make without engaging in the over-the-top hyperbole you are very fond of. Your writing style only makes it far too easy for people to be dismissive of your positions.

      1. Obviousness under 35 USC 103 is based upon the claimed invention as a wholeThat’s nice. None of the elements in this combination do anything other than what they would be expected to do. Devices that receive information, process that information, and send the processed information to other devices are ancient. Determining the location of things is ancient. Doing things “automatically” based on the information about the location of things is ancient. What else is there in this claim? Nothing. It’s junk. reasons that have nothing to do with patent law,LOL. You think stringing together functionally recited nonsense describing old technology with new words has “nothing to do with patent law”? That’s funny.your writing style only makes it far too easy for people to be dismissive of your positions.I notice that other than your reflexively recited gobbledygook about “claims as a whole” you have nothing to say in defense of this junk. That’s because it’s indefensible. But go ahead and keep trying. Or you can be “dismissive” of my position if that makes you happy.

        1. None of the elements in this combination do anything other than what they would be expected to do.Again, the issue revolves about what the invention as a whole — not the collection of parts. It has long been recognized that “virtually all [inventions] are combinations of old elements.” In re Rouffet, 149 F.3d 1350, 47 USPQ2d 1453 (Fed. Cir. 1998) (quoting Environmental Designs, Ltd. v. Union Oil, 713 F.2d 693, 218 USPQ 865 (Fed. Cir. 1993)).You think stringing together functionally recited nonsense describing old technology with new words has “nothing to do with patent law”?Describing old technology? Then I assume you have a 102 reference you would like to cite?I notice that other than your reflexively recited gobbledygook about “claims as a whole” you have nothing to say in defense of this junk.It is reflexive because it is in the statute. I don’t recall “functionally recited nonsense” anywhere in 35 USC 103. As for defending the patent, I have no interest in the patent so I don’t care either way. I do, however, have an interest in the law.

          1. I have no interest in the patent so I don’t care either way.ROTFLMAO! Whatever you say. I do, however, have an interest in the law.So do I. A “device” claim is obvious when it recites, in broad functional terms, a combination of old functions that achieve nothing more than what those functions would be expected to achieve. This “device” is nothing more than a computer that receives information (wow!), processes it (in an old way), and performs an old act in response to that old information processing (sends information to a “second device”). You want to make something out of the fact that there is some”location determination” involved? That adds nothing patent-worthy to this junk. Processing information relevant to a location of a signal source is also older than the hills. So is transmitting that information to another device. You can recite “claims as a whole” until you are blue in the face. It doesn’t change the fact that this claim is broad, functionally claimed obvious junk.I assume you have a 102 reference you would like to cite?I don’t, off the top of my head. But why bother with 102 when 103 works perfectly well and was designed to eliminate exactly this kind of obvious junk. By the way, you’ve again demonstrated what the reflexive defenders of computer-implemented junk and “strengtheners of the patent system” really believe: any and every computer-implemented device or method should be patentable as long as it is “new”. You don’t really understand “obvious”. That’s because you don’t want to. All you understand is that if you repeat “claims as a whole” to an incompetent Examiner you sometimes get your claim allowed, which is the best thing ever. For you.

              1. The USPTO didn’t think so.Um, yeah, … that’s why we’re having this discussion. I’m glad you’re keeping up. Had Apple’s claim been tanked by the USPTO as obvious junk, nobody would have cared except maybe for Apple and I don’t think it would have mattered much to them either.

            1. Once again Malcolm, it is not that you disagree with patents for software, it is how you go about it.Lecturing others on ‘growing up’ while you insist on your name-calling and tantrums (the epitome of your meme of Accuse-Others-Of-That-Which-You-Do) is simply no way to go about gaining any credibility for what you want to say.

              1. it is not that you disagree with patents for softwareOh, it most definitely is that. I mean, everyone can just stroll over to Gene’s place and see that one’s “writing style” makes zero difference to you or any of the other patent teabaggers. All dissenters are either “naive” about the “technology”, “naive” about the “law”, “naive” about “history”, or they are anti-capitalist, anti-innovation, anti-American “leftists” seeking to “take us back to the stone age.”It’s pretty funny that you’d try to pretend otherwise at this late date.

          2. Describing old technology? Then I assume you have a 102 reference you would like to cite?And just in case it isn’t, um, “obvious” to everyone already: it’s trivial to write a claim that can’t be tanked under 102 (perhaps the world’s easiest law to avoid). And one need know nothing whatsoever about any “technology” to do it. That’s why firms that work for “computer technology” companies (like “social media” entrepeneurs) routinely use people with no special “computer technology” skills to prosecute those kinds of patent applications. You don’t need a specialized tech background. All you need to know are those magical words that suffice to put the PTO under your spell.”Receiver”, “transmitters”, “processors”, “signals” … this is “technology” like a rock and a stick are “technology.” But for some reason the USPTO continues to remain very impressed when these things are magically combined to produce devices that (wait for it) “receive” “process” and/or “transmit” information using some kind of “signal”. Look, mom! No wires! It fits in my hand! No, you wear it on your wrist! It’s so small it fits in your ear!It’s 2013. Has the software patenting industry grown up yet?

            1. “Receiver”, “transmitters”, “processors”, “signals”I’ve got all this in front of me right now. Why isn’t it performing the claimed invention?

      2. There are far better ways to make the points you are attempting to makeI’m not “attempting to make” a point. I’m making my point in exactly the words I intend: this claim is junk. The only claim that could be junkier than this one is the claim that Apple probably filed at the PTO in the first place.There’s a certain group of self-interested folks out there who love to pretend that what is being claimed in junk claims like this one is some kind of complicated new “technology”. But it’s not complicated at all. It’s written by lawyers to make it seem complex at first glance but in fact it’s just old functionally recited garbage strung together for the purpose of achieving their old functions. The greedy lawyers at Intellectual Ventures will mumble some horsehockey about “incremental innovation” or some equally vapid self-serving swill but all they’re really saying is that, in the computer arts at least, any “innovation” that hasn’t been described before in the exact terms that appear in the claim deserves to be protected by a patent. That’s pretty much the same message communicated by people who stomp their feet and screech about “considering the claims as a whole” whenever the obviousness of some junky computer-implemented “innovation” is explained by someone uninterested in stroking the egos of the geniuses who filed and/or prosecuted the application.

        1. But it’s not complicated at all. It’s written by lawyers to make it seem complex at first glance but in fact it’s just old functionally recited garbage strung together for the purpose of achieving their old functions.Too bad the USPTO didn’t see it that way.The greedy lawyers at Intellectual Ventures will mumble some horsehockey about “incremental innovation” or some equally vapid self-serving swill… and the same statements were probably made about patent attorneys in every technology that has ever been patented. Ho hum.That’s pretty much the same message communicated by people who stomp their feet and screech about “considering the claims as a whole”Again, we are actually citing the statute. You, on the other hand, are making policy arguments (actually more rant than argument) against a broad class of patents. As I mentioned earlier, your penchant for over-the-top hyperbole does little to aid the persuasive of your arguments. When you start foaming at the mouth, people are going to tune you it.

          1. Too bad the USPTO didn’t see it that way.That’s exactly what I’m saying. It is too bad because it shows that the USPTO is easily snowballed.we are actually citing the statute.In fact, you are citing one section of a statute and pretending that this one section nullifies the entire point of the statute which is to prevent the issuance of non-novel obvious claims. the same statements were probably made about patent attorneys in every technology that has ever been patentedPatent attorneys “in technology”? Huh? What “technology” are the greedy lawyers at Intellectroll Ventures “in” exactly? Is lawyering a “technology” now? I’m sure that they wish it was. You … are making policy arguments … against a broad class of patents.Oh noes! The worst thing ever. And I’m all alone in this world. Pretty much everyone else just loves this computer-implented junk and wants more patents, all the time. Just ask anybody.Seriously, there is no “policy argument” needed to determine that Apple’s patent we are discussing is junk. I can make such an argument if you like, though.

            1. Pretty much everyone else just loves this computer-implented junk and wants more patents, all the time. Just ask anybody99% of people don’t care either way, which is your problem. If you are going to change the status quo, you are going to need more support.

              1. “99% of people don’t care either way, which is your problem”If you take the time to explain the situation to them they care more than a little about this blatant fraud. Just about as much as they care about preventing other white collar fraud. “If you are going to change the status quo, you are going to need more support.”I think you’ll find that all he’ll really need is more education of folks. The support will follow.

