The Landscape of Proposed Patent Law Amendments – A Comparative Look

Guest Post by Professor Jorge L. Contreras

As Dennis Crouch has recently reported here, a plethora of bills has been introduced in Congress this term to address various perceived problems with the patent system and patent litigation in the U.S. The amendments proposed in these bills, and in related administrative and executive proposals, generally seek to address three types of issues: (1) patent enforcement by so-called patent assertion entities (PAEs), (2) unclear or broad claim scope in software and business methods patents, and (3) commitments that patent holders make in the context of standards-essential patents, including FRAND (fair, reasonable and non-discriminatory) licensing commitments.

On November 8, American University Washington College of Law will be hosting a forum to discuss the range of pending legislative and administrative proposals designed to address these issues. In particular, we hope to gain a better understanding of how these proposals could affect current litigation and business practices, whether they will achieve their intended purposes or create unintended effects, who stands to benefit and lose from them, and what the chances are that such changes will be enacted in today's political environment.

In connection with this event, we have produced a non-partisan briefing paper describing each of the proposals made this term in the context of these three areas. Below is a chart that summarizes these proposals, indicating the general area(s) in which each seeks to make modifications to existing law (a detailed discussion of each can be found in the briefing paper):

Summary of Proposed Patent Law Amendments (2013)

 

PAEs

Software and Business Methods

FRAND

Innovation Act (H.R. 3309 – Goodlatte)

Real Party in Interest

Studies

Pleading

Discovery

CBM*

Discovery

Joinder

 

Bankruptcy

Customer Suits

Pleading

Attorneys' Fees

   

Patent Litigation Integrity Act (S. 1612 – Hatch)

Attorneys' Fees

   

SHIELD Act (H.R. 845 – DeFazio/Chaffetz)

Attorneys' Fees

   

Patent Quality Improvement Act (S. 866 – Schumer)

 

CBM*

 

STOP Act (H.R. 2766 – Issa/Chu)

 

CBM*

 

End Anonymous Patents Act (H.R. 2024 – Deutch)

Real Party in Interest

   

Patent Abuse Reduction Act (S. 1013 – Cornyn)

Real Party in Interest

   

Discovery

   

Attorneys' Fees

Joinder

   

Patent Litigation and Innovation Act (H.R. 2639 – Jeffries)

Real Party in Interest

   

Customer Suits

   

Sanctions

Joinder

Discovery

   

White House Fact Sheet (June 4, 2013)

Real Party in Interest

CBM*

ITC Standards

Demand Letter Disclosure

Functional Claiming

 

Attorneys' Fees

   

Customer Suits

   

ITC Standards

   

Legend

Real Party in Interest: Proposals would require entities asserting patents to disclose ultimate parent companies and other related entities (responding to the common complaint that PAEs often "hide" behind shell companies so that the beneficial owners of patents are not known).

Discovery: Limitations on discovery in patent suits.

Joinder: Permits parties having an interest in patents to be joined into infringement suits.

Customer Suits: Limitations on patent infringement suits against end users of off-the-shelf products alleged to be infringing.

Pleading: Attempts to make pleading in patent infringement suits more specific.

Attorneys' Fees: Proposals to require the losing party to pay the prevailing party's fees in patent litigation.

Sanctions: Proposed sanctions for bringing "abusive" patent litigation.

Demand Letter Disclosure: Proposals to have patent demand letters filed publicly.

ITC Standards: Potential modification of ITC standards for issuing exclusion orders in patent cases, generally to be more consistent with the Supreme Court's ruling in e*Bay v. MercExchange (2006).

CBM: Modifications to the PTO's Transitional Program for Covered Business Method Patents.

Studies: Proposed research studies of particular topics.

Functional Claiming: Attempts to address broad "functional" claiming practice in software and business method patents.

Bankruptcy: Extension of bankruptcy law protections for patent licensees to patents that have been transferred to a third party.

 

148 thoughts on “The Landscape of Proposed Patent Law Amendments – A Comparative Look

  1. OK, here’s what seems to be going on here politically. I’ve been talking to staff at the Judiciary Committee and some reporters.HR 3309′s support was quietly put together without it becoming known to potential opponents until the bill was introduced. The Democratic staff and members of the Judiciary committee weren’t told. The initial support came from the American Association of Advertising Agencies, whose members are having problems with some patents related to online advertising (specifically 6,628,314 and 6,771,290 (relates to targeted advertising), 5,251,294 (“Accessing, assembling, and using bodies of information” – rather vague), and 5,930,474 (store locators)) They got the Direct Marketing Association (the junk-mail lobby) on board, and then a list of Internet-related companies (including Google and Facebook, but not Microsoft.) The banking industry has also signed on. (They’re annoyed about that patent on check verification, plus some business method patents.)The “trolling” activity which is bothering the proponents of this seems to be rather small-scale. The number of patents involved seems to be small. The ad agencies complain mostly about getting vague infringement letters with demands in the $25K to $50K range. The other proponents don’t seem to list specific patent problems they have. The original plan was to railroad this through Congress before opposition built. The Judiciary Committee hearing has already been held. David Kappos (former USPTO head) and Cong. John Conyers (senior Democrat, Judiciary Committee) counseled caution. The fast-track plan seems to have been derailed. Now it looks like there will be a second hearing, with more opposition speakers.Opposition is coming from universities (they don’t like the fee-shifting), big industrial companies (3M, Caterpillar, etc.), big pharma, and conservative think tanks strong on property rights. The main opposition lobby is called the Innovation Alliance. (“http://www.innovationalliance….”), which has a campaign site at “http://www.savetheinventor.com”, plus the requisite Facebook and Twitter pages. The message is starting to get through to Congress that HR 3309 is a big change in patent law and probably overkill. Whether that will stop it, or get the bill modified, remains to be seen.So that’s where we are today. John Nagle http://www.animats.com

