Patently-O Bits and Bytes by Dennis Crouch

 

69 thoughts on “Patently-O Bits and Bytes by Dennis Crouch

  1. link to philly.com

    Just one year after the Windows 8 launch, Microsoft issued a free update to address some of the gripes. The system now lets people run more than two apps side by side, for instance, and its Internet Explorer browser lets people open more than 10 tabs without automatically closing older ones.

    LOL! If only we had more functionally claimed junk software patents then this sort of thing would never happen. Promote the progress!

  2. The job postings here and elsewhere for mid-levels (because training is so passé) are getting pretty thick. Good for those with experience, not so much for those looking to get it.

    1. Meh, they always post they want some exp. But if you’re a complete newbie and send out enough resumes surely you’ll get some nibbles if you’re an attractive candidate.

      1. Meh, they always post they want some exp. But if you’re a complete newbie and send out enough resumes surely you’ll get some nibbles if you’re an attractive candidate.

        Yes, because nothing says “I’m a person you can work with” better than wasting a hiring partner’s time with a resume that fails to meet the basic requirements.

        In truth, I don’t have any real problem with stretching the experience requirements a little. What drives me crazy are the resumes from biology majors when the job posting specifies that an electrical engineering degree is a hard requirement. I don’t know what these people are thinking.

        1. “Yes, because nothing says “I’m a person you can work with” better than wasting a hiring partner’s time with a resume that fails to meet the basic requirements.”

          I’m not really sure why the snark arises here LB considering you’re just about to lay down exactly my point:

          “In truth, I don’t have any real problem with stretching the experience requirements a little. ”

          “What drives me crazy are the resumes from biology majors when the job posting specifies that an electrical engineering degree is a hard requirement. ”

          I’m obviously not talking about that. Hard reqs are hard reqs and of course the degree type like that is a hard req.

          I was just trying to clue in the young person who I presume has 0 exp that should he be good for the position then he shouldn’t put total weight on the exp req. and not even apply. That is because he was bemoaning the lack of postings for his exp level.

          I mean, come on. It’s going to be a cold day in heck when people will start posting a whole lot of openings for people with 0 exp when they could hire someone with the bare minimum exp for barely any, if any, extra money.

          1. Sorry, 6. Job inquiries from unqualified candidates are a pet peeve of mine.

            It’s going to be a cold day in heck when people will start posting a whole lot of openings for people with 0 exp when they could hire someone with the bare minimum exp for barely any, if any, extra money.

            The reality is that firms have already snatched up most of the good people with 0 experience before they finish law school. The brutal truth is that the primary reason the lack of openings for people with 0 experience is that the firms really don’t want to hear from people with 0 experience.

            1. I think that there are a number of very good potential patent attorneys graduating from law schools across the country who are having a lot of trouble finding jobs. Typically the EE students have little problem, but the others find it more difficult. So, there is actually opportunity to find inexperienced new grads with great potential if you are interested in training.

            2. “The brutal truth is that the primary reason the lack of openings for people with 0 experience is that the firms really don’t want to hear from people with 0 experience.”

              Yeah nobody seems to want to train. And while I understand that it could be a pain in the arse, and might cost you some extra money/time, what’s the real reason behind this? Is it because they’re too likely to jump ship and not be around during their good working period or what?

              I was just thinking, if someone could, perhaps there’s a market for preparing people for patent prosecution running them through the basics for firms. Like the outside equivalent of the patent academy at the PTO. I wonder if there are firms that would be willing to outsource that?

            3. It doesn’t take a lawyer to weed out the obviously unqualified candidates. Even if you don’t have an HR or hiring department, your legal secretary could weed out the applications you are talking about.

  3. Funny how much respect the patent community appears to give Chisum and yet so many of them completely ignore his 101 analysis.

    1. Like a few other commenters, Chisum lost some serious credibility (with me, anyway) when Prometheus v. Mayo came to town.

      Everyone had a choice: admit the serious problem presented by [oldstep]+[newthought] claims and propose a serious solution, or stick your head in the sand, whine about how 101 is the worst thing ever, and pretend that 103 was the answer (while never explaining how the 103 analysis was supposed to work, or why it was so much better than a virtually indistinguishable analyis under 101).

      Chisum blew it. Noonan blew it. Quinn blew it. Wegner blew it. These people could have led the way but they chose not to. They knew better. They made their bed and now they get to lie in it. Some of these folks still don’t get it, or pretend not to (or they believe that “progress” somehow depends on being able to patent all practical uses of a correlation). It’s sad, frankly.