              2. 99% of people don’t care either wayMaybe where you live. But not in the big cities where educated people tend to congregate. People do care. You should get out more often. If you are going to change the status quo, you are going to need more support.The status quo is changing and the number of people who are aware of the problems with our patent system is growing all the time.

            2. Is “oh noes” and h@tred of lawyers really necessary for a conversation?Malcolm – find some work in a field in which you can believe in the work product produced.

          2. “Too bad the USPTO didn’t see it that way.”Who’s to say they didn’t? And if you, how do you know they didn’t? “… and the same statements were probably made about patent attorneys in every technology that has ever been patented”Odd, I don’t hear it all that much from people describing the lawlyers in thems old school useful arts. I should very much like to read some history on the subject if you have some on hand.

              1. Just because they got a patent doesn’t mean that the PTO folk didn’t think that the patent claim was written by lawyers to make it seem complex at first glance but in fact the claim is just old functionally recited garbage strung together for the purpose of achieving their old functions. PTO folk routinely think this and similar things about applications and yet they issue them anyway. If you’d ever spent more than a day here you’d know that.

      3. When reading your rants, I wonder what audience(s) you are writing to.I’m writing for the same “audience” you’re writing to. It’s a pretty big audience. There’s a whole lot of different people in this audience. But I guarantee you that the smallest group of people in the audience is educated patent attorneys who, after a few minutes of studying this claim, don’t agree that it’s pretty darn junky. In fact, the vast majority of the audience appreciates a skilled attorney who can break this stuff down for them in laymen’s terms and show them (1) why many people believe that our patent system is broken, at least when it comes to the examination and assertion of computer-implemented junk, and (2) that it’s being exploited by a few greedy lawyers at the expense of everyone else.

        1. the vast majority of the audience appreciates a skilled attorney who can break this stuff down for them in laymen’s terms .Really? Are you that delusional? You think the vast majority of the audience appreciates your childish “breakdown” of these patents?I suspect that the vast majority of Patently-O readers are those that support the current patent system. Moreover, I suspect that the vast majority of Patently-O readers would prefer that the patent system be strengthened — not weakened. Perhaps your comments about the readership applies to Ars Technica or Slashdot, but I doubt very much they apply to this website.Perhaps Dennis could do a survey regarding this very issue. I am very curious to see the breakout as to the readership of Patently-O and their respective opinions about the US patent law system.

          1. those that support the current patent system.readers would prefer that the patent system be strengthenedWhat does that phrase mean to you?your childish “breakdown”Seems like you’re the one having the “childish breakdown”. All I did was explain why Apple’s patent claim is junk. It should never have issued. I would have no problem “infringing” that junk with a device of my own design that included all those “functions”. No fears whatsoever.Do you work for Apple or something? Why the exhuberant rush to defend this junk? Oh wait, you’re not defending it. You’re just insulting me because I criticized it. I am very curious to see the breakout as to the readership of Patently-O and their respective opinions about the US patent law system A survey won’t begin to answer your question because most people who read the blog won’t bother to answer the survey. But you knew that already.

            1. Do you work for Apple or something? Why the exhuberant rush to defend this junk?You are really miserable at this arguing thing, aren’t you? Anybody reading my comments could hardly conclude that I have engaged in any type of “[exuberant] rush” to defend the patent. However, by saying that I have, you have continued to dig a deeper hole into which your credibility is to be thrown and buried.I previously used the term “delusional” to describe you and you have shown me no reason to back away from that statement.I would have no problem “infringing” that junk with a device of my own design that included all those “functions”. No fears whatsoever.That doesn’t prove anything. I wouldn’t have any fears either — because the value of my infringement wouldn’t be worth more than a few minutes of attorney time.A survey won’t begin to answer your question because most people who read the blog won’t bother to answer the survey. But you knew that already.Dennis has taken many surveys on this blog, and he apparently believes that they have some worth. But you knew that already.

    2. What I would say, Malcolm, is that the claim is abstract on its face. It receives data and manipulates it to determine a “location.” The end transmitting step is not a useful application of that location.

      1. abstract on its faceGod … that is what I love about your side. Anytime you make an argument that a device comprising a receiver, signal generator, and transmitter is “abstract on its face,” you lose credibility. It is so incredibly easy to attack that argument.

        1. I want to point out the story description of this patent describe that it calculated a location and then “perform automation tasks.” The claim that Malcolm posted has none such listed. It simply ends with a calculated location.Since Benson, and particularly including Flook, Diehr, Bilski and Prometheus, a claim that ends with a calculated result and does nothing with it is simply not eligible.That is all that this claim does. Nothing.

          1. want to point out the story description of this patent describe that it calculated a location and then “perform automation tasks.” The claim that Malcolm posted has none such listed. It simply ends with a calculated location.True enough. Of course it would hardly matter what happened after that. What’s a non-obvious way for someone to use “location data”? Unless of course it’s location data about available real estate or location data relevant to shoving an ad in a person’s face.

          2. a claim that ends with a calculated result and does nothing with it is simply not eligibleAnother person that doesn’t understand the difference between the 1st and 2nd paragraphs of 35 USC 112. Claims don’t describe the invention … claims distinguish the invention.

            1. Patent_Guru, what planet have you been living on for the last 40 years while we have seen Benson thru Prometheus all decide that the unapplied result of a calculation is not eligible?

                1. Patent Guru, “Can you give me a quote…?”Benson, “The mathematical formula involved here has no substantial practical application…”Flook, “All that it provides is a formula for computing an updated alarm limit…” “An ‘alarm limit’ is a number.”Diehr, “[W]hen a claim containing a mathematical formula implements or applies that formula …”Bilski, “”[A]n application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.’ … [I]t is clear that petitioners’ application is not a patentable ‘process.’” Prometheus, “[T]o transform an unpatentable law of nature into a patent-eligible application of such a law, one must do more than simply state the law of nature…”

                2. B: quote misleading (omits “… except in connection with a digital computer”) and not the holdingF: not the holding (the claim actually recited “[a]djusting said alarm limit to said updated limit value”)D: language doesn’t require application of result — only that the formula is appliedB: doesn’t support your statementP: doesn’t support your statementThanks for trying!

                3. Patent Guru, the application of a mathematical algorithm to a known machine or process may be eligible (Diehr), but simply reciting the use of a machine or process without any substantial change in the machine or process is “insignificant” extra solution activity, e.g., Flook, confirmed in every subsequent case.

        2. “a device comprising a receiver, signal generator, and transmitter”Devices comprising that were invented in the 1800′s iirc nobody calls them abstract. It’s when you start piling abstractions thereupon that people start calling the claim abstract.

  5. Symantec and Trend Micro are advancing a novel attack that basically says they shouldn’t have to pay such a large amount of money for a patent bought so “cheaply.” The two companies are asking a federal judge to bar IV from seeking such large licensing fees on the grounds that a patent acquired for so little couldn’t possibly be worth so much.Novel = bad. This is called information asymmetry … its been around as long as goods have been traded. Then again, this is what you get with many litigators. They’ll bill the $$$$$$ out of you to throw any argument against the wall to see what sticks.

    1. When the client says, “Look, I get that it’s terrible, but just argue something, anything. I don’t care. Just put up a plausible defense so that we can at least take a negotiating position that speaks to the cost of defending against our claims…” You do it.

    2. Intellectual Ventures attorney Richard Hess said his client had a lot more information about the patent’s value than the seller, because IV knew how much companies like Symantec and Trend Micro used the technology.Richard Hess is a great attorney. He knows how to tell an amusing story. The truth is that IV knows it is in a better position to extort deep pocketed companies with junky software patents than the shmuck from whom the junky software patent was purchased.I seem to recall reviewing this particular piece of junk sometime in the last few years. It’s the so-called “viral detection” method, isn’t it? Where the POWERFUL COMPUTER BRAIN takes information that’s received and compares it to a database of “bad stuff” and if some of the information matches the list of “bad stuff” then the POWERFUL COMPUTER BRAIN “blocks it” or at least lets you know about it. That’s the “technology”. Just ask Richard. He knows all about it.

  6. “The bill is aimed squarely at patent trolls..”And what’s the definition of “patent troll” again?

