Patent Types: Method, Non-Method, or Both

By Dennis Crouch

In reply to a prior post, one comment asked about the whether US patents tend to have claims directed to both an apparatus and to a method or instead are those types of claims separated out into separate patents. To answer that question, I parsed through a set of recently issued utility patents – looking only at the claim preambles to see whether the claim could be classified as either a “method” claim or a “non-method” claim. My search pattern was simplistic. If the preamble included the word “method” or “process” then I defined the claim as a method claim. I then compared the independent claims within each patent to see whether the patent includes only method claims, only non-method claims, or both types. The results are as follows: 17% included only method claims; 51% include only non-method claims; and 32% include both method and non-method claims. I ran a time series and found that these ratios have changed only slightly over the past decade with the trend moving toward more combined patents and fewer method-only patents

As part of this little project, I also pulled up the preambles themselves. Of the four million independent claims in the data set, there were more than two million different preambles. The most common are listed below:

    

Rank

Preamble

Count

1

A method

111124

2

An apparatus

64954

3

A system

57933

4

A semiconductor device

25371

5

An image forming apparatus

15317

6

A device

13064

7

A computer program product

12947

8

A computer system

10564

9

A composition

9140

10

An integrated circuit

8469

11

A computer-implemented method

8017

12

A display device

8001

13

A electronic device

7843

14

An article

5789

15

An article of manufacture

5660

16

A liquid crystal display device

5572

17

A semiconductor memory device

5440

18

A memory device

5340

19

A pharmaceutical composition

5260

20

A method of manufacturing a semiconductor device

5156

21

An image processing apparatus

4978

22

A circuit

4302

23

A communication system

3687

24

A method for manufacturing a semiconductor device

3565

25

A vehicle

3278

89 thoughts on “Patent Types: Method, Non-Method, or Both

  1. Oops! No, sorry, it’s the number two slot after slot after method claims. There’s one more “1” in that number than I realised.

    1. This system doesn’t nest comments correctly, but anyway, the number of patents with claims including “computer readable medium” over that period is only slightly less than the number that begin with “A method”, so when you see “A computer program product” back in 7th place, you definitely have to take that with a pinch of salt.

      1. …so if we rechart the data showing each distinct category of patent eligibility and then show a slice of pie for the those patent claims combining method claims and others, the combined slice of pie is likely to be the largest slice…

        ..right?

        You have to love data manipulation – so many fun things can be done.

  2. Just in case anyone needed more reason to celebrate the miserable pounding that ABL was just given by the Federal Circuit, let’s flash back to a few years ago and recall some truly revolting behavior by ABL:

    link to natap.org

    Luxembourg’s Advanced Biological Laboratories last week settled a defamation lawsuit against a Stanford University professor who claimed that ABL was discouraging physicians from freely using his online database for HIV drug resistance by enforcing its own bioinformatics patents.

    The agreement comes approximately three months after ABL and Stanford reached their own settlement in the lawsuit, which ABL filed in December against both the university and the professor, Robert Shafer. In the suit, ABL accused Shafer and Stanford of defamation and of breaching a patent immunity contract Stanford and ABL had previously inked regarding the HIV database….

    In addition, Shafer said that he was also “disappointed for a second time that Stanford settled with ABL independently of me. In some ways, Stanford is bankrolling ABL’s continued efforts against me.” Shafer made these comments earlier this month, when his negotiations with ABL were ongoing, but he again stood by his quotes this week.

    Shafer’s disappointment with his employer notwithstanding, last week, under orders from the district court in which the suit was originally filed, ABL and Shafer finally negotiated their own settlement.

    Under the terms of the settlement, ABL agreed to dismiss its lawsuit against Shafer, in exchange for Shafer removing from the HarmfulPatents.org site certain language that suggested ABL’s patents were undeserved and obvious, and that users of the HIVdb site should be concerned about restrictions that ABL might place on the use of the site.

    As Prof. Shafer recognizes, the idea that a junk patent can become less junky because some chickensh*t ignoramus chooses to license it is one of the most glaring flaws in the US patent system.

    I’d put that judicially created horsehockey (licensing as a “secondary factor to support non-obviousness) at the top of the list for Congress or the Supreme Court to blot out forever.

  3. I’d be very interested to learn of trends that show rejections made by the office where claims newly added during prosecution are not examined as a result of “election by original presentation”. I’d be interested for two reasons, one, it’s been difficult to argue and two, it seems to be happening more and more.

  4. I’m surprised that “A nontransitory computer readable medium” didn’t make the top 25.

    1. It’s probably due to small variations in language used in Beauregard claims. For example, older ones won’t say non-transitory (or even nontransitory). Some may even say “computer executable medium” or something else.

      1. Took a while to run on the public USPTO website, but it tells me there have been 97,207 patents since 2005 with “computer readable medium” in the claims. That’s the number one slot, and by a country mile. The query I used is ‘isd>2005 and aclm/”computer readable medium”‘.