      I know at least one prominent writer who did get it in real time: Jason Rantanen. I remember that very well. Perhaps Dennis did, too. I wouldn’t be surprised. It’s easy enough to go back and find out.

      It’s reminiscent to the mortgage crisis and the Great Recession in late 2008. Some experts (the ones I paid attention to and still do) were on top of the problem, issuing warnings and predictions in advance of the actual events. Other people (Ben Bernanke and Tim Geithner, for example, along with reams of conservative water-carriers and mouth-pieces) were more concerned about the people issuing the warnings than they were with the crisis itself. Does any of that sound familiar? It should.

      link to equitablegrowth.org

      1. They made their bed and get to lie in it

        Just like Malcolm made his bed by stating that intellectual honesty is not required because this is just a blog and not a court.

        Yup – exactly like that.

      2. MM, again there is no substance to your post. The fact is that Chisum’s analysis which I am not going to re-create here is substance driven and driven by the 1952 patent act and SCOTUS common law.

        Jason Rantanen is a joke that wrote a ridiculous book which I have read portions of it. It is a psychotic fantasy.

        Chisum lost you at Prometheus? So, you agree with his analysis of Benson then. Lost you at Prometheus? You are such a joke. Chisum has been reaming the SCOTUS for their 101 analysis at least since Benson, so your bizarre little story you are telling is obviously fabricated for the momeny.

          1. Prof. Crouch’s answer of 3.1.2.1 is tagged in reply to NWPA, but is it a response to Malcolm’s post of “I know at least one prominent writer who did get it in real time: Jason Rantanen. I remember that very well. Perhaps Dennis did, too.“…?

            It is not clear what Prof. Crouch considers odd.

            1. Yes Leopold, I noticed that NWPA used ‘book,’ but was hoping that Prof. Crouch was above a pedantic nit-picking comment on ‘book’ or authoring of some other information.

              One can hope that substance is more important than form, especially on a blog, that does not contain the ability to edit posts.

          2. I think NWPA has jason confuzzled with Besson or whoever wrote the against intellectual monopoly or whatever. That’s the guy NWPA always says that he started the book and didn’t finish it.

            1. “So is that a lack of intellectual honesty, or something different? Maybe anon will tell us.”

              I’m not 100% sure. I’m going to be honest with you, I’m still a little shaky on what this whole “intellectual honesty” thing is beyond failing to spout the party line. Maybe there is someone somewhere that could tell me … wait. Just googled it.

              “Intellectual honesty is an applied method of problem solving in academia”

              Well, I’m not in academia, so yeah I can’t really do the whole intellectual honesty thing. Neither can anon as a matter of fact. Or you LB. D could though.

              link to en.wikipedia.org

    2. “Funny how much respect the patent community appears to give Chisum and yet so many of them completely ignore his 101 analysis.”

      Who’s ignoring it? Chisy wizzy was the one that penned weeds n seeds. He seemed to understand what was going on, he just doesn’t want it to be so. He’s hardly alone in that regard.

      1. >understand what was going on?

        What? He is highly critical of the opinions written by the SCOTUS and the Fed. Cir. regarding 101. So, you agree with him, but think it is a policy issue and the courts should just be able to re-write the statutes ’cause.

        1. “So, you agree with him, but think it is a policy issue and the courts should just be able to re-write the statutes ’cause.”

          Oh I don’t agree with his critiques, no sir. I mean, except the parts about the exceptions being difficult to administer due to people being so foreign to the concept and in many cases simply not wanting it to be the law so badly that they’ll attempt to trample it.

          Re whether I just think it’s a matter of policy nah man. Though it is that in addition to the following. I’m of the opinion that the caselaw re excepted subject matter arose back in the mists of time when the courts had the ability, and even the obligation, to sort through what was patent eligible and what wasn’t, patentable and not patentable etc. I think the system grew up with those restrictions in place (and sure, if it makes you happy, maybe they were originally put in place on policy grounds since they are sound policy) and that the congress never expressed any desire to overrule them. Thus they stand just fine.

          I also think that, if we made you guys happy and abolished them, then the congress would act to bar them faster than you can say bob’s your uncle and so abolition of them not even worth discussing in the overall discussion.

          I’m sorry NWPA, but there’s no getting round them whether the supremes put them in place or whether the congress does it. And you can bet your bottom dollar that if the congress is forced to act they’ll go overboard. That isn’t something you want.

          1. I also think that, if we made you guys happy and abolished them, then the congress would act to bar them faster than you can say bob’s your uncle

            No doubt.

            abolition of [the judicial exceptions] not even worth discussing in the overall discussion.