  7. From the Twitter article:As the company’s former general counsel, Alex MacGillivray told me last year, ”We studied it with some pretty smart people and it seems the only thing you can do is defend it as vigorously as you can and beat the shit out of these players.”Not bad advice. I’m all for vigorously defending against an unjustified lawsuit. However, what Twitter fails to realize is that while it is easy to outspend a small NPE and grind them into the ground, if a big corporation with a few thousand infringed patents comes knocking on your door, you are up the proverbial creek without a paddle.While many of the “technology” companies are chummy with one another, all it takes is one to realize that maximizing shareholder wealth means suing your competitors (e.g., Twitter), and Twitter is in a world of hurt. When faced with a couple billion dollars worth of damages that they cannot possibly defend against, they will rue the day that they decided that their principles were more important than their shareholders.Relying upon the altruism of your business competitors is rarely a good strategy.

      1. Huh?I know biotech companies don’t usually have more than a handful of patents. However, the big boys in mechanical/electrical/computer world do. Do you know how much money it would cost to attempt to defend against 1000 patents or even 100 patents?Let me introduce you to the real world — in those instances, (i) you pray the other side doesn’t want to bleed your dry and/or you (ii) attempt to rewrite the law. While (ii) is a popular option, it rarely works.

        1. I know biotech companies don’t usually have more than a handful of patents.Huh? What’s a “handful”, in your opinion?Do you know how much money it would cost to attempt to defend against 1000 patents or even 100 patents?That depends on whether I infringe a valid patent. I do know how much money it would cost a “big company” who tried to exort me, however. It would cost them a lot, and not just in attorney fees.You seem to be very afraid of big patent portfolios. I’m not afraid of them at all. Do you know why? Because I’m a patent attorney and I know how easy it is to document and disseminate accurate information about patent owners (big and small) who assert junk patents and try to extort people with those junk patents. There are other ways to cause companies to “lose money” besides sueing them. Lots of other ways.(ii) attempt to rewrite the law. While (ii) is a popular option, it rarely works.You could have fooled me. Seems like the laws are being re-written quite often when it comes to patents, and very rarely in a manner that makes it easier for people to assert junk and get away with it. But maybe things are different on your “real” planet.

          1. There are other ways to cause companies to “lose money” besides sueing them. Lots of other waysOh … still living in that dreamland where consumers actually care when multi-billion dollar companies care whether or not they sue one another.You think ‘negative PR’ is going to stop a billion dollar lawsuit? Too funny. Way too funny.

              1. Depends on how much the negative PR is going to cost.Really, is that the best response you have? The likes of Twitter could easily face a billion dollar ++ lawsuit from an operating company with lots of patents. So long as Twitter doesn’t get shut down (why kill the cow when you can milk it for years?), who except the FOSS-ites of the world will care?People in this country have much pressing things to worry about than when one uber-rich corporation pays a huge sum of money to another uber-rich corporation (or even a NPE). I’ve said this several times to you before, but it is worth repeating, you vastly overestimate the common man’s disdain for patents, in general, or software patents. More people like patents than dislike them. Moreover, those same people have a very low threshold as to what is patentable.

                1. you vastly overestimate the common man’s disdain for patents, in general, or software patents. More people like patents than dislike them. Moreover, those same people have a very low threshold as to what is patentable.You have a poll on that or something? It’s pretty much the exact opposite of what I see on planet Earth, even among professional patent attorneys (the primary exceptions being those who are invested in the patent quo, and even there the feelings aren’t universal).

                2. You have a poll on that or something?Although I don’t flaunt it, every time I mention to somebody that I am a patent attorney (because they ask what I do), it invariably it leads to a conversation of a great idea he/she has that they always thought of getting a patent on. The vast majority of them are on things you cannot even get a patent on, but people love the idea of getting patent. Back when I took on small clients, many of them just wanted to get the patent (regardless of the scope) for vanity’s sake.People generally like the concept of giving credit where credit is due. They also dislike people taking other people’s ideas without giving credit. In my experience, this is fairly universal, and the patent law system is consistent with these word views.It’s pretty much the exact opposite of what I see on planet Earth, even among professional patent attorneysInteresting. You commune with a bunch of people that hate what they do? Something like a bunch of vegans in a pig-slaughtering factory? No wonder why you are surly all the time. You need a change of profession.

                3. You have a poll on that or something?Although I don’t flaunt it, every time I mention to somebody that I am a patent attorney (because they ask what I do), it invariably it leads to a conversation of a great idea he/she has that they always thought of getting a patent on. The vast majority of them are on things you cannot even get a patent on, but people love the idea of getting patent. Back when I took on small clients, many of them just wanted to get the patent (regardless of the scope) for vanity’s sake.People generally like the concept of giving credit where credit is due. They also dislike people taking other people’s ideas without giving credit. In my experience, this is fairly universal, and the patent law system is consistent with these word views.It’s pretty much the exact opposite of what I see on planet Earth, even among professional patent attorneysInteresting. You commune with a bunch of people that ha-te what they do? Something like a bunch of vegans in a cattle-slaughtering factory? No wonder why you are surly all the time. You need a change of profession.

                4. People in this country have much pressing things to worry about than when one uber-rich corporation pays a huge sum of money to another uber-rich corporation (or even a NPE)What’s hilarious about is this comment is that “the people in this country” who care most about such things are exactly the same people who will do or say anything to defend software patents and the status quo, i.e., people like you.Remember a short while back when Obama nixed that USITC decision (Samsung v. Apple)? Some “people in this country” went so far as to suggest that Obama’s actions in that instance would decimate his Presidency or some such nonsense. So they cared very deeply. Of course, they were also wrong but that’s not surprising.

    1. maximizing shareholder wealth means suing your competitorsLOL. Step aside, everyone! Patent Guru is here to tell us about how “real” corporations work.

      1. Patent Guru is here to tell us about how “real” corporations work.I’m sure there are a lot of “real” corporations that don’t believe in maximizing shareholder wealth. However, I suspect most of them have gone the way of Pets.com and Napster.

          1. Those companies failed because they didn’t sue enough people.Companies fail because they aren’t competing. There are different ways to compete … filing lawsuits on your protected technology is one. However, if you don’t protect your technology, then anybody can walk into your space.What reasons do you give your clients for obtaining patents?

            1. What reasons do you give your clients for obtaining patents?Do you move the goalposts on your clients?Who was Pets.com supposed to sue in order to survive? Who was Napster supposed to sue in order to survive?

              1. Do you move the goalposts on your clientsWhy don’t you answer the question I asked?Who was Pets.com supposed to sue in order to survive? Who was Napster supposed to sue in order to survive?Did I suggest that Pets.com or Napster needed to sue anybody? Did my original post suggest Twitter sue anybody. No.What I suggested, in the context of Twitter, is that they were ripe for being sued because they haven’t protected their technology. Without any IP to force a cross-licensing deal (which is how fights between large companies usually end up), they could face a huge judgment.

                1. Twitter … is ripe for being sued because they haven’t protected their technology.Huh? So now we all need patents to keep from being sued for practicing technology we invented? When do we become “ripe”? How many patents do need to “protect” us?Did I suggest that Pets.com or Napster needed to sue anybody?You gave them as example of companies that failed because they didn’t “maximize shareholder wealth”, which you told us “means suing your competitors”. So, yes, you suggested that. And then you moved the goalpost.

                2. Huh? So now we all need patents to keep from being sued for practicing technology we invented? When do we become “ripe”? How many patents do need to “protect” us?Are you sure you practice patent law? This is fairly basic stuff that most associates pick up through osmosis the first year.What you don’t appreciate (among a vast list of things) is that there are literally hundreds, thousands, if not tens of thousands of different innovations that go into making the processor upon which your software runs and separately the software itself. You may not realize this, but the engineers in these respective industries do more than twiddle their thumbs each day.Therefore, any semiconductor or software product is likely to have a vast multitude of innovations — some created in-house and some created by others. If you haven’t protected your innovations while the others have, then you are SOL when it comes to cross-licensing negotiations.You gave them as example of companies that failed because they didn’t “maximize shareholder wealth”, which you told us “means suing your competitors”. So, yes, you suggested that. And then you moved the goalpost.While you are fond of the saying moving the goalpost, you frequently use it incorrectly. The expression “moving the goalpost” means to changing a criterion against which something is measured. I didn’t establish a criterion nor did I move it.Also, I didn’t write that suing your competitors is the sole means of maximizing shareholder wealth. However, not maximizing shareholder wealth is a good start to become a failed company. Fairly simple points.

