533 thoughts on “

  1. On the 500th post to this thread, it is an interesting observation just how many of the 22 single digit lead-in posts are of the train-wreck variety by the master of AAOTWMD and his acolytes.

  2. The stench of O’Bummer stacking the courts has reached the PTO:

    We have an enterprise (i.e., the USPTO) that has 8,000 employees creating a product (i.e., patents) and has 300 employees destroying the same product in contested proceedings. His question: “How long can this “business model” last?” If a private sector company were engaged in the same behavior they would quickly be out of business. See Gene’s site.

      1. Malcolm prefers to throw up his various insults against Gene on this web site without actually visiting and reading what Gene has to say.

        1. Let’s face it, MM has no rules. He says and does whatever he pleases on this board. MM’s world, which is re-created for each blog post.

          1. He says and does whatever he pleases

            I think it’s pretty funny that there’s an entire blog soley devoted to promoting More Easier to Enforce Patents All the Time! where skeptical folks like me are regularly shut down by commenters like you and quickly banned by the blog owner, yet somehow you still think it’s worth your time to come here and complain.

            Shouldn’t you be busy trying to impeach some judges or something?

            1. I must have missed that Malcolm – when were you banned over at IPWatchdog?**

              Were you posting under (yet another) sockpuppet there?

              Funny too – why do you complain so often of him, here?

              What’s up with that?

              .

              ** For those who are not aware of Gene’s banning policy: he does not ban those with different views and opinions, but he will ban you for false statements of law and for deceptive game playing. And that’s after a clear warning, too.

            2. he will ban you for false statements of law and for deceptive game playing. And that’s after a clear warning, too.

              LOL.

              You two make a great pair. Keep on keeping Gene’s lap warm, Tr0llb0y. After all, it’s been nothing but victories for you two since you got started, right?

            3. “For those who are not aware of Gene’s banning policy: he does not ban those with different views and opinions”

              He’s banned so many people for differing views and opinions it isn’t even funny.

            4. LOL – 6, your belief structure is getting in the way or reality again.

              It is not the differing views – it is how people go about those differing views.

      1. Try to make intelligent contributions. Try. 6. Try. Go and read the article and you will find that CJ Rader called the USPTO’s patent judges death squads.

        1. CJ Rader called the USPTO’s patent judges death squads.

          Run with that. It’ll make both you and Rader look really objective and thoughtful.

            1. You are good at this game, MM

              It’s not a game and it’s really pretty easy to wipe the floor with defenders of the indefensible like you and Rader.

            2. …especially in that imaginary world that Malcolm inhabits, where his posts here save children running through grain fields at the edge of a cliff.

              /eyeroll

            3. his posts here save children running through grain fields at the edge of a cliff.

              Interesting fantasy you have. Have you talked to your doctor about it?

            4. Uh, no, he svucks at this game, unless by “good” you mean “not possessing factual knowledge or acute reasoning but only Clown Boy Alinsky-like ridicule like the old, shrivelled, one-trick pony from the Soviet era ’30s that he so obviously is”.

              See, anyone can play that game. Can only assume it helps if you’re perpetually nursing a hangover but will have to wait for certain others to confirm this hypothesis.

            5. anyone can play that game.

              Indeed, Tourb.

              Anytime you want to have a serious discussion about the current state of computer-implemented j*nk patenting in the US, I’m happy to oblige you.

              On the other hand, if you just want to screech about the imaginary horrors that will follow if we tighten up the system a few notches, or if you simply wish to pound the table and cry that “computers are machines!” then you’ll be glad to know that there’s entire blogs devoted to doing just that.

              Isn’t that special for you? Enjoy. And please take Tr0llb0y with you. You two seem to enjoy each other’s company. It’s sweet.

            6. You know what is even sweeter?

              Those who have the law, pound the law.
              Those who have the facts, pound the facts.

              Those who have neither, pound the table.

              It’s a sweet trick how Malcolm pounds the table with his head in the sand.

            7. “I don’t think Malcolm quite qualifies, as he routinely violates Rules 2, 3, 4, 7, 8, 9, 10, and I don’t think he even know what 12 means.”

              Hey anon, why not make us a list?

            8. No need to 6, the list is already there.

              (um, I certainly hope that you are not projecting some psychosis to anybody who makes lists…. Do you include Ben Franklin as having that psychosis?)

            9. “(um, I certainly hope that you are not projecting some psychosis to anybody who makes lists…. Do you include Ben Franklin as having that psychosis?)”

              Nope, the making of lists (a lot) is just one symptom of many you display. It’s just interesting just how much of this particular symptom you display.

            1. ah. Ok, he called them death sqauds. I like the name. I mean, to be clear, I’m not exactly pro-the death squads right now nor have I ever been. They’re a band-aid for a bigger issue. Imo, the business method and software scourge should have been dealt with in the office the first time around, and have never gotten started after State Street. The PTO should have resisted then so that it doesn’t find itself in the current cluster f.

              Imo, if congress wants to fix the issue then fix it. Half-measures and band-aids are not the leadership we need from them.

      2. Besides, don’t you get it? O’Bummer has found a way to end patents without Congress’s help. He just has to stack the Fed. Cir. and the PTO with death squads, and on one will bother to file a patent as it will be worthless to enforce. I don’t think you understand how quickly this strategy could work. We could see patent filings fall off by 50% in the short term.

        1. This is consistent with what O’Bummer said that he would figure out ways to act without Congress. So, stack the PTO patent judges and the Fed. Cir. We should be able to tell the bought off ones by their favoring the pharma patents and hurting the ee/cs patents. Tarantula does this.

          1. “This is consistent with what O’Bummer said that he would figure out ways to act without Congress.”

            Good times. There was a reason the people filed the petition about software patents on the petition site. I rather hope he did take it seriously and acts.

            “We should be able to tell the bought off ones by their favoring the pharma patents and hurting the ee/cs patents. Tarantula does this.”

            Oh please, nobody gives two shts about ee patents in the way you’re implying. CS ones perhaps though. More power to them. We’re here to promote the useful arts, we can safely leave the others in the dustbin of patent history.

            1. Well, Dopey, CS and EE patents are equivalent as we have been through many times.

              So, you don’t care if the law is applied? That is what you are saying. What a sad commentary on our nation.

            2. We’re here to promote the useful arts, we can safely leave the others in the dustbin of patent history.

              LOL – is ‘hypocrite” in your little psych book 6?

              The offer still stands for you not to use any of the things that you do not consider to belong in the useful arts.

              You don’t seem able to put your money where your mouth is though…

            3. “Well, Dopey, CS and EE patents are equivalent as we have been through many times.”

              Them being equivalent in function sometimes is neither here nor there unless you’re using a bunch of functional language just to describe functionally equivalent hardware to the software. I won’t particularly miss those kinds of EE patents either. Perchance they may survive anyway, perhaps by setting forth a few different embodiments to help display good possession of their functionally defined hardware.

              To be sure there is no software “equivalent” to the EE patents I work on. Nor will their ever be. Maybe there are some EE patents that suffer from the same problems that software patents do. I presume there are since that was one of the original gripes of the guy that invented the B claim. Maybe those EE patents will go down with software patents shortly with the 112 case on the indefiniteness standard. Who knows?

              To be clear, you guys all the time make a big stink about EE patents getting caught up with software patents going down but you’re never very specific about what EE patents you’re talking about. I’d be interested to see about 5 examples of EE patents that will supposedly be in jeopardy. To be sure, some small minority of them will certainly bite the dust, just the same as they do in my office currently under 101 or 112. But usually they just amend and are fine at least in my office.

            4. “The offer still stands for you not to use any of the things that you do not consider to belong in the useful arts.”

              Yeah I know. Your desire for interpersonal control is fast becoming legendary.

            5. Not sure why you think that you showing fidelity to your belief system has anything whatsoever to do with what you are obsessing about being under my “interpersonal control.”

              I am not indicating any control on my part. None.

              Is “delusional” in your little psych book 6? Check yourself.

            6. “I am not indicating any control on my part. None.”

              You wish me to do something other than I’m currently doing correct? You’re taking an action, posting a comment inviting me to not do what I’m currently doing correct?

              Think it through brosefus.

            7. Not at all 6. My merely pointing out that most honorable people want to align their actions with what they profess.

              Whether or not you do so is completely under your control.

              But your not wanting to recognize that there are natural consequences to your actions is something more than a bit odd in itself. What does your little psych book say about that?

            8. “But your not wanting to recognize that there are natural consequences to your actions is something more than a bit odd in itself. ”

              Your hounding me or other people is not a “natural consequence” re re. Except in so far as your brain being psychopathic is perhaps “natural” and leads to that behavior in you.

            9. But 6, you are misunderstanding again to think that I am hounding you.

              Hmm, signs of paranoia are now manifesting. You might want to write that down before your other symptoms of delusional denial kick in.

          2. There was a reason the people filed the petition about software patents on the petition site.

            Remind us again how that worked out – just how many signatures short was that petition?

        2. We could see patent filings fall off by 50% in the short term.

          That would be a great start. I’m glad to hear that this potential reality is on the table and people should start getting used to the idea of drastic reductions in patent filings and grants. Fifty percent still doesn’t go far enough, of course, but like I said: it would be a start towards fixing a miserably broken, completely out-of-control patent system.

            1. How very Duell of you.

              Do any of “anon’s” fanboys have any idea what he’s talking about? If so, please help him communicate in plain English as he’s having one of his usual desperately incompetent moments.

              Of course, it’s perfectly understood if nobody is willing to step up and help out a sick individual like anon.

            2. Malcolm again with the
              Accuse Oothers Of That Which Malcolm Does.

              having one of his usual desperately incompetent moments.

              Like your trainwreck moments – what, do you think that no one has noticed that Ned has slipped away?

              T.
              O.
              O.
              L.

            3. do you think that no one has noticed that Ned has slipped away?

              Please ask your nurse to explain to you the difference between typing comments on a blog versus having a conversation in an actual room filled with real people.

        3. I wonder if CJ Smith had any recent visits to the White House where the business gang was there to express how grateful they would be if he burned down the patent system.

          1. And if you guys haven’t figured it out yet, the reason to not put Chen before the Senate is that then she would be independent of O’Bummer. As it is, he is keeping his finger on her head.

            1. LOL – but according to Malcolm, Hal Wegner has no right to speak on anything related to the violations of the 1998 Vacancies Reform Act since Hal did not agree with what the Red Queen/Humpty Dumpty wanted on the Prometheus case.

              (yes, I know that such is irrational. 6 is still trying to find the right term in his psychology book, I think)

            2. “the reason to not put Chen before the Senate is that then she would be independent of O’Bummer”

              What are you talking about dude? She’s “independent” of him now. She likewise would be after senate confirmation as a director as well though of course. And, he’d always have his “finger on her head” if that’s supposed to mean he’s able to oversee her actions and fire her as he pleases.

            3. “yes, I know that such is irrational. 6 is still trying to find the right term in his psychology book, I think”

              You know that your own comment is irrational and/or sounds batsht insane but you posted it anyway? I’m pretty sure I don’t need a textbook to tell me a word or phrase for that. “Batsht insane” works.

        4. “and on one will bother to file a patent as it will be worthless to enforce.”

          As soon as the filing rates plummet I’ll believe you when you say the sky will fall or is currently falling.

          “I don’t think you understand how quickly this strategy could work.”

          You seem to think that either a. people in the useful arts will be affected, at all, by obamas secrit conspiracy (which they wouldn’t be) or b. I would give two shts whether the filing rates in business methods/software plummeted (I would not).

          In fact, I rather hope your conspiracy theory is correct. It’d make for an excellent story for his memoirs.

          “We could see patent filings fall off by 50% in the short term.”

          We could see filings fall off by 100% in the short term. You know, if a tsunami wipes the PTO (and all the satellite offices) off the face of the planet. Chances of that happening are pretty slim though.

          1. 6,

            Your NIMBY views are a FAIL.

            See link to patentdocs.org

            Wake up son – all of the arguments against business methods and software patents will be used against any type of patent given that all types of patents are used in business and that software has such extensive utility (yes, 6, you are still invited to forego that utility).

            1. “all of the arguments against business methods and software patents will be used against any type of patent ”

              Setting aside your “given” because it isn’t required, sure those arguments will be used against other patents. They already are. And nobody much gives a dam, people amend a tad and go on with their getting a patent and enforcing it. It’s perfectly fine. And people making arguments ad absurdum like yourself are simply shut down. Nobody much cares.

  3. I have a client whose religious beliefs forbid him from recognizing the enforceability of computer-implemented patents. He believes that every time such a patent is granted, a fetus dies.

    Anybody see any problems with this defense to infringement?

    It appears that some of the Supreme Court Justices are open to this sort of defense. Oddly enough, it’s mostly the Catholic men on the Court who feel this way.

    Go figure.

      1. this religious insult

        Where’s the “insult”?

        Is there any tie whatsoever

        To Federal patent law, you mean? The “tie” is crystal clear from the original comment. What’s your problem? Did you overdose on your meds again?

        1. To Federal patent law, you mean?

          The inclusion of any particular religious identification, then immediately turning around and presenting the identified entity with some very bizarre attribute is a gossamer cover for a religious insult.

          Yes, Malcolm, patent law – just as your other dust-kicking on an entity’s HR practices is completely off the mark, here again you are off.

          But I am a nice guy and I thought I would Google and patent law to find some link for you.

          I found this:

          link to patents4software.com

          The funny thing about it though, it highlights one of your typical AOOTWMDs – the BusyBody comment nails how you act.

          Go figure.

          1. presenting the identified entity with some very bizarre attribute

            Are you insulting my client’s deeply held religious beliefs?

            You disgust me.

            1. Catholicism does not have the belief that you posted.

              I never said that it did.

              Again: get your meds adjusted. Did you lose your psychiatrist’s phone number? If so, you’re mom probably has it.

            2. Malcolm: “It appears that some of the Supreme Court Justices are open to this sort of defense. Oddly enough, it’s mostly the Catholic men on the Court who feel this way.

              M0r0n.

            3. How certain Supreme Court Justices ‘feel’ and that ‘feeling’ tied to their religious beliefs is a matter of fact?

              You use that word, but you obviously do not know what that word means.

            4. How certain Supreme Court Justices ‘feel’ and that ‘feeling’ tied to their religious beliefs is a matter of fact?

              There are lots of ignorant t00ls out there who like to stick their heads in the sand when confronted with the obvious.

              You’re one of them.

      1. I can assure you that this in fact occurs.

        The important question here is whether, in the current economic climate, a fetus is worth more than a job.

  4. Benson: “The method or program is a sequence of coded instructions for a digital computer.

    The patent sought is on a method of programming a general-purpose digital computer to convert signals from binary-coded decimal form into pure binary form.”

    Held, ineligible.

    Critic, the PTO, Anon, GS Rich, State Street Bank, the AIPLA, Alice, and a host of fellow travelers, sycophants and bootlicking curs: programming a GP digital computer is eligible regardless of the program because the computer is new.

    What a frickin’ joke. Critic is so bold as to say that I am in the minority. What is true us that the Patent Bar did not like Benson, does not like Benson and wants Benson reversed. That much is true. But their position in advocating that a programmed computer is eligible per se is dishonest as the day is long. One might honestly say that Benson was wrongly decided. But this? A programmed computer is eligible regardless of the program, and that this is the LAW? Really? Nothing could be further from the truth.

    To the extent the PTO allows such claims in violation of the LAW, and it is a violation, no doubt about it, they are as bad as the Patent Bar. Their leadership should be tarred and feathered for not standing up to the lawless Federal Circuit.

    After the dust settles here, there ought to be an inquiry as to why the PTO failed in its duty to follow law. Next we should take a hard look at the Federal Circuit as an institution.

    1. Ned

      From way up on your pedestal, can you read that one line in the Benson opinion for me?

      You know the one.

      After that, can you read the line in Bilski for me?

      You know the one.

      After that, can you read my own posts for me?

      You know the ones, wherein I explain that there are different facets to 101 – the statutory category facet and the utility facet category.

      And then tell me where exactly do you come up with this notion of something ‘per se’ when it has only met one of the facets of 101 that I have discussed?

      And then realize that the Benson Court was not at all saying that methods of programming were being held ineligible. Not at all. But only the particular method in front of the Court.

      Do you think that someone is a cur when they purposefully misrepresent what is being said by the Court, Ned? What type of mongrel dog ignores a direct quote from the Court and then attempts to twist what the Court is talking about with one particular method and try to force some inane belief that all methods are ‘per se’ ineligible?

      Ned, who would do such a thing?

      And perhaps the better question is why. Come tell us again about your third party interests, my friend. Where do they stand on this issue?

        1. LOL – Your post at 20.1.1 is not acceptable. You have merely made a baseless accusation, and did not answer any of the questions put to you – at all, much less in a proper legal citation format.

          1. “LOL – Your post at 20.1.1 is not acceptable. ”

            It is not acceptable! Anon demands control over you! And your posting!

            “at all, much less in a proper legal citation format.”

            It’s not perfect or orderly! And it’s especially not in the exact format that anon demanded of you!

            “A pervasive pattern of preoccupation with orderliness, perfectionism, and mental and interpersonal control, at the expense of flexibility, openness, and efficiency”

            It’s a shame to see how much this affects you on a day to day basis anon. It really is.

            1. (sigh)

              You miss the irony 6 as my “not acceptable” is in direct reply to the lame excuse that Ned touted out.

              Wake up son.

              (maybe you need to aim the psych book at a few others around here…)

            2. You need me to start posting definitions again to show you that you are wrong, Malcolm?

              Like ‘dissembling,’ strawman,’ or maybe you can find Leopold and have him post “effectively’ again when you lost the ability to understand that word in the Myriad discussions.

              Put.
              The.
              Shovel.
              Down.

            3. Looks like Malcolm remembered that his script has stuff printed on the backside of the paper and he has flipped it to get to his [shrug] and stand by routine…

              LOL – T.O.O.L.

            4. “You miss the irony 6 as my “not acceptable” is in direct reply to the lame excuse that Ned touted out.”

              So wait, your having a profound need for interpersonal control and then attempting to control the people around you is justified because your post is in direct reply to a lame excuse Net trotted out?

              I mean, it’s strange to hear a person with your condition attempt to justify the behavior. It’s as if, in your own mind, so long as the other person’s comment is deemed a “lame excuse” in your own mind, then your own attempt to control them is a OK, or even something that you’re obliged to do.

              I guess this is the kind of sht therapists go through on a daily basis. I kind of feel sorry for them.

            5. “Like ‘dissembling,’ strawman,’ or maybe you can find Leopold and have him post “effectively’ again when you lost the ability to understand that word in the Myriad discussions.

              Put.
              The.
              Shovel.
              Down.”

              Hey anon, why not make us a list, or even two? In one post.

        2. Ned,

          You have (incorrectly) broadly generalized from a specific fact pattern to cover an entire genre, ignoring the fact that the Court explicitly said not to do what you have done.

          Do you really need me to hold your hand and explain why you cannot do this?

          The fact as the Court in Benson discussed was a singular example of a method that was no more than a single mathematical formula. The Court in Benson reduced the scope of their holding to be no more than ‘you cannot patent a math equation.’

          By no reasonable means can this holding be construed to say that any computer programming is de facto or per se ineligible.

          As to any larger context, again it is you that falters. The limitation from Diehr must be kept in mind when one seeks to use the holding of either Benson or Flook. See Bilski.

          As clear as it is (or should be) the larger context indicating that the notion of software under discussion permits the application of copyright coverage also indicates that no mere single math formula is under consideration in the discussion of software as a patent eligible item.

          When one discusses these legal principles, one also keeps in mind that any claims are considered from the vantage point of the legal construct of a person having ordinary skill in the art. This legal construct would recognize that software is more than just a single math formula is being claimed. This legal construct would recognize that more than just something existing totally in the mind is being claimed. This legal construct would fully recognize the fact that software is equivalent to firmware and is equivalent to hardware as a manufacture in its own right and a machine component. And further, this legal construct would recognize that software is generally created for a utilitarian purpose – clearly I am not – nor have I ever – proposed that one can ignore the purpose and skip consideration of that purpose under the 101 analysis.

          In all of our long-standing 101 discussions, I have always made clear that this requirement remains. I am truly disgusted that you would seek to play some type of Crybaby Veto and purposefully and deceptively mischaracterize my well established position in your attempts to kick up dust and refuse to address the points that I bring up in our discussion.

          If we were in court, there would be sanctions sought – but not the sanctions you think of, and most definitely, not against the party that you have in mind.

          1. By no reasonable means can this holding be construed to say that any computer programming is de facto or per se ineligible.

            Ned never said anything to the contrary. Nice strawman, though.

            I post only with personal opinions and in no way affiliated with any client

            As if you have ever had any, Tr0llb0y. Please spare us.

            1. Ned never said anything to the contrary.

              Clearly you are not in the same discussion as everyone else, Malcolm.

              Please spare us

              LOL – notably, this is not a reciprocal pledge, notwithstanding that the same comment has been made about you many times by others, eh “Examiner Mooney?”.

          2. Clearly you are not

            *click*

            Clearly if Tr0llb0y knew how to copy and paste like most elementary school students he could find this alleged statement by Ned to which he refers and set the record straight.

            But Tr0llb0y can barely read and write English so this is likely to present a severe challenge for him.

            Good luck, Tr0llb0y.

            1. LOL

              Malcolm is losing his grip – using his old script *click* but then actually attempting a response…

              Too funny.

              But for the Ned view on this, see his comment about ‘old computer plus ineligible subject’ at

              15.2.1.2
              15.2.1.2.1.1
              15.2.2.2.1.4
              15.2.2.2.1.6
              19.2.1.2.2.2
              20

              And even you have done so at
              15.2.1.2.1.3 and
              11.1

              And that is merely this thread alone.

              It really does svck to be you.

            2. Shorter Tr0llb0y: “Of course I am lying about what Ned said. And I’ll never be able to provide the quote. So I’ll just waste your time like I waste everybody’s time.”

              GFY, loser.

            3. LOL – what’s the matter Malcolm? Is it too difficult fro you to actually find the numbers?

              Back to the profanity, too?

              Gee, are you having a bad day? Do you need your mommy?

            4. Telling you to eff off is hardly “losing my cool”.

              Let me know if I ever type it in all caps and italics, with underlining. You know, like a dweeb such as you would do.

              Then I’ll know I’ve “lost my cool.”

              Until then, I’ll continue enjoying my delicious sandwich.

            5. LOL – we see that you ‘enjoy’ doing that during your ‘lunch’ – tell me, is that something you would do in a courtroom?

              And fyi, caps, bold, italics is nothing like dropping down to profanity. All that it is is merely breaking up the wall of text and adding helpful emphasis in a medium lacking those personal queues that would normally be available in face to face discussions. Such is commonly accepted on blogs (hint: the Leave a Reply box even helps by listing some of the HTML tags). as usual, you are not quite in touch with reality.

            6. adding helpful emphasis

              Or adding nothing at all except to highlight your inability to articulate a coherent argument and your habit of simply shouting the same incoherent b.s. at everyone who dares question you.

            7. Your posts betray you Malcolm, as they always do (hence the self-FAIL that is your trademark).

              Your tired script of the Vinnie Barbarino “Huh, What?” does not fly. That you want to portray the points I make as incoherent does not fly, because I have asked you questions on these points in the simplest of terms and you have steadfastly run away from the questions that go to the heart of the software as patent eligible subject matter discussion.

              The “nothing” that you see is the “nothing” that you provide to the valid points that are raised.

              And as much as The Critic does not like the exchange between you and I, the fact that you keep running away from the very simple questions is something that I enjoy immensely. For all of your internet tough guy routine, you are nothing but a coward and a bully. I do enjoy watching you fall apart as you attempt to deflect, dissemble and not answer in a direct and honest manner the points that come up in any discussion of software patent eligibility.

              The fact that you don’t understand what a fact is and cannot separate fact from spin is immensely humorous. The fact that you cannot pull your head out of the sand of your anti-software and anti-business method crusades is immensely humorous. The fact that you do not want to grasp the basics of patent law because those basics dictate that software and business methods are perfectly legitimate patent eligible matters is immensely humorous.

              You fight a crusade that you just cannot win. You tilt at windmills and you try to convince yourself otherwise with your ‘great mind’ steeped in insults, ad hominem, AOOTWMD, and a very short list of trite, tired items from your oh-so-limited script. You add nothing of substance to any actual conversation because you are afraid of making yet another admission against interests. And the best part is that you are fully aware of this and it only makes you go nuts all the more.