  5. OT, but Hal Wegner reports:

    WildTangent Lives: Undecided is the petition in WildTangent, Inc. v. Ultramercial, LLC, Supreme Court No. 13 255 , opinion below sub nom Ultramercial, LLC v. WildTangent, Inc., 722 F.3d 1335 (Fed. Cir. 2013)(Rader, C.J.), previous proceedings, WildTangent, Inc. v. Ultramercial, LLC, 132 S.Ct. 2431 (2012)(GVR vacating panel opinion, Ultramercial, LLC v. WildTangent, Inc., 657 F.3d 1323 (Fed. Cir. 2011)(Rader, C.J.)), which revisits software patent-eligibility under 35 USC § 101.

    Speculation is that the case is being held until after a merits decision in Top Ten No. (3) Alice v. CLS Bank which is set for argument March 31, 2014; a merits decision is expected in late May or June 2014, whereupon consideration will once again be given to the petition in WildTangent.

    (note, the January requested brief is publicly available – thanks to Scotusblog – at link to sblog.s3.amazonaws.com )

      1. Alright anon after having read through the briefs all I see is Ultra qqin for a return to the DC after the federal circuit concocted a nonsensical “construction” that reads a bunch of limitations into the claim from the spec and the reply brief noting that such a construction is entirely uncalled for an unreasonable even under the most generous reading of the claim in favor of the patentee. There isn’t much to say, I could care less whether the case goes back to the DC to die, or if it dies at the USSC. It’ll die one way or tother so who cares?

        1. Your under appreciation of the issues presented and discussed was not unexpected 6, given your general lack of understanding of the law.

          But thanks for taking a look anyway.

          1. Well you’re right that there are other issues, procedure and whatnot, but those don’t really pertain to me all that much so I don’t really want to get far into them. I don’t give people preposterous constructions as a matter of procedure and I don’t have to then judge a claim upon such a preposterous construction either so I’m not ever going to be judging a claim like this just as nobody at the office should. I also don’t have to worry about keeping my claims valid or invalidating some claims on a motion to dismiss so all that stuff that pertains to that simply doesn’t matter much to me as I’m sure it does to others.

            But in any event, yw.

    1. anon, Taranto, Lourie and Dyk held an “expert system” that only recited a computer “functionally,” i.e., no specific new hardware, was invalid under 101 as preempting knowledge.

      Ultramercial was distinguished.

      “Ultramercial, Inc.v. Hulu, LLC, 722 F.3d 1335 (Fed. Cir. 2013), reversed an
      invalidation on a motion to dismiss, but the process claimed there was materially different from the one at issue here. Although the parties did not dispute the involvement of an “abstract idea”—getting a kind of
      confirmation that a viewer has watched advertising as a precondition to sending the viewer desired programming— the process at issue in Ultramercial did not involve “mere mental steps.” See 722 F.3d at 1349 n.2. And the claims involved a recitation of specifics of computer networks
      beyond what the present case involves. See id. at 1350.”

      See, SMARTGENE, INC. v. ADVANCED BIOLOGICAL LAB
      link to cafc.uscourts.gov at *10.

      1. Smartgene is a shameful decision. The logic: (1) what the computer is doing can be done by a human mind, ergo (2) the computer is manipulating abstract concept and is per se ineligible under 101.

        So, a computer that can perform Laurie’s job would be ineligible under 101. Right Laurie?

        1. So, a computer that can perform Laurie’s job would be ineligible under 101. Right Laurie?

          If that’s all the claim recited, then yes, of course it would.

          1. If that’s all the claim recited, then yes, of course it would.

            LOL – under what prong of 101… lack of utility?

            (it surely would not be due to not fitting into one of the statutory categories)

            1. it surely would not be due to not fitting into one of the statutory categories

              Like the statutory category of mental processes (<–sarcasm). Where what is added to the ineligible subject matter is insufficient to convert the ineligible subject matter into an eligible invention? (<–not sarcasm).

              You should read the ABL v. SmartGene case and ask yourself: "Why do the arguments against these junk claims sound so familiar?"

            2. The key is directly on page 9 of the decision, coupled with the (rather poor advocacy) as noted on page 7.

              In other words – you are blowing the decision WAY out of proportion.

              First, page 9: “Our ruling is limited to the circumstances presented here, in which everystep is a familiar part of the conscious process that doctors can and do perform in their heads” (emphasis added).

              Note that nothing here actually says that software or actual computer claims have been ruled out under 101.

              Then, page 7: “We view the court’s ruling as essentially one that ABL forfeited any argument that any patent claims here are to be treated differently from claim 1 of the ‘786 patent” (said treatment as indicated on page 9). In other words, the actual viable and differentiating arguments simply were not before the Smartgene court. The court is expressly NOT saying that computers do think – rather, they are saying that the claim denied is a claim to actual thinking. The express limitation of what this ruling can be applied to needs to be understood.