                3. I didn’t write that suing your competitors is the sole means of maximizing shareholder wealth.Previously you equated the two. In fact, you defined “maximizing shareholder wealth” as “sueing your competitors.” So what do you call it when you backpedal from a previous assertion but you pretend that you aren’t doing that? any semiconductor or software product is likely to have a vast multitude of innovationsAbsolutely untrue, but thanks for the laugh.you are SOL when it comes to cross-licensing negotiationsWhy do I need to “cross-license” your junk patent when I can afford to destroy it at the PTO or in court? Cross-license this.

                4. Previously you equated the two. In fact, you defined “maximizing shareholder wealth” as “sueing your competitors.”Giving an example is not the same as defining — even the USPTO knows that.So what do you call it when you backpedal from a previous assertion but you pretend that you aren’t doing that?I’m not back pedaling from anything. Unlike you, I can continue to discuss a subject without resorting to raising the same points over and over and over and over and over and over again. For someone who writes so much, you say so little.Why do I need to “cross-license” your junk patent when I can afford to destroy it at the PTO or in court? Cross-license this.Ah yes … the assumption that every patent is a junk patent and is therefore easily disposed of. To repeat my first statement, “Not bad advice. I’m all for vigorously defending against an unjustified lawsuit.” However, you aren’t going to easily dispose of a hundred or a thousand patents.

  8. [Samsung's design] patent shows that the glasses could come withbuilt-in earphones, which would allow you to listen to music and answer callswhile you’re wearing it.””Allows” me? There it is again: the seeming willingness to treat every combination of “functions” in the compooter arts as some sort of magical gift to the public.Guess what: I’ve been “allowed” to wear portable devices on my head that “allow” me to receive and transmit audio information for just about my entire life. There is nothing at all innovative about combining that ancient technology with a relatively new (but also well-known) technology. What next? Will someone create some magic glasses that “allow me” to get information about the weather “on demand”? Or that “allow me” to rate the attractiveness of people that I see (that’s “completely different” from rating the ugliness of people, by the way, or rating the value of available real estate)?Why do people pretend to be impressed by this garbage? It’s baffling.

    1. How dare anyone try to claim combinations of repackaged electrons, neutrons and protons when they have been around since the dawn of the universe… (talk about ancient)

  9. market analysts are pointing tothe relatively small number of patents held by the company as weaknessApparently market analysts know very little about patents. Twitter “works” because its massive advertising campaign encouraged people to sign up for its “service” (I didn’t and I never will). Likewise with Facebook. The technology behind transmitting information to subscribed users is ancient and whatever patents Twitter does have probably should not have been granted in the first place.

    1. The technology behind transmitting information to subscribed users is ancientThe technology behind combining two or more compounds to form a third compound is ancient as well, so let’s get rid of all chemistry-related patents.

      1. The technology behind combining two or more compounds to form a third compound is ancient as well, so let’s get rid of all chemistry-related patents.There’s a big difference between combining two chemicals to make a new molecule, on one hand, and combining two devices to make a device that comprises two devices. Let me know if you need additional explanation (high school chemistry is enough for most people).That said, the case law on combining two old molecular compositions is quite clear that absent an unexpected result the claim to the combination is obvious. This is why you don’t see “pundits” excitedly writing articles about some junky patent that “allows” you to eat chocolate and pomengranate seeds at the same time.

        1. But Malcolm, you are missing the point that any molecules and elements were already known to be configurable, to be able to be joined, and that the method of joining them is old in the art, thus any future configuration must be per se obvious (you know, your argument against software patents and computers that are capable of being configured).

          1. any molecules and elements were already known to be configurable, to be able to be joined, and that the method of joining them is old in the art, thus any future configuration must be per se obviousClaims to new molecules are distinguished from old molecules on the basis of their new structures, unlike new computer functionalities which are distinguished from old functionalities by (wait for it) recitation of the new functionality. In the instances where the method of making a claimed new structure was known and there was some motivation for making the new structure, the molecule is obvious and evidence of unexpected results needs to be provided. That’s the law.It’s ancient history that a computer will “process” any kind of information that it is taught to process. There is nothing “unexpected” about a computer processing any kind of information. Grandma information, password information, credit card account information, video information, sound information, available real estate information, face information, monkey butt information, rotational velocity of satellite information … just tell a computer what to do with the information and it will do it. So there are no “unexpected results” that flow from the mere recitation of the “new functionality”. On the contrary, a computer that is programmed to have a particular function achieves exactly the result everyone expects: it performs that particular function. “It is what it is.”Note that this problem arises mainly from the use of functional claims at the point of novelty, which is a shortcut that proponents of software claims (oddly, a group that does not include most programmers who are “religiously” opposed to the practice) demand because that’s the only way (we are told) to ensure that software programmers are forced to take a license should they wish to optimize or merely reduce to practice the claimed “functionality.”

            1. “That’s the law.”LOL – I already asked for you to give a cite to that effect and to contrast the cite provided by Leopold that showed that there was nothing wrong with functional claim elements..I am still waiting for you to do so.

              1. If you need a cite for this:In the instances where the method of making a claimed new structure was known and there was some motivation for making the new structure, the molecule is obvious and evidence of unexpected results needs to be provided.then it’s probably not worth discussing patent law with you.

                1. That doesn’t answer my question, nor does it provide a comparison with the actual cite provided by Leopold.I’m still waiting.

              2. I already asked for youThat’s nice. I asked you to go and play in the sandbox that Gene Quinn built for you and stop polluting this blog with your endless insults and incomprehensible innuendo. That way I could actually have a conversation with an honest, intelligent, articulate person like LB. But you’re still here.

                1. CRP like this is allowed?This is nothing more than Malcolm’s base Accuse-others-of-that-which-he-does. There is nothing worthwhile in this comment. He accuses me of insults at the very same time that he insults someone who does not even post here. He insults me and accuses me of getting in the way of a conversation that he in fact runs from. He still has not answered the point first raised by Leopold and that I am merely asking him to answer here.Come Malcolm, show that you are an honest intelligent and articulate person yourself and stop with the CRP games that you play.

            2. Your “ancient history” position is a fallacy and I have already explained why – not sure why you think that argument is going to be any more persuasive the fifteen millionth time you trot it out….

              1. Your “ancient history” position is a fallacy and I have already explained whyComputers are ancient. That’s not a fallacy. Perhaps you thought you “explained” something else. Try again, maybe. And good luck.

                1. The part about the first computer and capturing all improvements to a machine is a fallacy.No it’s not a “fallacy”. It’s an important point that is central to the entire debate about the current state of software patenting. We’re talking about a programmable computer that was manufactured in such a way to make it capable of being programmed to process information. A description of that computer in functional terms doing exactly what it was designed to do is not a patent-worthy improvement (and certainly not “technology”). You have some new structures to add to the old computer which provide unexpected results? That’s a completely different situation. Just describe them for everyone.You can’t patent an old dump truck merely be adding to its description a “function” of carrying any of ten billion different things that a dump truck was known to be capable of carrying but which haven’t been specifically decribed as sitting in the flatbed of a dumptruck before. But that’s exactly the game that the softie woftie crowd wants to play.

      2. I’ll repeat this because PG seemed to be responding to something else entirely:The technology behind transmitting information to subscribed users is ancientYou don’t disagree with my statement, of course. Please tell everyone what “technology” Twitter “invented”.

        1. You don’t disagree with my statement, of course. Please tell everyone what “technology” Twitter “invented”.I am sure they are inventing a lot — too bad they are not protecting it. What you never see (and you certainly don’t appreciate) is all the technology in the backend that makes everything work so seamlessly.If you really care about understand the technology, I suggest you look at the presentation found here:link to infoq.com…What this presentation does is give you a glimpse of all the engineering needed to make Facebook work. Of course, I have no expectation that you would even click on the link, but for those that are curious, it provides a great insight as to how much technology and engineering is needed to “connect friends.”

          1. it provides a great insight as to how much technology and engineering is needed to “connect friends.”That’s odd because I was connected with my friends before Facebook and I still am.

            1. That’s odd because I was connected with my friends before Facebook and I still am.People talked to one another a long time ago. However, that doesn’t render obvious the technology that makes Facetime work.

              1. People talked to one another a long time ago. However, that doesn’t render obvious the technology that makes Facetime work.Sure it does, in combination with other old “technology” like the Internet, email, subscriptions, passwords, etc.