              Don’t think so? Let’s see you go three months without posting in insults, ad hominem, AOOTWMD, and a very short list of trite, tired items from your oh-so-limited script. Let’s see you go without the poor quality blogging techniques and let’s see you post in a substantive, intellectually honest manner.

              I laugh because you will not do this because you cannot do this.

              Try it. If you are not afraid.

            8. “15.2.1.2
              15.2.1.2.1.1
              15.2.2.2.1.4
              15.2.2.2.1.6
              19.2.1.2.2.2
              20

              And even you have done so at
              15.2.1.2.1.3 and
              11.1″

              Hey anon, why not make a list while you’re at it?

            9. Let’s see you go without the poor quality blogging techniques and let’s see you post in a substantive, intellectually honest manner.

              It’s already been proven, psych0path, that you can’t tell the difference between an honest post and a dishonest one. But unfortunately, you also can’t put down your shiny referree whistle. So you’ll continue to personally insult everyone who disagrees with you because they aren’t genuflecting before your concerns.

              Dennis knows this. We all know it. Been there. Done that.

              You need professional help. Get it soon. It’s going to be a long year for you.

            10. Malcolm: “ Been there. Done that.

              LOL – Come then, come where you have not been, do what you have not done:

              Let’s see you go three months without posting in insults, ad hominem, AOOTWMD, and a very short list of trite, tired items from your oh-so-limited script. Let’s see you go without the poor quality blogging techniques and let’s see you post in a substantive, intellectually honest manner.

              I laugh because you will not do this because you cannot do this.

              Try it. If you are not afraid.

        3. And just for spite, another jab I will throw at you: what was the “Point of Novelty” that the Court allowed in the Diehr case?

        4. As to one aspect of Ned’s “Typical of anon. Accuse others of what you yourself do.” concerning third party interests, it is well established in the archives and here now in the immediate moment that I post only with personal opinions and in no way affiliated with any client.

          It is noteworthy that when I called on others to make such an affirmative (and self-professed binding) statement, that no other regular poster would do so.

          It is also noteworthy that attempted conversations with shills will not run to the logical conclusions of those conversations. Shills have a vested interest to derail any conversation that threatens what the shill hopes to achieve.

          And thus, the perpetual CRP-run away from valid points-CRP again merry go round is ever presented on these threads.

          Gentlemen, when you give me the high road, I will take it. See Sun Tzu. Do not then whine when you are trounced from the high road.

            1. not any discussion on the merits.

              What “merits”? All you do is repeat your own incoherent mindless talking points and references to imaginary “smackdowns” you delivered on previous threads.

              You’re a joke. We get it. Haha. Now run along and polish Gene’s buttons like a good lapdog.

    2. What anon said is right. But, let’s not forget that 1) Benson has been held by academics prior to them being bought off as the most irrational opinion ever for IP and 2) that Benson is based on public policy and findings of fact that need to be examined and held each time that the holding in Benson is used.

      Judicial exceptions are not the law. They are a carry over from common law and require exceptional findings for public policy reason. The SCOTUS does not have the authority to make common law to determine eligibility.

      1. Sorry NWPA, but to the Royal Nine, their exceptions will not be made into dead letters – no matter what the explicit words (and lack of ambiguity in those words) of Congress may be. See Prometheus.

        We have too many tailors present, who adore the mechanism of common law evolution and refuse to see that the power that the Court once had was stripped away in 1952.

        Alas, the king still does not have an answer to the child’s question of “Mommy, why is that man naked?”

        1. Anon, unfortunately the SCOTUS does believe that the 1952 codified their common law despite the fact that there is no indication that this true and that in some cases the 1952 explicitly over ruled the SCOTUS.

          The other odd thing about all this is again: I deliver a useful, new machine that performs information functions and there are a group of people that say the machine is a _____________ (witch.) Bizarre that the witch hunters cannot be shamed into seeing what they are doing.

          1. But, then when you get a witch hunter like Tarantula say that a machine that performs mental steps like a person is unpatentable, then anything is possible.

            Imagine, an ignorant little bought off judge holding that a machine that performs the physical steps that a person can is ineligible?

            It is simply shameful to have a judge like Tarantula on the bench. He presence humiliates our entire country.

            1. an ignorant little bought off judge holding that a machine that performs the physical steps that a person can is ineligible?

              Nobody has held anything of the sort.

              Keep screaming at the sky, gramps.

        2. We have too many tailors present, who adore the mechanism of common law evolution and refuse to see that the power that the Court once had was stripped away in 1952.

          Instead of endlessly whining about the Supreme Court, why don’t you, Eric and Gene just start the impeachment proceedings? What’s holding you back exactly? Chicken? Afraid of what people might think?

          I mean, looking like f00ls has never stopped any of you from opening your mouths before.

      2. “1) Benson has been held by academics prior to them being bought off as the most irrational opinion ever for IP and 2) that Benson is based on public policy and findings of fact that need to be examined and held each time that the holding in Benson is used.”

        Well if academics said it then it must be so! They have so much power!

        “Judicial exceptions are not the law. They are a carry over from common law and require exceptional findings for public policy reason.”

        An interesting hypothesis, maybe you should put that in an amici brief.

        “The SCOTUS does not have the authority to make common law to determine eligibility.”

        I’m sure they’ll be glad to defer to your opinion.

    3. their position in advocating that a programmed computer is eligible per se is dishonest as the day is long
      Read the statute –> machine is statutory and computer = machine; hence, computer is statutory subject matter.

      The plain language of the statute is the law — not too freaking hard to understand. Is it?

      1. The plain language of the statute is the law — not too freaking hard to understand. Is it?
        I see that the rabble rarely likes to address this one.

        1. I see that the rabble rarely likes to address this one.

          In fact, the relationship of the statute to the well-established exceptions to patent eligibility has been discussed at length many times here.

          It’s not terribly interesting, as a practical matter. Whether you believe in the common law exceptions and their viability as a defense or not, eventually the rubber hits the road and you need to decide what you are going to allow to be patented and what you aren’t going to allow to be patented.

          Welcome to the discussion.

          1. you need to decide what you are going to allow to be patented and what you aren’t going to allow to be patented
            That is question that should (must) be left to Congress — not the courts. We can bicker all we want as to what should be done. However, the ultimate decision needs to be made by Congress.

            Welcome to the discussion.
            You call this a discussion? I’ve seen more civil and better arguments from a bunch of 5th graders on a playground.

            1. The Critic,

              B-b-b-but Malcolm wants to pound his table while he has his head in the sand regarding law and facts. He is so proud of his little trick.

            2. B-b-b-but Malcolm wants to pound his table while he has his head in the sand regarding law and facts. He is so proud of his little trick.
              Not advancing the cause here. Focus on the law — not MM. You two are obsessed with one another and this blog is a much worse place for it. Certainly use his posts as a foil for your position, but focus on your position — not him.

              I’ve tried to tell this to you many times before and many different ways — stop feeding the troll. When MM doesn’t substantively respond to one of your posts, then ignore him. Take the high ground.

              Are you here for the law or for MM? I’m here to discuss the law. I urge you to do the same. Perhaps someday this blog will go back to the old days when you would have 20 or 30 different posters comment on a subject. MM will still be here, but all we have to do, every time MM does what he does, is respond to the new poster — “don’t bother with MM, he is the board troll — you’ll be happier just to ignore him.”

            3. However, the ultimate decision needs to be made by Congress.

              The Supreme Court interpets Federal laws. That’s the set-up here in the USA, last time I checked.

              We can bicker all we want as to what should be done. However, the ultimate decision needs to be made by Congress.

              When you grow out of your diapers and are willing to discuss your beliefs about what the patent laws should look like when your Daddy Congress is finished passing them, let everybody know. Here we enjoy discussing patent policy in real time, before the policy is enacted into law. That’s one of the great things about the First Amendment.

              It’s how things are supposed to work. People talk about stuff that they disagree about. Ideally, the best reasoned views that benefit the most people and respect the rights of everybody are the ones that win.

            4. Critic: Certainly use his posts as a foil for your position, but focus on your position — not him.

              That’s impossible for anon to do.

              We’ve tried this, Critic, many times. anon can’t help himself. He will attack other commenters personally regardless of whether they are commenting or not.

              It’s what he does. It’s what he always does. And everyone who disagrees with him is an anti-patent communist who is ignorant of the law and technology and who wants to return to the stone age.

              You really haven’t noticed this, Critic? C’mon. Are you that stoopit?

            5. Are you here for the law or for MM? I’m here to discuss the law. I urge you to do the same.

              Of course I’m here to discuss the law. What law do you want to discuss?

              And tell me this as well: when anon pops and starts accusing you fifty times a day of being a racist, communist, personal property-denying, patent-despising, computer-ignorant shill working for some shadowy group out to destroy America, and then starts putting words in your mouth and posting every day that you’ve “voluntarily admitted” all kinds of nonsensical things that never even crossed your mind, what are you going to do? Just ignore him?

              Right. Sure you will, Critic.

            6. Perhaps someday this blog will go back to the old days when you would have 20 or 30 different posters comment on a subject.

              Right. 20 or 30 different commenters all saying the same thing: “The PTO sucks and I’m tired of these dumb rejections” and “KSR is going to end patenting as we know it!!!”.

              I remember those days well.

            7. Malcom – nice strawman with “The Supreme Court interprets Federal laws. That’s the set-up here in the USA, last time I checked.

              You do realize that there is a very real distinction between interpreting and writing, right? Reading a map is not the same as creating a map.

              attack other commenters personally regardless of whether they are commenting or not.

              LOL – you mean like you attack Gene Quinn incessantly even though he does not even post here? You mean like that?

              Here we enjoy discussing patent policy in real time, before the policy is enacted into law. That’s one of the great things about the First Amendment.

              Translation: Malcolm wants to pound his policy table with his head in the sand of no law and no facts. And he has a First Amendment right to say whatever he wants to say even if what he says is not intellectually honest and even if what he wants to say he would not be able to say in a court. And if you disagree, then you are in diapers and off with your head, because that is how Malcolm the RQ/HD rolls, dabnit Gumby.

              and respect the rights of everybody – translation: infringers’ rights need to be respected too. “benefit the most people” translation: Jane says that the people should all get on their knees because that too benefits the most people.

              the best reasoned views” KA-BLOOEY – Come Malcolm, take up my challenge to you for you to stop posting in your ad hominem ways and actually try to post in some ‘best reasoned” intellectually honest way. LOL – you will not because you cannot.

              putting words in your mouth and posting every day that you’ve “voluntarily admitted” all kinds of nonsensical things

              You keep on dissembling on this Malcolm, but you refuse to say in simple direct straight forward and honest terms that you understand the controlling law of the exceptions to the printed matter doctrine and that you admitted knowing such and then that you attempted to dissemble about both knowing and admitting that you know such. Your problem Malcolm is that you are afraid to give up your belief that you can engage in a discussion on the merits without your dishonest bag of tricks and prevail. Everybody know this and the more that you spin, the deeper the hole that you find yourself in. LOL – with apologies to The Critic, I just love handing you ever bigger shovels and watching you dig yourself deeper and deeper.

              20.3.1.1.1.6: – (snicker) you were about to make a sockpuppet joke weren’t you? Mr. SweetTears. LOL – what self-FAIL.

            8. “However, the ultimate decision needs to be made by Congress.”

              I’m all for that. And when the day rolls around that the congress decides that business methods or software should be included with the other four categories of art, product, comp of matter or apparatus then hey, I say we start allowing claims to such! Until then, what say we not do that?

            9. Um, you do know that they are already there, right 6? That the list is an open list and not a pre-ordained closed list, right? and that the reason why it is not a pre-ordained closed list is tied directly to the nature of invention itself, right 6?

              What does you psych book say about someone who gleefully embraces their ignorance and engages in character suicide as much as you do?

            10. “Um, you do know that they are already there, right 6?”

              No, what I know is that attorneys have tried to cleverly draft them into “already being there” with their draftsman’s art in earnest for at least the last 20 years (and a tiny bit in the years proceeding that) with the federal circuit okaying that the whole time.

              As NWPA is fond of saying, it’s having to shoehorn software into the 4 categories and traditional drafting that really makes all this software patent stuff super complicated and sound like nonsense. It’s pretty blatant, and he straight up admits, that they’ve been shoehorning it in. What you don’t understand about that I don’t know. Though I do know why you can’t understand it. Specifically because you have a hard time understanding other people’s thoughts on the subject.

            11. shoehorn?

              There is no shoehorning necessary 6.

              Where do you get these fantasies of yours? This is not a matter of me understanding others’ thoughts for this art field, this is a matter of your delusions in this art field. Check yourself.

            12. Your delusional symptoms appear to be acting up again with your denial of reality.

              appears quite obvious” – sorry, but that just is not so. You may want to check yourself and seek treatment for your delusions, my friend.

            13. “Your delusional symptoms appear to be acting up again with your denial of reality.”

              Delusional symptoms of what re re?

              Also, NWPA has stated what we’re talking about several times I’m sure he’ll be more than happy to repeat it for us for the millionth time if you’re that interested.

    4. “After the dust settles here, there ought to be an inquiry as to why the PTO failed in its duty to follow law. Next we should take a hard look at the Federal Circuit as an institution.”

      And everyone said: Amen.

  5. The proper analogy is between a car without adjustable seats and a car having adjustable seats.

    Just because you’d rather address your analogy over my analogy doesn’t mean that my analogy is “improper”. Nice try, Humpty!

    Unfortunately for you the prior art is filled with a great many programmable computers. That’s the reality. For the purposes of discussing the lack of new structure in patent claims (try not to run away now — this is where it gets hard for you) the analogy to a car with adjustable seats is quite apt.

    Your position is that when I adjust those seats and describe the result of those adjustments (“increased comfort for passengers whose name begins with J”) the car becomes a new car. That’s the exact argument you make about your functionally-claimed computer implemented j*nk: they’re not claims to “new functions” (although it certainly looks that way to anyone who hasn’t drunk your Patent Fluffers kool-aid), but claims to new machines.

    Don’t try to run away from this now, Tr0llb0y. It’s your bed. You made it. Now you need to lie down in it and when the springs pierce your baby soft behind you’re just going to have to clutch your blankie that much harder. But don’t run away.

    1. And clearly, the fact that a computer is programmable does not then turn and capture all futured programmed states of a computer.

      This is the Morse mistake you make. This is the House fallacy – that the first programmable computer covers all future improvements to the machine. Improvements, by the way, made possible by adding the manufacture and machine component of software. See Nazomi.

      Yes – no doubt, this will cause you to run away yet again.

      1. This is the Morse mistake you make. This is the House fallacy

        Blah blah blah blah Nazomi blah blah box of protons blah blah blah fallacy fallacy blah blah 1908 Supreme Court case blah blah actual law blah blah blah.

        Keep kicking up dust, Tr0llb0y. We all understand what you’re trying to argue. It’s just that you aren’t persuading anybody. In part, it’s because you’re incapable of making the argument in a coherent manner. But mainly it’s because you are trying to defend the indefensible and while habitually, hypocritically ignoring the actual j*nk computer-implemented claims that are floating out there.

        Tell everyone: what’s the “structural” difference between a computer that provides a list of “available real estate” and one that provides a list of “copyrighted movies”?

        And tell everyone: is there a difference between an empty box and a programmable computer? If so, what is it? Please explain what you believe the structural difference is.

        Or is it the case that you believe that a claim to “a programmable computer” is patentable over the prior art simply because you recite a new “functionality” for that computer? And that somehow the description of that new “functionality” is equivalent to a chemist describing the structure of a new chemical and how to make and use it? And the reason it’s equivalent is because programmable computers are so easy to program that the new structure doesn’t need to be disclosed? Isn’t that your position?

        I know you really loathe doing anything other than reciting your usual nonsense (“blah blah Monte Hall blah blah Zamboni blah blah fallacy”) but maybe you can just state for us in really plain terms why you choose to defend the worst of the worst computer-implemented j*nk that’s out there with arguments that quickly blow up in your face. Is it because you’re just a grifter and a bottom-feeder, or is it because all your friends are grifters and bottom-feeders?

        1. Nice rant Malcolm – but there is nothing of substance there.

          Now instead of vomiting your QQ all over the place, how about you not run away from the points that I have made and supply some straight forward honest answers.

          LOL – oh, that’s right, Malcolm does not believe that posts need to be intellectually honest because this is not a court and is merely a blog.

          Go figure.

          1. “but there is nothing of substance there.”

            His brain is physically incapable of seeing anything of substance beyond that in his own mind MM, when are you going to learn this? He can literally only (or just about solely) know that which is in his mind, he has no capability to understand what is the in minds of others. You yourself made it known he was a psycho, when are you going to start making allowances for this unfortunate condition of his?

            Surely you know by now he’s going to respond in the same way every time due to his condition. He’s physically unable to respond in any other way.

            1. Still waiting for you to proved ‘something of substance’ linking the hiring issue to some aspect of patent law, 6.

              Pretty big of you on the accusing end of something that you are actually doing yourself.

              Then again, you are following the number one person on the blog who engages in such vapid accusations: the RQ/HD of AOOTWMD.

              You even have a similar credibility destroying mantra. His is “this is a blog and not a court, so intellectual honesty is not required” while yours is “lawl is all subjective in the mind make up anything you want.”

              C’est La Vie.

        2. MM, the kind of logic put forward by anon (and for that matter, by the AIPLA and by the Rich-led CCPA/Federal Circuit) that a programmed computer or a article of manufacture is “new” thereby automatically rendering the claimed subject matter statutory is, after Benson, so untenable as to almost be sanctionable. It is downright criminal, IMHO, that this doctrine has been allowed to survive this long without anyone seriously trying to squelch it.

          The PTO deserves the highest rebuke for failing in its duties in not taking the issue to the Supreme Court. The reasons that it did not seem obvious. (The PTO deserves a similar rebuke each time it failed to take the CCPA/Federal Cir. to the Supreme Court each and every time Rich overruled a doctrine of long standing that had its basis in Supreme Court law.)

          The Patent Bar seems controlled by self interest and by big patent companies. As you correctly note, and have noted, they always support expanded subject matter, functional claiming, reducing the requirements for definiteness, etc CLS Bank’s brief show beyond doubt the tragic consequences of a Patent Bar led patent law, and I name Rich as one of their movers and shakers. To me, there is and was little doubt as to why the movers and shakers wanted the other circuits removed from patent law decisions. They wanted the Rich-led CCPA to be the sole source of patent law to the exclusion of the Supreme Court if they could manage that.

          The CCPA and the Federal Circuit have been a blight on patent law for a very long time. I daresay, one of the primary reasons is the undue influence of the Patent Bar.

          1. Sanctionable? Criminal?

            Let’s see some legal briefing on such a stand Ned.

            Oh wait, – you only want those opposite of your agenda to be held to that type of standard.

            What a Fn hypocrite.

            Stop Whining. Stop with the Crybaby Veto attempts. And for the love of all that is holy, stop running away.

          2. so untenable as to almost be sanctionable
            Untenable? Who would have thought after hundreds of thousands of patents being issued that rely upon that logic. Ned … have you ever realized that you are in the minority?

            they always support expanded subject matter
            I think they support the scope of subject matter explicitly enunciated in 35 USC 101 — nothing more, nothing less. It those like yourself that are advocating for a judge-made contraction of the (intentionally) broad language of 35 USC 101.

            functional claiming
            Yawn — functional claim is broad, but not indefinite and certainly not prohibited by statute — darn, there is that statute-thing again that keeps getting in the way of your ideal patent realm.

            reducing the requirements for definiteness
            IMHO, the Federal Circuit has decided upon the correct standard. Anything written in the English language can be argued as “indefinite” when you pay the appropriate tithe to a good litigator.

            As to the Federal Circuit, Ned is a firm believer in throwing out the baby with the bathwater.

            1. The Critic: Who would have thought after hundreds of thousands of patents being issued that rely upon that logic. Ned … have you ever realized that you are in the minority?

              I missed the part where the b.s. self-serving claptrap used by the Federal Circuit to coddle functionally claimed computer implemented junksters was put to a vote. Did someone take a poll that I missed?

              I think they support the scope of subject matter explicitly enunciated in 35 USC 101 — nothing more, nothing less

              Right. Including purely mental processes, of course, and information storage devices and manufactures that differ from prior art devices an manufactures only by the content of the information stored on them. Is that view of subect matter eligibility also supported by “a majority”? Please let everyone know the answer and provide your evidence.

              functional claim is broad, but not indefinite

              It depends on the function, I would think. But indefiniteness is just the beginning of the problem, as everyone who isn’t deeply invested in the status quo already understands and is willing to admit.

              Anything written in the English language can be argued as “indefinite” when you pay the appropriate tithe to a good litigator.

              Ah yes. The tired non-argument also known as “people will always argue so why bother fixing anything?” non-argument on behalf of the status quo.

              Go ahead and stick your head in the sand. We’ll wake you up when we’re ready to put the fork in functionally claimed junk once and for all. Hint: it’s going to arrive like a big steamroller, not unlike Prometheus. Have you thought about a fallback position or is this one of those “fight to the death” subjects where you’re going to sit there on your stumps for five years and pretend “it’s only a flesh wound”?

            2. The Critic, the fact that the PTO does what the Federal Circuit tells the to is no endorsement.

              The fact that the PTO does not challenge the Federal Circuit when it is not following the Supreme Court is quite another.

              Application of Benson relied on Bernhart for this:

              “Realistically, the process of claim 13 has no practical use other than the more effective operation and utilization of a machine known as a digital computer. It seems beyond question that the machines — the computers — are in the technological field, are a part of one of our best-known technologies, and are in the “useful arts” rather than the “liberal arts,” as are all other types of “business machines,” regardless of the uses to which their users may put them. How can it be said that a process having no practical value other than enhancing the internal operation of those machines is not likewise in the technological or useful arts?”

              Benson was overruled, of course, holding the method of programming of a computer in that case ineligible. Benson effectively overruled the cases, including Bernhart, upon which Application of Benson relied. Merely programming a computer is not sufficient to make a claim eligible. It would be farcicle to conclude that a programmed computer was eligible per se after Benson.

              But we know the animus of the CCPA to Benson that ended in State Street Bank, a holding a computer programmed to conduct a business method was eligible. That holding, of course, was heavily criticized in Bilski and by the entire world except by patent zealots, and of course, the average patent attorney who saw nothing but big bucks heading his way.

              But any honest person would have known, instantly, that Bernhart was overruled.

              And since Benson, the Supreme Court has double-down, not backed off, of Benson. The approach of Rich, the PTO and the patent bar that one first sees whether the claims is to a programmed computer or a CRM and if so, stops the 101 inquiry, not even remotely a tenable proposition. The Federal Circuit is and was in defiance of the Supreme Court and the PTO is acting as its accomplice in this crime.

            3. Ned,

              Merely programming a computer is not sufficient to make a claim eligible

              I know that you do not like me telling you what the holding in Benson is not, so why do you continually try to portray the holding as something it is not?

            4. MM writes “blah, blah, blah”

              Sorry, stopped reading your posts a long time ago. Lots of noise, very little signal.

              I keep asking this of the non-MM posters — stop feeding the troll. Just ignore whatever he writes and the world will be a better place.

            5. The Critic, the fact that the PTO does what the Federal Circuit tells the to is no endorsement
              Hmmm … the USPTO is obligated to follow Federal Circuit law …. hmmm, ahhh … so you are advocating that the USPTO go out on its own?

              Benson effectively overruled the cases
              The claims specific to Benson were determined to be not eligible. Benson did not effectively overrule everything else. Benson is bad law — period. It was written by a terrible judge, with a terrible understanding of the facts, and based upon reasoning more suited under 112 than 101. Every time you glowingly mention Benson, my opinion of you drops yet another notch.

              It would be farcicle to conclude that a programmed computer was eligible per se after Benson
              It requires blatant ignorance of the ACTUAL STATUTORY LANGUAGE to conclude that a computer (no matter how programmed) is ineligible statutory subject matter. Computer = machine. The plain language of the statute always rules.

            6. The Critic,

              It is not so much ‘feeding the Troll’ as it is watching the Troll contort and destroy the agenda that he hopes to push.

              Seriously, I am surprised that those with the same agenda do not try to shut Malcolm down, seeing as Malcolm makes more points for the patent side with his inanity and lack of scruples, than he could ever hope for towards the anti-patent side.

            7. Malcolm makes more points for the patent side with his inanity and lack of scruples

              Can you speak louder? Maybe all caps and bold?

              It’s hard to hear what you’re squealing from underneath the wheel of the steamroller.