              Maybe you should read the decision too.

            3. The court is expressly NOT saying that computers do think – rather, they are saying that the claim denied is a claim to actual thinking. The express limitation of what this ruling can be applied to needs to be understood.

              The “claim denied” includes “a computer device” in every step, and I copied verbatim many of the court’s “express statements”. You should read them.

              nothing here actually says that software or actual computer claims have been ruled out under 101

              What a huge relief that must be for someone like you who would deny the nose on your face if it meant that you could continue to obtain junky computer-implemented patents!

              Please define a “software claim” and an “actual computer claim” and tell us how such claims are meaningfully different from the claims that were tanked in this case.

            4. Malcolm,

              I have given you the keys to the limits of the case.

              If you had any legal training then you would recognize what those limits mean in the ongoing debate. You would not attempt to dissemble and make the case stand for something that it just does not.

              Even on mere blogs you should not attempt to say things that would be sanctioned in a court.

              You knowing this won’t stop you, just as you knowing what the controlling law actually is does not stop you. And you can LOL all you want at the evisceration of your credibility when you continually post your twisted views in your maniacal pursuit of your agenda. But until you stop the spin and accept reality as it is and base your views on that bedrock, it is excessively easy to dismantle your posts by referring to reality.

              Yes that obviously makes you sad. Just like it appears that you are so, so thoroughly, in working in a profession that creates and preserves patent rights that you so evidently despise.

        2. Night, what do you think of this:

          1. Apparatus comprising:

          contents of Grey’s anatomy stored in a computer database by topic; and

          a computer display connected to the database for displaying a topic from said contents in response to user input that contains an indication of said topic?

          Now consider that books are becoming obsolete and are being replaced by electronic versions. Such a claim would be very valuable and because it would wholly preempt the contents of Grey’s anatomy in any computer useful form. The storage of information in databases accessed by topic is notoriously old, and that is the point, I think. The result is that the patent monopolizes information.

          Why should we allows such claims?

          1. Ned: The storage of information in databases accessed by topic is notoriously old,

            Indeed. It predates computers, just like most of the “new” information processing “functions” that are tacked onto “computer” claims and rubber stamped by the PTO (as were ABL’s junk claims) which plays patty-cake with its softie woftie applicants and pretends that everyone was born yesterday whenever the word “computer” shows up in a claim.

            Old computers receive, store, process and transmit information. From the “perspective” of a computer, there is no such as “non-obvious information” just as there is no “non-0bvious” number of pebbles that can be put into a generically described old dumptruck. Likewise, there are no useful, describable information processing functions (aka “algorithms”) that a computer can not be programmed to carry out. By allowing computers to be claimed functionally all that is being achieved is the ability of wealthy people who can afford access to the Patent Casino to block the ability of skilled people to use computers as they were intended to be used, i.e., to program them to perform data processing operations.

            These are baseline considerations that need to be digested and adopted by the USPTO. The examination of every computer-implemented claim should begin with language that sets forth these foundational facts about the fact that computers are old and well-known machines capable of processing any kind of information that they are programmed to process.

            1. capable of

              Programmed to

              Well, no duh – if you program the machine, then you have changed the machine, and you no longer have the “old and well-known machine.” See Alappat

              That you try to weave this as something that is not patent eligible is sheer sophistry – sheer dissembling.

              But we both already knew that, didn’t we?

            2. anon: if you program the machine, then you have changed the machine

              LOL. And what if you tell someone to program the machine? Does telling a person you want a “new machine” change an “old machine” into an “new machine”?

              When is this “new machine” really “new” and not just a dream that you have about what would be fun to threaten people with (should they actually try to make something that has the function of your imaginary “new machine”)? Please enlighten everyone. I want a faster computer with less ads that I can watch the SuperBowl on while I eat pretzels that I purchased using an online shopping cart. Can I haz patent now?

            3. When is this “new machine” really “new” and not just a dream

              I did not stutter: When you program the machine, then you have changed the machine, and you no longer have the “old and well-known machine.”

              See Alappat

              What part of the law and my answer are you having trouble understanding?

              Please try to be intellectually honest and picture yourself answering this in court.

            4. anon: When you program the machine, then you have changed the machine, and you no longer have the “old and well-known machine.”

              Right. What happens before you program the old machine, i.e., when you know only what the old machine is supposed to do after it’s been programmed? Is it a new machine at that moment? That’s what you seem to be suggesting. Please confirm.

              Let’s say I come to you and say “I want a computer that can take a picture of a person, compare that picture to a database of pictures and corresponding ads, and then present an appropriate ad to that person based on the picture and the last ten search terms entered by that person.”

              Did I just invent a new machine? If so, what’s the structure of that new machine and how does the structure differ from old machines?