                1. Sure it does, in combination with other old “technology” like the Internet, email, subscriptions, passwords, etc.And you wonder why I think you don’t appreciate technology?I’m sure you think automobiles are an obvious variation of the horse and cart … don’t they both involve horsepower?

                2. I’m sure you think automobiles are an obvious variation of the horse and cartAutomobiles themselves are ancient. Go troll another blog.

                3. Go troll another blog.Don’t worry, I’m not looking to take your job. Your 5 years tenure as the Patently-O troll will protect you.

          2. What you never see (and you certainly don’t appreciate) is all the technology in the backendExactly what makes you believe that I don’t “appreciate” “all the technology” “in the backend”? Is it somehow necessary to cheerlead for the functional claiming of software “inventions” in order to “appreciate technology”? What’s the logic there?I am sure they are inventing a lotI didn’t ask you what they are inventing now. I’m asking you what “technology” you believe that Twitter “invented”. Because you’re the “expert”, right? So let everybody know. too bad they are not protecting it.Too bad for who? Twitter? Seems like they are doing just fine.

            1. Exactly what makes you believe that I don’t “appreciate” “all the technology” “in the backend”?Your general lack of appreciation of most technology. You seem to think everything is obvious.Too bad for who? Twitter? Seems like they are doing just fine.Not making a profit is doing just fine? Having no IP to prevent a big player from muscling in on your space just fine?

              1. Your general lack of appreciation of most technology.Again, what makes you believe that I “lack appreciation” of “most technology”?You seem to think everything is obvious.Almost everything is obvious. That’s why we only give patents to non-obvious things. They’re “special.” Regardless, were we talking about “everything”? I thought we were talking about Twitter’s obvious “technology.”Not making a profit is doing just fine?They’re getting set to launch an IPO that’s estimated to take in $1.6 billion. They’re doing just fine. Go troll another blog.

    2. “whatever patents Twitter does have probably should not have been granted in the first place”…so you are making an assertion concerning patents that you have not even seen?Based on….?ANd what type of ‘norm’ does this give notice of?

      1. so you are making an assertion concerning patents that you have not even seen?Not at all. I’ve seen many of Twitter’s patents and I know quite a bit about their business model. They’re built on advertising, not “innovation.”what type of ‘norm’ does this give notice ofYawn.

        1. You need to work on your “English as a first language skill” then, Malcolm.The implication of the phrase “whatever… does have” is that you do not know what they have.Last I checked, Business methods (which can include advertising) are patent eligible subject matter. You might refresh your memory, as Prof. Crouch had a guest post that showed that business methods have been granted throughout the history of the US Patent Office.Not sure you should be ‘yawning’ as much as you should be getting your story straight.

          1. Business methods (which can include advertising) are patent eligible subject matterThat’s nice. There’s nothing inventive about Twitters advertising practices either.

            1. “There’s nothing inventive about Twitters advertising practices either”I don’t know. I have not looked at Twitter’s advertising practices, nor their patents.However, that does not stop your comment about “advertising” to be unhelpful, as you appear to label the category of ‘advertising’ as somehow being mutually exclusive from innovation, and that is simply not true as a general rule. Thus – your reply is a non sequitur to the immediate conversation between you and I.I am glad that you think the ability to obtain business method patents is nice though. At least we have that.

              1. I have not looked at Twitter’s advertising practicesI have.you appear to label the category of ‘advertising’ as somehow being mutually exclusive from innovationHuh?

  10. IBM, 3M and a lot of big companies known as BSA write congress a letter and this Blog reports that letter as a letter from Trolls and NPEs?Methinks either that this blog has an agenda, that its authors do not know how to read, or that IBM and 3M are NPEs.Now which could be true?

    1. I think the “troll” term came about because of Levy’s use of the term “concern troll” to describe the complaints from the “Business Software Alliance”, a group which will go down in history as one of the lamest and least effectual organizations in the history of patents.

      1. The “Matt Levy” blog is just a troll for the “Computer & Communications Industry Association”, look at the bottom of each page on his blog. Matt Levy is a troll himself. And also notice that his posts on his blog get no comments at all. People can see his blog is just a paid propaganda outlet.

        1. notice that his posts on his blog get no comments at all.That’s true of a lot of blogs. It’s not particularly good evidence of anything, really.People can see his blog is just a paid propaganda outlet.How much is he getting paid to blog, do you think?By the way, you might want to adjust the privacy settings on your Discus account. I can’t speak for everyone but if I’m looking to hire someone in any context and I see them ranting all over the Internet that “there is no evidence that gay people involved in homosexuality are born that way”, I just chuck the resume in the trash and wash my hands. I need people who understand how science works.

          1. Sorry, you got the wrong person, I am an officer and major shareholder, who does not work for other people who make up science to suit their personal purposes.

              1. How in the world can such a comment be considered ‘norm? The fact that Ihave to both flag this, vote it down and comment on it and yet it remains istruly unbelievable.

          2. “you might want to adjust the privacy setting”Not accurate. The privacy settings on the Disqus software have NOTHING to do with the anonymity of your pseudonym outside of the posting blogosphere – and hence would have ZERO impact in a hiring decision.All the privacy settings accomplish is to hide what you actually post from others.Funny that, the person clamoring for more visibility on personal property is one of two people who has taken the affirmative steps to hide what he says.Funny too, how the archives have not been restored – and how the archives hold posts that objectively show the baselessness of certain peoples’ posts – and how, somehow, that baselessness seems to be above a ‘norm’ for conversation.C’est la vie.

            1. Disqus software have NOTHING to do with the anonymity of your pseudonym outside of the posting blogosphere – and hence would have ZERO impact in a hiring decision.Huh?

              1. How very Vinnie of you Malcolm. Funny that you seem to lose the ability to understand simple counterpoints. Try again to read the thread, notice the pointmade, and how your reply simply is off-kilter.

            2. the archives hold posts that objectively show the baselessness of certain peoples’ postsYou’re back to “crazy person” mode again, Tr0llb0y. Just letting you know. It didn’t take long, did it?

              1. Because the archives which show your actual statements as admissions against your interests are “crazy person” things?LOL – most definitely not. Your attempt here at merely having it be so because you say so is oh so very Carroll of you – and oh so very typical.And oh so very fails.

  11. 20130254284 Filed Mar 23, 2012:18. A system, comprising: a first electronic device storing a copy of an electronic book; and a second electronic device running a signing application configured to automatically grant, to the first electronic device, a right to perform an task associated with generating an autograph in the copy of the electronic book when the first electronic device enters a coverage zone and removes the right when the first electronic device exits the coverage area.Got that? The second device is configured to “automatically grant a right to perform a task” to the first device when the second device “enters a coverage area.” Somebody appears to believe that it would actually matter, for patentability purposes, what the purpose of the task is. That’s pretty lame. The task is associated with information transmission, receipt, storage or processing. That’s what computers do. The generic recitation of some vague, ancient information content (“generating an autograph”; “generating a photo of the grandkids for grammy to look at”) adds nothing.

    1. Malcolm, what the claim does is generate a “right.” I think a “right” is somewhat abstract. If device storing the copy of the book were actually required to do something physical or otherwise statutorily useful, the claim might be a little less suspect.

    2. I would also say that any apparatus claimed in terms of how it operates is invalid as functional unless the functions are claimed as Means Plus Function.

      1. You know Ned, really these functional claims are means plus function in the sense they represent the know ways of implementing the function. It is the same in every art.

        1. Since a case called Valmont, penned by Rader, practioners have been avoiding the term “means” to avoid 112(f). They write functional claims as before, but substitute “to” or “configured to.” The PTO is gradually catching up, but I daresay, the courts have not yet followed. The PTO treats these claims under 112(f) regardless. It seems the Feds go out of their way to avoid 112(f), and give full scope to the functional claim.As I said before, giving full scope to a functional machine claim is equivalent to treating the claims as process claims. Prior to Tarczy-Hornoch, process claims that were mere functions of machines were also considered functional. So, we see the end game of Rich in overturning the function of a machine doctrine, and the Federal Circuit that follows his lead, is to entirely overthrow the doctrine of functionality — even while the PTO and others are all but demanding its full restoration.The real question as always, and the bottom line, is this: Is the inventor claiming more than he disclosed. Did he, as in Halliburton, actually invent all means for counting tubing collars having disclosed but one? Did he, as in Seldon, invent all gasoline-engine-powered cars having invented but one type of engine?The answer is no. Frame the question the right way and one sees the right answer.