              Shouldn’t you be spending more time trying to find an exorcist to cure Mark Lemley?

              ROTFMAO

            8. Critic: The plain language of the statute always rules.

              101 does not plainly say that “anything that you can describe as a machine in a claim is eligible for patenting”.

              Little kindergartners seem to have a real hard time understanding “plain language.” Perhaps it’s because they’ve been coddled so much they have come to believe that the world revolves around them.

              Eventually everybody needs to grow up. Even you, “Critic.”

            9. Sorry, stopped reading your posts a long time ago.

              No problem. Just read Prometheus v. Mayo again. Or have you stopped paying attention to the Supreme Court, too?

              LOL.

            10. I am surprised that those with the same agenda do not try to shut Malcolm down, seeing as Malcolm makes more points for the patent side with his inanity and lack of scruples
              It all comes down to the signal to noise ratio. With so much noise, the signal rarely gets through. The board loses much of its value when 5 or 6 posters generate 90% of the posts — particularly when they are going over the same points again and again and again and again. There is such little signal these days.

            11. It all comes down to the signal to noise ratio. With so much noise, the signal rarely gets through.

              Indeed, “Critic”. That’s why your li’l buddy “anon” spent years here trainwrecking every thread using hundreds of different sockpuppets until Dennis busted him. Now he plays pretty much the same game with his drive-by insults, every day of the week.

              going over the same points again and again and again and again

              The reason we keep going over the same points is because folks like you keep bringing up the same zombie arguments.

              Do you really think everybody is as st00pit as you?

            12. It requires blatant ignorance of the ACTUAL STATUTORY LANGUAGE

              Shout louder. It makes you more persuasive.

              Really. Look how well it’s worked for your li’l buddy anon. He’s done wonders for the Patent Everything All The Time community, and it’s due in part to his endless reliance on bold and all caps typefaces to make his sooper dooper important points.

            13. Malcolm once again in full AOOTWMD mode:
              trainwrecking every thread
              keep bringing up the same zombie arguments

              What a t00l.

              (bit if you want to be really effective, just drop into profanity…. or see if you can borrow any of Malcolm’s tired script elements – you know the ones, the ones that symbolize the very worst of poor blogging).

            14. 101 does not plainly say that “anything that you can describe as a machine in a claim is eligible for patenting”.
              It says “any” and the only limitations on “machine” is that it is new and useful. Plain language of the statute — say it again … “plain language of the statute.”

              Shout louder. It makes you more persuasive.
              Did it hurt your ears? Poor baby. Do you need a hug?

              Just read Prometheus v. Mayo again.
              Was it about software? or a machine? No? Oh wait, it was about one of those awful claims drafted by those biotech people — (ick, as a whole, they easily write some of the worst claims I’ve ever seen). Frankly, not interested.

              why your li’l buddy “anon” spent years here trainwrecking every thread using hundreds of different sockpuppets until Dennis busted him
              Actually, we had a vibrant community on this blog before Dennis pretty gave up on any sensible troll-reduction measures. Nowadays, there is MM, Anon, Ned, 6, NWPA, and MaxDrei as the main posters. There is a second tier of posters, but the above six produce something like 80-90% of the posts. If threads have been trainwrecked, I’ll point my fingers at those six.

              No offense to my philosophical brethren of Anon and NWPA, but they repeat the same points over and over and over and over again as well, and I don’t need to read the same thing over again 50 times. As for Ned, 6, MM, and MD, I haven’t seen anything original from them in a very long time either. It is the same blah, blah, blah, blah, blah all the time.

              As soon as I see a thread running back and forth between Anon or 6/MM/Ned or NWPA and the same, I mostly ignore it. Someone will make a (stale) point. The other will trot out a (stale) response, and then it devolves into name calling after about 2 or 3 more posts (if not sooner). Anon thinks MM doesn’t help his side. However, Anon doesn’t help my side with comments like “Ned — you know what they said in Benson about software … what is it?” Arguments like this do nothing to advance my cause, it is an attack on Ned but fails to convey to the casual reader what Benson actually stated. What Benson actually stated (i.e., “It is said that the decision precludes a patent for any program servicing a computer. We do not so hold.”) is important. Don’t wait for Ned to share it (because he won’t) and that is an important point to make.

              Anon’s problem is that he is so caught up in proving MM, Ned et al. wrong that he forgets that good blogging is about not winning points against the other poster but persuasively presenting his point of view to the casual reader. The casual reader, however, is quickly put off by the personal attacks on both sides.

            15. Hmmm,

              Well Critic, seeing you light into Malcolm every bit as much as I do, it is hard to take your request to ignore him that seriously.

              But tell you what, I will think about it.

              Won’t change the Malcolm CRPfests though.

            16. we had a vibrant community on this blog

              In fact, it was pretty much an echo chamber, not unlike Gene’s blog today. I remember it well. If you disagreed with the patent fluffing screechers, you were immediately labeled “an Examiner” or worse.

              Speaking of which, why don’t you go there and complain to Gene? I’m sure he’d love to please you.

              say it again … “plain language of the statute.”

              Is this your idea of a “vibrant” discussion, Critic? I can read. I know what 101 says. I also know what it doesn’t say. There’s room for interpreting the statute and there’s room for the Supreme Court to hold that a claim does not become eligible merely because the word “machine” appears in the claim. In addition, we have the fact that the Supreme Court and everybody else in the world understands that Congress never intended purely mental processes to be eligible for patents. And yet nothing in the statutes plainly says this. So what should be done about it, given that the Supreme Court has held that they aren’t eligible so there really isn’t much for Congress to “fix” (unless it’s to satisfy some allegedly “principled” “critics” such as yoursel)? Or do you think that purely mental processes should be eligible? Let everybody know what you think, and why. Step up to the plate.

              Was [Prometheus v. Mayo] about software? or a machine? No? Oh wait, it was about one of those awful claims drafted by those biotech people

              In fact it was about quite a bit more than that, which many of us understood for years prior to the original district court case. The case is about whether patents can be used to protect information — whether that information is a “natural law” or any other kind of fact, or any kind of correlation, real or imagined, in any field. And the answer (surprise!) is: no, patents can’t be used for that. It’s an extremely important case, and it’s a case that will never, ever be overturned.

              I’m happy to discuss this further if you are confused about it (and you do seem to be confused).

            17. purely mental processes

              LOL – talk about your strawman.

              Um, you do understand that “purely” is kind of ruled out when you have a machine in the claim, right?

              You know that this give me the excuse to use one of my favorite words, right?

              Anthropomorphication. Yes, Malcolm, machines really, really do not think. Machines do not have First Amendment rights.

              you do seem to be confused” So declares the RQ/HD. LOL – but ask him to square the Prometheus decision with the case most on point and professed to not have changed, and all his “English as a first language” skill won’t save him from throwing his own little pet theory on a bonfire of FAIL.

        3. “what’s the “structural” difference between a computer that provides a list of “available real estate” and one that provides a list of “copyrighted movies”?”

          Sometimes I regret my role in stirring the “structural” pot quite so much as I did. I mean sure, it cuts to the heart of the matter and all that, leads to rejections that come back unanswered and all that. But dear jebus I can’t say that I meant to hear about it every single day of my life.

        4. “Is it because you’re just a grifter and a bottom-feeder, or is it because all your friends are grifters and bottom-feeders?”

          He’s more of a prospective grifter/bottom feeder than actually being one just yet.

    2. Your position is that when I adjust

      Clearly not, Malcolm – but nice strawman. This is why I corrected your fallacy.

      Pay attention.

      1. Clearly not

        Clearly exactly as I spelled it out, Tr0llb0y. Cripes, you really think people are that st00pit not to see through your garbage?

    3. “Just because you’d rather address your analogy over my analogy doesn’t mean that my analogy is “improper”.”

      Interpersonal control. Anon needs it bro.

      1. LOL – noting that Malcolm’s analogy is a fallacy is not ‘controlling’ the fallacy 6.

        You really need a new schtick.

        1. noting that Malcolm’s analogy is a fallacy is not ‘controlling’

          Again: the irony is completely lost on you.

          You are a genuine idi0t.

          1. LOL – not at all. 6 is really serious about thinking I ‘need control.’

            Maybe you need a dictionary from this reality… one from planet Earth. You do know that you are on planet Earth, right?

            1. ” not at all. 6 is really serious about thinking I ‘need control.’”

              It’s kind of funny that even now you don’t understand that is why you do what you do. But it’s alright, most people don’t understand it at first. As time goes by, just consider it. And don’t consider it a slight. It’s how you were born, or how the environ affected you as a youngen (the experts aren’t 100% clear on this just yet) leading to your mental development being a bit different than the everyman. It isn’t like it is your fault. I even saw a story the other day noting why psychopaths probably developed in terms of evolution and were likely key to our early ancestors survival. Just because they don’t fit in to our modern society quite as well as the ancient societies doesn’t mean it’s a slight to have the condition. And as to the OCPD, meh, you can probably get over that with some therapy and maybe a drug, it isn’t quite as permanent, that’s more of just a willpower thing.

        2. ” noting that Malcolm’s analogy is a fallacy is not ‘controlling’ the fallacy 6.”

          No, its you attempting to control HIM re re. Interpersonal control.

          Though I should probably cut you some slack, I know that the concept of “interpersonal control” is hard to grasp. I would never have understood it if I didn’t have you here for me to demonstrate it for me to observe in the wild.

          1. Wrong again 6 – I am not trying to control him. At all.

            Now trying to have a meaningful and intellectually honest conversation, yes – that is what I am trying to do.

            What is the ‘psychosis’ for wanting honesty, 6?

            1. ” I am not trying to control him. At all.”

              Mhmmm. I see. That’s why you’re always offering him or someone else “a way out”, aka behavior you’ll let him get away with without you hounding him.

              “Now trying to have a meaningful and intellectually honest conversation, yes – that is what I am trying to do.”

              Oh look, another offer of “a way out” of anon now attempting to control me. (except even better, anon phrases it as a declaration, a command “now [do] x”) All I have to do is submit to anon’s control of my behavior (here posting) and he’ll kindly not hound me.

              I can see you’re still pretty far from understanding what an attempt to control is. Considering your shaky grasp on what power is that isn’t particularly surprising. So let’s take it slow. Perhaps I should roleplay you for a bit just so you get a feel for what an attempt to control might look like before we get into formal definitions or anything like that which might be difficult to understand on first blush. Specifically let’s focus on interpersonal control. I’ll keep you in the loop as the days go by.

            2. Apparently your delusions are centered on control issues, 6.

              Hmm, that might explain your power-mad-bureaucratic tendencies. I am not sure yet how you fold in your character-suicides though. Any luck finding that?

    4. “Just because you’d rather address your analogy over my analogy doesn’t mean that my analogy is “improper”. Nice try, Humpty!”

      Profound need for interpersonal control.

  6. Tr0llb0y: I have used the logical extreme analogy of a big box full of electrons, protons, neutrons and all of the elements – and the same House “logic” applied to my big box eviscerates not only all biochemistry, all chemistry, but all manufactures and machines as well.

    Kookoo McPatentpants is in rare form today.

    1. “I have used the logical extreme analogy of a big box full of electrons, protons, neutrons and all of the elements – and the same House “logic” applied to my big box eviscerates not only all biochemistry, all chemistry, but all manufactures and machines as well.”

      Watch everyone. He makes another list. And another. And another. And another. He’ll be making those lists quite a lot.

      1. Watch everyone. He makes another list. And another. And another.

        Kinda reminds one of how the softie woftie crowd likes to chuck in meaningless, obvious “limitations” in order to make their claims look patent-worthy. Here we have “anon” citing to a list of his own incoherent bogus arguments as if piling them all together somehow makes his argument more compelling.

        Nobody could have predicted. I’m also reminded, again, of the way the creationists argue. It’s just endless dust-kicking, strawman-battling and goalpost-moving.

        The point of all that obfuscation, of course, is to continue to avoid addressing the fundamental problems with the present system, e.g., granting “information processing” claims that differ from the prior art “technology” only by the content of the information content being processed or, worse, by an abstract description of that information content (e.g., its legal status); or the granting of claims to “new functionalities” for ancient machines and systems based solely on the recitation of those new functionalities.

        anon will never speak to these problems because for him these aren’t problems at all, but opportunities. He’s a grifter and a bottom-feeder. Everyone else can go screw themselves.

        1. I’m also reminded, again, of the way the creationists argue. It’s just endless dust-kicking, strawman-battling and goalpost-moving.

          LOL – Malcolm and his AOOTWMDs – so very precious.

  7. Tr0llb0y: ‘movies, and books and the fine arts aspects cannot be used in a legal argument. The simple fact is that they cannot.

    LOL. Bow down everybody. Patent Jeebus has spoken yet again.

    In spite of this most recent tablet of absolute knowledge brought down by from Mount Patentpuss, it turns out that in our broken patent system, these “aspects” can be used (and are routinely used) to obtain patent claims over prior art that discloses different “aspects.”

    Go figure.

  8. link to pando.com

    The “effective date” of Google’s first wage-fixing agreements, early March 2005, follows a few weeks after Steve Jobs threatened Google’s Sergey Brin to stop all recruiting at Apple: “if you hire a single one of these people,” Jobs emailed Brin, “that means war.”

    Jobs threatened Brin and Google on February 17, 2005; nine days later, Apple’s VP for Human Resources sent out an internal email to Apple recruiting:

    “All, Please add Google to your “hands-off” list. We recently agreed not to recruit from one another so if you hear of any recruiting they are doing against us, please be sure to let me know. Please also be sure to honor our side of the deal.”

    That was February 26; on March 6, Google’s identical non-solicitation agreement with Apple became “effective.”

    This timeline is important to establish because it demonstrates precisely what makes this scheme illegal: secret cross-agreements between two or more parties to fix wages in the labor market, at a time when tech engineer wages were soaring, threatening profits.

    Promote the progress!

    LOL. Yes, it’s oh-so-important that the patent system continues to coddle these desperate, “innovative” shmucks.

      1. please show how any of that rant is related to patents.

        Already did: “Yes, it’s oh-so-important that the patent system continues to coddle these desperate, “innovative” shmucks.”

        Let me know what part of that you find difficult to understand, Tr0llb0y.

        1. The point of your post has nothing to do with patents.

          Sure – they are tech companies, but the point of your post has to do with hiring practices, not patents.

          Or do you think that any problem with any company that happens to use the patent system is tainted by patents?

          You really need to get into a line of work for which you can believe in the work product produced.

          1. The point of your post has nothing to do with patents.

            Sure it does. The point is that the PTO should stop coddling these and similar companies. They don’t need to be coddled. They don’t deserve to be coddled. Neither do the grifters and wannabees like you who prey on and/or wish to emulate these companies.

            You really need to get into a line of

            *click*

            Get your meds adjusted, Tr0llb0y. It’s going to be a long year for you.

            1. Again Malcolm – you show no point related to patents.

              You are making a value judgment and the only item in your post at 16 was based on hiring methodology. The same can be seen to apply to any companies – including those that do not have patents.

              Your denial of reality does not change when you retreat to your vapid and trite script of *click*-meds. You only highlight just how vapid you are.

            2. “Your denial of reality”

              By which anon means the reality as seen through his eyes only. Which, in his mind, is the only possible view of “reality”.

            3. LOL – from the guy who thinks this reality means that the Britney Spears CD is the same thing as a Microsoft Operating CD…

              Sorry 6 – but your script is old and tired.

              The facts and reality I speak of are not facts and reality because I speak of them. The ar simply the facts and reality we have. I speak of them because they support my position.

              I have the law on my side and I pound the law.
              I have the facts on my side and I pound the facts.

              I even have policy on my side.

              You, on the other have, have no law and no facts, leaving you to only pound the table.

            4. The same can be seen to apply to any companies

              I didn’t post about “any companies”, nimr0d. I was posting about some very specific companies whose names appear in these threads on a near-daily basis and who are responsible for filing massive reams of junk patents every year that are indistinguishable from the junk being asserted by Alice.

              You probably also noticed whose wages were being fixed by these wage-fixing t00ls?

        2. “Let me know what part of that you find difficult to understand, Tr0llb0y.”

          Remember his condition, he not only finds it “difficult to understand”, it is “literally impossible for him to understand”.

          He cannot see things from your point of view (or anyone else’s for that matter) no matter how hard he tries MM. His brain prevents it.

          1. 6,

            Please show the direct item in Malcolm’s post at 16 that relates to patents and explain the relation.

            Tell me then in your response how your brain makes this connection – what is the nature of the connection?

            I eagerly await your oh-so-brainy-and-yet-touched-with-human-emotion answers.

            1. That’s not an answer, 6 – you remain silent on the very point being discussed. Turning as you do to Malcolm and saying “see” is quite meaningless.

    1. Yeah I’m actually a bit surprised that they’d do something so blatantly illegal and then record it all of their emailbutts.

      1. The illegality (or not) is not associated with patents, 6.

        But please, your answer to the association should be most, um, ‘enlightening.’

        Can you provide some association that is simply not some made up fabrication?

        We await.

        1. The illegality (or not) is not associated with patents

          Patent Jeebus is here to tell everyone what “associated” means. Bow down, everyone.

          1. LOL – Malcolm I asked you to explain the association.

            The only vapid answer so far is the name of the company.

            The completely unrelated human resource time of thing you post has nothing to do with patents or patent law, and yet you want to imply that it somehow does.

            But please, Malcolm, provide some substantive measure of this “associated” thingie. Is there some application number related to this human resource topic of yours you shared at post 16? Any sense of tie in (other than the name of the company?) Any legal concept tie? Please, oh please, Malcolm, what connects the two disparate legal realms?

            1. I asked you to explain the association.

              I already did.

              The only vapid answer so far is the name of the company.

              An answer is not “vapid” just because you say so, Tr0llb0y. The names of the companies involved in this wage-fixing racket are the names of companies who ritually abuse the patent system in the exact manner ritually promoted by you, hundreds of times each week. And that wasn’t the “only answer.” I already asked you to note whose wages were being fixed. Do you need this spelled out for you more plainly, or can you graduate kindergarten today and figure it out for yourself? I’m happy to lend a helping hand again if you need it. I’m sure that nobody else here needs it. Just you.

            2. Is there some application number related to this human resource topic of yours you shared at post 16?

              Sadly, there are quite a few j*nk patents in this area, although you will surely get down on your knees and fluff all of them if given the chance. Try this incredible piece of sh*t on for size:

              link to google.com

              1. A method of determining compensation for an hour of work to an employee, comprising:

              determining, with a computing device, a base hourly wage by calculating whether payment for the hour of work is a base rate or an overtime rate, wherein the base rate is paid if the hour of work occurred during regular work hours, wherein the overtime rate is paid if the hour of work occurred during hours worked beyond a predetermined overtime threshold; and

              determining, with the computing device, a premium hourly wage, wherein the premium hourly wage is determined by:

              determining the number of minutes actually worked within the hour of work; calculating an earned hourly wage based on the number of minutes actually worked within the hour of work and a per-minute rate; and subtracting the base hourly wage from the earned hourly wage; providing the base hourly wage to the employee; and providing the premium hourly wage to the employee if a result from the subtracting the base hourly wage from the earned hourly wage is greater than zero.

              What an incredibly broken patent system we have.

  9. I have once again scanned the brief. In brief it sets out some excellent arguments. Brief thanks should be given once again to Dennis for drawing it to our attention. And those who do not confine themselves to the subject matter of the brief should be briefly consigned to oblivion. Brevity as Polonius said is the soul of wit.

      1. It is Sunday, and I have better things to do today than to be rude to Anon. Tomorrow I have to complete an article to meet a deadline. Normal irony will be resumed as soon as possible.

            1. Sorry Paul but you mistook my quote.

              The american phrase “When in Rome” indicates actions taken in accord with the locale you are in, or here, to the level of the combatants. Thus, the combatants, being witless (again, not you), leads directly to the lack of brevity.

              Your quote on Polonius (specifically, where he lived) is not material to my response.

    1. NEW!!!!!!!

      The TT brief skips over and completely!!!! ignores that 101 requires a NEW machines, process, manufacture or composition.

      “New” was added to the statute in 1793, and that phrase coexisted in the same sentence with ” not known… before the application.” Newness and not known are independent and distinct requirements. Newness therefore cannot mean simply not disclosed by the prior art.

      The main argument that the addition of a generic computer to an otherwise nonstatutory method claim does not make a new machine is because the machine is not new.

      1. Newness therefore cannot mean simply not disclosed by the prior art.

        Define this “newness” then, Ned.

        Please be sure to validate your definition to any standard that you wish all parties to the conversation will maintain (hint: your post at 15.2 merely claiming your interpretation of the 1793 statute is a rather low bar).

          1. Funny that Malcolm, every time that I have responded to your accusation and asked you to provide a bonafide lie, you have failed.

            The fact that you think that intellectual honesty is not required with posts because this is a blog and not a court indicates the age old maxim (and typical Malcolm mantra of AOOTWMD): 1iars always think that everyone else is always 1ieing.

            So there goes your proof (said in the best Joe Jackson tones).

            1. Are you saying that you never voluntarily admitted knowing the controlling law regarding the exceptions to the printed matter doctrine?

              Straight up Malcom – no dissembling or diversions – a simple, honest answer.

              And be aware that the archives have been restored.

            2. you think that intellectual honesty is not required with posts because this is a blog

              You have fundamental problems with the English language because (1) you’re fundamentally a dishonest person and (2) it’s not your first language.

              These defects in your ability to understand what others are talking about lead you to put words in their mouths. By doing so, you invariably create strawmen or you simply end up looking like a “crazy person” and/or a s0ci0path (e.g., a pathological liar or someone suffering from some other severe personality disorder).

              Get help. It’s going to be a long year for you.

        1. Prometheus, and Flook for that matter, merely adding the convention (not new) to subject matter otherwise ineligible will not save it.

          The computer is old. The new subject matter is ineligible.

          1. The computer is old.

            Electrons are old.
            Neutrons are old.
            Protons are old.
            Atoms are old.
            The elements (for all intents and purposes) are old.

            The mechanism by which any of these things are put together are old.

            You need a better argument, Ned.

            Further, For some reason that you have not yet provided a legal position for, your are still insisting on treating software as a manufacture and machine component, built for a utilitarian purpose covered by the Useful Arts as non-eligible.

            By your own standards, your post is a FAIL.

            1. anon, anyone can see through Rich’s hypocrisy.

              Flook held that the reason law of nature and phenomena of nature are not eligible under 101 is that they are not new regardless that they are not known.

              Add a old machine to an ineligible process and what do you get?

            2. Sorry Ned, but your post at 15.2.1.2.1.1 does not meet the legal standard that you have stated that you desire.

              I suggest that you not attempt to spread your poisonous feeling about the esteemed assistant writer of the 1952 Act and later Judge in the manner that you are obsessed with. It is most unprofessional and only reflects poorly on you.

              Please realize (as I have properfully provided in proper legal form – a valid pincite) that Flook has been modified per the Diehr decision, and amend your arguments accordingly.

              Further, please recognize that your ‘old machine’ position has been debunked. These are the very points that I have provided to you and that you insist on running away from. Have the professional decency to either answer the points raised or at the very least, desist from making fallacious arguments that ignore facts, that ignore the law and that ignore common sense.

            3. Electrons are old. Neutrons are old. Protons are old. Atoms are old. The elements (for all intents and purposes) are old.

              The mechanism by which any of these things are put together are old.

              Nobody claims any of those things, you sad, pathetic m0r0n.

              People do claim old machines, however, by simply tacking on new “functionality” and other ineligible subject matter. Likewise, people have attempted to claim ineligible information processing steps by tacking them onto an old data gathering step.

              Try to keep up, Tr0llb0y. I know it’s hard. The Supreme Court spanked you hard in Prometheus v. Mayo and you’re about to get your lips slapped again. Why keep acting the complete f00l?

            4. please recognize that your ‘old machine’ position has been debunked.

              Please recognize that just because you say something has been “debunked” does not make it so. In fact, the opposite is more likely to be true, as is the case with most of the bizarre drivel that flows out of your mealy mouth.

            5. LOL – you ask me to ‘keep up’ Malcolm as you continue to run away.

              Tell me again how an ‘oldbox’ without being changed can do something that it could not do before being changed?

              Malcolm? Malcolm? Come back Malcolm.

            6. as is the case with most of the bizarre drivel

              Malcolm’s stock in trade: AOOTWMD.

              Come back when you are ready to give straight up honest answers to the very simple points that go tot he heart of the software as patent eligible material discussion.