            It’s certainly true that the teabaggers don’t want to discuss the issues beyond abolition of the exceptions, except to say that “103 will take care of the problem claims.” Of course, they refuse to explain how 103 is supposed to achieve that without invoking the same judicial exceptions, under a statute where they are even less defensible.

            1. don’t want to discuss the issues

              Still waiting for you to discuss some of the very simple and basic issues for software patent eligibility Malcolm.

              Or is this yet another of your AOOTWMDs?

  4. Ned: The Board held a claims ineligible under 101 after finding the claimed business method was old and the computer hardware generic. Carl says this is really a section 103 case. In a sense it is both.

    Indeed. There is no reason that a claim can not run afoul of both 101 and 103.

    Carl also writes: It was obvious to take what people used to do without a computer and move it to a computer.

    Golly. No kidding. It’s fascinating that this is issue is still considered to be debatable by anybody in 2014. It wasn’t debatable in 1980, for cripesake.

    Perhaps if Carl and other patent pundits made this point frequently and plainly, it would start to sink in. You can rest assured that Gene Quinn isn’t going to sign up, even after a semi truck decorated with that quote drives over his foot.

    The question for Carl is what to do about those mental processes that weren’t previously described verbatim in the prior art but are presented for the first time as methods/devices that are automated with the aid of conventional programmable computers or computing systems (no new structures are recited, just the functionality). Such claims aren’t eligible if presented as method steps without the computer. And Carl admits that automating such steps with a computer is obvious. So does Carl believe such claims are both eligible and patentable per se? How does he propose that such claims be examined?

  5. Dennis, indeed, Carl writes well and has good incites.

    The PTAB 101 case, CRS Advanced Technologies, Inc. v. Frontline Technologies, Inc. (Case CBM2012-00005), discussed in his second post, deserves mention. The Board held a claims ineligible under 101 after finding the claimed business method was old and the computer hardware generic. Carl says this is really a section 103 case. In a sense it is both. Note that I have been advocating the idea that we should compare the claim to the prior art as in section 103 and then determine whether the differences relate to eligible subject matter. That is what the Board did here. But also, one could say that using generic computer equipment to implement a known business method was obvious.

    Note, the way I suggest we handle these 101 cases is exactly the way it is done in Europe. Just see the AIPPI brief in the Alice v. CLS Bank case.

    1. An interesting quote from the BPAI case:

      “In other words, the claims here, even with the recitation of
      computing technology, are not part of a “technological advance” of any sort.
      See Bancorp, 687 F.3d at 1279.”

      1. “In other words, the claims here, even with the recitation of
        computing technology, are not part of a “technological advance” of any sort.”

        “In other words, the claims here, even with the recitation of a horseless carriage, are not part of a ‘technological advance’ of any sort. See Diddler v. Ross (Fed. Cir. 2014).”

        It’s 2014. Computers are old, people. Really, really freaking old.

        Why is that so hard for people to admit and understand?

        1. “Machines are old people, really really old”

          “Manufactures are old people, really really old”

          “Compositions are old people, really really old”

          “Electrons, protons and neutrons are old people, really really old.”

          “The elements are old people, really really old”

            1. While that may be true, Tourbillion, the age of commentators does not appear to reflect the inanity of the ‘argument’ used by Malcolm.

              Some aged commentators may post items of merit. Some aged commentators may post items without merit. The comment of 1.3.1.1.2 does not add to the clear ridicule that Malcolm’s post deserves.

        2. ““In other words, the claims here, even with the recitation of a horseless carriage, are not part of a ‘technological advance’ of any sort. See Diddler v. Ross (Fed. Cir. 2014).””

          lulz.

        3. I have two old computers Malcolm, side by side, identical.

          Neither can do what a new patent claims.

          I take one of the old computers and change the old computer by adding a machine component, a manufacture in its own right (see the controlling law regarding exceptions to the printed matter doctrine) – software (See Nazomi) and configure (and thus physically change) the old computer into a new machine (See Alappat).

          The new machine – now after being changed – meets the new patent claims.

          How does this not comply with 35 USC 101′s statutory category analysis for patent eligibility?

          How does the old machine – without being changed – meet the new patent? Clearly, it cannot. Not unless you wish to bend reality and make that machine inherently (somehow) contain ALL the inventions ever to be created, just because that old machine is programmable and capable of being changed. But beware – my big box of elementary particles of electrons, protons, neutrons and all of the elements is likewise “programmable and capable of being changed.” The ‘logic’ of your answer will be a double edged sword.

          Let’s see you give an honest and legitimate answer.