  2. GSCopyPro v6.0 (RoboCopy Alternative) with Open File AgentGSCopyPro is a single command-linetool (CLI) that can copy, replicate and move files from one folder to another.This folder can be on the same machine/ server or another server elsewhere.What makes GSCopyPro stand out from other competitors is thefact it works on 32-bit as well as 64-bit systems and has no restrictions. It can easily be scheduled to run as a scheduled taskand fully automated. GSCopyPro also comes with an open file agent which cancopy files that are locked/ opened by other processes. This feature issupported in all windows vSCersions from widows XP/ 2003 and later..Go To:>> link to gurusquad.com

  3. 6-4, no en banc for Fresenius v. Baxter (“final” judgment vacated when PTO cancelled claims in a reexam, and the Feds affirm.)O’Malley, Rader and Wallach dissented on the basis that the judgment was final. Newman goes further and states that the reexamination system which she helped create is being abused when the neither the court loser, nor the PTO nor the Federal Circuit is bound by prior Federal Circuit judgments on the same evidence. The Federal Circuit heard the validity issues twice and did not follow its prior decision. In this case, the infringer held up the “final” court verdict for 11 years while it pursued its collateral PTO attack. 11 years!

      1. 6, this case has Supreme Court all over it. I like Newmans position. She was a starry-eyed reformer back in the day, like the people who today brought us the AIA. She saw reexaminations as a way of improving patent quality and cutting down litigation costs. So she backed reexaminations. But today she sees the way they are systematically abused to essentially strip patent owners of their patents by keeping them in the PTO until they financially collapse or their patents are held “invalid” … urging delays in court until they win. Serial reexaminations are today’s sport of kings.As she aptly describes, when court judgments are ignored by the PTO and by the Federal Circuit even when they are Federal Circuit judgments and the evidence and parties are the same, the problems are made worse, not better. Nothing is final.The “majority” opinioned that the AIA confirmed reexaminations. Rather, Congress sought to lessen the abuse by adding 315(b) that prohibits IPRs by sued infringers and their privies after a year. But more is needed in the way of reform such that litigation counts. The substantial new question criteria should also include whether the same or substantially the same issue was decided in court, the Federal Circuit should be required to follow its prior rulings on the same patent and evidence, BRI should be banned, and parties and their privies should be barred by estoppel wherever they litigate validity.

        1. Well that’s the kind of sht that is bound to happen when you make the validity or invalidity of a piece of paper worth millions of dollars. So sorry young Newman. One could counter-argue I suppose that had the federal circuit got it right in the first place the PTO wouldn’t have had to clean up their mess. “But more is needed in the way of reform such that litigation counts. “Meh, I’m good. If your patent is soooo valid then it will pass reexams with ease. “The substantial new question criteria should also include whether the same or substantially the same issue was decided in court, the Federal Circuit should be required to follow its prior rulings on the same patent and evidence, BRI should be banned, and parties and their privies should be barred by estoppel wherever they litigate validity.”Meh. The congress sees things differently as of now. The will of the people and all that.

  4. Can someone please explain why this is a problem:Real Party in Interest: (responding to the common complaint that PAEs often “hide” behind shell companies so that the beneficial owners of patents are not known).Why do the complainers feel then need to know who the beneficial owners are? Does that have a bearing on whether they infringe or not?

    1. The “complainers” are not limited to those accused of infringement, Les. The complainers include members of the public who wish to know how the system is currently working, including exactly who is profiting from the system. That doesn’t seem unreasonable to me, given that the patent is a government-granted benefit, enforced through publicly financed courts.

      1. And what will they do with that information? The government granted benefit was paid for by the release of information that would have otherwise been held as a trade secrets and by the exorbitant fees charged. How many pounds of flesh must the complainers receive?

        1. “and by the exorbitant fees charged”A couple thousand dollars for the right to exclude everyone in merica from doing x is exorbitant? Please.