            7. Tell me again how an ‘oldbox’ without being changed can do something that it could not do before being changed?

              Tell everyone exactly what you mean by the terms “being changed” and “do something that it could not do before.” Try to keep in mind the context: your “oldbox” is a programmable computer that is capable of being programmed to process any kind of information. Nobody is claiming “oldboxes” based on their new functions — that would give away the game. Even the PTO and their enablers at the Federal Circuit could figure that one out.

              The fact is that my computer is “doing something right now” that it hasn’t done before. Therefore, I must have “changed it.” Right? Therefore, it’s a new computer. Right?

              Really deep stuff, Tr0llb0y!

              Your attempt to peddle this Monte Hall Experiment as some sort of “devastating” retort to those of us concerned about endless reams of computer-implemented junk flowing in and out of the patent office is beyond pathetic. It’s a stillborn argument that you parade around with on a stick, as if the fact that you’d stoop so slow as to actually pretend it’s convincing to anyone somehow adds compelling force. It doesn’t.

              It’s not unlike your pathetic attempt to cry “Diehr! Diehr! Claims as a whole!” in defense of Prometheus’ claims while the rest of the non-invested universe could see immediately that you were simply fluffing another pile of quintessential junk that had to be flushed down the toilet (and was).

              I’m glad the archives are restored. There should be no questions about who among us stands proudly behind the worst of the worst junk that’s out there. That would be you, anon.

            8. capable of” is simply not the same things as configured to.

              You are doing that ‘all future inventions’ thing again.

              The Grand Hall was a thought experiment – and has been given form in the Nazomi case. For all of your posturing Malcolm, these things go without being addressed by you in any real and honest manner.

              You have no table of law.
              You have no table of fact.

            9. “ capable of” is simply not the same things as configured to.

              In the context of a claim that merely recites functional language after the term, there is no meaningful distinction. It’s just a hand-waving term. One could just as easily use the term “designed to” or “modified in order to achieve the result blah blah blah”.

              You know this already, of course, but you’d rather spin around, play games and move the goalpost than face the facts, which aren’t at all helpful to you.

              You are doing that ‘all future inventions’ thing again.

              No, I’m no I’m not at all opposed to new computer inventions or the patenting of such inventions. I am opposed to claims that do nothing except recite old computers/systems and new functions. So are lots of other very well informed and educated people, including very many people who invent these “new computers”. And quite a few judges too. Have you noticed?

              The Grand Hall was a thought experiment – and has been given form in the Nazomi case.

              Nobody cares. Why should anyone care about this gobbledygook?

            10. In the context of a claim that merely recites functional language after the term, there is no meaningful distinction.

              Sorry but this is simply not true in fact, or in law.

              Yes, I know that such makes you sad. But hey, you still have your First Amendment rights to try to blow smoke about something you know that is untrue. That and your puppy should help you remove the sad.

              you’d rather spin around, play games and move the goalpost than face the facts, which aren’t at all helpful to you

              LOL – lovely bunch of AOOTWMDs. You miss the part though that law is on my side, that facts are on my side. Too bad, so sad.

              except recite old computers/systems and new functions…Nazomi… nobody cares” What a hypocrite – you run away from the simple questions as to how ‘oldbox’ without change can do something it could not do without the change, and you run away from actual case law showing this, and then accuse me of not explaining things. Stick those fingers deeper in your ears Malcolm. Stick your head deeper in the sand.

              But when you want to have an intellectually honest conversation, you will have to recognize the points I put in front of you. You will have to stop running away.

            11. “Sorry but this is simply not true in fact, or in law.”

              It’s simply not true!

              You just can’t stop exhibiting symptoms. Everything must be right, or it must be wrong eh anon?

            12. LOL – 6, believe it or not there are many things in life that do happen to be “either right or wrong.”

              Knowing the time and place for relativistic “subjective all in the mind make up anything you want” CRP and when such is not appropriate is not a sign of psychosis. It is a sign of maturity.

              You may want to start reading a different book…

          2. See also 35 USC 101: “or any new and useful improvement thereof

            See also Nazomi

            See also the recent ITC case, and our discussion thereof (including your own admission).

            Finally, see Ned run away.

            1. If you understand the case, you would see that it is an application of the Grand Hall experiment.

              You know, another thing that you keep running away from.

            2. “If you understand the case, you would see that it is an application of the Grand Hall experiment.”

              Yes, we all know the federal circuit buys into that thinking. We’ve all known that since Alappat, I don’t see why you’re so taken with this latest in a long line of decisions that confirm that the Federal Circuit still subscribes to the same way of thinking that it did in Alappat and is deeply committed to propping up their house of cards. I mean, the real news would be a case that went against that coming out of the fed. circ. right?

              I guess we could just chalk it up to your already known mental condition, but that seems a bit simplistic. Maybe there’s a touch of OCPD as well? Let’s find out!

              ———————-

              “The main symptoms of OCPD are preoccupation with remembering and paying attention to minute details and facts, following rules and regulations, compulsion to make lists and schedules, as well as rigidity/inflexibility of beliefs or showing perfectionism that interferes with task-completion.”

              Let’s break this down shall we?

              The main symptoms of OCPD are preoccupation with remembering and paying attention to minute details and facts (ala his precious “controlling lawl”), following rules and regulations (omg omg omg you must follow the controlling lawl!), compulsion to make lists and schedules (“Electrons are old. Neutrons are old. Protons are old. Atoms are old. The elements are old.”), as well as rigidity/inflexibility of beliefs (anon’s displayed inflexibility of beliefs is truly legendary, worthy of song for ages to come) or showing perfectionism that interferes with task-completion (don’t know the rl effects of his inflexibility just yet, but we can presume from his “appeal motto” that it affects his work to get patents at least somewhat).”

              Continuing:

              “Perception of own and others’ actions and beliefs tend to be polarised (i.e., “right” or “wrong”, with little or no margin between the two) for people with this disorder. As might be expected, such rigidity places strain on interpersonal relationships, with frustration sometimes turning into anger and even violence. This is known as disinhibition.”

              So let’s see. Perception of own and others’ actions and beliefs tend to be polarised (i.e., “right” or “wrong”, with little or no margin between the two) for people with this disorder. (Obviously we have copious amounts of evidence regarding anon’s thoughts on there only being right and wrong on issues, he posts more every other week at least) As might be expected, such rigidity places strain on interpersonal relationships (to say the least with other board members), with frustration sometimes turning into anger (one can practically hear the howls of anger both against and by anon in just the written word alone) and even violence (well it would be violent but he’s a pussy so yeah he has trouble fulfilling that one). This is known as disinhibition.”

              Disinhibition is a plague on these boards thanks to anon.

              Thanks anon!

              ” OCPD occurs in about 1% of the general population. It is seen in 3–10% of psychiatric outpatients.”

              In other words, if he has the one condition, there is an elevated chance of us seeing OCPD in him as well.

              “The need to control is easily recognized by others. A refusal to delegate; suspiciousness, evasiveness, hoarding, moral superiority, emotional isolation, and mistrusting warmth and love, can all be personality characteristics. ”

              It’s like the story of anon’s life and postings!

              “No matter how bright, the obsessive is slow to recognize feelings – they think rather than feel.”

              Mhmmmm.

              ““I should” is probably the single most characteristic thought content.”

              Yowzas!

              “Hiding feelings of anger and aggression shows up in being “too nice”, being oppositional, being passive-aggressive or usually a combination of all three depending on circumstances and different people encountered. ”

              Indeed, anon promises to “kill me with kindness” should he ever encounter me on the field of prosecution. As opposed to his normal oppositional, ridiculously passive aggressive manner of discussing or arguing.

              “The obsessive is involved in a life long conflict between obedience and defiance. This leads to a continuous alternation between fear and rage. Fear that he will be punished for being defiant and rage for submitting to someone else’s authority.”

              Ala can’t argue against any controlling lawl and the supremes are twisting the nose of wax and he can’t stand it!

              “By concentrating on irrelevant details the obsessive loses the big picture.”

              No better way to describe bringing up “equivalency” etc. on a routine basis.

              ______________

              In the end anon, I’m forced to say, I thank you for shedding light on how these conditions manifest themselves in the real world. Super interesting. And such a textbook example must surely be rare.

              ” Anger repressed also turns into ulcers, constipation, anxiety and eventually depression.”

              I leave you today with those kind words of warning. And these kind words of hope:

              “The world the obsessive needs to be freed from has been inside all the time, which is positive, because internally, if committed, he or she can make changes.”

              link to en.wikipedia.org

              link to drpetermilhado.com

            3. “If you understand the case, you would see that it is an application of the Grand Hall experiment.”

              Yes, we all know the federal circuit buys into that thinking. We’ve all known that since Alappat, I don’t see why you’re so taken with this latest in a long line of decisions that confirm that the Federal Circuit still subscribes to the same way of thinking that it did in Alappat and is deeply committed to propping up their house of cards. I mean, the real news would be a case that went against that coming out of the fed. circ. right?

              I guess we could just chalk it up to your already known mental condition, but that seems a bit simplistic. Maybe there’s a touch of OCPD as well? Let’s find out!

              ———————-

              “The main symptoms of OCPD are preoccupation with remembering and paying attention to minute details and facts, following rules and regulations, compulsion to make lists and schedules, as well as rigidity/inflexibility of beliefs or showing perfectionism that interferes with task-completion.”

              Let’s break this down shall we?

              The main symptoms of OCPD are preoccupation with remembering and paying attention to minute details and facts (ala his precious “controlling lawl”), following rules and regulations (omg omg omg you must follow the controlling lawl!), compulsion to make lists and schedules (“Electrons are old. Neutrons are old. Protons are old. Atoms are old. The elements are old.”), as well as rigidity/inflexibility of beliefs (anon’s displayed inflexibility of beliefs is truly legendary, worthy of song for ages to come) or showing perfectionism that interferes with task-completion (don’t know the rl effects of his inflexibility just yet, but we can presume from his “appeal motto” that it affects his work to get patents at least somewhat).”

              Continuing:

              “Perception of own and others’ actions and beliefs tend to be polarised (i.e., “right” or “wrong”, with little or no margin between the two) for people with this disorder. As might be expected, such rigidity places strain on interpersonal relationships, with frustration sometimes turning into anger and even violence. This is known as disinhibition.”

              So let’s see. Perception of own and others’ actions and beliefs tend to be polarised (i.e., “right” or “wrong”, with little or no margin between the two) for people with this disorder. (Obviously we have copious amounts of evidence regarding anon’s thoughts on there only being right and wrong on issues, he posts more every other week at least) As might be expected, such rigidity places strain on interpersonal relationships (to say the least with other board members), with frustration sometimes turning into anger (one can practically hear the howls of anger both against and by anon in just the written word alone) and even violence (well it would be violent but he’s a pussy so yeah he has trouble fulfilling that one). This is known as disinhibition.”

              Disinhibition is a plague on these boards thanks to anon.

              Thanks anon!

              ” OCPD occurs in about 1% of the general population. It is seen in 3–10% of psychiatric outpatients.”

              In other words, if he has the one condition, there is an elevated chance of us seeing OCPD in him as well.

              “The need to control is easily recognized by others. A refusal to delegate; suspiciousness, evasiveness, hoarding, moral superiority, emotional isolation, and mistrusting warmth and love, can all be personality characteristics. ”

              It’s like the story of anon’s life and postings!

              “No matter how bright, the obsessive is slow to recognize feelings – they think rather than feel.”

              Mhmmmm.

              ““I should” is probably the single most characteristic thought content.”

              Yowzas!

              “Hiding feelings of anger and aggression shows up in being “too nice”, being oppositional, being passive-aggressive or usually a combination of all three depending on circumstances and different people encountered. ”

              Indeed, anon promises to “kill me with kindness” should he ever encounter me on the field of prosecution. As opposed to his normal oppositional, ridiculously passive aggressive manner of discussing or arguing.

              “The obsessive is involved in a life long conflict between obedience and defiance. This leads to a continuous alternation between fear and rage. Fear that he will be punished for being defiant and rage for submitting to someone else’s authority.”

              Ala can’t argue against any controlling lawl and the supremes are twisting the nose of wax and he can’t stand it!

              “By concentrating on irrelevant details the obsessive loses the big picture.”

              No better way to describe bringing up “equivalency” etc. on a routine basis.

              ______________

              In the end anon, I’m forced to say, I thank you for shedding light on how these conditions manifest themselves in the real world. Super interesting. And such a textbook example must surely be rare.

              ” Anger repressed also turns into ulcers, constipation, anxiety and eventually depression.”

              I leave you today with those kind words of warning. And these kind words of hope:

              “The world the obsessive needs to be freed from has been inside all the time, which is positive, because internally, if committed, he or she can make changes.”

              This time without links.

            4. 6, pretty good diagnosis.

              But recall when anon was not around for a time when we switched over to Disqus? It was just a bit boring around here.

              Still, I would look forward to anon actually conceding a few points now and then. Anon, if you are reading this, try it a bit more. You will feel better about yourself, and other will like you a lot more.

            5. recall when anon was not around for a time when we switched over to Disqus? It was just a bit boring around here.

              They said the same thing about Topanga Canyon after the Manson Family moved out. Eventually everyone adjusted.

            6. 6, You may recognize the legal correctness of my position with your statement of “Yes, we all know…,” but clearly, the other anti-software patent people still have not embraced this.

            7. Ned,

              Make a strong enough argument and I would gladly concede a point. But you do not get to have points conceded when all you do is run away from the points I raise.

          3. Sorry Ned but your post at 15.2.1.2 does not meet the legal standard that you have stated that you desire.

            The new subject matter is ineligible.” is simply the conclusion you need to prove, and is not a legal argument unto itself. In fact the situation is quite the opposite. Software is clearly a manufacture and machine component. As much as rivets, tires and bullets are, and as much as they are, they pass the category aspect of the 101 test. Now we look to the utility aspect. Is the utility of the claim as a whole meet the Useful Arts utility requirement? Here, the distinction between Useful Arts and Fine Arts can be evaluated.

            Please try again under the rigor that you demand of others.

      2. The Federal Circuit has explained exactly why they say a programmed computer is a new machine in WMS Gaming, Inc. v. International Game Technology, 184 F. 3d 1339 at 1348.

        A general purpose computer, or microprocessor, programmed to carry out an algorithm 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 Alappat, 33 F.3d 1526, 1545, 31 USPQ2d 1545, 1558 (Fed.Cir. 1994) (en banc); see In re Bernhart, 57 C.C.P.A. 737, 417 F.2d 1395, 1399-1400, 163 USPQ 611, 615-16 (CCPA 1969) (“[I]f 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 instructions of the software program that carry out the algorithm electrically change the general purpose computer by creating electrical paths within the device. These electrical paths create a special purpose machine for carrying out the particular algorithm.[3]
        ——-
        Footnote [3]:
        A microprocessor contains a myriad of interconnected transistors that operate as electronic switches. See Neil Randall, Dissecting the Heart of Your Computer, PC Magazine, June 9, 1998, at 254-55. The instructions of the software program cause the switches to either open or close. See id. The opening and closing of the interconnected switches creates electrical paths in the microprocessor that cause it to perform the desired function of the instructions that carry out the algorithm. See id.

        Does anyone here believes the instructions indeed create these electrical paths into the device?

        1. Does anyone here believes

          paul, why do you believe that software works?

          Do you believe that if you start off with two identical physical computers – each with no software whatsoever, and then configure only one of the two computers with software that you still have physically identical machines?

          If so, then how do you explain the immediate difference in what those two machines are capable of – without more – without changing the machine that has no software?

          1. Software works in parts because computers have moving parts and in part because data has meaning. I simplify things for purpose of making a concise post. A complete explanation of the operating principles of stored program computers is available in standard textbooks of computer science.

            It takes more than physical changes to make a new machine. Every machine has moving parts. In the case of a computer, memory is one of the moving parts. Its contents is changed billions of times per second. If changing the bits in memory were enough to make a new machine we would have billions of new machines per second. This is not a tenable position because none of these machines would stay configured long enough to perform all the instructions of a program. This is tantamount to negating that there is a process by which the machine operates.

            Note that the Federal Circuit is NOT making this error. They distinguish the effect of instructions from changes to ordinary data. They clearly indicate that instructions cause a change in electrical paths and this is what makes the new machine. They define the new machine as a change that is structural and not merely physical.

            The Federal Circuit does not argue the new machine is cause by the introduction of “new capability”. That would be a circular argument. How do you distinguish a new function for an old machine from a new machine? Your answer is that the function is new and there is no need to look at the specifics of the structure. This is circular. The Federal Circuit’s answer is that the structure is new and they point out with specificity how it is new. This is not circular. Nazomi follows naturally from this explanations. If we define the capability as what the circuit structure is built to do it follows that a computer doesn’t have the capability of running the program until the instructions are used to create the circuitry.

            There are two problems with the Federal Circuit’s view. The first one is that software is not circuitry alone. Data has meaning. This is not a function of the structure of the circuit, not even under the view that instructions makes new electrical paths. The second one is that instructions don’t work as the Federal Circuit said they do.

            However your views suffer from a different kind of problem. First, they don’t match the Federal Circuit’s views. Therefore you can’t say truthfully that your views match controlling law. Second you don’t point to a specific change in structure as they do. And when asked to explain in your opinion which structural changes occur you decline. This means you commit errors the Federal Circuit has been careful to avoid.

            1. paul,

              We will have to agree to disagree, as I am not committing errors in my posts.

              As you correctly identify, a full discussion would take a textbook or two to be properly made. Clearly, we both are taking ‘shortcuts’ in our discussions – shortcuts that are appropriate for this art field in the patent world.

              In that vein, I look forward to your answers to my questions that will not take the volume of textbooks in exchanges.

            2. Here are the answers.

              why do you believe that software works?

              Computers are hardwired to execute the instruction cycle. This is a process where a microprocessor reads a number from memory, interprets it as an instruction and immediately executes it. Then the microprocessor repeats these steps for each instruction, one instruction at a time, until instructed to halt.

              Software solves problems because the bits have meaning. When the instructions are chosen to implement suitably chose operations of arithmetic and logic on the meaning of the data the problem is eventually solved.

              Do you believe that if you start off with two identical physical computers – each with no software whatsoever, and then configure only one of the two computers with software that you still have physically identical machines?

              No, the machines are not physically identical. The numbers for the instructions are now in memory of one of the computers. But I the changes in the electrical paths identified by the Federal Circuit are not occurring. The change is physical but it is not structural.

              If so, then how do you explain the immediate difference in what those two machines are capable of – without more – without changing the machine that has no software?

              I dispute that this is a change in capabilities, Nazomi notwithstanding. I define “capabilities” as what the structure is built to do. Both computers are structurally identical. They are both wired to execute the instruction cycle and this remains true whether or not the instructions are actually in the memory. However I acknowledge the Federal Circuit is of a different opinion because they believe there is a change in the electrical paths and this type of changes is structural.

              The distinction you are drawing is tantamount to say a DVD-player is not capable of playing a video until the disk is in the bay. This is like treating playing each video as a different capability as opposed to a generic “video playback” capability. I see the instruction cycle as a generic program execution capability and all programs are physically executed through this single uniform process. The structure for executing the instruction cycle is not changed by the introduction of a program in memory. This is why an unprogrammed computer has the capability to execute every program. It already has all the necessary structure.

              This is a question of whether the input given to a machine is a structural element of the machine. Of course the computer can’t do the work when the input is not there. This is true of all data and not just the instructions as the DVD-player example illustrates. But being unable to perform is not the same thing as a lack of built-in capabilities.

            3. Thanks paul – I was thinking of the difference between two computers that start out physically identical and both without software, and then one of them (but only one) is configured with software.

            4. You fall to the trap of thinking in ‘capabilities’ and no doubt include in that capability the capability of future change.

              Therein you fail. Therein you fall to the debunked “House” analogy, and therein you attempt to contradict the Morse ruling.

            5. Your leaning to the ‘play a video’ argument is likewise a fallacy.

              This is the music/book/other fine arts fallacy.

              I have explained many times how that fallacy must be avoided, as it is not even a consideration under patent law. Just as music is not considered under the patent law concept of obviousness, so too the argument you lean towards has no place in patent law.

            6. I was thinking of the difference between two computers that start out physically identical and both without software, and then one of them (but only one) is configured with software.

              This is what I understood and answered.

              In all due respect, your “change is physical but not structural” is nonsense.

              Please explain why.

              You fall to the trap of thinking in ‘capabilities’ and no doubt include in that capability the capability of future change.

              Therein you fail. Therein you fall to the debunked “House” analogy, and therein you attempt to contradict the Morse ruling.

              I have no idea of what you mean. I don’t know what the House analogy is. I don’t know what it is that you call “thinking in capabilities”. And I don’t see how I contradict Morse. Please explain.

              I just look at what the electrical paths and circuit components are wired to do. This is the procedure the Federal Circuit is using in WMS Gaming. There is no “capability of future changes” in this analysis. The instruction cycle is a well defined process that is executed by a well defined structure called the microprocessor. Neither the instruction cycle not the structure of the microprocessor change when supplied with the instruction of a program.

              Your definition of ‘structure’ is a false one.

              Please provide the definition that you regard as the correct one.

            7. Your leaning to the ‘play a video’ argument is likewise a fallacy.

              This is the music/book/other fine arts fallacy.

              The notion that a machine for playing a video belongs to the fine arts is new to me. I was talking about the capabilities of the machine to read a particular article of manufacture containing bits that represent a video. This is completely different from the work of a film maker, director, actors and other artisans.

              Please explain how the contents of a DVD belonging to the Fine Arts implies that the combination of a machine with an article of manufacture inserted into its bay does not belong to the Useful Arts.

            8. The circle is complete – your inability to understand is based on your false notions of the art and your “I don’t understand” the law.

              How can a physical change not be structural? Again, you seek to use some odd definition of ‘structure’ that is not based in physical reality. Yes – the operation of a computer changes physical structure at great speeds. But from this understanding you seek to deny any change in structure whatsoever. Sorry, but you are choosing fantasy over reality. No amount of my explaining reality will help you understand that which you ‘define’ out of existence. You only want to see software as something in action – but software is more than that. Take the two machine scenario already mentioned. Turn off both machines. Remove the ‘doing.’ It remains true that the two machines MUST be physically and structurally different. You confuse ‘software in action’ as THE difference, when it is more.

              House was a tv show, where the lead, a cynical doctor, boldly proclaimed that only the very first computer should earn a patent and that all other computers were somehow ‘contained’ in that first computer. This is false and misapprehends basic computer theory. It is also a soundbyte for those who do not want to recognize that the computer is simply a machine built to be changed – but that such “to be” is not actually present in the first instance.

              I have used the logical extreme analogy of a big box full of electrons, protons, neutrons and all of the elements – and the same House “logic” applied to my big box eviscerates not only all biochemistry, all chemistry, but all manufactures and machines as well.

              The Morse reference uses a well known case, often used in 101 arguments but for the opposite effect. Basically, if one believes the House position, the very first computer contains all future possible inventions – even those not yet contemplated – in analogy to how Morse tried to claim all future inventions using electromagnetism. Those who do not believe in software patent eligibility and the debunked House view, are simply stopped in their tracks when their own logic is used against them.

              You also fail to address the fact that software is a manufacture in its own right. You seem to ignore this when you jump to talking about a software program in action – but you fail to account for the fact that no program is created on the fly – that software is not something “fully in the mind” (you can also take a stab at the fact that software garners copyright protection and the law involved in that regards requires a structure.

              You are evidently knowledgeable, but you are too sloppy in how you are approaching the subject.

              That is the beauty of simply comparing the two machines – each of which started out as identical physically and structurally, and how it is simply impossible for the two to still be the same machine physically or structurally after one has been upgraded and configured with software.

              In one paragraph the lesson is provided that if you wanted to dive into the details we can take up many books.

            9. anon: That is the beauty of simply comparing the two machines – each of which started out as identical physically and structurally, and how it is simply impossible for the two to still be the same machine physically or structurally after one has been upgraded and configured with software.

              A car with adjustable seats is a new driving machine when its seats are adjusted! And of course you don’t need to describe the position of the adjusted seats when you claim your new driving machine. Just claim the results achieved. Because everyone knows how to adjust the seats.

              This brilliant analysis brought to you daily here by Tr0llb0y, free of charge. Isn’t that awesome?

            10. Anon,

              How can a physical change not be structural?

              Ah! Now I understand your position. You believe every physical change is structural while I don’t. This is where we disagree.

              A switch may be turned on or off. We can start with two identical switches and flip one. One switch let the current through and not the other. Are they structurally different machines? I believe not.