          Let’s see if you can stay away from your tired scripts of non-answers, of nonsense. Join an actual conversation – if you dare.

          1. “Neither can do what a new patent claims.”

            What on earth makes you say that? They just “cannot do” what the new patent claims because the operator hasn’t yet deemed it to be time for them to do what the new patent claims.

            “I take one of the old computers and change the old computer by adding a machine component, a manufacture in its own right (see the controlling law regarding exceptions to the printed matter doctrine) – software (See Nazomi) and configure (and thus physically change) the old computer into a new machine (See Alappat).”

            Aka actually “using the computer to do what the patent claims”. Although in most cases there’s no need for someone to take an outside “machine component” and use it to “configure” the old computer. Nowadays you can usually just use the computer itself to configure itself if you’re a good enough operator.

            “How does this not comply with 35 USC 101′s statutory category analysis for patent eligibility?”

            Well that depends on what the patent claims.

            1. 6, thanks for the obvious FAIL of the “no-change-to-old-computer” requirement with “ just use the computer itself to configure itself

              You prove my point even as you fail to recognize that you prove my point.

            2. I take one of the old computers and change the old computer by adding a machine component, a manufacture in its own right

              Ah, I see you’ve shifted your tactics a bit in response to the “adjustable car seat” analogy. Instead of programming the programmable computer, you’re now “adding a machine component.”

              If the claim is indeed limited in that way, you do understand you are wading into product by process territory.

              In addition, you’re just shifiting the 101 issue from the old computer into this new “machine component.” What’s the structure of this “new machine component” that distinguishes it from the “machine components” in the prior art? There’s isn’t one (not one that you are willing to disclose anyway). So you’re just claiming the “new function” again, in violation of the plain language of 101.

          2. my big box of elementary particles of electrons, protons, neutrons and all of the elements is likewise “programmable and capable of being changed.”

            You have a box which contains programmable protons? How do you program a proton? Maybe you should patent that. It sounds new.

            The ‘logic’ of your answer will be a double edged sword.

            Dream on, clown. Dream on.

            The new machine – now after being changed – meets the new patent claims. How does this not comply with 35 USC 101′s statutory category analysis for patent eligibility?

            Depends on the claims. Maybe you could write a more concrete hypothetical example of the sort of claim you have in mind. That would be very refreshing after years of listening to your pointless self-serving drivel.

            1. Yes Malcolm programming was in quotes to symbolize the word was used in an analogy.

              Your “English” skills seem a bit rusty.

              Further, the way to ‘program’ is also old, really really old.
              It is also a law of nature.

            2. programming was in quotes to symbolize the word was used in an analogy.

              LOL! Really? I mean … what? What does the term mean in your “analogy”? Nothing? It’s just a bunch of letters?

              I thought I’d seen it all but you’ve managed to somehow take your discourse down a notch. Congrats.

            3. And then instead of offering an apology for your deeply offensive comments you seek to try the stale script of mirroring my post on the matter.

              Shameless Malcolm – truly and completely shameless.

              But is anyone to be surprised by someone who believes that intellectual honesty is not required in posts because this is merely a blog and is not a court?

            4. “Nothing? It’s just a bunch of letters?“

              Dear Bozo,

              Anyone with half a brain who is reading the thread will immediately recognize that you are the one who made that assertion … about your comment.

              Specifically, you brought up the analogy of a box of protons (and other stuff), where the protons were programmable. I asked you how one was supposed to program a proton. You replied with this nonsensical, meaningless b.s.: “programming was in quotes to symbolize the word was used in an analogy”.

              And then you insult me when I point out that you are pulling meaningless crxp out of your @ss.

              Classic blogtroll behavior. But we already knew this about you.

            5. LOL – clearly not Malcolm, as we both know that “Programmed to” is an analogy to “configured to” which we both know is a structural term of art.

              Elements “old people, really really old” can be configured and be perfectly patent eligible.

              Electrons, protons and neutrons “old people, really really old” can be configured and be perfectly patent eligible.

              Compositions “old people, really really old” can be configured and be perfectly patent eligible.

              Manufactures “old people, really really old” can be configured and be perfectly patent eligible.

              Machines “old people, really really old” can be configured and be perfectly patent eligible.

              .

              Depends on the claims. ” – Exactly. As I have always stated. Now if you want to discuss something – as a category, then, as a category, clearly, software is a manufacture and a machine component in its own right and is patent eligible. Computers, newly configured with the new machine component of software, are patent eligible.

              Just like any other machine.
              Just like any other manufacture.
              Just like any other composition.