              Let’s be more specific and say that the ad includes copyrighted content. Is that another new machine? How does the structure differ from the first one?

              Let’s be more specific and say that the copyrighted content includes content related to Chinese hamsters. Is that another new machine? How does the structure differ from the previous machine?

              Let’s be more specific and say that the search terms include the word “price”. Is that another new machine? How does its structure differ from the previous machine?

              Let’s be more specific and say that the search terms include the words “price” and a date, wherein the date is sometime within one or two years of the date that the search term is entered. And the Chinese hamster is a long-haired hamster. Is that another new machine? How does its structure differ from the previous machine?

              Whew! That’s a lot of “inventing” I just did. So many new machines!! Can I haz patent now?

            5. Malcolm states “That’s what you seem to be suggesting. Please confirm.

              Such a pretty strawman. Try again. This time try to remember what constructive reduction to practice is, and what would infringe against that constructive practice simply would not be the unchanged ‘oldbox.’

              But you already knew that, didn’t you? So why the continued dissembling on this point? Do you really think your kicking up dust hides the underlying law and facts that apply?

              Can I haz intellectual honesty from you yet?

            6. what would infringe against that constructive practice

              LOL! My, how the goalpost does move.

              So when does the “contructive reduction to practice” of that new machine occur? The moment I write down the function of the new machine?

              Let’s say I come to you and say “I want a computer that can take a picture of a person, compare that picture to a database of pictures and corresponding ads, and then present an appropriate ad to that person based on the picture and the last ten search terms entered by that person.”

              Did I just constructively reduce that machine to practice? If so, what’s the structure of that new machine and how does the structure differ from old machines? Surely the difference must be discernable if I’ve “constructively reduced the machine to practice.”

              I’m guessing you’re just going to keep digging and moving the goalposts around rather than ever attempting to address any of these issues. Maybe you’ll mumble something about “controlling law” or “anthromporophication” or the “Grand Hall experiment” as if any of those things are responsive. And maybe you’ll have a few insults to throw in as well. LOL! Go ahead. Surprise everyone, TB.

        3. The logic: (1) what the computer is doing can be done by a human mind, ergo (2) the computer is manipulating abstract concept and is per se ineligible under 101.

          If the claim isn’t reciting any new structure for this “new computer” than the logic is very reasonable. The term “do it on a computer” doesn’t change the fact that the “invention” is nothing more than data massage, a quintessential example of abstraction if there ever was one. “Determine if this information is X and output Y”. That’s not technology and granting patens on that kind of garbage promotes nothing except grifting by would-be abusers of the patent system.

          Your li’l buddy always likes to scream “anthrompormonification!!!!” and “computers don’t think” as if that somehow constitutes an argument. The fact is that if you are claiming a “new computer” by reciting old structure and a “new” method of processing information using generic terms that apply to any information processing methods (e.g., “receive information,” “determine something about said information” etc), then it’s the claim drafter (and not the judges) who are leading the way by pretending that “computers think”.

          Lastly, the claims in Ultramercial were/are pure junk, regardless of how they are tanked.

          1. as if that somehow constitutes an argument

            It does. The argument destroys the notion of employing the mental steps doctrine to something that in itself does not have mental steps.

            Try to keep up.

            1. The argument destroys the notion of employing the mental steps doctrine to something that in itself does not have mental steps.

              Tell it to ABL. Oh wait: you already did and they got their xss handed back to them in a short, tight decision that nobody except for a handful of rich whiny crybabies will ever question or complain about.

              Welcome to the future, son. Where you going to grift next?

            2. the mental steps doctrine

              Please tell everyone your understanding of the “mental steps doctrine”, give an example of a situation in which that doctrine applies, and explain to everyone why you believe the doctrine was created.

              Then tell everyone whether “determining whether information X is in a database” is a mental step or not. If it’s not, tell everyone the non-mental structure used to make the comparison. If you can’t do that, then please provide a single example of a circumstance in which “determining whether information X is in a database” is patentable over “determining whether information Y is in a database”, and why.

              Thanks! It’s always great to hear from deep thinkers like you about what appears to be your favorite subject. I’m sure you have great answers for these questions. I can hardly wait!

            3. Please tell everyone your understanding of the ‘mental steps doctrine’

              From the guy that actually posted that machines really do think…

              There goes another boatload of irony meters.

          2. Malcolm once again retreats to his vapid script of WHATEVER with “regardless of how they are tanked.

            Malcolm, for those of us in the real world it very much matters that law is applied correctly. When you post as you do you reveal the animus and LACK of touch with law and reality. I am amazed that you have not yet figured out that such statements work against you.

      2. Thanks Ned – I will have to look at the new decision.

        But before that, my questions to you on the Nazomi case remain unanswered.

        Do you understand the logic that the court is using in the Nazomi case?