              A car may be stopped or it may be running. We may start with two identical stopped cars and start one. One car moves on the road and not the other does not. Are they structurally different machines? I believe not.

              The notion that a machine may have moving parts does not seem to be in your world view. Every physical change is structural.

              But I still don’t understand you view about Fine Arts and Useful Arts. Let’s say I have a DVD-player with a stack of DVDs with echographic videos of unborn babies that must be checked for possible malformations. Is this Fine Art? Is the DVD-Player capable of playing all these videos even when the the DVDs are not in the bay? Or is there a capability for playing the disk of little Anna distinct from the capability of playing the disk of little Tommy?

              What is the difference between this and a stack of DVDs containing Hollywood movies?

            11. This is the music/book/other fine arts fallacy.

              I have explained many times how that fallacy must be avoided

              No, you have never explained anything about this alleged “fallacy.” You simply declare whatever you don’t wish to address to be a “fallacy” as if that settles the issue.

              You’ve been doing this for years. And all the while you’ve been doing it, your patent-fellatin’ team has been getting its axx kicked in the courts for making the same self-serving b.s. “arguments.”

              You really do sxck at this, as your impeachment-lurvin’ comrade likes to spew.

            12. paul I still don’t understand you view about Fine Arts and Useful Arts. Let’s say I have a DVD-player with a stack of DVDs with echographic videos of unborn babies that must be checked for possible malformations. Is this Fine Art? Is the DVD-Player capable of playing all these videos even when the the DVDs are not in the bay? Or is there a capability for playing the disk of little Anna distinct from the capability of playing the disk of little Tommy?

              Well done, paul. This is one of several different ways to explode anon’s peabrain. Of course, he’ll never address any of this in an intellectually honest fashion. Most likely he’ll now spin around and throw some sand in your face about the “actual law”, and accuse you of not understanding it. Oh wait, he’s already tried that one. LOL. Maybe two times is the charm.

            13. paul,

              A machine with moving parts has to have those parts to be moving.

              My big box of the parts of electrons, protons, neutrons, etc. explodes the logic you are attempting to use. The Grand Hall experiment reveals the reality that you simply have to accept.

              As I said, you are too loose with your meanings. You want to redefine structure. You want to only look at software in motion. It is NOT only that the function is new. The new machine is why that function is there. You want to treat ‘instructions’ as somehow both present, but not counting when looking at the difference between the two machines in the Grand Hall. It is you that wants to define things so that only the function is there and somehow – somehow that you have not yet explained – that the ‘oldbox’ has this attribute that simply was not there previously. You keep on coming back to ‘instructions’ as if the machine magically conjures them up and never ask yourself where the ‘instructions’ come from. You also err is wanting some specific structure identified, when such is simply not needed – and like others, mistake what needs to be in a patent and what is needed to be in a patent with wanting this hyper detail. This is not circular as you claim. This is exactly like my pointing to something real and saying this IS it.

              Plainly put, and something you have not shown otherwise: software is a manufacture and a machine component. It is real and it makes a real change.

            14. paul, your post at 15.2.2.1.1.12 is bizarre at best.

              In reverse order, you are now engaging in the very fallacy of mixing fine arts and useful arts that you said at 15.2.2.1.1.9 that you were not engaging in.

              The difference between useful arts and fine arts is something you should already be aware of.

              I have already commented about the mistake you are making with “physical” and motion, noting that is you that is depending too much on the motion aspect without accounting for the change in physical (in a non-motion aspect). Ask yourself why I asked you to switch off both machines in the Grand Hall and then compare them. Even in an off state, the two once identical machines will be different physically. Software is NOT just software-in-motion. Ask yourself why I asked you to comment on software earning copyright, and why that requires an actual physical structure (apart from any other structure in motion).

              The moving car and the toaster switch are likewise fallacies that I have addressed on these boards in the past. They are fallacies because you are not setting up the comparison properly. See my big box of electrons et al. The proper toaster and switch comparison would be between a toaster that has no adjustable settings at all and a toaster that has adjustable settings. The fact that software is equivalent to firmware and equivalent to hardware would mean that the new machine with software settings is equivalent to a new machine with hardware settings. Your toaster example is a cheat because you want to have a hardware equivalent already present. The car fallacy is akin to your wanting a machines already loaded with software and then only looking at providing power to the machine. That is precisely NOT what I asked you to look at in the Grand Hall experiment where you have two machines (originally both without software and only one changed with the configuration of software), both turned off and asked you to compare them.

              You are now only playing games and refusing to understand, then saying explain again – you are playing the brier rabbit game, hoping to trip me up by repetition.

              No thank you.

              You now have the big box in front of you. You need to put it all together (and all of it – less the obfuscations of fine arts, and House, and incorporating all the components of the machine, including software as a component in its own right – and that component being more than just instructions in motion.

              You have been led to the water trough. It is up to you to drink.

            15. Malcolm at both 15.2.2.1.1.13 and 15.2.2.1.1.14.

              Your posts are wrong. We both know that I have explained these things with facts, the law and common sense; and that it is you that has consistently run away.

              Witness your ever-dissembling on the exceptions to the printed matter doctrine.

              Why is it that you refuse to have an intellectually honest conversation on this topic?

              It is easily seen that it is you that wants to keep on employing a fallacy. You think that if you do not discuss the meaning of the law that somehow you will not be affected by the meaning of the law. You think that since this is not a court, that you are free to not recognize the controlling law, and more importantly why that law is controlling. You think that your vapid answers from your tired script of nonsense somehow has any meaning in comparison to the points I make based on the law and the reasons why the law apply – cold hard facts like software is NOT something ‘totally in the mind’ and that software is a manufacture in its own right, and that software is equivalent to firmware and is equivalent to hardware. These are facts, Malcolm. They are not facts merely because I say so (another dissembling spin from you). They are facts regardless of whether I say so or not. I choose to say them because they fit the discussion. The discussion that you run away from time and again because your spin and your dissembling FAIL in the spotlight.

              Come Malcolm, join the discussion – if you find the courage. Leave behind your dissemblings and tired scripts. Try intellectual honesty – for once.

            16. Malcolm drivels with a false analogy at 15.2.2.1.1.11: “A car with adjustable seat

              The proper analogy is between a car without adjustable seats and a car having adjustable seats. This is just a variation of the toaster setting gambit.

            17. Anon,

              The purpose of the switch and car analogies is to answer this question of yours: How can a physical change not be structural? They are examples of changes that are not structural.

              You say A machine with moving parts has to have those parts to be moving. Also you admit that the switch and car analogies are somehow different from your Grand Hall experiment. I take your points. You seem to acknowledge that some changes are not structural. But you are unclear on what is a structural change as opposed to an ordinary moving part.

              Your big box of electrons doesn’t go against my logic because I recognise that some physical changes are structural changes. I just insist that there are also some changes that are not structural and we need to draw the line between the two.

              I don’t insist on putting the exact detailed structure in a patent. I just want to know where you place the dividing line between a moving part and new structure.

              I don’t see why data in persistent memory like a hard disk would be machine structure as opposed to still another moving part on the computer. Hard disks are writeable. Their contents change when the computer runs.

              I don’t see why the physical structure of copyrightable material would be machine structure. Have two identical computers. Load on one of these computers an echographic video of an unborn baby on the hard disk. This is a physical change. One computer can play the video and the other doesn’t. Is this a new computer structure? I think not.

              Even though I don’t understand how you define structure, it is clear that your justification of Alappat is very different from the one given by the Federal Circuit.

            18. paul,

              I recognize the example you are trying to present, but it (mere movement) is an example that does not reach the subject we are discussing.

              Software simply is more than instructions in motion.

              You mistake lack of specificity of pinpoint structural change with ‘unclarity.’ In this, you miss what has been said in the law that even though the change cannot be seen with the naked eye, a change (in structure) no doubt has occurred. See again 15.2.2.4.

              To repeat again, your attempts at line drawing contains improper definitions. I merely point this out to you and ask you to recognize that software is not something totally in the mind, that software is a manufacture and machine component in its own right, that software (per the analogous copyright requirement) must have structure of its own right – whether you ‘see this’ or not (thus your only instructions in action view is just not good enough). Software is NOT just ‘moving.’

              Your statements of “I don’t see why” are not legal arguments. You need to see why. This is a ‘you’ problem. As I have said, I have led you to water. I cannot make you drink.

              You again seek to draw a non-patent distinction with the echographic video. Sorry but I have exposed that fallacy already. Sorry if you don’t understand that such as ‘movies, and books and the fine arts aspects cannot be used in a legal argument. The simple fact is that they cannot. This is precisely why Malcolm FAILS at the exceptions to the written matter doctrine. The exception is based on functionality, and it is the functionality that separates the Useful Arts from the Fine Arts, and it is this functionality that is the focus of the software as meeting the 101 eligibility question that you must keep your eye on. The minute you go into the weeds with a non-Useful Art based argument, you are no longer talking about the subject at hand. You need to keep your eyes open as to which arguments you attempt to use.

            19. My big box of the parts of electrons, protons, neutrons, etc. explodes the logic you are attempting to use. The Grand Hall experiment reveals the reality that you simply have to accept.

              It’s one of the great mysteries of patent law why Alice hasn’t seized on these profoundly devastating arguments to destroy all opposition to functionally claimed computer-implemented j*nk.

        2. Paul, I am SURE, very, very sure that the Supreme Court WILL be impressed with the information provided by the CCPA that a programmed computer is a NEW machine. They, I SAY, will feel COMPELLED by such information to hold in Alice’s favor.

          WOW!!

          We could have simply relied on Bernhart all along. In fact, Rich did in Benson and …

          Opps….

          1. “Paul, I am SURE, very, very sure that the Supreme Court WILL be impressed with the information provided by the CCPA that a programmed computer is a NEW machine. They, I SAY, will feel COMPELLED by such information to hold in Alice’s favor.”

            lulz. It’s “controllin”.

            1. 6: “Controlling.”

              To what extent does the PTO still respect the proposition that a programmed computer is a new machine and patentable as such?

            2. 6, and WHEN will the PTO take a stand that a CRM is not eligible under 101 because the article is not NEW?

              Rich is gone, and his acolytes are dwindling. There is a real chance the Federal Circuit will follow the law.

            3. Kiss anything ‘configured’ of those old things called electrons, protons and neutrons goodbye if you want to follow Ned’s logic.

              Ned – Will you now run away from the exceptions to the printed matter doctrine which wrecks your notion that one CRM is ‘old’ in view of another CRM?

              Will you, like 6, be trying to install the next Windows operating system from your Britney Spears CD?

            4. anon, if a CRM is eligible simply because it records a program, then ALL programs become eligible when recited with a CRM.

              Ditto the logic with a programmed computer.

              ANY [insert here the mental capacity of a zombie] can see through this subterfuge, this bootstrapping.

              The question is, what is the right statute for lidding this can of worms. Clearly, 102/103 is not the right vehicle. 101 is the right vehicle, and the “newness” (or improvement) required of any claim to a machine or manufacture. Adding ineligible subject matter to a computer or to a CRM neither makes it new or an improvement. [You do understand that I think programming that physically is part of a computer may define a new or improved computer.]

            5. Ned,

              You are not paying attention are you?

              101 has more than just the category aspect.

              The category aspect is easy to meet.

              You still have the utility aspect. And to that we look at the Useful Arts.

              Your comment about subterfuge and bootstrapping lacks the legal rigor that you have requested of others.

              You do understand that you are ignoring the fact that software is a manufacture and a machine component in its own right, right?

            6. anon, “software” is ineligible. A generic computer is old. Add the ineligible to the old and one does not get a new machine.

              The KIND of bootstrapping you advocate is reprehensible. Really. That reputable companies like IBM, and organizations like the AIPLA, have engaged in it does not provide an excuse for the rest of us to essentially lie to the courts, to obtain the unobtainable by trickery.

            7. Add the ineligible to the old and one does not get a new machine.

              Wrong Ned. And I have given you plenty of case cites and legal arguments to back up my position. You seem to just want to run away from these, and YOU just claim that I am wrong – YOU claim that you ‘just don’t understand the Nazomi case – YOU never refute the controlling law pertaining to the exceptions to the printed matter doctrine.

              You cry and whine and then run away.

              Man up already Ned.

        3. Those who do not believe in software patent eligibility and the debunked House view, are simply stopped in their tracks when their own logic is used against them.

          Indeed, Tr0llb0y has stopped us in our tracks all the way up to the Supreme Court multiple times, where he inevitably sees his beloved junk patents cut back like so much crabgrass on Grandpa NWPA’s lawn.

          1. Do you miss being whipped by me, MM? Is that why you bring me into your rants?

            The last one where you conflate actions of personnel officers of Google and Apple misbehaving with the incentives provided by patents was hilarious to read. You simply don’t care about logic, do you?

          1. And please, please, please tell me that you recognize the impact of this to your false position of physical change being ONLY a change of non-changing physical parts in motion…

      3. Hmmmm,

        I wonder why the 1793 Act used the phrase:

        or any new and useful improvement on any art, machine, manufacture or composition of matter

        instead of the phrase:

        or any new and improved useful art, machine, manufacture or composition of matter

        (as Ned’s tortured reading of “Useful Arts” would require)…?

      1. Any “one” may say anything. That you would say the brief is oblivious to the statute itself is a bit duplicitous, given your recent call for certain standards.

        Do you seriously think otherwise?

  10. Overnight, I have been pondering on how it can be, that the EPO succeeds in doing the heavy filtering of business method claims under its 102 and 103 provisions, even while many in the USA are apprehensive whether this is a viable route at the USPTO. My thoughts today are set out below:

    The law in the USA develops through adversarial proceedings. For that to work, adversaries are needed. The battle is won and lost on the evidence, and the evidence mostly comes from witnesses.

    Now to ex parte examination of patentability at the USPTO. Is it adversarial? Is it won and lost on the evidence? What opportunities does the Applicant have, for adducing evidence? Any or none? Many or few? Are there equal and opposite opportunities for the Applicant’s adversary?

    It strikes me that the process at the USPTO is inevitably one of assymetric warfare. Applicant can summon up evidence to wear down the Examiner but the Examiner (unlike a true adversary) is in no position to challenge that evidence.

    Compare 101 and 103. Different fields of battle. On the 101 battlefield, no room to swing any evidence. All you’ve got is attorney argument whether or not the claimed subject matter is “abstract”. The PTO can parse SCOTUS just as easily as the Applicant’s attorney. It can argue of the claimed subject matter “it’s Abstract” just as loudly as the Applicant can shout “It’s NOT Abstract”! Oh yes it is! Oh no it isn’t. Tis. Tisnt. Battle of equals.

    Totally otherwise the traditional 103 battlefield. Unlimited scope there, to pile up mountains of evidence in support of the claim, until the Examiner is buried in it, and unable any longer to challenge the evidence. Shrug shoulders. Allow.

    Hence the forebodings of many thoughtful commentators in the USA, when they are urged to contemplate the merits of the EPO solution, to do the filtering under 102 and 103. Hence the pressure, from those who want patents on ways of doing business, to get USPTO filtering away from 101 and onto 102 and 103 battlefield.

    Note that there is no need here to get into why it is that the EPO succeeds. We’ve been over that already, exhaustively. Rather, what would be the consequences at the USPTO of doing eligibilty/patentability the EPO way? Pro Hririk wrote to me that some tweaks to 103 law might well be needed. I’ll say!

    1. bury the examiner

      snort…chuckle… guffaw…

      Of all the lame canards to bring forth…

      MaxDrei, you um, obviously have never done any prosecution in the US, have you?

    2. And here I thought it was the 35 USC 103 that was for some reason “hopeless” in your eyes… See 13.1.1.2

      Is this because an Examiner cannot challenge evidence? How then do the examiners in your part of the world challenge evidence? Do you pride yourself on having a system that does not allow evidence?

      1. Anon (since you are currently obsessed by the thought of putting fingers up noses of wax) take your own finger out of the EPO’s nose of wax please. I already explained to you that fretting about how the EPO filters is totally irrelevant to the issue under discussion, namely whether it makes sense at the USPTO to use 102/103 as the active filter.

        I observe that patent law is your hobby rather than your profession. Your question reveals that you haven’t the foggiest clue how the law works outside the English law envelope and I’m not going to start teaching you. You crave that the discussion threads shall go on all day, every day, and your good luck thus far is that plenty of people indulge you in that. Your best prospect of that happy situation continuing for you is that you stick to the point of the thread.

        What is a person who insists on talking, when all you want is that he should just listen a bit more? Ambrose Bierce certainly knew the answer to that question. Incidentally, lots of patent professionals also suffer from Asperger’s, to a greater or lesser extent.

        1. Why do you think that I am fretting (at all) about the EPO?

          Serious question. (hint: Respect)

          You must have missed my admonition to you on this thread at 13.2.1.1.

          You are just kicking up dust – as it is you that lacks the foggiest clue about US law (which I remind you is the topic here, the point of the thread – or are you somehow saying that US law is not the point of the thread? Pray tell – you failed to answer this question before. Why is that?).

        2. And my temperamental friend, couldn’t your near constant dust-kicking and switching to non-US law focus be more aptly considered an obsession?

          You seem to want to talk about US law, but then for some inexplicable reason, think that comments made are to non-US law, even when you are told point-blank that they are pertaining to US law.

          In your psychological textbook next to you, how is that behavior described?

    3. Max, Pro Hririk wrote to me that some tweaks to 103 law might well be needed. I’ll say!

      Indeed. And this is what makes the brief filed by the AIPPA so hopelessly off the mark in urging the US Supreme Court to adopt the European approach. The Supreme Court cannot rewrite the law. This is one of the reasons that the Supreme Court has limited its section 101 exclusions to the exclusions that were recognized in a very early cases of LE ROY ET AL. v. TATHAM ET AL., 55 U.S. 156, 14 L. Ed. 367 (1852) and O’REILLY ET AL. v. MORSE ET AL., 56 U.S. 62, 14 L. Ed. 601, 1853 U.S. L.E.X.I.S. 273 (1853).

    4. Max, come on. The EPO fails. The EPO way is to follow the U.S.A. and commercial success. We have been over the failures of the EPO exhaustively. The ABA journals have had articles on the failure of the EPO on subject matter eligibility and how to game the EPO system.

      You repeating over and over that the EPO is a success does not make it one–it is a an abysmal failure. The system of followers and losers and thieves.

      1. I had forgotten all about Comical Ali (I gather from Wikipedia that in the USA he was known as Baghdad Bob). Thanks Night, for prompting my memory and for giving me a hearty laugh.

          1. Go easy NWPA – MaxDrei is more than welcome to push the EPO approach for the EP.

            Now you should take issue with how he insists on not respecting the sovereignty of the US….

  11. I write above, that the EPO does eligibility before moving on through novelty and obviousness. MM reasonably asks:

    “What if I’m an Examiner and I don’t see the 101 issue until after I’ve thought about the inventive step issue and looked at the prior art? Am I out of luck in the EPO because of this “strict” order business?”

    Malcolm’s question reminds me of the cultural clash between the Germans and the British, about how to perform a process. The Germans want order, the British want to improvise and make it up as they go along.

    In the EPO, Examiners work as a team of three, the Examining Division. They do the search then write an opinion, in what respects (if any) the searched claims fail to meet all of the requirements of the Convention. To be fair to the inventor, and for the sake of efficiency, they are expected to nail every single one of them, to do the job once, and get it right.

    I daresay (I’m not an Examiner) that 101 eligibility issues emerge as the opinion is drafted. So, yes Malcolm, there is still time for an Examiner to get the 101 issue in the opinion, even if it is seen only after the novelty area has been thought through.

    But once that opinion is issued, the course is set. No more searching by the Examiner, so no amending either, by the Applicant to unsearched matter. If it goes to a Hearing or an Opposition, 101 will be handled before 102 and 103. As you know, at the EPO 102 and 103 are much tougher hurdles to jump than the EPO’s 101 “technical character” hurdle (which would not filter out the following Claim “1. A digital computer in a pink wrapping”.

    Of course, it is only because the EPO is so unforgivingly structured (and civil law brusque) on 102 and 103 that the absence of a meaningful 101 filter is tolerable. I do see that at the USPTO, because English law 103 jurisprudence is so hopeless, a serious 101 filter is indispensible. I’m glad we don’t have that problem at the EPO, because I would have no idea at all how to tackle it in an English law jurisdiction with a Supreme Court sitting atop the PTO and giving it the roadmap from which it has to work. The Horror! The Horror!

    1. MaxDrei,

      Serious question to your comment: “I do see that at the USPTO, because English law 103 jurisprudence is so hopeless, a serious 101 filter is indispensible

      Why do you see this as so hopeless?

      Is is still so hopeless with the AIA and the new-103 which is far more critical than your critical secondary steps? Does this not go in the opposite direction that you are leading, that we now need nearly no 101 filter? Or does this still boil down to the fact that the US system, with the Useful Arts being broader than the technical arts, is simply something that you cannot grasp and that is why you are hopeless?

      1. Still? Yes. Opposite? No. Boil? No.

        I have explained on this blog for years and years what my position is, on the inherent differences between adversarial English common law and inquisitorial mainland European civil law. If you have to ask now, you have not been paying attention.

        I’m talking here with MM and IANAE and for them there is no need to repeat myself.

        1. Ah. my ever sensitive pal MaxDrei.

          And here I thought that the conversation involved US law. Silly me. Sure, in one manner you are comparing in the immediate sense the mainland and the seat of the once sun-never-setting world power, but that comparison is being made in the larger context involved the US notion of law, is it not? Do you not directly involve the USPTO in your comment?

          That you choose to ignore the fact that your view as presented is self-contradictory is one thing. To insist that it is not self-contradictory is quite another. To attempt to divorce the conversation from US law is absolutely asinine.

          And if you want this to be a private conversation, great – take it offline (don’t forget your secret 1ittle circ1e handshake, and clean up when you are done). But here, this is an open forum, and here – in the actual context, US law is involved, and in that larger context, your view, being self-contradicting as it is, is open to my valid comment.

          But you are ever free to ignore my valid comment – just as I am free to ever remind you of your self-contradicting views. But it really would be better for all for you to recognize your self-contradictions and correct them.

          1. As far as I know, anon, US law is but one manifestation of the venerable legal system known to lawyers as English common law. There are two systems of law in the Western world (as lawyers in Canada and Louisiana are very well aware) and English law is one of those two. When it comes to finding the facts, the differences between the two systems are fundamental and deep-seated. Hence, finding out whether something was or was not “obvious” is handled differently, under the two systems. That’s my point.

            So my reference to English law does not mean that I am not writing about the federal law of the USA. I had supposed that readers here who are registered lawyers would have grasped that much.

            1. Thanks MaxDrei for exposing your fallacy: “As far as I know, anon, US law is but one manifestation of the venerable legal system known to lawyers as English common law

              It is apparent that you think US law is somehow subservient to this notion of English common law and that it must kowtow to that notion if it ‘steps out of line’

              Such is simply not so. Our law is sovereign to us. Our law is not a subset of any larger law system. It is not a manifestation of some more venerable system – as that directly implies that any difference is less venerable.

              Your point then, is simply wrong. US law is US law. Our Constitution is what it is and you need to recognize and respect that.

              I would expect that even non-registered lawyers who wish to discuss law would have grasped even that much.

            2. @ Anon

              The level of ignorance in the last comment 13.1.1.1.1.1 calls into question whether you have ever studied the law of the US or any other country. If you did, it does not show in that comment.

              Anyone with the most elementary knowledge of law or history is aware that US and UK law share a common legal ancestry. That heritage is shared with Canada, Australia, New Zealand, Ireland, India, Malaysia, Singapore, South Africa and Hong Kong to name just a few countries. Naturally as time passes the law and practice diverges, but the heritage remains and underpins our legal understanding. The American Bar Association acknowledges the contribution that the common law has made to the law of the US, as evidenced by the memorial they established in 1957 to the signing of Magna Carta and continue to maintain.

              Nobody over here would regard US law as in any way subservient or would deny US sovereignty. But we share common roots, a common culture and many common values.

              Like many of us in the UK, I admire the system of law that has become established in the EPO. Despite its civil law roots, its respect for precedent is legendary, and unlike some common law jurisdictions it usually manages to follow precedent once established. The common law element of what the EPO does should not be underestimated – there is provision for discovery and cross-examination in inter partes matters when needed.

            3. In pieces because the filter is going nuts…

              Thanks Paul – be we are not talking about ‘heritage’ – we are talking about current law.