          1. $12, 600 in maintenance fees alone,$960 in reduced issue fees,couple thousand in basic filing, search and examination feesnot to mention “excess” claim fees, late fees for filing information disclosure statement regarding documents cited in a foreign patent office and RCE fees,are not fairly written off as “a couple thousand dollars”…

            1. “$12, 600 in maintenance fees alone”Um, over the course of like 20 years. And only for ones you want to keep in force. ” late fees for filing information disclosure statement regarding documents cited in a foreign patent office and RCE fees,”Now you’re blaming the office for sht that is beyond our control. We try to keep up front fees low, if you want to complicate your case by making it an international ordeal that’s up to you. The buy-in for a few years of patent protection with the option to extend is absurdly low, with the option for you to make it more expensive if you so choose.

      2. Leopold may personally feel that personal property information and the alienability of property should be freely tracked and broadcasted by the government to make it easier to see if you can get away with infringement.Funny though, he still is among the small group of people who employ extra secrecy with the posting profiles….Nothing like speaking out of two sides of your mouth to lower your credibility….

        1. “Leopold may personally feel that personal property information and the alienability of property should be freely tracked and broadcasted by the government to make it easier to see if you can get away with infringement.”Yes, I think that the alienability of property should be broadcasted by the government. Have you ever tried reading the stuff you post, anon?

    2. “Does that have a bearing on whether they infringe or not?”In an objective analysis (past or present tense)? – No.In a subjective, let’s see if it would be worth our while to do so sense? – Absolutely.Right from the Infringer’s Right’s Handbook (page 327).

  5. “The addition of these three judges answers Alice’s lament that the Federal Circuit is ‘hopelessly fractured.’ The reconstituted court is capable of settling its own internal divisions,” CLS Bank said, adding that the issue “would benefit from further percolation in the Federal Circuit.”There is a quote that will reverberate for years.

    1. Alice should not have been presented as it was.Throw the judges back into their chambers and make them come to a real and meaningful decision.Of course, the real blame here is the Supreme Court who has bullied the lower court by messing with their mandate to bring order to patent law. When the Supreme Court interferes (on non-constitutional grounds), the philosophical battle defeats the purpose of Congress creating the CAFC in the first place.What we have going on here is merely a battle between the branches of the government. Anyone else notice how strident Goodlatte was in his view that Congress has the right to set the tone for the judiciary (up to but possibly only excluding deciding on constitutionality matters)?

      1. Go ask AliceI think she’ll knowWhen logic and proportionHave fallen sloppy deadAnd the white knight is talking backwardsAnd the Red Queen’s “Off with her head!”Remember what the dormouse saidFeed your headFeed your head

        1. You might be happy to read the IEEE’s (you know, the guys actually involved in the art field) amicus brief for Alice at link to ieeeusa.org…I have to laugh at “time-machine” 6 and “English as a second language” Malcolm, as every single argument in the brief was first posted in discussions on this blog by yours truly.Enjoy.

          1. Great post anon. The bizarre thing about this is that reality is being ignored. The question should be is the method we are using fro 101 reflective of reality. It seems to be that at heart of the problem is Benson.Also, interesting that again we hear that the SCOTUS is following their old common law and not the 1952 Patent Act.

          2. I’ve only read their TOC at this point and I find it horrible that the mighty IEEE doesn’t have one lawlyer on board that can help them correctly interpret Diehr. Pity. Really.