          1. Any discussion of the ‘function of the machine’ doctrine would also entail a discussion of the ‘mental steps’ doctrine as well as the critical notion of anthropomorphication and the fact that machines do not think.Tell me Ned when you are ready to discuss the last two items, as you have never discussed these items despite repeated calls for you (from me) to do so. A true conversation is difficult when such points are purposefully not discussed.And further note that you should set aside your anti-Rich viewpoint (it is not so subtle how you are positioning Rich as a villain, again) as your hero Frederico ALSO set out to eliminate the fallacy embedded in the ‘function of a machine’ doctrine.

            1. anon, the new use of an old machine can be claimed as a process. Is this remarkable?Rich held in Tarczy-Hornoch, that a new machine could be claimed as a process as well — but one, of course, that had multiple steps. I do not disagree.He concluded that the doctrine of functionality was, in essence, a effort to claim a result. I think this right.So where is the controversy?Claiming the new use of an old machine as a new machine perhaps?

              1. Ned,I anticipated your reaction in this manner, and find it very sad. You are again choosing to ignore a valid point made in an earlier conversation.I will limit my response by pointing you to the merry-go-round concerning the obfuscation of what it means to have a new machine versus a new use of an old machine.See Alappat.See also the Grand Hall experiment. You cannot merely ‘use’ a machine and software until you change the machine by reconfiguring the machine with the machine component of software.

                1. You cannot merely ‘use’ a machine and software until you change the machine by reconfiguring the machine with the machine component of software.That’s nice. It has nothing to do with the issue of functional claiming old devices and objects by reciting only the new desired functions in the claims.

                2. That’s nice. Except what constitutes an old device is exactly at point here. You do know what the legal impact of Alappat is, right?(or does your conversation-advancing Vinnie Barbarino “Huh, What?” line somehow excuse you from joining the conversation in an intellectually honest manner?Part of the ability to have an actual conversation is the requirement that you take the fingers out of your ears and recognize the valid points pertinent to the conversation.

            2. Any discussion of the ‘function of the machine’ doctrine would also entail a discussion of the ‘mental steps’ doctrine as well as the critical notion of anthropomorphication and the fact that machines do not think.So go ahead and discuss those things. What’s stopping you? You say machines do not “think.” But they certainly do process information, do they not? You mentioned the “mental steps doctrine”. Who created the “mental steps doctrine” and why, exactly how does it relate to this subject and your position on the claiming new compositions by reciting only new functionality for those compositions? When you type in “anthropomorphication” in bold, does it make the “notion” more or less “critical” than if it is typed in italics or using all caps? Why is it a “critical” notion at all in the context of claiming new compositions by reciting only new functionality for those compositions?I look forward to your attempt to have a discussion. Please refrain from personal insults, ad hominem attacks, and rhetorical strategies wherein you assume the truth of your conclusion and attack the intelligence or motives of all who disagree with you. Thanks.

              1. More blatant 1ies from Malcolm.You say here to go ahead and that you look forward to my discussions when I have already made those discussions only to have you ignore the truth of what I say.You ignore known facts. You ignore known law. You accuse others of that which you do.Nothing changes with you.

  12. American Traffic Solutions(ATS) is suing B&W Sensors for patentinfringement on a patent that covers, “technology using photography tosimultaneously clock multiple vehicles on a single roadway.”Anybody know the patent number? I’m curious how this incredible unexpected “technology” differs from the boring ancient “technology” where the speed of objects is calculated based on how far they travel in a pre-determined period of time.

  13. 7,620,565This incredible piece of j*nk, possibly one of the worst ever, claims priority back to 1992 (the con was filed in 2006).1. A unit, comprising: a memory; a transmitter; and a processor, coupled to the memory and to the transmitter, configured to: monitor a product for an occurrence in the product of a trigger event of a predefined plurality of trigger events, increment a counter corresponding to the trigger event upon detection of the occurrence of the trigger event, cause the display of a user interface, configured to probe forinformation regarding a use of the product, if the counter exceeds a threshold, cause the memory to store an input received from the user interface, and cause the transmitter to transmit the input to a server.

    1. Check out this bizarre (and false) statement in the background section: Everyone talks back to products, but not with words they can repeat in public. Think how customers would guide products and services toward what they want if they could really talk back while they use a product, both when they have a problemand when they have an unmet need. Vendors might find an alive marketplace that helps them improve products, services and business relationships.Right, because in the strange fantasy world of Daniel Abelow, customer service or customer-responsive product upgrades didn’t exist prior to 1992. What was he smoking?

      1. Vendors might find an alive marketplace that helps them improve products, services and business relationships.What’s the “pertinent art” for solving the problem of finding out what improvements customers seek in a product, service or business relationship?What “class” of art do the proponents of the “pertinent art” test suggest is “pertinent” here?

    2. Another patent claiming an apparatus in terms of how it operates. The claim is functional and is not saved by 112(f).

      1. Put aside the question of invention for the moment and riddle me this. How could you claim “monitor a product for an occurrence in the product of a trigger event of a predefined plurality of trigger events,” if not functionally?The answer is that there are 1000′s of solutions to this problem that are known in the art. The functional claim clearly defines to one skilled in the art (such as me) the bounds of the claim element. Again, we have someone, Ned in this case, not wanting to understand the technology.Seriously, Ned, you think they should have to enable all the possible ways for the above recited element? SERIOUSLY!!!!! Or are you a person that has no interest in applying the law and understanding technology? I think we know that the answer is you do not and do not.

        1. Night, “monitor” step you wrote is a process step. Are you seriously doubting that it is a process step and is not a machine?

          1. At least your argument has some cleverness to it Ned as opposed to MM’s blatant advocacy for the evisceration of the patent statute.Ned, how would you propose protecting a machine that performs just that one element I wrote above? As a method only? A machine that performs the method? What is your proposal Ned for an inventor to be able to protect an invention that includes the element I wrote above?

            1. Night, as a method. A generic machine performing the information processing of new method is patentable, if at all, as a method. One really needs a new machine to claim a new machine. A old machine programmed with new programming where the novelty is in the programming must be considered as a process. Now, if the machine is permanently altered with need programming, then it might be consider to be a new machine. This is where the debate stands with our friend, anon.

              1. >if the machine is permanently altered with >need programmingFirst, you didn’t answer my question. Second, you have just come up with a requirement that is devoid of reality. That has nothing to do with how inventions are made now. Your argument leads (with the help of the Church-Turing Thesis) to no machine beyond a four operation processor is patent eligible. That is what you are saying. No circuit, no machine that processes information is eligible for patentability but one that was made in the 1930′s.Again, what we see is the antis refusing to connect their statements with reality. This by the way is a clear indication that you are not on the side of applying the law with an understanding of technology, but on the side of burning down the system.

                1. I’m sorry, Night, but with regard to your method step, the computer is not new, but generic. One cannot re-patent the generic computer.It is important to patent the method, because that is what the invention is. What performs the calculations is almost entirely irrelevant. You have said so here many times: it can be a digital computer, it can be a circuit, it can be an idiot savant.

                2. NWPA,Ned and Malcolm refuse to conform to what Alappat holds.So much for a conversation – Can you really have one where the law is purposefully ignored?

                3. A down vote without explanation is quite meaningless.Especially given the plain truth of what I post.If I post in error, show me the error. It will not be done because it cannot be done.

                4. Again, Malcolm, please explain how this advances the conversation. Or perhaps you can explain what exactly ananonymous down vote accomplishes? Feel free to explain this NOT in relation tome personally – what does an anonymous down vote accomplish foranyone?

                5. How very Vinnie of you, Malcolm. It is telling that you, like Ned, avoid those facts and law that are inconvenient for you.Prof. Crouch, any thoughts form you (I mean beyond mere censorship) in advancing a conversation in which one side refuses to acknowledge and integrate such inconvenient facts and law? In our adversarial legal system, such people cannot run away from these things and the conversation moves forward. Here, the running away seems not only to be permitted, it seems to be encouraged. Do I really need to explain to you how this only propagates the poor blogging techniques?

                6. Allappat is consistent with Diehr because the claim had a field of use limitation that was given weight. That might be inconsistent a bit with Flook, but it was right.