        1. anon, as I said before, I do not understand exactly what hardware Nazomi intended to claim. Perhaps this is a lesson that we should not use “to” if we really intend “configured to.” The use of the “to” in the claim seem to require all the functionality “to” actually execute Jazelle instructions, when what the patent attorney intended to claim was only the special-purpose hardware that enabled the software to operate.

          I will have to personally look at the patent to fully understand why Nazomi did not prevail.

          1. As I asked before, do you understand the logic the court is using?

            You do not have to understand ‘the hardware’ to answer the actual question that I am trying to hard to have you answer.

            Your non-answer here is a typical dodge and weave.

            Why not just answer the question?

            1. Your non-answer here is a typical dodge and weave.

              Your nurse called, anon. They took a good look at your straitjacket, like you asked them to, and they don’t see any reason to “loosen it up a bit” as you suggested.

      3. From the SmartGene decision:

        The district court correctly held that the claim 1 method falls outside the eligibility standards of section 101 as that provision has been construed. This conclusion follows from CyberSource Corp. v. Retail Decisions, Inc.,where, based on earlier precedents, this court held that
        section 101 did not embrace a process defined simply as using a computer to perform a series of mental steps that people, aware of each step, can and regularly do perform in their heads. 654 F.3d 1366, 1373 (Fed. Cir. 2011); see also In re Grams, 888 F.2d 835, 840-41 (Fed. Cir. 1989); In re Meyer, 688 F.2d 789, 794-95 (C.C.P.A. 1982). As CyberSource explains, those precedents rest on Supreme Court decisions indicating that section 101 covers neither “mental processes”—associated with or as part of a category of “abstract ideas”—nor processes that merely invoke a computer and its basic functionality for implementing
        such mental processes, without specifying even arguably new physical components or specifying processes defined other than by the mentally performable steps. See Gottschalk v. Benson, 409 U.S. 63, 67-68 (1972); Parker v. Flook, 437 U.S. 584, 589 (1978). …..

        Mayo demanded that, when a claim involves an abstract idea (or, in Mayo itself, a law of nature), eligibility under section 101 requires that the claim involve “enough” else—applying the idea in the realm of tangible physical objects (for product claims) or physical actions (for process claims)—that is beyond “well-understood, routine, conventional activity.” 132 S. Ct. at 1294, 1298, 1299. The claim here does not do so. It calls on a computer to do nothing that is even arguably an advance in
        physical implementations of routine mental informationcomparison
        and rule-application processes.

        There’s a bit more to the Mayo discussion. It’s all good.

        I did note one intereting bit of trivia about this case. Look at who argued the case for ABL (the patentee and the loser here; SmartGene sought a DJ). Why, it’s one of those self-proclaimed “101 experts” who derided Prometheus v. Mayo (a case that will never, ever be overturned) as “not even wrong.” No doubt we’ll all find out soon enough why the District Court and the Federal Circuit got everything wrong.

        The claims at issue in this case, by the way, really do have to be seen to be believed. They are not unusual. But they the sort of ridiculously junk that patent attorneys should be ashamed to file, much less try to enforce against someone else.

        1. It calls on a computer to do nothing that is even arguably an advance in physical implementations of routine mental informationcomparison and rule-application processes.

          Also very true of that junk claim that we were discussing a few backs about an “automatic” method of troubleshooting an ad-targeting program.

            1. So much for stare decisis and one panel observing the rule of law

              Somebody call the Founders! Get Jefferson on the line immediately! The Republic is collapsing because some crap “tech” company got its junk claims flushed down the toilet and anon doesn’t understand why.

        2. MM, “did not embrace a process defined simply as using a computer to perform a series of mental steps that people, aware of each step, can and regularly do perform in their heads.”

          Anyone that knows anything about cognitive psychology and/or information processing knows that this statement is absurd. It is coming from a medieval thinker.

      4. Ok, the very first line in Smartgene is “Note: This disposition is nonprecedential.

        Now boys and girls who is willing to tell me what this means in relation to prior panel decisions that speak to a different rule of law (and that are precedential)?

        Ned, do you want to take a first crack?

      5. Yes Ned – now that I have read Smartgene, it is obvious how the panel danced around the issue and removed any semblance of computers or software for the issue that they actually decided (see my post herein).

        This non-precedential case adds nothing of note to the ongoing debate.

          1. I know right? Good decision. At least progress is being made. What anon should be able to glean from smartgene is that the cybersource ruling is here to stay and will be more than a one-off.

            1. 6,

              You do realize that none of this is “here to stay” given Alice, right?

              And yes, the bundle of hot mess most definitely include cybersource, so no, you are not correct (again).

              Have you ever been correct on this subject? Can you point out a specific instance? Seriously – I do not recall even a single instance where you have been correct on the subject of the software and computer arts. Your belief system is so wack that you cannot get the first principles of either law or fact correct.

              Have you checked out the Ultramercial links I provided? Care to try to get something right on that case?

            2. “You do realize that none of this is “here to stay” given Alice, right?”