          3. “This Court’s decision in Diamond v. Diehr, 450 U.S. 175 (1981) taught that in a § 101 inquiry, each element of an invention is measured against a § 101 standard, that is, whether there is at least one element that is neither “abstract” (purely in the human mind) nor “natural” (as opposed to manmade). Diehr explained that the analysis for the kind of invention eligible under § 101 is “wholly apart” from the analysis for whether the invention or any element is new and differentiated from the prior art.”I agree with them somewhat, though it is quite irrelevant. The inquiry is wholly apart from the separate inquiry of 102/103. However, in order to ensure that the claim does not effectively preempt judicially excepted subject matter, novelty and perhaps even obviousness may sometimes also be involved in the 101 analysis IN ADDITION to being separate inquiries to be carried out after the threshold question is taken care of. “This Court’s reasoning in Mayo is inconsistent with this Court’s reasoning in Diehr. The irreconcilable conflict between the Mayo and Diehr approaches has created confusion in the lower courts. This Court should grant certiorari to determine which approach should control in determining patent-eligible subject matter.”Meh, only when Diehr is interpreted by bad lawyers, and especially when those same lawyers don’t understand the fact pattern of Diehr due to never looking into the matter. “This Court’s decision in Diehr taught that in a § 101 inquiry, each element of a patent claim is measured against a § 101 tandard, that is, whether there is at least one claim element that is not “abstract” (purely in the human mind), or not “natural” (as opposed to manmade). Diehr, 450 U.S. at 185. Diehr explained that the requirements and analysis for the kind of invention eligible under § 101 is “wholly apart” from the requirements and analysis for whether the invention or any element is new and differentiated from the prior art. Diehr, 450 U.S. at 190. Diehr notes that whether the invention or any element is differentiated from the prior art is only relevant under § 102 and § 103.”Now they’re just making sht up wholesale it appears. Diehr said no such thing. “The second approach, which is inconsistent with Diehr, is exemplified by Mayo. Under the Mayo approach, a § 101 analysis begins by looking for a “law of nature.” If a single “law of nature” exists, then the remaining claim elements are reviewed for whether they involve an “inventive concept” as opposed to “well-understood, routine, conventional activity previously engaged in by researchers in the field” (Mayo, 132 S.Ct. at 1294)—that is, the claim components are weighed against the standards of § 102 and § 103.”Which is the law, and which always has been the law, and which was the law in Diehr. “By the same token, strikingly absent from Mayo is any weight given to the “manmade” or nonabstract nature of elements, the factors that are relevant under the Diehr § 101 approach.”Hmmm, I wonder how that could possibly be? Perhaps it’s because in Diehr, there was “something more” aka a novel manner of auto-opening a mold for curing rubber as SPECIFICALLY argued by the patentee and as granted by the USSC? A small factual matter which appears to go unnoticed by a huge majority of patent lawltar ds intent on reading Diehr as horrendously as they possibly can? “In Diehr, the invention centered on the Arrhenius equation, a relationship between temperature and chemical reaction rate that had been known for eighty years.”Um, not according to the USSC and the patent applicant. Perhaps you should try reading Diehr and the Diehr patent sometime. “The Diehr Court concluded that “opening the press,” though old and routine, is not abstract.”And here IEEE’s analysis goes off the rails. The court never said that. At least it wasn’t “old and routine” in the context in which it was being used. If they had said that then I’m sure IEEE and the hordes of lawlyers thinking they said that could produce us a quote and I’d have seen it a million times by now. But of course there is no such quote, because they didn’t say that. And thus, the rest of the analysis done by aforementioned lawyers is in err. “Rather, “opening the press” is language that applies a law of nature or abstract idea to a practical, man-made process.”Mmmmm, I wouldn’t say opening a press applies the abstract idea to a practical man-made process. I might be willing to say that it is the instant application of said abstract idea but it doesn’t apply it. Perhaps the funniest thing about all this is is that the people making the old school Diehr argument are simply making a logical error from the statements made in Diehr. The precise thing that lawyers spend so much time and trouble trying to prevent themselves from making. For example, they see : “The question therefore of whether a particular invention is novel is “wholly apart from whether the invention falls into a category of statutory subject matter” and then go on to logically deduce that the question of whether a particular invention is eligible is wholly apart from whether the invention is novel. Straight-forward logical error brothers. “In contrast, Mayo uses exactly the “dissect and discount the conventional” approach that is disapproved in Diehr.”It wasn’t really disapproved, simple over-application of it is disapproved. Which obviously everyone on both sides of this dispute is in agreement with. The above is simply how it is and It really is that simple. And why people, especially educated people, have such a hard time grasping this is wholly foreign to me. Perhaps it is indoctrination, perhaps it’s just weak lawlyering. But it is a shame that the nation’s foremost group of engineers can’t afford any better lawlyering than that.

            1. “When Diehr filed his original patent application in 1973, the prior art knew the following steps in molding rubber articles:2 inputting into a computer various numerical properties of the rubber batch and the mold, computing a cure time for the molding process using the Arrhenius equation, heating the mold press for the calculated time, and opening the press at the end of the computed cure time.”I feel pretty bad for these guys, it looks like they’re so close to knowing the facts of the Diehr case. Where, I wonder, is the auto-opening? Oh, hmmm, the thing that the USSC relies upon is strangely absent from that statement of what is old in the art. Here is the last step of Diehr:”opening the press automatically when a said comparison indicates completion of curing.”How the sam he ll can people miss the AUTOMATICALLY in the claim? It’s what the supremes were harping on the whole decision. The opening of the press in the prior art was ARGUED to be not automatic by the patent applicant. And this ARGUMENT was accepted by the supremes and relied upon in their decision. Whether or not you, or anyone else happens to agree with the supremes in a. their factual finding as to what was old or b. their subsequent ruling or the basis therefore, you cannot simply read the AUTOMATICALLY out of the claim. Which is all the supremes were trying to say.

            2. I should take a second to note that the stevens dissent was along the lines of determining the automatically opening to be obvious ivo auto bug zappers and other auto-happening things common at the time and thus finding the claim ineligible. The majority said nah, we don’t buy it. And indeed, I wouldn’t buy that either in this instance. The simple reason is that you needed to know a lot of things before you could automate the opening, things which the temperature readings in the preceding steps enabled.Which again are recited here:”constantly determining the temperature (Z) of the mold at a location closely adjacent to the mold cavity in the press during molding,”Likewise not in the prior art cited by the IEEE guys and requiring a 103 just to get that much in to the primary ref.

            3. “The sole difference between the prior art and Diehr’s method was an algorithm (Diehr, 450 U.S. at 179):”Lulz, nope. There’s the automatically opening. “But an algorithm, and repetition of routine measurement and mathematical calculation, is the only difference between Diehr’s invention and the prior art. “Lulz nope. Such poor lawyering. One wonders how these guys would have gone about getting Diehr his patent. Fortunately for Diehr, his attorney actually comprehended his invention.