                7. Ned,An idiot savant? Why are you kicking up dust and trying to insert a person into the discussion where the equivalency is clearly of machine components?

                8. Ned, seriously, it doesn’t matter? It doesn’t matter that someone invented a machine to do what a person does? That doesn’t matter?Machines that are projected to take over 50% of the current jobs in the US over the next 20 years don’t matter?Why is it that you antis refuse to 1) apply the law, 2) refuse to understand the technology, and 3) ignore macro contradictions to your arguments.

                9. There is another latent contradiction that Ned ignores.Take the Morse case.Morse was not allowed to claim all future inventions.And yet, the vapid “House” argument (the first computer invention covers all future inventions, because that is what a computer is supposed to do: be programmed) would be analogous to granting Morse his claims against what happens in the future.The plain fact (and certainly not because I say so), is that software is a manufacture, a machine component and an improvement to a machine which makes a new machine.This type of fact is simply not up for debate. It is not up for a ‘popularity contest.’ It is not up for alternative views, or spin, or or being ignored. It merely is, and must be accepted as such.

                10. That’s a very good point anon. That it works both ways. Funny how patent law was designed so well that those that attempt to eviscerate it always seem to end up being hoisted by their own petard.And, your “merely is” argument boils down to the antis refusing to understand the technology. I mean really, J. Lourie thinks he knows what a database is and rules etc., but he spends 15 minutes on a paper and pencil test that is rendered absurd by the Church-Turing Thesis. If it weren’t so destructive of our economy and social structure, I would laugh.

              2. Ned,Same old merry-go-round.Permanence? Can you ‘use’ a machine that has not been configured with software?You keep on recycling points that are fallacious.

                1. This is a very good point anon. And, I think the question is one of what is the technology/science of information processing machines and information processing methods.The MM, 6, IA..eio..eio..oo, Ned crowd clearly evince an ignorance of the technology that would shame any decent person into silence.

        2. How could you claim “monitor a product for an occurrence in the product of a trigger event of a predefined plurality of trigger events,” if not functionally? This is a device claim. Call it a “trigger monitor means” and describe in the spec the best and/or cheapest structures which perform that function in the spec. Of course you’ll be limited to those. If you don’t want to be limited to those structures, then don’t recite the trigger monitor in the claim. After all, it’s just an ancient component and there is no “unexpected” result flowing from the use of an old structure for its old purpose.You really want to defend this claim, NWPA?

          1. MM, you tell me to describe in the specification every structure that I want covered. That is absurd on its face. It has nothing to do with modern product development. And, it has nothing to do with the goal of a specification describing the new features. It would be prohibitively expensive to write a patent application according to your argument.Inventions are made from old elements.

            1. NWPA,The analogy to chemistry and any molecular manufacture has been drawn (without a cogent answer) with my past discussions with Malcolm, 6, Ned and the like by way of my big toy box with large quantities of every element. The “capable to be changed” ‘theory’ applies equally (and equally absurdly) to the chemical elements – all the elements are known, and all the ways of combining those elements are known – and both are far older than any computer or software related art. Atoms are capable of being configured – but we ALL know that capable of being configured is a meaningless strawman that OBJECTIVELY has no place on a blog striving for conversations.The ‘computer is made to be configured’ argument is a fallacy that has been repeatedly debunked.And yet, here we go again.

              1. Atoms are capable of being configuredOf course they are. But as you know, valid enforceable claims in the chemical arts recite those new configurations, and not just the functions. That’s a big difference. And it’s been explained to you before. And your response is to whine like a crazy person that your “points” are not being “acknowledged”! LOL.The ‘computer is made to be configured’ argument is a fallacyJust because you say so? Nice try, but that’s not how it works. General purpose computers are information processing devices that certainly are made to be configured. That’s why they exist. There is no “fallacy” in pointing out that fact in the context of this discusion (functional claiming at the point of novelty). Describing only a new “functionality” for an old device or composition is not sufficient for patenting. There is no distinction that can be drawn between such a claim and a claim to the “functionality” itself. “New functionalities” are not eligible subject matter. New devices, compositions and articles of manufacture whose structures are described in a way that distinguishes them from the prior art — those are eligible for patenting.

                1. More of the same accuse-others-of-that-which-you-do, Malcolm. Here, your argument rests on the Because-you say-so premise. You kick up dust about what a general purpose computer is made for and forget that you cannot claim all future inventions of what that general purpose computer BECOMES when it is changed. You ignore the fact and the law that reconfigured does in fact mean change. You forget that you made an admission against interest in that ‘configured to’ is structural language. For some unknown reason, you think that you can ignore the admissions you make against your interests on an ongoing basis. You misrepresent (knowingly and purposefully) the law as to just how a claim can be distinguished from the prior art. You knowingly and purposefully conflate practice in the chemical arts with practice in other arts. I get that is how you want the law to be. But you need to get that is not how the law is.And if you really think that my wanting you to be intellectually honest about this is ‘whining like a crazy person’ perhaps Professor Crouch needs to seriously reconsider what ‘norm’ should apply.

            2. It would be prohibitively expensive to write a patent application according to your argument.Then don’t write them.Inventions are made from old elements.And the sky is blue. That’s nice. It does not address the fact that you can’t claim an old device with “new functions” merely be describing the “new functions.” That’s never been permitted. That’s why someone made up some baloney about “functions” (e.g., “automatically” alerting grandma that you posted a new picture of her grandson somewhere on a computer network) between the “essence of electronic structure.” And it’s that baloney that is going to get put the test.

  14. >>Matt Levy, writing at Patent Progress, breaks down a letter sent last week by >>concerned NPEs.Look at the list of companies that sent that letter. Xerox is not an NPE. That is one of about 30 companies that are clearly not NPEs.

      1. Ned, don’t you think with all this rhetoric that goes on that what the Fed. Cir./ SCOTUS/ PTO should be doing is applying the 1952 Patent Act. These shenanigans regardig 101 are shameful. The easiest way to see this is that people like me are repeatedly saying apply the law please, and the antis are coming up with these grand statements and judicial exceptions and public policies. Anyone who cares to, can easily see that the Lemleys are demagogues that are asking the court to not apply the law.And, I think the harm in the end will be the end of the patent system as an effective tool to encourage innovation. As I see it, we are getting to about 90% of the problems coming from Benson. The system is messed up from NOT applying the law.

        1. Night, what I find objectionable is the assumption that NPEs are doing something illegal when they enforce their patents. I also object to this blog headlining a plea by major US business to stop the witch hunt by calling them trolls.In my view, the real problem is issuing patents with overbroad and vague claims that seemingly read on the prior art and on the independent developments of others. For as long as claims have existed, this has been an ongoing battle and problem. It is time, I think, for the courts to take a look at functionality and indefiniteness one more time. I believe we need a simple rule. If an invention is claimed functionally, it is invalid, unless it is claimed as MPF, which is statutorily authorized.

          1. Interesting Ned. But, your objection to functional claiming is simply does not reflect modern technology. A circuit is claimed functionally because there are so many ways to carry out the function. The clear understanding is that the claim covers all known ways of carrying out the function. Not new ways of carrying out the function.I think you are on the right track, though. Focus on applying the law. If you think about it a bit you may realize that the Fed. Cir. has been trying to create simple rules within the framework of the 1952 Act (prior to the 101 nonsense) and the SCOTUS keeps striking them down. For example, the TSM test.Moreover, all this nonsense of public policy, court made rules, etc., just makes the applying of the law much more difficult.

            1. Night, I think you miss my point in part. One can claim a new machine using MPF, or one can claim a process, i.e., what the machine does (cf. Tarczy-Hornoch). The process claims are patentable if the process produces a new product or does something substantially useful.Claiming machines that produce certain results are functional and effectively claim all machines that produce that result. Such claims are either indefinite or are justifiable as processes. But if they are a process, then processes have certain rules about infringement, etc., that are well understood. Apparatus claims that are claiming processes are simply indefinite unless saved by 112(f).You should note that in the recent Alice case, 9 of the voting judges essentially held that the machine claims were to be treated as processes for 101 purposes. But, this has long been the law in the Federal Circuit before Alice.

              1. Ned, I understand very well what you are trying to say. But, what you miss is the reality of the technology. A functional claim to a circuit does have definite bounds and does express a definite set of solutions to a PHOSITA.Patent law is apply the law and try to understand the technology. Patent law is that you are entitled to the scope of enablement. All functional claims are doing in circuits, mechanical, software, etc. is claiming the scope of enablement.