              What about alice? All that is going to do is drive another nail in the coffin.

              “Have you ever been correct on this subject? Can you point out a specific instance?”

              Diehr, Mayo/Prom, Alice (below), Bilski, Wildtangent, how long of a list would you like?

              “I do not recall even a single instance where you have been correct on the subject of the software and computer arts. ”

              Oh, you mean just softie waftie cases? Couple of those above, and any other case that happens to come down the pipeline that’s blatantly nothing more than an abstraction dressed up as a computer/program. I can keep a running tally if you’d like. Point one out you’d like me to determine and I’ll hook ya right up.

              “Have you checked out the Ultramercial links I provided? Care to try to get something right on that case?”

              No I haven’t checked them out I don’t think, when did you provide them? I may have. Doesn’t really matter, Ultramercial is going downs brosef.

      6. The biggest problem with Smartgene is that the computer is processing information in a different way than people do. Full stop. Laurie is trying to extend Prometheus beyond its holding. Laurie is completely ignorant of information processing and shameful human being. He does not even understand the Church-Turing Thesis which renders his paper and pencil arguments absurd. Please retire Laurie. In more moral times you would be impeached.

        Laurie (the small minded) reasoning would mean that anything a person can would be ineligible for patentability. So, for example, a back hoe would and should be ineligible for patentability under Laurie’s reasoning as it is only doing what people can do.

        Shameful. Shameful. Shameful. A machine that is processing information and doing what a person can do. A machine that is projected to replace approximately 40 million information processing jobs that people are doing right now in the next 20 years. That from the department of labor. And, Laurie through some painfully transparent sophistry is holding them ineligible for patentability.

        We really have to figure out how to impeach these federal circuit judges. And file complaints against academics. Not to mention any names but the letter L appears to be causing a lot of problems lately.

        1. And all you little minded anti-patent people: focus. The computer is not performing the information processing in the same way as the human. And, it is a machine. A machine. So, little brained bozos, just think. A machine that is doing what people get paid to do and a federal circuit judge (who should have a clown’s costume on) holds it ineligible. Shameful pea brained dope.

        2. NWPA states “The biggest problem with Smartgene is that the computer is processing information in a different way than people do

          Sorry NWPA, but that was not what the district court said (and what the CAFC limited the decision to). In fact as I explained, that is precisely NOT what the court is talking about.

          Perhaps what you mean to say is that the lower court mis-constructed the claim, the poor advocacy did not make the right counter argument in time (waving the common sense argument that anyone in the arts would readily see), and that the waiver doomed that party in the immediate case and controversy.

          You should take art that this non-precedential case is strictly limited (by the CAFC) to the immediate fact pattern of the case and the construction that any person having ordinary skill in the art would not make of most any claim in patents of this art field.

          Of course, this won’t stop Yahoos from trying to misrepresent the law and overblow the case and attempt to use the case where it will not apply, but did you really expect that propaganda machine from stopping its B$ churning anyway and no matter what decision was made?

          1. Anon, I realize that they held that this is exactly how people think, which to any reasonable mind is ridiculous and manifestly wrong. And, shameful.

            1. As shameful as the immediate case is, the counter argument – the valid counter argument that machines actually do not think was NOT made in the SmartGene case and was EXPRESSLY not before Lourie.

              In the next case, when that argument is actually before the judge, then we can get all worked up.

              Or perhaps the Supremes will have acted by then.

              Did you see the links I provided to the Ultramercial case January brief and reply? Are you saving your comments for an appropriate thread?

            2. “nd was EXPRESSLY not before Lourie.”

              How do you know? I didn’t see anything in there that expressed such.

              “In the next case, when that argument is actually before the judge, then we can get all worked up.”

              Lulz, can’t wait.

            3. 6 akss “ I didn’t see anything in there that expressed such.

              Even after I posted the direct key herein.

              (so much for his reading skills – ever the same lack thereof)

            4. You posted the “direct key”? Whatevz bro. You mean a link? To the decision? Nothing in the decision noted that there was no argument about machines not thinking before them.

          2. And, anon, the devil is in the details. The computer and doctor are doing the same thing? Really? No rational person with a modern education would buy that.

            1. I saw the links to Ultramercial. I am waiting until I have time to read them and presumably a full forum which it deserves. Sounds pretty juicy.

              Machines don’t think. And, if they are simulating a person’s thought process that should be eligible for patentability. A machine that is doing what a person is being paid to do is being held ineligible by a federal circuit judge. Sounds like we need to get the impeachment proceeding going. We are dealing with people completely ignorant of cognitive psychology and information processing.

          3. 6 (blindly) states: “Whatevz bro. You mean a link? To the decision? Nothing in the decision noted that there was no argument about machines not thinking before them.

            Wow. Try reading my posts here – I mean, like actually reading. You can get help if you have trouble mouthing the words – I hear that Malcolm thinks rather highly of his ‘English as a first language’ skills.