            4. “II. This Court Should Grant certiorari to Establish the Correct Rule of Law”At least in the end the IEEE comes to the correct conclusion as to what course of action the supremes should adopt in deciding whether or not to take up the case.

      2. You really take that “mandate” supar srsly. Whilst you conveniently forget that the entire creation of the federal circuit was little more than an afterthought.

          1. Well you can discuss my “ignorance” about the history with Judge Pauline Newman sometime since she’s the source I’ll cite.

  6. Curious that the White House “Fact” sheet made its way into the landscape while the supposedly neutral party GAO report is nowhere to be seen.

    1. What were the suggestions made by the GAO report again? Remember the table is of recommendations for amendments.

  7. The Trans-Pacific Partnership (TPP) makes pretty clear what is going on with these proposed changes. The point is to try to find a way to eviscerate patent protection for EE/CS while making it stronger for pharma. This so called functional claiming business is one attempt. Functional claims have a very clear set of solutions that are very well understood by those skilled in the art. Those skilled in the art use these terms of art to describe the sets of solutions.Just think Litigator Lem$ey you are a tool of big pharma. Can you say tool boy? Try to remember that. Not revolutionary thinker. Not scholar. But, unethical tool boy.

    1. Functional claims have a very clear set of solutions that are very well understood by those skilled in the art.Ah yes, that “clear set” of structural solutions that is so “clear” that the skilled artisan is incapable of describing a single member of the set in structural terms. And then there’s the one-way street with respect to the prior art, where all of a sudden the “skilled artisan” turns into a buffoon and those “clear sets of solutions” to a desired function disappear like magic.Devices that receive information and process it and then instruct a second device to do something are ancient. But the PTO seems to believe that if the info processing device is on an old motorcycle and the second device is part of an old motorcycle helmet that somehow it becomes patent worthy all over again. Especially if the instruction is to shove an ad in your face, tell you about some available real estate, or maybe letting you know that someone wants to be your online “friend.” Because “incremental innovation.” Or something.

      1. MM must you soil my posts with your filth.MM’s excrement:>>the skilled artisan is incapable of describing a >>single member of the set in structural terms.Not true. Software has structure. Please go to google scholar and type in “software structure” and note the academic papers. And, the software corresponds to hardware solutions. Equivalent as you know.I think I will ignore the rest of your excrement. Please try to perform your finger movements somewhere else.

        1. Please go to google scholar and type in “software structure” and note the academic papers.LOL. You can google “argumentative structure” and come up with a lot of academic papers, too. So much for that … argument. got another one?the software corresponds to hardware solutionsWhich also need to be described structurallly, of course, and not functionally. Or is just function all the way down?

          1. You have gone and soiled another one of my posts. I am going to smack you in the nose with the newspaper!Actually, the Fed. Cir. has expressly held that functional claims to circuits conveys structure.You know, MM, if you simply worked out one example then you would understand that software/firmware/hardware are equivalent and convey structure. But, then you don’t want to do that do you?

            1. Actually, the Fed. Cir. has expressly held that functional claims to circuits conveys structure.There’s no way they came up with an express holding that general.Citation please.

            2. Look it up yourselfLOL, such a fun game. You claim that something ridiculous exists but you can’t/won’t describe it, I call you on your BS, and then I have to go find the thing that everybody knows doesn’t exist.It’s in the archives, right? I bet it’s filed next to anon’s Supreme Court case from “sometime in the past hundred years” that overrules eBay, and a circuit diagram corresponding to every possible broad functional result. Oh, and a unicorn.

            3. IANAE back up to his mischaracterization tricks again, I see (sigh).The 1908 Supreme Court case was never mentioned in relation to the eBay decision.Last time you trucked out that decision was to conflate the right/remedy nature of patents.Aren’t you tired of just being wrong all the time?

            4. So IANAE’s post was a baseless mischaracterization that should be blocked or expunged because there is no way such CRP is meant to advance any conversation.That’s “so.”

            5. Start with In re Alappat: Alappat admits that claim 15 would read on a general purpose computer programmed to carry out the claimed invention, but argues that this alone also does not justify holding claim 15 unpatentable as directed to nonstatutory subject matter. We agree. We have held that such programming creates a new machine, because a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software. In re Freeman, 573 F.2d 1237, 1247 n.11, 197 USPQ 464, 472 n.11 (CCPA 1978); In re Noll, 545 F.2d 141, 148, 191 USPQ 721,726 (CCPA 1976); In re Prater, 415 F.2d at 1403 n.29, 162 USPQ at 549 n.29.

            6. the Fed. Cir. has expressly held that functional claims to circuits conveys structure.Regardless of the function of those allegedly new “circuits”? What structures are “conveyed” exactly? What’s the structure of the “circuit” that is conveyed by the function “determining when Grandma gets off her motorcycle in a city where her bank doesn’t have a branch so Grandma can get an automatic text message telling her where to find the nearest merchant who offers cash back if she uses her debit card to purchase a candy bar, wherein the candy bar comprises nuts and pieces of dried South American fruit.”