              Yes, I am aware of the heritage aspect and that there is a civil law basis versus a common law basis, but please, get your undies out of a bunch and realize the difference between a heritage discussion and an actual law discussion.

              MaxDrei made an explicit comment about a real law and then failed to note not only his self-contradiction, but pretended that there wasn’t even one present. He pretended that he wasn’t even talking about US law at all.

            4. And for whatever reason, I cannot get the last part through the filter…

              Basically, I have no problem whatsoever with heritage or a common theoretical view or taxonomy of common versus civil law. But that is not what this discussion is about. It is about the very real differences in our laws, and the perpetual lack of respect from MaxDrei to US law.

            5. Paul and Max, I too wonder whether anon can be a lawyer, because he is time and again has displayed basic ignorance of general principles that all lawyers in United States should know. Just for example, I’ve asked him time and again to explain to me the holdings of a case, any case, and he is unwilling to do so. In a recent post I explained it to him: give a brief summary the facts, define the issue that was to be decided, and what the decision was. He simply does not understand this. And yet this is something one learns in law school right away, first thing.

              In the United States, one can practice as a patent agent without being a lawyer. I suspect that at best anon is a patent agent.

            6. Ned

              I call B$ on your whines.

              No one – and I do mean no one goes to the level of posting legal briefs in a discussion.

              You most certainly do not.

              I have answered all of your questions explaining this. I have shown that I do not need to post a holding when your posts violate the very words of the decision (e.g. Benson and “we do not so hold”). Where is your brief explaining how you can attempt to put forth a legal proposition that goes against the direct words of the Court?

              Answer me that, Ned.

              Are you less than a patent agent, seeing as you provide less than I?

            7. “The level of ignorance in the last comment 13.1.1.1.1.1 calls into question whether you have ever studied the law of the US or any other country.”

              He just plays a lawlyer on the interbuts.

            8. “In the United States, one can practice as a patent agent without being a lawyer. I suspect that at best anon is a patent agent.”

              Nah, he’s just a random ret ard like AI who has a stake in the patent system that likes to play lawlyer on the interbuts.

          2. anon, when we have a dispute about the holding of a case, where you are simply saying that I am wrong, I have to ask you what the holding is from your point of view. In not one case, not ever, not once have you ever cited the facts in the case, the issue and the holding. You continue to say it’s your right and that I’m wrong without any support whatsoever for your position.

            1. It is NOT simply saying that you are wrong Ned – I have provided points to back up my “simply saying.”

              It is you that refuses to address the points that I have brought up.

              Your question back to me of “what is the holding in your view” is a smokescreen and a dodge. I simply do NOT need to provide any alternative view in order for you to address the very real points I bring up that challenge your statements.

              To cry “no legal brief from anon” and refuse to answer the valid points raised is a coward’s dodge. Sorry that thus truth is ‘annoying’ to you. Sorry that your posts falter when I shine a spotlight on them. But please, trying to dodge and NOT answer the points with a ‘well what is your view’ dodge and invitation into a brier patch is an invitation that is not accepted. First, answer the points raised. Do so with real answers. Do so with honest answers. And if you expect a certain legal level from me, you better d@mm provide at least that level to me.

              Stop.
              Running.
              Away.

        2. And by the way, you still have NOT answered my question at 13.1 which is to whyyou feel that 35 USC 103 is hopeless in your eyes.

          You did say “at the USPTO” right? Or is this somehow not talking about US law…?

    2. …and let me remind you (again) that it is not the role of the Supreme Court (the judiciary) to give the roadmap to the PTO (the executive). Under our constitution, that role, that power was explicitly delegated to Congress (the legislature).

      There is a real difference between reading a map and creating a map.

      1. Yes, anon, I will “let you remind” any readers who might not yet know it, that drawing a map is a different act from reading a map. The Graham factors map comes to my mind. Who drew that one then?

        And at the EPO? Who drew the first map of the all-conquering, unassailable EPO-special Problem and Solution Approach, back in the 1970′s? Clue: it was not any legislator or court, OK.

        1. The allusion to the Graham factors is an interesting one, MaxDrie.

          As that being the first and very prominent case after the 1952 Act. In the dicta of that case, the Court does indicate its finger in the nose addiction to the 101 nose of wax power that it had before the 1952 Act removed from the judiciary the power to set the definition of the word ‘invention’ by the tool of common law evolution.

          But just because the dicta of that case was wrong does not mean that the 1952 Act did not remove the role that we speak of from the judiciary. Congress took back the power to draw the map. This is a fact that should be, that needs to be, recognized.

          This is the source of the current mess in 101 jurisprudence here in the states. This is the reason why the Court is to blame for this mess. This is the reason why the Court needs to recognize its role in creating the mess and (yes hopefully) historical parallel to the Chakrabarty/Diehr pendulum swing to the Benson/Flook mess, restore patent law to how Congress explicitly wrote it.

          As to the EPO – have it as you will. Your law, your rules, your guiding ‘constitution’ permitting what it will. I am happy for whatever you want to do there. I respect your sovereignty (I always have, notwithstanding the subtle strawman inference you may wish to draw that I do not). Respect my sovereignty. Respect my Constitution, and the separation of powers that comes with it as well as the fact that our Useful Arts is broader than your technical arts.

          1. Anon, not sure what you’d have the Court do in Graham. The 1952 law simply mandates that no patent can issue for a novel invention if the differences between it and the prior art as a whole would have been “obvious”, without defining “obvious” except as something discerned without explanation through the eyes of the skilled artisan.

            So the Court in Graham was wrestling with the question, well, how do we figure out if the differences are “obvious”? And they came up with their three-and-a-half part test. Which itself did not define “obvious” either, but my point is, someone had to erect some sort of analytical guideposts since the 1952 law did not provide them, beyond saying “no patents for inventions whose differences from the prior art the skilled artisan would consider to be obvious”.

            1. Tourbillion,

              My focus on Graham was explicitly not on the holding in that case and the jurisprudence of 103, but rather the dicta that the case used.

              The dicta was not only wrong, but it shows the finger in the nose addiction that the Court maintained in the 101 nose of wax jurisprudence.

              Again – the point is not a discussion of 103 so much as a discussion that Congress kicked the Court out of writing law (writing the map) in the area of 101.

              Far too many people incorrectly look at this dicta and come to the (incorrect) conclusion that the Court is not constrained on using the tool of common law evolution for writing (either implicitly or explicitly) the law of 101.

              Since 1952, the Court simply does not have that authority.

              It is only naked (yes, the nine kings are very much naked) Judicial activism that has rendered the 101 jurisprudence into a mishmash glob of wax that is no longer recognizable as a nose. Not even the particular Article III set up by Congress specifically to bring order to patent law can make any sense (and hence the void for vagueness tie) of what the Supreme Court has done with 101. Look back again and read the CAFC opinion in Alice (just ask Alice). The court charted with clarity in patent law has thrown up their hands in disgust and slapped the collective face of the Royal Nine and have said “You guys Fd this up, you guys fix it.”

              The real question to follow is “How will the Court fix the 101 jurisprudence since it does not have the authority to write patent law?” The Court is literally hamstrung by its past activism and by the increasing scrutiny of the very real Constitutional crises in the separation of powers problem. Look at how very close we came in Bilski that the Court would have overstepped its constitutional bounds and rewritten the explicit words of Congress in regards to the fact that Congress recognizes business method patents. The Court simply does not have the authority to write law – even from (or more to the point, especially from) a policy perspective that so many are begging the court to do.

              The plain fact of the matter is that the Court cannot remove software from the patent system.

              Software (and software systems) easily pass the category aspect of 101 in that software is a man-made manufacture (and as the parallel in copyright reveals, must have structure and cannot be thought of something being ‘totally in the mind’); and software systems are machines.

              That leaves only the utility aspect of 101. And as we have seen, a proper view of the Useful Arts, broader than the technical arts, and as all three branches of the government have confirmed, include business method patents, the Court will be hard pressed to render ANY judgment (that those so desperately pushing the Court to do) that will eliminate either business methods or software from the US patent system.

              To do so will risk a constitutional backlash that the Court cannot risk, as the pure-policy move simply lacks ANY law tables for the Court to pound on and lacks ANY fact tables for the Court to pound on. For whatever else the Court is, they are careful NOT to be caught in a ridiculous position of vapidly pounding the table. There is too much spotlight now and the King would have to answer the child’s question regarding his raiment.

            2. While I agree that 101 is a mess – 95% due to the asinine “abstract idea” fol-de-rol – and that the Court rewrites the law (or in the case of NFIB not so much rewrites as pens it originally) – my comment was about Graham specifically, which was a 103 case.

              I guess I do not know to what “dicta” you refer. For which I must be held blameless, as the Court loves dicta, most recently on display in the 103 context in KSR, in which Kennedy’s entire misguided “obvious to try” etc. non-TSM babbling was gratuitous and wholly unnecessary to the Court’s analysis, which when they finally applied it to the claims at issue reduced to: ta-da! conventional TSM reasoning. Perhaps you might point with the same specificity to the purported “dicta” in Graham, and if I am asking you to repeat prior posts, bear in mind that I am but a stranger here; heaven is my home.

          2. Tour, and what so tragic about section 103 is that most people accepted it because they were told it was an objective test, when in the final analysis all it did was state that a determination of “invention” was to be made upon the differences between the claimed subject matter and the prior art. But this was not new and itself is obvious.

            The codifications in the ’52 Act were not treated as mere codifications by Judge Rich and others. The ’52 act allowed the CCPA to take a different direction from the Supreme Court on the rubric that all they were doing was interpreting, for example, section 103, which they believed did not codify anything but should be interpreted afresh. I daresay you cannot find a single case, post ’52, in the CCPA or in the Federal Circuit that cited to a Supreme Court case that was decided prior to 1952. This was the typical pattern adopted by the Rich-lead court, ignore pre-’52 law as if the patent law began in 1952.

            It is a pattern one sees constantly in posters here as well. I give you Paul Morgan and anon as two examples.

            1. The codifications in the ’52 Act were not treated as mere codifications by Judge Rich and others

              We have been over this and even Frederico has stated that the 1952 Act was more than just codification Ned.

              It is unbelievable that you are trying to deny this reality.

              You sir, are being the lawless one by not paying attention to which branch of the government was given the authority to write patent law and ignoring what happened in 1952 in order to have your ‘nine kings’ hold onto their addiction.

              Shameful Ned. Deeply shameful.

            2. Quick example, Ned: Flash of Genius.

              I will remind you that I only need one counter example to disprove your statement of “Only a codification.

            3. and since you whine so, I expect a full legal brief from you as an answer.

              After that, turn your attention to the legal brief that you need to supply in our Nazomi discussion. Or are you (conveniently) not understanding that case yet? Why is that case in particular giving you such a hard time, and yet you have such abundant time to dredge the depths of history with Curtis et al?

              What are you afraid of in the Nazomi case, Ned?

              Yes – we both know exactly what you are afraid of. We both know why you run away.

            4. Anon, “Frederico stated.” Cite me chapter and verse please. Congress did know that specific cases were being targeted. Beyond that they thought they were codifying the law, not changing it, and to the extent that it was not codified they were not changing it.

              But that is not what Rich time and again held. If he could not find it in the statute, he overruled prior cases. Now that is a joke.

            5. That’s not a proper brief, Ned.

              It is just your opinion.

              Under your standards, it is not accepted.

              Where is the brief from you on Nazomi – are you still claiming ignorance?

            6. Anon, and if you do not want to do that with respect Alappat but want instead to discuss Nazomi, why don’t you give us the facts, the issue on appeal in the holding the court, such that we may discuss that case.

            7. The clear difference Ned is that I am not claiming ignorance as an excuse.

              We have been up and down Alappat – all that you are doing now is under the guise of “legal procedure” attempting a brier rabbit jump into the thicket.

              If you do not understand the facts (as we have discussed already) and do not understand the holding (as we have discussed already) how then will my trotting all that out one more time help you?

    3. Excellent post there Max. The lack of any filter on the kind of differences that are reviewed in the section 103 analysis forces the inquiry into eligible subject matter out of 102/103 and back into 101.

      Another approach we could take would be to require that subject matter that is neither a machine, an article of manufacture, or composition of matter, or a manipulation of one of these, be excluded from claims. Such a rule would perforce confine all claims to the useful arts.

      1. Do you realize that you are attempting (again) to make the category of process a sub-tier category to the hard goods items?

        The law does not do this.

      2. Two-dimensional Ned is trapped (again) in a circle, not realizing that he can step above the circle (in a third dimension) and escape the confines of his ignorance.

        There are four statutory categories, Ned. Not three.

    4. “To be fair to the inventor, and for the sake of efficiency, they are expected to nail every single one of them, to do the job once, and get it right.”

      I’m constantly saddened to hear that it took 3 people to produce the garbage I see in EU case files. I mean, at the USPTO, if someone sends out garbage at least it is only on his head and he can always cry “understaffed”.

      1. Thanks 6 for bringing a smile to my face.

        Nevertheless, I’m sad that you’re so sad.

        If looking at EPO files makes you so sad, why don’t you be less hard on yourself, and simply stop looking at them? Must you look at them? Why?

        Perhaps I should clarify that the task of examining is delegated to a single member of the 3-person EPO Division. Typically, the other two get involved only when the case is ripe for decision (allow or refuse).

        1. “If looking at EPO files makes you so sad, why don’t you be less hard on yourself, and simply stop looking at them? Must you look at them? Why?”

          IDS submissions in cases require such.

          “Perhaps I should clarify that the task of examining is delegated to a single member of the 3-person EPO Division. Typically, the other two get involved only when the case is ripe for decision (allow or refuse).”

          I don’t really understand what you mean, but I’ll take it that this procedure in some way gives the other two an excuse. But I mean half the reason for the shty rejections is the art that isn’t related at all to what is claimed being put on the record for the person writing the rejection to use later. Maybe if that person wasn’t forced to use the shty art found then you wouldn’t have the garbage rejection going out the door. Just saying that’s a possibility.

          1. Two points, 6.

            1) MaxDrei operates in a different legal regime that does not have an IDS submission requirement.

            2) “But I mean half the reason for the shty rejections is the art that isn’t related at all to what is claimed being put on the record” – it is the examiner who decides what art to use for any rejections and if shty rejections are being made, then only ONE person is responsible. Do the Fn job right the first time.

            1. “1) MaxDrei operates in a different legal regime that does not have an IDS submission requirement.”

              He asked why I have to read the filed re re. I have to read the files to check off IDSs.

              “– it is the examiner who decides what art to use for any rejections and if shty rejections are being made”

              If all you have is a hammer (sht art), even a glass jar (novel claim) may, and indeed will, appear to be a nail (anticipated claim). Trust me, in patent pros this is fact. It happens over, and over, and over, and over again on a daily basis. It takes a lot of will to stop this from happening.

            2. If all you have is a hammer (sht art), even a glass jar (novel claim) may, and indeed will, appear to be a nail (anticipated claim).

              Yes 6 – the fact that this happens is why you hear from us counselors that the focus is simply on the wrong items when it comes to all the hubabub on patents – the focus needs to be on quality examination in the first instance and STOPPING the shty rejections from being made “over, and over, and over, and over again on a daily basis.

              Do the Fn job right the first time. Why should it take a ‘lot of will’ for you to do what you are paid to do?

  12. This Alice case comes down to: Will John Roberts’ shameful ignominy for rewriting ObamaCare to keep the issue alive in 2014 and 2016 as a dagger to the hearts of Congressional Democrats be subsumed by a shrewd if neo-Luddite reactive spasm to destroy software patents? Just as Jimmy Carter might be expected to support Barack Obama for legacy-tinted reasons that are not entirely altruistic, Roberts might be tempted to diddle himself with Lourie-like abstract idea gobbledegook to get the public’s mind off the ObamaCare pander that enraged one side and backfired on the other.

    Backpedaling from the execrable logic-by-tautology monster named Abstract won’t cut it. Roberts, if he wants to be forgotten for 2010, has got to blow something up in 2014. Some of his colleagues, however, are not besmirched by NFIB v. Sebelius, and may rather resist retrogressing to what was the cutting edge of legal acumen in the 19th Century. Brings out the worst in the pitchfork crowd and my God you never know where that might lead.

    1. Tour, is this the second post here where you went after Roberts?

      Moreover, I do not believe that software or software patents as a genus are involved, just business methods once again.

      1. Ned, if this is only the second post in which I have “gone after” Roberts, I have been remiss.

        As to business methods, I agree, partially. The Court will flee in horror from the Lourie camp’s metasticization of its benighted abstract idea gobbledegook probably by limiting whatever holding they arrive at not only to business methods, but to this one particular method. In other words, once again they will declare a fact-specific tautology without defining “abstract idea”. This will resolve nothing and will continue to make mischief below, but that is preferable to John Roberts to taking a principled stand as long as the Court can dodge responsibility.

        1. Tour, I give it 50-50 as to whether they explain themselves better or simply state the claims in this case are abstract without again explaining why, leaving us to thrash about just a bit more trying to figure out ourselves what Bilski and CLS bank are all about.

        2. “The Court will flee in horror from the Lourie camp’s metasticization of its benighted abstract idea gobbledegook probably by limiting whatever holding they arrive at not only to business methods, but to this one particular method. In other words, once again they will declare a fact-specific tautology without defining “abstract idea”. This will resolve nothing and will continue to make mischief below, but that is preferable to John Roberts to taking a principled stand as long as the Court can dodge responsibility.”

          Would you like to make a bet? 10 to 1 odds in your favor? Up to $1000.

          1. I have my way with you guys all week, and now you’re asking for more on a Sunday?

            OK my insatiable little buddy, bend over. It’s a bet.

            1. If you’re in alexandria we’ll put er in a handshake and set a date for payment. Specify your amount. I gave you odds, but you mean to put down the full $1000 vs. your $100 correct?

              I get a win on anything other than what you specifically stated happening correct? I’d prefer that since I’m giving you great odds. Or will you make me make a prediction that I must nail spot on for a win and all else is a draw? I can live with those terms but it’s less ballsy for you to demand that as a term.

              I’ve already made my prediction elsewhere but I will re-specify if needed for the bet. Briefly in an nutshell it is that they will continue to apply the concept or “doctrine” of preemption as announced in Benson, and as continued in Flook, Diehr etc. and all the claims found to be preempting will go on down this. This will be a majority, if not all, of the claims that are asserted against CLS.

              So let’s make the terms clear. You going to be near the PTO at all in the next month or so before decision is handed down?

              Either way, this’ll be the easiest 100$ I’ve made in forever. Man I love making money from suckers betting against a sure thing. I did it a bit when I was younger, fun times! People that have such a rebellious nature and always want to bet on the ridiculously unlikely are so easy to identify.

            2. I get a win on anything other than what you specifically stated happening correct?

              LOL – what a slime. No 6 – that is not how typically bets are run – you bet on your result, he bets on his, and anything else is a wash – you do not get the whole universe except his position, and he does not get the whole universe except your position.

            3. “that is not how typically bets are run”

              Bets aren’t typically 10 to 1 that what he says will not occur. That’s specifically what I was offering originally if you look back, to bet 10 to 1 against his position.

              I just want to make terms clear. If he wants lesser or different terms we need to be clear.

            4. Good show little buddy! I like the spunk.

              The bet, as I understand it:
              The Court strikes down this particular claim as non-statutory but does not strike down business methods as a class in general (meaning ipso facto they do not strike down all computer claims).

              I accept but not for the peanuts you offer. Let’s make it interesting. I put down $1000 against your $10,000. If you accept we will take this offline, exchange contact info, and I will send you $1000 to hold as surety. Should give you enough time to scrape up the ten grand on your end which of COURSE will be unnecessary – but you must commit to doing it anyway before the decision is rendered.

              Bet?

    2. Not that your reasoning is bad, but don’t you think Roberts should pick a race or sex case instead? Patents don’t exactly excite the partisan imagination anywhere but right here.

      He could try mangling the civil rights act or banning birth control or something maybe. Even Noel Canning won’t impress if he’s trying to reinvent his career with one nuclear decision, much less patent eligibility.

      1. Owen, to the extent that my post elevates patent law, which induces instant ennui if not outright slumber in normal people, to any of the social categories to which you allude, it was hyperbole. But as I assume you are aware, this a patent blog.

    3. Will John Roberts’ shameful ignominy for rewriting ObamaCare to keep the issue alive in 2014 and 2016 as a dagger to the hearts of Congressional Democrats

      LOL! Where did you get your political news? Because this is pretty funny stuff. Chief Justice Spock plays seven-dimensional chess with his court decisions.

      Roberts might be tempted to diddle himself with Lourie-like abstract idea gobbledegook to get the public’s mind off the ObamaCare

      ROTFLMAO!!!!! How is that supposed to work exactly? Lay it out for everybody. It sounds like you’ve spent a lot of time thinking about Chief Justice Spock. What was Chief Justice Spock’s “reasoning” behind his stance on the marriage cases? I can hardly wait to hear your wonderful theory.

      And the Myriad decision? What was Chief Justice Spock’s super deep strategery there?

      If computer-implemented junk like Alice’s junk goes up in flames, I can tell you what will happen: “the public” will celebrate for about two days and will then return to focusing on other issues. Mainly that’s because “the public” knows perfectly well that the only people who benefit from patents on junk like that are the grifters and wealthy bottom-feeders who exploit the patent system for a living.

      Nobody will ever notice any decline in “progress” in the “art” of contract drafting or the “art” of creating “shadow accounts” because patents do nothing to promote any such “progress” in such “arts.” Chief Justice Roberts probably understands that much already, as do most people who aren’t drunk on the MoreMoreMorePatents kool-aid.

  13. I hae a further problem with the toilet seat having Borsand’s image applied to it.

    Suppose the image is applied not by a photographic process but by a portrait painter who starts from one side of the face and one side of the seat and works across gradually to the other side.

    Does the seat become gradually and progressively patent-ineligible as the image is applied to it, so that parts remain patent-eligible and parts not. When the left half has been painted with the image that half is patent-ineligible while the right hand side is not.

    Or does the seat become patent-ineligible at the first brush-stroke?

    Or does patent-ineligibility bite only when the image is completed.

    Guidance on the above issue is much needed.

    1. PC Does the seat become gradually and progressively patent-ineligible as the image is applied to it, so that parts remain patent-eligible and parts not.

      First, Paul, you are making the kindergartner’s mistake of assuming that because the claim recites something that you can sit on that it is necessarily eligible for patenting. That’s not how it works.

      If your claim is “A toilet seat, wherein said toilet seat comprises the beginning of an image applied to it” you run into the same subject matter issues that you did if the entire image is on the toilet seat.

      Similar issues arise if your claim is to “A toilet seat comprising a screen, wherein said screen displays an image comprising X.” Putting a screen on a toilet seat is just as obvious as putting a screen on any other object because the screen is going to do one thing and one thing only: display information. Whether that information is a “warning color”, somebody’s picture, an advertisement for chewing gum, stock quotes, or a “movie not yet shown in theatres” makes no difference whatsoever. Granting patents on such junk is just granting control over information in certain contexts. It isn’t permitted. Information is not eligible for patenting.

      Elsewhere in the thread, MD asks whether the Supreme Court has approved the printed matter exception to 103. The answer is “no”. It’s a judicial creation of the lower courts that has never been considered by the Supreme’s. That’s just one of the reasons that the silence of the patent teabaggers on the doctrine remains so fascinating and emblematic of their hypocricy. Of course, we have some sense of how the Supreme’s might approach the printed matter exception to 103 based on how they dealt with the government’s proposal to deal with Prometheus’ claims by ignoring the ineligible subject matter in the 103 analysis.

      1. Ever with the spin…

        Information is not eligible for patenting.

        should read

        Information per se is not eligible for patenting.

        But that is decidedly not what the software eligibility discussion is about.

        Stop with the strawmen. Pull your head out of the sand. Try to be just a little bit intellectually honest.

        1. “Information is not eligible for patenting.”

          should read

          “Information per se is not eligible for patenting.”

          What’s the difference between “information per se” and “information”?

          1. That’s easy Malcolm – and something that you have volunteered an admission against interests as to knowing the controlling law: the aspect of being functionally related.

            D’Oh ! (said in the best Homer Simpson tones).

            1. the aspect of being functionally related.

              Gobbledygook.

              You might as well say that information is always eligible for patenting except when it isn’t. And you’ll tell us when that is.

              A garbage bag with David Kappos’ face on it. That seems pretty functional to me. It makes me laugh, makes my patent attorney neighbors laugh, and it hides the unsightly garbage bags.

              Maybe if there’s an ad printed on the forehead of the image of Kappos that’ll be even more functional. What do you think?