            Way way way too funny.

  6. Dennis,

    Does your chart reflect that these separate patents on methods and non-methods could be part of the same patent family? In particular, does it reflect that restriction practice can cause claims on methods/non-methods in the original application to end of up in different patents?

    1. Restriction practice is a well-known joke. Witness the (only slightly exaggerated) example of “claims 1-3 are taken as to be invention A and claims 4-6 are taken to be invention B. A is to sub-sub-sub group alpha and B is to sub-sub-sub group beta. Since the two are in different sub-sub-sub groups, the search would be too difficult and thus restriction is required.”

      ‘Legal realism’ probably accounts for a fair share of separate patents that should not be separate patents, as many applicants may actually welcome a bloated patent number count. EG has a solid point that ‘patent families’ would provide a more accurate picture on the concept that inventions easily span multiple patent eligible categories.

  7. Process patents originally were introduced to allow patent protection for novel processes to manufacture non-novel products, in particular in chemistry.

    It is very confusing to patent algorithmic methods as processes since they are usually not executed by manufacturers but only coded by them and not executed until the person who bought the product runs the program.
    A more consistent approach would avoid the confusion about “mental steps”, or “humans as processors” since conceivably these processes can be executed by humans too as “Anweisungen an den menschlichen Geist”. Germans need more words to identify mental steps.

    1. Reiner,

      No. You are incorrect. Process patents may have been applied to such patents, but in US law the category of process is written as an equal to the hard categories of what a process may (or may not) produce.

      You are exhibiting what is known as the Justice Story anti-method bias. US patent law differed from early English patent law in this critical mode (notwithstanding the misapplication of the law by otherwise brilliant jurists).

      and not executed until the person who bought the product runs the program.

      (sigh). Once again, patent infringement still includes those that use the patented invention. Why do people get confused on this point?

      Since conceivably these processes can be executed by humans too

      ARRRGHH – the fallacy continues. Reiner – this is expressly not the case as the claims must be read as one who has ordinary skill in the art would read them. The word you will want to memorize is anthropomorphication. This shows precisely why the attempt to use the ‘mental steps’ doctrine FAILS. Machines do not think.

      People, stop trying so hard to confuse the issues.

      1. Strip away the computer and if nothing is left but the manipulation of abstract concepts then the so-called process is ineligible, and remains such if one recites only generic computers to implement. Add that the computer does something physically useful with the information, then we move from the abstract into the eligible.

        This has been the law since Benson.

        I don’t know where processes began in Germany, but the first case to recognize processes as eligible and to describe its essentials was English case of Neilson v. Harford, 151 ER 1266 (1841): the case is discussed with approval in O’Reilly v. Morse. Corning v. Burden, decided in the same term as Morse, said this:

        “A process, eo nomine, is not made the subject of a patent in our act of Congress. It is included under the general term “useful art.” An art may require one or more processes or machines in order to produce a certain result or manufacture. The term machine includes every mechanical device or combination of mechanical powers and devices to perform some function and produce a certain effect or result. But where the result or effect is produced by chemical action, by the operation or application of some element or power of nature, or of one substance to another, such modes, methods, or operations, are called processes. A new process is usually the result of discovery; a machine, of invention. The arts of tanning, dyeing, making water-proof cloth, vulcanizing India rubber, smelting ores, and numerous others, are usually carried on by processes, as distinguished from machines. One may discover a new and useful 268*268 improvement in the process of tanning, dyeing, &c., irrespective of any particular form of machinery or mechanical device. And another may invent a labor-saving machine by which this operation or process may be performed, and each may be entitled to his patent. As, for instance, A has discovered that by exposing India rubber to a certain degree of heat, in mixture or connection with certain metallic salts, he can produce a valuable product, or manufacture; he is entitled to a patent for his discovery, as a process or improvement in the art, irrespective of any machine or mechanical device. B, on the contrary, may invent a new furnace or stove, or steam apparatus, by which this process may be carried on with much saving of labor, and expense of fuel; and he will be entitled to a patent for his machine, as an improvement in the art. Yet A could not have a patent for a machine, or B for a process; but each would have a patent for the means or method of producing a certain result, or effect, and not for the result or effect produced. It is for the discovery or invention of some practicable method or means of producing a beneficial result or effect, that a patent is granted, and not for the result or effect itself. It is when the term process is used to represent the means or method of producing a result that it is patentable, and it will include all methods or means which are not effected by mechanism or mechanical combinations.”

        The key criteria is an has always been the production of a useful result — and, as described in Benson, physicality of the result is key.

        1. Ned – you would be sanctioned for such an argument that ignores how Benson must be viewed in light of Diehr and Bilksi

          All you are doing is trying to resurrect MoT as a strict requirement.

          We both know that such is simply not the law.