            7. What’s the structure of the “circuit” that is conveyed by the function [...]Don’t confuse the poor guy. Give him a simple function like “recognizing Grandma’s face”. Once you draft a clear functional claim like that, a person skilled in the art instantly knows what circuitry is implied by the functionality. Bye bye, unsolved problem in the field!

            8. Please stop soiling my posts. Since you apparently know information processing so well, why don’t you take a functional claim from an issued patent and work out a circuit for it. Pretty much any 1st year CS/EE student could do that.Or was your point to obscure my post with your excrement?

            9. “Pretty much any 1st year CS/EE student could do that.”REALLY? Because when I was a first year student I was still struggling with all the circuit diagrams etc. You know, learning about inductors and capacitors in AC circuits. I’m pretty sure that it would take me a year at least to “work out” a circuit for the functionality of recognizing grandma’s face from an image.

            10. Now did I say a grandma’s face? Come on now 6, I know you are running with the filth dogs right now, but keep some standards.

            11. Well what “functionality” were you talking about? Pushing an ad in someone’s face after they agreed to see some password protected copyrighted content? Controlling your google self-driving car? Which one? Because frankly, first year me in college couldn’t “work out” a circuit to do any of those things within a year.

            12. Yeah I was looking at that the other day, where they told me that computer processes were abstractions happening in a computer. Lulz.

            13. Keep on going 6 – that ALL engineering was abstractions.Obviously, the word does not mean what you think it means.

            14. “that ALL engineering was abstractions”Mmmm, I missed that part. Perhaps you could quote it for me.

            15. We’ve only discussed it several times now 6.The feigned ignorance bit only makes you look worse (if that was possible).

            16. I thought that we had been discussing about how all engineering involved using the ladders of abstraction, generally to simply decide on what level to “innovate” (according to you anyway), and then in most fields of engineering you go ahead and make yourself an invention, and actual honest to goodness invention in the traditional useful arts? If that wasn’t the case then I’m sorry I must have missed something.

            17. Working at a level of abstraction is what you left out of that quote 6. And, knowing how to work up and down the ladder of abstraction.

            18. What he left out was that this exercise is used in all art fields.He attempted to use it only in the software arts and only because it used the word “abstract.”This has been pointed out to him – more than once.Yet again we have the blight of someone CRPing, ignoring the counterpoint and CRPing again.This is the CRP that really does need to be banned from this site.

            19. It is funny how this word abstract is trying to be used. At the end of the day, what there is is a method for information processing. Benson tried to ban these though the judicial exception that these types of methods are meant for all to use. So, in effect the holding in Benson is that they are not abstract.

            20. I didn’t leave it out at all. You may “work” at a level of abstraction all you like, and when, by way of “working” at a level of abstraction come up with a non-abstract invention and non-abstract way of claiming your invention then you may have a patent. It’s the way dad did it, it’s the way merica does it, and it’s worked out pretty well so far.

            21. Flag away 6 – of course, you should realize that the far greater insult is your posts that are CRP, continuing as they do in ignoring what the ladders of abstraction means, that such applies to ALL engineering and every single patent claim that is a rung above a strict picture claim.

            22. Someone that cares?6, once again, you reveal more than you might think – and yes, because you do not care, the CRP postings of yours continue – no matter what software controls are attempted.Think.(and try to care)

            23. It appraise 6 that his position is meritless.Perhaps you too should let him know, after all, on the topic of the ladders of abstraction, you STILL owe me answers Leopold.

            24. Please stop soiling my posts. You obviously are only interested in obscuring my posts. Please do work through an example yourself. You opine on information processing here everyday, so surely you can take a functional claim from an issued patent and work out a solution and then a circuit that would implement the function. Please put the work into that to give yourself some credibility.

            25. “Actually, the Fed. Cir. has expressly held that functional claims to circuits conveys structure.”So the federal circuit “holding” something which is factually incorrect makes it so? Nah bro, all that means is that you need to present them with facts so that they will go ahead and rule wisely.

            26. Actually 6, it is easy to tell this is not your art field, as the reverse is true: the equivalence is a fact.

            27. Because you keep on asserting that the function “conveys” structure and your rational behind this is that they are “equivalent”. As if their equivalence conveys anything. Though obviously it doesn’t.

            28. The equivalence may well be, but the conveyance is not. Again, equivalence is not a synonym for “conveys”.

        2. Did as you asked:link to scholar.google.com…I see no mention of any specific structure of any of the software discussed in any of those links. I see some metaphorical “structuring” of some of the software having been performed, but you assure me that isn’t what you’re referring to.

      2. “And then there’s the one-way street with respect to the prior art, where all of a sudden the “skilled artisan” turns into a buffoon and those “clear sets of solutions” to a desired function disappear like magic.”Lulz.