              After you accept the category level, sure, you have to look at the individual claim.

              But this is exactly what I have always told you.

              Wake up son.

            6. And to Malcolm’s vacuous insult of “ But we already knew this about you“:

              We already know something about you Malcolm. You believe that intellectual honesty is not required in posts because this is merely a blog and not a court.

              That belief taints every single thing you post.

              Man, it really svcks to be you.

            7. And of course, everyone reading will recognize the absolute severity of the self-FAIL of Malcolm in his volunteered admission of knowing the controlling law regarding the exceptions to the printed matter doctrine because it is that admission that dooms his crusade because it is that admission that is central to any intellectually honest discussion on software patents.

              The exceptions to the printed matter doctrine show that programming is NOT just “a bunch of letters” because that programming has a functional relationship – must have a functional relationship, otherwise the software would not change the machine, and you would be left with an old machine that cannot do what a new, changed machine can do.

              This is the very opposite of “meaningless.” The very fact that machines do change with changed configurations of the new machine component of software is the meaning that Malcolm so desperately – and so futilely – tries to obscure, conflate, dissemble and, well, be Malcolm about (since this is just a blog).

            8. “The exceptions to the printed matter doctrine show that programming is NOT just “a bunch of letters” because that programming has a functional relationship – must have a functional relationship, otherwise the software would not change the machine, and you would be left with an old machine that cannot do what a new, changed machine can do.

              This is the very opposite of “meaningless.” The very fact that machines do change with changed configurations of the new machine component of software is the meaning that Malcolm so desperately – and so futilely – tries to obscure, conflate, dissemble and, well, be Malcolm about (since this is just a blog).”

              We all know about the house of cards you and others have erected with the federal circuits assistance anon. You don’t need to re-iterate about it every time. Just insert, instead of the few paragraphs you write out, just type “insert boiler-plate about the house of cards the federal circuit has erected here”. We’ll all get the message much easier.

            9. We all know about

              LOL – except what you profess to know and what is plainly evident indicate that once again you are playing with that “subjective in the mind” thing that is right next to Malcolm’s “intellectual honesty is not necessary on a blog” BS.

              Not exactly the type of message that suits you, is it 6?

              Man it svcks to be you dissembling types.

            10. ““intellectual honesty is not necessary on a blog”

              You know what’s funny anon? Intellectual honesty isn’t even really possible on a blog. It’s possible in academia, where it is utilized. Now, if D were to post he could use it some since he’s in academia.

          3. anon, configure (and thus physically change) the old computer into a new machine (See Alappat)…

            anon, may I ask you a simple question, why did Alappat have to hold that a programmed computer was a new machine (physically changed) when Application of Bernhart, 417 F.2d 1395, 163 U.S.P.Q. 611 (C.C.P.A. 1969) held, without any if’s, and’s or but’s, exactly that?

            “There is one further rationale used by both the board and the examiner, namely, that the provision of new signals to be stored by the computer does not make it a new machine, i. e. it is structurally the same, no matter how new, useful and unobvious the result. This rationale really goes more to novelty than to statutory subject matter but it appears to be at the heart of the present controversy. To this question we say that if a machine is programmed in a certain new and unobvious way, it is physically different from the machine without that program; its memory elements are differently arranged. The fact that these physical changes are invisible to the eye should not tempt us to conclude that the machine has not been changed. If a new machine has not been invented, certainly a “new and useful improvement” of the unprogrammed machine has been, and Congress has said in 35 U.S.C. § 101 that such improvements are statutory subject matter for a patent.” Id. at 1400.

            This CCPA case is en banc, is and was binding on the Federal Circuit, and has not been overturned … by the Federal Circuit.

            Alappat did not cite to this case, but cited to other cases that cited to it to support its “we have held.” Why in the world do you believe that Alappat did not cite to this case, and you do not cite to this case, even though it is the case that held what you said Alappat “held” even though it only purported to say, “We have held?”

            Can you give us any explanation why the Federal Circuit is being so dodgy? Why is it, and you, avoiding the citation to this case?

            This is your case, and it wasn’t even written by Rich, but it is the source material for all subsequent cases because they all cite to it, save Alappat itself.

            1. Why in the world do you believe that Alappat did not cite to this case ..? … Can you give us any explanation why the Federal Circuit is being so dodgy?

              Uh, perhaps because neither side in the Alappat case brought this case to the court’s attention?

            2. The case was an expanded panel (not en banc) and the author Lane was not the most clear.

              I am not sure what you are trying to get at…

              ..seems like one of those cases you are trying to force feed.

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