          1. The problem you have, anon, that you can cite not one single case where a claim was held eligible that did not involve either new hardware or some process that produced a new, physical result, at least one that has has not been vacated by either by the Supreme Court or by the Federal Circuit or that is not currently on cert. pending a decision in Alice. Your poster boy decision is and was State Street Bank, a case written by Rich that upheld a computer programmed to calculated an improved price. That was Rich at his finest, totally defiant of Benson to the bitter end.

            Your ad nauseum reliance on Alappat continuously demonstrates that you refuse to distinguish between Rich dicta and the holding of the court. But I will grant you this, there are a lot of patent attorneys who do not get and who refuse to accept Benson. To these folks, Rich was and remains their hero.

            1. And we should not forget that Rich was selected to the “drafting” committee because of his outspokenness in defiance of the Mercoid decision written by Douglas. He also wrote 103 that “overturned” Cuno, another Douglas decision. Finally, he wrote 112(f) (then paragraph 3) to overturn Douglas’s decision in Halliburton.

              One can understand why and how he reacted, personally, to Benson, written by Douglas. It was an old war between the two, and Rich defeated Douglas on Mercoid, Cuno and Halliburton by wielding the legislative pen in ’52. Undoubtedly, he thought that in the end he would prevail against Douglas once again on Benson. He has not prevailed.

              Moreover, there are a lot of problems with the way he drafted 271(c) and (b), 103 and 112(f) that continue to wrack the patent law and create turmoil. His efforts have all, IMHO, prove to be a failure and we could do well by considering repealing them all and starting afresh.

            2. Ned,

              I don’t have a problem as I don’t NEED a case like you suggest I do. That is because my view is the law and I am not out about to change the law – unlike you.

              And YET AGAIN you attempt to put words in my mouth with State Street and YET AGAIN I have to tell you that I have NEVER relied on that case – and do not NEED to rely on that case.

              Alappat is good law.

              Still.

              Alappat was reconfirmed in the very first decision post-Bilski. Your characterization here of “ad nauseum simply is not fitting.

              As for Benson – it is you that glorifies the dicta at the expense of law. We have been over this many many many many times. Do you need me to quote the particular passage YET AGAIN from Benson that wrecks your party? (hint: “we do not so hold” – Come man, tell me why the Court said that)

              Sorry Ned, but these are facts that you MUST deal with if you want to be able to hold any type of intellectually honest conversation.

              The choice is yours. As always. I still wait for the day when you will answer my questions in an intellectually honest manner – completely and fully, without guile or misdirection.

            3. you can cite not one single case where a claim was held eligible that did not involve either new hardware or some process that produced a new, physical result

              Don’t need to Ned – I have cited cases from the Supremes directly on point telling you that your view of MoT is simply not correct.

              And yet, you continue to attempt to portray the law as something that it is not.

              You do realize the deception that you engage in by doing so, right?

            4. Moreover, there are a lot of problems with the way he drafted 271(c) and (b), 103 and 112(f) that continue to wrack the patent law and create turmoil. [Rich’s] efforts have all, IMHO, prove to be a failure and we could do well by considering repealing them all and starting afresh.

              The guy was a shallow thinker with Stockholm syndrome. He loved patents and he loved his “inventor” buddies and he didn’t think much beyond “how can I help these guys out?”

            5. anon: my view is the law

              LOL. I remember you spouting similar garbage before the Prometheus decision. Remember that one?

              9-0. But oh right: I can’t “square” that decision with some weird nonsense in your petrified, paranoid brain so it doesn’t count.

              LOLOLOLOL.

              Read that ABL decision again, son. The future is now. The “golden age” (LOLOLOL!) of computer-implemented junk is coming to an end. Pretty soon even the PTO is going to get the message. And then you’ll blame it all on Lee, won’t you? LOLOLOLOL.

            6. Ned – you really want to pin your patent hopes on the ‘jurisprudence’ of Douglas?

              Really?

              You should stop those self-FAIL lessons from Malcolm – they don’t work for him either.

          1. Try that with Diehr – thanks.

            Diehr has already had it’s eggshell skull bashed in pretty nicely. You really want that case as your bullwark against finding computer-implemented junk ineligible? Junk like an abstract mental process with a generic “computer” tossed in to “automate” the processing?

            Good luck. Diehr is headed for the trash bin. All that’s going to be left of it is an incredibly trivial, banal holding.

            1. You said the exact same thing prior to Bilski then disappeared for about three months after that case.

              It is not that I ‘want’ that case as a bulwark, it is simply that that case reigned in the excess of Benson and Flook and is controlling law.

              Oh wait, there’s that controlling law thing again that always causes problems for you.

              So sad.

  8. It looks like nobody ever says “a process” even though that is what the statute actually says. Can one infer from the data that many patent attorneys have a lisp and are worried about undermining the gravity of their position at oral argument by repeatedly saying “our new protheth?” Saying “method” instead would come much more naturally.

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