    2. Dennis you need a way to turn off replies. A way for a poster to control who can reply to their post. To my mind, this thread illustrates the main problem with this board. There are a core of posters that will obscure issues with troll posts in response to any post that goes against their policy driven reasoning. These replies are just obvious troll posts to make it difficult for the content to get through.

      1. Agreed. As someone who’s trying to do something about this issue, the noise is a distraction. Opposition I can live with.

  8. Perhaps Schumer, et al., should consider funding, to the tune of few hundred million a year, a foundation that would fund 101-based Oppositions/CBM trials conducted by public interest lawyers, with the definition and scope of CBMs broadened to include any patent invalid under 101. This way, the PTO, which appears to continue to issue such patents by the boatload, could be countered by public interest lawyers who would be paid to protect the public.

    1. Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent thereofYou seem to need a reminder as to the actual statutory language. It is very broad — AS IT WAS INTENDED TO BE.

      1. Even though I have been able to bring Ned around in discussions to admit that software is patent eligible under 101 and that Business Methods are patent eligible under 101 – each at a category level, backsliding is ever present because of Ned’s third party interests.

          1. Ned – your comment was directly as to software being patent eligible under 101. It had nothing to do with patentability or validity.You do recognize that there is a critical difference between patent eligibility and patentability, right?

            1. Sorry Ned, the conversation was on 101 and patent eligibility – not patentability.Why would you be talking about patentability under 101, anyway?And unfortunately, the exchange occurred just prior to the switchover to the new software and the archives have not yet been restored.

        1. “when do you … get to interpret statutes?”You don’t seem to have a problem throwing your hat into the ring. I am an attorney. It is my JOB to understand (e.g., interpret) the law.BTW — it would be one of my fondest wishes to have SCOTUS interpret 35 USC 101 as it was actually written and not to add requirements not found within the actual language of the statute. The job of SCOTUS is to interpret statutory law — not rewrite it.If somebody wants certain technology exempt from the patent laws, then they should go to Congress — not SCOTUS.

          1. Patent Guru, you claim to be an attorney but seem to have no idea what that means. An attorney would never advise his clients that the law is they way HE personally reads the statutes. He would advise them on how the courts interpret the statutes.

            1. Ned – you play the same game in the way that you attempt to interpret case law.How many times have we discussed case law with you holding the short end of the stick?(the number matches the times we have discussed case law)

            2. An attorney would never advise his clients that the law is they way HE personally reads the statutesInteresting. My view of the law is what is being currently practiced at the USPTO and in most Federal Courts. You seem to be the one advocating for an interpretation of the law that is inconsistent with how it is currently being interpreted.

            3. Patent Guru, your version? The one that ignores Supreme Court precedent is the version practiced at the PTO? I see the war goes on.

            4. Ned,Is that like the Supreme Court “precedent” that Judge Rich correctly ignored in the dicta of Benson that you pillory him for? You know the person you attempt to belittle, the man who helped write the law? Who knew the law far better than the Supremes and their more than evident fingers in the wax nose 101 philosophical implicit views?

            5. Also Ned,I suggest that you read the IEEE brief. The very first comments about the lack of congruity in the Prometheus case is well presented. This is a point I have begged those who loved that case to explain in their best (or even moderate) English as a first language, only to see them fumble aimlessly in attempting to square the Prometheus case with the case most on point, the case that Prometheus itself wasn’t changing – and yet cannot be squared.The Supreme Court has some explaining to do. Let’s hope that this time they try to present a cogent and cohesive view.

            6. The one that ignores Supreme Court precedent is the version practiced at the PTO?Have you ever thought that the USPTO may know more about SCOTUS precedent than you when it comes to patent law?

            7. “Have you ever thought that the USPTO may know more about SCOTUS precedent than you when it comes to patent law?”Since I know those people, and see the confuzzled looks upon their face when they read decisions and make pronouncements I think Ned’s safe.

            8. The PTO I refer to has yet to repeal Rule 56 despite Therasense. That is the PTO you think follows the law.

            9. Indeed, I’m as curious as anon is here. That rule was lawfully passed, I don’t even know if the courts can “overrule” an administrative rule lawfully made. An interesting academic question.

            10. The CAFC “overruled” (if that’s the term) the CFR section that used to state the Abstract cannot be used to interpret the claims. A court can easily overturn PTO rules.

            11. Law? Therasense is the law. Rule 56 states there is a “duty” of disclosure (providing a list of things to disclose) when there is no such “duty.” There is a duty not to lie to the PTO about material issues that are defined by the courts. Rule 56 is plainly ultra vires.

            12. Again Ned, what is the law that Rule 56 breaks?you still have not explained how an agency rule plainly within the realm of applicant behavior that falls under non-substantive rule making power of the Office breaks the law.Nothing about Rule 56 changes, lessens or does away with the law that comes from Therasense.So please, take a moment and actually explain yourself.

            13. Anon, let me ask you whether a patent agent who willfully fails to disclose a non material item per Therasense may nevertheless be disciplined per Rule 56? When you have been accused, anon, but found innocent by the Feds in court, what is your defense when the Commish tries to disbar you?