              If nothing else, I can still get a design patent. Right? LOL.

              What a broken system we have.

            2. What do you mean by “functionally related”? There is no instruction in a computer that says the number in memory is the quantity of hammers in a warehouse inventory. The data definition is not translated into instructions.

              Without a link between the meaning of data and instructions where is the functional relationship that is different from the function of an image on a toilet seat?

            3. See below at 2.4.1

              If that does not help, then look up the hat band case and the marked pitcher case.

              Translation: “Waste your time on this, sucker.”

            4. LOL – controlling law is not a waste of time.

              On the other hand, you admitting to knowing controlling law, and yet pandering your intellectually dishonest CRP – now that is a waste of time.

            5. Anon,

              Your previous message doesn’t answer my question. I suppose you refer to Miller and Gulack. In short Gulack states: “Where the printed matter is not functionally related to the substrate, the printed matter will not distinguish the invention from the prior art in terms of patentability.

              I note the word “substrate” in this sentence. To invoke the exception it is not sufficient to show software perform a computation. There must a functional relationship between the printed matter and the substrate.

              The question is how do you tie the functions of the software with the substrate? Take a computer programmed to compute the arithmetic value of the Arrhenius equation. I understand that the functional relationship may be provided by the instructions for the calculation. Now take a computer programmed to compute the optimal time for curing rubber using the same Arrhenius equation. Structurally this is the same computer because the exact same instructions are used. But functionally this is a different computer. One only does arithmetic while the other computes the time to cure rubber.

              The question is how you relate the functions of the second computer with the substrate in a way that distinguishes from the first computer.

            6. MM,

              You may be interested by this article from professor Kevin Emerson Collins. It was published in Indianna Law Journal Volume 85

              Link to article (PDF)

              Collins reviews the seminal printed matter cases. He concludes that when there is no advance over the prior art outside of the thought of someone who reads the printed matter the claim has been held invalid. But if an advance over the prior art outside of these thoughts have occurred the courts have crafted the exceptions they need to achieve this result. Collins argues that looking at the cases from this perspective brings sense to the doctrine.

            7. paul,

              yes – there is a substrate involved – but you are not focusing on the overall picture and the take-away from the case. The fact is that there must be a functional relationship, else software would not work. The function may be to merely transfer the workings of the manufactured item from the substrate to the computer and that is enough.

              The functional aspect need not be the stuff of Genius.

              The question is how do you tie the functions of the software with the substrate?

              No. That is not the question. At all. Why would you think that is the question?

              Structurally this is the same computer

              Your example presents a logical fallacy, as you are comparing apples and oranges. You are attempting to say “same computer” and “not same computer” by first focusing on a subpart and then proclaiming the entire computer is the same because the sub-part is the same. Sorry but no. That would be like saying that the same pair of tires put on two different cars makes those two different cars to be the same car. What you have instead is two different cars with the same component of tires.

              You need to follow the Grand Hall experiment. You need to read (and understand) the cases of Alappat, Nazomi, and the recent ITC case.

              Your question simply is not the right question.

              Apples and oranges.

            8. The easiest way to see that they are not the same computer is that they do not have the same present capability (the overall capability – not the capability of any one single component). Again – apples and oranges.

              This mirrors my very simple question to Malcolm that he always runs away from.

              How does the ‘oldbox’ – without being changed – somehow have a newly claimed capability? The only way to do so is to proclaim (magically) that the ‘oldbox’ somehow inherently has all future improvements and inventions already ‘in there’ – inventions not even contemplated yet.

              This is the debunked “House” argument (from the tv show).
              This violates Morse.
              This violates 35 USC 101 (or any new and useful improvement thereof).

            9. Ned, your post at 11.1.1.1.1.9 is completely unclear.

              I am not “explaining Diehr” – nor trying to.

              I am explaining why paul’s attempt to model Diehr is faulty based on his attempt to compare the same tires on two different cars and calling both cars the same.

            10. Anon,

              I am afraid your answers are still unhelpful.

              What exactly is the Grand Hall experiment? Nothing turns up in my google searches.

              My question is not about a programmed vs unprogrammed computer. It is between a computer programmed for the Arhhenius equations vs a computer programmed to compute the optimal time to cure rubber. I don’t see how Alappat and Nazomi are relevant to this comparison.

              You wrote The fact is that there must be a functional relationship, else software would not work. Then, please, show it to me. Don’t just hand wave “it must be there”.

              You wrote: You are attempting to say “same computer” and “not same computer” by first focusing on a subpart and then proclaiming the entire computer is the same because the sub-part is the same. I don’t argue that. I am arguing the entire computer is the same because there is no difference in the complete structure.

              I remind you that in both computers of my comparison there is working software. In both cases the software is identical and the underlying bare machine is identical but yet, the functionality differs. Nothing is left out in this comparison.

              You wrote The easiest way to see that they are not the same computer is that they do not have the same present capability. This is a circular argument. How do we tell a this is a different machine and not a another function of the same machine? Your answer: we show that this is a different function and forget about the structure.

              Nazomi and Alappat are not relevant here. These cases are about the differences in structure and capabilities of programmed vs unprogrammed computer. They are not about differences of functions in identically programmed computers.

            11. paul,

              I am afraid that I have misunderstood what you are asking then.

              In particular, what does “. It is between a computer programmed for the Arhhenius equations vs a computer programmed to compute the optimal time to cure rubber. mean?

              As to “You wrote The fact is that there must be a functional relationship, else software would not work. Then, please, show it to me. Don’t just hand wave “it must be there”.

              Software exists because it works. It works because of the functionality it has. What exactly do you want me to show you? It either works or it does not. If it did not, then we would not be having this conversation because written words that have no functionality are not the subject of patents. Such exists now and no one is trying to patent them. This is not a hand wave of “It mus t be there” it is a pointing to the reality and saying “It IS there.”

              I still think that you are trying to compare apples and oranges in the way that you are forcing the system to have different functionality and yet trying to say that they are physically identical (if that is what you are trying to do – that is n’t clear on how you are doing that – why don’t you step through from the beginning a) two identical systems with no software; b) put the curing software on both machines c) have identical machines with curing software and one works and one does not… um, wait – why are we not at the same place – I left nothing out, right?).

              Your comment about circular argument does not make sense.

              Alappat and Nazomi are extremely relevant. It is completely unclear why you are saying that they are not.

              Perhaps you have focused too tightly on a thought of an explicit program (as in, programmed in C) and are forgetting about the doctrine of equivalents….

            12. “There must a functional relationship between the printed matter and the substrate.”

              Obviously so Paul. Which I picked up on some 5 years ago. Turns out the softiwafties get around that little problem via another “controlling” case that had to do with a bench vice. In that case, the “judges” in so far as you could call them that whilst watching them butcher “the law”, held that you can specify the function of object x in terms of the function of different object y.

              That “controlling law” is just at the panel level though. It should be overturned at some point en banc.

              Always remember, “controlling law” only “controls” courts of a certain level, and outside the court system it controls nothing at all.

            13. “Now take a computer programmed to compute the optimal time for curing rubber using the same Arrhenius equation. Structurally this is the same computer because the exact same instructions are used. But functionally this is a different computer. One only does arithmetic while the other computes the time to cure rubber.”

              That’s how you kill at least some software patents under 102. Structural sameness.

            14. …remimds me of 6 saying that his Britney Spear CD is the same thing as a Windows operating system CD, no other changes needed.

              (well, you do have to create another software component that basically blanks out what ever is on the Britney Spears Cd and then rewrites exactly what is on the Windows operating system CD….)

              That strawman is ablaze so brightly that even the blind see.

      2. Malcolm engages (again) in dissembling with”whether the Supreme Court has approved the printed matter exception to 103… That’s just one of the reasons that the silence of the patent teabaggers on the doctrine remains so fascinating and emblematic of their hypocricy

        What a joke.

        We have talked about this in the past Malcolm. I corrected your obvious error that law somehow needs “Supreme Court review and imprimatur” to be considered valid law. Also, as I have posted in numerous points, the exceptions to the judicial doctrine would survive the demise of the judicial doctrine, and you would STILL be faced with the fact that software is a manufacture and machine component perfectly patent eligible in the category aspects of 101.

        The only “hypocrisy” here is yours.

        My what a lovely bunch of AOOTWMDs you have.

    2. Paul, you argument begins with machine or article. This IS the Rich view.

      If this were a valid way to view this topic, Benson and Prometheus would have come out differently.

      Flook held that insignificant extra solution activity is not sufficient. The claim must be more than the principle and some routine activity surrounding it. As CLS Bank correctly points out, such an approach would allow the patenting of anything and everything by simply reciting in the claim the routine.

      Begin with the fundamental principle. See if there is some unconventional technology added, or that the principle is applied as in Diehr to produce a improved result.

      1. What you are advocating has been called the contribution approach and has been rejected both in the EPO and in UK national law.

        The purpose of the comment is to illustrate the absurdity to which the approach leads. It goes with my video player which oscillates between patent-eligible not novel and novel but not patent-eligible states as a disc with your latest family pictures is inserted or removed. But I think that the disappearing toilet seat is even more fun.

        Any approach whose logic leads to ridicule of the above kind needs modification.

        1. Any approach whose logic leads to ridicule of the above kind needs modification.

          LOL. It’s your “logic” that’s ridiculous, Paul. You’re creating a strawman and attacking it.

          What you are advocating has been called the contribution approach and has been rejected both in the EPO and in UK national law.

          Who cares? Different system, different history, different options available. There is no one “perfect” way to address all the different kinds of computer-implemented and/or information-protecting junk being rammed through the world’s patent systems right now. The key is to recognize the problem and provide the gatekeepers (i.e., patent offices and examiners and courts) with as many different options as possible for getting rid of the junk so that the grifters and bottom-feeders stop choking the system with it.

          1. Sadly it is the defective logic that enables the strawman to be created.

            The way to get rid of the junk it to have efficient examination under 102, 103 and 112, not to have vague and unworkable rules under 101.

            1. Sadly it is the defective logic that enables the strawman to be created.

              Specifically, the defective logic appears to be equivocating the subject matter of a patent claim with a real-world device that would infringe the claim.

              There’s nothing illogical about having a statutorily ineligible claim that reads on a real-world device or method. Happens all the time.

            2. What type of device did you have in mind that would be patent ineligible (or that can have a statutorily ineligible claim read on it)?

              IANAE can answer with a device of his own, of course, but one answer would be: “A machine, wherein said machine comprises a nucleic acid of SEQ ID NO: X”, where the nucleic acid is a useful, non-obvious but ineligible nucleic acid.

              That claim is ineligible for patenting. Of course the claim reads on a zillion different machines that would be eligible for patenting if described appropriately (by reciting eligible new structure).

            3. Your strawman is showing – there is clearly a difference between a machine that ‘studies,’ manipulates and synthesizes nucleic acids and the CRP you attempted to pawn off at your post of 11.2.1.1.2.6.

              Clearly what you now backpeddle to is a device that is fully patent eligible.

              You lose twice over. In the first instance, and now getting caught red-handed blowing smoke.

              Man, it really svcks to be you.

            4. Here’s a hint Malcolm: there really is a difference between patent eligible and patentable.

              It is most definitely not a WHATEVER type of thing.

              Real law – with the aim towards clarity and not obfuscation and conflation – is really important.

      2. Ned,

        Your litany of mistakes continues:
        Benson: please supply the quote, you know the one ending in “We do not so HOLD;” also cabined, and not likely to come out the same today.
        Prometheus“: Integrate; but do not conflate and square (as cannot be done) the fact that the decision was not changing the law from the case most on point in Diehr. Clearly Prometheus must be contained to the facts of that case.
        Flook (and Benson): cabined by Diehr (yes, you have constantly run from this).
        Diehr: the result need not be improved or new: perfect cures were possible and achieved prior to Diehr

        Clearly, Ned your understanding of 101 law is too fouled up with the bias of your agenda pushing to be taken seriously.

        1. anon, the basic problem you seem to have is that you read a lot more into my remarks than I actually say, and perhaps also ignore critical limitations.

          I do not have time to continually straighten things out so that you and I can be on the same page when were are discussing a topic. I usually do not respond to you at all. If I do not, it is because of this problem.

          1. I am not the one ignoring critical limitations, Ned.

            In fact, I am the one that seems to be reminding you of the critical limitations that you are in the habit of ignoring.

            (and your idea of ‘straighten’ is most odd)

            Please return the AOOTWMD to Malcolm.

          2. Ned whines “I do not have time” and yet expects me to provide full scale legal briefs to his cretinous ad nauseum vomiting of agenda-induced CRP.

            How many times have you run away from points offered Ned? How many times have I run away from your ‘points?’ You have offered the fale answer previously that you have not run away, but that I just did not like your answers – were ANY of your so-called answers even remotely to the legal standard that you now whine for?

            Any?

            Even one?

            We both know the answer to that is “no.”

            And we both know why, don’t we?

            Instead of kicking up dust, why don’t you stop running away? For example, hunker down and figure out the Nazomi case. Stop using the pitiful excuse of “I don’t understand the facts.” Stop using the pitiful excuse of needing me to supply the facts. If you don’t understand the facts as presented in the decision, how do you hope to understand them if I were to explain them to you?

            Stop.
            Running.
            Away.

            1. Anon, I am not asking you to draft a brief. When you contend the case holds something, and you are challenged, I expect you to support your position not with denunciations of the other side, but with evidence. In no case have you ever done so. Not once. Never. One must think that you have no idea what a holding is, and you are relying and others like Hal Wegner to tell you what he thinks the holding is as opposed to relying on reading the case yourself.

              Since Alappat is central to your thesis, show us here and now that you know what you’re doing by summarizing the facts of that case, the issue on appeal, and the holding the court.

            2. Ned _ I have many times now explained how the holding of Alappat is supported by the fact that the government attempted several arguments, and that if any one of those arguments succeeded, the case would have gone the other way.

              All that you are doing is playing a “Um, repeat that again…” game.

              It is outlandish to say that I have never done so. Complete and utter B$.

              Name one person besides me that routinely provides case cites. The fact that you happen to ride the same merry-go-round quite often and that I do not provide a re-hash of every discussion every time you jump on the merry go round is NOT the same as how you are trying to portray any sense of “lack of evidence” as you are trying to do.

              Quite simply, your “Never” is a bold faced 1ie.

              As to what is a holding – shall I remind you (yet again) who corrected you as to the holding of the Bilski case, and used a reference that you yourself supplied? Your memory – much like your reading of Court cases, seems hopelessly flawed in its selective nature.

    3. Does the seat become gradually and progressively patent-ineligible as the image is applied to it,

      It’s not the seat that is patent-ineligible, it’s the claim to a conventional seat whose only novelty is the image. If the seat itself is novel and unobvious, you can still claim it with or without the image, though you’d be a fool to narrow your independent claim by reciting the image.

      Similarly, nobody disputes that a computer-readable medium is eligible for patenting. However, when you claim a conventional or unspecified medium whose only novelty is in its information content, you have a defective claim.
      It doesn’t matter whether the claim is defective under 101 (information content is not patent-eligible novelty) or 103 (non-technical information content is ignored for the purpose of distinguishing over prior art). It’s effectively the same rule with the same result.

      1. It doesn’t matter whether the claim is defective under 101 (information content is not patent-eligible novelty) or 103 (non-technical information content is ignored for the purpose of distinguishing over prior art). It’s effectively the same rule with the same result.

        Exactly, with the caveat that the choice of which legal doctrine one uses to tank the claims might very well matter to the Supreme Court (it did in Prometheus’ case).

        And it also might matter because (as the teabaggers are very much aware) 103 has plenty of judicially created pro-patent “exceptions” (so-called “secondary factors”) for applicants to muck around with; and because the so-called printed matter doctrine itself is riddled with nonsensical self-serving loophools (“shoving a directed ad in your face is an awesome ‘function’ but shoving the Mona Lisa in your face is clearly only ‘fine art’!”).

        1. PON for 101 is forbidden.

          Here on planet Earth, a case by the name of Prometheus v. Mayo put that bogus, tired proposition to bed once and for all.

          Of course, the zombie-like nature of Diehrbots like you was noted years ago, anon. You’ll just keep telling your lies and pretending that it never happened (and out of the other side of your mouth you’ll tell everybody that Prometheus makes every claim ineligible — your hypocricy is boundless and you are a pathetic joke).

          1. Prometheus did not do what you thought it did.

            That was clear with your MASSIVE self-FAIL and posting to the USPTO take on the case which featured integration as the touchstone.

            You have never been able to recover from that error.

            1. Prometheus did not do what you thought it did.

              Yes it did. And it’s still doing it! That’s the best part.

              That was clear with your MASSIVE self-FAIL and

              *click*

              Get your meds adjusted, Tr0llb0y. It’s going to be a long year for you.

          2. Speaking of zombies, did you check the brief filed by the former CJ, Michel? I once had respect for the man. But he argued against looking for the substance of a claim in favor of a “claim as a whole” approach, which would, in the final analysis, be indistinguishable from Paul Cole’s position here, and without any filter for technical subject matter in 102.

            Quite an embarrassment, in my view. I wonder why he would do something so remarkably …. Well, I was thinking just there of the mental capacity exhibited by the prototypical zombie.

            1. without any filter for technical subject matter in 102.

              Tell me about this (apparently new) legal concept Ned.

              And please, rise at least to a level of a zombie in your careful legal authority tracing “technical” as a “subject matter” requirement in 35 USC 102.

              Please do not run away.

            2. Here is a perfect example of your duplicity Ned.

              I offer your own admission and you run away.

              Is it now that your own admission will not meet your need for some ‘legal standard?’

              Stop.
              Running.
              Away.

        1. >“nobody disputes that a computer-readable medium is eligible for patenting. ”

          Another FAIL

          You need to learn to read with a willingness to understand, Little Zombie Diehrbot Boy. What’s being referred to here, plainly, is a properly claimed (i.e., structurally defined) new, useful tangible medium upon which data can be stored. I’m not aware of anyone who disputes the eligibility of such compositions for patenting. Are you? If so, tell us his/her name and provide your evidence.

          1. LOL – I need to read with a willingness to understand?

            From the “master” of spin and and “intellectual honesty is not required because this is a blog and not a court” – that’s a bit too much.

            KA-BLOOEY – another galaxy of irony plants just exploded.

      2. Whose only novelty is in its information content<"

        Nice strawman – you forgot the functionally related critical aspect.

        Strike three.

        Go back to the pines.

          1. LOL – well, with a tilt of the head, there you go again.

            So much for reading with the willingness to understand (especially given as that you have volunteered an admission against interests in posting that you knew the controlling law on the matter and you knew what it meant).

            That lack of intellectual honesty is in full bloom on this point. And no wonder. For you to be honest would mean the end of your curse-sade.

            Svcks to be you.

      3. So IANAE, in practice (when real claims are not quite so clear-cut as a toilet seat) is the PTO to “do” novelty and only then move on to do “eligibility”? For me, by now hopelessly immersed in EPO thinking, that is a bit “arse before tit”.

        But it is the way they do it in England. Rough novelty, then eligibility, then rigorous novelty. So it does have that to commend it. Not very efficient though, is it?

        The EPO keeps it simple by doing eligibility without novelty (vindicated by the O’Connor Paper, I would suggest), then novelty, then obviousness. But I do see MM’s point, that examination of patentability is such a nightmare, one should if possible filter out earlier, under 101, to avoid have to do any examination under 102 or 103.

        Trouble with your approach is though, two wrongs (doing novelty before eligibility, making such a meal of 103) doesn’t make it the right one.

        1. The toilet seat with the image is a good example, and you will recollect from the opinion of the Enlarged Board in PRESIDENT’S REFERENCE that precisely the same issue is raised, though it is a mug not a toilet seat.

          The only way to resppond to unreasonable rules is not to try to make sense of them but to twist them in the hope that they will break and something better will emerge.

          In response to one of the earlier comments, what disappears is not the claim but the claimed subject-matter i.e. the toilet seat which vanishes like Louis Carroll’s cheshire cat which as we all remember vanishes leaving just the grin.

          1. The problem, Paul, is you are confusing the eligibility of the patent claim with an actual object falling within the scope of the claim.

            The actual mug doesn’t disappear when a claim describing the mug is deemed ineligible for patenting. You do understand that, don’t you? All that “disappears” is the legal abstraction we call “eligibility.” I think most people are pretty comfortable with legal abstractions such as “eligiblity” or “enforceability” changing depending on what words are used. It really isn’t much like a disappearing cat at all.

            1. Actually what is claimed is subject matter i.e. if we claim a toilet seat what we are claiming is not the words “toilet seat” but the physical reality of a toilet seat. When the patent is licensed that is what the royalties are based on – the thing, not the words.

              So as the toilet seat is painted in my scenario, in the eyes of the patent system its physical reality disapears in the same way as the cheshire cat of Lewis Carroll. It does not physically disappear, but the patent system becomes blind to it. It is not elegibility that disappears from the patent system but the actual object, which is more than a legal abstraction.

            2. as the toilet seat is painted in my scenario, in the eyes of the patent system its physical reality disapears

              That’s not true at all.

              Mainly because patent eligibility changes as paint is applied to the claim, not the toilet seat.

              If the toilet seat is claimed structurally, the claim will remain statutory no matter how much paint it recites (i.e., the patent system can still see it just fine). See Diehr.

              If the claim is to a generic painted toilet seat characterized by the appearance of the paint (as opposed to, say, the physical properties of the paint), the first brush stroke renders the claim ineligible.

              An actual, appropriately painted toilet seat will still infringe either claim, so the patent system can see those just fine also.

              I’m with Malcolm. The disappearing cat is a remarkably bad analogy here.

        2. So IANAE, in practice (when real claims are not quite so clear-cut as a toilet seat) is the PTO to “do” novelty and only then move on to do “eligibility”? For me, by now hopelessly immersed in EPO thinking, that is a bit “arse before tit”.

          I agree, it can be a bit of an awkward approach depending on the claim. Still, it’s relatively straightforward when the claim doesn’t recite any arguably new structure of the “eligible” component. Also, as I’ve said before, most people who have a legitimate claim to a novel structure aren’t going to load their claim up with a bunch of ineligible features. Most cases won’t require a novelty analysis before eligibility in practice.

          None of the claims that went to the Supreme Court were particularly difficult in this regard, except for when Myriad blinded them with science.

          1. IANAE: as I’ve said before, most people who have a legitimate claim to a novel structure aren’t going to load their claim up with a bunch of ineligible features.

            Indeed. What would be the point? It’s a waste of the client’s money, just like filing claim after claim adding massive reams of obvious additional “components” that do nothing except what they are already known to do.

            Claim the eligible invention. Describe your new useful structure in structural terms. That’s the patent you deserve.

            1. Describe your new useful structure in structural terms. That’s the patent you deserve.

              Deserve…?

              So says the RQ/HD.

              Someone remind him (again) that purely structural claiming is not an actual legal requirement. No matter how many times he merely declares it so.

        3. The most “efficient” approach, MD, is the approach that allows you to address the issue in the manner in which it first presents most readily. If it looks like the claim may be eligible at first glance, then hold off and perform the 103 analysis first, and then re-visit the eligibility issue. This should be absolutely required for any claim involving information processing.

          Trouble with your approach is though, two wrongs (doing novelty before eligibility, making such a meal of 103) doesn’t make it the right one.

          There’s nothing “wrong” with “doing novelty before eligibility”.

          1. I’m grateful to MM and IANAE for their sceptical/critical responses to my advocating that examination should run in strict sequence, first eligibility, then novelty, then obviousness. They tell me that there is no loss of efficiency in going into the issue of novelty before moving on the eligibility. I have two thoughts in reply, one theoretical and one practical.

            First, the theory. O’Connor backs up the EPO, that eligibility is an absolute criterion. You can judge eligibility without reference to novelty. To do so is more efficient, so that is what you should do, barring some force majeure which dictates otherwise.

            Second, the practical point. The EPO Technical Boards of Appeal hand down more than a thousand decisions each year, on substantive eligibility/patentability. They have found out, over the last 35 years, in the hurly burly chaos of real life claims, that it is more efficient to examine in strict sequence: first eligibility, then novelty then obviousness.

            But, of course, doing it efficiently, in the EPO sequence of eligibility then novelty, does require some tweaking, in how obviousness is examined in the USA. See what Prof. Hririk writes, in the Ethics section of this Blog, on the Michel Brief, at 2.1.1.

            1. Ned,

              May I suggest that you do more than provide a link – take some time this weekend and review the exchanges (here and and Prof. Hricik’s).