                1. A functional claim to a circuit does have definite bounds and does express a definite set of solutions to a PHOSITA.What are those “definite bounds”? What is that “definite set of solutions”? Describe them for everyone.Also, please note that a claim to “a new circuit” is a far cry from claims that depend on elements such as “information regarding a use of a product” for their patentability, e.g.,:1. A unit, comprising: a memory; a transmitter; and a processor, coupled to the memory and to the transmitter, configured to: monitor a product for an occurrence in the product of a trigger event of a predefined plurality of trigger events, increment a counter corresponding to the trigger event upon detection of the occurrence of the trigger event, cause the display of a user interface, configured to probe for information regarding a use of the product, if the counter exceeds a threshold, cause the memory to store an input received from the user interface, and cause the transmitter to transmit the input to a server.

                2. MM,, I am not going to over and over again explain the same thing as you pretend to be a reasonable person and then ignore the substance of my posts.

                3. you … ignore the substance of my posts.Not true at all. The “substance” of your posts appears to be little more than conclusory statements. I’m asking you for you to provide the substance that supports those conclusions. You say a functional claim to a circuit has “definite bounds” and “a definite set of solutions”. Well, what are they? If they are definite, and you know what you are talking about, then just describe them for us. If you can’t describe the bounds or the set of solutions, then they certainly aren’t “definite.”And I’ll note again that claims to “new circuits” are not really where the majority of the worst claims are in the “computer-implemented arts.”

                4. MM, I told you before. A functional claim in the context of circuit is short hand for all the known solutions for solving that problem. You responded that the inventor should only be entitled to the literal embodiments disclosed in the application. Your solution is against the goal of the application only having what is new to enable a PHOSITA to build and use the invention. My solution is not a hard concept. And, to someone family with inventions and CS/EE it is quite a well understood practice.For example, if an operational amplifier is recited then it is understood that all of the known ways of making an operational amplifer would infringe the claim element. How else in our modern world of massive innovation where there are many ways to implement each claim element would you do it? Should I include 5 textbooks with each patent application? Your solution of only literal embodiments is against all of patent law.You also disparaged my remark that almost all patent claims are a combination of old elements. But, of course this has been famously said by J. Rich and others.You see this type of refusal on your part to have a meaning debate on patent law and technology dooms you to being a nothing.You answer the question: I want to recite a known element in a patent claim which has 20 well understood solutions. Do I need to be sure to recite all 20 of those solutions?

                5. “The “substance” of your posts appears to be little more than conclusory statements. I’m asking you for you to provide the substance that supports those conclusions.” It is a more than just a little ironic that Malcolm (hmm, that Accuse-others-of that-which-he-does-ploy comes to mind) notes that others’ comments ‘appear… conclusory,’ and that he is asking others to provide substance that supports those conclusions. And yet, look at his posts – absent of any substance, full of the same ‘conclusory’ style he accuses others of, and when asks him to back up his views with legally substantive points, he plays the Vinnie Barbarino game of “Huh, what?,” or launches into insults, or into his spin mode, or his strawman mode (and typically finishes with his favorite accuse-others-of-that-which-he-does).And dare anyone to point out this obvious notion, and you yourself will be the one that is to be watched, because, like everyone knows, you cannot tolerate those going 21 MPH in a 20 MPH zone while others zip buy at 70 MPH.

            2. A critical point being ignored here is that software is equivalent to firmware and is equivalent to hardware.Once this is accepted, a true conversation can take place.

              1. software is equivalent to firmware and is equivalent to hardware.Software isn’t “equivalent” to hardware by any reasonable definition of “equivalent.” That’s just one of the reasons that “software” and “hardware” are used to refer to different things.Once this is accepted, a true conversation can take place.That’s ridiculous. What’s a “true conversation”? Judging from your past comments here, a “true conversation” is one where everyone agrees with everything you say, and nobody says anything that you disagreee with.

                1. facts are optional under the ‘norms’ of the boardPreach it Patent Jeebus! Please work your magic on “the norms of the board” so that only Your Facts are “acknowledged” and all other facts are thrown in the trash where they belong. We know you can do it, Patent Jeebus! Software is equivalent to hardware! You said it. Therefore, it must be so.

                2. LOL – yes, because throwing facts that are inconvenient to your position into the trash is such an intellectually honest thing to do.Why do they belong in the trash? Oh that’s right – because you say so.

                3. How very Carroll of you Malcolm.Except for the fact that you are wrong, well, no that fact is the key driver here.And it is quite the nice spin of yours to attempt to portray this as a “you must agree with me” type of argument. But that is pure fallacy. I happen to be exactly right, so in this instance, yes, if you want to be right too, than you do need to agree with me. But this is not because I said so – it merely is because I am right.And I see you descending to the same fallacy argument that Leopold attempted: trying to exchange “equivalency” and “exactly the same thing.” Try a little intellectual honesty and NOT twist what has been posted.If you can.

                4. the fact that you are wrongPatent Jeebus speaks again! We missed you Patent Jeebus. Please tell everyone again what is right and what is wrong, without any explanations. All that matters is what is written on your magical tablets, sent down from the mountaintop of pure wisdom. Bow down! Software is equivalent to hardware because Patent Jeebus says so and nothing will ever change that fact!

                5. With all due respect, I simply cannot see what level of ‘norm; is met when disrespectful retorts that are religiously offensive are allowed on this blog.Such offensive replies, absent of any substance simply will not change facts. And these are facts not because I say so (again you repeat the fallacy that I have point out to you), they are facts because they are, in fact, facts.

                6. MM, again we have you misbehaving. The question is can a function be converted from software to hardware and vis-a-versa? And, the answer is yes save for a 4 operation cpu. This follows from the Church-Turing Thesis.

        2. “and the antis are coming up with these grand statements “Can you repeat for me a “grand statement”? Was I the first to state one of these grand statements? Because if so, I’m proud. :)

  15. “BSA puts forth the standard “hamper to innovation” argument “If only we could figure out where Patently-O stands on this issue, LOL.

  16. o snap, the link above says that martha stewart is fighting herself a trollhttp://www.washingtonpost.com/…

  17. “#4. Police Intellectual Property Unit Makes First Arrest”Couple that with claims like the ones in Mayo and wallah, the thought-crime police unit.

    1. Nothing like that could ever happen, though, “because you can’t see thoughts.”Or so we were told by some drive-by newbie a couple weeks ago.

      1. When the archives are restored, you can see that that conversation about the ‘seeing thoughts’ did not end in your favor, Malcolm. The map is not the land.Further, your post here using ‘drive-by newbie’ appears to be a type of denigration that objectively falls below a norm for advancing ‘conversation.’ Perhaps you can upgrade your ‘style.’

        1. your post here using ‘drive-by newbie’ appears to be a type of denigrationI’m certainly denigrating the “argument” that the drive-by newbie made, if that’s what you mean. The “argument” makes no sense and ignores the reality that led to the Prometheus decision, in addition to the fact that courts and juries routinely make decisions about what people were (and are) thinking. Everybody does that, in fact, all the time.

          1. My comment made two very clear points and you have managed to CRP on both of them.And the new software (and the moderator) does nothing.Same old same old.The first point is a first example of your vacuous spin. Clearly I was referring to the immediate post (under the new software) and your denigration of the person (as opposed to the person’s argument). You described the person and not the argument as a ‘drive-by newbie.’ There is no objective way to twist that comment into anything but what it is. Your attempted spin only misrepresents what I posted.The second point was about the prior post and the argument itself. That prior post did not end well for you and 6. It was shown (the map is not the land) that the “argument” that “made no sense” and ignores reality was yours and 6′s – not the other posters. Your attempted spin only misrepresents what others have posted.Thus we AGAIN (STILL…, ALWAYS…) have the accuse-others-of-that-which-you-do B$, and poor blogging techniques that have no place in a conversation.Way to prove my point for me, Malcolm.Prof. Crouch – your work is not yet done, and if you want some type of ‘norm,’ well, you have to apply some type of objective consistency, of which to date has been lacking. But it is your blog, and in the end you can do what you want.C’est la vie.

        2. Perhaps you can upgrade your ‘style.’I’m not interested in your opinion about my “style.”. You might want to change your “style”, though, to avoid looking like a “crazy person.” Does that phrase ring a bell? It should.

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