          2. “It is my JOB to understand (e.g., interpret) the law.”Excepting of course where the USSC has already done that work for you. In which case, it is your job as an officer of the court, to understand how they have so interpreted it.

            1. it is your job as an officer of the court, to understand how they have so interpreted Since you haven’t gone to law school, let me explain something about case law to you … it applies to the facts at issue. For different fact patterns, you have to determine what one (or combinations) of the myriad of different (and oftentimes conflict) Federal Circuit and SCOTUS precedent to apply.If the practice of law was simple and the case law easy to apply, even you could do it. Alas, it is not so you cannot.

            2. “For different fact patterns, you have to determine what one (or combinations) of the myriad of different (and oftentimes conflict) Federal Circuit and SCOTUS precedent to apply.”We’re talking about interpretatin’ as per your own having brought it up. W’re not discussing applying this or that differing caselaw. Try to stay on topic, I know it’s hard for you. “If the practice of law was simple and the case law easy to apply, even you could do it.”I already do it better than you. Lulz.

            3. We’re talking about interpretatin’ as per your own having brought it up. W’re not discussing applying this or that differing caselaw.What do you think interpretation of case (or statutory) law involves? No case stands in isolation. To understand one case, you need to understand what the other cases are also saying.

            4. “What do you think interpretation of case (or statutory) law involves?”In this instance it involves you simply reading what they’ve written time after tiresome time is the correct interpretation of the law. And that’s all. “No case stands in isolation. “Yeah I quite agree. In this particular instance all the cases are unanimous and point directly to an interpretation that you’re discarding out of hand. An interpretation that you know full well and comprehend just fine. “To understand one case, you need to understand what the other cases are also saying.”I agree, and when they’re all unanimous then your job is to simply read what they’ve all declared unanimously.

          3. PG, I almost agree with you, except for one tiny thing: how can it be said that the Supreme Court “interpreted” 101 to exclude abstract ideas when the Supreme Court cannot define what “abstract” means, except by other undefinable surrogate tautologies? The abstract idea exclusion is an “interpretation” in the same way that a Druidic priest reading goat entrails is an interpretation.

    2. You mean 103. Because that’s the issue that’s really driving this “bad patents” talk. It’s not about 101, but about overly broad claims that got allowed 15 years ago.

      1. PA, I think there are a lot of public interest types who comment on issued software and business method patents from a prior art point of view. But that requires proof of facts and credible evidence.I think the whole point of CBM is to get rid of patents that are not eligible under 101. This issue can be handled as a matter of law based on the claims themselves and without construction — the kind of claims that can be subject to dismissal in court based only on the pleadings.If the patent is “technological,” then CBM does not apply. This is just another clue that the whole point here is get rid of patents that were issued after State Street Bank and before Bilski, and which the PTO continues to issue as if State Street Bank were still good law.

        1. Ned,You do realize that in the US we do not have a technological arts test and that the Useful Arts is broader than ‘technical,’ right?You also realize that Prof. Crouch had a guest post here that showed that business method patents have been granted by the USPTO through out its history (well before State Street), right?Of course you do – as I have reminded you so repeatedly.Let’s see a little intellectual honesty and have you incorporate these well known and established facts into your discussion, please.

  9. Why don’t we add one — that estoppels apply to every member of a joint defense agreement/cabal such that members cannot bring serial DJ actions, IPRs, reexaminations, and the like, and that the a patentee can join them all.

  10. The Washington DC – favor factory up and running on all cylinders. Thank goodness we can get by-partisan agreement that big business can continue to sandbag the innovative nimble challengers. Google is a national treasure.

    1. More nimble than a speeding bullet, more innovative than a fortune 500, and able to draft long functional claims in a single sentence! It’s… dum dum dah dah… the Innovative Nimble Challengers!

    1. Good prposals all. Just send em over to comrade O.What I think many people lose track of is that Congress will milk lobbyists/donors out of 5-6 years worth of donations before they finalize anything. Moreover, anything coming out of Congress will be much watered down than the original bills.Congress introduces bills (i) because they have to (e.g., the budget); (ii) to satisfy constituencies (patent reform has a very small constituency); (iii) to address major issues (patent reform is not); and (iv) to fund their next election campaign. Patent reform falls under (iv). These bills will die in committee until all the players pay their proper tribute to Congress. Don’t expect this to happen anytime soon.

        1. Those $$$ were already gathered for the AIA bill, which took about 4 years to pass after being introduced (with many key provisions not being implemented until 18 months afterwards). Given past history, it would not be unreasonable to guess that any new “reform” bill won’t get passed until around 2015 or 2016. Again, if the AIA is any indication, whatever gets introduced now will be substantially watered down by the time it gets passed.

      1. I would add (v) to address issues that will become major in short order if they do nothing. Patent reform is shaping up to be just that. Though I hope very much that iv is correct as well.

  11. “Functional Claiming: Attempts to address broad “functional” claiming practice in software and business method patents.”I opposed these proposed legislative changes. The current laws and rules are adequate.

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