              Look at our exchanges and note some of your admissions re: “technical.”

              Clearly you are confused as to what is US law. You may be wearing that nifty UN head garb and forgetting that we do not yet have that One World Order.

              link to un.org

            2. O’Connor backs up the EPO, that eligibility is an absolute criterion. You can judge eligibility without reference to novelty.

              Sometimes yes, sometimes no.

              To do so is more efficient, so that is what you should do,

              When it’s more efficient, it is what you should do. When it’s not more efficient, you should not do so. That’s how you maximize “efficiency”: allow for flexibility and contingencies.

              They have found out, over the last 35 years, in the hurly burly chaos of real life claims, that it is more efficient to examine in strict sequence: first eligibility, then novelty then obviousness.

              Did they perform studies on this? I’d love to see the data. More importantly, how did the EPO determine the order of people’s thoughts when they looked at the patent claim, and how do they keep people from thinking about stuff in the “wrong” order? What if I’m an Examiner and I don’t see the 101 issue until after I’ve thought about the inventive step issue and looked at the prior art? Am I out of luck in the EPO because of this “strict” order business?

  14. Borsand said. “Basically, CLS is saying if you’ve come up with some sort of software invention, we’re going to hassle you at the door. But someone who comes up with a minor improvement to a screwdriver or toilet can walk through the door, no questions asked.

    “Isn’t that an archaic view? We think so.”

    CLS’s argument is that one cannot patent fundament economic principles. They further argue that Alice developed no software so that the case is not about protecting software or the software industry.

    Borsand’s argument woefully mischaracterizes CLS’s argument. It is so off the mark as to be a deliberate lie.

    1. They further argue that Alice developed no software so that the case is not about protecting software or the software industry.

      And Borsand knows this, as do all the other grifters and bottom-feeders.

      Continuing to allow junk like Alice’s claim to be granted and enforced protects only the grifters and the bottom-feeders. It doesn’t promote better software or better computer technology or better contracts or better banking. It only jacks up the cost of operating a company for everybody because everyone will be forced to pay off these middlemen who do nothing except grift and speculate and write patent claims describing inventions that, in most instances, they are unable to implement and market themselves because they lack the skill to do so. The actual work of writing and de-bugging code that performs its stated functions on numerous platforms? That’s for losers. The really important people just dream up patent claims and blow sunshine up the butts of the “investors”. Welcome to the World of the Patent Teabaggers.

  15. This thought strikes me over and over again:

    There is a computer delivered to company. A black box if you will that provides functionality. The company paid a lot of money for that functionality.

    And, the anti’s are saying that this computer is a ____________. Pick your word, but some word that they have manufactured. And, then because the computer is that word, it is not eligible for patentability.

    That is by definition a witch hunt.

    (And, note that you don’t know if it is a special purpose computer or software. And, software and hardware are equivalent–please think of the implications that you have tell us what is inside the black box or that depending on what is in the black box will determine whether or not you get a patent.)

    1. See the fact that software is equivalent to firmware and is equivalent to hardware.
      See Alappat.
      See the Grand Hall experiment.
      SeeNazomi.
      See the recent ITC case.

      See the anti-software curse-saders run away.

        1. The short version:

          Two physically identical computers with no software sit side by side.
          Load one with software. The other, not.

          Go.

          Are the machines still the same machines?

          See Alappat, Nazomi and the recent ITC case.

        1. Night, useful yes. But the attack is not on programmed computers per se. It is upon “fundamental economic principles.” Many argue that advances in programming and information processing like encryption should be eligible. The latter advance the use of computers generally.

          See the distinction?

          We might see the Supreme Court defining exactly why certain subject matters cannot be patented regardless of form. That is what we should hope for.

          1. Ned,

            The problem you still have is the word-smithing you are attempting with business methods.

            I told you previously that your attempts to define the term how you wanted to define the term (i.e. to use the word ‘abstract’) was not accepted as reflecting reality nor what the three branches of the US government have accepted.

            You are still attempting the same type of thing.

            Here, your ‘buzzword’ falters on the inclusion of “fundamental.”

            What does that mean? Economics is more than just “fundamental” principles.

            How far down the ladder of abstraction are you going?

            Are you still aiming for the category aspect of 101? The utility aspect? Some conflation of the two?

            Do you realize that when you say “regardless of form” that you cannot be referencing the category aspect of 101, right?

            That then pushes to the utility aspect. You have run away every time to the point I make as to how each branch of the government as accepted business methods into the Useful Arts, making any position you want to stake out in the 101 utility aspect very difficult.

            1. It is not me, but the Supreme Court that has to do a better job of legal justification for its exceptions.

              Flook did explain that laws of nature and phenomena of nature are excluded under “101″ because they are not “new.”

              I am not quite sure how this newness requirement applies when what were talking about are new principles of any kind, whether fundamental or not fundamental, whether mathematical, economical, musical, artistic, or just plain fun. The Newness of these things prevents their categorical based on lack of newness.

              “useful Arts” provides a clue. The useful arts are defined in section 101 as comprising “machines, manufactures, processes, and compositions of matter.” If the claimed subject matter is one of these, it is within the useful arts. And, as we seem to agree, programmed computers and CRM’s are both within the useful arts using this definition.

              But what if the novelty of the claim is neither a machine, a process, an article, or a composition, or the improvement of one of these? What then?

            2. No Ned – it is you(well it might be the Court as well…), as I have pointed out, it is you that keeps on butchering the 101 jurisprudence.

              Please do not repeat your error of explaining Flook.

              You still have not explained “fundamental.” (stop running)

              You have now BADLY conflated the Useful Arts in 101 (Useful is tied to the utility aspect, Ned- not the category aspect – how many times do I need to tell you this?)

              You still miss on understanding that software is a manufacture and machine component. Not sure why you have such a difficult time accepting this fact (well I do know it is your third party interests).

              Novelty of the claim weed expedition again? The novelty is the claim, taken as a whole. PON is a canard in 101 discussions Ned.

              Clearly – this is a “you” problem.

            3. I’m sorry, anon. I provide evidence to support what I say. You seem to live in the land of hope and wish, grasping at straws as the hurricane of jurisprudence blows down the house of cards that you call practice.

              Useful arts was defined in the original statutes in 1790 and ’93. That definition remains unchanged through numerous updates since.

              I have noted that Jefferson removed “discovery” from the statute and substituted “new.” Had he not done so, one who discovered a composition of matter not before known could have gotten a patent. This change is therefor significant, and very supportive of Myriad. The same argument could be made about “Art,” where art could be a law of nature or phenomena newly discovered. That had to be fixed so that the statutes did not go that far.

              Thus “new” was added.

              So, anon, is a fundamental economic principle an Art, machine, manufacture or a composition? Which one is it?

            4. Sorry Ned – I have seen no such evidence from you – just your footprints running away from the points that I raise.

              And Useful Arts was NOT defined in the statutes. Sorry, but your tea leaf reading is simply not correct.

              Yet again you mistake the time dependency factor. The universe is not static. Do you really need proof of that?

              I cannot answer your last questions as you have not yet answered mine: what is “fundamental?” Are you at the top rung? three rungs down? a rung higher than any nearby ladder’s top rung?

              Don’t run away Ned (plenty more of unanswered questions you need to address).

            5. Anon, And Useful Arts was NOT defined in the statutes. Sorry, but your tea leaf reading is simply not correct.
              Yet again you mistake the time dependency factor. The universe is not static. Do you really need proof of that?

              The founding fathers certainly defined what they believed to be useful arts in the statutes as originally passed, and these include the patent act of 1790 in 1793. But seems to be your contention that they did not define useful arts, even though that apparently is what they did in fact do. What is your reasoning as to why they defined “useful” and then gave a list of what they believe the proper subjects of patents were? Were they not putting down on paper what they then believed to be the useful arts?

              Now if they at that time wrote down what they believed to be the useful arts, and you contended something that is not on that list is a useful art, why? You simply make that statement. You provide no authority. Provide no reasoning. You simply say you are right and everybody else is wrong.

            6. The founding fathers certainly defined what they believed to be useful arts in the statutes as originally passed

              Simply wrong – for the reasons already given.

              According to your bungling, we would ever be needing to discuss Useful Arts, Useful Machines, Useful Manufactures, and Useful Compositions of Matter. And somehow, all of these then would turn around and (again) be subsumed into a term of art called Useful Arts.

              You are severely confused and engaged in hyper-over-reading. You want to read the passage in a twisted way, which reads out the term of art actually used in the Constitution.

            7. Ned,

              Are medical methods on that list? I don’t see it in the statute. I don’t see it in the Constitution.

              Wherefore, does your logic go?

          2. Ned, yeah, yeah, so you aren’t witch hunting just going after bad women. Right.

            All that you said, again, is saying some invention is a ____ (witch).

            Go to real inventions. Go to real scope of enablement. Name real inventions that are precluded. Reference LizardTech.

            All that you say is nonsense. It is witch hunting.

    1. Have as yet read only the Summary of Argument but I do like its point, that because in respect of the claimed subject matter, not a scientific truth or a mathematical expression of such, the court has not yet received any evidence on novelty and non-obviousness, those requirements of patentability should be a given.

      Accordingly, the question before the court boils down to whether novel and non-obvious subject matter, not a scientific truth, (for example, a toilet seat characterized by a particular image on its upper surface) should nevertheless be deemed ineligible.

      As Paul Cole points out elsewhere in this thread, applying the image to the seat does not convert the seat from something concrete into something “abstract”.

    2. Paul, the brief does a good job at forcing the Supreme Court to better define the legal basis for its decisions.

      It seems to me that when one is dealing with a fundamental principle or law of nature (the distinction between the two might be hard to define), that one has to add more than the routine and conventional. This actually explains the holding of Benson very well in that the addition of the conventional computer was not sufficient. Prometheus cements this rationale.

      Thus, in Bilski, the balancing of risk was deemed a fundamental “economic” principle. Nothing unconventional was added to move from the principle to particular.

      The Court has yet to define what this something added must be. But, I think, that it has to be a new “result” and that result has to be physical just as Benson stated.

      1. The Court has yet to define what this something added must be. But, I think, that it has to be a new “result” and that result has to be physical just as Benson stated.

        Indeed.

      2. This actually explains the holding of Benson very well in that the addition of the conventional computer was not sufficient.

        That most definitely was NOT a holding of Benson.

        Talk about your direct 1ies….

        1. anon, it would be please if you could, at least once, and perhaps even regularly, define a holding by what it is, rather than by what it is not.

          Also, in discussing holdings, a quick summary of the facts and issue is also the way to go. We learn this method first thing in law school, or at least, reputable law schools.

          1. define a holding by what it is, rather than by what it is not.

            The problem Ned, is that you keep on butchering the holding so as to directly interfere with the very words the Court uses to say “No, that is not our holding.”

            This is a “you” problem and how often and badly you maim the 101 jurisprudence as you attempt to twist it to fit your agendas.

            Did you also learn in your ‘reputable’ law school to avoid maiming the holdings? (and do you forget who exactly schooled you in the holding of Bilski – using your own supplied reference on the difference between holding and dicta?)

            Your problem Ned, is not me. Your problem is you.

        1. What is “physical?”

          Is light physical?

          We all know that you got your xss served to you on a plate in Nutjen. That was years ago and you apparently still haven’t gotten over it.

          But zombies will be zombies, won’t they? Please don’t ever let us down, you cute little Zombie.

          1. I have no problem admitting that Nuitjen is controlling law and discussing in substantive detail why that controlling law is a fail based on pure science and fact.

            On the other hand, you continue to run away from the simplest questions when it comes to heart of the software patent eligibility discussion.

            And that’s not even getting to the lack of credibility that you have since you maintain that intellectual honesty is not required for blog posts.

            Man, it really svcks to be you.

            1. you continue to run away from the simplest questions

              I’m not running away from anything. Long ago I chose to not to respond to your b.s. “when did you stop beating your wife” nonsense except to serve it right back at you.

              First Amendment still applies, bro’. If you have a point to make, then feel free to make it, using whatever feeble English language skills you possess. And you’ll surely be asked to explain your self-serving b.s., as always. And as always, we’ll discover once again that it is you runs away and lies, then runs away and lies, then runs away and lies, all the while calling everyone else a coward and a liar.

              It’s what you do, Tr0llb0y. It’s all you’ve ever done here, really.

            2. Nice AOOTWMD as you run away.

              First Amendment still applies” – what the F has that got to do with anything? Are you admitting that the First Amendment allows you to crater out your ‘credibility’ every time you can?

              Well goody for you, and job well done – you have ZERO credibility out side of your little circle.

              It still svcks to be you.

  16. Does anybody recall the Scene in the film Oliver Twist, with the starving waifs in the refectory. Oliver has drawn the short straw and must go up to the front with his spoon and bowl. “Please sir; I should like some more”. Oliver gets beaten, and is told that his request is ridiculous.

    Seriously though, do you not think that asking as in this Brief will have a counter-productive effect, bringing those guys on SCOTUS to a view that the TT Petition is ridiculous, and thereby rendering the other side’s arguments somehow more attractive?

    I think they are careful to avoid positions that the media and the public will dismiss as ridiculous. Bilski, for example. How could they seriously tell the world that business methods are not “useful” arts?

    1. Seriously though, do you not think

      ?

      The brief could have been much more vocal in explaining that the Court has stepped over the line from ‘interpreting’ to writing the law.

      There is certainly some “not thinking” going on (just not – as usual – where you think it is).

      How could they seriously tell the world that business methods are not “useful” arts?

      LOL – is that tongue in cheek, or tongue somewhere else?

        1. Thanks, Max.

          That Connor article is great on distinguishing between useful arts, math, and economics. See the MAP. It would be nice if the Supreme Court officially recognized the encyclopedia for it implied definition.

          It is observed that 101 limits “useful” to machines, processes, manufactures and compositions. Obviously, these limitation on utility were intended to be the Arts part of useful. One only has to look at the Patent Acts of 1790 and 1793 to determine what congress originally thought the useful Arts were. No more needs to be said.

          But with the advent of computers, we have programmed computers being the nominal subject matter, where the real subject matter is neither a machine, a process, a manufacture nor a composition.

          The distinction between the substantial and the formal is the real topic of conversation at the Supreme Court.

          1. where the real subject matter

            Funny that, the ‘gist of invention’ misuse by the Court was what led the Congress to remove the authority from the Supreme Court to set the definition of ‘invention’ by common law evolution back in 1952.

            All that you are doing here Ned is showing that the 1952 Act removing that authority was the right thing to do.

      1. Really Ned? You are going to continue to pretend that I have not laid this out for you (and yet you continue to run away from those discussions)

        That’s pretty outlandish of you.

  17. If you ever want to know what kind of an agency the USPTO is consider the following.

    First they issue everyone a flash thumb drive to use at work or where ever.

    Then, they invite companies in to give technical training who also give out little simplistic “prototype” flash thumb drives to all in attendance.

    Then a few months later they issue the following:

    ___________
    Removable Media Storage Devices Present Risks to USPTO Systems and Data

    Employees are advised that removable media storage devices can present a serious risk to our IT systems. The risks lie in potentially losing sensitive data or exposing USPTO systems to malware. The agency must strictly control the use of such devices.

    Such storage devices can become infected with computer viruses, transfer malicious code, or copy or remove sensitive data such as usernames, passwords, and encryption keys from USPTO information systems. Their use, unless specifically requested by management, is prohibited.

    Removable media storage devices include items such as flash drives, portable disk drives such as USB drives or memory cards, DVDs, read/write CDs or devices that store media such as PDAs, digital cameras, or even Apple® iPods® and iPads®.

    USPTO employees who need to use USB drives or other portable storage media devices for business reasons need supervisory approval.

    Here are the guidelines from the USPTO IT Security Handbook:

    The use of removable media shall be limited to the greatest extent possible and used only in support of the office mission. Personal removable media storage devices are prohibited from being connected to the USPTO system.

    Only use removable media in support of USPTO when there is a valid business reason (i.e. confidential or sensitive data) and the risk of use has been thoroughly considered.

    Do not use personally owned removable media devices in systems owned by or operated on behalf of the USPTO.

    Data encryption must be used to protect information stored that may be considered sensitive. USB drives that are used should provide mechanisms for password protected encryption, and other mass storage devices should also support full media encryption (not just on a file by file basis).
    For more information, see the Removable Media Devices Resource or the USPTO Media Protection Procedures.

    ________

    I mean seriously?

  18. Steve Borsand, executive vice president for intellectual property at Trading Technologies

    Shall we take a look at some of the incredible cr*p that these guys have attempted to patent?

    1. Of course, your continued use of anecdotal claims to try and prove points is a logic fallacy. But, I would guess that APEs don’t care about such things.

      1. Malcolm is on record as believing that intellectual honesty is not required because this is merely a blog and not a court.

        Likewise, 6 is on record as believing that ‘anything goes’ since this is all ‘subjective in the mind make up what you want anyway” stuff.

        Likewise, Ned is on record as being ‘annoyed’ that I keep on trying to hold him to the actual facts and actual law and have him discuss simple questions that go to the heart of the software patent eligibility issue. Yet that does not stop him from his virulent curse-sade against Judge Rich and the 1952 Act and anything else that does not align with his third party interests.

        The best part is that none of these ‘advocates’ realize how much they hurt their cause when they publicly take the low road again…

        and again…

        and again…

        and again…

        and again…

        and again…

  19. Borsand contends if a patent claim is reciting concrete, tangible things, then it should be straightforward.

    “Then it’s not abstract,” he said. “You pass the (Section) 101 bar. Now, you can move on to determine if you’re really entitled to a patent.”

    Ah yes, the Kindergartener’s Approach to patent law, as favored by Rader & Co. “You can touch it! Therefore I should be entitled to play pattycake games regarding obviousness until the cows come home.”

    “(Section) 101 is the ticket into the door, so to speak,” Borsand said. “Basically, CLS is saying if you’ve come up with some sort of software invention, we’re going to hassle you at the door. But someone who comes up with a minor improvement to a screwdriver or toilet can walk through the door, no questions asked.

    That’s not true at all. My toilet is improved because it has Borsand’s picture on the seat. So tell everyone, Mr. Borsand: is that an eligible invention? If so, it must also be patentable, right? Unless someone else thought of it first and, really, how likely is that? I’ve already got parties interested in taking a license (secondary factors, baby! — we all know how the game is played).

    Nobody needs generically claimed junk like Alice’s bogus “improved computer” or whatever they’re calling their doctored-up method for contract drafting. Such patents promote nothing except bottom-feeding by patent attorneys and other exploiters of a system that is presently churning out more functionally-claimed junk at a faster rate than ever before in the history of humankind.

    1. “Nobody needs generically claimed junk like Alice’s bogus “improved computer” or whatever they’re calling their doctored-up method for contract drafting. Such patents promote nothing except bottom-feeding by patent attorneys and other exploiters of a system that is presently churning out more functionally-claimed junk at a faster rate than ever before in the history of humankind.”

      But but but, MM, just think how many more patents they’ll file for and how many “useful” computer “configurations” they’ll disclose if they win several billion from CLS Bank.

      1. just think how many more patents they’ll file for and how many “useful” computer “configurations” they’ll disclose if they win several billion from CLS Bank.

        Right. Because it’s so expensive to dream up functions for computers and write them down.

        Just imagine a computer that can organize all the hamsters you own by name and also by year of birth, and you can toggle between the lists simply by clicking a button. From your robot car. Can I haz patent now?

        1. it’s so expensive

          LOL – another canard from the Malcolm script.

          Expensive being just another but-for on the canard carnival.

          More Malcolm Tool-time.

    2. …picture on a…

      And there goes Malcolm once again with the strawman non-related ploy.

      You want to try again, perhaps with the controlling law pertaining to the exception to the judicial doctrine of written matter, you know the one, since you admitted to knowing this (not this stops you from your intellectually dishonest curse-sade).

      What’s that Malcolm? What? You want to try again with something a little more on point? Or are you just interested in mucking around?

    3. LOL – “needs”..?

      Yet another foisting of a canard.

      The patent system is not a needs based thing, not a ‘but-for’ thing, but you already knew that, didn’t you?

      What a Tool.

    4. The EPO’s view is that the seat is a patentable article since it serves the technical purpose of providing support and fitting to the toilet, and it does not cease to be technical merely because Mr Borsand’s picture has been applied to it. However, Mr Borsand’s picture, being non-technical, does not contribute to patentable novelty. That view has much to commend it, as has been remarked in many previous posts.

      1. as has been remarked in many previous posts

        As has the fact that real functional differences exist between a picture applied and some other type of thing that may have a functional relationship that does provide real patentable contribution.

        The exceptions to the judicial doctrine of printed matter are known and are controlling law, and these exceptions provide that same patentable weight distinction because (gasp) it really does matter that software is functionally related, that there is a real difference between a disc with an operating system encoded and a Britney Spears CD (although 6 does not so believe). It really does matter that software is a manufacture, is NOT something “totally in the mind” (as seen by the fact that copyright cannot be given to something “totally in the mind.”) and that both a manufacture (machine component) and a machine (new computer due to the addition and configuration of the software component) very clearly meet the category aspect of 101.

        Clearly, the strawman of ‘immediately move to the other parts of the statute” should be avoided (alas, often is not). We still have the utility aspect of 101 to deal with -and it is that aspect, when reasonably addressed with what is a useful art (which clearly includes business methods, right MaxDrei?) that still needs to be reviewed on a case by case basis.

        But also clearly – the atomic bomb, 101 nose of wax ‘policy’ without law or fact support machinations should be ended. With extreme prejudice. No matter how many anti-software patent people have their fee-fees bruised. Lots of puppies out there looking for soothing homes.

      2. Paul, will the “Printed Matter Doctrine” exclude all that the EPO finds to be not “technical”? Can the PMD by itself do all the necessary filtering, or does it need help?

        BTW, where does the PMD come from? Is it even recognised, at SC Level?

          1. Clearly the PMD (without the exceptions) is not viable.

            LOL. Really? Please tell everyone what awesome technological “progress” will not be promoted if we close the loophole afforded by the “exceptions” to the printed matter exclusion?

        1. And yes, it should also be noted that the exceptions which are critical are exceptions to a judicial doctrine.

          (another glorious Malcolm self-FAIL moment slipped by – there are just so many of them)

          So, to be consistent with removing Judge-written law (explicit or implicit) would have NO effect on the patent eligibility of software as a manufacture and machine component.

          As common sense would tell any reasonable person.

        2. And please try to not feed the Malcolm canard that law only counts if it has been validated at the Supreme Court level – the Royal Nine simply do not have time for that.

      3. Paul, the EPO approach has a lot to recommend it. However, it has two parts, where the novelty has to be technical is one part.

        There is no requirement in US law at present that novelty has to be technical.

        Thus adopting only one part of the EPO approach without the other is totally unacceptable and will lead to the patenting of anything and everything by sprinkling the claim with detritus.

        1. There is no requirement in US law at present that novelty has to be technical.

          Ned – there is no requirement in US law at present that the invention has to be technical.

          Why would you need novelty to be so?

  20. It’s good that you kept this article posting small to not appear overly pro-patent.

    (lulz)

    Also, for those that are interested, boy the guy in the article sure sounds familiar.

    1. boy the guy in the article sure sounds familiar

      How can that be? Did my “English as a second language” somehow become understandable? Did the writer lend me his time machine so that the points made could be ‘copied’ by me, but appear here on this blog well before the brief was written?

      LOL – yet another 6 character suicide.

          1. “It could be because nwpa (ahem, martin) is an amici on the brief tard. Has nothing to do with you re re.”

            ^Said knowingly.

            “It could be because nwpa (ahem, martin) is an amici on the brief tard. Has nothing to do with you re re.”

            ^SAID KNOWINGLY!

            “It could be because nwpa (ahem, martin) is an amici on the brief tard. Has nothing to do with you re re.”

            ^SAID KNOWINGLY!!!!!!!!!!!!!!!!!!!!!!!!!!!!

            1. Have all the fun you want 6 – it is not my blog that might receive a subpoena in a defamation suit because you acted with knowing disregard for the truth.

              If I were blog moderator, I just might care a little – but Prof. Crouch could probably just hand over a redacted copy showing only your identification.

              ;-)

            2. LOL – take guess 6 – you have a blind 50-50 chance (probably the best chance you will ever have on theses threads of shooting your mouth off and being right).

            3. “6 I am not Martin. Please stop saying I am. Dennis, really, you know I am not Martin, please so inform 6.”

              Fine fine jesus old man. You just share a lot of characteristics with him. You should meet him, you guys could be bros!

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